1. ) LAU TEK PENG v 1. ) kementerian dalam negeri, malaysia (JA-24NCvC-363-05/2022)

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1 DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM SAMAN PEMULA NO: JA-24NCvC-363-05/2022 Dalam perkara mengenai suatu permohonan untuk perintah Deklarasi Dalam perkara mengenai seksyen 41 Akta Relief Spesifik 1950 Dalam perkara mengenai Perkara 14(1(b) Perlembagaan Persekutuan

Schedule

Jadual Kedua, Bahagian II, Seksyen 1(a) Perlembagaan Persekutuan Dan

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Jadual Kedua, Bahagian III, Seksyen 19B Perlembagaan Persekutuan Dalam perkara mengenai Aturan 92 Kaedah 4 Kaedah-kaedah Mahkamah 2012 ANTARA 1. LAU TEK PENG 2. SING WEI JOO (P) 3. LAU JHUN GUAN …PEMOHON-PEMOHON 13/03/2023 08:10:07 JA-24NCvC-363-05/2022 Kand. 26 1. KEMENTERIAN DALAM NEGERI 2. PENDAFTAR BESAR KELAHIRAN DAN KEMATIAN, MALAYSIA …RESPONDEN-RESPONDEN GROUNDS OF JUDGMENT Introduction [1] This is the Applicants’ Originating Summons in Enclosure 1 seeking inter alia for a declaration that the 3rd Applicant is a Malaysian citizen by operation of law under the Federal Constitution (“FC”) and an order that the 3rd Applicant be given a New Malaysian Identity Card (“NMIC”). [2] As a brief background of facts, the 1st and 2nd Applicants are husband and wife while the 3rd Applicant is their adopted son pursuant to the Adoption Order dated 20.5.2013 which was granted by the Johor Bahru Sessions Court vide the Adoption No. 58-101-12/2012. At present, the 3rd Applicant is 22 years old. [3] On 26.1.2012, the Applicants went to the National Registration Department (“NRD”), Kulai Branch for the purpose of applying a NMIC for the 3rd Applicant as he had attained the age of 12. However, this application was rejected and instead referred to the Department of Investigation and Enforcement of NRD since there were doubts about the 3rd Applicant’s face and ancestry who looked like an Indian mix compared to the 1st and 2nd Applicants who are Chinese. The 3rd Applicant’s original birth certificate (“OBC”) stated that the 1st and 2nd Applicants are the 3rd Applicant’s biological parents. [4] On 29.3.2012, the 1st Applicant went to NRD Johor Bahru for the second attempt to apply a NMIC for the 3rd Applicant. Again, the application was rejected for the same reason. [5] After conducting an investigation including an interview with the 1st Applicant on 3.5.2012, the Department of Investigation and Enforcement of NRD discovered that the 1st and 2nd Applicants were not the 3rd Applicant’s biological parents. Instead, the 1st Applicant admitted that he took the 3rd Applicant from a woman who happened to work at the same workplace with him. There was no detailed information about the woman except the 1st Applicant said that she hails from Sarawak. The 1st Applicant also informed the NRD that he was given a birth registration form by Dr. Robert Luk Tai Kong (“Dr. Robert”) who the 1st Applicant alleged was the doctor supervising the 3rd Applicant’s birth at Janar Women’s Clinic (“JWC”), Johor Bahru. The 1st and 2nd Applicants later submitted the birth registration form, which the 1st Applicant alleged was completely filled up by Dr. Robert to the NRD on 15.1.2000. Subsequently, the 1st and 2nd Applicants received the 3rd Applicant’s OBC with the following important particulars: (a) the 1st and 2nd Applicants were registered as the 3rd Applicant’s biological parents; (b) Dr. Robert was named as the informer of the 3rd Applicant’s birth; and (c) the place of birth was at JWC. [6] When this serious doubt on the particulars of the 3rd Applicant’s biological parents in the OBC was discovered, the certificate was impounded by the NRD in accordance with s. 37B of the Registration of Birth and Death Act 1957 (“RBDA 1957”) for further investigations. Later, a certificate to correct the error in the OBC was issued by the NRD on 26.9.2012 with notes at the columns descent and citizenship status stated as “no information” and “to be determined” respectively. [7] The adoption of the 3rd Applicant by the 1st and 2nd Applicants was certified by the Adoption Order dated 20.5.2013 issued by the Johor Bahru Sessions Court and later recorded by the NRD on 11.11.2013. [8] A new birth certificate (“NBC”) with a note that the 3rd Applicant’s citizenship as a non-citizen was issued by the NRD on 11.11.2013. The parties’ arguments [9] The Applicants advanced the following arguments to support their application: (a) the 3rd Applicant is unquestionably entitled to be declared as a Malaysian citizen by operation of law under Art. 14(1)(b) and section 1(a) of Part II of the Second Schedule to the FC. The 3rd Applicant was born at JWC on 10.1.2000 and one of his parents is a Malaysian; and (b) the 3rd Applicant was abandoned when he was born to a Sarawakian woman. Therefore, he is a Malaysian citizen by operation of law under s. 19B of Part III of the Second Schedule to the FC. [10] On the other hand, the Respondents strenuously opposed the application by mounting the following grounds: (a) the 3rd Applicant’s citizenship is not determined by the 3rd Applicant’s place of birth (jus soli) only but also by his biological parents’ descent (jus sanguinis). The 3rd Applicant’s place of birth is very doubtful and there is no cogent evidence that his biological parents’ descents are Malaysian citizens at the time of his birth; and (b) the 3rd Applicant was not an abandoned child as to qualify him to acquire a Malaysian citizen by operation of law under s. 19B of Part III of the Second Schedule to the FC. The Respondents’ preliminary objection [11] The Respondents raised a preliminary objection on the ground that the Applicants’ application was procedurally wrong on the mode of commencement. The Respondents argued that the Applicants should initiate a judicial review instead of declaratory reliefs as they sought to invalidate the Respondents’ action in issuing the NBC which bears a note that the 3rd Applicant is a non-citizen of Malaysia. [12] For ease of reference, below are the Applicants’ reliefs – [13] After scrutinizing the cause papers in this action, it is undoubtedly that the Applicants did argue about the validity of the Respondents’ action in amending the OBC and issuing the NBOC. Nevertheless, the Applicants did not put in their reliefs for such Respondents’ action be judicially reviewed. There are various reliefs sought by the Applicants including declarations and mandamus. However, what I can see the crux of the reliefs is for the 3rd Applicant to be declared as a Malaysian citizenship by operation of law and the use of declaration as the mode of commencement is widely used for this kind of nature. [14] Therefore, I find that the Respondents’ preliminary objection has no merit. Whether the 3rd Applicant is a Malaysian citizen by operation of law under Art. 14(1)(b) and section 1(a) of Part II of the Second Schedule to the FC [15] The Applicants averred that the 3rd Applicant is unquestionably entitled to acquire a Malaysian citizen by operation of law under Art. 14(1)(b) and section 1(a) of Part II of the Second Schedule to the FC as he was born at JWC on 15.1.2000 and one of his parents is a Malaysian at the time of his birth. [15] On this point, it is no doubt that Art. 14(1)(b) of the FC grants a citizenship to any person if he is born after Malaysia day and has complied with qualifications specified in Part II of the Second Schedule to the FC. Art. 14 of the FC reads – Citizenship by operation of law 14. (1) Subject to the provisions of this Part, the following persons are citizens by operation of law, that is to say: (a) every person born before Malaysia Day who is a citizen of the Federation by virtue of the provisions contained in Part I of the Second Schedule; and (b) every person born on or after Malaysia Day, and having any of the qualifications specified in Part II of the Second Schedule. Whereas Part II of the Second Schedule to the FC states – PART II [Article 14(1)(b)] CITIZENSHIP BY OPERATION OF LAW OF PERSONS BORN ON OR AFTER MALAYSIA DAY 1. Subject to the provisions of Part III of this Constitution, the following persons born on or after Malaysia Day are citizens by operation of law, that is to say: (a) 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; and (b) every person born outside the Federation whose father is at the time of the birth a citizen and either was born in the Federation or is at the time of the birth in the service of the Federation or of a State; and (c) every person born outside the Federation whose father is at the time of the birth a citizen and whose birth is, within one year of its occurrence or within such longer period as the Federal Government may in any particular case allow, registered at a consulate of the Federation or, if it occurs in Brunei or in a territory prescribed for this purpose by order of the Yang diPertuan Agong, registered with the Federal Government; and (d) every person born in Singapore of whose parents one at least is at the time of the birth a citizen and who is not born a citizen otherwise than by virtue of this paragraph; and (e) every person born within the Federation who is not born a citizen of any country otherwise than by virtue of this paragraph. 2. (1) A person is not a citizen by virtue of paragraph (a), (d) or (e) of section 1 if, at the time of his birth, his father, not being a citizen, possesses such immunity from suit and legal process as is accorded to an envoy of a sovereign power accredited to the Yang di-Pertuan Agong, or if his father is then an enemy alien and the birth occurs in a place under the occupation of the enemy. (2) In section 1 the reference in paragraph (b) to a person having been born in the Federation includes his having been born before Malaysia Day in the territories comprised in the States of Sabah and Sarawak. (3) For the purposes of paragraph (e) of section 1 a person is to be treated as having at birth any citizenship which he acquires within one year afterwards by virtue of any provisions corresponding to paragraph (c) of that section or otherwise. [16] Part II of the Second Schedule to the FC requires that in order to be granted a citizenship, that person is not only born in Malaysia (jus soli) but at least one of his parents at the time of the birth is either a Malaysian citizen or a Malaysian permanent resident (jus sanguinis). [17] Upon careful perusal of the cause papers in this present action, I agree with the Respondents that there was a serious doubt about the 3rd Applicant’s place of birth as well as there is no cogent evidence that his biological parents’ descent are Malaysian citizens at the time of his birth. This can be evidenced as some important particulars in the OBC were either false or doubtful. The 1st Applicant himself admitted deceiving the information about the status of the 3rd Applicant’s parents in the OBC. [18] Furthermore, JWC was closed on 2005 and importantly Dr. Robert had not given evidence supporting the fact that the 3rd Applicant was born at JWC. Thus, a valid inference can be drawn that the entire information in the OBC is questionable. [19] Likewise, the 1st Applicant’s statement about a Sarawakian woman who admitted to him that she is the 3rd Applicant’s biological mother. I am doubt about the truth of this story. Firstly, it is clearly a hearsay. Secondly, it is a bare statement with no proof corroborating the story. Thirdly, the 1st Applicant flagrantly lied about the 3rd Applicant’s biological parents in the OBC and there is nothing impossible he could make up this story. Drawing the thread together, I am of the view that the 1st Applicant is willing to do anything just to ensure that the 3rd Applicant be granted a NMIC and citizenship. [20] The Applicants also raised the issue of Adoption Order issued by the Johor Bahru Sessions Court on 20.5.2013. According to them, the Order is a recognition that the 3rd Applicant is a Malaysian. [21] At this point, I found instructive the case of CTEB & Anor v. Ketua Pendaftaran Negara, Malaysia [2021] 6 CLJ 471, where the issue that arose was whether an illegitimate child born outside Malaysia to a Malaysian citizen biological father (the 2nd appellant) and a Filipino citizen mother (the 3rd appellant), was entitled to become a citizen by operation of law pursuant to art. 14 of the FC. The first appellant was a minor male born out of wedlock on 27.10.2010 in the Republic of the Philippines. The first appellant's parents married on 22.2.2011, 4 months after he was born. The first appellant was subsequently legitimated under s. 4 of the Legitimacy Act 1961. The majority decision of the Federal Court held that – (4) Acquisition of citizenship by operation of law requires the fulfilment of the requisite conditions at the time of birth. The subsequent marriage of the parents would not change the birth status of the child as an illegitimate child. Section 4 of the Legitimacy Act only deems a person legitimate from the prescribed date or from the date of the parents' marriage, whichever was the later. Section 9 of the same Act merely provides for the legal rights of a legitimised person to be equivalent to those of a legitimate child. The effect of s. 9 of the Legitimacy Act must be confined to the ambit of its operability and its interpretation should not be stretched to supplement the provisions of the FC in matters relating to citizenship. There was no mention made for the rights of citizenship in the Legitimacy Act. And no corresponding provision in the FC that deems legitimisation confers the right to citizenship. Nothing in the Legitimacy Act confers the birthright of a citizenship under art. 14 and its incidental provisions. Hence, it would be incorrect to apply and superimpose the Legitimacy Act to the provision of citizenship in the FC. The qualification of acquiring citizenship by operation of law must be met at birth. If the qualifications are not met, this court was not at liberty to add and subtract any other or qualifications which the FC states otherwise. [22] I am of the view that the Adoption Order issued to the 3rd Applicant does not confer any citizenship right to him since the qualification of acquiring citizenship by operation of law was not met at his birth. An adoption order as specified by s. 9 of the Adoption Act 1952 is to provide for all rights, duties, obligations and liabilities of the parent, guardian of the adopted child, in relation to the future custody, maintenance and education of the adopted child, including all rights to appoint a guardian or to consent or give notice of dissent to marriage shall be extinguished, and all such rights, duties, obligations and liabilities shall vest in and be exercisable by and enforceable against the adopter as though the adopted child was a child born to the adopter in lawful wedlock. [23] Therefore, I find that the effect of the Adoption Order must be confined to the ambit of its operability and its interpretation should not be stretched to supplement the provisions of the FC in matters relating to citizenship. There is no mention made of the rights of citizenship in the Adoption Act. And no corresponding provision in the FC that deems adoption confers the right to citizenship. [24] In the premise of the foregoing, needless to say that there was no solid evidence forwarded by the Applicants that the 3rd Applicant was born in Malaysia nor at least one of his parents are Malaysians during his birth. Whether the 3rd Applicant is a Malaysian citizen by operation of law under section 19B of Part III of the Second Schedule to the FC [25] The Applicants averred that the 3rd Applicant was abandoned when he was born to a Malaysian mother and therefore he is a Malaysian citizen by operation of law under s. 19B of Part III of the Second Schedule to the FC. This is fortified by the recent Federal Court decision in CCH & Anor v. Pendaftar Besar Bagi Kelahiran Dan Kematian, Malaysia [2022] 1 CLJ 1; [2022] 1 MLJ 71 where a child born to unknown mother was declared as a citizen of Malaysia by operation of law pursuant to Art. 14(1)(b) read together with Part II s. 1(a) of the FC and Part III s. 19B of the Second Schedule of the FC. [26] S. 19B of Part III of the Second Schedule to the FC reads – 19B. For the purposes of Part I and II of this Schedule any new born 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; and if he is treated by virtue of this section as so born, the date of the finding shall be taken to be the date of the birth. [27] On this point, the Applicants averred that the 3rd Applicant was an abandoned child whereas as alluded to earlier, the Applicants admitted that the 3rd Applicant was born at JWC, Johor Bahru and later adopted by the 1st and 2nd Applicants. [28] I am of the view that there must be a certain criterion before a child can be considered as an abandoned child and be granted a citizenship. Firstly, there must be a report made about the finding of the chid to the NRD. S. of the RBDA 1957 requires the information about the finding of the new-born child be given to the NRD as follows: Information concerning finding of new-born child to be given to Registrar within fourteen days 9. Where any living new-born child is found exposed, it shall be the duty of the person finding the child, and of any person in whose charge the child may be placed, to give to the best of his knowledge and belief to the Registrar, before the expiration of fourteen days from the date on which the child was found, such information of the particulars required to be registered concerning the birth of the child as the informant possesses, and in the presence of the Registrar to sign the register: Provided that the giving of information and the signing of the register by any one of the said persons shall act as a discharge of any duty under this section of any other of them. Special provision as to registration of stillbirth. [29] Secondly, any person who wants to take an abandoned child into his custody must notify the protector of child about the taking as required by s. 35 of the Child Act 2001 which reads – Notification of taking a child into care, custody or control 35. (1) If a person takes a child into his care, custody or control — (a) that person; and (b) the person in whose care the child was at the time of such taking, shall, not later than one week thereafter, notify the Protector of such taking. (2) On receiving any notification under subsection (1), the Protector shall make such inquiry as he thinks fit as to — (a) the circumstances and the reasons for the taking; and (b) the suitability for that purpose of the person who has taken the child into his care, custody or control. (3) If, after the inquiry referred to in subsection (2), the Protector deems it expedient to do so in the best interests of the child, he may either — (a) order that the child be returned to the care, custody or control of his parent or guardian or the person in whose care he was at the time of such taking; or (b) permit the taking of the child on such terms and conditions as the Protector may require. (4) If the taking of a child by any person has been permitted under paragraph (3)(b) subject to any term or condition and default is made in complying with such term or condition, the Protector, after taking into consideration that it is desirable to place a child in a family based care, may by warrant under his hand order that the child — (a) be taken out of the care, custody or control of such person; and (b) be placed — (i) in the care of a relative or fit and proper person on such terms and conditions as the Protector may require; (ii) in a centre; or (iii) in a place of safety, until the child attains the age of eighteen years or for any shorter period. [30] Back to our present action, it is incumbent upon the Applicants to prove on the balance of probabilities that the 3rd Applicant was an abandoned child at his birth. Nevertheless, I find that the Applicants failed to establish this pivotal and defining element. There was neither any police report lodged that the 3rd Applicant was found exposed or abandoned nor any report as such to the NRD. [32] I remind myself of what was decided in CCH & Anor (supra), where it was held that the phrase "any newborn child found exposed in any place" in s. 19B of Part III of the Second Schedule to the FC must be to cover newborn children who are left and discovered in a place without any trace of their biological parents. However, in our present case, there is not even a single information about the 3rd Applicant can be a guide to the court in determining whether he was genuinely an abandoned child or otherwise let alone his biological mother. All important particulars about the 3rd Applicant during his birth were either false or doubtful. [33] The Applicants’ argument that the facts of the present case are similar to CCH & Anor (supra) is misconceived. In that case, the child was no doubt born at HUKM, Cheras with a proper hospital record about the birth was presented before the court whereas in our case, as alluded to earlier, the 3rd Applicant’s place of birth and his particulars are full of doubt. [34] It is trite that the introduction of s. 19B of Part III of the Second Schedule to the FC is to grant a citizenship by operation of law to a new born child found exposed within Malaysia. Nevertheless, the court has the responsibility to prevent this sacrosanct concept from being arbitrarily taken advantage by an individual to legalise any illegal activity such as taking a child from elsewhere and later making him or her as a Malaysian citizen by way of adoption. [35] When there are human trafficking cases at rise in all over the world and Malaysia is not an exception, the application of this provision must be exercised with great caution in only clear cut and genuine cases like in CCH & Anor (supra). [36] I sympathise with the 3rd Applicant as this is not his fault. The door to be a Malaysia citizen is not yet closed for him. He may acquire citizenship by naturalization under Art. 19 of the FC. [37] As a conclusion, it is clear to me that the Applicants failed in establishing to the Court that the existence of any merit in this application. Thus, I dismiss the Applicants’ Originating Summons in Enclosure 1 with no order as to costs. Dated: 11.3.2023 -SIGNED- (SHAMSULBAHRI BIN HAJI IBRAHIM) Judicial Commissioner, High Court, Johor Bahru Counsels: For the Applicants – Alvin Chang Teck Kiam (Chai Yong Wei with him); Messrs. Alvin Chang’s Chamber For the Respondents – Zahilah binti Mohammad Yusoff (senior Federal Counsel); Attorney-General Chambers Cases referred to:  CCH & Anor v. Pendaftar Besar Bagi Kelahiran Dan Kematian, Malaysia [2022] 1 CLJ 1; [2022] 1 MLJ 71  CTEB & Anor v. Ketua Pendaftaran Negara, Malaysia [2021] 6 CLJ 471, Legislations referred to:  Child Act 2001 – s.  Federal Constitution - Art. 14(1)(b), s. 1(a) of Part II & s. 19B of Part III of the Second Schedule  Registration of Births and Deaths Act 1957 – s.