Liew Ju Min V Choo Wee Poh

[2017] 1 LNS 186 Legal Network Series
IN THE HIGH COURT OF MALAYA
AT GEORGETOWN PENANG
[CIVIL SUIT NO. 22NCVC-144-09/2015]
BETWEEN
LIEW JU MIN … PLAINTIFF
AND
1. CHOO WEE POH

2. PULAU PINANG CLINIC SDN BHD
3. KOAY SIEW HAR … DEFENDANTS
HEARD TOGETHER WITH
IN THE HIGH COURT OF MALAYA
AT GEORGETOWN PENANG
[ORIGINATING SUMMONS NO. 24NCVC-807-09/2015]
BETWEEN
LIEW JU MIN … PLAINTIFF
AND
1. CHOO WEE POH

2. KOAY SIEW HAR
3. LIEW KEE HOOI
4. CHOO WEE THIM … DEFENDANTS
1
CIVIL PROCEDURE: Affidavit - Locus standi - Locus standi to

affirm affidavit - Absence of authority - Whether affidavit ought to be
discarded
CIVIL PROCEDURE: Action - Capacity to sue - Commencement of

legal proceedings for appointment of committees of person and estate
of persons - Originating summons filed together with a notice of
application to hold an inquiry - Absence of objection to holding of
inquiry - Whether leave was required - Rules of Court 2012, O. 76
MENTAL DISORDERS AND TREATMENT: Appointment of

committees - Mentally disabled person - Person who is not dangerous
to himself or others - Appointment of adopted daughter, sister in law
and nephew as committee of persons - Whether it was necessary for
court to appoint committee to care for mentally disabled person -
Whether committee member of estate needs to be relative or next of
kin of mentally disabled person - Whether Court may exercise its
judicial discretion to appoint anyone considered most suitable -
Mental Health Act 2001, ss. 58, 73(2)
[Plaintiff’s claim in originating summons allowed with each party

to bear their own costs. Plaintiff’s claim in civil suit dismissed
with costs.]
Case(s) referred to:

Aminah Ahmad v. Ali Mokhtar Hj Abdul Rahman [2015] 2 CLJ 940
HC (refd)
B and another v. Home Office [2012] 4 All ER 276 (refd)
Bandar Builders Sdn Bhd & Ors v. United Malayan Banking

Corporation Bhd [1993] 4 CLJ 7 SC (refd)
Dr Koay Cheng Boon v. Majlis Perubatan Malaysia [2012] 4 CLJ 445

FC (refd)
2
EM (Lebanon) v. Secretary of State for the Home Department [2009]
1 All ER 559 (refd)
Gary Lim Ting Howe v. Lim Pang Cheong & Ors [2015] 9 CLJ 227
HC (refd)
Government of Malaysia v. Lim Kit Siang & Another Case [1988] 1
CLJ Rep 63 SC (refd)
Gurmit Kaur Jaswant Singh v. Tung Shin Hospital & Anor [2013] 1
CLJ 699 HC (refd)
Jaafar Shaari & Siti Jama Hashim v. Tan Lip Eng & Anor [1997] 4
CLJ 509 SC (refd)
JJ Raj v. Dato’ Edward John Lawrence & Ors [2015] 7 CLJ 238 HC
(refd)
Kesatuan Pekerja-Pekerja Malaysia Shipyard & Engineering Sdn Bhd
v. Malaysia Shipyard & Engineering Sdn Bhd & Anor & Another
Appeal [2010] 7 CLJ 987 CA (foll)
Krishnandas Achutan Nair & Ors v. Maniyam Sanykano [1997] 1 CLJ
636 FC (refd)
Lee Lai Cheng v. Lim Hooi Teik [2016] AMEJ 2089 (refd)
Liew Ju Min v. Choo Wee Poh & Anor [2017] 1 CLJ 474 HC (refd)
Malayan Banking Berhad v. Prelude Manufacturing Sdn Bhd & Ors

[2014] 1 LNS 1287 HC (refd)
MTD Prime Sdn Bhd v. See Hwee Keong & Ors And Another Appeal
[2016] 8 CLJ 623 CA (refd)
Muhamad Juzaili Mohd Khamis & Ors v. State Government of Negeri

Sembilan & Ors [2015] 1 CLJ 954 CA (refd)
Pentadbir Tanah Daerah Petaling v. Swee Lin Sdn Bhd [1999] 3 CLJ
577 CA (refd)
R v. Stone, R v. Dobinson [1977] 2 All ER 341 (refd)
3
Re Lim Yew Teok, Deceased; British Malaya Trustee and Executor Co
Ltd & Anor v. Chng Phee Lam & Three Ors [1947] 1 LNS 90 HC
(refd)
Renault SA v. Inokom Corporation Sdn Bhd & Anor And Other
Applications [2010] 5 CLJ 32 CA (refd)
Re Tengku Ahmad Tajudin Bin Tengku Ibrahim [1984] 1 LNS 33 HC

(refd)
RHB Bank Bhd v. Kwan Chew Holdings Sdn Bhd [2010] 1 CLJ 665 FC
(refd)
Re S (hospital patient : courts jurisdiction) [1995] 3 All ER 290
(refd)
Re T (adult : refusal of treatment) [1992] 4 ALL ER 649 (refd)
SCK Group Bhd & Anor v. Sunny Liew Siew Pang & Anor [2010] 9
CLJ 389 CA (refd)
Sheffield City Council v. S (by his litigation friend the Official

Solicitor) and another [2002] EWHC 2278 (refd)
Su Wee Lip @ Phillip Su v. Hj Lassim Abdul Rahman [2009] 1 MLJ
580 (refd)
Tan Guek Tian & Anor v. Tan Kim Kiat (No 2) [2007] 9 CLJ 215 HC
(refd)
Wong Kim v. Loh Kim Foh [2003] 8 CLJ 813 HC (refd)
Legislation referred to:

Mental Health Act 2001, ss. 2, 26(3), 52(1),(3), 54(1)(a), 56, 57,
58(1),(2), 73(2)
Adoption Act 1952, ss. 9(1) & (2)
Interpretation Acts 1947 and 1968, s. 17A
Courts of Judicature Act 1964, ss. 24(e), 25
4
Private Healthcare Facilities and Services Act 1998, s. 35
Federal Constitution, Art. 5

English Human Rights Act 1988, Arts. 2, 8
Mental Disorders Ordinance 1952, s. 4

Rules of Court 2012, O. 76 r. 1A, 3, 6
GROUNDS OF JUDGMENT
Introduction
[1] This is a unique case involving the competing legal claim for the
custody and care of an elderly and mentally incapacitated couple
by the adopted daughter and her uncle/aunt in law. The converse
is more often the norm where many would shirk from such an
onerous responsibility. In Singapore, it is found even necessary
to enact the Maintenance of Parents Act 1995.
[2] The Plaintiff herein (“LJM”) is the adopted daughter of Liew

Kee Hooi (“LKH”) and Choo Wee Thim (“CWT”) under the
Adoption Act 1952 and she brought both a civil suit (“Civil
Suit”) and an originating summons (“OS”) dated 14 September
2015 against several persons/entity.
[3] In the Civil Suit, LJM sued Choo Wee Poh (“CWP”) her uncle as the
First Defendant, Pulau Pinang Clinic Sdn Bhd (the owner of Penang
Gleneagles hospital (“Penang Gleneagles”)) (“PPCSB”) as the Second
Defendant and Koay Siew Har (“KSH”) her aunt in law (wife of
CWP) as the Third Defendant. In the OS, LJM sued CWP and KSH as
the First Defendant and Second Defendant respectively.
[4] At all material times, both LKH and CWT are warded in Penang
Gleneagles. The incident that caused the eventual bringing of the
Civil Suit and OS occurred on 6 June 2015 when LJM attempted to
5
discharge both of them from Penang Gleneagles but was so denied

and prevented by CWP.
Preliminary
[5] Concurrent with the filing of the Civil Suit and OS, LJM filed
an ex-parte application pursuant to the Civil Suit for various
reliefs including an ex-parte prohibitory injunction to preserve
the status quo. Consequently Wong Teck Meng JC gave the
following order on 15 September 2015 (“Order”):
“ATAS PERMOHONAN Plaintif yang dinamakan di atas

DAN SETELAH MEMBACA Notis Permohonan Ex-Parte
bertarikh 14.9.2015 (Lampiran 5) dan Afidavit Sokongan
Plaintif yang diikrarkan oleh Liew Ju Min pada 14.9.2015
(Lampiran 6) dan kesemuanya yang difailkan di sini, DAN
SETELAH MENDENGAR Celine Chelladurai (Tan Boon
Han bersamanya), peguamcara bagi pihak Plaintif MAKA
ADALAH DIPERINTAHKAN bahawa:-
(a) sementara penyelesaian muktamad Guaman ini atau

sebagaimana yang diperintahkan oleh Mahkamah yang
Mulia ini, Defendan Kedua dan/atau pekerja-pekerjanya
dan/atau ejen-ejennya, dan/atau wakil-wakilnya dan/atau
mana-mana doktor yang merawat pesakit di dan melalui
Defendan Kedua, dihalang melalui injunksi larangan,
daripada melepaskan Liew Kee Hooi (No. KP 350812-08-
5063) (“LKH”) dan Choo Wee Thim (No.KP 300628-71-
5074) (“CWT”), yang merupakan ibu bapa Plaintif dan
pesakit semasa (current inpatients) di hospital Defendan
Kedua yang dikenali sebagai Penang Gleneagles di Jalan
Pangkor, 10050 Penang (“Penang Gleneagles”) ke dalam
jagaan orang lain selain daripada Plaintif;
6
(b) bahawa lanjutan kepada perenggan (a) di atas dan

sehingga CWT dan LKH dilepaskan, bahawa Defendan
Kedua dan/atau pekerja-pekerjanya dan/atau ejen-ejennya,
dihalang melalui injunksi larangan, daripada enggan
memberikan dan/atau menyediakan rawatan, penjagaan
perubatan dan penjagaan pesakit semasa secara umum
(general inpatient care) dan perkhidmatan yang
sesuai/cukup kepada CWT dan LKH sehingga dan kecuali
LKH dan CWT dilepaskan dari Defendan Kedua melalui
Perintah Mahkamah ini dan di mana diperlukan, dengan
kebenaran Plaintif.
(c) bahawa sementara penyelesaian muktamad Guaman

ini atau sebagaimana yang diperintahkan oleh Mahkamah
yang Mulia ini, Defendan Kedua mengakui, untuk tujuan
merawat CWT dan LKH atau sebagaimana diperlukan oleh
mana-mana protokol lain atau prosedur dalaman dan
mekanism Penang Gleneagles atau Defendan Kedua, Plaintif
sebagai sebagai ‘keluarga terdekat’ (next of kin) dan/atau
‘saudara’ (relative) LKH dan CWT dalam pengertian
Seksyen 2 Akta Kesihatan Mental 2001 (“MHA 2001”);
(d) bahawa lanjutan kepada perenggan (c) di atas,

kecuali untuk rawatan kecemasan, kebenaran bertulis
Plaintif diperlukan sebelum membuat sebarang keputusan
dan/atau menjalankan sebarang arahan mengenai
dan/atau berhubung dengan jagaan dan/atau penjagaan
(custody and/or care) LKH dan CWT semasa mereka masih
dimasukkan di Penang Gleneagles;
(e) bahawa sementara penyelesaian muktamad Guaman ini,

pelantikan satu jawatankuasa di atas CWT dan LKH atau
sepertimana yang diarahkan oleh Mahkamah Yang Mulia ini,
7
Defendan Pertama, melalui perintah larangan, dihalang

daripada bercampur tangan dengan urusan, penjagaan dan
jagaan (affairs, care dan custody) LKH dan CWT.
(f) bahawa lanjutan kepada perenggan (d) di atas dan

sementara penyelesaian muktamad Guaman ini, atau
pelantikan satu jawatankuasa di atas CWT dan LKH atau
sepertimana yang diarahkan oleh Mahkamah Yang Mulia
ini, Defendan Pertama, melalui perintah larangan,
dihalang daripada menghalang dan/atau menewaskan,
dalam apa jua cara, pelaksanaan dan/atau arahan Plaintif
mengenai urusan, penjagaan dan jagaan (affairs, care and
custody) LKH dan CWT.
(g) bahawa Plaintif memberikan aku janji tambahan

untuk membayar bil-bil hospital dari 17.9.2015 sehingga
pendengaran permohonan ini secara inter-partes atau
Perintah yang mengubahsuai Perintah ini, dibuat oleh
Mahkamah;
(h) bahawa perbicaraan inter partes permohonan ini

ditetapkan pada 29.9.2015; dan
(i) bahawa kos permohonan ini dijadikan kos dalam

kausa (costs in the cause).”
Upon the transfer of Wong Teck Meng JC to the Shah Alam

High Court, I took over both the Civil Suit and the OS on 1
October 2015. By the consent of the parties during the inter-
partes hearing before me on 15 February 2016, the aforesaid
Order had been extended until the disposal of the Civil Suit.
[6] The first case management was held on 27 January 2016. In

view of the complexity of the case and inter-connectedness of
both the Civil Suit and OS, I directed that they be determined
8
together after the conclusion of the trial of the Civil Suit. LJM
also on 18 January 2016 filed an interlocutory application under
the OS to hold an inquiry under s. 52 of the Mental Health Act
2001 (“MHA”) and I directed that the inquiry be undertaken as
part and parcel of the aforesaid trial. Furthermore, by reason of
the advanced age of both LKS and CWT, I fixed an early trial to
commence on 25 April 2016.
[7] The trial of the Civil Suit eventually took 11 days on 9, 10, 11
and 25 May 2016, 10, 11, 12, 15 and 16 August 2016, 19 and 20
September 2016. The trial documents comprised of bundles A to
J which included the documentary evidence. All the bundles of
documentary evidence save for bundle F were consented by the
parties to be of status B as that defined in Jaafar bin Shaari &
Anor v. Tan Lip Eng & Anor [1997] 3 MLJ 693. Additionally,
exhibits P1, P2, P3, D4, D5, D6, D7, D8, D9 and P10 were
admitted in evidence during the course of the trial.
[8] The following witnesses testified at the trial:
(i) Lee Huat See (“PW1”), a close friend and golf buddy of
LKH;
(ii) Lim Kim Niah (“PW2”), a family friend of LJM’s family;
(iii) Michael Toxvaerd Hansen (“PW3”), LJM’s husband;
(iv) LJM (“PW4”), the Plaintiff herself;
(v) Dr. Ong Mei Lin (“PW5”), a consultant physician at

Penang Gleneagles;
(vi) Dr. Ravi a/l Krishnapillai (“PW6”), a consultant

neurosurgeon at Sunway Medical Centre;
9
(vii) Dr. Yoong Meow Foong (“PW7’), a consultant

neurosurgeon at Penang Gleneagles;
(viii) Dr. K Ravindran Katheerayson (“PW8”), a consultant

neurosurgeon at Penang Gleneagles;
(ix) Dr. Chong Yew Thong (“PW9”), a consultant

dermatologist at Penang Gleneagles;
(x) Teoh Kheng Kok (“DW1”), the senior finance manager of

PPCSB;
(xi) Kong Chok Min (“DW2”), nephew of LKH and cousin of

LJM;
(xii) KSH (“DW3”), the Third Defendant herself;
(xiii) Lai Yew Khin (“DW4”), a patients account coordinator at

Lam Wah Ee Hospital; and
(xiv) Leong Foong Oay (“DW5”), a medical records manager at

Island Hospital.
CWP chose not to appear and testify at the trial.
[9] For the purposes of the OS, the following affidavits were filed
in support and in opposition:
(i) Plaintiff’s affidavit in support affirmed by LJM on 14

September 2015;
(ii) First Defendant’s affidavit in reply affirmed by CWP on

20 October 2015;
(iii) Second Defendant’s affidavit in reply affirmed by KSH on

20 October 2015;
10
(iv) First and Second Defendant’s affidavit in reply affirmed

by Kong Chok Min on 20 October 2015;
(v) Plaintiff’s affidavit in reply affirmed by LJM on 11

November 2015;
(vi) First Defendant’s 2 nd affidavit in reply affirmed by CWP

on 25 November 2015;
(vii) Second Defendant’s 2 nd affidavit in reply affirmed by KSH

on 25 November 2015;
(viii) First and Second Defendant’s 2 nd affidavit in reply

affirmed by Kong Chok Min on 25 November 2015;
(ix) Plaintiff’s 2 nd affidavit in reply affirmed by LJM on 10

December 2015; and
(x) First and Second Defendant’s supplementary affidavit

affirmed by KSH on 11 August 2016.
[10] Shortly before the commencement of the trial of the Civil Suit,
CWP and KSH on 18 April 2016 filed their application to strike
out the OS notwithstanding I have earlier ruled and directed that
the OS would be determined together with the Civil Suit after
conclusion of the trial of the Civil Suit. Nonetheless I decided
that application on 15 July 2016 as reported in Liew Ju Min v.
Choo Wee Poh & Anor [2017] 1 CLJ 474 (“Decision”). In gist, I
ordered the OS be amended in lieu of being struck out by way of
adding LKH and CWT as Third and Fourth Defendants in the OS
respectively. In addition, I gave liberty to CWP and KSH to file
a further affidavit to offer themselves or others to be appointed
to the committee and committee of estate of LKH and CWT. I
also ordered that the intitulement in the OS be consequently
amended by adding reference to s. 52, 53, 54, 56 and 57 of the
11
MHA, s. 24(e) of the Courts of Judicature Act and Order 76 rule

1A and 3 of the Rules of Court 2012. I also held that leave of
court pursuant to Order 76 rule 1A of the Rules of Court 2012 is
unnecessary but in abundans cautela, I ruled that leave is
deemed given by the above orders and Dato’ Haw Kim Then JP
be appointed as the litigation representative of LKS and CWT
(“Litigation Representative”) pursuant to Order 76 rule 6 of the
Rules of Court 2012.
Also on 18 April 2016, CWP and KSH filed their application to

strike out the Civil Suit. However out of expediency so as not to
delay the trial that was re-scheduled to commence on 9 May
2016 and in the interest of justice, I declined to hear the
application forthwith and directed that it be instead determined
at the conclusion of the trial simultaneously with the Civil Suit.
[11] I visited CWP/KSHs’ home at 60E Jalan Choong Lye Hock,

10470 Penang (“Penang House”) where CWT used to reside
before she was warded in Penang Gleneagles on 25 May 2015.
In addition, I visited the Columbia Asia Extended Care Hospital
in Shah Alam, Selangor (“Columbia Hospital”) and LKH/CWTs’
matrimonial home at 489 Jalan 17/17, 46400 Petaling Jaya,
Selangor (“PJ House”) on 9 September 2016.
[12] I also visited and examined both LKH and CWT in the Penang
Gleneagles in the presence of the parties and the Litigation
Representative on 21 September 2016.
[13] After the close of the trial of the Civil Suit, the parties
simultaneously submitted their written submissions in chief and
in reply as directed by me for purposes of the Civil Suit and OS.
I heard oral amplification as well as clarification from counsel
on 8 and 19 December 2016.
12
Background Facts
[14] The following facts were either admitted or proved in the course
of the trial.
[15] LJM who was born in 1968 is the legally adopted child of LKH
and CWT. She has been living with her husband in Copenhagen,
Denmark since 2007 but she made frequent trips to Malaysia to
visit LKH and CWT.
[16] About 15 years ago, CWT was diagnosed with Alzeheimer’s

disease and her condition has continuously deteriorated. In 2008
she had been under the care of CWP and KSH in the Penang
House by reason that her husband, LKH needed a temporary
break from caring for her himself. After the break of about 6
months, CWP and KSH convinced LKH to continue to let CWT
be under their care but LKH remained responsible for all CWT’s
expenses. LKH hence lived alone in the PJ House but he made
regular trips to visit CWT as often as possible.
[17] On 25 April 2015, LKH suffered a stroke in the PJ House and

was rushed to Sunway Medical Centre by his nephew KCM who
resides in Kuala Lumpur. LJM was informed of LKH’s condition
and she had flown back to Malaysia on 26 April 2015. Since
then, she has been living in Malaysia. LKH was transferred from
Sunway Medical Centre to Penang Gleneagles on 26 April 2015.
He was admitted by CWP as his next of kin named in the
admission form and LJM stood guarantor for his hospital
expenses. Whilst at Penang Gleneagles, he suffered another
stroke on 20 May 2015 and was in critical condition. He
survived and has since then been under the care and management
of the physicians at Penang Gleneagles.
13
[18] Subsequently on 26 May 2015, CWT was also admitted to

Penang Gleneagles by CWP as her next of kin named in the
admission form for treatment of infected bedsores.
[19] Since the admission of CWT and LKH in Penang Gleneagles, the
relationship between LJM and CWP/KSH had broken down due to
various incidents that involved the care of CWT and primarily
LKH. On 6 June 2015, LJM attempted to discharge both CWT and
LKH from Penang Gleneagles and transfer them to Columbia
Hospital. The aforesaid attempt was however opposed by CWP.
[20] As the result, PPCSB on 6 June 2015 required either LJM or

CWP to obtain a court order declaring who has the right to make
decisions on behalf of the patients before Penang Gleneagles
would discharge them. The parties then underwent mediation to
try to resolve the impasse.
[21] Although CWT had recovered from her bedsores since July
2015, she has also been under the care and management of the
physicians of Penang Gleneagles because of the impasse
between LJM and CWP.
[22] After the aforesaid mediation failed, PPCSB on 9 September

2015 declared that it would discharge both CWT and LKH to the
care of CWP at 5.30pm on 17 September 2015 unless LJM
obtained a court order stating that she is entitled to make
decisions on behalf of CWT and LKH. Thus LJM was
constrained to bring both the Civil Suit and OS. She also
obtained the ex-parte Order that effectively prohibited the
discharge of both CWT and LKH and the Order was extended by
consent on 15 February 2016 till the disposal of the Civil Suit.
[23] Since the bringing of the Civil Suit and OS, LKS further
suffered a series of strokes whilst CWT suffered a heart attack
14
on 31 August 2016 in Penang Gleneagles. Presently both of

them are in stable condition.
Contentions and Findings
[24] I will deal with the OS first and thereafter the Civil Suit.
[25] LJM primarily sought the following reliefs in the OS:
(i) LJM be appointed as the Committee of CWT and as the

Committee of the estate of CWT;
(ii) LJM be appointed as the Committee of LKH and as the

Committee of the estate of LKH:
(iii) the remuneration and costs incurred by LJM for the care of
CWT and LKH, in her capacity as the Committee, to be
made out of the estate of CWT and estate of LKH; and
(iv) the Committee shall have such powers for the management
of the estate of CWT and the estate of LKH.
[26] She also took a preliminary objection to the First and Second
Defendants’ affidavits affirmed by Kong Chok Min on 20
October 2015 and 25 November 2015 by reason that he wasn’t
authorized by CWP and/or KSH and therefore did not have locus
standi to affirm any affidavit on their behalf.
[27] In the Court of Appeal case of Kesatuan Pekerja-Pekerja

Malaysia Shipyard & Engineering Sdn Bhd v. Malaysia Shipyard
& Engineering Sdn Bhd & Anor [2010] 6 MLJ 306, Zaleha
Zahari JCA (later FCJ) held as follows at 314-315:
“[32] The said applications were also flawed for another

reason. They were supported by an affidavit affirmed by a
former secretary of the applicant. We borne in mind the
15
fact that the party to the proceedings under appeal is the

union, not the deponent of the supporting affidavit to the
application in his personal capacity. The exhibit attached
to the said applications did not confirm that the deponent
had been authorised to affirm the supporting affidavit in
respect of these two appeals on the applicant’s behalf.
Nowhere in the supporting affidavit did the deponent aver
that he is a current office bearer much less a current
member of the applicant. As the deponent did not have the
necessary locus standi to affirm the supporting affidavit on
behalf of the applicant, there was therefore no proper
affidavit filed in support of the said applications.”
[28] The position is similar here in that there is neither indication nor
evidence that CWP and/or KSH have authorized KCM to affirm
affidavits on their respective behalf. I am bound by the aforesaid
Court of Appeal decision and therefore uphold LJM’s
preliminary objection. As the result, the averments made in
KCM’s affidavits are discarded.
[29] Ms. Celine Chelladurai of counsel for LJM succinctly submitted

during clarification that there are basically three issues which
require determination in respect of the OS, to wit:
(i) Requirement for leave;
(ii) Application criteria for appointment of committee under

the MHA; and
(iii) Suitability of the person to be appointed in the aforesaid

committee.
[30] As to the requirement for leave of the court, Ms. Celine

submitted that leave is unnecessary in an application for
appointment of committees. However Mr. Yeoh Jin Aik of
16
counsel for CWP and KSH submitted that leave is required

pursuant to Order 76 Rule 1A of the Rules of Court 2012 read
with the case of JJ Raj v. Dato Edward John Lawrence & Ors
[2015] 7 CLJ 238. In that case, the person who has been
declared mentally disordered by the court has been sued as a
defendant in a civil suit.
[31] I have already dealt with this issue of the requirement for leave
in my Decision and I hereby reiterate my views therein that
leave is unnecessary in the circumstances of this case.
Nevertheless for completeness, I observed that since the making
of my Decision, there is also the Court of Appeal case of MTD
Prime Sdn Bhd v. See Hwee Keong & Ors and another appeal
[2016] 4 MLJ 695. It was held therein that a person who has
been alleged to be mentally disordered but hasn’t yet been so
found in due course of law and declared as such by the court is
entitled to bring and maintain the civil suit as plaintiff. The
issue on the requirement for leave however wasn’t discussed in
that case.
[32] Next and in respect of the application criteria for appointment of

committee under the MHA, it is apt for me to firstly reproduce
the relevant provisions of the MHA with emphasis added by me:
“2. Interpretation
“friend”, in relation to a mentally disordered person,

means-
(a) a person, other than a relative, of or above eighteen

years of age with whom the mentally disordered person
ordinarily resides (or if the mentally disordered person is
for the time being an inpatient in a psychiatric hospital,
with whom he last ordinarily resided before he was
17
admitted), and with whom he has or had been ordinarily

residing for a period of not less than two years; or
(b) a body or an organization recognized by the Minister

under subsection (4);
...
“mental disorder” means any mental illness, arrested or

incomplete development of the mind, psychiatric disorder
or any other disorder or disability of the mind however
acquired; and “mentally disordered” shall be construed
accordingly;
...
“relative” means any of the following persons of or above

eighteen years of age:
(a) husband or wife;
(b) son or daughter;
(c) father or mother;
(d) brother or sister;
(e) grandparent;
(f) grandchild;
(g) maternal or paternal uncle or aunt;
(h) nephew or niece.
51. Interpretation
In this Part-
18
“Court” means the High Court;
“mentally disordered person” means any person found by

due course of law to be mentally disordered and incapable
of managing himself and his affairs.
52. Court may order inquiry
(1) 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.
(2) The order of the Court under subsection (1) may also
contain directions for inquiries to be made concerning-
(a) the nature of the property belonging to the person

alleged to be mentally disordered;
(b) the persons who are his relatives;
(c) the period during which he has been mentally

disordered; or
(d) such other questions as the Court deems proper.
(3) 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.
53. Notice of Inquiry
19
(1) The Court shall give reasonable notice to the person

alleged to be mentally disordered and the applicant of the
time and place fixed for the inquiry.
(2) Where it appears to the Court that the person alleged

to be mentally disordered is in such a state that personal
service on him of the notice would be ineffectual, the
Court may, for the purpose of bringing the person to the
inquiry, direct that the service of the notice be made on the
person having charge of him or on any adult person or the
owner or occupier of the premises wherein the mentally
disordered person lives.
54. Power to examine person alleged to be mentally

disordered
(1) At any time after the application for the inquiry is

made, the Court may-
(a) require the applicant to produce the person alleged to

be mentally disordered at such time and place as the
Court may appoint, for the purpose of being personally
examined by the Court or by a psychiatrist from whom the
Court may desire to have a report of his mental capacity
and condition; and
(b) make an order authorizing any person or persons

named in the order to have access to the person alleged to
be mentally disordered for the purpose of a personal
examination and making the report referred to in
paragraph (a).
(2) The psychiatrist making a report under paragraph

(1)(a) in respect of the person alleged to be mentally
disordered shall consider-
20
(a) the nature and degree of the person’s condition;
(b) the complexity of his estate;
(c) the effect of the condition of the person upon his

conduct in administering his estate; and
(d) any other circumstances the psychiatrist considers

relevant to the estate and the person and his condition.
(3) The report referred to in paragraph (1)(a) shall be

admissible in evidence at the inquiry to be held by the
Court under this Part.
56. Questions to be decided by Court
At the inquiry, after receiving the report under section 54

or the certification of the Medical Director under section
55 and upon hearing such evidence and arguments as it
may think fit, the Court shall decide whether the person
alleged to be mentally disordered is, due to his mental
disorder, incapable of managing himself and his affairs,
and shall also decide any other questions as to which an
inquiry has been directed.
58. Appointment of committees
(1) If the Court finds that the person who is alleged to be

mentally disordered is incapable of managing himself
and his affairs due to his mental disorder, the Court may
appoint a committee or committees of the person and of
the estate of the person and may, as the Court deems fit,
make an order-
(a) as to the remuneration, if any, of the committee or

committees out of the person’s estate; or
21
(b) as to the giving of security by the committee or

committees.
(2) Where the Court finds that the person alleged to be

mentally disordered is incapable of managing his affairs
due to his mental disorder but is not dangerous to himself
or to others, the Court may appoint a committee of his
estate without appointing a committee of his person.
59. Powers of management of estate of mentally

disordered person
(1) Subject to subsection (2), the Court may, on the

appointment of a committee of the estate of a mentally
disordered person, direct by the appointment or by any
subsequent order that the person to whom the charge of
the estate is committed shall have such powers for the
management of the estate as the Court deems necessary
and proper, regard being had to the nature of the property,
whether movable or immovable, of which the estate may
consist.
(2) The powers of management conferred under subsection
(1) shall not extend to the sale or charge of the estate or

any part of the estate or to the letting of any immovable
property for a term exceeding three years.
60. Power of registrar to receive proposal
(1) The Registrar of the High Court may, without an order

of reference, receive any proposal and conduct an inquiry
in respect of the management of the estate of a mentally
disordered person if the proposal relates to any matter
22
which the committee of the estate has not been empowered

under section 59 to dispose of.
(2) The Registrar may, without an order of reference,

receive and inquire into any proposal relating to the sale
or charge of the estate or any part of the estate of a
mentally disordered person or to the letting of any
immovable property for a term exceeding three years.
(3) The Registrar shall report to the Court on the proposal

and the Court shall, subject to this Act, make an order on
the report and award such costs as under the
circumstances seem just.
61 Relatives who may attend proceedings
(1) The Court shall once in the matter of each inquiry,

and may afterwards from time to time, determine which
of the relatives or next-of-kin of the mentally disordered
person who shall attend before the Registrar in any
proceedings connected with the management of the estate
of the person.
(2) Where a relative or next-of-kin is a minor, the Court

may appoint a fit and proper person to be his guardian for
the purpose of the proceedings.
(3) The attendance of the relatives or next-of-kin before

the Registrar shall be at the cost of the estate.
62. Orders may be made on application
Subject to this Act, the Court may, on an application made

to it concerning any matter connected with an inquiry,
make such order in respect of the application and the costs
of the application and of the consequent proceedings as
23
under the circumstances seem just but no order for costs

shall be made under this section against any public officer.
63. Dealing with mentally disordered person’s property
The Court may, if it appears to the Court to be just or for

the benefit of the mentally disordered person, order that
any property, movable or immovable, and whether in
possession, reversion, remainder, contingency or
expectancy, be sold or charged or otherwise disposed of
as seem most expedient for the purpose of raising money
to be applied for any of the following purposes:
(a) the payment of his debts, including any debt or

expenditure incurred for his maintenance or for his
benefit;
(b) the discharge of any encumbrance on his estate;
(c) the payment of or provision for the expenses of his

future maintenance and the maintenance of his family,
including the expenses of his removal to any place in or
outside Malaysia and all related expenses;
(d) the payment of the costs of any proceedings under this

Act and of any costs incurred by order or under the
authority of the Court.
73. Order for reception of mentally disordered person
(1) Where upon an inquiry under this Part a person is

found by the Court to be incapable of managing himself
and his affairs due to his mental disorder but the Court
does not appoint a committee of his person, the Court shall
make an order for the person to be received into a
government psychiatric hospital or a gazetted private
24
psychiatric hospital and send him in suitable custody,

together with the order for his reception, to the psychiatric
hospital named in the order.
(2) Notwithstanding subsection (1), if a friend or relative

of the mentally disordered person satisfies the Court that
he undertakes to take proper care of the person and
prevent him from injuring himself or others, the Court
may, instead of making an order under the subsection,
make an order handing him over to the care of the friend
or relative.
(3) A person received into a psychiatric hospital by an

order of the Court under subsection (1) shall, for the
purpose of this Act, be deemed to be an involuntary
patient.”
[33] Furthermore it is observed that ss. 24 (e) and 25 of the Courts of

Judicature Act 1964 (“CJA”) provide as follows:
“24. Civil jurisdiction-specific
Without prejudice to the generality of section 23 the civil

jurisdiction of the High Court shall include –
...
(e) jurisdiction to appoint and control guardians and

keepers of the person and estates of idiots, mentally
disordered persons and persons of unsound mind;
...
25. Powers of the high court
25
(1) Without prejudice to the generality of Article 121 of

the Constitution the High Court shall in the exercise of its
jurisdiction have all the powers which were vested in it
immediately prior to Malaysia Day and such other powers
as may be vested in it by any written law in force within its
local jurisdiction.
(2) Without prejudice to the generality of subsection (1)

the High Court shall have the additional powers set out in
the Schedule:
Provided that all such powers shall be exercised in

accordance with any written law or rules of court relating
to the same.”
[34] The general provisions in the CJA in the circumstances herein

must however in my view be read together with the specific
provisions of the MHA where so expressly provided. It is
therefore plain from ss. 52(2), 56 and 58(1) of the MHA that the
High Court may declare a person to be mentally disordered and
appoint a committee or committees of the person or of the estate
of the person to manage his/her financial affairs provided an
inquiry has been held: see Aminah Ahmad v. Ali Mokhtar Hj
Abdul Rahman [2015] 2 CLJ 940 and Gary Lim Ting Howe v.
Lim Pang Cheong & Ors [2015] 9 CLJ 227.
[35] In this regard, LJM as the adopted daughter of CWT and LKH
filed the OS for the appointment of the committees of person
and estate of the persons and also a notice of application
thereunder dated 18 January 2016 to hold an inquiry supported
by the affidavits of Liew Ju Min affirmed on 18 and 27 January
2016. There was no objection to the holding of the inquiry by
either CWP or KSH.
26
[36] I am satisfied that LJM is the relative of CWT and LKH within
the meaning of s. 2 of the MHA and hence hold that she has the
right to file the OS and apply for an inquiry under s. 52 of the
MHA. At that stage, the parties have further taken the position
that they were not disputing CWT and LKH are non compos
mentis. I reiterate that I have informed the parties the inquiry
would be concurrently conducted with and during the course of
the trial of the Civil Suit because I wanted the benefit of the
opinion of the doctors particularly the physicians and surgeons
who treated LKH and CWT since they were called or
subpoenaed to testify at the trial of the Civil Suit. Put simply, I
effectively invoked s. 52(1) of the MHA. In Wong Kim v. Loh
Kim Foh [2003] 4 MLJ 535, Abdul Hamid Embong J (later FCJ)
held as follows at 540 in respect of an application under the
repealed Mental Disorder Ordinance 1952:
“An application such as this however, ought to be

supported by some medical evidence in the nature of a
medical certificate of some doctor who has had a
reasonable opportunity of seeing the condition of the
alleged invalid.”
Moreover, I eventually visited and personally examined LKH

and CWT myself on 21 September 2016 pursuant to s. 54(1)(a)
of the MHA.
[37] In respect of LKH, Dr. K. Ravindran Katheerayson is of the

opinion that he had suffered recurrent haemorrhagic stroke with
severe permanent cognitive and physical deficit and he will
never improve to his pre stroke independent level. Hence, his
current mental capacity is severely limited and impaired. He
definitely cannot respond accurately with any relevance to
anything asked of him and will never be able to make any kind
27
of independent sound decisions on his own medical care and

personal well being. Furthermore in the opinion of Dr. Yoong
Meow Foong, LKH’s condition is irreversible and is prognosis is
dismal. He is cortically blind and he will never walk again and
be independent.
[38] As for CWT, Dr. K. Ravindran Katheerayson is of the opinion that

she is suffering from Alzheimer’s disease with advanced vascular
dementia and post dementia gross cerebral atrophy in a persistent
vegetative state. Her neurological state will never improve and
will deteriorate even further. She definitely cannot understand
what is said to her because her current mental capacity is severely
limited and impaired and she will never be able to make any kind
of independent sound decisions on her own medical care and
personal well being. Also in Wong Kim v. Loh Kim Foh (supra),
Abdul Hamid Embong J held as follows at 539:
“In severe AD, a person can no longer survive without

assistance. Most people in this stage no longer understand
language, they no longer recognise family members, and
they can no longer perform basic activities of daily living
such as eating, dressing and bathing (Source: Alzheimer
Disease Association USA).
A person suffering from severe AD or has at least

traversed into its advanced stage, may in my opinion, be
categorised as one who is mentally disordered...”
[39] On my personal examination of LKH and CWT on 21 September

2016, I am satisfied with the diagnosis and opinion of Dr. K.
Ravindran Katheerayson and Dr. Yoong Meow Foong. LKH and
CWT are obviously bed-ridden. I find that both of them are
neither responsive to my verbal stimuli nor physical stimuli
when I pressed their palms.
28
[40] In the circumstances and based on the definition as prescribed in

s. 2 of the MHA, I hereby declare under s. 56 of the MHA that
both CWT and LKH are mentally disordered and incapable of
managing themselves and their affairs.
[41] In the circumstances, it is appropriate that I appoint the

appropriate committee(s) pursuant to s. 58 of the MHA or
person to care for the mentally disabled person under s. 73(2) of
the MHA. From my reading of s. 58(2) of the MHA, it appears
that a committee of person should be appointed only if the
mentally disabled person is dangerous to himself/herself or
others. In other words, there must be tendency of the person
becoming violent and inflict injury. There is no evidence that
CWT or LKH is dangerous in this respect. Consequently, it is in
the circumstances herein only necessary for me to appoint a
committee of estate for both of them and make a further order
appointing the person to care for them under s. 73 (2) of the
MHA. The follow on issue is then the suitability of the person to
be so appointed accordingly.
[42] From the affidavits that were filed under the OS, LJM, KSH and
KCM offered themselves as the person to be so appointed. CWP
has since withdrawn himself from being so considered. Ms.
Celine submitted that LJM is legally eligible because she comes
under the definition of “relative” within the meaning of s. 2 of
the MHA being the adopted daughter of LKH and CWT pursuant
to s. 9 of the Adoption Act 1952. It is provided in s. 9(1) and (2)
therein as follows:
“9. Effect of adoption order
(1) Upon an adoption order being made, all rights, duties,

obligations and liabilities of the parent or parents,
guardian or guardians of the adopted child, in relation to
29
the future custody, maintenance and education of the

adopted child, including all rights to appoint a guardian
or to consent or give notice of dissent to marriage shall be
extinguished, and all such rights, duties, obligations and
liabilities shall vest in and be exercisable by and
enforceable against the adopter as though the adopted
child was a child born to the adopter in lawful wedlock:
Provided that, in any case where two spouses are the

adopters, such spouses shall in respect of the matters
aforesaid and for the purpose of the jurisdiction of any
Court to make orders as to the custody and maintenance of
and right of access to children stand to each other and to
the adopted child in the same relation as they would have
stood if they had been the lawful father and mother of the
adopted child, and the adopted child shall stand to them
respectively in the same relation as a child would have
stood to a lawful father and mother, respectively.
(2) Where, at any time after the making of an adoption

order, the adopter or the adopted child or any other
person dies intestate in respect of any movable or
immovable property, that property shall devolve in all
respects as if the adopted child were the child of the
adopter born in lawful wedlock and were not the child of
any other person.”
Accordingly, she submitted that LJM as the adopted daughter is

clothed with all rights of a natural child in the family would
have.
[43] Ms. Celine further went on to submit that an application

pursuant to s. 52(3) of the MHA read together with the
definition of “relative” isn’t the same as that as provided in s. 4
30
of the repealed Mental Disorders Ordinance 1952 which is open

to any person related by blood or marriage: see Tan Guek Tian
& Anor v. Tan Kim Kiat (No. 2) [2007] 9 CLJ 215. She
concluded that the person eligible to make the application under
the MHA is thus narrower than that provided in the Mental
Disorders Ordinance. According to her, the meaning of the
eligible “relative” as listed in s. 2 of the Act must necessarily be
subjected to and construed in accordance with the relevant
written laws such as the Births and Deaths Registration Act
1957, Adoption Act 1952, Distribution Act 1958 and so on. No
case authority to that effect, however, is proffered.
[44] That notwithstanding, she also submitted that the determination

of the relative in s. 2 of the MHA is based on an order of
descending priority in the list of relatives commencing with the
first person described in the list in s. 2. This is by reason that
the MHA is similar to the English Mental Health Act 1983 and
s. 26 therein provides for the definition of “relative” and
“nearest relative” as follows particularly s. 26(3):
“26. Definition of relative and nearest relative
(1) In this Part of this Act “relative” means any of the

following persons:—
(a) husband or wife [or civil partner];
(b) son or daughter;
(c) father or mother;
(d) brother or sister;
(e) grandparent;
(f) grandchild;
31
(g) uncle or aunt;
(h) nephew or niece.
(2) In deducing relationships for the purposes of this

section, any relationship of the half-blood shall be treated
as a relationship of the whole blood, and an illegitimate
person shall be treated as the legitimate child of
(a) his mother, and
(b) if his father has parental responsibility for him within

the meaning of section 3 of the Children Act 1989, his
father.
(3) In this Part of this Act, subject to the provisions of this

section and to the following provisions of this Part of this
Act, the “nearest relative” means the person first
described in subsection (1) above who is for the time being
surviving, relatives of the whole blood being preferred to
relatives of the same description of the half-blood and the
elder or eldest of two or more relatives described in any
paragraph of that subsection being preferred to the other
or others of those relatives, regardless of sex.”
[45] She, therefore, submitted that KSH as the sister in law of CWT
and LKH is not legally eligible as a relative defined in s. 2 of
the Act. Likewise, KCM is ousted. Even if they are so eligible,
the priority should be accorded to LJM.
[46] Mr. Yeoh on the other hand submitted that KSH and KCM
qualify as “relative” within the meaning of the MHA: otherwise
as next of kin and they are therefore legally eligible too just like
LJM. In Re Lim Yew Teok, Deceased; British Malaya Trustee
and Executor Co., Ltd. And Another v. Chng Phee Lam and
32
Three Others [1948] 14 MLJ 188, Brown J held as follows in

respect of next of kin with emphasis added by me:
“Mr. Da Silva then argued that the term “next of kin in

accordance with the statutes of distribution” is a loose
expression upon which no reliance should be placed. In
support of this contention he cited Withy v. Mangles 49 ER
377. That was a case of a marriage settlement, in which
there was an ultimate limitation of personal property “to
such person or persons as at the time of the death of E. M.
should be her next of kin.” The two points of distinction
between that case and the present are, firstly, that that was
a case of a marriage settlement, and secondly, that in that
case the words ‘next of kin’ were used simpliciter whereas
in the case of this Will they are qualified by the further
words “in accordance with the statutes of distribution.” It
seems to me that these two distinctions appear clearly
from the judgment of the Master of the Rolls at page 381,
where he says:—
The construction given to the term “next of kin”, with

reference to the statute of Car. 2 shows that the next of kin
entitled to administration and distribution are not to be
deemed to be next of kin for all purposes; and I apprehend
that in all other cases the term “next or nearest of kin”
must be construed according to their simple and obvious
meaning, or according to the legal construction of the
whole instrument in which they occur…. If, in this case,
the words of the limitation had, in any way, referred to the
law of distribution, there would have been a guide to the
interpretation; but there is no such reference.”
33
Also in Re Application by Tengku Ahmad Tajudin bin Tengku

Ibrahim [1984] 2 MLJ 231, Edgar Joseph Jr J (later FCJ) held as
follows with emphasis added by me:
“At common law, the expression ‘next-of-kin’ simpliciter

does not have a technical meaning but merely denotes the
most nearly related relative or kin. So, when a settlor
gives his properly to ‘next-of-kin’ of himself or another,
the expression is construed to mean next-of-kin in the
strict sense of next in degree of kindred. The degrees of
kindred are reckoned according to civil law both upwards
to the ancestors and downwards to the issue, each
generation counting for a degree. Thus, from father to son
is one degree, from grand-father to grand-son, or vice
versa, is two degrees and from brother to brother, two
degrees, namely, one upwards to the father and one
downwards to the other son. So, from uncle to uncle or
nephew, or vice versa, is three degrees.”
Furthermore according to Mr Yeoh, the next of kin is CWP as

ascertained from the admission form of CWT and LKH into
Penang Gleneagles.
[47] As to the aforesaid submissions of counsel, I am firstly not

persuaded that s. 2 of the MHA should be construed subject to
written laws or based on the English Mental Health Act 1983. On
the interpretation of statutes, Gopal Sri Ram JCA (later FCJ) held
as follows in the Federal Court case of Krishnandas Achutan Nair
& Ors v. Maniyam Sanykano [1997] 1 CLJ 636 at 645:
“The function of a Court when construing an Act of

Parliament is to interpret the statute in order to ascertain
legislative intent primarily by reference to the words
appearing in the particular enactment. Prima facie, every
34
word appearing in an Act must bear some meaning. For

Parliament does not legislate in vain by the use of
meaningless words and phrases. A judicial interpreter is
therefore not entitled to disregard words used in a statute or
subsidiary legislation or to treat them as superfluous or
insignificant. It must be borne in mind that: As a general rule
a Court will adopt that construction of a statute which will
give some effect to all of the words which it contains. per
Gibbs J in Beckwith v. R. [1976] 12 ALR 333, at p. 337.”
In addition, Mohd Ghazali Yusoff FCJ said as follows in the

earlier Federal Court case of Dr Koay Cheng Boon v. Majlis
Perubatan Malaysia [2012] 4 CLJ 445 at 472:
“[48] A statute is the written will of the Legislature and it

is the fundamental rule of interpretation of a statute that it
should be expounded according to the intent of
Parliament. The courts must use interpret the statute
literally, according to its ordinary plain meaning.”
There is also s. 17A of the Interpretation Acts 1947 and 1968

that provides:
“17A. Regard to be had to the purpose of the Act
In the interpretation of a provision of an Act, a

construction that would promote the purpose or object
underlying the Act (whether that purpose or object is
expressly stated in the Act or not) shall be preferred to a
construction that would not promote that purpose or
object.”
[48] In my opinion, “relative” has been broadly defined in s. 2 of the

MHA to include the classes of person listed therein. There is no
limitation prescribed and may therefore encompass persons
35
related by blood or marriage or by operation of law such as that

by adoption. It would neither accord nor promote the object of
the MHA if that is restrictively interpreted.
[49] Secondly and more importantly, I have nonetheless carefully

read ss. 56 and 58(1) of the MHA and am of the view that the
committee of estate need not be appointed from a “relative” or
next of kin of the mentally disabled person unlike that of the
applicant for an inquiry under s. 52 of the same. In other words,
the High Court may in its exercise of judicious discretion
appoint anyone who is considered most suitable. As for the
order under s. 73(2) of the MHA, the person to be appointed can
be a “relative” or even a friend. This is also very broad in itself
and I am satisfied that LJM, KSH and KCM are all eligible as
the adopted daughter, sister in law and nephew respectively.
[50] I am mindful that counsel of the respective parties have made

fairly lengthy submissions on the suitability or otherwise of
LJM, KSH and KCM to be appointed into the committees of
CWT and LKH. However, I do not propose to delve into each
and every one of them except to explain concisely why I have
appointed the person.
[51] To begin, I wish to make it clear that I have no doubt that all of
them are sincere and earnest in wanting to care for both CWT
and LKH.
[52] After having attentively listened to them during the trial and
carefully read the written submissions of counsel, I am of the
considered view that LJM is most suited to be appointed to the
committee of estate of CWT and LKH as well as the person
pursuant to s. 73(2) of the MHA. In this respect, I am satisfied
that she has a clear, objective and realistic perspective of the
current medical condition and mental capacity of her parents.
36
She also has a clear understanding of their care and medical

requirements and she has equipped herself by recently
completing an intensive course on mental health facilitation
conducted by Sentral College in Penang. She is comparatively
younger and able to devote her time and attention to both her
parents exclusively. LJM is therefore in the best position to
provide a safe, healthy and comfortable living environment for
her parents. I also took into consideration that KSH is fixated in
wanting to relocate CWT back to the Penang House which I am
not in favour for reasons as explained hereinbelow.
[53] I am aware Mr. Yeoh has raised the issue that LJM is domiciled
in Denmark but I do not think that is a legal impediment. LJM is
still a citizen of Malaysia and she has clearly testified that she
will be residing in Malaysia if she is appointed to the
committees. She will continue to remain here for as long as it
takes during the remaining lifetime of her parents. I am
convinced she has the blessings of her husband and this has also
been proven by her continuous stay in Malaysia at least over the
past one and a half years.
[54] For completeness, I have not overlooked the fact that CWT
chose to live in Penang under the care of CWP and KSH since
2008 and LKH also chose to come over to Penang in mid 2015
after he suffered a stroke. I am however unable to discern their
precise reason(s) for so doing without hearing from them
directly. The hearsay evidence proffered during the trial cannot
be relied upon in the making of this decision. In any event, I
think the circumstances have changed and their reason(s) for so
choosing are no longer relevant. They are now non compos
mentis and probably wouldn’t be able to recognise each other or
even be aware of the presence of the other. I am also doubtful if
they are cognisant of the people around them.
37
[55] The next related issue is the type of care and place where CWT
and LKH should be relocated after discharge from Penang
Gleneagles in the short term as well as in the medium to long
term. Strictly speaking, I think this should be the purview of the
person appointed under s. 73(2) of the MHA especially in
respect of the latter. KSH wanted CWT be relocated to the
Penang House and LKH remain in Penang Gleneagles. LJM, on
the other hand, wanted her parents to be temporarily relocated to
the Columbia Hospital pending the renovation of the PJ House
to accommodate them.
[56] Obviously, the medical opinion of the physicians at Penang

Gleneagles are cogent. From the testimony of Dr. K. Ravindran
Katheerayson, Dr. Yoong Meow Foong, Dr. Ong Mei Lin and
Dr. Chong Yew Thong, they seem to me to be in concurrence
that CWT and LKH do not presently need medical care but they
need constant care nursing. In other words, there must be
someone there by their side 24/7 to keep turning them to prevent
bedsores, aspirate their sputum and do regular suction if they
can’t cough out the sputum. In addition, both of them have to be
tube fed.
[57] With regard to the place of relocation, it seems that Dr. Yoong
Meow Foong, Dr. Ong Mei Lin and Dr. Chong Yew Thong are
of the opinion that there is little difference between home care
and professional nursing care centre provided there are trained
people to care for the patients. Dr. K. Ravindran Katheerayson
however appears to me to favour a professional nursing care
centre such as Columbia Hospital. As to staying on in Penang
Gleneagles, he cautioned that a hospital is an infected
environment where germs are on the wall, nurses, etc. hence the
risk of infection on the patients as what has happened to CWT in
recent months. According to Dr. Yoong Meow Foong and
38
PPCSB, the continued stay of CWT and LKH in Penang

Gleneagles would also deprive a patient who truly needs
admission for medical care as the beds occupied can be better
utilized for another patient since the hospital has limited beds.
[58] I have visited both the Penang House and Columbia Hospital. I
have also interviewed Dr. Ramnam Jeyasingam, a medical
officer and Chief of Medical Services of Columbia Hospital on
the services available and costs chargeable. Comparatively, I am
satisfied that the environment in Columbia Hospital is more
conducive to the current needs of CWT and LKH in terms of
space, accessibility, ventilation and most importantly, the
availability of trained nurses 24/7 to care for them including
tube feeding them. The costs do not appear to be financially
prohibitive too. I am also comforted with the availability of
emergency resuscitation equipment and doctors in Columbia
Hospital to revive CWT in the event she suffers another cardiac
arrest.
[59] In the premises, I hold that CWT and LKH should be relocated
and transferred to Columbia Hospital for the short term until the
person appointed under s. 73(2) of the MHA is able to arrange
for an equivalent accommodation either in the PJ House or
elsewhere. In this respect, I have also taken into consideration
that Dr. K. Ravindran Katheerayson and Dr. Yoong Meow Foong
have testified that CWT and LKH are fit to travel from Penang
Gleneagles to Columbia Hospital.
[60] Now moving on to the Civil Suit, LJM in brevity sought for the
following in her Amended Statement of Claim dated 13
November 2015 (“ASOC”):
(i) As against CWP, LJM contended that CWP has unlawfully

interfered with her rights as the relative within the
39
meaning of the MHA. Thus CWP breached the duty of care

he owed to her in the following manner:
(a) failing to recognise LJM as the relative of CWT and

LKH best charged with the care and custody of CWT
and LKH;
(b) interfering with LJM’s right as the relative of CWT

and LKH to determine the best care and medical
needs required for CWT and LKH;
(c) unjustly and unlawfully interfering with the process

of discharge of CWT and LKH from Penang
Gleneagles on 6 June 2015;
(d) interfering with the care and medical needs and/or

treatment required by CWT and LKH during the
entire course of CWT’s and LKH’s admission in
Penang Gleneagles and especially after 6 June 2015;
and
(e) disclosing information relating to the adoption of

LJM to PPCSB with an intention to cause harm and
interfere with the rights of LJM. CWP’s actions in
disclosing the facts of adoption to PPCSB had cause
harm, embarrassment and emotional distress to LJM.
Accordingly, the conduct of CWP and KSH caused LJM damage

and loss, both emotional, physical and financial as well as
caused mental and emotional distress to her.
(See paragraphs 46 and 47 ASOC); and
(ii) As against PPCSB, LJM contended that CWP and PPCSB

discussed and arranged with each other to act in one
40
accord in prohibiting LJM from exercising her rights in

respect of CWT and LKH. In particular, PPCSB failed to
take an impartial position in this dispute in the following
manner:
(a) recognizing LJM as the relative and next of kin of

CWT and LKH and charging LJM with the costs and
expenses relating to the hospital care of CWT and
LKH;
(b) leading LJM to believe that she would be allowed to

discharge CWT and LKH on 6 June 2015 and thus
incurring all the costs and expenses relating to the
transfer of CWT and LKH to Columbia Hospital;
(c) failing to recognise LJM’s rights suddenly on 6 June

2015 without any basis;
(d) continuing to refuse to adhere to the instructions of

LJM and deferring to the instructions and wishes of
CWP and/or KSH in incurring expenses on behalf of
CWT and LKH; and
(e) failing to recognise LJM’s rights on 9 September

2015 and providing her with an unreasonably short
time within which to obtain legal advice on the latest
turn of events and to obtain the relevant injunctive
orders which were imperative at the time: from 9
September 2015 to 17 September 2015.
(See paragraph 49 of the ASOC)
[61] Consequently, LJM claimed for numerous reliefs including a

permanent injunction from interfering or hindering her rights
from acting as a relative; general damages, exemplary damages,
41
indemnity of the hospital bills of CWT and LKH and costs on

indemnity basis in the ASOC.
[62] Briefly CWP and KSH in their Joint Defence dated 1 April 2016
denied the contentions and claims of LJM in that they owe no
duty of care in law to LJM. If any duty is owed, the duty is to
CWT and LKH. In addition they contended that the right under
the MHA is neither personal in nature nor exclusive to LJM as
the daughter of CWT and LKH.
[63] As for PPCSB, they too denied the contentions of LJM in their
Defence dated 30 December 2015 and basically put LJM to strict
proof thereof. The discharge of CWT and LKH on 6 June 2015
was halted because of the dispute between LJM and CWP.
According to PPCSB, they have acted in good faith in reliance
on their standard protocols at all material times.
[64] As in all civil litigation, the parties herein are bound by their
pleadings. In the Federal Court case of RHB Bank Bhd
(Substituting Kwong Yik Bank Bhd) v. Kwan Chew Holdings Sdn
Bhd [2010] 2 MLJ 188, James Foong FCJ said as follows at 202
with emphasis added by me:
“It is a cardinal rule in civil litigation that the parties

must abide by their pleadings. This is trite as can be seen
from the decision of this court in Menah Sulong v. Lim Soo
& Anor [1983] 1 CLJ 26 where Ong Hock Thye CJ said:
I think it is necessary in this case to emphasise once

again that the courts should give their decision in strict
compliance with the pleadings. As Lord Radcliffe said in
Esso Petroleum Co Ltd & Anor v. Southport Corporation
[1956] 2 WLR 81 at p 91:
42
If an appellate court is to treat reliance as pedantry or

mere formalism I do not see what part they play in our
trial system.
[34] In fact, the Court of Appeal itself has reiterated this

in Amanah Butler (M) Sdn Bhd v. Yike Chee Wah [1997] 1
MLJ * 25 750; [1997] 2 CLJ 79 where Gopal Sri Ram JCA
(as he then was) said:
It is trite law that a party is bound by its pleadings.”
Moreover the importance of precise pleadings has been

recently re-discussed in the Court of Appeal case of Bank
Islam Malaysia Berhad v. Aquasix Corporation Sdn Bhd &
Ors [2014] 3 MLJ 812 wherein Ramly Ali JCA (now FCJ)
held as follows at 821-822 with emphasis also added by me:
“[19] In deciding a matter before the court, the court must

rely solely on the pleadings prepared by the parties to the
proceedings. This has been stressed by the Federal Court
in the case of Menah Sulong v. Lim Soo & Anor [1983] 1
CLJ 26 where it was held:
I think it is necessary in this case to emphasize once again

that the court should give their decision in strict
compliance with the pleadings.
[20] The same sentiment was also expressed by the

Federal Court in the case of RHB Bank Bhd (substituting
Keong Yik Bank Bhd) v. Kwan Chew Holding Sdn Bhd
[2010] 2 MLJ 188; [2010] 1 CLJ 665 as follows:
On this, we would like to add that it is not the duty of the

court to invent or to create a cause of action or a defence
under the guise of doing justice for the parties lest it be
43
accused of being biased towards one against the other.

The parties should know best as to what they want and it
is not for the court to pursue a cavalier approach to
solving their dispute by inventing or creating cause or
causes of action which were not pleaded in the first
place. Such activism by the court must be discouraged
otherwise the court would be accused of making laws
rather than applying them to the given set of facts.”
Nonetheless, the dispute may in certain appropriate

circumstances go beyond the pleaded case if the opposite party
did not object to the evidence adduced or arguments submitted
as seen in the Supreme Court case of Superintendent of Lands
and Surveys (4 th Div) & Anor v. Hamit bin Matusin & Ors
[1994] 3 MLJ 185.
[65] I will firstly deal with the case against CWP. It seems to me that
the LJM’s cause of action against CWP (and indirectly KSH too)
is ambiguous. It can be that founded in negligence by the
express allegation of breach of duty of care by CWP on the face
of her pleading. At the post trial clarification, Ms. Celine
alluded that it is founded on the tort of interfering with the
rights of LJM as conferred to her by Article 5 of the Federal
Constitution.
[66] I am also mindful that Mr. Yeoh pointed to the Supreme Court
case of Government of Malaysia v. Lim Kit Siang [1988] 2 MLJ
12 wherein Salleh Abbas LP held as follows at 19 on cause of
action with emphasis added by me:
“What then is the meaning of “a cause of action”? “A

cause of action” is a statement of facts alleging that a
plaintiff’s right, either at law or by statute, has, in some
way or another, been adversely affected or prejudiced by
44
the act of a defendant in an action. Lord Diplock in Letang

v. Cooper [1965] 1 QB 232 at P 242 defined “a cause of
action” to mean “a factual situation, the existence of
which entitles one person to obtain from the court a
remedy against another person”. In my view the factual
situation spoken of by Lord Diplock must consist of a
statement alleging that, first, the respondent/plaintiff has
a right either at law or by statute and that, secondly, such
right has been affected or prejudicated by the
appellant/defendant’s act.”
According to him, it is imperative that LJM’s claims must be

founded on a sustainable cause of action.
[67] If I am to take the strict and narrow construction of LJM’s

pleading that breach of the duty of care denotes negligence as
commonly understood, the immediate question that arises is
whether there is a duty of care owed by CWP to LJM in the
factual circumstances as pleaded? I have earlier held as follows
in Malayan Banking Berhad v. Prelude Manufacturing Sdn Bhd
& 6 Ors [2015] 2 AMR 870 with emphasis added:
“[50] Generally, the law on negligence is lucidly set out

by Gopal Sri Ram JCA (as he then was) in the Court of
Appeal case of Arab Malaysian Finance Bhd v. Steven
Phoa Cheng Loon & 81 Ors (and 3 Other Appeals) [2003]
2 AMR 6; [2003] 1 CLJ 585 that:
First, he must show he owed a duty of care by the

defendant to take reasonable care. Second, that the
defendant breached that duty, third, that the resultant
breach caused the harm in question and fourth, that he
(the plaintiff) suffered damage that is not too remote.
45
[51] The Court of Appeal recently in CIMB Investment

Bank Sdn Bhd v. Ernst & Young (and Another Appeal)
[2014] 6 CLJ 438 dealt with negligence in the context of
commercial economic loss. In that case, Anantham
Kasinather JCA held at p 458 that:
In our judgment, any examination as to the tests to be

applied in determining the existence of the common law
duty of care in cases of economic loss must commence with
the “useful guides to courts among the Commonwealth
when deciding to approach a novel situation in point
imposing a duty of care” (per Gopal Sri Ram JCA in KGV
Associates Sdn Bhd v. The Co-operative Central Bank Ltd
[2006] 5 AMR 321; [2006] 4 CLJ 241 representing a
summary of the pronouncements by Lord Bingham in Her
Majesty’s Commissioners of Customs and Excise v.
Barclays Bank [2007] 1 AC 181):
(a) First, there are cases in which one party can

accurately be said to have assumed responsibility for what
is said or done to another. In this regard the finding of an
assumption of responsibility may obviate the need for
further enquiry. Otherwise further enquiry is needed;
(b) Second, the assumption of responsibility must be

applied objectively, and is not based on what the defendant
thought or intended;
(c) Third, the threefold test in Caparo does not itself

provide a straightforward answer to the “vexed question”
of whether, in a novel situation a party owes a duty of
care. As Lord Roskill has said in Caparo, at p 628, “there
is no simple formula or touchstone” in determining duty of
care in any given case;
46
(d) Fourth, the incremental test is of little value in itself,

and is only helpful when used in combination with a test or
principle that identifies the legally significant features of
a situation; and
(e) Fifth, the majority outcome of the leading cases are in

almost every instance sensible and just, irrespective of the
test applied to achieve the outcome. In this regard
attention is concentrated “on the detailed circumstances of
the particular case and the particular relationship between
the parties in the context of their legal and factual
relationship as a whole”.
[53] ...The incremental approach was traditionally used

to develop novel situations of duty of care as seen in the
judgment of Brennan J in Sutherland Shire Council v.
Heyman [1985] 157 CLR 424 at 481 and approved by
Lord Bridge in Caparo Industries Plc v. Dickman [1990]
2 AC 605. To adopt this approach, case authorities of
related scenarios would be necessary, if not essential to
assist the court to find the duty. Nevertheless, Alauddin
Mohd Shariff CJ Malaya (as he then was) in the Federal
Court case of The Co-operative Central Bank Ltd v. KGV
& Associates Sdn Bhd [2008] 1 AMR 789 at 798
paragraph [29]; [2008] 2 MLJ 233 at 244 paragraph [29]
held that; “… The ultimate question is whether the
detailed facts and circumstances of the case support the
finding of a duty of care” in moving away from rigid
adherence to the incremental approach.”
[68] This Civil Suit herein is the first of its kind in Malaysia
according to the parties. Ms. Celine did not proffer any
47
Malaysian case authority of related scenarios in tort particularly

on negligence. That notwithstanding and now after having read
the parties’ extensive post-trial submissions of the OS and the
Civil Suit and heard their oral clarification, I am reluctant to
hold the existence of a duty of care as a matter of principle
based on the facts and circumstances of this case by reason that
the grievance allegedly suffered by LJM is not associated with
carelessness on the part of CWP and/or KSH. The dispute
between them is generally about their competing rights over the
custody and care of CWT and LKH. Consequently, it follows
that LJM’s case would fail in limine if analysed from her
pleadings strictly.
[69] Be that as it may, Ms. Celine strenuously contended that CWP

(and KSH indirectly) had committed the tort of infringing LJM’s
personal right of custody and care of CWT and LKH on the
broader basis of her pleaded case. According to her, the
categories of tort are not closed. This right of LJM can be traced
to the principle of parens patriae that is embodied in the
common law, if not otherwise also conferred by Article 5 of the
Federal Constitution.
[70] In Wikipaedia - The Free Encyclopaedia, it is provided as

follows with emphasis added by me: Parens patriae is Latin for
“parent of the nation” (lit., “parent of the fatherland”). In law,
it refers to the public policy power of the state to intervene
against an abusive or negligent parent, legal guardian or
informal caretaker, and to act as the parent of any child or
individual who is in need of protection. For example, some
children, incapacitated individuals, and disabled individuals
lack parents who are able and willing to render adequate care,
thus requiring state intervention.
48
Parens patriae relates to a notion initially invoked by the King’s

Bench in the sixteenth century in cases of non compos mentis
adults. The notion dates from at least 1608, as recorded in
Coke’s Report of Calvin’s Case, wherein it is said “that moral
law, honora patrem...doubtless doth extend to him that is pater
patriœ.”
The parens patriae doctrine was gradually applied to children

throughout the seventeenth and eighteenth centuries, and has
since evolved from one granting absolute rights to the sovereign
to one more associated with rights and obligations of the state
and courts towards children and incapacitated adults.
In most jurisdictions, this appears in the principle that makes

the protection of the best interests of any child the first and
single most important concern of the courts. For example, in
any proceedings affecting the validity of a marriage, the
children will not be parties in their own right, nor will they be
parties to any agreement that the spouses may make. In these
proceedings, the courts will often be invited to accept and
enforce any agreement between a husband and wife regarding
parental responsibility for their children. This will usually be
done so long as the agreement is seen to be in the best interests
and welfare of the children. Courts are not obliged to invoke the
parens patriae doctrine in cases involving children and not all
courts, particularly newer courts such as the Australian Family
Court (est 1975), have specific parens patriae jurisdiction.
The same principles apply to individuals whose mental capacity

is impaired and who are being abused by carers or other
individuals, whether family members or otherwise. Since these
individuals cannot protect themselves, the courts have an
inherent jurisdiction to appoint a guardian ad litem for
49
particular proceedings. In English Law, long-term care is

arranged through the Court of Protection...”
[71] It therefore seems to me that the principle of parens patriae

pertains to the jurisdiction of the court rather than conferment of
specific rights to any individual to safeguard the interests of a
mentally incapacitated person. In this regard, it is unhelpful to
advance LJM’s case against CWP and KSH. The jurisdiction of
Malaysian courts to protect the mentally disordered person is
not in doubt. Besides the reception of the common law of
England that imported the principle of parens patriae vide the
Civil Law Act 1956, the jurisdiction has now been statutorily
provided in s. 24(e) of the Courts of Judicature Act 1964.
[72] As to Article 5 of the Federal Constitution, it is apt that I

reproduce it in full:
“5. Liberty of the Person
(1) No person shall be deprived of his life or personal

liberty save in accordance with law.
(2) Where complaint is made to a High Court or any judge

thereof that a person is being unlawfully detained the
court shall inquire into the complaint and, unless satisfied
that the detention is lawful, shall order him to be produced
before the court and release him.
(3) Where a person is arrested he shall be informed as

soon as may be of the grounds of his arrest and shall be
allowed to consult and be defended by a legal practitioner
of his choice.
(4) Where a person is arrested and not released he shall

without unreasonable delay, and in any case within
50
twenty-four hours (excluding the time of any necessary

journey) be produced before a magistrate and shall not be
further detained in custody without the magistrate”s
authority:
Provided that this Clause shall not apply to the arrest or

detention of any person under the existing law relating to
restricted residence, and all the provisions of this Clause
shall be deemed to have been an integral part of this
Article as from Merdeka Day:
Provided further that in its application to a person, other

than a citizen, who is arrested or detained under the law
relating to immigration, this Clause shall be read as if
there were substituted for the words “without
unreasonable delay, and in any case within twenty-four
hours (excluding the time of any “necessary journey)” the
words “within fourteen days”:
And provided further that in the case of an arrest for an

offence which is triable by a Syariah court, references in
this Clause to a magistrate shall be construed as including
references to a judge of a Syariah court.
(5) Clauses (3) and (4) do not apply to an enemy alien.”
[73] In this respect, Ms. Celine referred to the Court of Appeal case
of Muhamad Juzaili bin Mohd Khamis & Ors v. State
Government of Negeri Sembilan & Ors [2015] 3 MLJ 513
wherein Mohd Hishammudin JCA held as follows at 524 – 525
with emphasis added by me:
“Infringement of the right to live with dignity
51
[42] In Lembaga Tatatertib Perkhidmatan Awam, Hospital

Besar Pulau Pinang v. Utra Badi a/l K Perumal [2000] 3
MLJ 281; [2000] 3 CLJ 224 Gopal Sri Ram JCA (as he
then was) in delivering the decision of the Court of Appeal
(the other members of the panel comprising Siti Norma
Yaakob JCA (as she then was) and Mokhtar Sidin JCA)
explained that the word ‘life’ in art 5(1) includes the right
to live with dignity. In his words, (at p 294 (MLJ); p 239
(CLJ)):
… it is the fundamental right of every person within the

shores of Malaysia to live with common human dignity.
[43] The learned judge quotes what Bhagwati J said in the

Indian Supreme Court case of Francis Coralie Mullin v.
Union of India [1981] AIR 746 at p 753:
But the question which arises is whether the right to life is

limited only to protection of limb or faculty or does it go
further and embrace something more. We think that the
right to life includes the right to live with human dignity
and all that goes along with it namely, the bare
necessaries of life such as adequate nutrition, clothing and
shelter over the head and facilities for reading, writing
and expressing oneself in diverse forms, freely moving
about and commingling with fellow human beings.
...
[48]... It has also been established by judicial authorities

that the word ‘life’ in art 5(1) means more than mere
animal existence: it also includes such rights as
livelihood and the quality of life. In Tan Tek Seng v.
Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1
52
MLJ 261 Gopal Sri Ram JCA, in delivering the majority

judgment of the Court of Appeal (the other majority
member being Ahmad Fairuz J (as he then was); NH Chan
JCA dissenting) said (at p 288):
Adopting the approach that commends itself to me, I have

reached the conclusion that the expression ‘life’ appearing
in art 5(1) does not refer to mere existence. It incorporates
all those facets that are an integral part of life itself and
those matters which go to form the quality of life. Of these
are the right to seek and be engaged in lawful and gainful
employment and to receive those benefits that our society
has to offer to its members. It includes the right to live in
a reasonably healthy and pollution free environment.
[49] The above principle was approved by the Federal

Court (the panel comprising Richard Malanjum CJ
(Sabah & Sarawak), Hashim Yusof FCJ and Gopal Sri
Ram FCJ) in Lee Kwan Woh v. Public Prosecutor [2009]
5 MLJ 301; [2009] 5 CLJ 631 where Gopal Sri Ram FCJ
in delivering the judgment of the court said (at p 314
(MLJ); p 643 (CLJ) para [14]):
[14] When art 5(1) is read prismatically and in the light

of art 8(1), the concepts of ‘life’ and ‘persona liberty’
housed in the former are found to contain in them other
rights. Thus, ‘life’ means more than mere animal
existence and includes such rights as livelihood and the
quality of life (see Tan Tek Seng’s case).”
[74] Ms. Celine further submitted that it has been made clear by
Ariffin Zakaria CJ (Malaya) (now CJ) in his article entitled The
Malaysian Perspective on Human Rights and Freedom in 21 st
Century and the Role of the Court that the Human Rights
53
Commission of Malaysia Act 1999 (“SUHAKAM Act”) that

incorporated the Universal Declaration of Human Rights 1948
has constitutional status. According to her, Article 5 of the
Federal Constitution hence ought to be interpreted in the same
spirit of Article 2 and Article 8 of the English Human Rights
Act 1988 which provides:
“Article 2 Right to life
1. Everyone’s right to life shall be protected by law. No

one shall be deprived of his life intentionally save in the
execution of a sentence of a court following his conviction
of a crime for which this penalty is provided by law.
Article 8 Right to respect for private and family life
1. Everyone has the right to respect for his private and

family life, his home and his correspondence.”
As illustration, she referred to the three English cases.
In EM (Lebanon) v. Secretary of State for the Home Department

[2009] 1 All ER 559, Lord Bingham held as follows at 579-580:
“The importance of the right to respect for family life has

been recognised in Strasbourg and domestic
jurisprudence. The Strasbourg case law has recognised the
bond which arises at birth between child and parent
(Ahmut v. Netherlands (19970 24 EHRR 62 (para60) and
reference has been repeatedly made to the mutual
enjoyment by parent and child of each other’s company as
a fundamental element of the family life...”
54
Then in Sheffield City Council v. S (by his litigation friend the

Official Solicitor) and another [2002] EWHC 2278 (Fam),
Munby J held as follows:
“Family life continues, both as a matter of fact and in law,

after a child has reached the age of majority and even
after emancipation.”
Finally in B and another v. Home Office [2012] 4 All ER 276,

Richard Salter J held as follows at 311:
“[154] However, to the extent that Article 8 does impose

such positive obligations, they are not absolute. That
appears from the “valuable” and helpful decision of the
Court of Appeal in the conjoined cases of Anufrijeva v.
Southwark London BC, R (on the application of N) v.
Secretary of State for the Home Dept, and R (on the
application of M) v. Secretary of State for the Home Dept.
In those cases, the claimants were asylum seekers who
claimed damages under s. 8 of the 1998 Act for breaches
of their art 8 rights, on the grounds, variously, that the
council had failed to discharge their statutory duty to
provide them with accommodation that met the special
needs of a family member, substantially impairing the
quality of their family life; or, in other cases, that
maladministration and lack of adequate financial support
in the handling of their asylum claims had infringed their
rights to respect for private and family life.
[155] Giving the judgment of the court upholding the

dismissal of the claimants’ claim, Lord Woolf CJ noted [ the
link between the right to private life and the right to family
life, observing that ‘If members of a family are prevented
from sharing family life together, art 8(1) is likely to be
55
infringed’. He also noted the existence of positive

obligations upon a state under art 8 and Glaser v. UK, and
the ‘wide variety of situations [recognised by the
European Court of Human Rights] in which states are
under a positive obligation to introduce systems to
preserve respect for family life’.”
[75] Ms. Celine also submitted that the right to family life in a multi
cultural society such as Malaysia included the relevant cultural
background of the person. In this regard, LJM comes from
Chinese heritage and she is thus expected to care for her aged
parents out of filial piety: see the article by Xiaoying Qi entitled
Filial Obligation in Contemporary China: Evolution of the
Culture-system.
[76] In summary, Ms. Celine concluded that CWP and KSH have
consequently committed the tort of interfering with and
prevented LJM from cultivating the parent-child bond in the
circumstances. By so doing, LJM was unable to enjoy the right
to family life enshrined in the Federal Constitution for
deprivation of the company of her parents that resulted in
unnecessary stress and emotional trauma brought upon her.
[77] Mr. Yeoh however replied that LJM has no inherent or natural
personal right to the custody and care of CWT and LKH and
correspondingly by has no right to determine their care and
medical needs or treatment. According to him, no one or for that
matter any near relative or next of kin has the personal right to
determine the medical care and treatment on behalf of their aged
parents, whether competent or otherwise. He referred to I Kennedy
& A Grubb Medical Law, 2 nd edn. (1994) as follows at 276:
56
“Can anyone consent to medical treatment on behalf of an

incompetent adult? Professor Skegg puts the issue well in
his book law, Ethics and medicine, at pp 72, 73:
It is sometimes stated or assumed that, where a patient is

incapable of consenting, an effective consent may be given
by his spouse, or by some near relative. Unfortunately,
those who hold this view do not indicate the grounds on
which it is based...The better view is that there is no
general doctrine whereby a spouse or near relative is
empowered to give a legally effective consent to medical
procedures to be carried out on an adult. Of course,
doctors are sometimes justified in proceeding without the
consent of the patient. But this is not because the consent
of others justifies a doctor in proceeding without the
patient’s consent, but because in the circumstances the
doctor is justified in proceeding despite the absence of
legally effective consent.”
[78] He also referred to the English case of Re S (hospital patient :

courts jurisdiction) [1995] 3 All ER 290. The principal issue in
that case concerns the court’s jurisdiction to grant declaratory
relief as sought. The background facts are however to some
extent similar by reason that it involved competing claims as the
result of the inability of a mentally incapable adult to exercise
his right to choose the nature and extent of physical care.
Consequently, I think it is helpful to reproduce the following
headnotes of the facts of the case:
S, a Norwegian national with considerable resources,

travelled all over the world in the course of his career as a
photographer. His wife and their adult son lived in
Norway. In 1989 S met the plaintiff, Mrs A, who thereafter
57
accompanied him on his trips. In May 1991 they set up

house together in England, in a house bought with S’s
money, but registered in Mrs A’s name. S also gave Mrs A
a power of attorney entitling her to operate some of his
bank accounts. In September 1993, when he was aged 74, S
suffered a serious stroke and was admitted to a private
hospital near Mrs A’s house. Mrs A dealt with the payment
of his account at the hospital under her power of attorney.
She visited S very regularly and showed close interest in
his welfare. On 10 September S’s son attempted to remove
S from the hospital and take him to a private aircraft
which would carry him to Norway. That action had been
planned in collusion with S’s wife and was known to his
consultant; the hospital staff however had not been
informed about the proposed movement and S himself was
in no position to express any preference or resist any
course of action. Mrs A heard of the proposed movement
after S had left the hospital and was on his way to the
airport. The police were alerted and the ambulance
carrying S to the airport was intercepted. Mrs A
subsequently secured an injunction over the telephone
from the judge to restrain the son from removing S from
the jurisdiction. S was then returned to the hospital. Mrs A
then applied to the court for a declaration that it would be
unlawful to remove S from the jurisdiction, because it was
not in his best interests to do so.
Sir Thomas Bingham MR held as follows at 302 – 303 with

emphasis added by me:
“(1) The law respects the right of adults of sound mind to

physical autonomy. Generally speaking, no one is entitled
to touch, examine or operate upon such persons without
58
their consent, express or implied. It is up to such persons

to give or withhold consent as they wish, for reasons good
or bad.
(2) This simple rule cannot be applied in cases of minors

and those subject to serious mental illness, because they
may be unable to form or express any, or any reliable,
judgment of where their best interests lie. In such
situations the law provides for parents or next friends or
guardians to speak for the minor or the mental patient
...
(7) When S suffered his stroke, it is plain that the

plaintiff assumed the duty of ensuring that he was
properly cared for. Having assumed that duty, she was at
risk if she failed to discharge it: see R v. Stone, R v.
Dobinson [1977] 2 All ER 341, [1977] QB 354. She did
discharge it. She arranged for S to be treated and cared
for at the private hospital. If she made that contract as a
principal, no one is prima facie entitled to vary or
interfere with performance of it without the consent of
either contracting party. If, perhaps more probably, she
made the contract as an agent for S, deriving her authority
from necessity, then she remains an agent authorised to
safeguard the performance of the contract unless and until
the best interests of S are shown to require a change in the
arrangements. Although the wife and son of S have ties of
affinity and blood with him which the plaintiff lacks, these
ties confer no legal right to determine the course of S’s
treatment: see Re T (adult: refusal of medical treatment)
[1992] 4 All ER 649 at 653, [1993] Fam 95 at 103 per
Lord Donaldson of Lymington MR. If it is necessary for
59
the plaintiff to demonstrate in herself a specific legal

right which is liable to be infringed by the proposed
action of the wife and the son, then in my view the
plaintiff does so. But to insist on demonstration of a
specific legal right in this sensitive and socially
important area of the law is, in my view, to confine the
inherent jurisdiction of the court within an inappropriate
straitjacket. The matters which the learned judge listed in
her judgment are in my view quite enough to show that the
plaintiff is far from being a stranger or an officious
busybody, and that is in my view enough to give the court
jurisdiction.”
[79] There are todate no Malaysian cases in point here and this Civil
Suit is in that sense novel. Notwithstanding the persuasive
submissions of Ms. Celine, I am generally hesitant to find a
specific right conferred by the Federal Constitution based on or
as an extension of one of the fundamental liberties accorded in
Part II of the same unless it is just, obvious and imperative. It
must be appreciated that creation of rights correspondingly
brings about creation of duties that may have profound and
pervasive impact on present societal norms: see Wesley N.
Hohfeld’s Fundamental Legal Conceptions As Applied in
Judicial Reasoning (1917).
Substantive private rights should therefore normally be already

found in the corpus of the common law or written law, otherwise
the creation or recognition of a new specific private right has to
await legislation by parliament. In this regard, I have recently in
Lee Lai Cheng v. Lim Hooi Teik [2016] AMEJ 2089 refused
recognition of the “right to pedigree” as advanced by counsel to
confer upon the minor a right to know his or her true identity
and to have the possibility of contact with each natural parent in
60
the context of the Federal Constitution. In that case, I was

requested to order the putative father to undergo DNA tests.
[80] Be that as it may, I am further of the view that the English

Human Rights Act 1988 and the English cases relied by Ms.
Celine in relation to private and family life rights do not support
the proposition advanced by her. I think they are more
concerned with the sharing of family life and mutual enjoyment
of normal parent-child bonding. They have little, if not, nothing
to do with custody and care of disabled parents by the child
particularly mentally disordered parents. In any event, the
English Human Rights Act 1988 especially Article 8 thereunder
is inapplicable in Malaysia. Our SUHAKAM Act has no such
equivalent provision. The upshot is that the English cases cited
neither sufficiently nor cogently convince me that I ought to
recognise the right put forth by LJM as part or an extension of
the right to life or even the broader right to live with dignity
expounded in Muhamad Juzaili bin Mohd Khamis & Ors v. State
Government of Negeri Sembilan & Ors (supra) under Article 5
of the Federal Constitution.
I think the English common law position on care and custody of

disabled person is best gleaned from the English court of appeal
case of Re S (hospital patient: courts jurisdiction)(supra). It is
seen that the respondent therein was found to have the right to
care for the patient over the appellants because she had already
prior thereto assumed responsibility for caring the patient. The
court followed its earlier case of R v. Stone, R v. Dobinson
[1977] 2 All ER 341 wherein Geoffery Lane LJ held that once
the person assumed responsibility to care for a patient, she is
obliged either to summon help or else to continue herself to care
for the patient. It is plain that the right of the respondent in Re S
(hospital patient: courts jurisdiction)(supra) that justified the
61
declaration sought from the court wasn’t therefore an inherent or

natural personal right but that acquired by her prior action. As a
matter of fact, I find and hold from the evidence adduced before
me that LJM has neither established nor proven that she had sole
and exclusive custody and care of CWT and/or LKH and had
thereby assumed the duty and responsibility of their continuing
care prior to the filing of this Civil Suit unlike that of Mrs A
towards S in the aforesaid case.
I further noted that there is also non existence of inherent or

natural personal right of relatives and next of kins in the context
of medical treatment of patients as illustrated in the English
court of appeal case of Re T (adult : refusal of treatment)[1992]
4 ALL ER 649 wherein Lord Donaldson MR succinctly held as
follows at 653:
“There seems to be a view in the medical profession that

in such emergency circumstances the next of kin should be
asked to consent on behalf of the patient and that, if
possible, treatment should be postponed until that consent
has been obtained. This is a misconception because the
next of kin has no legal right either to consent or to refuse
consent.”
[81] As for the principle of filial piety advanced by LJM, I find that
to be merely a moral or social duty customary amongst the
Chinese race predominantly. Whilst the principle may appear
noble and just, it is however in my view neither obvious nor
compelling to qualify as an incident of the fundamental right to
life accorded by Article 5 of the Federal Constitution. The
Malaysian society is diverse and I can’t conclude with certainty
that the principle of filial piety is universally accepted
throughout the nation.
62
[82] Consequently, I find and hold that LJM does not have the
specific private and personal right of custody and care of CWT
and LKH accorded to her either by the common law or Federal
Constitution.
[83] In my view, the applicable specific private right in the

circumstances herein has already been statutorily provided by
the MHA. LJM as the adopted daughter has only the inchoate
and contingent right to be appointed in the committees of person
and estate pursuant to s. 58(1) or person pursuant to s. 73(2) of
the MHA. This right only crystallizes and accrues if and when
she is so appointed by the court. Nonetheless, I am also of the
view that CWP and KSH as the brother (as well as brother in
law) and sister in law respectively likewise have the inchoate
and contingent right to be so appointed by reason of my findings
in paragraphs 48 to 49 hereinabove. It follows that unless and
until the right has crystallized and accrued to the person, there
can be no question of infringement by anybody else.
[84] In the circumstances herein, LJM wasn’t yet appointed by the

court under any provision of the MHA on 15 September 2015
when she filed the Civil Suit. I therefore find and hold that there
wasn’t any infringement of her personal private right by CWP
and KSH at the point in time. Accordingly, LJM’s claims that
include damages are unsustainable and most therefore fail.
[85] Moving on to LJM’s claim against PPCSB, the pleaded case is to

my mind unclear. The cause of action appears to be the tort of
conspiracy between PPCSB and CWP acting in concert to
prohibit LJM from exercising her purported personal right of
care for CWT and LKH. However it appeared to be founded on
negligence post trial as discerned from the written submissions
and clarification.
63
[86] In this regard, Ms. Celine emphasized that PPCSB did not act in
good faith in respect of LJM’s attempted discharge of CWT and
LKH from Penang Gleneagles on 6 June 2015. This is firstly
because PPCSB wrongly relied on the admission record forms of
CWT and LKH wherein CWP had been named as the next of kin.
According to her, PPCSB had at all material times never verified
whether CWP is indeed the next of kin. Furthermore, the
admission record form is merely for admission and payment by
the patient or the guarantor. The specific purpose of the next of
kin inserted therein is merely for contact purposes. Ms. Celine
also pointed out by the conduct of the doctors in Penang
Gleneagles, LJM had been regarded as a next of kin as well by
PPCSB because she was consulted and consent obtained from
her in respect of several medical procedures relating to her
parents such as blood transfusion, execution of “Do Not
Resuscitate (DNR)” form, execution of “Discharge at Own Risk”
form, etc. In addition, Ms. Celine submitted that PPCSB’s
reliance on the admission record form being part of Penang
Gleneagles standard protocol is disingenuous because no such
protocol existed and even if it did, it is void or unenforceable by
reason that it contravened the Private Healthcare Facilities and
Services Act 1998. The Malaysian Medical Council Guidelines
were also not followed.
[87] Ms. Celine went on to submit PPCSB on 6 June 2015 took the
position that either LJM or CWP/KSH ought to obtain a court
order before PPCSB would discharge CWT and LKH. The
dispute over the discharge was subsequently mediated but the
parties could not reach an amicable resolution. According to her,
the conduct of PPCSB gave LJM a legitimate expectation that
PPCSB would only discharge CWT and LKH following a court
order or settlement agreement between the parties. However
PPCSB unexpectedly on 9 September 2015 threatened LJM that
64
unless a court order is obtained by 5.30pm on 17 September

2015, PPCSB would discharge CWT and LKH into the custody
and care of CWP/KSH. It was an unrealistic and unreasonable
time frame imposed upon LJM. As the result, Ms. Celine
submitted that arising from LJM’s aforesaid legitimate
expectation, PPCSB owed a duty of care to persons who have
legal standing as the closest relative analogous to the duty of
care owed by PPCSB to its patients following the medical
negligence case of Gurdit Kaur Jaswant Singh v. Tung Shin
Hospital & Anor [2013] 1 CLJ 699. In that case, Rozilah Yop JC
(now J) held as follows with emphasis added by me:
“[40] The plaintiff was surprised that her uterus was

removed shows that she did not understand the nature of
the operation being performed on her. It is the duty of the
second defendant to ensure that the plaintiff fully
comprehends the nature of the surgery before the
operation was done on her. It is not enough for the
second defendant to proceed with the surgery just
because the plaintiff signed the consent form.
...
[65] After I had scrutinized the consent form, I am of the

opinion that the consent from the husband should be
obtained especially for this alleged type of operation (ie,
to remove the uterus of the plaintiff as there was no
possibility of getting pregnant after the removal of the
uterus).”
[88] Ms. Fazleeza Bt. Azli of counsel for PPCSB basically retorted
that PPCSB had at all material times taken a neutral stand in the
dispute between LJM and CWP/KSH and made it clear that
PPCSB would abide by any order granted by the court. As to the
65
named next of kin stated in admission record forms, CWP’s

name was volunteered and willingly inserted during admission
of the patients. PPCSB had no knowledge of the precise
relational status between LJM and CWP/KSH. PPCSB moreover
did not suspect any relationship problems between them. That
aside, the doctors and staff of Penang Gleneagles had at all
material times acted professionally. In the premises, PPCSB is
not blameworthy and should therefore not be liable to LJM in
any way including the hefty damages claimed by LJM against
PPCSB such as for refund of medical fees, damages for mental
and emotional distress, exemplary and punitive damages.
[89] From the evidence that emerged before me, I am firstly not
satisfied that there is a standard protocol on admission and
discharge policy in force and administered by PPCSB at the
material time. Despite my request, no document of such a nature
has been produced by PPCSB. I am unable to accept that there
existed a protocol otherwise than a written one given the large
size of Penang Gleneagles which I take judicial notice.
Moreover as pointed by Ms. Celine, it is provided in s. 35 of the
Private Healthcare Facilities and Services Act 1998 as follows:
“35. Policy statement
“(1) A licensee of a private healthcare facility or service

or the holder of a certificate of registration or the person
in charge of a private healthcare facility or service shall
make available, upon registration or admission, as the
case may be, its policy statement with respect to the
obligations of the licensee or holder of the certificate of
registration to patients using the facilities or services.
(2) A policy statement shall cover such matters as may be

prescribed.”
66
If there is any standard protocol, it must in my view be or have

been incorporated in the policy statement. There is no evidence
that PPCSB had given a copy of the policy statement to CWT
and LKH at the material time of their admission into Penang
Gleneagles.
[90] In the circumstances, the status and effect of PPCSB’s

admission record form could not in law be part of the standard
protocol or policy statement of PPCSB. At best, it is something
unilaterally known only to PPCSB but not the patients i.e. CWT
and LKH, the next of kin i.e. CWP and the guarantor i.e. LJM
named therein. In this regard, I agree with Ms. Celine that the
admission record form is understood and meant to be for
administrative and communication purposes only.
[91] It therefore follows that PPCSB cannot lawfully discharge CWT

and LKH to CWP, the named next of kin in the admission record
form by reason that there was no consensus of contractual status
to that effect. The only lawful person who can discharge and
take custody of them in the circumstances is the one appointed
by the court under the MHA. Thus the declared stand taken by
PPCSB on 9 September 2015 is in my view wrongful.
[92] Nevertheless based on my findings in paragraphs 82 and 83

hereinabove, none of the parties, to wit, LJM, CWP and KSH
had the personal right to discharge and take custody of CWT and
LKH at that point of time too. I however expected PPCSB being
one of the leading private hospital licensee and operator in
Penang to be pro-active by filing an interpleader type of
declaratory relief in court to seek for directions in this difficult
and uncertain scenario instead of compelling one of the
disputant parties to do so by PPCSB’s unilaterally declared
albeit wrongful stand taken on 9 September 2015.
67
[93] That notwithstanding, I nonetheless find and hold that LJM does
not have an actionable cause of action against PPCSB in
conspiracy as seemingly pleaded or negligence as later so
submitted.
[94] The elements of actionable conspiracy is set out in the Court of

Appeal case of SCK Group Bhd & Anor v. Sunny Liew Siew
Pang & Anor [2011] 4 MLJ 303 where Low Hop Bing JCA said:
“For tort of conspiracy, there must be an unlawful object

or if not in itself unlawful it must be brought about by
unlawful means. There must be coexistence of an
agreement with an overt act causing damage to the
plaintiffs. The tort is complete if the agreement is carried
into effect, thereby causing damage to the plaintiffs. In
order to succeed in a claim based on the tort of
conspiracy, the plaintiffs must establish (i) an agreement
between two or more persons; (ii) for the purpose of
injuring the plaintiff ; and (iii) acts done in execution of
that agreement resulted in damage to the plaintiff.”
These elements must be pleaded sufficiently as held by the

Court of Appeal in Renault SA v. Inokom Corp. Sdn Bhd & Anor
and other appeals [2010] 5 MLJ 394.
[95] Again from the evidence adduced, I find that LJM has not
satisfied me there was an agreement between PPCSB and CWP
to injure LJM. Accordingly, the reliance by LJM on the tort of
conspiracy is unsustainable notwithstanding that she might have
gone through mental distress and anguish.
[96] As for negligence, it is arguable whether PPCSB owed a duty of

care to LJM in the unique circumstances herein. The suggested
duty of care seems in brevity to be the duty to ensure that
68
PPCSB discharges CWT and LKH to right person concerned.

Based even on the liberal instead of the strict incremental
approach as alluded to in paragraph 67 hereinabove, I am
disinclined to hold the existence of the duty of care by reason I
am not convinced that it is just and reasonable to impose such
duty upon hospitals generally. This is so because it is in reality
often difficult to identify the right person without the prior
intervention and assistance of the court unless there is clear
contractual provision that dealt with it amongst the hospital,
patients and relatives/next of kins. In addition, even if there was
such a duty, I find and hold that the duty had not been breached
because LJM did not at the time have the accrued personal right
to get custody of CWT and LKH as found in paragraphs 82, 83
and 92 hereinabove. Hence PPCSB wasn’t negligent contrary to
LJM’s accusations.
[97] Consequently, the damages claimed by LJM against PPCSB is

unsustainable and must hence also fail. I further observed that
the damages claimed against PPCSB included the hospital
expenses paid out by LJM for the continuing stay of CWT and
LKH in Penang Gleneagles since 6 June 2015. This is wrong and
cannot, in any event, be awarded in principle because CWT and
LKH in fact enjoyed the benefit of the stay and medical
treatment in Penang Gleneagles throughout the time.
[98] I am nevertheless mindful that PPCSB cannot also take

advantage of its own wrongful conduct by having threatened to
discharge CWT and LKH to CWP on 9 September 2015: see
Pentadbir Tanah Daerah Petaling v. Swee Lin Sdn Bhd [1999] 3
MLJ 489 and Su Wee Lip @ Phillip Su v. Hj Lassim Abdul
Rahman [2009] 1 MLJ 580. It has now been proven by my
decision in the OS at paragraph 52 hereinabove that CWP isn’t
the correct person and I reiterate my views in paragraph 92
69
hereinabove that PPCSB ought to have brought proceedings in

court for an interpleader type declaratory relief with costs to be
borne by the disputing parties. In such an instance, PPCSB
should in my view in principle be able to recover its costs from
the losing or both disputing parties, whichever is the outcome.
However in the situation herein where LJM was constrained to
bring the Civil Suit instead including against PPCSB albeit
unsuccessfully, I hold that justice requires PPCSB to absorb its
own costs in this Civil Suit. Put simply, PPCSB ought not to
have taken the position that is seemingly partisan against LJM
but in the same vein took the “wait and see” attitude.
Other Related Matters
[99] As mentioned in paragraph 10 hereinabove, CWP and KSH on

18 April 2016 filed their application to strike out the Civil Suit
but I deferred hearing the application for it to be determined at
the conclusion of the trial simultaneously with the Civil Suit.
Based on my foregoing reasons in paragraphs 64 to 83 to
dispose the Civil Suit, I hold it is clear that this isn’t a plain and
obvious case that could be summarily determined in the favour
of CWP and KSH following the Supreme Court case of Bandar
Builders Sdn Bhd v. United Malayan Banking Corporation Bhd
[1993] 3 MLJ 36. The application is therefore dismissed.
[100] I am mindful that Mr. Yeoh has during clarification implored

me to order the will of LKH as well as CWT (if there is one) to
be produced, read and admitted in evidence. According to him,
the will may reveal the testator’s intention as to who should
care for him/her if he/she is incapacitated as well as the
identity of the beneficiary of the estate. I however refused to
order the production by reason that the prejudicial effect to my
70
mind far outweighs the probative value of it. The will is

undoubtedly a document that is private and confidential and I
must accordingly respect the wishes of the testator, as in all will
cases, not to have them disclosed before death. The sole benefit
of advance disclosure in the hope that the will is a “living will”
incorporating the provision for care before death is to be found
therein is extremely slim. There is neither any cogent evidence
nor indication of such a provision existing therein such as that
from the solicitor who aided the will preparation. The identity
of the beneficiary of the estate to me is irrelevant and there is
also no possibility that the will can be altered too by a codicil
or the making of a new one because both LKH and CWT have
been found by the court to be now mentally disordered. Finally
I do not think that there will be difficulty for the committee of
estate to trace the assets of CWT and LKH without seeing the
will. There are other means such as the Bankers’ Books
(Evidence) Act 1949 amongst them.
Conclusion
[101] I am relieved at this moment of making my judgment that both

CWT and LKH are still alive even though their mental health
condition has not improved if not deteriorated since the
commencement of this expedited and costly litigation. This
has not been a judicial exercise in futility.
[102] For the foregoing reasons, I hereby make the following Orders
in respect of the OS:
(i.) LJM is appointed to the committee of estate of CWT

pursuant to s. 58(1) of the MHA with power of
management and as the person to take custody and care
of CWT pursuant to s. 73(2) of the MHA;
71
(ii.) LJM is appointed to the committee of estate of LKH

pursuant to s. 58(1) of the MHA with power of
management and as the person to take custody and care
of LKH pursuant to s. 73(2) of the MHA;
(iii.) LKH and CWT shall be discharged from Penang

Gleneagles and transferred to Columbia Hospital for the
short term until LJM is able to arrange for an equivalent
accommodation either in the PJ House or elsewhere;
(iv.) The medical expenses incurred by CWT and LKH in

Penang Gleneagles during their admission into Penang
Gleneagles in May 2015 until their discharge therefrom
shall be paid out from their respective estate. Any
expenses paid out by LJM todate in connection therewith
shall be reimbursed to LJM from their respective estate;
(v.) LJM shall meet and report to the Registrar on the

management of the affairs of the estate of CWT and LKH
once every six months (or such other frequency as the
Registrar deems fit) pursuant to s. 61 of the MHA. In
this connection, CWP and KSH are permitted to attend
the aforesaid meetings; and
(vi.) Each party shall bear his/her own costs.
[103] For the foregoing reasons too, I hereby make the following
orders in respect of the Civil Suit:
(i.) The claims of LJM in her Amended Statement of Claim

dated 13 November 2015 are dismissed; and
(ii.) Each party shall bear his/her/its own costs.
72
For the avoidance of doubt, the prohibitory injunction Order

now ceases to have effect.
Dated: 26 JANUARY 2017
(LIM CHONG FONG)

Judicial Commisioner
High Court Georgetown
Penang
COUNSELS:
For the plaintiff in the civil suit - Celine Chelladurai, Karlos Israphil
Bendlin, Tan Boon Han and Afif Ahmayuddin; M/s Amin Karlos
For the first and third defendants in the civil suit - Yeoh Jin Aik &
Thayalan Muniandy; M/s Thayalan & Associates
For the second defendant in the civil suit - Fazleeza Azli; M/s Chan
Ban Eng & Co
For the plaintiff in the OS - Celine Chelladurai, Karlos Israphil

Bendlin, Tan Boon Han and Afif Ahmayuddin; M/s Zaid Ibrahim & Co
For the first and second defendants in the OS - Yeoh Jin Aik &
Thayalan Muniandy; M/s Thayalan & Associates
For the litigation representative of the third and fourth defendants in

the OS - Lim Hock Siang; M/s Presgrave & Matthews
For the third and fourth defendants in the OS - M/s Haw Kim Then
73

Liew Ju Min V Choo Wee Poh

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[2017] 1 LNS 186 Legal Network Series

IN THE HIGH COURT OF MALAYA

[CIVIL SUIT NO. 22NCVC-144-09/2015]

LIEW JU MIN … PLAINTIFF

1. CHOO WEE POH

HEARD TOGETHER WITH

IN THE HIGH COURT OF MALAYA

[ORIGINATING SUMMONS NO. 24NCVC-807-09/2015]

LIEW JU MIN … PLAINTIFF

1. CHOO WEE POH

CIVIL PROCEDURE: Affidavit - Locus standi - Locus standi to

CIVIL PROCEDURE: Action - Capacity to sue - Commencement of

MENTAL DISORDERS AND TREATMENT: Appointment of

[Plaintiff’s claim in originating summons allowed with each party

Case(s) referred to:

B and another v. Home Office [2012] 4 All ER 276 (refd)

Bandar Builders Sdn Bhd & Ors v. United Malayan Banking

Dr Koay Cheng Boon v. Majlis Perubatan Malaysia [2012] 4 CLJ 445

Malayan Banking Berhad v. Prelude Manufacturing Sdn Bhd & Ors

Muhamad Juzaili Mohd Khamis & Ors v. State Government of Negeri

R v. Stone, R v. Dobinson [1977] 2 All ER 341 (refd)

Re Tengku Ahmad Tajudin Bin Tengku Ibrahim [1984] 1 LNS 33 HC

Sheffield City Council v. S (by his litigation friend the Official

Legislation referred to:

Adoption Act 1952, ss. 9(1) & (2)

Interpretation Acts 1947 and 1968, s. 17A

Courts of Judicature Act 1964, ss. 24(e), 25

Federal Constitution, Art. 5

Mental Disorders Ordinance 1952, s. 4

[2] The Plaintiff herein (“LJM”) is the adopted daughter of Liew

discharge both of them from Penang Gleneagles but was so denied

“ATAS PERMOHONAN Plaintif yang dinamakan di atas

(a) sementara penyelesaian muktamad Guaman ini atau

(b) bahawa lanjutan kepada perenggan (a) di atas dan

(c) bahawa sementara penyelesaian muktamad Guaman

(d) bahawa lanjutan kepada perenggan (c) di atas,

(e) bahawa sementara penyelesaian muktamad Guaman ini,

Defendan Pertama, melalui perintah larangan, dihalang

(f) bahawa lanjutan kepada perenggan (d) di atas dan

(g) bahawa Plaintif memberikan aku janji tambahan

(h) bahawa perbicaraan inter partes permohonan ini

(i) bahawa kos permohonan ini dijadikan kos dalam

Upon the transfer of Wong Teck Meng JC to the Shah Alam

[6] The first case management was held on 27 January 2016. In

[8] The following witnesses testified at the trial:

(ii) Lim Kim Niah (“PW2”), a family friend of LJM’s family;

(iii) Michael Toxvaerd Hansen (“PW3”), LJM’s husband;

(iv) LJM (“PW4”), the Plaintiff herself;

(v) Dr. Ong Mei Lin (“PW5”), a consultant physician at

(vi) Dr. Ravi a/l Krishnapillai (“PW6”), a consultant

(vii) Dr. Yoong Meow Foong (“PW7’), a consultant

(viii) Dr. K Ravindran Katheerayson (“PW8”), a consultant

(ix) Dr. Chong Yew Thong (“PW9”), a consultant

(x) Teoh Kheng Kok (“DW1”), the senior finance manager of

(xi) Kong Chok Min (“DW2”), nephew of LKH and cousin of

(xii) KSH (“DW3”), the Third Defendant herself;

(xiii) Lai Yew Khin (“DW4”), a patients account coordinator at

(xiv) Leong Foong Oay (“DW5”), a medical records manager at

CWP chose not to appear and testify at the trial.

(i) Plaintiff’s affidavit in support affirmed by LJM on 14

(ii) First Defendant’s affidavit in reply affirmed by CWP on

(iii) Second Defendant’s affidavit in reply affirmed by KSH on