1. ) Kam Choi Foong v 1. ) Ketua Pengarah Jabatan Pendaftaran Negara (WA-24-59-10/2022)

KAM CHOI FONG

CHONG AH CHYE (NO. K/P: 481226-10-5201) …PLAINTIF-PLAINTIF

KERAJAAN MALAYSIA …DEFENDAN-DEFENDAN JUDGMENT S/N 69eUSl7nkeMni1mo9cKBA The factual background [1] The plaintiffs, who are husband and wife, are citizens of Malaysia. [2] The 1st plaintiff was a babysitter at the material time. [3] Sometimes in late 2005, a Chinese woman (“the Chinese Woman”) visited the plaintiffs’ residence at Block 2 of the Greenview Apartment, Kepong, Kuala Lumpur and requested the 1st applicant to babysit her newborn daughter, the Child. According to the 1st plaintiff, the Chinese Woman was very young and, about 17 or 18. [4] The Chinese Woman explained that she could not care for the Child due to her work commitment and asked the 1st plaintiff to help babysit the Child during the day. She paid the 1st plaintiff RM300 in cash. [5] Around a week later, the Chinese Woman informed 1st plaintiff that she needed to work in Rawang. She then asked the 1st plaintiff to also care for the Child during the night. The Chinese Woman assured the 1st plaintiff that the balance of RM500, being the 1st month’s babysitting fees, would be paid when she received her salary. [6] According to the 1st plaintiff, the Chinese Woman was initially in contact with her. Unfortunately, the Chinese Woman became incommunicado, and her mobile phone was no longer in service. To compound the matter, the balance of the babysitting fees was not paid. [7] It is at this stage that the plaintiffs realised that the Chinese Woman had abandoned the Child with them. The plaintiffs continued the search for the Chinese Woman but to no avail. In any event, since the plaintiffs remained at the same address, the Chinese Woman could have contacted them but did not do so. [8] As the Child was ill and suffered from epilepsy, the plaintiffs then obtained a birth certificate and MyKid card for the Child through Klinik Kita Cawangan Wangsa Maju, Kuala Lumpur (“the 1st birth certificate”). The 1st birth certificate stated the plaintiffs as the Child’s biological parents and recorded the Child’s date of birth as 11.12.2005. It was registered on 22.12.2005. S/N 69eUSl7nkeMni1mo9cKBA [9] With the issuance of the 1st birth certificate by the Registrar-General of Births and Deaths, the Child could receive medical treatment, vaccination and later schooling. The application for the Child’s MyKad [10] The problem arose when the Child attained the age of 12 years when she applied for the issuance of her MyKad – the National Registration Identity Card. [11] The Child’s application for MyKad was referred to by the National Registration Department (“JPN”) to its Kepong Branch. An investigation was initiated since the facial features of the Child were not similar to those of the plaintiffs. Separate statements were recorded by the JPN officers from the plaintiffs. [12] According to the recorded statement made by the 1st plaintiff, the Child was conceived during her extra-marital relationship with another person, which was unbeknown to her husband. She therefore asserted that the Child was her biological daughter: Q17: Adakah kamu mengaku yang CSV (“the Child”) adalah anak kandung kamu? Ya, anak saya. Q18: Adakah kamu sanggup melakukan ujian DNA jika diarahkan oleh pihak JPN? Sanggup, tapi minta pengurangan bayaran. [13] The recorded statement from the 2nd plaintiff is more revealing. In the statement, the 2nd plaintiff confirmed that the Child was his biological daughter and he was with her wife, the 1st plaintiff, when the Child was delivered: Q4: Boleh nyatakan apa bukti yang CSV (“the Child”) anak kamu? Saya nampak sendiri isteri saya mengandung dan melahirkan anak. [14] Pursuant to the statements recorded from the plaintiffs, the plaintiffs were directed by the JPN officers to undergo a DNA test. However, before the DNA test could be conducted, the plaintiffs appeared at S/N 69eUSl7nkeMni1mo9cKBA the Investigation and Enforcement Division (“BSK”) at the JPN Kuala Lumpur. The 1st plaintiff admitted that the Child was handed to her by one “Wong Tai” and that she was unaware of the Child's biological parents. [15] As a result of the admission made by the 1st plaintiff, the JPN issued a second birth certificate to correct the status of the Child (“the 2nd birth certificate”). The particulars of the Child’s parents on the 1st birth certificate were removed and replaced with Maklumat Tidak Diperolehi or “information not available”. [16] The 2nd birth certificate was registered by the JPN on 17.6.2022. [17] It is also stated in the 2nd birth certificate that the Child is Bukan Warganegara or a non-citizen. [18] In the meantime, the plaintiffs filed an Originating Summons at the Kuala Lumpur High Court vide No.34-9-10/2021 (“OS No. 9”) for an adoption order for the Child. On 15.2.2022, the Kuala Lumpur High Court granted an order in terms of the application (“the Adoption Order”). [19] The Adoption Order inter alia states as follows: MAKA ADALAH DENGAN INI DIPERINTAHKAN bahawa CHONG AH CHYE (No. K/P: 481226-10- 5201) dan KAM CHOI FOONG (p) (No. K/P: 590817-06-5048) dibenarkan mengambil kanak-kanak tersebut sebagai anak angkat dengan nama CSV (p). With the granting of the Adoption Order, a new birth certificate was issued to the Child (“the 3rd birth certificate”). The plaintiffs are stated as the parents in the 3rd birth certificate. However, the Child is still stated as a non-citizen. The Originating Summons [20] In this Originating Summons (“OS”), the plaintiffs seek declaratory orders that the Child is a citizen of Malaysia by operation of law under Art 14(1)(b) of the Federal Constitution, pursuant to: S/N 69eUSl7nkeMni1mo9cKBA

S 1(a) of Part II of the Second Schedule, read together with s 19B Part III (“s 1(a)”); and

S 1(e) of Part II of the Second Schedule, read with s 2(3) (“s 1(e)”). [21] The OS is supported by the affidavit of the 1st plaintiff in Encl 2 (“AIS- 2”), who affirmed the same on behalf of the 2nd plaintiff. [22] The defendants filed an affidavit in reply through Siti Maslinda binti Mardi in Encl 8 (“AIR-8”). Puan Siti Maslinda is the Director of the Citizenship Division at the JPN. [23] There are further affidavits filed by the parties, which will be referred to as and when the need arises. Whether s 1(a) is applicable [24] S 1(a) Part II provides that subject to the provisions of that Part, the following persons born on or after Malaysia Day are citizens by operation of law, that is to say: Every person born within the Federation of whose parents one at least is at time of the birth either a citizen or permanently resident in the Federation. S 19B Part III of the Second Schedule of the Federal Constitution (“s 19B”) provides that any newborn child found exposed in any place shall be presumed until the contrary is shown to have been born there of a mother permanently resident there. [25] Before me, learned counsel for the plaintiffs referred me to the judgment of the Federal Court in CCH & Anor (on behalf of themselves and as litigation representatives of one CYM, a child) v Pendaftar Besar bagi Kelahiran dan Kematian, Malaysia [2022] 1 MLJ 71 FC and submitted that the Child is a Malaysian citizen by operation of law pursuant s 1(a) read with s 19B. S/N 69eUSl7nkeMni1mo9cKBA [26] Learned counsel for the plaintiffs conceded that the act of abandonment by the Chinese Woman was not immediate. The Chinese Woman did not leave the Child immediately. However, learned counsel for the plaintiffs urged this Court to view the Chinese Woman’s series of actions in totality. For one, the Chinese Woman never returned to the plaintiffs’ residence for close to 18 years. Learned counsel then contended that the Chinese Woman, by her act or omission, had made the act of abandonment clear. [27] The 1st plaintiff’s narration of the events is supported by the affidavits of Rifati, an Indonesian citizen in Encl 12 (“AIS-12”) and Kuan Siew Sin (“Kuan”) in Encl 13 (“AIS-13”). Rifati, a housewife, affirmed as follows in AIS-12:

She resided in Block 4, Greenview Apartment, for the last 20 years.

Sometimes in 2005, she bumped into a young Chinese woman around the Greenview Apartment who was in the advanced stage of pregnancy. According to Rifati, the Chinese woman in her 20s, was looking for a babysitter to take care of her child after the delivery.

The Chinese woman told Rifati that she was from Sabah.

Rifati then brought and showed the Chinese woman to the 1st plaintiff’s apartment unit in Block 2.

A week later, she met up with the same Chinese woman – this time carrying a newly delivered baby as she headed towards the 1st plaintiff’s apartment. [28] As to Puan Kuan, she affirmed as follows in AIS-13:

The plaintiffs are her neighbours at Greenview Apartment.

She used to see a young Chinese woman knocking on the door of the plaintiffs’ unit and announcing that she was outside with the Child. [29] Learned counsel for the plaintiffs submitted that even if the plaintiffs were wrong to assume that the Chinese Woman, whose existence had been witnessed by Rifati and Puan Kuan, was not the Child’s S/N 69eUSl7nkeMni1mo9cKBA biological mother, the presumption of s 19B still applies. According to learned counsel, s 19B refers to “any newborn child found exposed in any place” and only requires a newborn child to be abandoned. It is therefore, the plaintiffs’ case that for the purpose of s 19B, the Child was indeed abandoned. [30] In any event, until the contrary is shown, learned counsel submitted that the Child is presumed to have been born in Kuala Lumpur of a mother permanently resident in Kuala Lumpur. [31] In conclusion, learned counsel contended on a critical evaluation of affidavit evidence the circumstances of abandonment of the Child are not inherently incredible. Whether s 1(e) is applicable [32] In the alternative, learned counsel for the plaintiffs also submitted that a person born in Malaysia and did not acquire any foreign citizenship within one year from his birth is a Malaysian citizen by operation of law under s 1(e) read together with s 2(3) of the Second Schedule of the Federal Constitution. [33] Under s 2(3), it must be established that the Child did not acquire citizenship of any country within one year of her birth pursuant to s 2(3) of the Second Schedule [34] A person can be a citizen of Malaysia by operation of law under s 1(e) and s 2(3) of the Second Schedule of the Federal Constitution. For s 1(e) to be applicable, the conditions precedent are as follows:

The applicant was born on or after Malaysia Day;

The applicant was born within the Federation; and

The applicant was not born a citizen of any country. [35] I do not think that the first two conditions precedent are very much in dispute. The Child was born after Malaysia Day in Kuala Lumpur, which is within the Federation of Malaysia. S/N 69eUSl7nkeMni1mo9cKBA [36] The only issue to be determined under s 1(e) is whether the Child was not born a citizen of any country. [37] Learned counsel for the plaintiffs has raised a very interesting point. It is this. According to learned counsel, the fact that the Child was registered by the 1st respondent as a citizen of Malaysia since birth until the issuance of the 2nd birth certificate had practically prevented her from acquiring, within one year of her birth, citizenship of any country within the meaning of s 2(3). [38] Since the defendants have failed to establish that the Child has acquired a citizen of any country, learned counsel for the plaintiffs urged this Court to conclude that all the three conditions precedent in s 1(e) have been met. The Child is therefore – according to learned counsel – a citizen of Malaysia by operation of law. Analysis [39] Let me begin with the application under s 1(a). [40] The Federal Court in CCH held that citizenship by operation of law pursuant to s 1(a) of Part II has to be read together with s 19B Part III of the Second Schedule. [41] It is quite clear that s 19B Part III is an integral part of the right to citizenship under s 1(a). To my mind, an applicant must have crossed the hurdle in s 19B first before s 1(a) or even s 1(e) comes into play. [42] For the aforesaid reason, I will now deal with the application of s 19B first. [43] The Federal Court’s interpretation of s 19B in CCH is that once it was shown that a newborn child is “found exposed’, or abandoned, two things were presumed: (a) the child was born to a mother who was permanently resident at the place where the finding was made (jus sanguinis presumption); and (b) the date of the finding was taken as the date of the birth. S/N 69eUSl7nkeMni1mo9cKBA [44] Jus sanguinis is concerned with the right to citizenship by lineage. Under jus sanguinis, the nationality of a person is determined by the nationality of a child’s parents, irrespective of the place of birth. [45] What, then, is meant by “found exposed”? The Federal Court took the “broadest possible interpretation” of the word “found exposed” in s 19B so as to include a child abandoned at the place of birth by the birth mother whose identity was unknown. The Federal Court in CCH further held that the literal meaning of “exposed” includes newborn children left abandoned near dumpsites, baby hatches, public or school toilets, places of worship and so on. [46] My understanding of the “found exposed” in the context of CCH is this:

The child must be abandoned by the birth mother, whose identity was unknown; and

The newborn child must have been left abandoned in places such as dumpsites, baby hatches, public or school toilets or places of worship, although the list is of course, not exhaustive. [47] Applying the law to the facts of the case, can we say that the Chinese Woman was unknown? I find it difficult to answer the question in the affirmative. My reasons are these. First, the Chinese Woman is not exactly unknown. She was known to the 1st plaintiff, Rifati and Puan Kuan. Rifati even said that if she could recall correctly, the Chinese Woman told her she was from Sandakan, Sabah. [48] Secondly, the Chinese Woman had indeed paid RM300 cash to the 1st plaintiff. I find it difficult to accept the assertion that the 1st plaintiff had received part of the babysitting fees from the Chinese Woman without getting further details such as her full name, residential address or even her place of work. This is so since the Chinese Woman was expected to pay her the balance of RM500 being the 1st month’s babysitting fees. [49] On the question of being left abandoned, the 1st plaintiff affirmed this in para 13 of her AIS-2: Pada masa itu, baru saya menyedari bahawa Wanita itu memang berniat untuk meninggalkan S/N 69eUSl7nkeMni1mo9cKBA (abandon) Anak itu. Pengataan Wanita itu tentang asuhan dan bayaran separa tersebut hanya satu samaran (pretext) supaya saya sudi menerima dan menjaga Anak itu. From the assertions made by the 1st plaintiff, Rifati and Puan Kuan, there is no indication that the Chinese Woman, assuming for one moment that they are referring to the same woman, indicated, either by her action or omission, that she was abandoning the Child. What I can deduct from AIS-12 and AIS-13, affirmed by Rifati and Puan Kuan, respectively, is that the arrangement between the Chinese Woman and the 1st plaintiff was purely a commercial transaction involving the babysitting of the Child. [50] Rifati, in her AIS-12, affirmed that by the time she encountered the Chinese Woman for the second time, the Chinese Woman was already cradling the Child. Rifati did not affirm that the behaviour of the Chinese Woman indicated that she was about to abandon the Child. [51] In my considered view, the Chinese Woman could have left the Child at the door of the 1st plaintiff’s apartment without paying anything to the 1st plaintiff if indeed she wanted to abandon the Child. [52] I therefore hold that the Child was not abandoned. [53] Since the Child was not abandoned, I do not, with respect, think that the presumption under s 19B of Part III of the Second Schedule of the FC can be invoked. The hurdle is not crossed. Since s 19B is the integral part of s 1(a), the requirements of s 1(a) are not fulfilled. [54] As to s 1(e), learned counsel for the plaintiffs submitted that by registering the Child as a non-citizen in her 2nd birth certificate, the defendants prevented her from acquiring, within one year of her birth, citizenship of any country within the meaning of s 2(3). With respect, I do not think the plaintiffs could blame the defendants for doing what they did. The plaintiffs initially represented to the 1st defendant that they were the biological parents of the Child. When the officers from the 1st defendant recorded his statement twelve years later, the 2nd plaintiff insisted that he witnessed the delivery of the Child by the 1st plaintiff. The plaintiffs only changed their version upon being challenged to undergo the DNA test. S/N 69eUSl7nkeMni1mo9cKBA [55] That the plaintiffs have the audacity to blame the defendants for a misfortune that they themselves authored is beyond me. [56] As to the third condition precedent of s 1(e) that the Child was not born a citizen of any country, the learned Senior Federal Counsel referred me to the judgment of the Court of Appeal in Than Siew Beng & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 5 MLJ 662 CA. In interpreting s 1(e), the Court of Appeal held as follows: A plain reading of para 1(e) ‘was not born a citizen of any country’ refers to the relationship of the second appellant to his biological and lawful parents at the time of his birth. [57] According to the learned SFC, it is, therefore, pertinent to identify the citizenship of the Child’s biological mother. In her submission, the learned SFC argued that the qualification of acquiring citizenship by operation of law, under s 1(e), must be met at birth. My understanding of the line of argument of the learned SFC is that the plaintiffs could not prove the biological mother of the Child was a citizen of Malaysia at the time of birth. [58] On the other hand, learned counsel for the plaintiffs submitted that the plaintiffs are unable to prove a negative. With respect, the plaintiffs could have. Had the 1st plaintiff sought further particulars from the Chinese Woman when she handed the Child the RM300 cash payment, the 1st plaintiff could have obtained the necessary documents to establish that the Child “was not born a citizen of any country”. [59] I therefore hold that the plaintiffs have failed to establish the third limb of s 1(e). Findings [60] I can appreciate that the Federal Constitution recognises that statelessness should be avoided. The proposition can be seen in the judgment of the Federal Court CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 4 MLJ 236 FC. However, for s 2(3) to even operate, the plaintiffs must have first S/N 69eUSl7nkeMni1mo9cKBA established that the Child has crossed the third limb of s 1(e) which is that the Child was not born a citizen of any country. [61] As I alluded to earlier, I do not have enough material for me to conclude that the third limb of s 1(e) has been fulfilled. [62] For the aforesaid reasons, the plaintiff’s application under ss 1(a) and 1(e) is dismissed with costs of RM3,000. Tarikh: 3 April 2025 (WAN AHMAD FARID BIN WAN SALLEH) Hakim Mahkamah Tinggi Kuala Lumpur. Pihak-pihak: Bagi Pihak Plaintif : Caroline Goh Seow Siang & Matt Wong Tetuan Caroline SS Goh Law Chambers Bagi Pihak Defendan : Farah Shuhada Binti Ramli SFC Nik Isfahanie Tasnim W.Ab Rahman SFC Kogilambigai Muthusamy FC Jabatan Peguam Negara, Putrajaya S/N 69eUSl7nkeMni1mo9cKBA