Liow Keng Luan v Tan Si Hai @ Tan Si Yen (WA-33-205-04/2023)

This was an application (“this Application”) by the Petitioner Wife in enclosure 23 for the following, namely (i) that the Respondent Husband including the Co-Respondent, be restrained until further order from molesting, harassing, or threatening the Petitioner; and (ii) that the Respondent be restrained from bringing, authorising, or allowing his agents, including the Co-Respondent, from entering the residence at Bukit Damansara (“the Bukit Damansara Residence”).

The Petitioner and Respondent, (collectively, “the Parties”), both aged 64 at the time of the hearing of this Application, registered their marriage in Malaysia in October 1987, and were blessed with two daughters, born in 1991 and 1997 respectively.

Throughout their married life, the Parties resided in various locations. This was due to the Respondent's professional obligations as a nephrologist at Prince Court Hospital which necessitated a dynamic lifestyle, prompting the family to divide their time between residences in Bandar Utama and Binjai on the Park (“the Binjai Residence”). Notably, the Petitioner's presence at the Binjai Residence dwindled progressively, culminating in a complete cessation of visits in the year Damansara (“the Bukit Damansara Residence”) in 2021. 9 February 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 3 [4] As the years unfolded, the marital bond began to fray, marked by allegations of adultery and unreasonable behaviour on the part of the Respondent. These issues escalated, prompting the Petitioner to file for judicial separation, in April 2023. This was followed by a response by the Respondent in June 2023.

In July 2023, the Petitioner filed this Application pursuant to section 103 of the Law Reform (Marriage and Divorce) Act 1976 (“Law Reform (Marriage and Divorce) Act”), which reads: Section 103 – Injunctions against molestation The court shall have power during the pendency of any matrimonial proceedings or on or after the grant of a decree or divorce, judicial separation or annulment, to order any person to refrain from forcing his or her society on his or her spouse or former spouse and from other acts of molestation. [Emphasis added.]

The pivotal matters under consideration in the present case encompassed three main facets, namely: (i) delineating the scope and significance of 'molestation'; (ii) assessing the justification for a non-molestation order in the current circumstances; and (iii) determining the extent to which a non-molestation order could impinge upon the Respondent's access to the Bukit Damansara Residence. 9 February 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 4 [7] Given the nature of this application as an injunction, additional points of contention revolved around the presence of serious questions to be tried and in whose favour the balance of convenience lay.

This Application was allowed partially for the following reasons. Contentions, findings, and evaluation The meaning of ‘molestation’ [9] At the outset, it was crucial to determine the meaning of ‘molestation’ in the context of section 103 of the Law Reform (Marriage and Divorce) Act.

The word ‘molestation’ is not defined in the Law Reform (Marriage and Divorce) Act. This was acknowledged by Abdul Malik Ishak J (as he then was) in Chan Ah Moi @ Chan Kim Moy v Phang Wai Ann [1995] 3 CLJ 846 in the following passage, where reference was made to the English cases of Vaughan v. Vaughan [1973] 3 All ER 449, George v. George [1986] 2 FLR 347 and Johnson v. Walton [1990] 1 FLR 350, as well as the Britannica World Language Edition of The Oxford Dictionary: Unfortunately, the word "molestation" is not defined in the Act. The Britannica World Language Edition of The Oxford Dictionary defines "molestation" as: the action of molesting or condition of being molested; annoyance, disturbance, vexation

Save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia, the Court shall –

in Peninsular Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on the 7 April 1956; ... 9 February 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 8 [Emphasis added.] [18] In Jayakumari a/p Arul Pragasam v Suriya Narayanan a/l V Ramanathan, addressing the matter of whether one spouse could restrict the other's access to the matrimonial home, James Foong J (as he then was) articulated the following position: As the English common law prior to 7 April 1956 is applicable to our country, the English case of Silverstone v Silverstone [1953] P 174 may be of relevance as regards jurisdiction. Here, Pearce J expressed as follows at p 177: In my view, she has a right to be in a matrimonial home while a petition is pending before this court, and this court is entitled to protect that right and ensure that pressure is not put on a wife to abandon her petition by evicting her from the home. In the present case, I am satisfied that if I let the husband go back to the house I am really driving her out. By the same token, the court should have jurisdiction to evict a husband from the matrimonial home pending the trial of the action, if there is evidence based on considered principles to do so, otherwise the wife will be bullied out of her remedy or deterred by pressure from seeking the help of the court. This proposition of the wife's right to remain in the matrimonial home is based on the ruling by Denning LJ (as he then was) in the case of Bendall v McWhirter [1952] 2 QB 466, where he affirmed that a wife is not without rights in the matrimonial home even though it belongs to the husband, and her right to stay in the matrimonial home is presumed in law to have been conferred upon her by her husband flowing from the concept of a marriage. This issue of jurisdiction is further confirmed by the English courts in the case of Gurasz v Gurasz [1969] 3 All ER 822 which is a strong persuasive authority to our laws and can even be applicable under s 47 of the Act which provides that:

Principles of law to be applied Subject to the provisions contained in this Part, the court shall in all suits and proceedings hereunder act and give relief on principles which in the opinion of the court are, as nearly as may be, conformable to the principles on which the High Court Justice in England acts and gives relief in matrimonial proceedings. 9 February 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 9 In the case of Gurasz v Gurasz, the parties being husband and wife lived with four children in a matrimonial house jointly owned by the parties. The wife due to intolerable conditions left the matrimonial home with the children. The husband remained in the house and subsequently took in another man to live with him. The wife sought relief from the court to evict the husband and to reinstate her possession of the house with the children. The county court judge granted her application and on appeal to the Court of Appeal, Denning MR reiterated the position of the wife's right to occupy the matrimonial home and to evict an errant husband under common law. This proposition is common law was supported by fellow panel judge, Edmund Davies LJ in the same case when he expressed that: that such a general power (the power to evict a husband from the matrimonial home) unquestionably existed has, if I may say so, been amply and convincingly demonstrated by Lord Denning MR. Based on the aforesaid authorities, this court is convinced that it has jurisdiction to entertain, and if found satisfied, to grant the second relief of the petitioner's application in encl 8. [Emphasis added.] [19] I also maintained the view that Order 92 rule 4 of the Rules of Court 2012 (“Rules of Court”) provided ample authority for this Court to grant an order excluding the Respondent from accessing the Bukit Damansara Residence. The pertinent provision reads: Order 92 – Miscellaneous Rule 4 – Inherent powers of the Court For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court. [Emphasis added.] 9 February 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 10 [20] Reference was additionally made to the case of Tan Boon Lang v Lim Tong Sin [1997] 4 MLJ 485, where the Brunei High Court asserted its inherent jurisdiction under the Brunei High Court Rules Order 86 rule 4 (the equivalent of Order 92 rule 4 of the Rules of Court) to mandate a party to vacate the matrimonial house, notwithstanding proprietary rights, as long as matrimonial proceedings were pending. The court, in that case, emphasised the necessity to ensure that a party has the right to pursue legal remedies without pressure or intimidation, allowing them to proceed freely with matrimonial proceedings. [21] Furthermore, in Chan Ah Moi @ Chan Kim Moy v Phang Wai Ann, in deciding whether to make an order to exclude one spouse from the matrimonial home, guidance was drawn from the insights in Family Law by PJ Pace, where learned author articulated: While it has been said that an injunction excluding one spouse from the matrimonial home (as opposed to one restraining molestation) is a "drastic order" (Hall v. Hall [1971] C.A.), it is recognised that it is "fair, just and reasonable" that a spouse should be excluded, the Court will so order (Walker v. Walker [1978] CA). In deciding whether to make such an order the Court will have regard to such matters as:

the parties' behaviour;

the effect on the children if exclusion is, or is not, ordered;

the personal circumstances of the person sought to be excluded;

the accommodation available to the parties;

the likelihood of injuries to the parties; and

the parties' health. 9 February 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 11 [Emphasis added.] [22] The palpable tension in the relationship between the Parties was not only evident but reached a point of strain that could not be ignored. To compound the already delicate circumstances, the Respondent made the highly reprehensible decision to introduce the Co-Respondent into the Bukit Damansara Residence. This move, devoid of sensitivity, exacerbated an already difficult situation. [23] Living under the same roof was not just inappropriate; it subjected the Petitioner to a constant state of harassment, anxiety, and discomfort due to the presence of the Respondent. Drawing guidance from the precedent set in the case of Johnson v. Walton [1990] FCR 568, 1 FLR 350, it was clear that ‘molestation also applies to any conduct which intentionally causes harassment.’ [24] The Respondent argued that being excluded from the Bukit Damansara Residence would be unfair, citing his desire to host friends at that location. In my view, the Respondent’s contention was bereft of merit, given the unchallenged fact that the Binjai Residence offers sufficient space to accommodate a substantial number of guests. Considering the heightened animosity between the Parties, it would be more suitable for the Respondent to host gatherings at the Binjai Residence. [25] Furthermore, as the Respondent has enjoyed quiet and undisturbed living at the Binjai Residence, to the exclusion of the Petitioner, since 9 February 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 12 2017, it would only be equitable for the Petitioner to be afforded a similar environment at the Bukit Damansara Residence. Whether there were serious questions to be tried [26] In this Application, it was imperative for the Petitioner to convince this Court that there is a serious question to be tried, and that the balance of convenience lies in her favour. [27] The necessity for a serious question to be tried pertains to the cause of action between the parties. My reference point for this principle was gleaned from the case of ABC & Anor v JKL [2020] 11 MLJ 421, wherein the Supreme Court decision in Tien Ik & Ors v Peter Kuok Khoon Hwong [1993] 1 CLJ 9; [1992] 2 MLJ 689, was referred to. In the latter case, Hj Mohd. Jemuri Serjan SCJ articulated the significance of a serious question to be tried in the following passage: In an application for an interim injunction, the court is not called upon to make any final decision on any question of fact. What is required at that stage is for the learned judge to decide on the affidavits available before him that the claim in the originating summons is not frivolous or vexatious, in other words, there is a serious question to be tried, and having so decided he must go on to consider the question of balance of convenience. [Emphasis added.] [28] In the current context, Parties are involved in judicial separation proceedings, and it was evident that there are serious questions to be tried in such proceedings. 9 February 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 13 Where the balance of convenience lay [29] It was also my view that the balance of convenience and the broader principles of justice favoured the Petitioner for several compelling reasons. Firstly, both Parties have been residing in distinct residences, indicating a pre-existing separation. Secondly, the Respondent has enjoyed exclusive and quiet enjoyment of the Binjai Residence since

As such, allowing this Application would not be prejudicial to the Respondent. [30] Furthermore, it was imperative to take into account the emotional well-being of the Petitioner. The visible presence of the Respondent had a discernible impact on the Petitioner’s state of mind, emphasising the need for a resolution that prioritises her emotional welfare. Conclusion [31] Counsel for the Respondent argued that allowing this Application would be unjust, invoking the adage that a man’s home is his castle. However, it was essential to emphasise to the Respondent that the sanctity of ‘a man’s home is his castle’ holds true, but only ‘until his queen arrives.’ Consequently, it was ordered that the Respondent, including the Co-Respondent, be enjoined until further order, from molesting, harassing, threatening, or otherwise forcing his or her society upon or interfering with the Petitioner. [32] However, in the interest of justice and fairness, and in light of the Respondent's expressed desire to visit the Bukit Damansara 9 February 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 14 Residence, allowance was made for the Respondent, by himself only, to enter the Bukit Damansara Residence between the hours of 12 noon and 6 pm every Saturday. Dated: 9 February 2024 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: For the Petitioner – YN Foo, Kiran Dhaliwal, and John Heng; Messrs YN Foo & Partners For the Respondent – WH Kan, Goh Loh Boon and Lim Yee; Messrs WH Kan For the Co-Respondent – WH Kan, Goh Loh Boon and Lim Yee; Messrs WH Kan Cases referred to: ➢ ABC & Anor v JKL [2020] 11 MLJ 421 ➢ Bendall v McWhirter [1952] 2 QB 466 9 February 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 15 ➢ Chan Ah Moi @ Chan Kim Moy v Phang Wai Ann [1995] 3 CLJ 846 ➢ George v. George [1986] 2 FLR 347 ➢ Gurasz v Gurasz [1969] 3 All ER 822 ➢ Jayakumari a/p Arul Pragasam v Suriya Narayanan a/l V Ramanathan [1996] 4 MLJ 421 ➢ Johnson v. Walton [1990] 1 FLR 350 ➢ Lee Sook Kwan v Yap Woon [2010] 11 MLRH 167 ➢ Sheng Lien @ Shen Len Yee v Tan Teng Heng & Anor [2010] 11 MLRH 849 ➢ Silverstone v Silverstone [1953] P 174 ➢ Tan Boon Lang v Lim Tong Sin [1997] 4 MLJ 485 ➢ Tien Ik & Ors v Peter Kuok Khoon Hwong [1993] 1 CLJ 9; [1992] 2 MLJ 689 ➢ Vaughan v. Vaughan [1973] 3 All ER 449 Legislation referred to: ➢ Civil Law Act 1956 – section 3(1)(a) ➢ High Court Rules (Brunei) – Order 86 rule 4 ➢ Law Reform (Marriage & Divorce) Act 1976 – section 103 ➢ Rules of Court 2012 – Order 92 rule 4 Other sources referred to: ➢ Britannica World Language Edition of The Oxford Dictionary