[2018] 1 LNS 857 Legal Network Series

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM

DALAM NEGERI SELANGOR DARUL EHSAN

[PETISYEN PERCERAIAN NO: 33-213-04/2015]

Dalam Perkara Seksyen 53 dan 54

(1) (a) dan (b), Seksyen 58, Seksyen
59, Seksyen 76, Seksyen 77,
Seksyen 102, Seksyen 103 dan
Seksyen 88, Seksyen 92 dan
Seksyen 93(1) dan (3) Akta
Membaharui Undang-Undang
(Perkahwinan Dan Perceraian) 1976.
Kaedah 79 Kaedah-Kaedah
Prosiding Perceraian dan Hal-Ehwal
Perkahwinan 1980.

DAN

Dalam Perkara Bidang Kuasa sedia

ada Mahkamah Tinggi di Kaedah-
Kaedah Mahkamah Tinggi 2012

ANTARA

TAN SU LIN (P) … PEMPETISYEN

DAN

ANDREW LIM (L) … RESPONDEN

DAN

MAK NGUOY YEE (P) … PIHAK KETIGA

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JUDGMENT

INTRODUCTION

[1] This is a single divorce petition (enclosure 1) filed by the

Petitioner Wife (“PW”) against the Respondent Husband (“RH”),
seeking an order for the dissolution of their marriage, custody, care
and control of the children of the marriage, monthly maintenance,
division of assets acquired during the marriage and cost. As against
the Third Party (“3 rd Party”), PW is seeking damages for causing the
breakdown of PW’s marriage to RH.

[2] For ease of reference I reproduce (briefly) the claim by PW

against RH and the 3 rd party as follows:

“(a) Bahawa perkahwinan di antara Pempetisyen isteri dan

Responden suami secara pendaftaran di 25.05.2006,
dibubarkan.

(b) Pempetisyen isteri diberikan hak penjagaan, pemeliharaan

dan kawalan Justin Lim Jin Ming berumur 14 tahun 1
bulan, Kierra Mae Lim Ji Jien berumur 7 tahun dan
Jayden Lim Jin Shuen berumur 5 tahun 4 bulan.

(c) Seterusnya Pempetisyen isteri bersetuju untuk

membenarkan akses yang liberal dan munasabah kepada
Responden suami untuk melawat ketiga-tiga anak-anak
mereka dalam pengawasan Pempetisyen isteri tanpa
kehadiran mana-mana pihak ketiga.

(d) Sepanjang masa tempoh perkahwinan Pempetisyen isteri

dan Responden suami memiliki tiga buah hartanah yang
merupakan asset perkahwinan dan harta sepencarian
mereka.

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i) Pempetisyen isteri adalah pemilik bagi sebuah

kondominium yang beralamat C-8-2, PH3,
Block Camelia, Subang Parkhomes, 47500
Subang Jaya, Selangor Darul Ehsan, kekal
milik Pempetisyen isteri

ii) Responden suami memiliki sebuah Penthouse

yang beralamat di B-16- 12B, Block Sapphire
One Soho, Jalan Kemajuan Subang, 47500
Subang Jaya, Selangor Darul Ehsan.
Pempetisyen isteri telah menyumbangkan
sebanyak RM50,000 untuk “renovation”,
RM13,300.00 untuk bayaran fee guaman dan
RM1,000.00 untuk fee “booking”. Sumbangan
Pempetisyen isteri adalah dari hasil jualan
sahamnya di Creative Gekcos Sdn Bhd.
Pempetisyen isteri tidak akan menuntut
sebarang bahagian dan hak untuk hartanah ini
sekiranya Responden suami mengembalikan
segala sumbangan Pempetisyen isteri sebanyak
RM64,300.00. Secara alternative sekiranya
Responden suami enggan mengembalikan
sumbangan wang Pempetisyen isteri,
Pempetisyen isteri menuntut sebahagian [1/2
bahagian] hak dalam hartanah ini.

iii) Responden suami juga memiliki sebuah

kondominium yang beralamat di B-G-11,
Begonia Subang, Subang Parkhomes, 47500
Subang Jaya, Selangor Darul Ehsan. Hartanah
ini dibeli dari wang syarikat Creative Gekcos
Sdn Bhd dan hartanah ini dijual dan hasil

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jualan selepas ditolak kos dibahagi diberikan

sebagai amanah untuk anak-anak.

iv) Seterusnya Pempetisyen suami dan Responden

isteri menandatangani segala dokumen-
dokumen serta suratcara-suratcara yang perlu
untuk tujuan jualan hartanah tersebut di para
(iii) diatas.

v) Sekiranya Pempetisyen suami atau Responden

isteri gagal untuk menandatangani sebarang
dokumen untuk pindahmilik dan dokumen-
dokumen berkaitan dengan pindahmilik
hartanah tersebut “Penolong Kanan
Pendaftar” mahkamah dibenarkan untuk
menandatangani segala dokumen yang perlu
bagi pihak Pempetisyen suami atau Responden
isteri untuk tujuan penyelesaian jualan
hartanah tersebut.

(e) Responden suami adalah dilarang untuk hadir di rumah

dan tempat kerja Pempetisyen isteri tanpa persetujuan
dari Pempetisyen isteri. Responden suami juga dilarang
dari mengganggu Pempetisyen isteri dan anak-anak di
rumah Pempetisyen isteri dan atau di tempat awam.

(f) Nafkah sebanyak RM8,000.00 sebulan dibayar oleh

Responden suami untuk anak mereka bermula dari
November 2013.

(g) Nafkah sebanyak RM10,000.00 sebulan dibayar oleh

Responden suami untuk Pempetisyen isteri bermula dari
November 2013.

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(h) Responden suami membayar tunggakan gaji kepada

Pempetisyen isteri sebanyak RM280,000.00.

(i) Responden suami membayar gantirugi dan pampasan

sebanyak RM500,000.00 kepada Pempetisyen isteri
sebagai gantirugi dan pampasan untuk perniagaan
Creative Geckos Sdn Bhd yang merupakan asset
matrimonial.

(j) Pampasan dan gantirugi dibayar oleh Pihak ketiga kepada

pempetisyen isteri sebanyak RM500,000.00 untuk dipegang
sebagai amanah oleh Pempetisyen isteri untuk anak-anak
kerana pihak ketiga merupakan punca perpecahan
perkahwinan Pempetisyen isteri dan Pihak Ketiga telah
menghancurkan keluarga Pempetisyen isteri.”

[3] RH in his reply agrees with the divorce and has also agreed that
custody, care and control of the children of the marriage be given to
PW and reasonable access be given to him, the remaining issue is only
regarding the division of matrimonial assets and for PW to pay him a
lump sum payment for loss of business and cost.

[4] The 3 rd Party in her reply denies the allegation by PW and pray
that the prayers by PW be dismissed with cost. It is to be noted that
the 3 rd party had on 31 st July 2015 filed an application to strike out
this petition, but the said application was dismissed with cost in the
cause.

[5] This petition was partly heard by the previous learned Judicial
Commissioner and when I took over the continued hearing on 25 th
September 2017, it was at the stage of cross examination of RH’s first
witness RW1. The list of witnesses called by the parties to this
petition are as follows:

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(a) PW (PW1) had called six (6) witnesses:

(i) Kenneth Teh Sze Keat [(PW2)-Creative Director at

Syncromedia Sdn Bhd];

(ii) Chua Yuet Ling [(PW3) – Music Teacher & Pastor].

(iii) Lum Mei Wai [(PW4)-Media Manager at

Syncromedia Sdn Bhd];

(iv) Manpreet Kaur a/p Amarjit Singh [(PW5)- Manager

at Scribe Synergy Sdn Bhd]; and

(v) Jusnita binti Hassan [(PW6) – Consultant AHM

Group].

(b) RH (RW3) had called two (2) other witnesses:

(i) Robert Lim @ Robert Lim Hock Kee [(RW1) – RH’s

father];

(ii) Alicia a/p Sukumaran [(RW2) – Graphic Designer];

(c) 3 rd Party (PK3).

[6] Parties agreed to adopt the notes of proceedings that were

recorded earlier, and I then proceeded to hear and record the
remaining evidence from the parties. Upon perusing all the evidence,
relevant cause papers including the cross petition, and the respective
written submissions by the counsels, on 28 th September 2017, I find
that PW had succeeded in proving her case on balance of probabilities
and I made the following orders (briefly):

“PRAYER 38(a) DISSOLUTION OF THE MARRIAGE

The marriage be dissolved and decree nisi to be made absolute

immediately.

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PRAYER 38 (b) & (c) CARE CONTROL AND CUSTODY AND

ACCESS

Guardianship, care control and custody of the three children of

the marriage is awarded to the petitioner wife and the
respondent husband is given reasonable access (unsupervised)
to the said children every fortnight Saturday/Sunday from 10:00
am to 06:00 pm with no overnight access. The right of access
during school holidays, birthdays, Father’s Day and CNY to be
exercised on alternate year basis. These accesses are granted
for so long as the children are willing and able to do so. The
Interim Order on custody and access granted by this court on
30/9/2015 is hereby set aside from the date of this order.

PRAYER 38 (d) MATRIMONIAL ASSETS

As for the immovable property:

(i) No.2, Jalan SS 14/7A, 47500 Subang Jaya, was sold off in
2015 therefore no further order regarding this property;

(ii) The Petitioner Wife retains the property known as C-8-2,

Block Camelia, Subang Parkhomes, 47500 Subang Jaya,
Selangor.

(iii) While the respondent husband will retain the property

known as B-16-12B, Block Sapphire One Soho, Jalan Kemajuan
Subang, 47500 Subang Jaya, Selangor; and

(iv) The property known as B-G-11, Begonia Subang, Subang

Parkhomes, 47500 Subang Jaya, Selangor, to be sold off and the
net proceeds to be divided equally between the PW and RH.

Prayer (iv, v) is allowed (documentation involved). However,

parties are given the option to purchase this property at the

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current market value within 6 months from today and failure to

exercise the said option, this property is to be sold off as stated
above.

PRAYER 38 (e) is allowed (no access at work place, home etc)

PRAYER 38 (f) MAINTENANCE FOR CHILDREN

The respondent husband is to pay a monthly maintenance

amount of RM4,500.00 (RM1,500.00 for each children) for the said
children of the marriage until they attained the age of 18. For other
related expenses, the parties shall share equally the cost of the
education (local), medical and dental of the children of the said
marriage. Any party advancing the expenses incurred for the other
shall be reimbursed within seven (7) days from the date the expenses
was paid by the other.

PRAYER 38 (g) MAINTENANCE FOR WIFE

The respondent husband is to pay monthly maintenance of

RM2000.00 as maintenance of the petitioner wife from the date
of this order until she remarries.

PRAYER 38(h) & (i) OUTSTANDING SALARIES & LOSS OF

BUSINESS

Is not allowed, the two companies, i.e., Eco Passion Sdn Bhd
and Creative Geckos Sdn Bhd. Consent order dated 19 th
November 2015 recorded in the High Court KL order subsists
whereby parties are to swap the ownership

PRAYER 38 (i) Cost of RM10,000 is awarded to the petitioner

wife.

PRAYER 38 (j) CLAIM AGAINST THIRD PARTY

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The breakdown in the marriage started with the presence of the

third party and the third party is liable and ordered that she
pays to the petitioner wife a sum of RM100,000.00 in damages
and cost of RM10,000.”

Dissatisfied, RH and 3 rd Party are now appealing against the above

decisions and my reasons are as follows:

BRIEF FACTS

[7] Parties have filed agreed facts as per Enclosure 61. In writing
the brief facts of this case, I will also refer to the documents available
before me. At the outset, the counsels for PW and RH affirmed and
throughout the proceeding, parties stipulated that:

(i) that the marriage had irretrievably broken down and agreed
to divorce and RH has agreed that custody, care and
control of the children of this marriage be given to PW;
and

(ii) the remaining issues are relating to maintenance for PW,

maintenance and RH access to the children of the
marriage, division of matrimonial assets and the cause of
the breakdown of the marriage (against 3 rd Party).

I will therefore, confine the facts of this case to the above stated
issues only.

[8] PW and RH were married on 25 th May 2006 at the Jabatan

Pendaftaran Negara Putrajaya (“the said marriage”) and resided at No
2, Jalan SS14/7A, Subang Jaya, Selangor (“the home”). Parties agreed
that their marriage have broken down and they have both agreed to
divorce. While PW is given the custody, care and control of the
children of their marriage, RH is given a reasonable access for

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alternate week Saturday (10.00am) until Sunday (3.00 pm). An

interim consent order was recorded on 30 th September 2015
(Enclosure 36).

[9] PW1 in her evidence stated that before their marriage, both RH
and PW were divorcees where PW already has a son named Justin
from her previous marriage. In 2003 PW was working at Virtual
Commerce Sdn Bhd and met RH in mid-2003 when he approached her
on the sale of insurance. They soon became friends and RH later
moved in and live with her and her son at her house at No 2 Jalan
SS14/7A, 47500 Subang Jaya, Selangor and they elected to get
married when RH had finalised his divorce. From their union, PW and
RH had three (3) children, Justin Lim Jin Meng [(17+years old) -
PW’s son from her previous marriage whom RH had adopted)], Kierra
Mae Lim Ji Jien (10+ years old) and Jayden Lim Jin Shuen (9+ years
old).

[10] Also in her evidence, PW stated that while working at Virtual

Commerce Sdn Bhd, she had the opportunity to venture into the
introduction of Real Madrid Supporters Club. To bring this project to
fruition, a company named Global Event Sdn Bhd was established on
16 th December 2003 (Enclosure 57, Part A, page 49) with RH as
director together with two other persons. She later resigned form
Virtual Commerce Sdn Bhd and on 5 th October 2004 (Enclosure 57,
Part A, page 71-75) registered a new company named Formulae Event
Sdn Bhd.

[11] Subsequently, the Directors in Global Channel Event Sdn Bhd,

had a fall out and PW bought over the shares of that company and
renamed it Creative Geckos Sdn Bhd (“CGSB”), refer to Form 9 dated
16 th December 2003 (Enclosure 57, Part A, page 49). PW claimed that
she used her own money RM49,000.00 and borrowed RM50,000.00
from her father to build the media and creative department in the said

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CGSB. PW and RH are both directors and shareholders CGSB since

its incorporation on 16 th December 2003 and their main business is
design and advertisement. RH was responsible in finding projects for
this business while PW mainly handled its finance, management and
client. This business was the main source of income for both of them
and their family and from their salaries and all expenses including
miscellaneous expenses are claimed from CGSB.

[12] In year 2010 PW decided to diversify her business interests by

venturing into cosmetics, baby clothes and F&B. However, instead of
registering a new company, PW changed the name of Formulae Event
Sdn Bhd to Eco Passion Sdn Bhd (“EPSB”) on 30 th July 2010, refer to
SSM Search (Enclosure 57, Part A, page 27).

[13] In early 2012, PW noticed a change in RH’s behaviour when he

started to avoid the family and hardly spent time with PW and the
children. Sometime in July 2012 he organized a trip to Tioman Island
and that was the first time PW met Catherine Mak Nguoy Yee (“3 rd
Party”) whom RH introduced as his student for diving classes. From
thereon RH then started to get the 3 rd Party involved in CGSB as a
fresh graduate to contribute towards the business (this fact is disputed
by the 3 rd Party, which I will addressed later below). At around the
same time, PW discovered numerous intimate communications via
phone, notebook, intimate photos and yahoo messages between RH
and the 3 rd Party. On 12 th September 2013, RH proposed a transfer of
shares where he will take over CGSB and PW will take over EPSB
(refer to Form 24 Enclosure 57, Part A, page 79-80, PW holding
49,000 shares and RH is holding 1,000 shares). One and half months
later, on 31 st October 2013, RH walked out on PW and the said
children.

[14] PW2, PW3, PW4 and PW6 evidence mainly corroborated PW’s
evidence regarding the involvement of 3 rd Party with RH which PW1

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alleged had caused the breakdown of the marriage. PW5 is the

transcriber of an audio recording given by PW to her.

[15] RH (RW3) in his evidence confirmed the evidence of PW

regarding their family and affirmed that two companies together,
namely CGSB (formally known as Global Channel Events (M) Sdn
Bhd) (“CGSB”) and EPSB (formally known as Formulae Events Sdn
Bhd) (“EPSB”) and they are both the directors and shareholders of the
two companies.

[16] According to RH, EPSB was the first company set up by him
and PW sometime on the 5 th October 2004 (I find this fact is not
supported by the documentation, refer para 12 above). RH claimed he
first set up Global Channel Events Sdn Bhd together with his friends
on 16 th December 2003, but the shareholders exited the company
sometime in 2006 and their respective shares were then transferred to
PW. They then changed the company’s name to CGSB on 17 th July
2006 with RH holding 51% shares and PW holding 49% shares (refer
Enclosure 57, Part A, page 64). According to RH, before PW joined
CGSB, sometime in 2005, together they were running EPSB, an event
management and planning company from 5 th October 2004 (its
incorporation) until 2006 and EPSB was the sole source of income for
both PW and RH. When PW joined RH in CGSB, their focus shifted
from EPSB to CGSB and EPSB was then left dormant until around
year 2010 where the parties decided to diversify their business (I find
RH narration of facts is not as accurate, because from documentation
available in court, EPSB was only incorporated/name changed on 30 th
July 2010).

[17] RH admitted that the relationship between him and PW became

rocky since year 2013 due to financial pressure, the stress from
managing two companies as well as taking care of two young
children. PW had also begun to accuse RH of having an affair which

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RH alleged were false accusations and in October 2013, he move out

of the matrimonial home to prevent the constant arguments and
bickering between him and PW in the hope they may later reconciled.
According to RH, they had agreed to do a share swap deal where RH
would eventually take over CGSB and PW would take over EPSB.
This transaction was however, halted/delayed by PW as well as
denying him access to the said children. PW took out a civil suit,
sometime in March 2015, against RH and CGSB claiming for the
47000 units of shares transferred by her to RH earlier to be reverted
and a sum of RM280,000.00 to be paid to her or alternatively a
declaration to liquidate the company. A consent order was recorded on
19 th November 2015 (Enclosure 57, Part A, page 88-89). PW then
filed the present Divorce Petition on 9 th April 2015 (the present
Divorce Petition). RH affirmed that parties have entered a consent
order on 30 th September 2015 (Enclosure 57, Part A, page 85-87)
whereby it is agreed amongst others that RH shall be given reasonable
access, including Sunday 3 pm and that RH to pay for the children
maintenance of RM800.00 (monthly) to the PW. RW1 is RH father
who was with RH and 3 rd Party for the Tioman Trip. According to
RW1, RH and 3 rd Party are just friends and nothing more. RW1 in his
evidence also stated that PW was not close to him and had in fact
ignored him as her father in law.

[18] The 3 rd party in her evidence denies the allegation of PW and

insisted that she is just a close friend with RH and was never involved
romantically with him. She admitted that she and RH are now partners
in a company name Alpha Geckos Sdn Bhd (Enclosure 57, Part A,
SSM Search page 33-38, this company was registered on 31 st
December 2014, 3 rd Party holding 51% share and RH holding 49%
share).

SUBMISSION BY THE PETITIONER WIFE (“PW”)

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[19] PW and RH met in mid-2003 when he approached her on the

sale of insurance and soon became friends. During that time, PW was
working for Virtual Commerce Sdn Bhd. At the time when they met,
PW had already bought and fully renovated her house at No 2,
SS14/7A, 47500 Subang Jaya, Selangor, and was already staying there
in the house with her son Justin. Later, RH moved into her house after
they started a relationship prior to their marriage. On 16 th December
2003 RH together with his two (2) friends set up a company named
Global Channel Event Sdn Bhd. PW resigned from Virtual Commerce
Sdn Bhd in 2004 and registered a new company on 5 th October 2004
named Formulae Events Sdn Bhd

[20] After RH divorce was finalised, PW and RH got married on 25 th

May 2006. When the parties got married on 25 th May 2006, Global
Channel Event Sdn Bhd which was set up by RH and is friends had
already by then became a dormant company and PW then bought over
the shares of Global Channel Events Sdn Bhd and changed its name to
Creative Geckos Sdn Bhd (“CGSB”). Since 17 th July 2006 PW and RH
focused was on the growth of CGSB as their marital business and
Formulae Event Sdn Bhd soon became dormant. All their family
income is 100% derived from CGSB. From their salaries, they paid for
their personal loans for house and cars. The expenses for children
fees, food, holidays, books, piano, swimming, ballet, and all
miscellaneous expenses are claimed from CGSB. PW was mainly
handling the finance, management and clients while RH oversaw
marketing and business development opportunities.

[21] It was on a holiday trip to the Tioman island sometime in July

2012 that PW had met for the first time the 3 rd Party introduced as a
diving student of RH by him. From this initial introduction RH got the
3 rd Party involved in CGSB as an injection of fresh blood and ideas. It
raises concerns for PW since it was their family business and built
since 2006 and were doing well and do not require such 3 rd party

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involvement. However, on 12 th September 2013 RH proposed to

transfer of shares where he will take over CGSB and PW will take
over EPSB. On 31 st October 2013 RH walked out and didn’t return to
the family.

[22] PW continued to work on CGSB and by end of 2013, the media

and creative department of CGSB were split. According to PW in
October 2014 RH requested the PW to move media department to
other premises and made arrangement to transfer his share in EPSB to
the PW. PW claimed that RH was to buy over 47,000 unit of her
shares in CGSB and after some disagreement regarding shares and
Directors loan, PW started a lawsuit in KL High Court for Directors
oppression and request the refund of her director loan to company.
The law suit was then settled where parties entered a consent order.
Later PW got to know RH had started to bring the 3 rd Party into CGSB
and later they established a new company name Alpha Geckos under
the same roof on 31 st December 2014 and according to PW, she was
literally kicked out from CGSB’s office in the presence of the 3 rd
Party on 13 th January 2015.

Matrimonial Assets

[23] PW prayed for full ownership one (1) unit of condominium at C-

8-2, PH3, Block Camelia, Subang Parkhomes, 47500 Subang Jaya,
Selangor which is currently registered under PW’s name. Another
property one (1) unit of Penthouse at B-16-12B, Block Sapphire One
Soho, Jalan Kemajuan Subang, 47500 Subang Jaya, Selangor which is
currently registered under RH which PW is claiming a refund of
RM64,300.00 being her contribution towards the said property or half
share of the said property. Another property one (1) unit of
condominium at B-G-11, Begonia Subang, Subang Parkhomes, 47500
Subang Jaya, Selangor Darul Ehsan currently registered under RH and

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since it was always the intention of both parties that the property be
held on trust for the children, the property to be sold off and the net
proceed to be divided equally between them.

[24] As for EPSB, PW submitted that since RH had made no

contribution and had divested all his interest in EPSB as on 27 th
March 2015, this company should remain hers. As for CGSB, since it
is the main source of income for the family, PW prayed for her
outstanding salary and compensation for loss of main course of
income for the family. I was alluded to the case of WONG KIM
FOONG v. TEAU AH KAU [1998] 1 CLJ 358 his Lordship Abdul
Malik Ishak J (as he then was) at page 374 said:

“...the expression “matrimonial assets” is not a term of art.

Lord Denning in Wachtel v. Wachtel [1973] 1 ALL ER 829 CA
explained the phrase “family asset” is a convenient short way of
expressing an important concept. It refers to those things which
are acquired by one or other provision for them and their
children during their joint lives and used for the benefit of the
family as a whole. The family assets can be divided into two
parts: -

i) Those which are of a capital nature, such as the

matrimonial home and the furniture in it;

ii) Those which are of a revenue - producing nature, such as

the earning power of the husband and wife. When the
marriage comes to an end, the capital assets have to be
divided; the earning power has to be allocated.

[25] PW submitted that as was held in Wong Kim Foong v. Teau Ah

Kau (supra), in determining the division of matrimonial assets under
s. 76 (2) of LRA, the court should not strictly apply the formula of
apportioning the matrimonial assets according to the party’s

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respective financial contributions, but also have regard to the non-

financial contribution of a spouse falling within the purview of sw.
76(4) of LRA. On a true construction of s. 76 of LRA, a spouse’s
contribution to the welfare of the family is relevant consideration
when the court exercises its power under s. 76(1) of LRA.

Access and Maintenance of The Children

[26] PW is claiming for RM8,000.00 for maintenance of the children,

even though an Interim order was recorded on 30 th September 2016
and RH offered to pay a sum of RM800.00 (Eight Hundred Malaysian
Ringgit) for the children on an interim basis until the case is heard in
full trial but he paid only twice and has stopped paying till now. PW
further submitted that RH had prior to PW filling of this Divorce
Petition offered a child support of RM8000.00 (Eight Thousand
Malaysian Ringgit) per month in his lawyer letter to her if she settles
the case amicable and not take actions against 3 rd party (exhibit P12).
It is the contention of PW that she had always followed the interim
order and believe that the wishes of the children should be considered
and had never stopped RH from visiting the children. According to
PW, RH agreed that the custody of all the children were to remain
with PW and RH gets access, however RH did earlier come for a few
minutes and left without much attempt to spend time with the children
and then stopped visiting in early 2016.

Against The 3 rd Party

[27] PW submitted that RH’s character and behaviour had changed

rapidly (for the worse) ever since the interference and/or involvement
of the 3 rd Party in the married lives of the PW and RH and the
prayers/details as per paragraphs 15(a) to (qq) (Enclosure 1). PW had
also given evidence that PW2 (Kenneth) had informed her that RH and

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3 rd Party was so close that their clients were beginning to wonder if

they are in relationship because business partners do not behave so
intimately in public. PW had discovered “pop up Yahoo Messenger”
and intimate internet chatting between the RH and the 3 rd Party had
used word like, “I miss you” “love you Andrew”. Evidence was led
that RH and 3 rd Party had gone off on a holiday together in Bali
sometime in August of 2012. When cross-examined on copies of the
photographs, RH appeared cagey and had attempted to evade the
questions. I was alluded to the case of Wee Hock Guan v. Chia Chit
Neo & Anor. [1964] 1 MLJ 217, it was held as follows,

“An allegation of adultery must be proved beyond

reasonable doubt. The evidence must go beyond
establishing suspicion and opportunity to commit adultery
and must be such as to satisfy the court that from the
nature of things adultery must have been committed; where
the evidence is entirely circumstantial the court will not
draw the inference of guilt unless the facts relied on are
not reasonably capable of any other explanation.

[28] On the Law with regard to the Admissibility of Evidence I was

alluded to the case of YB Dato’ Hj Husam bin Hj Musa v. Mohd Faisal
Bin Rohban Ahmad [2015] 3 MLJ 364, the Court of Appeal held as
follows,

“In civil cases, once the court decides that the evidence is
relevant and have allowed the exhibits to be marked as
exhibit with no objection by the respondent, it cannot be
subsequently expunged on the ground that it has failed the
admissibility test... However, if the relevancy and/or
admissibility has been challenged throughout the trial, the
court may deal with the issue at the end of the trial
marking it first as ID and subsequently as exhibit. There is

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no discretion vested in the trial court to exclude relevant

and admissible evidence marked as exhibit and/or ID or
whatever label it may have been given, that too when there
was no objection taken by the parties when the exhibit or
ID is marked”.

In the case of Bank of Tokyo-Mitsubishi (Malaysia) Bhd v. Sim Lim

Holdings Bhd & Ors [2001] 2 CLJ 474, the High Court held as
follows,

“It was totally impractical to call the makers of the

documents to testify in court. Undue delay and expense
would be caused. Section 73A (2) of the Evidence Act 1950
provides for the admittance of documents when the maker
is not called if having regard to all the circumstances of
the case the court is satisfied that undue delay or expense
would otherwise be caused. Although the documents were
marked as ‘ID’, it did not stop the court from deciding on
their admissibility. Section 73A (2) of the Evidence Act
1950 empowers the court to do so at any stage of the
proceedings having regard to all the circumstances of the
case”

[29] PW submitted a lot of facts were adduced regarding the conduct

of the RH and the 3 rd Party which clearly prove beyond reasonable
doubt the existence of an extra-marital affair and adultery between the
RH and the 3 rd Party in this case. In the case of Choong Yee Fong v.
Ooi Seng Keat & Anor [2006] 1 MLJ 791, it was held: “the petitioner
must prove to the satisfaction of the court beyond reasonable doubt
that the respondent had committed adultery and it was due to the
alleged adulterous relationship which led to the breakdown of the
marriage”.

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SUBMISSION BY THE RESPONDENT HUSBAND (“RH”)

Access and Maintenance of The Children

[30] Access and maintenance of the children, parties have recorded

an interim consent order on 30 th September 2015 where amongst
others, parties agreed that RH shall have overnight access to the
children every alternate week from Saturday 10:00 a.m. to Sunday
3:00 p.m. The above arrangement ought to be maintained as there is
no material change of circumstances since then until now which
warrant a variation thereto neither was it proven that RH was a violent
father. Pursuant to the interim consent order recorded on 30 th
September 2015, RH has agreed to pay a monthly children
maintenance of RM800.00 and proposes to increase such monthly
maintenance to RM1500.00 starting from year 2018 until the child
attain the age of 18 years old respectively. The sum of RM8,000.00
claimed by PW for monthly children is not only exorbitant but
unwarranted and PW has failed to explain and or justify how the said
sum is derived and/or adduce any evidence to support the same. There
were no receipts, tuition fees and/or school fees being furnished by
the PW during the course of the trial and submitted that PW and RH
to share the expenses of the children. PW is a businesswoman who is
of high calibre and as someone who is gainfully employed and earns
well, PW is very well in a position to contribute to the expenses of the
children and should not shirk from her parental obligations and push
all the monetary responsibility to RH. The responsibility and duty to
maintain the children fall squarely on the shoulders of both the PW
and RH particularly where such arrangement had been adopted by
both parties throughout the marriage.

[31] In the present case, it is evident that RH is not the sole bread
winner who earns very well and/or had taken on all the household
expenses solely. It has all this while been a joint responsibility. In

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fact, after the action (or lack thereof) on the part of the PW, not only
CGSB became dormant and inactive, CGSB also is heavily indebted.
RH had lost his sole source of income, but PW could continue to run
EPSB and the Shakeaway franchise and Syncromedia Sdn Bhd without
any obstacles. By crippling down CGSB, PW has jeopardised the
financial means of RH therefore putting a strain on RH as CGSB was
a main source of income for RH after their separation since October
2013. Not only he could not operate CGSB due to inaction of the PW
who is the co-director and shareholder rendering CGSB in a deadlock
position, RH was also tricked by the PW to divest all his shares in
EPSB to the PW. Under such circumstances, the RH can only rely on
the newly set up company, Alpha Geckos Sdn Bhd. The company until
now is still not churning much profits as RH has to build the company
from scratch. PW claims that Justin needs approximately RM3,500.00,
Kierra needs approximately RM2,600.00 and Jayden needs
approximately RM3,700.00 every month. There is no breakdown given
by PW for the sums claimed nor is there any evidence furnished
during the course of trial to support the claims. It appears that the
figures were merely plucked by PW from thin air. There is not a
single receipt for school fees or the children’s expenses being
tendered during the course of trial. RH has no intention to run from
his responsibility as a father however, RH would not be able to afford
exorbitant maintenance and PW is more than capable to share the
responsibility jointly.

[32] It is argued by RH that the PW’s claim of RM10,000.00 as

maintenance is arbitrary and unsupported with evidence. Further,
being a director in CGSB, EPSB and Syncromedia Sdn Bhd, PW is a
person with high earning power and able to earn good income to
sustain her own lifestyle. In any event, PW has failed to prove that
RH had been maintaining her lifestyle during the subsistence of the
marriage. I was alluded to the case of Dato’ Low Nam Hui v. Vu Siew

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Chin [1994] 1 MLJ 129, where the respondent’s wife’s application for
maintenance for herself was dismissed on inter alia the ground that
she had more than adequate resources to attend to her reasonable
needs. Further, in the case of Dr Shameni Pillai a/p Rajendran v. Dr S
Arulselvam Sanggilly & Anor [2011] 6 CLJ 782, the wife was
claiming for wife maintenance while the husband contended that she
was not entitled to any. In the present case, PW being the director of
EPSB and Syncromedia Sdn Bhd, is a businesswoman of high calibre
and earning well and can move into a penthouse sometime in 2014
after their separation in October 2013, opened two outlets for the
Shakeaway franchise, one at E- Curve and another one in Sunway
Pyramid. Further, there is clear proof which shows that EPSB has
received revenue of RM1,209,000.00 in year 2014. As such, the
averment of PW that she does not receive stable income is untenable.
In addition to the above, PW admitted during trial that she is the
media director of Syncromedia Sdn Bhd, although PW does not
furnish any evidence to show her financial means, it is not difficult to
conclude or draw inferences from the above that PW has more than
enough and/or is earning well enough to sustain her own lifestyle.

[33] As for the matrimonial assets, RH argued that both companies

CGSB and EPSB are matrimonial assets as they are both established
and operated by the PW and RH during and/or prior to the marriage
until the divorce petition is filed in 2015. Properties 1 to 4 are also
matrimonial assets acquired by PW and RH with their joint effort and
submitted properties 1 to 4 ought to be divided between PW and RH,
in equal shares and proposed that PW may retain the proceeds of sale
of Property 1 and ownership of Property 2, whilst RH retains
ownership for Property 3 and 4. Matrimonial Assets. Through civil
suit, the parties have agreed on the terms for the division of CGSB,
RH should be entitled to his claim on EPSB pursuant to s. 76 of the
LRA. Property 1 to 4 form part of the matrimonial assets. As

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throughout the marriage, the parties merely relied on single source of

income, namely profit from CGSB and EPSB before year 2007, it is
evident that all the properties were acquired through the joint effort of
both parties. Pursuant to s. 76(1) and (2) of the LRA and the principle
that the court should incline towards equality.

[34] Regarding the cause of the breakdown of the marriage, it is the

contention of RH that it is PW’s contention that the sole cause of
breakdown of the marriage was due to the purported adultery
committed by the RH and the 3 rd Party. I was alluded to the case of
GGC v. CCC & ANOR [2016] 1 LNS 885 which cited Clarkson v.
Clarkson [1930] 143 LT 775, 46 TLR 623 which held that:

“Adultery is the voluntary sexual intercourse between a

man and woman who are not married to each other but one
of them is at least a married person. “One party must still
be married, and the other party may be married to
someone else or single or divorced. From the definition,
other forms of sexual contacts short of sexual intercourse
is not adultery though parties may have said to have an
affair or that they have been unfaithful to their spouse. In
other words, it is not adultery of the mind that is being
made punishable with a damages award against the
adulterer or adulteress, but the physical act that had
resulted in the breakdown of the marriage of the innocent
party. That is the statutory test though the spiritual test is
of a higher standard in that anyone who lusts after another
while still married to one’s spouse would have committed
adultery already in his or her heart. It has often been said
that the burden of proof is throughout on the person who
alleges adultery, there being a presumption of innocence.

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[35] It was also argued by RH that it has been established in several

cases, such as the High Court case of Yew Yin Lai v. Teo Meng Hai &
Anor [2013] 8 MLJ 787, that there must be a clear proof of adultery.
The prevailing standard of proof to establish a matrimonial offence
like adultery is the satisfaction of court beyond reasonable doubt. It
was also stated proof of adultery must be of such character as would
lead a reasonable man to conclude no other inference than the
misconduct. Mere probability is not enough. No implicit reliance can
be placed on the bald statement of the wife for recording a finding of
adultery against the husband. In Lim Siaw Yiing v. Wong Seng & Anor
[2009] 4 MLJ 409, it was also held that circumstantial evidence to
prove adulterous affair must be so strong that an innocent bystander
would reasonably of the opinion that the alleged act has been
committed. Similarly, in Dr Gurmail Kaur Sadhu Singh v. Dr Teh
Seong Peng & Anor [2015] 2 CLJ 42, Yaacob Md Sam J, as he then
was, held that: -

“Based on the cases cited above, for allegation of adultery to be

established, the evidence must be beyond establishing suspicion
and opportunity to commit adultery and must be such as to
satisfy the court that from the nature of things adultery must
have been committed; where the evidence is entirely
circumstantial, the court will not draw the inference of guilt
unless the facts relied on are not reasonably capable of any
other explanation. In dealing with circumstantial evidence, the
court has to consider the weight which is to be given to the
united force of all the circumstances put together.”

In the case of Rajesselvi Sinnakaruppan v. Batumalay Jeyaram [2001]

4 CLJ 535, the court held that on the charge of adultery it is to be
observed that for adultery to be made out there must have been sexual
intercourse and the innocent spouse finds it intolerable to live with
the offending spouse. Adultery simpliciter is not sufficient.

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[36] RH submitted that in the present case, no direct evidence had

been adduced by PW during the course of the trial that is able to
establish that the 3 rd Party was in an adulterous relationship with RH.
PW was merely relying on a few photos of the RH and the 3 rd Party
and statements from a few of her employees to form the allegation of
adultery against RH. It is as such important to examine the
circumstantial evidence adduced by PW during the course of the trial
to assess if the allegation of adultery is proved beyond reasonable
doubt. During the course of the trial, PW adduced several photographs
to support her allegation of adultery against the RH. Those
photographs were marked as identification documents ID14(a-l) in the
non-agreed bundle and was never marked as exhibits. PW did not
produce any witnesses or the makers of the said photographs to verify
the authenticity of the photographs. In Soo Hong & Leong Kew Moi v.
United Malayan Banking Corp Bhd [1997] 1 MLJ 690, Abdul Malek
Ahmad JCA, as his lordship then was, upheld the finding in the
Sessions Court as follows:

“During the course of the trial, various documentary exhibits

were referred to by both sides and marked as exhibits to be
identified (ID) since the admissibility of such documents were
objected to by either side on the ground that the makers were
not called. I rule that since these documents were not strictly
opposite party of the opportunity to test the authenticity of their
contents, such exhibits remain inadmissible.”

[37] Consequently RH argued that based on the principle, it is clear

that the photographs alleged to be evidence of the purported intimate
relationship between the RH and the 3 rd Party should be completely
disregarded, and the statements given by PW2, PW3, PW4 and PW6,
does not support the allegation of adultery, none of the evidence
collaborate with the allegation that the RH and 3 rd Party must have
had sexual relationship. PW2 alleged that she saw RH and 3 rd Party

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holding hand and PW3’s statements were mainly what she purportedly
heard from the father of the 3 rd Party and at no point of time had she
ever witnessed any intimate interactions between the RH and the 3 rd
Party. RH submitted that PW had failed to prove adultery committed
between RH and the 3 rd Party beyond reasonable doubt.

SUBMISSION BY THE 3 RD PARTY

[38] The 3 RD Party disputed the evidence of PW whereby it was

alleged by PW that RH behaviour change in 2012 due to the
involvement of the 3 rd Party in CGSB Bonus Link Project. In fact, the
3 rd Party submitted that it was her knowledge that she was brought
into CGSB Bonus Link Project. The 3 rd Party also submitted that the
breakdown of PW and RH marriage was not because of her but
because of accumulated and myriad or reasons throughout that
marriage. The evidence relied by PW is circumstantial and failed to
prove her allegation beyond reasonable doubt. The 3 rd Party reiterate
her stand that she and RH are merely friends and nothing more. As for
the photos submitted by there is nothing to support PW’s allegation
that it was taken in Bali and it cannot be used to draw conclusion that
RH and the 3 rd Party did go to Bali together. I was alluded to the case
of YB Dato’ Hj Husam bin Hj Musa v. Mohd Faisal Bin Rohban
Ahmad [2015] 3 MLJ 364 held the three (3) steps approach taken on
admissibility of evidence i.e. (i) whether it is relevant (ii) calling the
maker and (iii) satisfying the general rules of admissibility. The 3 rd
Party submitted that PW had failed all three (3) steps because the
photos were taken by a Private Investigator (PI) who was not called to
tender those photos of which was tendered as ID. The 3 rd Party
alleged she was deprived from cross examining and determining the
authenticity of those photos since it was taken after the filling of this
petition thus making it irrelevant.

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THE LAW

[39] Section 58 and 59 of Law Reform (Marriage And Divorce) Act

1976 (“LRA”) provides to the power of court claim to damages for
adultery against co-respondent as follows:

“58. Powers of court on claims to damages for adultery

(1) On a petition for divorce in which adultery is

alleged, or in the answer of a party to the marriage
praying for divorce and alleging adultery, the party
shall make the alleged adulterer or adulteress a co-
respondent, unless excused by the court on special
grounds from doing so.

(2) A petition under subsection (1) may include a prayer

that the co-respondent be condemned in damages in
respect of the alleged adultery.

(3) Where damages have been claimed against a co-

respondent: -

(a) if, after the close of the evidence for the

petitioner, the court is of the opinion that there
is not sufficient evidence against the co-
respondent to justify requiring him or her to
reply, the co-respondent shall be discharged
from the proceedings; or

(b) if, at the conclusion of the hearing, the court is

satisfied that adultery between the respondent
and co-respondent has been proved, the court
may award the petitioner such damages as it
may think fit, but so that the award shall not
include any exemplary or punitive element.”

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“59. Powers of court on claim to damages for adultery

(1) The court may award damages against a co-

respondent notwithstanding that the petition against
the respondent is dismissed or adjourned.

(2) The court shall have power, when awarding

damages, to direct that such damages or any part
thereof, be vested in trustees upon trust to pay the
income or capital thereof for the benefit of the minor
children, if any, of the marriage or, where the
petitioner is required to pay maintenance to the
respondent, in or towards the payment of such
maintenance, and subject thereto in trust for the
petitioner.

(3) Whenever in any petition presented by a husband the

alleged adultery has been established against the co-
respondent, the court may order the co-respondent to
pay the whole or any part of the costs of the
proceedings; provided that no such order for costs
shall be made if the respondent was at the time of the
adultery living apart from the husband and living the
life of a prostitute or if the co-respondent had not at
the time of the adultery reason to believe the
respondent to be a married woman.”

[40] Section 76 provides the power of court for division of

matrimonial assets acquired during the marriage by the joint effort of
parties upon granting a decree of divorce or judicial separation

“76. Power for court to order division of matrimonial assets

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(1) 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 by them during
the marriage by their joint efforts or the sale of any such
assets and the division between the parties of the proceeds
of sale.

(2) In exercising the power conferred by subsection (1) the

court shall have regard to:

(a) The extent of the contributions made by each party in

money, property or work towards the acquiring of the
assets;

(b) Any debts owing by either party which were

contracted for their joint benefit;

(c) The needs of the minor children, if any, of the

marriage, and subject to those considerations, the
court shall incline towards equality of division.

(3) 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 during the
marriage by the sole effort of one party to the marriage or
the sale of any such assets and the division between the
parties of the proceeds of sale.

(4) In exercising the power conferred by subsection (3) the

court shall have regard to; -

(a) 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 the
family;

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(b) The needs of the minor children, if any, of the

marriage, and subject to those considerations, the
court may divide the assets or the proceeds of sale in
such proportions as the court thinks reasonable; but
in any case, the party by whose effort the assets were
acquired shall receive a greater proportion.

(5) 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.”

[41] Section 77 provides to the power of court to order maintenance

of spouse as follows:

“77. Power for court to order maintenance of spouse

(1) The court may order a man to pay maintenance to his

wife or former wife: -

(a) during the course of any matrimonial

proceedings;

(b) when granting or subsequent to the grant

of a decree of divorce or judicial
separation;

(c) if, after a decree declaring her presumed

to be dead she is found to be alive.

(2) The court shall have the corresponding power to

order a woman to pay maintenance to her husband or
former husband where he is incapacitated, wholly or
partially, from earning a livelihood by reason of

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mental or physical injury or ill-health, and the court

is satisfied that having regard to her means it is
reasonable so to order.”

[42] Section 88 and 89 provides power of court to make order for

custody and its conditions (as the court thinks fit), as follows:

(i) “88. Power for court to make order for custody

(1) The court may at any time by order place a child in the
custody of his or her father or his or her mother or, where
there are exceptional circumstances making it undesirable
that the child be entrusted to either parent, of any other
relative of the child or of any association the objects of
which include child welfare or to any other suitable
person.

(2) In deciding in whose custody, a child should be placed the

paramount consideration shall be the welfare of the child
and subject to this the court shall have regard: -

(a) to the wishes of the parents of the child; and

(b) to the wishes of the child, where he or she is of an

age to express an independent opinion.

(3) There shall be a rebuttable presumption that it is for the

good of a child below the age of seven years to be with his
or her mother but in deciding whether that presumption
applies to the facts of any particular case, the court shall
have regard to the undesirability of disturbing the life of a
child by changes of custody.

(4) Where there are two or more children of a marriage, the

court shall not be bound to place both or all in the custody

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of the same person but shall consider the welfare of each

independently”.

(ii) “89. Orders subject to conditions

(1) An order for custody may be made subject to such

conditions as the court may think fit to impose and subject
to such conditions, if any, as may from time to time apply,
shall entitle the person given custody to decide all
questions relating to the upbringing and education of the
child.

(2) Without prejudice to the generality of subsection (1), an

order for custody may: -

(a) contain conditions as to the place where the child is

to reside, as to the manner of his or her education
and as to the religion in which he or she is to be
brought up;

(b) provide for the child to be temporarily in the care

and control of some person other than the person
given custody;

(c) provide for the child to visit a parent deprived of

custody or any member of the family of a parent who
is dead or has been deprived of custody at such times
and for such periods as the court may consider
reasonable; (d) give a parent deprived of custody or
any member of the family of a parent who is dead or
has been deprived of custody the right of access to
the child at such times and with such frequency as
the court may consider reasonable; or (e) prohibit

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the person given custody from taking the child out of

Malaysia.”

Section 102 and 103 provides the court to order other reliefs

FINDINGS OF THIS COURT

(a) DISSOLUTION OF THE MARRIAGE

[43] Parties have agreed to divorce, and I hold that the marriage in
this petition had irretrievably broken down and in the circumstances
of the case there is no possibility of a reconciliation. I therefore
decree that the marriage be dissolved and this decree nisi shall be
absolute immediately.

(b) CARE CONTROL AND CUSTODY AND MAINTENANCE

OF THE CHILDREN OF THIS MARRIAGE

[44] RH has agreed that custody care and control of the children be
given to PW. I take note too of the acrimony between parties and for
the benefit of the children I further order that guardianship, care
control and custody of the three children of the marriage is awarded to
PW and RH is given reasonable access (unsupervised) to the said
children every fortnight Saturday/Sunday from 10:00 am to 06:00 pm
with no overnight access. The right of access during school holidays,
birthdays, Father’s Day and CNY to be exercised on alternate year
basis. This access is granted for so long as the children is willing and
able to do so. Consequently therefore, the Interim Order on custody
and access granted by this court on 30 th September 2015 is hereby set
aside from the date of this order.

MATRIMONIAL ASSETS

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[45] Whether the properties (4 properties all together as per details

below) constitute matrimonial assets can be determined by looking at
Yap Yen Piow v. Hee Wee Eng [2017] 1 MLJ 17, where the Court of
Appeal held that:

“[11] Section 76 of the LRA 1976 is the key statutory provision

to deal with the division of the property. In principle, it
differentiates assets acquired during the subsistence of marriage
into three types. They are as follows:

(a) Any assets acquired by joint efforts which we have

classified as matrimonial property. In this category, the
court has an obligation to divide the assets (see s. 76 (1)
of the LRA 1976);

(b) Any assets acquired by one party by sole effort which we

classify as non-matrimonial property. In this category, the
court is not obliged to divide but may do so (see s. 76 (3)
of the LRA 1976); and

(c) Assets which were acquired before the marriage but has
been substantially improved by the other party or by their
joint efforts. In this category, if there is no substantial
improvement, the property is not subjected to division at
all. In addition, if the property has been acquired before
the marriage and subjected to a loan, the said property
may not fall in that category (see s. 76 (5) of the LRA
1976)”.

[46] I refer to the submission of RH at para 39 and said pursuant to

section 76(1) of the LRA, properties (1 to 4) ought to be divided
between the PW and RH, who were the joint contributors, in equal
shares. However, for practical reasons, as submitted below in
paragraphs 199 to 213, RH prays that instead of each party having a

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fragmented share over all four properties, the PW may retain the
proceeds of sale of Property 1 and ownership of Property 2, whilst RH
retains ownership for Property 3 and 4. I refer to PW’s submission at
para 5 which submitted that RH has failed to prove that he has
contributed to the monthly payments of Property 1 (transcript dated
25 th October 2017) and therefore PW submitted that Property 1 is not
matrimonial assets.

(i) I refer to PW1 evidence (Q.13-Q.15- witness statement

which was not challenged) that Property 1 was purchased
by PW before her marriage to RH. Based on my
observation above I am of the considered view that house
No.2, Jalan SS 14/7A, 47500 Subang Jaya, Selangor
(Property 1), which was purchased by PW few years before
her marriage to RH and was registered under PW’s name
and it was sold off in 2015 (facts not disputed) therefore I
will not make further order regarding this property.

(ii) It is not disputed that the other three properties (stated

below) were purchased by PW and RH during their
marriage and in my considered view based on the case of
Yap Yien Piow (supra), it can be considered as matrimonial
assets and PW and RH has equal rights to the said
properties. However, as aptly submitted by RH and for
practical reasons, instead of each party having a
fragmented share over it, the said properties ownership to
be maintained and PW is not averse to this suggestion. I
therefore further ordered that:

(a) A unit of condominium known as C-8-2, Block

Camelia, Subang Parkhomes, 47500 Subang Jaya,
Selangor (Property 2) was registered under PW’s
name will be retained by PW;

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(b) A unit of condominium known as B-16-12B, Block

Sapphire One Soho, Jalan Kemajuan Subang, 47500
Subang Jaya, Selangor (Property 3) is registered
under RH’s name will be retained by RH; and

(c) A unit of condominium known as B-G-11, Begonia

Subang, Subang Parkhomes, 47500 Subang Jaya,
Selangor (Property 4) which PW and RH agreed that
it was purchased for the benefit of the children and I
am of the considered view that it to be sold off and
the net proceeds to be divided equally between the
PW and RH.

Prayer (iv, v) is allowed. However, parties are given the option to

purchase this property from the other at the current market value
within six (6) months from the date of this order and failure to
exercise the said option, this property is to be sold as stated above.

MAINTENANCE FOR CHILDREN

[47] I find sufficient evidence from the entire circumstances of the

case to come to a conclusion that the conduct of RH is liable for the
breakdown of this marriage. I have ordered that RH is to pay a
monthly maintenance amount of RM4,500.00 (RM1,500.00 for each
children) for the said children of the marriage until they attained the
age of 18, payment is to be calculated from the filling of this Divorce
Petition April 2015 (parties have later agreed that payment to be
calculated from April 2018). Consequently therefore, the Interim
Order on maintenance for the children granted on the 30 th September
2015 is hereby dissolved forthwith from this order. However, PW is
entitled to claim for any outstanding sum owing under the above said
order. For other related expenses, the parties shall share equally the
cost of the education (local), medical and dental of the children of the

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said marriage. Any party advancing the expenses incurred for the
other shall be reimbursed within seven (7) days from the date the
expenses was paid by the other.

[48] RH submitted that PW never tendered any receipts to support

her contention that the children needs about RM8,000.00 as
maintenance. I refer to the evidence of RH (RW3) at line 26-35 page
41 notes of proceeding dated 26 th October 2017, RH were referred to
his letter of proposal that he will pay RM8,000.00 being household
expenses and it was put to RH that he is aware that the expenses for
the children and household is at the range of RM8,000.00 to which
RH agreed. I also refer to section 93(1) of LRA which clearly
provides that the court may at any time order a man to pay
maintenance for the benefit of his child (children in this present case).
It is my considered view that even though there were no receipts
tendered (as submitted by RH) the said children are schooling in
primary, secondary and college and would therefore incur higher cost.
I refer to the case of Loh Kwee Eng v. Phua Nai Peng [2012] 7 MLJ
343, on the issue of child maintenance the petitioner wife prayed for
RM500.00 per month but the RH was ready to pay RM300.00 per
month. It was held that the 3 rd child was schooling in secondary
school and would therefore incur higher costs attending school and
the court ordered the RH to pay RM500.00 per month for the 3 rd child.
Similarly, in this case, the children of this marriage are at the stage of
schooling/college and therefore would incur escalated cost and it in
such circumstance the amount ordered at RM1,500.00 per child until
they reached the age of 18, is reasonable.

MAINTENANCE FOR WIFE

[49] Part V11 of LRA empowers the court to order for maintenance
for the spouse. I refer to Wong Kim Foong v. Teau Ah Kau [1998] 1

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MLJ 359 & Koay Cheng Eng v. Linda Herawati [2008] 4 MLJ 863
where the court held the fact that the wife is gainfully employed does
not disentitle her to maintenance, nevertheless the quantum of that
amount may be reduced. Having regard to the cause of the breakdown
of this marriage, duration of marriage, earning capacities and life
style of this family, I order that RH is to pay monthly maintenance of
RM2000.00 as maintenance of PW from the date of this order until
she remarries.

OUTSTANDING SALARIES AND LOSS OF BUSINESS

[50] I hold that PW’s claims for outstanding salaries of

RM280,000.00 and RM500,000 loss of business at CGSB is not
sustainable in this petition. These are matter relating to a claim
against and/or for a duly registered company where RH is a director
and shareholder. This has to be pursued separately in a different civil
forum where the liability of the company to pay the outstanding
salaries would be decided. Similarly, it is for the said company to
pursue losses sustained by the company due to the director’s alleged
negligence or purported breach of duty. That claim cannot be pursued
in this divorce proceeding. The two companies, i.e., EPSB and CGSB
as resolved in the High Court KL order date 19 th November 2015,
inter alia, parties are to swap the ownership of these two companies
amongst themselves. That consent order still subsists. Therefore, the
issue of these two companies as pursuant to that order, PW takes
EPSB of which I believed the transfer of ownership had been
completed while RH takes CGSB of which I believe the transfer of
ownership is yet to be perfected. I further make and order PW perfect
the said transfer in line with the said High Court order.

CLAIM AGAINST THIRD PARTY

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[51] I would firstly address the issue of the exhibits marked as ID in

this proceeding where the maker had not been called. In the exercise
of my judicial discretion looking at the entire circumstances of the
case as whole and the complexity involved, I am admitting those
documents marked as ID pursuant to section 73A (2) of the Evidence
Act 1950 and now marked as: ID 14(a-l) marked as P14 (a)-(l). I do
agree that to prove adultery requires a certain standard of proof I find
support in the wise words of Lord Merrivale P in Farmham v.
Farmham [1925] 133 LT 320 that:

“The inference of adultery arises when there is proof of the

disposition of parties to commit adultery, together with the
opportunity to commit it”.

The evidence must go beyond establishing suspicion and opportunity

to commit adultery and must be such as to satisfy the court that from
the nature of things adultery must have been committed. Where the
evidence is entirely circumstantial the court will not draw the
inference of guilt unless the facts relied on are not reasonably capable
of any other explanation (see Adultery: Words, Phrases & Maxims
Legally and Judicially Defined, Lexis Nexis, Anandan Krishnan,
Vol1 A (1), p.481)

[52] Before I deliberate in detail regarding the 3 rd Party interference

in the marriage of RH and PW, I would briefly refer to the evidence of
RH who said that the breakdown of his marriage to PW was due to
financial strain, taking care of the children and family. However,
during cross examination when it was put to RH that if it is true that
the marriage is facing financial constraint, how could RH and PW
purchased three (3) more properties during those constraint period
from year 2006 until 2013 and it was put to RH that CGSB was a
profitable company and healthy company which RH finally agrees. I
find PW to be a truthful and reliable witness and her evidence is

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consistent and therefore her version is more probable. According to

PW when they started doing business together CGSB was a stable
company and after nurturing the company for almost ten (10) years
PW decided to expand the business and venture into food and
beverage etc. It is at this juncture the 3 rd party came into their lives as
a fresh graduate selling insurance and bank loans in 2012.

[53] I find all the evidence adduced examined together in total and
arguments made by the parties, circumstantial it may be, but I find no
doubt in my mind that it all leads to an unavoidable inference that
adultery had been committed. I refer to the evidence of RH and 3 rd
Party that confirmed that they met in 2012 when the 3 rd Party was
only 22 years old and RH was 41 years old. The 3 rd Party in her
evidence affirmed that the relationship she has with RH is like brother
and sister and she was roped in by RH to assist RH in Bonus Link
Project because of her experience and expertise. However, it is to be
noted that during cross examination RH admitted that RH met with the
3 rd Party when she was selling insurance policies and OCBC Bank
products and the 3 rd Party told RH that she had done similar projects
in website development and RH roped her in without confirming her
qualification. When RH was asked:

“Q. OK, Mr Andrew Lim, do u know or did Ms Catherine show

her qualifications?

A No, I didn’t ask for it

Q. Did she qualify in web design and digital software

development

A. She does more than…

Q. No, I’m asking you did she qualify

A. I believe she does”

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[54] RH was further cross examined when RH was referred to his

Witness Statement at page 13 where RH said the 3 rd Party as having
the expertise in “digital software design” but at page 14 RH said he
keep in contact with Catherine (3 rd Party) to leverage on her
knowledge. When RH was further cross to explain further whether he
considered the 3 rd party has the expertise or mere knowledge, RH
admitted that the 3 rd Party was not an expert but mere knowledge. RH
admitted that for Bonus Link Project the 3 rd Party didn’t do the web
development, but it was out source by the 3 rd Party (I refer to the
transcript notes page 57-65, dated 26 th October 2017).

[55] The 3 rd Party vehemently denies that she is romantically

involved with RH and consider her relationship with RH as brother
and sister and business partners. But I find her evidence unsupported
and suspect from the totality of the evidence tendered in court. I wish
to refer to the evidence of PW where in her attempt to save her
marriage PW went to look for the 3 rd Party but was only able to see
the 3 rd Party’s father who confirmed that RH is his daughter’s (3 rd
Party) boyfriend and he took the stand that parties are adult and
should know what to do. I refer to the evidence of PW6, the
consultant engaged by RH to renovate his condominium at One Soho
Subang, when she went to RH’s condominium in the morning to
discuss on “Defect Liability Period” PW6 was greeted by the 3 rd Party
in her “home clothes” and after a while RH came, and they were
behaving like couples and PW6 realised that PW was not there. I refer
to the evidence of PW that RH and the 3 rd Party went together to trips
to places like Bali and Langkawi and even though the 3 rd Party denies
that they went to Bali since there is no prove that the photo shown
that it was taken in Bali. However, it my considered view that the
destination of Bali is not important as what is pertinent is that RH and
the 3 rd Party went for trips together. PW2, PW3, PW4 and PW6
testimony mainly corroborated PW’s evidence regarding the

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involvement of 3 rd Party which PW1 alleged that had caused the

breakdown of the marriage between PW and RH.

[56] In the case of Yew Yin Lai (supra), the High Court held that, the
petitioner has satisfied me that her story is true. The probabilities
were in favour of the petitioner, I am certainly satisfied beyond
reasonable doubt that the evidence adduced by the petitioner should
be accepted. Halijah Abbas J held that:

Adultery is generally proved by presumptive proof based upon:

(a) Circumstantial evidence;

(b) Evidence of non-access and birth of children (in

allegations of adultery against women);

(c) Contracting venereal disease from external sources; and

(d) Confessions and admissions by the parties themselves.

In fact, adultery is seldom susceptible of proof except circumstances

which would lead to that conclusion. I am also satisfied on the
required burden that the breakdown of the marriage was caused by the
conduct, deeds, adultery and connivance of RH with the 3 rd Party all
of which had contributed to the turmoil and breakdown of the
marriage which started with the presence of the 3 rd Party. From the
nature of things in the circumstances of the case adultery must have
been committed. The circumstantial evidence adduced during the trial
are not reasonably capable of any other explanation. In this case, not
only has PW lost her husband, she has also lost her business partner
which was evinced at the trial that both PW and RH relied on their
business to sustain their family. RH has in fact started a new company
which has similar business (even though denied by RH and the 3 rd
Party) to CGSB with an almost similar name Alpha Geckos Sdn Bhd
that was incorporated on 31 st December 2014. From time immemorial

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in the civilization of mankind, the union of man and woman in the

bonds of matrimony is a sacred affair and deserves due attention and
respect. Any 3 rd Party interference in a contract of marriage is
despised and abhorred. The perpetrator must be held accountable for
ruining and breaking up the sanctity of this bond in marriage. In the
circumstances I hold the 3 rd party duly liable and order that she pays
to PW a sum of RM100,000 in damages. This court is duly empowered
to give statutory relief for the injury suffered from a marriage that has
irretrievably broken down by 3 rd party interference and in the
circumstances of the case the amount of RM100,000.00 is in my
considered view in the present case to be reasonable as damages
awarded to PW.

CONCLUSION

[57] Considering the foregoing and after closely scrutinising and

examining all evidence adduced before me, I allowed PW’s claim
against RH and the 3 rd Party and I have also awarded cost of
RM10,000.00 to be paid to PW by RH and cost of RM10,000.00 to be
paid by the 3 rd Party to PW.

Dated: 22 JUNE 2018

(HAYATUL AKMAL ABDUL AZIZ)

Judicial Commissioner
High Court of Malaya
Shah Alam, Selangor Darul Ehsan

COUNSEL:

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For the petitioner wife - Jayanthi Seventhy & Stanis Cross; The Law
Office of Jayanthi

For the respondent husband - Toh Lee Khim & Nicole Ong Shi-Ling;
M/s Low & Partners

For the 3 rd party - Joanne Leong Pooi Yuen; M/s Yeoh & Joanne

Case(s) referred to:

Wong Kim Foong v. Teau Ah Kau [1998] 1 CLJ 358; [1998] 1 MLJ
359

Wee Hock Guan v. Chia Chit Neo & Anor. [1964] 1 MLJ 217

YB Dato' Hj Husam bin Hj Musa v. Mohd Faisal Bin Rohban Ahmad

[2015] 3 MLJ 364

Bank of Tokyo-Mitsubishi (Malaysia) Bhd v. Sim Lim Holdings Bhd &

Ors [2001] 2 CLJ 474

Choong Yee Fong v. Ooi Seng Keat & Anor [2006] 1 MLJ 791

Dato' Low Nam Hui v. Vu Siew Chin [1994] 1 MLJ 129

Dr Shameni Pillai a/p Rajendran v. Dr S Arulselvam Sanggilly &

Anor [2011] 6 CLJ 782

GGC v. CCC & ANOR [2016] 1 LNS 885

Clarkson v. Clarkson [1930] 143 LT 775

Yew Yin Lai v. Teo Meng Hai & Anor [2013] 8 MLJ 787

Lim Siaw Yiing v. Wong Seng & Anor [2009] 4 MLJ 409

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Dr Gurmail Kaur Sadhu Singh v. Dr Teh Seong Peng & Anor [2015] 2
CLJ 42

Rajesselvi Sinnakaruppan v. Batumalay Jeyaram [2001] 4 CLJ 535

Soo Hong & Leong Kew Moi v. United Malayan Banking Corp Bhd
[1997] 1 MLJ 690

Yap Yen Piow v. Hee Wee Eng [2017] 1 MLJ 17

Loh Kwee Eng v. Phua Nai Peng [2012] 7 MLJ 343

Koay Cheng Eng v. Linda Herawati [2008] 4 MLJ 863

Lord Merrivale P in Farmham v. Farmham [1925] 133 LT 320

Legislation referred to:

Law Reform (Marriage And Divorce) Act 1976, ss. 58, 59, 76(1), (2),
77, 88, 89, 93(1), 102, 103

Evidence Act 1950, s. 73A (2)

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