MALAYSIA

IN THE HIGH COURT IN SABAH AND SARAWAK AT SIBU

ORIGINATING SUMMONS NO. 24-49-2007

IN THE MATTER of the adoption of Luk Thien Sieng 5

AND

IN THE MATTER of Sections 3, 5, 7(2)(d) and 8 of the Adoption
Ordinance (Cap 91) of Sarawak 10
AND

IN THE MATTER of Order 15 Rule 16 of Rule of High Court 1980

BETWEEN 15

TING AI CHOON @ TING AI CHOONG
(WN.KP.371009-13-5300)
No.8D, Lorong 2
Jalan Langsat 20
96000 Sibu
Sarawak. Plaintiff
AND

LUK THIEN SIENG (f) 25
(WN.KP.880713-52-5566)
25, Teo Kui Ngo Road
96500, Bintangor
Sarawak. 1
st
Defendant
30
LOH NGO CHUO (f)
(WN.KP.620330-13-5838)
No. 25, Jalan Teo Kui Ngo
96500, Bintangor
Sarawak 2
nd
Defendant 35

TAN KENG HWEE
c/o No. 25, Jalan Teo Kui Ngo
96500, Bintangor
Sarawak. 3
rd
Defendant 40
OS-24-49-2009
2

BEFORE THE HONOURABLE JUDICIAL COMMISSIONER
Y.A. PUAN RHODZARIAH BT. BUJANG

IN CHAMBERS 5

JUDGMENT

Madam Ting Ai Choon @ Ting Ai Choong, the plaintiff in this
case, married one Mr. Luk Tai Lik on 7.1.1957 in Bintangor, Sarawak 10
which marriage was still subsisting at the time of the filing of this
action on the 8.6.2009. Madam Ting Ai Choon and her husband
have 3 daughters and also adopted a boy in 1963.

By an originating summons filed on 30.11.2006, Madam Ting Ai 15
Choon applied for and was granted by the court an ex parte order
appointing her as the legal representative and receiver of her
husbands estate on the grounds of her husbands diminished mental
capacity due to dementia.
20
After obtaining that ex parte order, Madam Ting Ai Choon was
served with an application by one Ms. Luk Thien Sieng (the 1
st

defendant in this action) to set aside the appointment of Madam Ting
Ai Choon as her husbands legal representative and receiver of his
estate. The grounds of Ms. Luk Thien Siengs application was, as the 25
adopted daughter of Mr. Luk Tai Lik, her rights and liabilities would be
affected by the said court order (see paragraph 9(i) and (ii) of Madam
Ting Ai Choons affidavit in support of this application).

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Madam Ting Ai Choon has expressed shock and disbelief on
the adoption of Ms. Luk Thien Sieng as her search revealed that Ms.
Luk Thien Sieng was adopted at the aged of 9 years, by her husband
with one Madam Loh Ngo Chuo (the 2
nd
defendant herein) without
her consent and knowledge and whilst her marriage with Mr. Luk Tai 5
Lik is still subsisting. There is a further twist to her agony Madam
Loh Ngo Chuo is actually the birth mother of Ms. Luk Thien Sieng.
The birth father of Ms. Luk Thien Sieng is said to be one Mr. Tan
Keng Hwee (the 3
rd
defendant herein). The adoption order was made
by the District Officer of Bintangor and it was registered on 27.3.1997. 10

Madam Ting Ai Choon now filed this action to declare the
adoption of Ms. Luk Thien Sieng as null and void, that the
proceedings instituted by her against the properties and/or interest of
Mr. Luk Tai Lik be stayed until the disposal of this action, for 15
damages and other necessary and consequential directions by the
court.

The defendants case
Madam Loh Ngo Chuo has filed an affidavit opposing this 20
application. In it she referred to the statutory declaration of Madam
Ting Ai Choon herself in which Madam Ting Ai Choon has declared
that her husband has deserted her and committed adultery in 1978
and at the time of the making of the declaration on 14.11.2006, she
further affirmed that her husband was staying together with Madam 25
Loh Ngo Chuo. Madam Ting Ai Choon did not directly deny this but
asserted in her affidavit in reply that despite the desertion by her
husband, he still loves her and considered her his lawful wife.
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4
Evidence of a letter from him dated 17.7.2001 besieging her to come
back to their old home and to take care of him was exhibited, as was
the obituary published in the newspaper in respect of her mother-in-
laws death which mentioned her as the daughter-in-law of the
deceased. 5

What is apparent to me from this statutory declaration is that
from 1978 till the date of its affirmation on 14.11.2006, Madam Ting
Ai Choon was not living as man and wife with Mr. Luk Tai Lik,
contrary to what she deposed in her affidavit in support of this 10
application. What is also clear is that Mr. Luk Tai Lik is a very
wealthy man for this was what YA Tuan Ravinthran Paramaguru said
in his judgment when Madam Loh Ngo Chuo applied to set aside the
ex parte order making Madam Ting Ai Choon the legal representative
and receiver of Mr. Luk Tai Liks assets and properties. The present 15
action before me was obviously filed to stop Madam Loh Ngo Chuo
and her daughter from gaining access to this wealth and from
interfering with her exclusive right to manage it. Incidentally, YA
Tuan Ravinthran Paramaguru had maintained the ex parte order
making Madam Ting Ai Choon, her husbands legal representative 20
and receiver but allowed Madam Loh Ngo Chuo and her 3 children (2
other sons and Ms. Luk Thien Sieng) to be added as respondents in
that action for the purpose of applying for maintenance under
paragraph 1(c) of the Schedule to section 11 of the Mental Health
Ordinance of Sarawak. The position of Madam Loh Ngo Chuo as 25
one of the 2 common law wives of Mr. Luk Tai Lik was mentioned in
YA Ravinthran Paramagurus judgment as did the adoption of Ms.
Luk Thien Sieng herein.
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At the hearing
The defendants counsel, Mr. Alexander Yeo submitted as a
preliminary point that I was not seized with the jurisdiction to grant the
declaratory reliefs prayed for because firstly, Madam Ting Ai
Choons motive in applying for it is inequitable as it is to defeat the 5
challenge mounted by Ms. Luk Thien Sieng against the ex parte order
making her the legal representative and receiver of her husband and
his assets and properties. Secondly, the effect of the declaratory
order is to quash the decision of the District Officer who granted the
adoption order and he is not the party before the court. He submitted 10
that Madam Ting Ai Choon should have commenced an action to
quash the adoption order by applying for a writ of certiorari since the
real complaint here is the action and decision made by the District
Officer in granting the adoption order. Thirdly, Mr. Alexander Yeo
said Madam Ting Ai Choon was guilty of laches as she had delayed 15
filing her grievance in court for she waited 2 years after receiving the
adoption certificate before filing this action. Lastly, he submitted on
the futility of granting the declaration as Ms. Luk Thien Sieng is now
21 years of age and what, he asked, is the good of erasing her
identity as the daughter of Mr. Luk Tai Lik and reverting her status as 20
Mr. Tan Keng Hwees daughter?

The adoption order
The Adoption Ordinance (the Ordinance) is a good point to
start my consideration. Section 5 of the Ordinance stipulates the 25
conditions for a valid adoption and paragraph (c), before it was
amended to paragraph (e) by Amending Chapter A100/02 (which
took effect on 1.12.2002), provides that if there be two adopting
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parents (as in this case) the said parents must be legally married to
one another by custom or otherwise.

To recapitulate, Madam Ting Ai Choons stand of course is that
Mr. Luk Tai Lik and Madam Loh Ngo Chuo were never legally married 5
when they adopted Ms. Luk Thien Sieng for her marriage to Mr. Luk
Tai Lik was still subsisting when the adoption order was made,
although her own statutory declaration shows that the said marriage
was only on paper and that Mr. Luk Tai Lik was cohabitating with
Madam Loh Ngo Chuo as husband and wife. 10

Saying that, however, does not mean that I recognize that
union of Mr. Luk Tai Lik and Madam Loh Ngo Chuo as one that
comes within the definition of legally married under section 5(e) of
the Ordinance for I see the wisdom of the legislature in enacting that 15
provision which is for an adopted child to be raised within the sanctity
of a lawful marriage and not in just any union between a man and a
woman; physical intimacy and feelings of affection aside.

I also see greater wisdom in maintaining the status quo in this 20
case for the reason that the overriding consideration of my decision
must be the welfare of Ms. Luk Thien Sieng, whom I can no longer
call a child for at 21 years of age she is now, a mature adult. She
was adopted at the age of 9 years, knew Mr. Luk Tai Lik as her father
and grew under his parentage. It would be simply unjust to erase an 25
identity she has lived with for the past 12 years and I agree with Mr.
Alexander Yeo on the futility of obliterating her present identity for no
valid purpose other than to defeat the court order giving her the right
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7
to seek maintenance from the father that she knew all these years of
her life. It is not even to challenge Madam Ting Ai Choons sole
control over the assets and properties of Mr. Luk Tai Lik for YA Tuan
Ravinthran Paramaguru, as I mentioned earlier, had decided to
maintain the ex parte order making her the legal representative and 5
receiver of Mr. Luk Tai Liks assets and properties. Further, in my
view, it is inequitable to grant the declaration sought here knowing
fully well that its sole utility is to defeat a court order, not as a shield
to defend a right and least of all to protect the interest and welfare of
an adopted child, the object I am sure, the Ordinance was enacted. 10
The preamble of the Ordinance in fact states that it is,
An Ordinance to make better provision in the law relating to the
adoption of children. (emphasis added).

Furthermore, my power to annul an adoption order is governed 15
by section 7(2) of the Ordinance which provides 5 instances when the
court can make such an order. These 5 instances are:
(a) that the adopted child is being treated in such a way by the
adopting parents that the health of such child is being
injured; 20
(b) that the adopting parents are unfit to have the care and
custody of the child;
(c) that in all the circumstances of the case it is in the interests
of the child that the adoption should be annulled;
(d) that the registration of the adoption was procured by fraud or 25
misrepresentation on the part of any of the persons named
in the certificate as the natural parent or adopting parent or
guardian of the child; or
(e) that the adopted child, who is still a minor, has been
abandoned by his adopting parents or parent or the 30
whereabouts of such a child are unknown.

Paragraph 7(2)(c) clearly said the annulment is to be done if its in the
interests of the adopted child to do so. I have said in the preceding
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8
paragraph why I think that it is not in Ms. Luk Thien Siengs interest to
make this declaration.

If this reasoning is not convincing enough to Madam Ting Ai
Choon, then I would go into the technicalities of the law. She has 5
alleged that the registration of the adoption was procured by fraud or
misrepresentation by Mr. Luk Tai Lik and Madam Loh Ngo Chuo
(paragraph 7(2)(d) of the Ordinance as mentioned above) for they
were not legally married when the adoption was done.
10
However, if one were to look at section 7, it says that firstly, the
application for annulment is to be made by originating motion and
whats more, by any of the person named in the certificate of adoption
such as the natural parent or adopting parent or guardian or child.
Madam Ting Ai Choon is definitely not one named in that section and 15
is therefore incompetent to seek a declaration to annul the adoption
of Ms. Luk Thien Sieng even if I were prepared to invoke Order 1A of
the Rules of the High Court 1980 and overlook the fact that she had
begun this action by originating summons and not originating motion.
An additional technical point I wish to make is this. Section 7(3) of 20
the Ordinance provides that when an adoption is annulled by the
court, the rights of the adopted child and the adopting parents are
extinguished and the child resume his original legal status as the
child of his natural parents. A child is defined in the Ordinance as
an unmarried person under the age of eighteen years. By 25
implication therefore, the Ordinance only allows annulment of
adoption when the adopted person is below the age of eighteen. The
significance and/or rationale for this, in my view, is what I have
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9
mentioned earlier, which I shall now rephrase as this. The welfare of
the adopted child or person is paramount. If we were to allow
annulment of an adoption after the adopted child has become an
adult and after he has assumed the identity given to him by his
adoptive parents, the legal ramifications and psychological effect on 5
him or her (in this case) would be simply too damaging, an injustice
which the law does not intend and the court should not be a party to.

Thus, for these reasons, I am not prepared to grant the
declarations sought by Madam Ting Ai Choon and will dismiss her 10
action with costs to be taxed unless agreed.


Sgd.
(Y.A. PUAN RHODZARIAH BT. BUJANG) 15
Judicial Commissioner
High Court II, Kuching.


Date of Judgment : 5
th
day of November 2009 20


For Plaintiff : Mr. Anthony Ngeh Koh Seh,
Messrs. Ranelagh Advocates,
Kuching. 25

For 1
st
& 2
nd

Defendants : Mr. Alexander Yeo Chuan Kiat,
Messrs. Y.O. Leong & Co., Advocates,
Kuching. 30