LEE SUI SAN v Kementerian Dalam Negeri (KDN) (JA-24NCvC-693-06/2023)

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1 DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA SAMAN PEMULA NO.: JA-24NCvC-693-06/2023 Dalam perkara mengenai suatu permohonan untuk perintah Deklarasi Dan Dalam perkara mengenai Seksyen 41 Akta Relief Spesifik 1950 Dan Dalam perkara mengenai Perkara 14(1)(b) Perlembagaan Persekutuan Dan

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

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Jadual Kedua, Bahagian III, Seksyen 19B Perlembagaan Persekutuan Dan

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Jadual Kedua, Bahagian II, Seksyen 1(e) Perlembagaan Persekutuan Dan Dalam perkara mengenai Aturan 92 Kaedah 4 Kaedah-kaedah Mahkamah 2012 ANTARA 1. LEE SUI SAN 2. WONG CHEW MOI 3. LEE FONG SHENG ... PEMOHON-PEMOHON 25/05/2024 00:34:46 JA-24NCvC-693-06/2023 Kand. 24 DAN 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 registration of De Facto Adoption on 16.7.2013. At present, the 3rd Applicant is 28 years old. [3] On or about 2012, the 1st Applicant went to the National Registration Department (“NRD”), Johor Bahru Branch for the purpose of complaining that the 1st and 2nd Applicants’ application to renew the 3rd Applicant’s Malaysian international passport was rejected by the Immigration Department on the ground that there were doubts about the 3rd Applicant’s appearance who is an Indian look compared to the 1st and 2nd Applicants who are Chinese. [4] Subsequently, the complaint was referred to the Department of Investigation and Enforcement of NRD. Based on the information revealed during the investigation, the 1st and 2nd Applicants admitted that they are not the 3rd Applicant’s biological parents. Instead, the 3rd Applicant was given to them by his mother who is an Indian descent on 30.10.1996 when he was then 4 months at Batu 7, Kampung Jawa, Klang, Selangor. The 3rd Applicant’s original birth certificate (“OBC”) was made available with the help of the 1st and 2nd Applicants’ friend who was paid RM1,000.00 as an “angpau”. It is stated in the OBC that the 3rd Applicant’s birth was on 30.10.1996 at 9.00 am at Batu 7, Kampung Jawa, Klang, Selangor and registered at Klang Police Station on 5.11.1996. [5] As the 3rd Applicant’s birth record was unable to be traced by the NRD at the time of investigation, the 1st Applicant later made an application to re-register the 3rd Applicant’s birth vide Form JPN LM01 on 27.7.2009 pursuant to s. 4A of the Registration of Birth and Death Act 1957 (“RBDA”). In this application, the 1st and 2nd Applicants wrote they were the 3rd Applicant’s parents in column “particulars of parents”. This application was approved and new birth certificate (“NBC”) was issued on 12.8.2009 by NRD. [6] Based on further investigation carried out by the NRD, the 2nd Respondent found that particulars in the OBC and NBC to be incorrect or false due to the fact that the 1st and 2nd Applicants were not actually the 3rd Applicant’s biological parents as stated in both documents. As such, the OBC was impounded by the 2nd Respondent pursuant to s. 37B of the RBDA for further investigation. Subsequently, an alteration pursuant to s. 27(3) of the RBDA was made to the NBC on 3.5.2012 to expunge the particulars of the 3rd Applicant’s parents therein. Later, a new birth certificate (“BC 2013”) was issued with a note “Jenis Pindaan seksyen 27(3) dan Pendaftaran Semula Kelahiran”. [7] On 5.7.2013, on the 1st and 2nd Applicants’ application, NRD approved the De Facto Adoption of the 3rd Applicant to them. The parties’ arguments [8] The Applicants advanced inter alia the following arguments to support their application: (a) the 3rd Applicant is a Malaysian citizen by operation of law as he was born in Malaysia by a Malaysian woman; (b) the 3rd Applicant is a Malaysian citizen by operation of law as he was an abandoned child; (c) the 3rd Applicant is a Malaysian citizen by operation of law as he is stateless; and (d) the 3rd Applicant’s Malaysian citizenship was arbitrary revoked by the Respondents through the alteration of NBC. [9] On the other hand, the Respondents strenuously opposed the application by mounting the following grounds: (a) the 3rd Applicant failed to establish that he was born in Malaysia by a Malaysian woman; (b) the 3rd Applicant failed to establish that he was an abandoned child; (c) the 3rd Applicant failed to establish that he is stateless; and (d) there was no revocation of Malaysian citizenship as there was no proof that the 3rd Applicant is a Malaysian citizen at the first place. Whether the 3rd Applicant is a Malaysian citizen by operation of law as he was born in Malaysia by a Malaysian woman [10] The Applicants averred that the 3rd Applicant is unquestionably entitled to acquire a Malaysian citizen by operation of law under Art. 14(1)(b) read with s. 1(a) of Part II of the Second Schedule to the FC as he was born in Malaysia by a Malaysian woman. [11] On this point, it is no doubt that Art. 14(1)(b) of the FC confers a citizenship to any person who 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. [12] 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. [13] S. 1(a) of Part II of the Second Schedule to the FC requires that in order to be granted a citizenship by operation of law, 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 permanent resident (jus sanguinis). In CTEB & Anor v. Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2018] 1 CLJ 671; [2021] 4 MLJ 236, both the majority and minority judgments approved the following exposition by Abang Iskandar JCA (as His Lordship then was) in Pendaftar Besar Kelahiran dan Kematian, Malaysia v. Pang Wee See & Anor [2017] 7 CLJ 33 on what jus soli and jus sanguinis entail and how they apply: [29] In determining citizenship of a person, two concepts are commonly applied, namely the concept of jus soli and the concept of jus sanguinis. Jus soli which means 'right of the soil', and commonly referred to as birth right citizenship, is the right of anyone born in the territory of a state to nationality or citizenship. The determining factor being the place or territory where a person was born. In the case of jus sanguinis, which in Latin means 'right of blood', is a principle of nationality law by which citizenship is not determined by place of birth but by having one or both parents who are citizens of the state. Viewed from the context of these two concepts, we are of the considered opinion that art. 14(1)(b) read with s. 1 (a), Part II,Second Schedule of the Federal Constitution is a provision which is anchored on the elements of both the concepts of jus sanguinis and of jus soli, whereby citizenship of a person is traceable to the place of birth namely, Malaysia, as well as Malaysian citizenship of one of the person's parents (the right of blood) at the time of the person's birth, in order to be a Malaysian citizen by operation of law, under art. 14(1)(b) read with s. 1(a), Part II, Second Schedule of the Federal Constitution. [14] Back to our present case, the Applicants’ narrative about the 3rd Applicant is totally different from the Respondents’ version. The 1st Applicant in his affidavit in support (Enc. 2) stated that on or about September 1996, his younger brother by the name of Lee Kok Meng (“Lee”) found the 3rd Applicant in a box at Batu 7, Kampung Jawa, Klang, Selangor together with a slice of bread. Lee later told this event to the 1st Applicant and brought him to see the 3rd Applicant. During this visit, the 1st Applicant met an unidentified woman who told him that the 3rd Applicant was an abandoned child whose mother was untraceable. The 1st Applicant brought the 3rd Applicant home and stayed with him and the 2nd Applicant. [15] On or about November 1996, a friend of the unidentified woman gave the 1st Applicant the OBC which stated that the 1st and 2nd Applicants were the 3rd Applicant’s parents. [16] Nevertheless, the above narrative is not corroborated by any documentary or cogent evidence. In fact, such narrative contradicts with what the 1st and 2nd Applicants stated in their own statutory declaration affirmed before a commissioner for oath at the Kulaijaya Magistrate Court on 7.3.2013 when they applied to the NRD for the adoption of the 3rd Applicant. In that statutory declaration, the 1st and 2nd Applicants confirmed that the 3rd Applicant was given to them by his biological parents on 30.10.1996. It has to be noted that the allegation that the 3rd Applicant was an abandoned child was not even stated in the declaration. [17] The fact that the 3rd Applicant was given by his parents to the 1st and 2nd Applicants was also stated in a report known as Laporan Pendaftaran Pengangkatan prepared by the Social Welfare Department (“JKM”) for the purpose of the adoption of the 3rd Applicant where it was stated as follows: “1.1 Perihal Kanak-Kanak: Seperti dalam Sijil Kelahiran, kanak-kanak telah dilahirkan di Batu 7, Kampung Jawa, Klang, Selangor pada 30.10.1996. Tiada maklumat mengenai ibu kandung dan bapa kandung direkodkan di dalam Sijil Kelahiran kanak-kanak. Menurut ibubapa angkat, kanak-kanak telah diserahkan oleh ibu kandung kepada beliau pada tarikh 30.10.1996 semasa usia kanak-kanak 4 bulan kerana tidak bersedia dan tidak berupaya menjaga kanak-kanak dan berharap masa depan kanak-kanak akan lebih terjamin dengan ibu bapa angkat.” [18] It is trite that any party who desires the court to give judgment as to any legal right or liability bears the burden of proof (s. 101(1) of the Evidence Act 1950). The Court of Appeal in CB Media Sdn Bhd & Anor v. Kesas Sdn Bhd [2019] 4 CLJ 609 where Stephen Chung JCA held:- "[19] It is settled law that the burden of proof rests throughout the trial on the party who asserts that the facts exist (s. 101 of the Evidence Act 1950). Where a party on whom the burden of proof lay had discharged that burden, then the evidential burden shifted to the other party. But if the party on whom the burden of proof lay failed to discharge it, the other party need not call any evidence: Hong Yik Trading v. Liziz Plantation Sdn Bhd [2017] 8 CLJ 491; [2017] 5 MLJ 398." [19] In Ranggong Jenau & Ors v. BLD Resources Sdn Bhd [2017] 1 LNS 2164 Mohd Zawawi Salleh JCA (as he then was) held that – [32] The burden of proof placed on the plaintiff is very strict. There is no room for any guesswork, speculation, surmises or conjecture i.e. acting on a mere possibility. [33] The plaintiffs' witnesses' testimonies must be corroborated by credible evidence as their self-serving testimonies carry little or no weight in the absence of some other corroborative evidence. In the case of SOP Plantations (Suai) Sdn. Bhd. v. Ading ak Layang & Ors (supra ) the Court stated- "37. In the case of Ara binte Aman & Ors v. Superintendent of Lands and Mines 2nd Division [1979] 1 MLJ 208, the appellant claimed native customary rights over certain lands. Their claim was dismissed by the District Court at Kuching and they appealed to the High Court. The High Court dismissed the appeal. In that case, evidence was adduced by the appellant to show that the jungle was felled when one of the witnesses in that case was only 13 years old. The appellants also told the trial court that they knew about the land because their father and mother told them about it. The High Court which heard the appeal said that in cases of this nature the issue is one of fact and found that this evidence unsatisfactory. As such, the court said, the appellants failed to discharge the burden of proof. At p 208, the court says as follows: That all the appellants in this case failed to discharge the burden of proof which lay upon them to prove that at the time of Settlement they were entitled to the parcels of land is plain enough. Their evidence has been proved to be uncorroborated, unconvincing, contradictory, and based partly on hearsay. [20] It is a cardinal principle that reasonable inferences can be made when one asserts and if no documentary evidence is adduced to support such assertions then the averments made in the affidavits become unsubstantiated statements. In the premise of the foregoing, needless to say that there was no single evidence forwarded by the Applicants that the 3rd Applicant was born in Malaysia nor at least one of his biological parents is a Malaysian citizen or permanent resident during his birth. It is my view that this court must not simply presume that the 3rd Applicant was born in Malaysia and his parents’ citizenship status without an iota of evidence as a basis for the presumption. As such, I find that the 3rd Applicant has not fulfilled the requirements of s. 1(b) of Part II of the Second Schedule. Whether the 3rd Applicant is a Malaysian citizen by operation of law as he was an abandoned child [21] On the Applicants’ argument that the 3rd Applicant is a Malaysian citizen by operation of law as he was an abandoned child, it is undoubtedly that the FC confers the citizenship to this category of child. But it is incumbent upon the Applicants to establish that the 3rd Applicant was an abandoned child. [22] S. 19B of the Part III of the Second Schedule to the FC reads – PART III [Article 31] SUPPLEMENTARY PROVISION RELATING TO CITIZENSHIP 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. [23] As I expounded in Lau Tek Peng & Ors v. Kementerian Dalam Negeri & Anor [2023] CLJU 376; [2023] 1 LNS 376, before a child can be considered as an abandoned child and be granted a citizenship, two requirements have to be met – (a) there must be a report made about the finding of the child to the NRD. S. 9 of the RBDA requires the information about the finding of the new-born child be given to the NRD before the expiration of fourteen days from the date on which the child was found; and (b) s. 35 of the Child Act 2001 requires any person who wants to take an abandoned child into his custody must notify the protector of child as defined in s. 2 of the Act not later than one week thereafter about the taking. [24] 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 NRD. [25] I remind myself of the decision of the Federal Court in CCH & Anor v. Pendaftar Besar Bagi Kelahiran Dan Kematian, Malaysia [2022] 1 CLJ 1; [2022] 1 MLJ 71, where it was held that the phrase "any new born child found exposed in any place" in s. 19B of Part III of the Second Schedule to the FC must be to cover new-born 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. [26] 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 had been 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 especially it is illogical that Lee found the 3rd Applicant in a box with a slice of bread instead of a bottle of milk! [27] It is my view that Lee is the best person to explain in detail to this court how he found the 3rd Applicant. But there was no explanation offered by the Applicants why Lee could not affirm an affidavit to support the 1st Applicant’s allegations albeit he is the 1st Applicant’s younger brother. [28] 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 any individual to legalise illegal activities such as taking a child from elsewhere and later making him or her as a Malaysian citizen by way of adoption. [29] 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). [30] Based on the above observations, this court is unable to accept the Applicants’ unsubstantiated allegations about the 3rd Applicant being an abandoned child. Whether the 3rd Applicant is a Malaysian citizen by operation of law as he is stateless [31] Another point raised by the Applicants is that the 3rd Applicant is a Malaysian citizen by operation of law as he is stateless. The Applicants averred that there are letters from embassies of the Asean countries confirming that the 3rd Applicant is not their citizen. [32] For ease of reference, I reproduce s. 1(e) of Part II of the Second Schedule as follows: (e) every person born within the Federation who is not born a citizen of any country otherwise than by virtue of this paragraph [33] At this juncture, it is pivotal to note that in order to invoke the above provision, the Applicants have to establish first that the 3rd Applicant was born in Malaysia (jus soli). As adumbrated in para [21] earlier, I have canvassed the issue of the 3rd Applicant’s place of birth and I do not propose to repeat my observations here. Suffice to say that based on my findings, there is no credible evidence advanced by the Applicants that the 3rd Applicant was born in Malaysia. In fact, he was given by his parents to the 1st Applicant when he was 4 months old and information about his place of birth was never revealed by the Applicants. [34] On the search carried out by the Applicants at the embassies of the Asean countries, it is my considered view that such search ought not to stand as a conclusive proof that the 3rd Applicant is not citizen of any country. Especially when the Applicants used the 3rd Applicant’s name which was given by the 1st and 2nd Applicants instead of the 3rd Applicant’s original identity, it is unlikely the embassies would have records on the 3rd Applicant’s identity. [35] It has to be noted that the burden of proof that the 3rd Applicant is stateless lies on the Applicants. The averment that the Applicants do not have the knowledge about the citizenship status of the 3rd Applicant biological parents is not a carte blanche that he is stateless. Again, the citizenship status of a person must be positively proved and not by way of deductive reasoning or presumption as suggested by the Applicants. [36] It is important to highlight that s. 1(e) of Part II of the Second Schedule also requires the criteria of jus sanguinis to be met as decided by the Court of Appeal in Than Siew Beng & Anor v. Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 8 CLJ 16, where it was held that – [27] The contentious issue is in respect of the requirement of jus sanguinis in s. 1 (e) of Part II of the Second Schedule of the Federal Constitution as expressed by the phrase, "who is not born a citizen of any country". For the purposes of this requirement, the material time to determine the status of the second appellant's lineage is at the time of his birth. [35] A plain reading of s. 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. The only available documentary evidence - the second appellant's birth certificate (exh. TSB6) contained no information pertaining to the biological parents and the relevant particulars were endorsed with "Maklumat Tidak Diperolehi". [36] Since the identity of the child's lawful and biological parents are unknown, it is not possible to determine the lineage of the second appellant that would enable the second appellant to be conferred citizenship by lineage ie, jus sanguinis. [37] Thus in our view, the second appellant has not fulfilled the requirement to be a citizen by operation of law within the meaning of s. 1(e) of Part II of the Second Schedule of the Federal Constitution. (Refer to Chin Kooi Nah v. Pendaftar Besar Kelahiran dan Kematian Malaysia (supra)) [38] We cannot accept the contention of the appellants that the evidence that the second appellant was born in the Federation and had resided in the Federation all his life, as well as the absence of particulars on the second appellant's birth certificate in respect of his lineage can be construed as sufficient proof that the second appellant "was not born a citizen of any country". As was stated earlier, what is required is evidence of the second appellant's lineage, which evidence is absent. [39] Thus, we agree with the finding of the learned High Court Judge that the second appellant has failed to prove on the balance of probabilities that the requirement of s. 1(e) of Part II of the Second Schedule of the Federal Constitution abovementioned has been satisfied. [37] As admitted by the Applicants that the 3rd Applicant’s parents could not be traced, it is impossible to determine the 3rd Applicant’s lineage that would enable him to be conferred citizenship by lineage. Based on the above authority, I find that the 3rd Applicant failed to comply with the requirements of s. 1(e) of Part II of the Second Schedule. Whether the 3rd Applicant’s Malaysian citizenship was arbitrary revoked by the Respondents through the alteration of NBC [38] The Applicants submitted that s. 27(3) of the RBDA which was invoked by the 2nd Respondent to alter the NBC on 3.5.2012 only governs the process and power to alter the register regarding the births, still-birth and death. Thus, the 2nd Respondent’s action in altering the NBC to expunge the particulars of the 3rd Applicant’s parents therein had led his Malaysian citizenship revoked. [39] Regarding the power to alter any register including the NBC, s. 27(3) of the RBDA gives the 2nd Respondent such power when he is satisfied that an alteration has to be made. The section reads – Correction of errors and alteration in register 27. (1) No alteration in any register shall be made except as authorized by this Act. (2) Any clerical error which may from time to time be discovered in any register may be corrected by the Superintendent-Registrar, in such manner as the Registrar-General shall direct. (3) Any error of fact or substance in any register may be corrected by entry (without any alteration of the original entry) by the Registrar-General upon payment of the prescribed fee and upon production by the person requiring such error to be corrected of a statutory declaration setting forth the nature of the error and the true facts of the case, and made by two persons required by this Act to give information concerning the birth, still-birth or death with reference to which the error has been made, or in default of such persons then by two credible persons having knowledge to the satisfaction of the Registrar-General of the truth of the case; and the Registrar-General may if he is satisfied of the facts stated in the statutory declaration cause such entry to be certified and the day and the month and the year when such correction is made to be added thereto. [40] On the issuance of OBC and NBC, I shall not repeat its narration of chronology which I have mentioned earlier. Suffice to state that the issuance of OBC and NBC was based on the information given by the 1st and 2nd Applicants when they registered the 3rd Applicant’s birth on 30.10.1996 while the issuance of NBC was done after the 1st and 2nd Applicants made an application to re-register the 3rd Applicant’s birth on 27.7.2009. Subsequently, when the 2nd Respondent discovered that the information in the NBC was incorrect, he made the alteration to the certificate pursuant to s. 27(3) of the RBDA. With the alteration, the particulars which stated that the 1st and 2nd Applicant were the 3rd Applicant’s parents have been expunged after a thorough investigation done and based on the information given by the 1st and 2nd Applicants themselves. [41] It is my view that the alteration was done within his power provided by the RBDA to ensure the correct and true particulars are reflected in the NBO. In Leow Fook Keong v. Pendaftar Besar Bagi Kelahiran Dan Kematian Malaysia, Jabatan Pendaftaran Negara, Malaysia & Anor [2022] 1 CLJ 23, the Federal Court held that – [43] It goes without saying that the particulars in the registers must be true and correct; whether on the part of the qualified informant or the Registrar entering the particulars provided. This was observed by the majority in Jabatan Pendaftaran Negara & Ors v. Seorang Kanak-kanak & Ors; Majlis Agama Islam Negeri Johor (Intervener) (supra). Although made in reference to a notation under s. 13, that the "notation is purely a true reflection of the record of the birth of the child", the observation is entirely apt having regard to the role of these registers. It would be frightening to consider a register which is fraught with inaccuracies or worse, false information so as to render any information reposed therein utterly unreliable and useless. [44] However, we must add that for the relevant information entered into the registers to be true and correct, it must also be accurate, particularly at the material time the information is given. [45] If any errors or omissions are subsequently "discovered" in any register, these may be corrected by the Registrar-General. Where the errors are clerical in nature, the correction is at the behest of and in the manner as directed by the Registrar-General. In other cases of errors of fact or substance, the correction is upon application. This is clear from the terms of ss. 27(1) to (3) which read as follows: 27. Correction of errors and alteration in register (1) No alteration in any register shall be made except as authorized by this Act. (2) Any clerical error which may from time to time be discovered in any register may be corrected by the Superintendent-Registrar, in such manner as the Registrar-General shall direct. (3) Any error of fact or substance in any register may be corrected by entry (without any alteration of the original entry) by the Registrar-General upon payment of the prescribed fee and upon production by the person requiring such error to be corrected of a statutory declaration setting forth the nature of the error and the true facts of the case, and made by two persons required by this Act to give information concerning the birth, still-birth or death with reference to which the error has been made, or in default of such persons then by two credible persons having knowledge to the satisfaction of the Registrar-General of the truth of the case; and the Registrar-General may if he is satisfied of the facts stated in the statutory declaration cause such entry to be certified and the day and the month and the year when such correction is made to be added thereto. [46] Then, there is s. 28 which imposes a positive duty on the Superintendent-Registrar and the Registrar (they assist the Registrar-General in the functions and duties under the Act) to "procure by all means in their power the best and most accurate information respecting any birth, stillbirth or death which may have occurred within their registration areas and to cause particulars of the same to be recorded (so far as is practicable) in the manner prescribed": 28. Duty of Superintendent Registrar to procure Registration (1) Notwithstanding any omission to report or to furnish information as to any birth, still-birth or death within the time required by the preceding provisions of this Act, it shall be the duty of the Superintendent-Registrar and the Registrar to procure by all means in their power the best and most accurate information respecting any birth, still-birth or death which may have occurred within their registration areas and to cause particulars of the same to be recorded (so far as is practicable) in the manner prescribed. (2) It shall be the duty of every police officer, penghulu and headman to obtain information of every birth, still-birth and death within his respective area and also information respecting the lawful father and the mother of every child born in his area and respecting the occupier of any house in his area in which any birth, still-birth or death may have taken place and to give notice thereof to the Registrar. (3) Any police officer, penghulu or headman who has in his possession any such information and wilfully neglects or omits to disclose the same to the Registrar shall be guilty of an offence and be liable on conviction to a fine not exceeding fifty ringgit. [42] It is trite law that all particulars about a person’s birth would determine his citizenship status in respect of jus soli and jus sanguinis as provided for in the FC. As decided in Leow Fook Keong (supra), it is incumbent upon the 2nd Respondent to alter the NBC to ensure the 3rd Applicant’s birth particulars are true, correct and accurate when the actual facts have been discovered that the 1st and 2nd Applicants were not the 3rd Applicant’s biological parents. It is misconceived when the Applicants averred the 2nd Respondent’s action in altering the NBC to expunge the particulars of the 3rd Applicant’s parents therein had led the 3rd Applicant’s Malaysian citizenship revoked. In fact, the 3rd Applicant’s citizenship status was not surely determined when he was born as there was no information about his true biological parents. Thus, there is no issue of deprivation of citizenship as alleged by the Applicants. In this regard, I draw support from the Federal Court case of CTEB & Anor (supra), where Rohana Yusuf PCA when delivering the majority decision held that – (8) Article 24 is a citizenship-deprivation provision which could only apply to a person who is already a citizen of Malaysia. There could not be a deprivation of citizenship until citizenship has first been conferred on the child. The acquisition of a foreign citizenship and the discretion of the Federal Government to deprive any citizen of its citizenship under art. 24 are not relevant factors in determining whether a child is entitled to citizenship by operation of law under art. 14(1)(b). In the present case, the child's acquisition of a Philippines passport which led to him being presumed a citizen of the Philippines was not a legally disqualifying factor to him acquiring Malaysian citizenship. (paras 92 & 93) [43] In the same case, Tengku Maimun CJ although has dissenting view on the appeal, made the following remarks on the question of deprivation of citizenship when the status is still unascertained: (7) Article 24(1) of the FC only applies to citizens who have voluntarily acquired foreign citizenship or exercised a right exclusively available to the citizen of that foreign country under that country's laws. Article 24 has absolutely no application to cases where a person claims to be entitled to Malaysian citizenship under art. 14 of the FC. As the first appellant's status as a Federal citizen was still unascertained, the question of deprivation of his citizenship does not arise. Further, the power to deprive anyone of their citizenship is to be exercised by the Federal Government upon having complied with all the procedural safeguards of natural justice contained, for example, in art. 27 of the FC. The courts do not otherwise have the substantive power to make any order of deprivation. The Court of Appeal's finding in respect of art. 24 of the FC and its application to the first appellant was perverse and unsustainable in law. It was set aside. (paras 199, 201 & 202) [44] In the upshot, based on the aforesaid reasons, the Applicants’ averment that the 2nd Respondent’s action by expunging the 1st and 2nd Applicants’ names in the NBC tantamount of revoking the 3rd Applicant’s citizenship status, in my view, is unfounded and must be rejected. Conclusion [45] 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. [46] In a nutshell, 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: 24.5.2024 - SIGNED - (SHAMSULBAHRI BIN HAJI IBRAHIM) Judge, High Court of Malaya, Johor Bahru Counsels: For the Applicants – Alvin Chang Teck Kiam; Messrs. Alvin Chang’s Chamber For the Respondents – Zahilah binti Mohammad Yusoff SFC (Nurul Azrina Arza with her); Attorney-General Chambers Cases referred to:  CB Media Sdn Bhd & Anor v. Kesas Sdn Bhd [2019] 4 CLJ 609  CCH & Anor v. Pendaftar Besar Bagi Kelahiran Dan Kematian, Malaysia [2022] 1 CLJ 1; [2022] 1 MLJ 71  CTEB & Anor v. Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2018] 1 CLJ 671; [2021] 4 MLJ 236  Lau Tek Peng & Ors v. Kementerian Dalam Negeri & Anor [2023] CLJU 376; [2023] 1 LNS 376  Leow Fook Keong v. Pendaftar Besar Bagi Kelahiran Dan Kematian Malaysia, Jabatan Pendaftaran Negara, Malaysia & Anor [2022] 1 CLJ 23  Ranggong Jenau & Ors v. BLD Resources Sdn Bhd [2017] 1 LNS 2164  Than Siew Beng & Anor v. Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 8 CLJ 16 Legislations referred to:  Federal Constitution - Art. 14(1)(b), s. 1(a) & (e) of Part II & s. 19B of Part III of the Second Schedule  Registration of Births and Deaths Act 1957 – s. 27(3)