Dalam Perkara Mengenai Dalam Mahkamah Tinggi Di Kuala Lumpur Saman Pemula No. S-24-1561-2009
Dalam Perkara Mengenai Dalam Mahkamah Tinggi Di Kuala Lumpur Saman Pemula No. S-24-1561-2009
Dalam Perkara Mengenai Dalam Mahkamah Tinggi Di Kuala Lumpur Saman Pemula No. S-24-1561-2009
(BIDANGKUASA RAYUAN)
RAYUAN SIVIL NO. W-02(IM)-1999-10
ANTARA
LAU SIANG KOK, LIONEL
PERAYU
DAN
RESPONDEN
Plaintif
Dan
Defendan
CORAM:
LOW HOP BING, JCA
BALIA YUSOF BIN HAJI WAHI, JCA
MOHTARUDIN BIN BAKI, JCA
I.
APPEAL
[1]
the Probate and Administration Act 1959 (s.41), the Defendant, his
servants and/or agents shall within seven days of the pronouncement
of the order, produce to the Plaintiff a copy of the last Will and
Testament of the late Tan Sri Lau Gek Poh (the Deceased) and the
Trust Settlement and any other related testamentary documents
pertaining to the Deceaseds Estate.
II.
FACTUAL BACKGROUND
[3]
[4]
and one Mdm Lum Sook Chan @ Lam Sook Chan. According to his
Singapore birth certificate, the Plaintiff was born in Singapore on 4
December 1973.
[5]
29 of 2010, sub nom In The Estate of Tan Sri Datuk Lau Gek Poh
@ Lau Gek Poh, Deceased, the learned trial Judge Suffiad J held in
paragraph 76 of his judgment that the Malaysian birth certificate and
passport of the respondent (the Plaintiff herein) in the Malaysian
proceedings is a matter not disputed nor denied by the applicant (the
Defendant herein).
of the view that the respondent (the Plaintiff herein) has shown at
least prima facie evidence that he is the natural son of the Deceased
and that Lum Sook Chun @r Lam Sook Chan was the same person.
He also had no hesitation in accepting the difference in spelling in the
surname Lau and Liew in the Plaintiffs Singapore and Malaysian
birth certificate respectively, being the difference in dialectic
pronunciation of the Chinese surname in Singapore and Malaysia.
[7]
that the Plaintiffs late mother, Lum Sook Chan @ Lam Sook Chan
held Singapore IC No. 0033973.
[9]
and the Defendant met in Hong Kong where the Defendant allowed
the Plaintiff to have sight of the alleged Will. The Plaintiff was wellknown to the Defendant as having a close connection with the
Deceased. However, the Plaintiff was not permitted by the Defendant
to make any copy of the alleged Will to enable the Plaintiff to seek
4
independent legal advice on, inter alia, the contents and legality
thereof.
[12] The Plaintiff had no avenue to verify whether there is a
residuary legatee in the alleged Will or whether there are earlier trusts
or wills executed by the Deceased pre-dating the alleged Will, if the
alleged Will was successfully challenged.
[13] It is not disputed that more than four years have elapsed since
the Deceaseds demise but the Defendant, for reasons best known to
himself, has yet to prove the alleged Will or renounce Probate in
Malaysia or in any other jurisdiction, despite the Deceased leaving a
financial empire worth more than HK$ 6 billion.
[14] On 31 July 2009, the Plaintiff filed the OS.
[15] On the Defendants application, the High Court struck out the
OS on 7 June 2010.
III.
Superintendent of Pudu Prison & Ors [1985] 2 MLJ 385 SC, per
Abdul Hamid CJ(M); Oh Thevesa v Sia Hok Chai [1992] 1 MLJ
5
215 HC, per Lim Beng Choon J (as he then was); and Bandar
Builder Sdn Bhd & Ors v United Malayan Banking Corporation
Bhd [1993] 3 MLJ 36 SC.
[17] In Tractors Malaysia Bhd v Tio Chee Hing [1975] 2 MLJ 1,
the Privy Council, in a speech delivered by Lord Diplock, stressed
at page 1 paragraphs D-E right column that:
The power to dismiss an action summarily without permitting the plaintiff
to proceed to trial is a drastic power. It should be exercised with the
utmost caution but not
..
scandalous
means
wholly
unnecessary
and
irrelevant; and
frivolous
or
vexatious
means
obviously
unsustainable;
[20] Ground (c): Prejudice, embarrass or delay the fair trial of
the action
(2)
(3)
PERSON INTERESTED
[23] Learned counsel Ms Goh Siu Lin submitted for the Plaintiff that
the Plaintiffs claim as the Deceaseds natural son makes the Plaintiff
a person interested under s.41 and so the Plaintiff has a reasonable
cause of action as well as the necessary locus standi to file the OS
under s.41.
[24] Tan Sri Cecil Abraham (Ms Idza Hajar Ahmad Idzam with him)
responded that the Plaintiff is not entitled to seek any relief under
s.41 as the Defendant has not filed any application for the grant of
probate of the Deceaseds alleged will in Malaysia or any other
jurisdictions.
appears that there is reason to believe that any will or other testamentary
document of a deceased person is in the possession or under the control
of any person, or that any person has knowledge of the existence of such
a will or document, order that that person do, within a time named,
produce the will or document at the registry, or attend at a time named
before a Court, for the purpose of being examined in relation to the will or
document.
[27] The procedural vehicle for filing an application under s.41 is set
out in O.71 r.45 in the following words:
10
Bhd, supra.
[30] Further the Defendant has in paragraph 9(d) of his affidavit,
filed in support of his application for security for costs for the sum of
RM500,000.00, admitted as follows:
11
The Plaintiffs Application for the Production of the Will is made pursuant
to Section 41 of the Probate and Administration Act 1959, a provision of
the law that has not been previously ventilated by the Malaysian courts.
As such, much time and effort will be expended in researching this area of
law in preparing to oppose this action on the merits
12
V.
13
14
[41] In the instant Appeal, we take the view that the Plaintiffs refusal
to submit to a DNA cannot be construed as constituting a ground
under O.18 r.19(1)(a), (b), (c) or (d).
[42] More specifically, the OS also does not constitute an abuse of
the process of the court under ground (d). The mere fact that the
Plaintiff has sighted the alleged Will does not prevent the Plaintiff
from seeking a remedy under s.41 so as to put in place his rights, if
any, under the law.
CONCLUSION
[43] By reason of the above, we allow this Appeal, set aside the
order of the High Court and substitute it with an order that the
Plaintiffs OS be remitted to the High Court to be heard before
another Judge. Costs of RM10,000 to the Plaintiff. Deposit to be
refunded to the Plaintiff (Appellant).
REFERENCE:
Peter James Binsted v Juvencia Auto Patrosa [2000] 2 MLJ 569 HC
Ng Chian Perng v Ng Ho Peng [1998] 2 MLJ 686 HC
Sim Kie Chon v Superintendent of Pudu Prison & Ors [1985] 2 MLJ
385 SC
Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation
Bhd [1993] 3 MLJ 36 SC
Hashim bin Din v Sato Kogyo Co Ltd [1988] 1 MLJ 527 HC
16
New Straits Time (Malaysia) Bhd v Kumpulan Kertas Niaga Sdn Bhd &
Anor [1985] 1 MLJ 226 FC
Technointan Holding Sdn Bhd v Tetuan Tan Kim Siong & TBH Hong
Jet [2007] 1 MLJ 163 HC
Boey Oi Leng t/a Indah Reka Construction & Trading v Trans
Resources Corporation Sdn Bhd [2002] 1 CLJ 405 HC
Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin [1998] 1
SLR 374 at 384
Jasa Keramat Sdn Bhd & Anor v Monatech (M) Sdn Bhd [1999] 4 MLJ
637
Indah Saujana Corp Sdn Bhd & Ors v James Foong Cheng Yuen,
Hakim Mahkamah Tinggi, Malaya and Anor [2008] 2 MLJ 11 CA
Tractors Malaysia Bhd v Tio Chee Hing [1975] 2 MLJ 1
Oh Thevesa v Sia Hok Chai [1992] 1 MLJ 215 HC
17
PERAYU
DAN
RESPONDEN
Plaintif
Dan
Defendan
CORAM:
LOW HOP BING, JCA
BALIA YUSOF BIN HAJI WAHI, JCA
MOHTARUDIN BIN BAKI, JCA
I.
APPEAL
[1]
the Probate and Administration Act 1959 (s.41), the Defendant, his
servants and/or agents shall within seven days of the pronouncement
of the order, produce to the Plaintiff a copy of the last Will and
Testament of the late Tan Sri Lau Gek Poh (the Deceased) and the
Trust Settlement and any other related testamentary documents
pertaining to the Deceaseds Estate.
II.
FACTUAL BACKGROUND
[3]
[4]
and one Mdm Lum Sook Chan @ Lam Sook Chan. According to his
Singapore birth certificate, the Plaintiff was born in Singapore on 4
December 1973.
[5]
29 of 2010, sub nom In The Estate of Tan Sri Datuk Lau Gek Poh
@ Lau Gek Poh, Deceased, the learned trial Judge Suffiad J held in
paragraph 76 of his judgment that the Malaysian birth certificate and
passport of the respondent (the Plaintiff herein) in the Malaysian
proceedings is a matter not disputed nor denied by the applicant (the
Defendant herein).
of the view that the respondent (the Plaintiff herein) has shown at
least prima facie evidence that he is the natural son of the Deceased
and that Lum Sook Chun @r Lam Sook Chan was the same person.
He also had no hesitation in accepting the difference in spelling in the
surname Lau and Liew in the Plaintiffs Singapore and Malaysian
birth certificate respectively, being the difference in dialectic
pronunciation of the Chinese surname in Singapore and Malaysia.
[7]
that the Plaintiffs late mother, Lum Sook Chan @ Lam Sook Chan
held Singapore IC No. 0033973.
[9]
and the Defendant met in Hong Kong where the Defendant allowed
the Plaintiff to have sight of the alleged Will. The Plaintiff was wellknown to the Defendant as having a close connection with the
Deceased. However, the Plaintiff was not permitted by the Defendant
to make any copy of the alleged Will to enable the Plaintiff to seek
4
independent legal advice on, inter alia, the contents and legality
thereof.
[12] The Plaintiff had no avenue to verify whether there is a
residuary legatee in the alleged Will or whether there are earlier trusts
or wills executed by the Deceased pre-dating the alleged Will, if the
alleged Will was successfully challenged.
[13] It is not disputed that more than four years have elapsed since
the Deceaseds demise but the Defendant, for reasons best known to
himself, has yet to prove the alleged Will or renounce Probate in
Malaysia or in any other jurisdiction, despite the Deceased leaving a
financial empire worth more than HK$ 6 billion.
[14] On 31 July 2009, the Plaintiff filed the OS.
[15] On the Defendants application, the High Court struck out the
OS on 7 June 2010.
III.
Superintendent of Pudu Prison & Ors [1985] 2 MLJ 385 SC, per
Abdul Hamid CJ(M); Oh Thevesa v Sia Hok Chai [1992] 1 MLJ
5
215 HC, per Lim Beng Choon J (as he then was); and Bandar
Builder Sdn Bhd & Ors v United Malayan Banking Corporation
Bhd [1993] 3 MLJ 36 SC.
[17] In Tractors Malaysia Bhd v Tio Chee Hing [1975] 2 MLJ 1,
the Privy Council, in a speech delivered by Lord Diplock, stressed
at page 1 paragraphs D-E right column that:
The power to dismiss an action summarily without permitting the plaintiff
to proceed to trial is a drastic power. It should be exercised with the
utmost caution but not
..
scandalous
means
wholly
unnecessary
and
irrelevant; and
frivolous
or
vexatious
means
obviously
unsustainable;
[20] Ground (c): Prejudice, embarrass or delay the fair trial of
the action
(2)
(3)
PERSON INTERESTED
[23] Learned counsel Ms Goh Siu Lin submitted for the Plaintiff that
the Plaintiffs claim as the Deceaseds natural son makes the Plaintiff
a person interested under s.41 and so the Plaintiff has a reasonable
cause of action as well as the necessary locus standi to file the OS
under s.41.
[24] Tan Sri Cecil Abraham (Ms Idza Hajar Ahmad Idzam with him)
responded that the Plaintiff is not entitled to seek any relief under
s.41 as the Defendant has not filed any application for the grant of
probate of the Deceaseds alleged will in Malaysia or any other
jurisdictions.
appears that there is reason to believe that any will or other testamentary
document of a deceased person is in the possession or under the control
of any person, or that any person has knowledge of the existence of such
a will or document, order that that person do, within a time named,
produce the will or document at the registry, or attend at a time named
before a Court, for the purpose of being examined in relation to the will or
document.
[27] The procedural vehicle for filing an application under s.41 is set
out in O.71 r.45 in the following words:
10
Bhd, supra.
[30] Further the Defendant has in paragraph 9(d) of his affidavit,
filed in support of his application for security for costs for the sum of
RM500,000.00, admitted as follows:
11
The Plaintiffs Application for the Production of the Will is made pursuant
to Section 41 of the Probate and Administration Act 1959, a provision of
the law that has not been previously ventilated by the Malaysian courts.
As such, much time and effort will be expended in researching this area of
law in preparing to oppose this action on the merits
12
V.
13
14
[41] In the instant Appeal, we take the view that the Plaintiffs refusal
to submit to a DNA cannot be construed as constituting a ground
under O.18 r.19(1)(a), (b), (c) or (d).
[42] More specifically, the OS also does not constitute an abuse of
the process of the court under ground (d). The mere fact that the
Plaintiff has sighted the alleged Will does not prevent the Plaintiff
from seeking a remedy under s.41 so as to put in place his rights, if
any, under the law.
CONCLUSION
[43] By reason of the above, we allow this Appeal, set aside the
order of the High Court and substitute it with an order that the
Plaintiffs OS be remitted to the High Court to be heard before
another Judge. Costs of RM10,000 to the Plaintiff. Deposit to be
refunded to the Plaintiff (Appellant).
REFERENCE:
Peter James Binsted v Juvencia Auto Patrosa [2000] 2 MLJ 569 HC
Ng Chian Perng v Ng Ho Peng [1998] 2 MLJ 686 HC
Sim Kie Chon v Superintendent of Pudu Prison & Ors [1985] 2 MLJ
385 SC
Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation
Bhd [1993] 3 MLJ 36 SC
Hashim bin Din v Sato Kogyo Co Ltd [1988] 1 MLJ 527 HC
16
New Straits Time (Malaysia) Bhd v Kumpulan Kertas Niaga Sdn Bhd &
Anor [1985] 1 MLJ 226 FC
Technointan Holding Sdn Bhd v Tetuan Tan Kim Siong & TBH Hong
Jet [2007] 1 MLJ 163 HC
Boey Oi Leng t/a Indah Reka Construction & Trading v Trans
Resources Corporation Sdn Bhd [2002] 1 CLJ 405 HC
Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin [1998] 1
SLR 374 at 384
Jasa Keramat Sdn Bhd & Anor v Monatech (M) Sdn Bhd [1999] 4 MLJ
637
Indah Saujana Corp Sdn Bhd & Ors v James Foong Cheng Yuen,
Hakim Mahkamah Tinggi, Malaya and Anor [2008] 2 MLJ 11 CA
Tractors Malaysia Bhd v Tio Chee Hing [1975] 2 MLJ 1
Oh Thevesa v Sia Hok Chai [1992] 1 MLJ 215 HC
17