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Malayan Law Journal Unreported/2010/Volume /POR BOON LAN v HONG SIE KIT AND ANOR - [2010]
MLJU 1678 - 27 October 2010
[2010] MLJU 1678

POR BOON LAN v HONG SIE KIT AND ANOR


HIGH COURT (KUALA LUMPUR)
YEOH WEE SIAM, JC
ORIGINATING SUMMONS NO F-24-125-2010
27 October 2010
Freda Santhiago (Messrs. S. N. Fam & Co.), Chang Kah Ling (Messrs. Chang & Partners)
YEOH WEE SIAM, JC
GROUNDS OF JUDGMENT
Appeal This is an appeal filed on 22.10.2010 by Hong Sie Kit, the First Defendant, on behalf of the 2
Defendants, regarding my decision made in Chambers on 14.10.2010 in respect of enclosure 1 i.e. the
Plaintiff's ex parte application made by Summons In Chambers dated 8.9.2010 (and not 6.10.2010 as stated
in the First Defendant's Notice of Appeal dated 20.10.2010).
Enclosure 1 In enclosure 1, the Plaintiff applied for the following :

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1
1
1
1
1
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1

The Plaintiff, being the natural mother of Justin Hong Kheng Yoong ("Justin") aged 2 years old,
and Elysee Hong Yan ("Elysee") aged 1 year old ("the children"), be given the custody, care
and control (cumulatively to be referred to as "custody") of the children forthwith.
The Defendants and the unnamed party to return Justin to the Plaintiff at Taman Mesra Klang
within 24 hours from the service of the order against the Defendants.
The Defendants, their servants, agents and relatives be restrained from entering beyond 100
meters of the compound of the Plaintiff's premises at Taman Mesra Klang.
The Defendants, their servants, agents and relatives be restrained from threatening, disturbing,
carrying out force, or carrying out any act to disturb or interfere with the Plaintiff or the children.
The Defendants, their servants, agents and relatives be restrained from taking Justin out of
Malaysia.
The First Defendant be ordered to return the MyKid identity card of Elysee to the Plaintiff and
also all personal belongings of the Plaintiff which are at Taman Lagenda Mas Cheras.
Costs, on a Solicitor and client basis, to be borne by the Defendants.
Other relief which the Court thinks just.

The Plaintiff is the natural mother of the children. The First Defendant is the biological father of the children.
The Second Defendant is the mother of the First Defendant.
Grounds of application in enclosure 1
Enclosure 1 is supported by the Plaintiff's Affidavit affirmed on 8.9.2010 ("enclosure 2").
The Plaintiff stated the following grounds for her application :

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When the Plaintiff was pregnant with her first child, the First Defendant informed her that there
is no necessity to register the marriage because it is a problematic and difficult process.
At that time, the First Defendant informed the Plaintiff that he was already married to a Hong
Kong citizen but they had been living apart for the past 4 years and were in the process of
being divorced in Hong Kong.

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2
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1

The Plaintiff and First Defendant had a Chinese customary marriage without registration of the
marriage.
When the Plaintiff was pregnant with her second child in 2009, her relationship with the First
Defendant deteriorated because he was having an affair with another woman.
In view of the fact that the First Defendant still refused to register their marriage even after their
second child was born, the Plaintiff found it very difficult to tolerate it and to continue living
together with the First Defendant.
On 5.1.2010 the Plaintiff brought the children to her parents' house in Klang.
At all times, both children were under the custody of the Plaintiff, and they were taken care of
by her mother and her aunt whenever the Plaintiff was working at the Dance Studio.
On 2.9.2010 the Defendants went to Chempaka Lodge, a Buddhist temple in Petaling Jaya, the
place where the Plaintiff's mother does charity work, to discuss about seeing the daughter,
Elysee.
A Myanmar worker, who was working at Chempaka Lodge, saw the Second Defendant taking
the son, Justin, out of the temple premises.

Ex parte Hearing of enclosure 1 on 24.9.2010


Based on a certificate of urgency filed on 8.9.2010, I heard ex parte the Plaintiff's application in enclosure 1
on 24.9.2010. I considered the Plaintiff's Affidavit and agreed with the skeletal written submissions of learned
Counsel for the Plaintiff.
The Plaintiff's application is made under s.24(d) of the Courts of Judicature Act 1964. Pursuant to the said
provision, the High Court is conferred with the jurisdiction to appoint and control guardians of infants. Such
jurisdiction includes the power to hear any application for guardianship and custody of an infant, including an
illegitimate child (see Re Balasingam & Paravathy, Infants Kannamah V. Palani [1970] 2 MLJ 74).
In Yap Lee See V. William Tay & Ors [2010] MLJU 451 I did a study and analysis of the law regarding
illegitimate children. I concluded that the law relating to the custody and control of illegitimate infants that is
now applicable in Peninsular Malaysia is still the same law as the one administered in England as at
7.4.1956 (i.e. the date of coming into force of the Civil Law Act 1956, including s.27 of the same Act which
relates to custody and control of infants). Under English common law, where a child is illegitimate, the natural
mother should be the guardian of the child, unless she is considered morally unfit.
In K.Shanta Kumari V. Vijayan [1986] 2 MLJ 216 it was held that "even going on the assumption that both
parents are equally capable of providing the care, comfort and attention to the infant, the courts have always
learned in favour of the mother being given custody of young infants". The Court then went on to hold that "it
is in the interest and welfare of the infant that she should continue to remain in the custody of the mother".
Applying the principles in the above 2 cases to the present case, it is clear that both children are illegitimate
since the Chinese customary marriage of the Plaintiff and First Defendant was never registered under the
Law Reform (Marriage and Divorce Act) 1976. The Plaintiff, being the natural mother of the 2 illegitimate
children, therefore has the legal right of custody over the children. The First Defendant, being the putative
father, has no rights over the illegitimate children. So far, there is no evidence on record to prove that the
Plaintiff is an unfit mother. The 2 children are of a tender age, Justin being 2 years old and Elysee being 1
year old, respectively. My paramount consideration is the welfare and best interests of both children. It is for
the welfare and in the best interests of the children that these 2 toddlers be nurtured and cared for by their
natural mother. They need the love and affection of their mother. When the Plaintiff is working, she does have
a good support system to help her take care of the children.
At all times the children were taken care of by the Plaintiff and, in her absence, by her mother or aunt. The
First and Second Defendants had abducted Justin from the temple grounds on 2.9.2010 when the child was
under the care of the Plaintiff's mother. It is imperative that Justin be returned to the Plaintiff immediately to
avoid emotional trauma and damage being caused to the child. In order to prevent future incidents of
abduction of Justin, or even of Elysee, it is also necessary for the Court to grant the restraining orders.
Accordingly, I gave the Interim Order on 24.9.2010 ("the Interim Order") by allowing prayers 1, 2, 3, 4, 5 and
6 of enclosure 1. As for prayer 7, I ordered that costs be borne by the respective parties.

I then fixed enclosure 1 for inter partes Hearing on 14.10.2010.


Court's decision on Interim Order on 14.10.2010
On 14.10.2010 Ms. Chang Kah Ling, Counsel for the Defendants, applied for a postponement of the inter
partes Hearing of enclosure 1 on the ground that she had just been served with the application on the same
day. She also needed time to serve the First Defendant's application (enclosure 9) for stay of the Interim
Order of 24.9.2010.
Ms Freda Santhiago, learned Counsel for the Plaintiff, did not object to Ms. Chang Kah Ling's application for
postponement. However, Ms. Freda Santhiago drew the Court's attention to the fact that since the date of
service of the above Interim Order on the First Defendant on 30.9.2010, the First Defendant did not comply
with the said Order which required him to hand over Justin, and the MyKid identity card of Elysee and the
personal belongings of the Plaintiff.
Pending the inter partes Hearing of enclosure 1, I ordered the Defendants to comply with the Interim Order
dated 24.9.2010 and return Justin, within 3 days, to the Plaintiff at her premises in Klang. As for the
injunctions in prayers 3 and 4, I ordered a holding over of such injunctions until the inter partes Hearing or
amicable settlement of the case by both parties, as the case may be. Regarding prayer 6 of the Interim
Order, I also ordered compliance by the Defendants within 3 days.
I then proceeded to fix the next date for inter partes Hearing of enclosure 1. However, learned Counsel for
the Defendants was not keen at all on a Hearing date. Instead, she requested, and repeated her request,
that the Court conducts mediation of the case to facilitate an amicable settlement. She even stated that there
can be discussions about access to the children and the payment of maintenance by the First Defendant.
Based on the consent of both learned Counsels, I then fixed the case for mediation by the Court on
4.11.2010.
This appeal filed by the Defendants shows the inconsistent stand of the Defendants. On the one hand, they
did not want a date for the inter partes Hearing of enclosure 1 and urged the Court to do mediation. On the
other hand, they are filing this appeal, which I believe is rather premature considering that mediation has not
been conducted by the Court yet. Even if mediation fails, enclosure 1 has to be heard inter partes first before
the Court makes a Final Order on the application in enclosure 1.