Koh Ming Fai v Ketua Pengarah Jabatan Pendaftaran Negara (WA-24NCvC-2776-07/2024)

Koh Ming Fai

Liang Huamei … PLAINTIFFS AND Jabatan Pendaftaran Negara Malaysia … DEFENDANT

This matter comes before the Court by way of originating summons, presenting a complex question situated at the confluence of family law, evidence law, and the statutory framework governing civil registration. The Court is not called upon to dissolve a marriage nor to attribute fault to any party. Rather, the issue before the Court is whether, upon the particular facts of this case and within the confines of the applicable law, it may recognise biological paternity and direct the correction of civil records to reflect biological reality and serve the welfare of the child.

The application before the Court is brought by the plaintiffs seeking declarations and orders concerning the birth certificate and identity documents of their son, Lim Jun Hui ("the child"). The child was born on 31 January 2015 during the subsistence of a valid marriage between the second plaintiff and Lim Zi Yong ("the former husband"). In accordance with the civil registration, the child was registered with the former husband named as the father and bears the surname "Lim". That marriage has since been dissolved, and the second plaintiff subsequently married the first plaintiff on 7 September 2020. The deoxyribonucleic acid ("DNA") testing conducted thereafter has confirmed that the first plaintiff is in fact the biological father of the child.

The plaintiffs seek declarations that the first plaintiff is the child's biological father and orders that the birth certificate and identity documents be amended to reflect this biological reality, including changing the child's surname to "Koh" to align with his current family circumstances.

The defendant opposes this application, placing primary reliance upon the presumption of legitimacy under section 112 of the Evidence Act 1950. The defendant contends that the child is legitimate and that this status cannot be challenged through DNA evidence. Furthermore, the defendant submits that changing the child’s surname would affect his citizenship status and would be contrary to his best interests.

The Court must therefore balance the established legal presumptions with the scientific evidence of biological paternity, while remaining ever mindful of the paramount consideration in such matters, that is, the welfare of the child.

The material facts for the purposes of this application are not in significant dispute and may be conveniently summarised as follows.

The second plaintiff was, on 31 January 2015, lawfully married to the former husband. It was during the subsistence of this marriage that the second plaintiff gave birth to the child at Gleneagles Hospital Kuala Lumpur. In accordance with the statutory presumption of paternity, the child was duly registered on birth certificate with the former husband named as the father. Consequently, the child bears the surname “Lim” and holds a Malaysian identity document, MyKid, reflecting this registration.

The marital landscape subsequently altered. The marriage between the second plaintiff and the former husband was dissolved on 18 July 2017. Thereafter, the second plaintiff contracted a marriage with the first plaintiff on 7 September 2020, and they now reside together as a family unit with the child and their younger daughter, Koh Jia Wen, who bears the first plaintiff’s surname, “Koh”.

It is material to note that the first plaintiff is a Malaysian citizen, whereas the second plaintiff is a citizen of the People’s Republic of China. Consequent upon the registration of his birth, the child is a Malaysian citizen by operation of law pursuant to Article 14(1)(b) of the Federal Constitution, having been born in Malaysia to a father who was, at the time of his birth, registered as a Malaysian citizen.

This factual position is, however, complicated by the result of DNA testing conducted at the Sunway Velocity Medical Centre. This scientific evidence has confirmed with a high degree of probability that the first plaintiff is, in fact, the child’s biological father. The former husband, who remains named as the father on the birth certificate, has deposed to his consent to the present application by way of an affidavit sworn on 22 August 2024.

At the time of this hearing, the child is nine years of age and resides with the plaintiffs. The application before the Court therefore arises form a desire to align the child’s legal identity with his biological parentage and the reality of his current family life.

The principal questions which arise for the Court’s determination may be conveniently distilled into the following four limbs:

Whether, on the evidence before the Court, the defendant is statutorily obliged to amend the civil register of the child’s birth to reflect the first plaintiff as the biological father;

(ii) Whether the Court ought to exercise its discretion to order a change of the child's surname from “Lim” to "Koh" in light of the DNA evidence and the current family circumstances;

(iii) Whether such an amendment to the child's surname and particulars of parentage would have any consequential effect upon his status as a Malaysian citizen; and

(iv) Whether, applying the paramount consideration, the granting of reliefs sought would be in the best interest of the child. Analysis The Nature of the Application

At the outset, it is necessary to characterise the nature of this application with some precision. The plaintiffs do not come before the Court to impugn the legitimacy of the child. Indeed, they rightly acknowledge that by virtue of his birth during the subsistence of a valid marriage, the child is legitimate in the eyes of the law. The relief they seek is not a declaration of illegitimacy, but rather a rectification of the civil register to reflect the biological reality of his parentage.

In my judgment, this distinction is a critical one and lies at the heart of the matter. This is not an application to illegitimatise the child. It is an application to align the formal, legal record with scientific fact and the current familial reality. The presumption of legitimacy, embodied in section 112 of the Act, serves to protect the child and the sanctity of the marital unit. However, the question before this Court is whether that presumption operates as an absolute bar to the correction of a civil document where all parties, including the man named as father on the birth certificate, consent to the amendment and where it is demonstrably in the child’s welfare to have his true biological paternity formally recognised. The Court must therefore proceed to analyse the issues through this lens, focussing on the equitable remedy of rectification rather than the common law assault on legitimacy.

The defendant's primary contention is that the plaintiffs’ application is barred by statute. The foundation of this argument is section 112 of the Evidence Act 1950, which provides: "The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten."

The defendant further submits that the effect of the term “conclusive proof” is not merely evidential but substantive. The meaning and effect of this term are elucidated by section 4(3) of the same Act: “When one fact is declared by this Act to be conclusive proof of another, the court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.”

The combined effect of these provisions, the defendant argues, is to create a conclusive presumption of legitimacy which the court is statutorily barred from questioning, save for the narrow exception of proving non-access between the mother and her husband.

This statutory position, the defendant submits, has been authoritatively interpreted and affirmed by the Federal Court in MPPL & Anor v CAS [2024] 8 CLJ 359. The defendant relies on the clear pronouncements of the Court in that decision to fortify its position that the present application cannot succeed.

The Federal Court held that the phrase "conclusive proof" in section 112 operates as a bar to the admissibility of scientific evidence, such as DNA tests, for the purpose of rebutting the presumption of legitimacy where a child is born within a valid marriage. As the Court explained: “[79] It appears that ‘conclusive proof’ in section 112 bars the admissibility of scientific evidence to prove paternity… The presence of the phrase ‘conclusive proof’ in section 112 bars admissibility of this evidence… The only rebuttable facts allowed by the provision… is evidence of ‘no access’…”

The Court emphasised that this is not merely a procedural rule but a substantive safeguard, designed to prevent challenges to a child’s status as legitimate. At paragraph 80, the Court stated: “[80] … s 4(3) of the EA serves as a bar to effectuate a safeguard against any potential challenge to conclusive proof, which in this case is proof of legitimacy.”

Consequently, on the specific question of DNA testing, the Federal Court’s position was unequivocal. At paragraph 86, the Court held that: “[86] … s 4(3) EA bars any order for DNA testing for the purposes of rebutting s 112 EA. It is meant to bar challenges to legitimacy with very little exceptions…”

The defendant therefore submits that the law is clear. The child, having been born during the subsistence of a valid marriage, is legitimate in law, and this status cannot be challenged by way of DNA evidence or any other evidence, save for proof of non-access. Accordingly, the defendant argues it has not statutory power to amend the birth register in the manner sought by the plaintiffs.

The court fully accepts and endorses the important public policy considerations that underpin section 112 of the Act. The presumption of legitimacy is a cornerstone of our family law, designed to protect children from the stigma of illegitimacy, to preserve the stability of the family unit, and to prevent the courts from becoming embroiled in intrusive and adversarial inquiries into paternity. The decision of the Federal Court in MPPL & Anor v CAS reaffirms the strength of this presumption and makes clear that, in a contested setting, the court must not permit DNA testing or other evidence where the purpose is to rebut legitimacy.

It is, however, imperative to distinguish the facts of the present case from those that were before the Federal Court in MPPL & Anor v CAS. The application in MPPL & Anor v CAS was an adversarial challenged brought by a third party seeking to compel DNA testing to displace the legal status of an existing family unit. The Federal Court was rightly concerned with a forced intrusion into the life of a child, the disruption of a settled family identity, and the exploitation of DNA test to undermine a legally recognised parent. The Court observed that the presumption “provides such a cloak that presumes that a father in a lawful marriage is both the biological and legal father of the child”. That “cloak” was deemed necessary to protect the child from an external, unwelcome assault on his legal status.

The present case is, in material respects, the very antithesis of that scenario. This is not an application to pronounce the child illegitimate, thereby depriving him of rights or status. The plaintiffs do not seek to deny the child the protection of the law, rather, they seek to anchor his legal identity to biological fact within a secure and supportive family structure. The Court is therefore not being invited to “disprove” legitimacy in the sense contemplated by section 4(3) of the Act.

Instead, it is asked to recognise biological paternity for the limited and specific purpose of rectifying the civil register, in circumstances where:

the biological facts are undisputed;

(ii) there is no adversarial contest;

(iii) the man named as father on the birth certificate, the former husband, has consented to the rectification and does not seek to assert parental rights; and

(iv) the application is grounded, unequivocally, in the welfare of the child.

The law, and in particular section 112 of the Act, was never intended to operate as a legal blindfold, compelling the state to maintain a register that is factually inaccurate. To do so would be to elevate form over substance and to subordinate the welfare of the child to a rigid application of a presumption in a context where the very policy reasons for that presumption do not arise.

The Court must now turn to the statutory duties of the Registrar-General, which are distinct from the evidential rules governing the presumption of legitimacy. The function of registering births under the Births and Deaths Registration Act 1957 is fundamentally administrative in nature. This distinction was authoritatively affirmed by the Federal Court in Leow Fook Keong (L) v Pendaftar Besar Bagi Kelahiran dan Kematian, Jabatan Pendaftaran Negara, Malaysia & Anor [2022] 1 MLJ 398, where the Court held that: “The registration of births by the registrar-general is essentially administrative and facilitative, and not a judicial function.”

This administrative character is underscored by the profound public importance of maintaining an accurate national register. The Federal Court in Leow Fook Keong (supra) went on to express the purpose of this statutory scheme, observing that: "The purpose of the registration of births and deaths are to form the source or act as both the depository and repository of raw data of the nation's population for the information of the state. Birth certificates issued are 'vital for personal identity, lineage, inheritance, citizenship, pursuit of education and just about every facet of decent life and livelihood' which are essentials of life and livelihood."

It follows logically from this purpose that where information is later proven to be inaccurate, the administrative function must include a duty to correct it. Crucially, for the present case, the Federal Court in Leow Fook Keong (supra) addressed this very circumstance, holding that: "Following the DNA results and more particularly, the order of court declaring the appellant as the biological father of the child, it cannot be now said that the information pertaining to the father of the child is or remains, unavailable or 'tidak diperolehi'. The information is since known and made available through the order of court. Quite rightly and in keeping with the duties and obligations of maintaining a reliable public record of births, the registrar-general cannot refuse the new information."

The decision in Leow Fook Keong (supra) therefore establishes a clear statutory duty on the part of the defendant to rectify the register where the information is known to be inaccurate, particularly when this is supported by undisputed scientific evidence and, as in that case, an order of the court. The duty to maintain a reliable public record is a positive obligation that cannot be sidestepped by an overly rigid reliance on a presumption of legitimacy in a non-adversarial context.

The principles in Leow Fook Keong (supra) are, in my judgment, directly applicable to the circumstances at hand. The defendant may seek to distinguish the present case on the basis that the child in Leow Fook Keong (supra) was born out of wedlock, whereas the child here is legitimate. However, such a distinction would be to mistake the core principle for its factual context. The ratio decidendi in Leow Fook Keong (supra) was not dependent on the child’s legitimacy but on the fundamental duty of the Registrar-General to maintain a reliable public record. That duty applies with equal force, irrespective of the child’s status at birth.

This duty is not merely permissive, it is a positive obligation imposed by statute, as encapsulated in section 28 of the Births and Deaths Registration Act 1957. This provision mandates the Registrar-General to “procure by all means in their power the best and most accurate information respecting any birth… and to cause particulars of the same to be recorded (so far as is practicable) in the manner prescribed".

In the present case, the “best and most accurate information” concerning the child’s biological paternity is before the Court. It is established by undisputed DNA evidence and, crucially not contested by the man named as the father on the birth certificate. The statutory purpose of the register is to be a true and reliable depository of vital information, is therefore best served by its correction.

In the face of such clear and uncontroverted evidence, for the defendant to maintain a register it knows to be factually inaccurate would be, in my view, a plain abdication of its statutory duty under section 28. The law compels the maintenance of accurate records, and it is not for the defendant to refuse to do so on the basis of a policy presumption that is not being challenged in an adversarial context.

On the issue of the child's surname, the central question before the Court is whether his surname, presently registered as “Lim”, may be altered to “Koh”. The statutory framework governing this issue is found in section 13A of the Births and Deaths Registration Act 1957, which provides that: "The surname, if any, to be entered in respect of a legitimate child shall ordinarily be the surname, if any, of the father."

It is the defendant’s submission that this statutory provision is determinative, arguing that as the former husband remains the child’s legal father, the surname “Lim” must be retained. The defendant’s position, therefore, rests on a strict and literal interpretation of section 13A.

However, this position is not irrefutable. The Federal Court in Leow Fook Keong (supra) makes clear that the registrar-general’s power is not merely mechanical but extends to updating records to reflect the substantive realities of a person’s life. It recognised that the surname of a child can be changed where there is evidence to support such a change. The Court held that: "The registrar-general even has a power to update the re-registration of legitimated persons whose parents have overlooked the re-registration of their births after the marriage of the parents concerned by requiring the parents to attend personally and give such information as are necessary for the re-registration."

Furthermore, the nature of this power is administrative, not discretionary. The function of the National Registration Department in matters of name change is purely administrative. In Chris Jeremy Lai Zhe Ahn v Ketua Pengarah Jabatan Pendaftaran Negara [2023] 12 MLJ 648, the Court held that: "There is nothing in the case at hand that bars the plaintiff in seeking a change of his name in his identity card. The so-called panel cannot stop the plaintiff from doing so. The function is purely administrative as only the compliance of the regulations is required. There is no discretion or power involved in this exercise unless the change in name is prohibited by the regulations."

In the circumstances of the present case, the Court is satisfied that there exists compelling evidence, grounded in the child’s welfare, to warrant a change of surname. The first plaintiff is the child’s biological father. The first and second plaintiffs are now lawfully married to each other and have another child together. The child is therefore being raised within a stable family unit where his half-sibling bears the surname "Koh". In such a context, it is manifestly in the child’s best interests that his surname should reflect his biological parentage and the reality of his current family structure, thereby avoiding any potential confusion or sense of difference.

Accordingly, the function of the National Registration Department is to ensure that the register reflects the true facts, provided the statutory requirements are met. As the change of surname is not prohibited by any regulation and is strongly supported by the evidence in the interests of the child’s welfare, the Department has no discretion to refuse the application. The power to update the register must be exercised to give effect to this change.

The defendant argues that changing the child's surname would adversely affect his citizenship status as a Malaysian citizen. This submission, however is predicated on a fundamental misunderstanding of the legal basis for the child’s citizenship.

The child’s status as a Malaysian citizen is secured not by his name, but by operation of law. Pursuant to Article 14(1)(b) of the Federal Constitution, he is a citizen by operation of law having been born in Malaysia to a father who is, at the time of his birth, a Malaysian citizen. The correct construction of the term “father” within this constitutional context was authoritatively considered by the Court in CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 4 MLJ 236. In the minority judgment, the Court held that for the purposes of citizenship, legitimacy is an irrelevant factor where paternity is known and the biological father is a Malaysian citizen. The Court observed that: "The logical conclusion therefore is that having regard to the historical and purposive cannons on construction as borne out from foregoing interpretive exercise, word 'father' in s 1(b) of Part II and anywhere else relevant to context of this appeal ought to be construed as meaning 'biological father'. Thus, legitimacy status of any person claiming citizenship under art 14(1)(b) read together with Part II is an irrelevant factor in cases where paternity is known and said biological father is a citizen of Malaysia and has met the rest of the requirements of s 1(b) of Part II."

The logical import of this judgment is clear. The child’s citizenship is derived not from the surname he bears, nor from the legal incident of legitimacy formerly attached to the name “Lim”, but from the established and immutable fact of his biological parentage to the first plaintiff, who is a Malaysian citizen. The proposed change of surname is therefore an administrative act of rectification. It aligns the child’s public record with his biological and familial reality. It does not, and cannot, alter the substantive basis of his citizenship.

Accordingly, the defendant’s submission on this point is untenable. The child’s Malaysian citizenship is secure and is entirely unaffected by the relief sought in these proceedings.

The defendant submits that the application ought to be dismissed on the ground that it is not in the best interest of the child. The Court commences its analysis on this point by reaffirming the well-established principle that the welfare of the child is a paramount consideration in any matter affecting his life. However, as correctly identified by the Federal Court in MPPL & Anor v CAS, the determination of a child’s welfare does not hinge on a single consideration. The court held that: "The 'right to know' cannot be the paramount consideration for assessing the best interest and welfare of a child. There must be a holistic welfare analysis before the best interest of a child can be determined. We also note that consent from the child is part and parcel of respecting the welfare of the child, which is especially important for children who are at the stage of adolescence."

The correct approach, therefore, is to undertake a holistic analysis of all relevant factors to ascertain what course will best serve the child’s present and future welfare. In the circumstances of the present case, the factors militating in favour of the application are both compelling and cumulative.

First and foremost is the singular matter of parental unity. The application is not a source of contention between the child’s carers. On the contrary, it is supported by all relevant parental figures. The child’s mother, his biological father, and the former husband, who is named as the father on the birth certificate, have all provided their consent. This unified front eliminates any potential for future conflict and provides the child with a stable and harmonious environment, which is a cornerstone of his welfare.

Secondly, the Court must consider the child’s sense of identity and his place within his family unit. The application seeks to align his legal identity with his biological and social surrounding. He is being raised by his biological parents alongside his half-sibling, who bears the surname “Koh”. It is manifestly in the child’s interest that his surname should reflect his familial root, thereby fostering a sense of belonging and avoiding the confusion or psychological distress that might arise from bearing a different name from his father and sister.

Finally, while the child, at nine years of age, is not of an age to give legally binding informed consent, the unanimous consent of his parents serves as a powerful indicator of his best interests. The Court notes the observation in MPPL & Anor v CAS regarding the importance of consent from an adolescent child, here, the absence of any objection from any parental figure is equally, if not more, significant at this tender age.

In the final analysis, the application does not seek to disrupt the child’s life but to regularise his legal identity to accurately reflect his biological parentage. The Court is therefore entirely satisfied, having undertaken the holistic welfare analysis, that the grant of this application is profoundly in the best interests of the child.

For the reasons set out above, the Court is satisfied that the defendant’s objections must fail. The defendant is under a clear statutory duty to correct the register of births in light of the irrefutable DNA evidence establishing the first plaintiff as the child’s biological father. It is therefore just and proper that the child’s surname be changed to “Koh” to accurately reflect his biological parentage and his existing family unit. The Court finds the defendant’s submission on citizenship to be without merit. The child’s status as a Malaysian citizen, secured by operation of law, is in no way contingent upon his name. Crucially, having undertaken a holistic welfare analysis, the Court is satisfied that the granting of this application is profoundly in the best interests of the child, ensuring his legal identity aligns with his social and biological reality.

Accordingly, the Court orders that:

A declaration is hereby made that the first plaintiff, Koh Ming Fai, is the lawful and biological father of the child,

The defendant shall, within thirty (30) days from the date of this Order, cause to be issued a corrected birth certificate for the child, reflecting the first plaintiff, Koh Ming Fai, as his father and the child's name as "Koh Jun

The defendant shall, in accordance with the corrected birth certificate, issue a new national identification MyKid card for the child bearing the name "Koh Jun Hui"; and

The defendant shall ensure that upon the child attaining the age of eighteen (18) years, his national identification card is issued in the name "Koh Jun Hui".

There shall be no order as to costs. Dated the 14th day of January 2026 … SGN … ……………………………………………….. MOH KOK WAI JUDICIAL COMMISSIONER OF THE HIGH COURT HIGH COURT (CIVIL DIVISION NCvC14) HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY OF MALAYSIA Counsel for the Plaintiffs : Alexia Lo, Kung Khai Hang and KH Kung Messrs K.G. Chan, Kung & Company Counsel for the Defendant : Kimberly Ye Wanchuin Jabatan Peguam Negara, Wilayah