Tan Ying Shi v 1. ) Kumpulan Wang Simpanan Pekerja (WA-24F-154-05/2023)

Responden Suami hendaklah membayar jumlah wang sebanyak MYR1,500 (Ringgit Malaysia Seribu Lima Ratus Sahaja) sebulan sebagai nafkah (“maintenance”) kepada Pemptisyen isteri untuk tiga

tahun berturut-turut, bermula daripada Januari 2018. …

Pempetisyen isteri di beri tiga puluh peratus (30%) daripada jumlah simpanan Responden Suami di Kumpulan Wang Simpanan Pekerja (KWSP) setakat tarikh perintah dekri nisi ini di mana jumlah tersebut akan dibayar kepada Pempetisyen Isteri apabila Responden Suami berumur lima puluh lima (55) tahun dan pembayaran wang simpanan 31 October 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 3 sebanyak 30% tersebut adalah termasuk faedah ke atas 30% yang diperuntukkan oleh KWSP untuk tahun-tahun berkenaan. [3] The Deceased had failed to meet the payment obligations outlined in the December 2017 Order. Consequently, the Plaintiff initiated committal proceedings, leading to the Court granting an order on 22 October 2021 (“the October 2021 Order”), with the pertinent portion stating: …

Responden Suami telah bersetuju dan diperintahkan oleh Mahkamah yang Mulia untuk mengeluarkan jumlah wang sebanyak MYR 75,000 (Ringgit Malaysia Tujuh Puluh Lima Ribu Sahaja) daripada Akaun 1, KWSP dalam tempoh empat belas (14) hari dari Tarikh Perintah ini dan harus dibayar kepada Pemohon Isteri dalam tempoh empat belas (14) hari sebagai penyelesaian sebahagian daripada tunggakan nafkah berjumlah MYR84,099.95 (Ringgit Malaysia Lapan Puluh Empat Ribu Sembilan Puluh Sembilan dan Sembilan Puluh Lima Sen) seperti di lampiran 67, Dekri Nisi bertarikh 15 Disember 2017. [Emphasis added.] [4] The Deceased had failed to adhere to the provisions of paragraph (c) in the October 2021 Order. Instead, in September 2022, he designated his mother, the Second Defendant, as his nominee. In November 2022, the Deceased passed away. [5] The Plaintiff subsequently visited the EPF office to claim the funds purportedly owed to her in accordance with the October 2021 Order. 31 October 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 4 However, she was informed that the funds could not be disbursed to her because the Deceased had named his mother as the nominee. [6] Consequently, in May 2023, the Plaintiff filed this Application, which was dismissed for the following reasons. Issues [7] The issues for consideration were (a) whether delay on the part of the Plaintiff in filing this Application was satisfactorily explained; and (b) the interpretation of section 53A of the Employees Provident Fund Act 1991 (“EPF Act”), particularly, whether the Plaintiff’s claim for the EPF monies fell within ‘matrimonial asset’ in section 53A of the EPF Act. Contentions, evaluation, and findings Whether delay was satisfactorily explained [8] The Plaintiff’s filing of this Application 18 months after the Deceased’s non-compliance with the October 2021 Order raised the issue of delay, a matter that necessitated the Court’s attention. [9] It was imperative, at this juncture, to emphasise to the Plaintiff that the element of delay holds significant importance in considering any application filed by a litigant. In Khor Cheng Wah v. Sungai Way Leasing Sdn Bhd [1997] 1 CLJ 396; [1996] 1 MLJ 223, the following remarks by Gopal Sri Ram JCA bear relevance: 31 October 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 5 It is a cardinal principle of law, that when a litigant seeks the intervention of the court in a matter that affects his rights, he must do so timeously. The maxim vigilantibus, non dormientibus, jura subveniunt, though having its origins in the Court of Chancery, is of universal application. Even in cases where a right is exercisable ex debito justitiae, a court may refuse relief to an indolent litigant. In all cases in which delay in approaching the court is in issue, the burden is upon the litigant who has delayed to render a satisfactory explanation for it. [Emphasis added.] [10] In the present case, the Plaintiff sought to attribute the lack of prompt action following the Deceased’s non-compliance with the October 2021 Order to her former solicitors. I found her explanation to be unsustainable, considering that her previous solicitors were not present in Court to provide their account, and furthermore, any interactions between the Plaintiff and her previous solicitors were not within the purview of this Court’s consideration. [11] As such, this Application should not be entertained by this Court. Nevertheless, in the pursuit of comprehensive consideration, I proceeded to examine the merits of this Application and provided the reasons for dismissing it. Whether the Plaintiff’s claim for the EPF Monies fell within ‘matrimonial asset’ [12] Given that this Application was based on section 53A of the EPF Act, it was essential to commence by scrutinising the said provision, as follows: 31 October 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 6 Section 53A – Transfer of credit of a member of the Fund in accordance with the division of matrimonial assets order

Notwithstanding section 51, when an order is issued by a court that part of the sums of money standing to the credit of a member of the Fund is matrimonial asset, the Board may, after being served with the sealed order, transfer the sum of money as ordered by the court from the account of a member of the Fund into the account of the receiver named in the order subject to any terms and conditions as prescribed by the Board. [Emphasis added.] [13] It is a well-established principle, as evidenced by a multitude of cases, including Koay Cheng Eng v Linda Herawati Santoso [2008] 4 CLJ 105, that funds held in EPF accounts are considered part of matrimonial assets. This concept is further reinforced by the provisions outlined in section 53A of the EPF Act. [14] However, section 53A of the EPF Act introduces a noteworthy aspect with the use of the term ‘may’, granting the EPF Board discretion to transfer funds, as per an order of the court, from the account of a member of the EPF Fund into the account of the receiver named in the order. [15] Additionally, this provision specifies that such a transfer is subject to the terms and conditions outlined by the EPF Board. It is important to note that this section does not compel the EPF Board to execute the transfer. 31 October 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 7 [16] In fact, the EPF Board had highlighted the challenges associated with these transfers, as documented in Circular No 113/2021, titled Matrimonial Assets Claims Pursuant to Section 53A of the Employees Provident Fund Act 1991 dated 26 March 2021. In this circular, the Legal Division of the EPF Board had communicated to members of the Malaysian Bar, the difficulties encountered in specific circumstances when implementing transfers stipulated by court orders, pursuant to section 53A of the EPF Act. [17] The further observation to make regarding this Application is that the October 2021 Order expressly states that the responsibility for withdrawing the funds rested with the Deceased, within a timeframe of 14 days after the date of the Order. There was no condition contingent upon the Deceased’s failure to comply, and it would be untenable for this Court to imply any such condition. [18] The October 2021 Order, dated 22 October 2021, placed the Deceased in breach of such order as of 5 November 2021. Given that the responsibility for withdrawal of the EPF funds rested with the Deceased, his failure to act necessitated action by the Plaintiff, which she had not undertaken. [19] Regrettably, not only did the Deceased fail to comply with the October 2021 Order, but he also proceeded to designate his mother as nominee, thereby further obstructing the implementation of the October 2021 Order. 31 October 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 8 [20] Furthermore, it was essential to acknowledge that the October 2021 Order expressly stated that the EPF funds were to be withdrawn as arrears for maintenance, rather than as matrimonial asset. Consequently, section 53A of the EPF Act could not be applicable as it pertains to matrimonial asset. [21] The Plaintiff cited the case of Leow Kooi Wah v Philip Ng Kok Seng & Anor [1997] 3 MLJ 133 to argue that the nomination of the Deceased’s mother should not be used to undermine her legal rights. The Plaintiff referred to the following passage by Mahadev Shankar J (as he then was): Regulation 16(2) of the EPF Regulations 1991 recognizes that upon the death of a Muslim member of the Fund, a nominee does not receive the money as a beneficiary but only as an executor in accordance with Islamic law. No parallel provisions have been made in the EPF legislation for non-Muslims, but the philosophy of the EPF legislation is clear. The nomination cannot be utilized to defeat the legal rights of the next of kin to the extent that the member's testamentary capacity has been restricted by law. [Emphasis added.] [22] It was, however, important to emphasise that Leow Kooi Wah v Philip Ng Kok Seng & Anor was decided in 1997, whilst the EPF Act was amended vide EPF (Amendment) Act 2007 to include section 53A with effect from 1 July 2008. Therefore, Leow Kooi Wah v Philip Ng Kok Seng & Anor was not a relevant precedent for the application of section 53A of the EPF Act. 31 October 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 9 [23] This would mean that the Plaintiff’s claim was contrary to section 51 of the EPF Act, which reads: Section 51 – Contributions and deposits not to be assigned or attached

Notwithstanding anything to the contrary contained in any other written law-

no sum deducted from the wages of a member of the Fund under section 48;

no amount payable by the employer as his contribution; and

no amount standing to the credit of a member of the Fund, shall be assignable, transferable, liable to be attached, sequestered, levied upon, for, or in respect of, any debt or claim whatsoever, nor shall the Official Assignee be entitled to or have any claim on any such sum or amount.

Notwithstanding subsection (1), the amount standing to the credit of a member of the Fund under paragraph (1)(c) may be forfeited if the amount standing to the credit of such member is subject to an order of forfeiture by a court under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001. [Emphasis added.] Conclusion [24] In the upshot, based on the aforesaid reasons, and after careful scrutiny of all the evidence before this Court, both oral and documentary, and submissions of all parties, this Application was dismissed. 31 October 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 10 Dated: 31 October 2023 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: For the Plaintiff – S Sakhty Vell and Premalosani Arivananthan; Messrs Chambers of Ari For the First Defendant – Nur Zahirah Badarudin and Nor Asfalla Mohamed Arsad; Jabatan Undang-Undang, Lembaga Kumpulan Wang Simpanan Pekerja For the Second Defendant – Poon Choong Yiew; Messrs James Liew & Kong Cases referred to: ➢ Khor Cheng Wah v. Sungai Way Leasing Sdn Bhd [1997] 1 CLJ 396; [1996] 1 MLJ 223 ➢ Koay Cheng Eng v Linda Herawati Santoso [2008] 4 CLJ 105 ➢ Leow Kooi Wah v Philip Ng Kok Seng & Anor [1997] 3 MLJ 133 31 October 2023 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 11 Legislation referred to: ➢ Employees Provident Fund Act 1991 – sections 51, 53A ➢ Employees Provident Fund (Amendment) Act 2007