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    Por Boon Lan V Hong Sie Kit and Anor - (2010

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    1. The plaintiff, Por Boon Lan, applied for custody of her two children with defendant Hong Sie Kit. She claimed the children were born out of an unregistered customary marriage and she had always cared for them. 2. The court initially granted the plaintiff interim custody and restraining orders. At a subsequent hearing, the court ordered the defendants to comply with the interim orders and fixed the case for mediation at the defendant's request. 3. The defendant Hong Sie Kit then filed this appeal challenging the interim orders, which the court saw as inconsistent as the defendant had asked for mediation instead of a hearing on the plaintiff's application.

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    Por Boon Lan V Hong Sie Kit and Anor - (2010

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    species09
    183 views5 pages
    1. The plaintiff, Por Boon Lan, applied for custody of her two children with defendant Hong Sie Kit. She claimed the children were born out of an unregistered customary marriage and she had always cared for them. 2. The court initially granted the plaintiff interim custody and restraining orders. At a subsequent hearing, the court ordered the defendants to comply with the interim orders and fixed the case for mediation at the defendant's request. 3. The defendant Hong Sie Kit then filed this appeal challenging the interim orders, which the court saw as inconsistent as the defendant had asked for mediation instead of a hearing on the plaintiff's application.

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    family law notes

    Original Title

    Por Boon Lan v Hong Sie Kit and Anor - [2010

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    1. The plaintiff, Por Boon Lan, applied for custody of her two children with defendant Hong Sie Kit. She claimed the children were born out of an unregistered customary marriage and she had always cared for them. 2. The court initially granted the plaintiff interim custody and restraining orders. At a subsequent hearing, the court ordered the defendants to comply with the interim orders and fixed the case for mediation at the defendant's request. 3. The defendant Hong Sie Kit then filed this appeal challenging the interim orders, which the court saw as inconsistent as the defendant had asked for mediation instead of a hearing on the plaintiff's application.

    Copyright:

    © All Rights Reserved
    Download as RTF, PDF, TXT or read online from Scribd
    Download as rtf, pdf, or txt
    183 views5 pages

    Por Boon Lan V Hong Sie Kit and Anor - (2010

    Uploaded by

    species09
    1. The plaintiff, Por Boon Lan, applied for custody of her two children with defendant Hong Sie Kit. She claimed the children were born out of an unregistered customary marriage and she had always cared for them. 2. The court initially granted the plaintiff interim custody and restraining orders. At a subsequent hearing, the court ordered the defendants to comply with the interim orders and fixed the case for mediation at the defendant's request. 3. The defendant Hong Sie Kit then filed this appeal challenging the interim orders, which the court saw as inconsistent as the defendant had asked for mediation instead of a hearing on the plaintiff's application.

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    © All Rights Reserved
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    Download as rtf, pdf, or txt
    of 5

    1

    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 :

    1
    1
    1
    1
    1
    1
    1
    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 :

    2
    2

    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.

    2
    2
    2
    2
    2
    2
    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.

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