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1. SUE-ANN LAU I-SHAN v YEE KEEN MINGv YEE KEEN MING [2011] MLJU 421
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 SUE-ANN LAU I-SHAN v YEE KEEN MINGv YEE KEEN MING [2011] MLJU
421
Malayan Law Journal Unreported

HIGH COURT (KUALA LUMPUR) -

DATIN YEOH WEE SIAM, JC
ORIGINATING SUMMONS NO F-24-181-2010
10 May 2011

W H Kan & Jennifer John (Messrs W H Kan) (Counsels for the Plaintiff Wife),

Radha Rajasingam ( Messrs. K M Yee, Hasnah & Associates) (Counsel for the Defendant Husband)

DATIN YEOH WEE SIAM, JC

GROUNDS OF JUDGMENT

This is an appeal by Yee Keen Ming, the Defendant Husband ("the DH") regarding my decision made in Chambers
on 12.4.2011 on enclosure 1.

Enclosure 1

Enclosure 1 is the application of Sue-Ann Lau l-Shan, the Plaintiff Wife ("the PW") for sole guardianship, and
custody, care and control of the 3 children, reasonable access to the DH, maintenance and education, medical,
dental and optical expenses, and payment of all premiums for the insurance policies of the children.

I granted only the following prayers in enclosure 1:

Prayer 1 : The PW be given custody, care and control, but not sole guardianship, of the 3 children, namely, Jayden,
Tyler and Kieran, ages 9, 6 and 3 years respectively.

Prayer 2 : The DH be given reasonable access to the 3 children-

2.1 on Wednesday from 4 p.m., to 8.30 p.m.
2.2 on alternate weekends from Saturday 10 a.m. to Sunday 8.30 p.m.

Prayer 3 : The DH shall pay the PW a monthly maintenance of RM7,500 for the 3 children on or before the 3rd day
of each month by crediting the amount into the bank account of the PW. There is no automatic increase of such
maintenance of 5% every year effective from January, as applied for by the PW.

Prayer 7 : The DH shall pay all the medical, dental and optical expenses of the children, including but not limited to
the expenses for consultation, treatment and admission to hospital until the children are in full-time education. The
DH is to obtain and maintain the medical insurance to ensure medical coverage in private hospitals, whether locally
or abroad.

Prayer 8 : The DH shall pay all expenses for the children's education, including but not limited to all school and
tuition fees, books, school stationery, uniform, school shoes, transport, all extra-curricular activities (in and outside
school) and any expenses from other education in private international schools until and including education
overseas. With that:
8.1 The DH shall pay immediately fees or any other education expenses directly to the school/
college/university/educational institution after being given the invoice from such
school/college/university/educational institution.
8.2 The DH shall pay any other education expenses which have not been included in the amount stated in 8.1
above whether directly after being given the invoice or to immediately reimburse the PW for any payment
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SUE-ANN LAU I-SHAN v YEE KEEN MINGv YEE KEEN MING [2011] MLJU 421

that the PW had made after being given the receipt for such expenses within 7 days and such payment is
to credited into the bank account nominated by the PW.

Prayer 9 : The DH shall continue to pay the insurance premiums for the 3 children as stated in a), b) and c);

Prayer 10 Costs to be borne by respective parties.

The DH's appeal is regarding my above Orders.

Grounds for mv decision

Prayer 1 : Custody, care and control of the 3 children

The law regarding custody of children is found in section 88 of the Law Reform (Marriage and Divorce) Act 1976
("be LRA") which provides as follows:

"88. (2) In deciding in whose custody a child should be placed the paramount consideration shall be the welfare of the child
and subject to this the court shall have regard -

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

b to the wishes of the child, where he or she is of an age to express an independent opinion.

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

(4) Where there are two or more children of a marriage, the court shall not be bound to place both or all in the custody of
the same person but shall consider the welfare of each independently.".

There is an abundance of cases which have decided that in determining custody, the paramount consideration is
the welfare and best interests of the child.

In Tav Chuen Sianq v. Wang. Chiao-Wen [2009] 9 CLJ 84 Vernon Ong Lam Kiat JC (as he then was) held as
follows:

"It is trite that the welfare of the children is paramount. What do we mean by the term 'welfare of the child'? The word
'welfare' is defined in the Cambridge Advanced Learner's Dictionary, 2nd edn as 'physical and mental health and
happiness, especially of a person'. Clearly then, the court must have the physical and mental health and happiness of the
children as its overriding consideration (see J v. C [1970] AC 6618 ". (emphasis added).

In Ramiah a/I Komaran v. Susila Devi a/p Manikam [1998] 1 LNS 467 Alauddin J (as he then was) stated as
follows:

To my mind the words "the court shall have regard to the undesirability of disturbing the life of, a child by changes
of custody" inserted by the legislature in subsection 3 of s.88 is not without significance. The starting point is
therefore it is undesirable to disturb the life of a child by changes of custody.'.

In Nq Say Chuan v. Lim Szu Ling [2010] 10 CLJ 371, I held as follows:

"The paramount consideration for determining custody under section 88(2) of the Act shall be the welfare of the child even
though the court shall have regard to the wishes of the parents of the child, and the wishes of the child where he or she is
of an age to express an independent opinion...." (emphasis added).

The PW averred in her first Affidavit in para 13 that even though the DH was financially generous and the PW and
the 3 children lived well, the DH spent very little time with her and the children. The DH, a practising lawyer, was
always giving excuses of work and having to entertain his client, and his other interests. The DH had been no
support in bringing the children up and had never played a major role in their lives. The PW has always been the
children's primary carer from the day they were born.

The DH has merely responded with a bare denial of the PW's above averment but he has not adduced any
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SUE-ANN LAU I-SHAN v YEE KEEN MINGv YEE KEEN MING [2011] MLJU 421

evidence or shown how he has taken care of the children, other than paying for their living expenses, education,
medical needs and insurance.

The DH did not deny the PW's allegation of his adulterous relationship with Lillian Hue Su Li at one time, and of the
further allegation that the DH is now living with his mistress, Elizabeth Yong Li Tsun ("Elizabeth Yong"), at his
parents' bungalow. He only pleaded that he puts the PW on strict proof regarding her allegations. The DH did not
deny that his 9 year old son, Jayden, was present when he went to meet his girlfriend. Neither did he deny that his
mistress, Elizabeth Yong, was present at his parents' house for the Chinese New Year reunion dinner in 2011
which was also attended by the PW and the 3 children (see para 5 of PW's Third Affidavit). The DH also did not
deny using Elizabeth Yong's credit card to purchase several sundry goods for his children (see exhibit YKM-3 of the
DH's First Affidavit).

I do not think that the DH should be given custody, care and control of the 3 children. He is too involved with his
work, social life and girlfriends, and has little time to take care of or nurture the 3 little children. It is also morally
wrong for the DH to expose his children to his girlfriend or mistress, when he is still married to the PW, the mother
of his 3 children. If the children are allowed to grow up in the DH's house with his girl friend, the children would be
thoroughly confused about what is right for a marriage and what is wrong regarding extra-marital relationships. This
is certainly not for the welfare of the children, much as the DH wishes to have custody of the children.

In W V. H [1987] 2 MLJ 235 at pages 241 and 242 Shanker J. (as he then was) went through several English cases
to show "why the law in its wisdom insists that de facto care, control and custody of children under the age of 7
years should be given to the mother".

In K.Shanta Kumari [1986] 2 MLJ 216 Wan Yahya J. (as he then was) stated at page 218 as follows:

"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 leaned in favour of the mother being given custody of young infants. The reason is very
obvious. An infant offender age is by nature more physically and spiritually dependant on its own mother than anyone
else.".

The DH has not rebutted the presumption in section 88(3) of the LRA or proven that the PW is an unfit mother for
the 2 younger children, Tyler and Kieran, who are below 7 years old.

Shanker J in W V. H cited Re S [1958] 1 All ER 783, at page 786, that:

"It is incumbent on him [the father] to make sure that there really are sufficient reasons to exclude the prima facie rule.".

In so far as the 6 and 3 year old children are concerned, I am satisfied that the PW is the more suitable parent and
she should be given the custody, care and control of these 2 children. She has always been taking care of these 2
young ones and she should be allowed to continue to nurture them.

As for the 9 year old child, Jayden, even though he is outside the ambit of section 88(3) of the LRA, I am satisfied
that the PW, who has been taking care of him since his birth, is a better parent to have custody, care and control of
this child.

I do not think that it is for the welfare and best interests of the children, who are now of tender years, to be
separated from each other.

The DH alleged that the PW had an extra-marital relationship with one Ng Wymin. This is denied by the PW. There
is also no proof of such relationship other than the DH's averments.

The PW was forced to leave the matrimonial home in September 2008 with the 3 children when she could no longer
tolerate the DH's adulterous relationships. Since then, the children have been living with her. The PW is a full-time
homemaker, but is assisted by a domestic help. She does some part-time insurance work. It is clear that the PW is
able to provide a secure home environment for the 3 children. It is undesirable that the Court now orders a change
of custody, care and control, and order that the 3 children be handed over to the DH.

For the above reasons, I granted custody, care and control of the 3 children to the PW.

The DH in his notice of appeal stated, inter alia, that he is also appealing against my Order giving sole guardianship
of the children to the PW. This is erroneous because I did not grant the PW's prayer for sole guardianship, but I
 Page 4 of 7
SUE-ANN LAU I-SHAN v YEE KEEN MINGv YEE KEEN MING [2011] MLJU 421

merely granted custody, care and control of the children to the PW under the LRA. This means that the PW is
allowed to take care of the children for their day-today living i.e. upbringing, education and other activities (see also
section 89(1) of the LRA). However, both the DH and PW still have the equality of parental rights under the
Guardianship of Infants Act 1961 ("the GIA") (see section 5 of the GIA).

Prayer 2 : Reasonable access to the DH

The DH only fought for the custody of the children. He did not plead, in the alternative, that should the Court grant
custody, care and control of the children to the PW, what is his preference or application regarding access to the 3
children.

On the other hand, the PW informed the Court that under the current arrangement for access, the DH sees the
children every Wednesday for dinner, and has overnight access fortnightly every Saturday and Sunday.

I decided to maintain status quo and allow the current access arrangements to continue. Hence, prayer 2 of
enclosure 1 was allowed. At any time after this Order, the DH can apply for variation of access under s.89 of the
LRA if he is keen to have more access to the children.

Prayer 3 : Maintenance for the 3 children

Under section 92 of the LRA, "it shall be the duty of a parent to maintain or contribute to the maintenance of his or
her children, whether they are in his or her custody or the custody of any other person, either by providing them with
such accommodation, clothing, food and education as may be reasonable having regard to his or her means and
station in life or by paying the cost thereof.

The Court's power to order a man to pay maintenance for the benefit of his child is provided in section 93(1) of the
LRA. The Court has a "corresponding power to order a woman to pay or contribute towards the maintenance of her
child where it is satisfied that having regard to her means it is reasonable so to order".

In this case, before her marriage to the DH, the PW was working as a Senior Credit Executive with Hong Leong
Bank, earning RM4,500 a month. After the second child, Tyler, was born the PW continued to work at the DH's
legal office, but on a part-time basis. The PW averred that she was paid RM2.800 a month by the DH as his Office
Manager. She was given a bonus of RM10,000 at the end of each year.

Currently, the PW is a full-time housewife. However, she does some part-time insurance work and earns an
average of RM750 per month. She had been using her savings to maintain the children after the DH stopped
maintaining them. Her resources are now fast depleting.

The PW believes that the DH earns an average income of RM20,000 a month (see her Affidavit affirmed on
23.12.2010). This was not denied by the DH.

The DH is an experienced legal practitioner. He knows that this case includes a claim for maintenance for the 3
children. Yet, he chose not to disclose his salary to the Court.

In Parkunan Achulinqam v. Kalaivarasv Periasamv [2004] 7 CLJ 175, Faiza Tamby Chik J. (as he then was) stated
as follows :

"...I am of the opinion that this court is entitled to draw an adverse inference with regards to the petitioner husband's income
as a result of his failure to provide full and frank disclosure as provided for under section 114(g) of the Evidence Act 1950.
In the case of Leow Kooi Wah v. Phillip Ng Kok Seng [1997] 3 MLJ 133, it was held in the Court of Appeal:

Whatever disclosure is by affidavit of facts, by affidavit of documents or by evidence of oath, the obligation of the Husband
is to be full, frank and clear in that disclosure. Any shortcomings of the husband from the requisite standard can and
normally should be visited at least by the court drawing inferences against the husband on matters the subject of the
shortcomings.".

In view of the DH's failure to provide a full and frank disclosure of his income, I am inclined to draw an adverse
inference under section 114(g) of the Evidence Act 1950 regarding the DH's income. The Court accepts the PW's
averment that the DH's monthly income is about RM20,000.

The DH is a man of means as disclosed by the PW. He has a Mercedes Benz WRB2112 registered under his
 Page 5 of 7
SUE-ANN LAU I-SHAN v YEE KEEN MINGv YEE KEEN MING [2011] MLJU 421

name, even though he averred that it was bought by his mother. He is also driving a Mercedes Benz WMW 9319
though he claims that it is registered in his mother's name. The DH lives in a bungalow with his parents. He
purchased a Volvo S40 WLV 9816 for the PW which is now fully paid for. The DH and PW jointly own an apartment
in Midvailey, Kuala Lumpur which is currently rented out and the rentals are collected by the DH.

The PW averred that she requires RM12J86 a month for the 3 children's maintenance. She gave the breakdown of
the children's monthly expenses in paragraph 30 of her First Affidavit as follows:

The DH averred that the monthly expenses for the children are about RM2,500. However, he admitted that he was
paying RM3.000 a month for the costs of taking care of the children (see paras 6, 10 and 19 of his Affidavit affirmed
on 31.1.2011).

Going by what the DH was previously paying to the PW for the children's care i.e. RM3,000 a month, this would
mean that accommodation for the children is still not paid for by the DH yet. The PW averred that her rental for her
condominium in Mont Kiara is RM5.000 a month including maintenance charges. However, she itemised for the 3
children the monthly rent as RM3.333 and utilities as RM600. The DH contended that the PW is living in a luxury
condominium, but he forgets that he himself is living in a bungalow in a gated community.

Bearing in mind the comfortable life style that the children have enjoyed all this time, I do not think that living in the
condominium is more luxurious than in their previous bungalow home.

The PW will need to continue to have a maid considering that she may have to work full-time since she is not given
a wife's maintenance by the Court in view of the fact that there are no pending matrimonial proceedings (see
section 77(1) (a) of the LRA). She would require the maid to assist her in taking care of the children when she is
working.

The PW averred that before she left the DH, they had lived well, eating out at Shangri La Hotel and other hotels,
restaurants, namely, Jaya Place, Imbi Place, and Nobel House. They would travel at least once a year to Hong
Kong, Singapore and Japan, and within the country, including Pangkor Laut Resort, Avalion Port Dickson and
generally residing in 5-star hotels. These averments have been denied by the DH but in all probability what the PW
is contending is true since the DH admits that he owns a legal practice under the name and style of K M Yee,
Hasnah & Associates in Amcorp Business Centre, Petaling Jaya. The PW averred that the DH has a successful
legal practice. She used to work as the DH's Office Manager.

The DH has not denied that at the material time the children were educated in Beaconhouse Kindergarten, attended
numerous classes, namely, The Schichida Method, Gymboree, UC Mas, art classes and music classes at Yamaha.

In Vithulinqam Mavandv V. Maqeswarv Kanniah (Shah Alam High Court Decision 2009 in respect of Civil Suit No.
MT(5) 33-786-2007) Hinshawati Binti Shariff J. held as follows:

Rent (RM5000 x 2/3) RM 3,333.00

Utilities (RM900 x 2/3) RM 600.00

Groceries and Marketing (RM20 per day x 3 x 30) RM 1,800.00

Diapers (average RM45 per pack x 2) RM 90.00

Milk Powder: RM 648.00

Pediasure (RM 125x2 cans)

Enfagrow (RM80 x 3 cans)

Enfakid (RM79 x 2 cans)

Toiletries, Vitamins, Pharmaceuticals RM 250.00

Jaydens's Pocket Money RM 100.00

Petrol RM 500.00
 Page 6 of 7
SUE-ANN LAU I-SHAN v YEE KEEN MINGv YEE KEEN MING [2011] MLJU 421

Toll RM 180.00

Car Insurance and maintenance RM 375.00

Children's medical bills & dental (average) RM 300.00

Entertainment & Eating Out RM 300.00

Children's books and stationery (RM50 per child x 3) RM 150.00

Children's toys and games (RM40 per child x 3) RM 120.00

Children's Clothes (RM100 per child) RM 300.00

Children's Shoes (RM200 x 2 p.a. x 3)/12 RM 100.00

Maid's Salary RM 900.00

Maid's living expenses and food RM 200.00

Tyler's kindergarten fees RM 580.00

Jayden's mandarin tuition RM 360.00

Jayden's revision school books RM 100.00

Birthday parties (RM1,000.00 p.a. x 3)/12 RM 250.00

Holiday expenses (RM15,000/12) RM 1,250.00

TOTAL RM 12,786.00

"...it has also been established in a long line of authorities that the order for maintenance should as nearly as may be put
the petitioner and the children in the position to which they had been accustomed to before the separation or divorce. The
principle established in the case of Parkunan Achulingam V. Kalaiyarasy Periasamy [2004] 7 CLJ applies here.".

I did not order the DH to pay a monthly maintenance of RM12J86 for the 3 children as claimed by the PW.
However, I granted a monthly maintenance of RM7,500 for the 3 children which I think is a reasonable sum for the
accommodation, and living expenses of the children, given the lifestyle that the children had been enjoying before
the PW left the matrimonial home.

Prayers 7, 8 and 9 : medical, dental, optical, and education expenses of the children, and insurance premiums for
the children's insurance policies

The DH had been paying for the above expenses and insurance premiums over and above the living expenses or
maintenance costs of the 3 children (see paragraphs 6, 8 and 17 of DH's Reply Affidavit affirmed on 31.1.2011). I
decided that it is only right that the DH should continue to pay for the above expenses and insurance premiums
since the PW only earns RM750 a month.

Prayer 10 : costs

I did not order the DH to pay costs as he had stated in his Notice of Appeal. Instead, I ordered parties to bear their
respective costs which I think is very fair considering their marriage breakdown.

On the whole, when I gave the above orders, I bore in mind that this is an Originating Summons only, and both
parties have not filed for a divorce or judicial separation. They are still married to each other, but living separately
from each other. It is better that the 3 children continue to be under the custody, care and control of their mother,
the PW.

For the above reasons, I therefore ordered accordingly.

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End of Document