JUDGMENT

Zulkefli Makinudin JCA:

Introduction

[1] This is an appeal by the plaintiff against the decision of the High Court at Kuala Lumpur which allowed only a part of the plaintiff's claim for maintenance, matrimonial assets and custody. The learned judge of the High Court only allowed joint custody of the children to both the plaintiff ("the wife") and the defendant ("the husband") with actual care and control to the defendant, and that the matrimonial home would be held by both the plaintiff and the defendant on trust for their children. The plaintiff's other claims including maintenance were dismissed. At the outset of the hearing before us learned counsel for the plaintiff indicated that due to change of circumstances in the last few years pending hearing of the appeal, the plaintiff wished to abandon the other claims in the appeal and is now proceeding only with her claim for maintenance.

Background Facts Of The Case

[2] The relevant background facts of the case are as follows:

[3] The plaintiff and the defendant were married on 22 February 1983 and they have three children, two daughters and a son, aged between thirteen and eighteen years old. The plaintiff was from Taiwan and is now a permanent resident of Malaysia. The plaintiff alleged that during the marriage, she and her husband, the defendant had entered into a direct sale business with a company known as E. Excel International Incorporated.

As a result of their effort, the direct sale business was very successful. Thereafter, the said business was transferred to Wiranet Sdn. Bhd. in which the defendant holds 1999 shares and the plaintiff holds one share. The family depends on the commission received from the said Wiranet company for daily living, investment and others. The plaintiff alleged that in December 2002, she found out that the defendant had committed adultery. The defendant exerted pressure on her that either she accept his adulterous relationship or be separated from him and be expelled from the matrimonial home. The plaintiff then rushed back to her parents' home in Taiwan. However, when she came back to Malaysia she found out that the matrimonial home was locked, her personal belongings and multi-purpose vehicle, Nissan Serena had disappeared. The defendant also hid the children from her. Thereafter, the plaintiff filed claim against the defendant to restore the matrimonial home with full furnishing, maintenance and custody of her children (refer to statement of claim at pp. 45-55 of the appeal record). The defendant however, alleged that before the plaintiff deserted the family, she had taken away RM5 million from the company's account and left him heavily in debt. Furthermore, the plaintiff has maintained several accounts with nine financial institutions locally as well as in institutions in China and Taiwan. The defendant also alleged that the children were scared of her and she had taught them since they were young to steal from hotels and supermarkets. Therefore, the plaintiff's claim as contended by the defendant is false and is intended to gain sympathy from the court.

Findings Of The High Court

[4] The learned judge of the High Court in his judgment allowing only a part of the plaintiff's claim inter alia held that the plaintiff is a person of wealthy means who possessed over fifty two (52) bank accounts in over nine financial institutions locally, and unaccounted accounts overseas in China and Taiwan. The learned judge found that the plaintiff failed as a mother to provide love and affection to her children. All the three children recalled that the plaintiff taught them to steal from hotel and supermarket. The learned judge further held that the plaintiff had lied to the court that she was ignorant of any third party involvement.

The marriage had broken down more than ten years ago. According to the children's account of the past the plaintiff was the cause of the breakdown of the marriage.

Decision Of The Court On Appeal

[5] In the appeal b