Vinod A/L Regoovaran v Regoovaran A/L Paramu (BA-24NCvC-401-03/2022)

28, 76 DAN 92 KAEDAH-KAEDAH MAHKAMAH 2012 ANTARA 23/10/2025 09:35:48 BA-24NCvC-401-03/2022 Kand. 114 VINOD A/L REGOOVARAN (NO. K/P: 910115-14-5561) … PLAINTIF REGOOVARAN A/L PARAMU (NO. K/P: 471220-01-5519) … DEFENDAN

This Originating Summons (OS) was filed pursuant to Sections 52, 54, and 58 of the Mental Health Act 2001 (MHA), for an inquiry to be held into the mental state of the Defendant.

An inquiry was conducted, and I allowed the application. The Defendant now appeals to the Court of Appeal, and below are my grounds of judgment. Background of the case

Plaintiff is the eldest son of the Defendant and a director of Sencomax Construction Group Sdn. Bhd (Sencomax). Defendant is his father, aged 75.

The Defendant had previously initiated a suit bearing case no. BA-22NCVC-102-03/2020 (Suit 102) against Sencomax seeking recovery of RM1.5 million, representing funds allegedly loaned by him for the purchase of a Cold Milling Machine, which was allegedly disposed of without his consent.

On 28.3.2022, Sencomax had applied to amend its defence in Suit 102 to the effect that the Defendant had suffered from a mental health issue since 2016. Following this amendment, the burden was imposed upon Sencomax to prove in Suit 102 that the Defendant indeed suffered from mental health issues since that period.

The filing of this OS was predicated on the assertion that the Defendant had suffered a progressive deterioration in his cognitive capability since 2016 or prior thereto, presenting a prima facie case that the Defendant was mentally disordered and unable to manage himself and his affairs.

The reliefs prayed for included the determination of the period during which the Defendant had been mentally disordered and whether he possessed the capacity to give instructions to his counsel to act on his behalf.

For the purpose of examining the state of Defendant's mental health and providing a report pursuant to Section 54 of the MHA, the Plaintiff sought the appointment of Dr Bharathi Vengadasalam (Dr Bharathi), a Consultant Psychiatrist from Pantai Medical Hospital, Kuala Lumpur, to prepare the medical report.

In resisting the application, the Defendant at the earliest juncture of this proceeding filed a striking out application (Enclosure 9) asserting that this application was merely a tactical manoeuvre to gather evidence to substantiate Sencomax's Defence in Suit 102 and maintained that he was mentally stable and capable of giving instructions to his counsel.

However, that application was dismissed, and the Court proceeded on 26.10.2022 to allow the inquiry to be conducted. The Defendant is directed to undergo a psychiatric evaluation by Dr Bharathi.

The Plaintiff asserted that Dr Bharathi was a Court-appointed psychiatric expert, but the Defendant disputed and stated that she was merely the Plaintiff's nominee and that the order did not explicitly confer Court appointment, thus preserving his discretion to seek an alternative specialist.

To support his claim of mental stability, the Defendant relied on opposing medical evidence through a report dated 25.11.2021 from Dr Isa Bin Mohd Hasan (Pusat Perubatan Universiti Malaya), which stated that the Defendant did not exhibit any depressive, psychotic, manic, or hypomanic symptoms as rebuttal evidence.

In furtherance of that, the Defendant filed a Notice of Application (Enclosure 45), seeking leave to rely on an assessment conducted by Professor Dr Mohamad Hussain bin Habil of the University Malaya Specialist Centre. Professor Dr Mohamad Hussain bin Habil subsequently examined the Defendant on 28.3.2023, and his psychiatric report, dated 15.4.2023, concluded that the Defendant suffered from no mental disorder. The Defendant argued that the existence of such conflicting reports, especially those finding him mentally capable, should negate the necessity for an inquiry.

Enclosure 45 was dismissed on 18.1.2024, as I am of the view that both parties should follow the Court order dated 26.10.2022, and the Defendant would still have the opportunity to produce any rebuttal argument at the inquiry proceeding.

A formal inquiry into the Defendant's mental health, pursuant to Sections 54 and 56 of the MHA, was conducted in the presence of the Defendant on 13.3.2025, and evidence was presented by both the Plaintiff's specialist, Dr Bharathi and the Defendant's specialist, Dr Andrew Mohan Raj A/L M.Chandra Sekaran (Dr Andrew) for this Court's consideration.

Before the inquiry, it is pertinent to note that both parties had again argued before me regarding whether this Court should take into consideration the Defendant's specialist/psychiatrist. Plaintiff had relied on this Court's order on 26.10.2022 that only the medical report of Dr Barathi will or should be taken into account in enquiring into the Defendant's condition and state of mind.

After considering both parties' explanations, I find it fair for me to hear from both specialists and allow the Defendant's request for his specialist to participate in the inquiry.

An inquiry is an act of asking for information or an official investigation to gain specific knowledge or to discover the facts of an incident (refer to Cambridge Advanced Learner's Dictionary & Thesaurus). Therefore, the proceeding would differ from the normal open court hearing as the information extracted is not necessarily in accordance with the Evidence Act or any statutory procedures.

Section 52(1) of the MHA provides that on application by a relative of the person or a public officer nominated by the Minister, the Court will make the following orders: i. Directing an inquiry on the person; ii. The inquiry is to determine whether a person is subject to the jurisdiction of the Court to be mentally disordered; and iii. The person is incapable of managing himself and his affairs due to such a mental disorder.

Subsequent to the inquiry, the Court may make a direction concerning the nature of the property, who the relatives are, the period during which he has been mentally disordered, and other questions as the Court deems proper (section 52(2) of the

Section 52 is reproduced below for ease of reference: “52. Court may order inquiry.

The Court may, on an application made before it, make an order directing an inquiry to determine whether a person subject to the jurisdiction of the Court and alleged to be mentally disordered is incapable of managing himself and his affairs due to such mental disorder.

The order of the Court under subsection (1) may also contain directions for inquiries to be made concerning:

the nature of the property belonging to the person alleged to be mentally disordered;

the persons who are his relatives;

the period during which he has been mentally disordered; or

such other questions as the Court deems proper.

The application for such an inquiry may be made by a relative of the person alleged to be mentally disordered, or by any public officer nominated by the Minister for the purpose of making the application.”

It is well established that an application made pursuant to Section 52 of MHA requires a two-tier process (see the case of Wong Kim v Loh Kim Foh [2003] 4 MLJ 535).

Firstly, the Plaintiff must establish a prima facie case before the Court conducts an inquiry. In Tan Poh Lee & Ors v Tan Kim Choo @ Tan Kim Choon & Anor (2018) 6 MLJ 141, adopting the principle held in Wong Kim, the Court of Appeal held that the first tier would be the preliminary stage for the judge to satisfy him/herself that there is a prima facie evidence that the subject is a person of mentally disordered and the second tier is the inquiry itself.

How can a prima facie case be established? In Tan Poh Lee, it was held that in determining a prima facie case, there must be an allegation that a person is mentally disordered, and the Court has the duty to determine whether the allegation is potentially true. The Court will determine whether there is sufficient substance to substantiate the allegation. The question then is what degree or standard is required of the Plaintiff at this stage in providing the allegation that a person is mentally disordered. (paragraph 16 in Tan Poh Lee).

Once it is established that the allegation was true, an inquiry is to be conducted, and thereafter any order to administer the affairs will be made. According to Tan Poh Lee, only at the inquiry stage is rebuttal evidence to be considered.

On the issue of when rebuttal evidence should be tendered, there is another Court of Appeal decision that disagreed with the case of Tan Poh Lee on this specific issue. The Court of Appeal in Ng Pik Lian v Tai May Chean & Anor and other appeals [2022] 2 MLJ 950, held that though agreed that application under section 52 of MHA is a two tier process, but was of the opinion that at the first stage of establishing the prima facie case, rebuttal evidence must be tendered to negate the allegation of whether the person is potentially mentally disordered. Once this is established, an inquiry is conducted. This finding would be an appealable decision.

I refer to paragraphs 22 and 23 of Ng Pik Lian: “[22].. We are of the opinion that once the HC made the order that an inquiry be held under s. 52 of the MHA, that order in itself is a final decision that disposes of the right of the parties. As it is a final order, NPL has every right to appeal against that order made by the HC. [23].. The order for inquiry is such an intrusive order against her basic right to enjoy her freedom of living freely and independently without interference from others.”

As to when a rebuttal evidence should be admitted, the Court of Appeal in Ng Pik Lian further states at paragraphs 35 and 36 as follows: “[35] Equally important to consider is the question when must anyone rebut a prima facie case. Rebutting a prima facie case certainly must be in the same proceeding. One need not wait until a different proceeding to rebut a prima facie case. Waiting that long is simply too late. It goes against the grain of evidentiary rules if one is asked to defer rebutting a prima facie case at the earliest possible time. [36] In the context of the present case, when the HC decided TMC had proven a prima facie case, what should have been done is to afford NPL an opportunity for her to rebut the prima facie case. She has every right to rebut the prima facie case at that stage. It is totally unfair for her to undergo the inquiry first before she can bring her evidence to rebut the prima facie case. Why must she be asked to be the subject of the inquiry or participate in the same before she could rebut the prima facie case? The prima facie case has already greatly affected her right. She must be allowed to bring evidence to rebut the prima facie at that stage. In fact, in rebutting the prima facie case, she could even question the evidence by TMC that is said to be sufficient for that prima facie case. She could do this and should not be prevented from doing so by having to undergo the inquiry first.”

Be that as it may, once an inquiry is conducted, this in itself would also be a two-tier process. I refer to paragraph 44 in Ng Pik Lian: “[44] The scheme of MHA essentially means that after a prima facie case is proven, the subject ie, NPL in this case, should be allowed to rebut that prima facie case. If the rebuttal is accepted, that will be the end of the matter. Hence, no inquiry will be ordered. If it is not accepted, only then the inquiry will be ordered. The inquiry itself then will be in two-tier. First, is to establish that the subject is indeed mentally disordered. If this is not proven, the matter ends there. If this is proven, then the second stage will have to be established. This second stage is to prove that the mental disorder has indeed resulted in the subject being incapable of managing himself and his affairs due to such mental disorder. Mental disorder alone is insufficient. The mental disorder must have caused the subject to be incapable of managing himself and his affairs. This is the thrust of the matter if one looks at s. 52(1) of the MHA.” - emphasized added

Having two conflicting decisions (although on a specific issue) of the Court of Appeal does not hinder the High Court from choosing to follow any one of the decisions held by the higher Court. I refer to the case of Dalip Bhagwan Singh v PP (1997) 4 CLJ 645, FC, which held that the Court in the tiers below may choose between two conflicting decisions of the Court of Appeal, irrespective of the dates of those conflicting decisions.

Coming back to the present case, the prayers in the OS requested an inquiry to be conducted, and it was allowed on 26.10.2002 (by the previous presiding judge). Therefore, this Court had proceeded with the inquiry to hear and decide whether the Defendant is mentally disordered and incapable of managing himself and his affairs.

It is pertinent to note that one of the prayers in the OS is for Dr Barathi to have access to the Defendant to evaluate his mental condition and to prepare a medical report pursuant to Section 54 of the MHA, which then would be admissible as evidence at the inquiry (section 54(3)).

Defendant attempted to apply for another psychiatrist of his choice to evaluate him (application in Enclosure 45), but I dismissed it as it constituted an unjustified variation of the previous order and instructed the Defendant to proceed with his examination under Dr Barathi.

However, Defendant, through his counsel, again raised his concern about the partiality of Dr Barathi in assessing his condition, again requested permission to allow his psychiatrist, Dr Andrew, to testify for him at the inquiry.

After careful consideration of his application, I allowed his request and called upon Dr Andrew to testify at the hearing of the inquiry.

Plaintiff testified and stated that members of the family had noticed a progressive decline in the Defendant's cognitive abilities and severe behavioural changes with sudden violent outbursts since late 2015 and early 2016.

The Defendant admitted that he has suffered from depression and mental issues since 2016. He was on specific medication (T-Aripiprazole drug) for his mental illness, but decided to stop as he felt that he no longer suffered from depression.

His condition had then deteriorated, and numerous police reports (exhibit VR-1) were made due to the Defendant's violent behaviour towards his children and other individuals.

Dr Barathi's expert affidavit is in Enclosure 75, and her testimony and report concluded that the Defendant had a major neurocognitive disorder associated with behavioural disturbances, including delusions.

Upon perusal of her report as exhibited in DBV-1 of her affidavit, I find that she had conducted two evaluation sessions (7.3.2024 and 4.4.2024), interviewed the Defendant and viewed the relevant documents such as the police reports, medical reports by Dr Stephen Jambunathan (dated 13.9.2021), Dr Isa Bin Mohd Hasan (25.11.2021) and Professor Hussain Habil (15.4.2023).

I also find that Dr Barathi had examined the mental status of the Defendant and opined that he is diagnosed with Major Neurocognitive Disorder (Major NCD) and has significant difficulties in memory, attention and executive function. There is also a finding of persecutory delusions, indicating Major Neurocognitive Disorder associated with behavioural and psychological disturbances. According to Dr Barathi, the Defendant lacks capacity in decision-making as changes in his cognition and his delusions impact his capacity (see page 17 of the report).

In rebuttal, Defendant's psychiatrist, Dr Andrew, testified that, from his single observation at his clinic with the Defendant, he found that the Defendant was well and able to communicate with him. Though he agrees that he had not examined and had not had the opportunity to evaluate the Defendant sufficiently, he maintained that the Defendant does not suffer from any mental illness.

Defendant defended himself and explained that he stopped using the Aripiprazole drug due to its side effects, making him uncomfortable. His visits for consultation should not be made as prima facie evidence that he is a person with a mental disorder and incapable of managing himself.

Defendant further asserts that incidents in his family sphere are just a normal argument between him and his children and should not be used against him.

Defendant also submitted that this application was not made for the benefit or to his best interest but in the hope of substantiating Plaintiff's defence in Suit 102. Therefore, his application was made in bad faith and as a tactical manoeuvre to prolong Suit 102.

After hearing all parties and upon considering the medical report of Dr Bharathi, I am satisfied that the Defendant suffered an illness of major NCD with behavioural disturbances, including delusions, which had affected his mental capacity in decision making and his executive dysfunction. As it also impairs his attention, concentration, financial decision-making and management, it is safe to conclude that the Defendant, due to his mental disorder, was incapable of managing himself and his affairs.

I considered Dr Andrew's testimony, but since he did not evaluate the Defendant as thoroughly as Dr Barathi, I find his opinion unprovable and unsupported.

At the inquiry session, both experts were allowed to counter each other's opinions, and I am of the view that Dr Barathi's explanation outdoes Dr Andrew's.

Therefore, I find that Plaintiff had successfully established that the Defendant was mentally disordered and unable to manage himself and his affairs.

However, I had stressed to the parties that this order (under MHA) is not intended to oppress or infringe upon the Defendant's rights to his personal belongings and properties. Any action taken by the selected persons or committee appointed must be for the benefit and best interest of the Defendant.

Paragraphs (f), (h) and (i) of the Originating Summons are thereby allowed.

Upon the Defendant's request, an additional named person of the Defendant's choice, namely his daughter Hemawathi, will also be appointed to the committee with Naveen a/l Regoovaran.

It is also ordered that :

Powers of the committee are restricted in managing Defendant's estate only if needful and do not include selling off any of the properties without informing Defendant of the intention.

Any cost incurred for the Defendant's medical needs can be taken from the Defendant's estate.

Defendant is to continue with his medical treatment with Dr Barathi.

Cost of this proceeding, RM5000 to the Plaintiff, subject to the allocator. Dated this: 22nd October 2025 ~signed~ (NOOR HAYATI BINTI HAJI MAT) JUDGE HIGH COURT OF MALAYA SHAH ALAM, SELANGOR Fot the Plaintiff: Vinod Kamalanathan together with Muhammad Azim Akif bin Saiful Bahri Tetuan Vinod Kamalanathan & Associates For the Defendant: Sivanesan a/l Ramiah