LOK CHOOI YUEN WONG KAM FUI

BA-24F-324-11/2023 Kand. 31 1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH 28/10/2024 ALAM 11:31:09 2 DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA 3 (BAHAGIAN KELUARGA) 4 SAMAN PEMULA NO : BA-24F-324-11/2023 5 6 Dalam Perkara Seksyen 106(1)(vi) 7 Akta Membaharui Undang- 8 Undang (Perkahwinan Dan 9 Perceraian) 1976; 10 11 Dan 12 13 Dalam Perkara Mengenai Kaedah 14 7(1) & (2) Kaedah-Kaedah 15 Prosiding Perceraian Dan Hal 16 Ehwal Perkahwinan 1980 17 18 ANTARA 19 20 LOK CHOOI YUEN 21 (K/P NO. : 700726-08-5494) ...PEMOHON 22 DAN 23 WONG KAM FUI 24 (K/P NO. : 701014-08-5781) ...RESPONDEN 25 26 GROUNDS OF JUDGEMENT 27 28 Introduction 29 [1] This is an application in Enclosure 1 filed by the Applicant (the Wife) 30 for exemption from referral of the matrimonial difficulty of the parties to a 1 S/N KR3FfMShAUiZdYv9cQOeDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 Conciliation Body as required by section 106(1)(vi) of the Law Reform 2 (Marriage and Divorce) Act 1976 (LRA, 1976). 3 4 Background 5 [2] The parties were married on 30.6.1997 and have four children who 6 have all reached the age of majority. 7 8 [3] On 8.11.2023 the Applicant filed the present application to dispense 9 with the requirement in section 106 LRA on the ground that she had for 10 the most part of their marriage of 27 years been subjected to domestic 11 violence at the hands of her abusive husband. 12 13 [4] The Applicant cited the last and most recent incident happened on 14 20.8.2022 which finally forced her to leave the matrimonial home leaving 15 her children and the Respondent behind. 16 17 [5] In her affidavit in support the Applicant has averred that the 18 Respondent has anger management issues and this would result in a 19 range of abusive behaviour including verbal, physical and sexual abuse 20 directed towards her and spilling over to the children. She claimed that 21 she was frequently subjected to public humiliation, scorn and hurtful 22 insults. He repeatedly threatened to kill or harm her and would force her 23 out of the matrimonial home whenever they had arguments. She further 24 claimed that he often coerced her into having sexual intercourse with him 25 against her will and consent. On the particular incident that happened on 26 20.8.2022, she averred that he sexually and physically abused her 27 causing her to suffer severe injuries on various parts of her body. She had 28 to seek medical attention for the injuries sustained. She later lodged a 29 police report and this report is exhibited in Exhibit LCY-3 of her Affidavit 30 in Support (Encl 2) dated 8.11.2023 2 S/N KR3FfMShAUiZdYv9cQOeDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 [6] In addition, the Applicant has alleged that the abuse by the 2 Respondent had caused her mental and emotional anguish and she had 3 to seek psychiatric treatment to overcome her distress. At the same time 4 the Applicant has alleged that the Respondent had gone around 5 spreading stories to her friends and acquaintances that the Applicant was 6 not of sound mind and was suffering from mental disorder and had to seek 7 psychiatric treatment. She has stated that she is unable to tolerate the 8 physical, mental and psychological pain caused by the Respondent. 9 There is a string of other allegations of the Respondent’s cruel behaviour 10 which she claimed had caused her much physical and emotional distress. 11 12 [7] The allegations made by the Applicant have been vehemently 13 denied by the Respondent with counter allegations of his own against the 14 Applicant. He has alleged that it was the Applicant who was physically and 15 verbally abusive to him rather than the other way around. He claimed that 16 she would always find reasons to scold him and attempt to provoke him 17 for no apparent reason. The respondent has asserted that their sexual 18 intercourse had always been consensual in nature and he had never 19 forced their intimacy against her will. 20 21 [8] With regard to the incident on 20.8.2022, the Respondent alleged 22 that the Applicant demanded cash of RM1000 before she would agree to 23 have sexual intercourse with him. The Respondent has exhibited the 24 banking transaction he made for that purpose in Exhibit WKF-1 in his 25 affidavit in reply (Encl 6). He related that while they were in the midst of 26 their intimacy the Applicant suddenly without any warning struck and hit 27 him a number of times until he fell off the bed. The Respondent stated that 28 he had to deflect the blows she aimed at his body and that only ended 29 when their son knocked on their bedroom door and told them to stop. 3 S/N KR3FfMShAUiZdYv9cQOeDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 [9] The Respondent admitted he was called to the police station to 2 provide his statement the next day. Subsequently he was informed by 3 Sarjan Rustam and Inspector Zulkifli from IPD Shah Alam that the case 4 was classified NFA as neither party had sustained any serious injuries. 5 The Respondent averred that he has not been charged in any criminal 6 court in relation to the assault allegations made by the Applicant. 7 8 [10] The Respondent wished the court to know that in spite of her temper 9 and aggression he still loved her and their family and did not want to see 10 their marriage of 27 years break up. He beseeched the Court to refuse the 11 application as he wanted to be given the opportunity to salvage their 12 marriage saying that he is keen and willing to participate in meetings 13 before the conciliatory body. 14 15 Decision of the Court 16 [11] The requirement to refer a matrimonial difficulty to a conciliatory 17 body before a divorce petition can be presented is governed by section 18 106 LRA 1976. Section 106 makes this requirement mandatory. However 19 there are permitted exceptions. 20 21 [12] The Applicant has premised her application in Encl 1 on section 22 106(1)(iv) of the LRA which provides exemption of the mandatory 23 requirement as follows: 24 25 “106(1) No person shall petition for divorce, except under sections 51 26 and 52, unless he or she has first referred the matrimonial difficulty to a 27 conciliatory body and that body has certified that it has failed to reconcile 28 the parties: 29 Provided that this requirement shall not apply in any case - 30 (i) where the petitioner alleges that he or she has been deserted by 31 and does not know the whereabouts of his or her spouse; 4 S/N KR3FfMShAUiZdYv9cQOeDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 (ii) where the respondent is residing abroad and it is unlikely that he 2 or she will enter the jurisdiction within six months next ensuing after the 3 date of the petition; 4 (iii) where the respondent has been required to appear before a 5 conciliatory body and has wilfully failed to attend; 6 (iv) where the respondent is imprisoned for a term of five years or 7 more 8 (v) where the petitioner alleges that the respondent is suffering from 9 incurable mental illness; or 10 (vi) where the court is satisfied that there are exceptional 11 circumstances which make reference to a conciliatory body 12 impracticable.”. 13 14 [13] The Applicant must show exceptional circumstances to justify the 15 exemption of the parties from the obligation to refer their matrimonial 16 dispute to a conciliatory body the granting of the application. I would 17 respectfully concur with the explanation given to the phrase “exceptional 18 circumstances” in the case of C v A [1998] 4 2 MLRH 385 which is as 19 follows : 20 21 "Therefore, it is clear that the word impracticable means impractical. The 22 Concise Oxford Dictionary (9th Ed) defines 'impractical' as 'not 23 practicable'. Impractical would therefore present a meaning connoting 24 fruitlessness, a sense of futility, and performing an act in vain or where 25 it is not practical or workable to perform such an act. This is just precisely 26 what the petitioner would be doing in this case if he were to refer to the 27 conciliatory body. To my mind, such a referral would be an exercise in 28 futility performed solely for the purpose of obtaining a rubber stamp to a 29 certificate showing the failure of the body to effect a reconciliation." 30 31 [14] The issue for the determination of this Court is whether the Applicant 32 has shown there are exceptional circumstances which qualify for an 33 exemption from appearing before the Conciliatory body. The Court must 5 S/N KR3FfMShAUiZdYv9cQOeDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 be satisfied of the exceptional circumstances faced by the Applicant which 2 made reference to the Conciliatory Body impractical. 3 4 [15] The grounds relied on by the Applicant to invoke section 106(1)(iv) 5 LRA 1976 is that the Respondent has physically abused and committed 6 domestic violence on her which she claims amounts to an exceptional 7 circumstance under the prevailing law. The Applicant has pinpointed to 8 one particular incident which she claimed happened on 20.8.2022 to 9 support her contention in the present application before this Court. While 10 the incident is said to have happened in the year 2022, the Applicant only 11 filed the instant application for dispensation about a year later in 12 November 2023. 13 14 [16] As noted earlier the parties have levelled allegations and counter 15 allegations. The burden therefore lies upon the Applicant to prove that she 16 had repeatedly been subject to physical abuse and domestic violence at 17 the hands of the Respondent. In particular she bears the burden to prove 18 that in particular the incident on 20.8.2022 did indeed occur as alleged. 19 Apart from relying on her police report which she lodged on the same day 20 the Applicant had not produced the alleged medical report in any of her 21 earlier affidavits. 22 23 [17] The medical report was exhibited much later in the Affidavit 24 Tambahan filed on 18.6.2024. It was filed only after written submissions 25 had been put in by parties. On perusal of the Medical report it indicates 26 that the Applicant did not sustain any serious injuries as claimed in the 27 affidavits. In her affidavit in support affirmed on 8.11.2023 (Encl 2) the 28 Applicant had alleged in Paragraph 8 that the Respondent sexually and 29 physically abused me causing me to suffer severe injuries on various 30 parts of my body (“incident”). She further stated that as a result of the 6 S/N KR3FfMShAUiZdYv9cQOeDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 Respondent’s actions she ‘sustained injuries to the back of my body 2 and legs” and had to seek medical attention for the injuries at Tengku 3 Ampuan Rahimah Hospital. (emphasis added) 4 5 [18] Her averments contradict with the contents of the Medical Report 6 produced. The physical examination conducted by the medical officer on 7 20.8.2022 revealed the following : 8 9 Head : No scalp hematoma or open wound 10 Back : No cervical/spinal tenderness 11 Lower Limb : Range of movement full, pulses palpable. 12 The diagnosis stated “Alleged domestic violence sustained soft tissue 13 injury over back and right foot.” 14 15 [19] In addition it is also observed that the photographs of the injuries 16 exhibited in her Affidavit Balasan (Encl 10) are quite inconsistent with her 17 allegations that she had sustained serious injuries on her back and leg. It 18 is not difficult to agree with the Respondent that photographic evidence 19 especially when presented as exhibits attached to affidavits can be 20 selectively presented and taken out of context. The Court must exercise 21 caution especially when photographic evidence can be conveniently 22 fabricated or manipulated to suit one’s purpose. 23 24 [20] As to the other issues, none of her allegations and attacks towards 25 the Respondent’s character has been substantiated by independent 26 corroborative evidence. 27 28 [21] Apart from one police report dated 20.8.2022, there are no material 29 or credible evidence tendered or exhibited to corroborate the one sided 30 allegations in that one police report against the Respondent. That is also 31 coupled with the fact that for 27 long years the Applicant and the 7 S/N KR3FfMShAUiZdYv9cQOeDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 Respondent shared their lives together without any incident reported by 2 the Applicant. To my mind the Applicant’s excuses that the children were 3 young and she did not wish to burden them with their marital problems is 4 a bare allegation and lacks credible basis. 5 6 [22] With respect I am of the view that the one police report lodged by 7 the Applicant was merely a narration of the Applicant’s side of the story 8 and/or description of the events but it would not be a reflection of the whole 9 truth of the events which had occurred over the period of time. On this 10 score reliance is placed on the case of Sim Bee Khim v Eugene Leong 11 Weng Keong [2021] 1 LNS 916 where the learned Judge held as follows: 12 13 “…allegations of being given limited time and demanding access to the 14 said child with no compelling evidence except for the several police 15 reports on the matter. However, I would like to emphasize that a 16 police report is merely that. It carries no evidential weight of the 17 events unless supported with a finding by the relevant authorities.” 18 19 [23] I further refer to the case of Mohd Bismill Ahmad & Anor v Public 20 Prosecutor [2017] 1 LNS 3 where the Court of Appeal held that :- 21 22 “[39] …It is trite that a police report is not substantive evidence. More so 23 when D2 is merely an arrest report and not a first information report. A 24 police report is only an instrument that triggers the process of 25 investigation. The substantive evidence must come from the testimonies 26 of witnesses which are subject to the vagaries of cross-examination to 27 determine its veracity and finally its admissibility in evidence…” 28 29 [24] It is trite that a police report is not substantive evidence. It is merely 30 a narration of brief salient facts and does not constitute the totality of the 31 evidence, especially here where the Applicant’s application is merely 32 based on one police report without any material and credible evidence. 8 S/N KR3FfMShAUiZdYv9cQOeDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 [25] Quite notably no criminal case was brought against the Respondent. 2 The Applicant had not followed up by producing the result of the 3 investigation carried out by the police investigating officer (I.O). This is 4 especially relevant when the Respondent had in his affidavit in reply 5 averred that he had contacted the I.O to confirm the outcome of the 6 investigation and had been informed that that no further action is to be 7 taken. 8 9 [26] To reiterate, the onus is on the Applicant to show that the existence 10 of exceptional circumstances made it impractical to make reference to the 11 conciliatory body. As noted earlier the allegations made by the Applicant 12 have been denied by the respondent. Here the Applicant has to explain 13 why the medical report attached does not support her allegation that she 14 had indeed suffered injuries as a result of the physical abuse she suffered 15 at the hands of the Respondent. 16 17 [27] That coupled with the fact that for the duration of the 27 years the 18 Applicant and the Respondent shared their lives together without any 19 complaints of incidences of abuse reported to the authorities caused this 20 Court to doubt the veracity of those allegations. There was no evidence 21 to show that their marriage had irretrievably broken down due to the 22 domestic violence perpetrated on her. 23 24 [28] In the instant case I am reminded of this passage in the case of 25 Sung Siew Peng where the learned Judge made the following 26 observation when handling allegations and counter allegations of abuse 27 perpetrated from one of the parties : 28 29 “[20] As noted earlier, the allegations made by the wife have been 30 denied by the husband who has made a number of counter allegations. 9 S/N KR3FfMShAUiZdYv9cQOeDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 It is trite that affidavits and counter affidavits lack the facility and flexibility 2 in assisting the court in making satisfactory findings of fact when there 3 is a dispute. It is not possible for the court to resolve disputed questions 4 of fact on affidavit evidence in the absence of cross-examination by 5 opposing counsel. For instance, the wife needs to explain why she 6 sought treatment for an alleged assault in October 2020 in 2021. In 7 addition, there is no credible evidence or particulars to support the wife’s 8 allegation of the husband’s marital affairs. 9 [21] Based on the contested affidavits, the wife is unable to make good 10 her assertion that exceptional circumstances exists because of 11 prolonged violence inflicted on her by the husband, and emotional pain 12 caused by his string of extra marital affairs.” 13 14 [29] I have carefully scrutinize the evidence adduced and I find that the 15 Applicant has failed to satisfy the exception under section 106(1)(vi) of the 16 LRA. The exceptions for the requirement to refer to the Conciliatory Body 17 can only be invoked if the Applicant can satisfactorily show that the 18 Respondent was abusive and had regularly committed domestic violence 19 on her. In addition, the Applicant has failed to show that the incident of 20 20.8.2022 had truly occurred. As it is, this court is of the opinion that there 21 is no positive evidence or proof of the recurring incidents of domestic 22 violence perpetrated by the Respondent throughout their 27 years of 23 marriage. 24 25 [30] After considering all the affidavits affirmed by the parties as well as 26 the submissions, I am unable to conclude there are exceptional 27 circumstances falling within provisio (vii) to section 106 have been 28 established by the Applicant. 29 30 [31] Therefore I agree with counsel for the Respondent that the Applicant 31 has fallen short of proof on a balance of probabilities of her complaint in 32 this matter. If there was any truth to what the Applicant had said about 10 S/N KR3FfMShAUiZdYv9cQOeDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 how severe and serious the incident on 20.8.2022 had been, the Applicant 2 would have wasted no time in filing this application instead of waiting more 3 than one year to do so. Nowhere in her Affidavit has the Applicant 4 explained her reasons for the delay in filing the instant application. 5 6 [32] Her failure to disclose her medical report as early as possible as well 7 as ignoring the outcome of the police investigation on the police report 8 she lodged brings on the inference that there was no domestic violence 9 committed by the Respondent so severe as to cause her serious injuries 10 as she claimed in her Affidavits. All her other allegations on the behaviour 11 and conduct of the Respondent were not supported with any evidence. 12 13 Conclusion 14 [33] As observed earlier the parties have shared their lives for more than 15 27 years without any untoward incident. The incident on 20.8.2022 is the 16 first report on the matter. 17 18 [34] In any event, I took it upon myself to trawl through the affidavits filed 19 to see if the parties have made any attempts at reconciliation before filing 20 this application. Having done so I found no evidence of such averments. 21 From his affidavit the Respondent is willing and is pleading for a chance 22 to appear before the conciliatory body to see whether they can reconcile 23 the parties. After spending 27 years of their life together it would only be 24 fair that the Applicant should give it a try. 25 26 [35] She has not indicated through her affidavits that she had reached 27 out to family and relatives for the purpose of effecting a reconciliation. In 28 Sung Siew Peng the learned Judge was of the view that if no attempts at 29 reconciliation have been previously made, the parties must give the 30 conciliatory body a chance to see if they can help in that regard. I support 11 S/N KR3FfMShAUiZdYv9cQOeDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 that view and believe that the parties in the instant case will benefit from 2 their sessions with the conciliatory body. 3 4 [36] In the circumstances of this case, all things considered, I found that 5 the Applicant had failed to discharge her burden to prove there were 6 exceptional circumstances to warrant the dispensation of parties from 7 appearing before the Conciliatory Body and therefore the application in 8 Encl 1 is dismissed with costs. 9 10 Dated 16 October 2024. 11 12 13 14 (JULIE LACK) 15 Judge 16 High Court of Malaya 17 Shah Alam, Selangor Darul Ehsan 18 19 20 21 22 23 24 25 26 27 28 29 30 12 S/N KR3FfMShAUiZdYv9cQOeDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 Counsel 2 For the Applicant : 3 Jestina Ngaw Kim Fang 4 (MESSRS. THE CHAMBERS OF LOH) 5 6 For the Respondant : 7 Jazzmine Khoo Wei Ching 8 (MESSRS. JAZZMINE KHOO & ASSOCIATES) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 13 S/N KR3FfMShAUiZdYv9cQOeDQ **Note : Serial number will be used to verify the originality of this document via eFILING portal