Teh Seak Ling v Sim Kian Heng (WA-33-175-04/2019)

In this divorce petition, the Petitioner had initially claimed for several reliefs. However, before the full hearing of this Petition, the parties had conceded to issues regarding the divorce itself; guardianship, custody, care, control of the child to their marriage; as well as child maintenance – leaving only the issue of the division of the matrimonial home which was in Sri Petaling, Kuala Lumpur (“the Matrimonial Home”).

The Petitioner and Respondent cohabited since 2000 and had their marriage registered in November 2011. In 2012, they were blessed with a son. In 2014, due to several marital disputes, the Petitioner left the Matrimonial Home, and in April 2019, she filed this Petition.

At this juncture, I am compelled to state that although it was agreed that the only issue to be determined was with regard to the Matrimonial Home, parties had continued to demonise each other through correspondences, even after oral submissions were completed in open Court. I had made it clear to parties that except for the written submissions and valuation report for the Matrimonial Home that I had requested for, all documents filed after 17 May 2022 would be disregarded. Furthermore, I took a dim view of the continuous allegations made by both parties towards each other despite my specific directions to the contrary. 28 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 3

The Petition was primarily granted with the order for the Respondent to pay the Petitioner a sum of MYR440,000 as her contribution towards the Matrimonial Home; in the alternative, for the Matrimonial Home to be sold, with 40% of the proceeds to be given to the Petitioner. My decision was based on the following reasons. Contentions, evaluation, and findings

The Matrimonial Home was purchased in 2008 and was in the names of the Respondent and his father, one Sim Cheng Eng. However, the loan account for the financing of the Matrimonial Home was in the names of both the Petitioner and Respondent. [6] The Respondent contended that the Matrimonial Home was not a matrimonial asset as it was purchased in 2008 for the sum of MYR773,000, before their marriage was registered in 2011, and that, furthermore, he co-owned it with Sim Cheng Eng. The Respondent relied on section 76(1) of the Law Reform (Marriage & Divorce) Act 1976 (“Law Reform (Marriage & Divorce) Act”), which reads: Section 76 – Power for court to order division of matrimonial assets

The court shall have power, when granting a decree of divorce or judicial separation, to order the division between the parties of any assets acquired 28 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 4 by them during the marriage or the sale of any such assets and the division between the parties of the proceeds of sale. … [Emphasis added.] [7] I found the Respondent’s contention unacceptable as I was of the view that the more suitable approach was the one adopted by the Court of Appeal in Ching Seng Woah v Lim Shook Lin [1997] 1 CLJ 375, where a more holistic definition of matrimonial assets was prescribed by Mahadev Shankar JCA in the following passage: The Act does not define what matrimonial assets are. We think that during the subsistence of a marriage the expression refers to the matrimonial home and everything which is put into it by either spouse with the intention that their home and chattels should be a continuing resource for the spouses and their children to be used jointly and severally for the benefit of the family as a whole. It matters not in this context whether the asset is acquired solely by the one party or the other or by their joint efforts. Whilst the marriage subsists these assets are matrimonial assets. Such assets could be capital assets. The earning power of each spouse is also an asset. … Mr. Sidhu contended that s. 76(3) of the Act did not operate to make this a matrimonial asset because the husband had bought the house before the marriage. He said it was therefore not an "asset acquired during the marriage". We think this interpretation is too narrow. Once the house became the matrimonial home, its increase in value for the duration of the marriage is an asset acquired by their joint efforts. RM175,000 less RM29,00 is RM146,000 and had she got a half-share of this as she claimed she stood to get RM73,000. The Judge gave her a third of RM175,000 or RM58,333. 28 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 5 [Emphasis added.] [8] In the present case, it was important to note that the Petitioner and Respondent had cohabited since 2000, purchased the property in 2008, and then registered their marriage in 2011. The Respondent argued that the period of co-habitation was to be disregarded by this Court, and as such, the operative date was 2011 and property, if at all to be considered, was that acquired thereafter and not before. [9] I am mindful that cohabitation is not an institution that is recognised in Malaysia. However, in accordance with Ching Seng Woah v Lim Shook Lin, it was reasonable to assume, in the present case, that the Matrimonial Home was purchased in contemplation of the marriage, as the parties not only lived there, they had operated the tuition centre from the Matrimonial Home. Hence, it would be inequitable to conclude otherwise, and this was fortified by the fact that the loan account for the financing of the Matrimonial Home in the amount of MYR703,009 was in the names of both the Petitioner and Respondent. [10] On this point, reference was also made to section 76 (5) of the Law Reform (Marriage & Divorce) Act, which stipulates: Section 76 – Power for court to order division of matrimonial assets … 28 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 6

For the purposes of this section, references to assets acquired during a marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts. [Emphasis added.] [11] As such, the Matrimonial Home was in fact a matrimonial asset and the further issue, therefore, was what percentage of ownership was the Petitioner entitled to. Whether the Petitioner was entitled to a portion of the value of the Matrimonial Home [12] The Petitioner claimed to have contributed, between 2008 and 2014, a total of MYR566,600 towards the purchase of the Matrimonial Home, from the proceeds of the tuition business which was saved in a Maybank account (“the Tuition Account”). Having lived in the Matrimonial Home from 2008 until 2014, when she eventually left due to a breakdown in the marriage, the Petitioner contended that her contribution warranted 50% of the proceeds of the sale of the Matrimonial Home. [13] In response, the Respondent submitted that all averments by the Petitioner were not substantiated by documentary evidence, and as such, he added that the Petitioner had not reached the threshold of proof required to establish the case. 28 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 7 [14] I took the view that the Court had to be reasonable in its expectation, bearing in mind that the parties’ relationship had not broken down until 2014, and as such, it would be unreasonable and illogical to expect the Petitioner to have kept receipts of monetary contribution towards the Matrimonial Home. On this point, I was guided by the views expressed by the Court of Appeal in Sivanes Rajaratnam v. Usha Rani Subramaniam [2002] 3 CLJ 300, through Abdul Hamid Mohamad JCA (as he then was), in the following passages: Besides (I am speaking generally here) in marriage, both spouses share everything, both contribute towards the home and family in one way or another, to a bigger or smaller extent. Where both spouses work and earn income, each of them inevitably spends his or her own income for the family, Similarly, where there is income from an asset purchased during the subsistence of the marriage, say rent, even though it may be paid into the account of one spouse, eventually it will go to the family, may be all and may be part of it. No one keeps an account, indeed no one should, as a marriage is not a business venture. So, if and when the marriage breaks up, it is unreasonable that the court should undertake an accounting of their income and expenditure during the period the marriage subsists. [Emphasis added.] [15] Secondly, it was fundamental to bear in mind that ‘evidence’ is not confined to documents. According to section 3 of the Evidence Act 1950 (“Evidence Act”), oral statements by witnesses may also be considered by the Court. Section 3 reads: 28 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 8 Section 3 – Interpretation … “evidence" includes-

all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry: such statements are called oral evidence;

all documents produced for the inspection of the court: such documents are called documentary evidence; [Emphasis added.] [16] As such, proof may be established by oral evidence as well. In the present case, it was crucial to note that the Petitioner’s contribution towards the Matrimonial Home depended predominantly on the oral evidence of the witnesses. Hence, the evaluation and assessment of the credibility (or otherwise), of the witnesses was pivotal to the present case. [17] In that respect, reference was made to section 146 of the Evidence Act, which reads: Section 146 – Questions lawful in cross-examination When a witness may be cross-examined he may, in addition to the questions hereinbefore referred to, be asked any questions which tend-

to test his accuracy, veracity or credibility; 28 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 9

to discover who he is and what is his position in life; or

to shake his credit by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him, or might expose or tend directly or indirectly to expose him to a penalty or forfeiture. [Emphasis added.] [18] There are numerous case laws that are instructive on how a witness should be assessed and evaluated. Reference was made to the cases of Sean Thornton (a minor by his mother and next friend) v. Northern Ireland Housing Executive [2010] NIQB 4 and McAllister v Campbell [2014] NIQB 24, where the following factors in assessing and evaluating a witness were considered: a) The inherent probability or improbability of representations of fact; b) The presence of independent evidence tending to corroborate or undermine any given statement of fact; c) The presence of contemporaneous records; d) The demeanour of witnesses; e) The frailty of the population at large in accurately recollecting and describing events in the distant past; f) Whether the witness takes refuge in wild speculation or uncorroborated allegations of fabrication; and g) Whether the witness had a motive for misleading the court. 28 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 10 [19] ‘Judicial appreciation is concerned with the process of evaluating the evidence for the purpose of discovering where the truth lies in a particular case. It includes, but is not limited to, identifying the nature and quality of the evidence, assigning such weight to it as the trier of fact deems appropriate, testing the credibility of oral evidence against contemporaneous documents as well as the probabilities of the case and assessing the demeanour of witnesses’: per Gopal Sri Ram JCA (as he then was) in Boonsom Boonyanit v Adorna Properties Sdn Bhd [1997] 2 MLJ 62. [20] In the present case, the Petitioner had conceded to several issues and relinquished some of her claims, which left the Court to deal only with the division of the Matrimonial Home which she claimed she had equal shares. [21] The Petitioner’s narrative was that before registering their marriage, she and the Respondent had started a tuition centre business since 2003, which was first operated from their rented premises, and which was subsequently moved to the Matrimonial Home in 2008. She had also explained that the proceeds from the tuition business which were banked into a Tuition Account, were used primarily to purchase the Matrimonial Home, which they did in 2008. Her contention was that she was the one who had actually provided the tuition classes, whilst the Respondent had merely overseen the administration and management of the tuition centre and its business. 28 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 11 [22] Two witnesses, namely one Sia Chui Khim and one Elaine Chan Kwai Eng, were called on behalf of the Petitioner to corroborate her narrative regarding her averment that it was the Petitioner who was the brains behind the tuition business, as she was predominantly involved in providing tuition classes. This was fortified by the fact that the tuition centre had ceased operations after the Petitioner had left the Matrimonial Home in 2014, when the marriage had broken down. [23] On the whole, I found the Petitioner to be a credible witness. She was forthright and did not mince her words or evade questions. In my view, the Petitioner was earnest, and did not strike me as someone whose evidence I had to view with circumspection. Being a litigant in person, there was no doubt that the Petitioner had occasionally veered into irrelevant matters, but in my view, that had not compromised her case. [24] After assessing her evidence holistically, I found the Petitioner to be a convincing witness. I believed her when she explained the extent of her monetary contribution from the funds she had acquired from providing tuition. Whilst it was true that the Tuition Account was held solely in the Respondent’s name, the Petitioner had explained that it was because she had left the operation and management of the tuition centre and its business to the Respondent based on the then trust in her husband. 28 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 12 [25] The Petitioner’s evidence was intact, even after cross-examination. Discrepancies in her evidence, if at all, were minor, and were satisfactorily ironed out after perusing the documents she had submitted in evidence. [26] The testimony of the Respondent, in contrast, was questionable and circumspect. His evidence was that he and Sim Cheng Eng had purchased the Matrimonial Home and held it in equal shares. However, when probed, the Respondent was reticent about how Sim Cheng Eng could have contributed 50% of the purchase price of the Matrimonial Home, in light of the latter’s meagre earnings as a kuih seller. [27] The Respondent was also unable to explain to the satisfaction of this Court, the discrepancy between his insistence that Sim Cheng Eng owned 50% of the Matrimonial Home, and the endorsement on the memorandum of transfer, in which it was indicated that Sim Cheng Eng’s share in the Matrimonial Home was 10% only. This was a crucial fact in determining the true ownership of the Matrimonial Property. In fact, the Respondent was both defensive and evasive. He struck me as an avaricious person who was unwilling to part with any portion of the Matrimonial Home, despite the undeniable fact that it was the Petitioner’s earnings from the tuition business that was used primarily towards the purchase of the Matrimonial Home. 28 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 13 [28] The Respondent’s scorched-earth approach in attempting to deny the Petitioner any part whatsoever of the Matrimonial Home did not bode well, and in the final analysis, I found the Respondent to be unconvincing and his evidence implausible. [29] Sim Cheng Eng, who testified on behalf of the Respondent, was not a useful witness at all. He kept lamenting about his bad memory, and claimed ignorance to many material questions posed to him. As such, I was unable to believe him when he testified that he had made a cash contribution of MYR60,000 towards the Matrimonial Home. [30] The Respondent attempted to explain that the loan account for the financing of the Matrimonial Home was in the names of both the Petitioner and Respondent, because the age of the Petitioner, in comparison to Sim Cheng Eng, gave him the advantage of obtaining a more economically viable financing package. I found this explanation to be lacklustre and lame, as Sim Cheng Eng himself was clueless about the financing of the Matrimonial Home. [31] In any event, although Sim Cheng Eng had insisted that he co-owned the Matrimonial Home with his son, the Respondent, he too was unable to explain why the memorandum of transfer prepared by the Respondent’s own solicitors, had indicated that 28 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 14 the Respondent owned 90% of the property, whilst his share was 10% only. [32] In the final analysis, I found Sim Cheng Eng unconvincing, incredulous, and in my view, his evidence had to be treated with extreme caution, as it was obvious that he had testified to support his son’s case. Sim Cheng Eng had no documentary evidence of any averment that he had made in Court, especially since his averment had contradicted the share division as indicated by the memorandum of transfer prepared by the Respondent’s own solicitors. [33] At this juncture, I am guided by Zabariah Mohd Yusof JCA (as she then was) in the Court of Appeal case of Sediabena Sdn Bhd v China Comservice (Hong Kong) Limited [2017] 1 LNS 2042, in the following words: …The learned trial Judge preferred the evidence of the Plaintiff whom she viewed as “more credible” in support of their contention, as compared to the witnesses of the Defendant who were “evasive and blowing hot and cold in responding to questions in relation to the failure in providing the invoice in question as in so much it had portrayed untruthfulness on their part and also lack transparency as the parties to the agreement… [34] In the present case, the Respondent was extremely economical with the truth, and as such, after considering all the facts and circumstances, it was my view that the Matrimonial Home was, in actual fact, co-owned by both the Petitioner and Respondent, and that 28 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 15 although Sim Cheng Eng’s ownership on paper was 10%, it was my conclusion that he had nothing whatsoever to do with the Matrimonial Home. Portion of the value of the Matrimonial Home that the Petitioner was entitled to [35] The subsequent issue, therefore, was what percentage of the Matrimonial Home that the Petitioner was entitled to. I was guided by section 76(2) of the Law Reform Act, which reads: Section 76 – Power for court to order division of matrimonial assets …

In exercising the power conferred by subsection (1) the court shall have regard to-

the extent of the contributions made by each party in money, property or work towards the acquiring of the assets or payment of expenses for the benefit of the family; (aa) the extent of the contributions made by the other party who did not acquire the assets to the welfare of the family by looking after the home or caring for the family;

any debts owing by either party which were contracted for their joint benefit;

the needs of the minor children, if any, of the marriage;

the duration of the marriage, and subject to those considerations, the court shall incline towards equality of division. 28 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 16 [Emphasis added.] [36] Reference was made also to the Court of Appeal cases of Koay Cheng Eng v Linda Santoso [2008] 4 CLJ 105, Sivanes Rajaratnam v. Usha Rani Subramaniam [2002] 3 CLJ 300 and the High Court case of Lee Yu Lan v Lim Thain Chye [1983] 1 LNS 41, in how the Matrimonial Home should be divided accordingly. [37] At this juncture, I am compelled to state that the Petitioner had attempted to illustrate how the Respondent had caused the breakdown of the marriage resulting in her leaving the Matrimonial Home. However, this was strenuously objected to by Respondent’s Counsel, who submitted that the only issue for determination was the division of matrimonial assets, as agreed to by the Petitioner before the commencement of this hearing. [38] In the final analysis, after considering both the monetary contribution as well as contribution in kind by the Petitioner, since it was she who had managed the Matrimonial Home whilst she lived there, I was of the view that 40% of the current value of the Matrimonial Home was an appropriate figure. It was not the amount she had claimed, but in my view, it was an equitable and fair portion of the Petitioner’s entitlement of the portion of the Matrimonial Home. [39] The next issue was to determine the value of the Matrimonial Home. Counsel for the Respondent had arranged for a valuation report (“the 28 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 17 Valuation Report”) to assist the Court, and based on the same, dated 28 June 2022, the Matrimonial Home was valued at MYR1,100,000. Although the Petitioner speculated that the value of the Matrimonial Home was in fact more than MYR1,100,000, I found the Valuation Report to be more reliable. Conclusion [40] 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 both parties, besides ordering costs to the Petitioner in the amount of MYR7,000, the Respondent was ordered to pay the Petitioner a sum of MYR440,000 (which was 40% of MYR1,100,000) within six months from 29 July 2022, and to do the needful to release her as a borrower for the financing of the Matrimonial Home. In the alternative, the Respondent had to ensure that the property was sold within the time-frame stated above, and that 40% of the proceeds of the sale (after the necessary deductions, if at all) was paid to the Petitioner. Dated: 28 October 2022 28 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 18 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: The Petitioner in person For the Respondent – Chin Jing Shen and Lee Lak Kee; Messrs KV Ong, Chua & Partners Cases referred to: ➢ Boonsom Boonyanit v Adorna Properties Sdn Bhd [1997] 2 MLJ 62 ➢ Ching Seng Woah v Lim Shook Lin [1997] 1 CLJ 375 ➢ Koay Cheng Eng v Linda Santoso [2008] 4 CLJ 105 ➢ Lee Yu Lan v Lim Thain Chye [1983] 1 LNS 41 ➢ McAllister v Campbell [2014] NIQB 24 ➢ Sean Thornton (a minor by his mother and next friend) v. Northern Ireland Housing Executive [2010] NIQB 4 ➢ Sediabena Sdn Bhd v China Comservice (Hong Kong) Limited [2017] 1 LNS 2042 28 October 2022 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 19 ➢ Sivanes Rajaratnam v. Usha Rani Subramaniam [2002] 3 CLJ 300 Legislation referred to: ➢ Evidence Act 1950 – sections 3, 146 ➢ Law Reform (Marriage & Divorce) Act 1976 – section 76