LEE TIN YONG v kementerian dalam negeri, malaysia (JA-24NCvC-345-04/2022)

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Page 1 of 22 DALAM MAHKAMAH TINGGI MALAYA DI JOHOR BAHRU DALAM NEGERI JOHOR DARUL TA’ZIM, MALAYSIA SAMAN PEMULA NO: JA-24NCvC-345-04/2022 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

Schedule

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

Schedule

Jadual Kedua, Bahagian III, Seksyen 19(b) Perlembagaan Persekutuan Dan

Schedule

Jadual Kedua, Bahagian II, Seksyen 1(e) Perlembagaan Persekutuan Dan 04/01/2024 12:36:58 JA-24NCvC-345-04/2022 Kand. 47 S/N Di5bb3B7wkuu4yc/DMrDwA Page 2 of 22 Dalam Perkara mengenai Aturan 92 Kaedah 4 Kaedah-Kaedah Mahkamah 2012 ANTARA 1. LEE TIN YONG (NO. K/P: 640807-01-5605) 2. CHONG SOK WAH (P) (NO. K/P: 670628-01-5244) 3. LEE MIN HAO Sijil Kelahiran Daftar No.: 00017014 (No. Siri: 000838 XA) …PEMOHON-PEMOHON DAN 1. KEMENTERIAN DALAM NEGERI 2. PENDAFTAR BESAR KELAHIRAN DAN KEMATIAN, MALAYSIA …RESPONDEN-RESPONDEN GROUNDS OF JUDGMENT [1] This is a case by both applicant appellant seeking for this Court’s power to exercise its discretion to confer citizenship on the 3rd applicant appellant LMH, such application having been rejected by the Respondent, earlier. This brings into focus the affidavits filed by both party and the history that bring about the 3rd applicant into the 1st and 2nd applicants’ care (the 1st and 2nd applicant hereafter referred to as ‘representatives’ and the 3rd applicant as ‘LMH’). S/N Di5bb3B7wkuu4yc/DMrDwA Page 3 of 22 [2] The representatives are both of Malaysian citizen and are husband and wife. At the time when an application for the identity card (IC) of LMH was made when he reached 12 years old and arising from a series of recalling of the birth certificate of LMH by the Respondent, with changes were then made concerning important information of the representatives reflected as ‘parents’ in the said application form and new birth certificate reissued by the Respondent deleting the representatives identity as ‘parents’ and rejecting the said application for LMH’s IC, moved the representatives to seek for an intervention to resolve it by an adoption order dated 10.7.2014, given by the Session Court of Johore Bahru for LMH to be registered as adopted son of both the representatives being LMH’s adoptive parents. The background history adduced by both parties [3] LMH had a birth certificate (BC) AV37927 registered as being born on 1.6.2001 with both representatives reflected as ‘father’ and ‘mother’ respectively on it. On him obtaining the age of 12 years old, the 1st applicant (adoptive father) applied for LMH’s identity card but was rejected by the 1st Respondent with the birth certificate of LMH confiscated and invalidated by the 1st Respondent. [4] The reason for this invalidation (as disclosed by the Respondent’s affidavit) is that arising from different facial appearance of LMH compared to the representatives, drove the Respondent to investigate, it was revealed that the representatives were not the biological parents of LMH. This moved an application be made by the 2nd applicant (adoptive mother) for the changes to the crucial information relating to the mother’s name including IC number, religion and race to be replaced with ‘no information’ (maklumat tiada) and the citizenship status of both biological mother and S/N Di5bb3B7wkuu4yc/DMrDwA Page 4 of 22 LMH to be ‘non-citizen’ made by the adoptive mother (see: exhibit ‘RJ-5’ of enclosure 5 Respondent’s AIR). [5] The place of birth however was maintained as per the original BC to be ‘Poliklinik Suria’ as no amendment was sought by the adoptive mother. In order for these changes to be made, the first BC had to be handed back to the Respondent. A new BC AV37927 dated 25.2.2014 serial number 001098XA with all these amendments was then issued (2nd BC) by the Respondent. [6] In the meantime, acting on the advice (by the Respondent) for a formal adoption be made and having done so, armed with the seal adoption order dated 10.7.2014, an application was made with the Registration Department to have the adoption registered in the Adoption Register. This was followed with a new BC (3rd BC) in red paper with register number 00017014 serial number 000838XA signed by the 2nd Respondent and registration date as 8.10.2014, issued. [7] The applicants contend that the issuance of the 2nd BC written on it ‘place of birth’ of LMH to be ‘Poliklinik Suria Johor Bahru’ itself is an endorsement by the Respondents that LMH was born in the Federation of Malaysia without any other citizenship of other states and similarly the biological mother of LMH would also be the citizen of Malaysia and no other. [8] On 6.11.2014, the 1st applicant submitted an application in Form B, to the Registration Department to move them to allow LMH’s registration for citizenship under Article 15A of the Federal Constitution but was S/N Di5bb3B7wkuu4yc/DMrDwA Page 5 of 22 rejected by the National Registration and Societies Division, Ministry of Home Affairs on 25.5.2017 without giving any reasons. [9] Both the applicants further deposed that they have no information or knowledge of the biological parents of LMH and the introduction to LMH’s existence said to have been unwanted, abandoned or exposed, was made sometime in May 2001 by a friend whose identity, unfortunately was unknown to the 1st applicant and with no further deposition by the 2nd applicant. The only information that seems to be in their knowledge is that LMH was born in ‘Poliklinik Suria’ in the care of Dr. Raghu Sukumaran and endorsement by the said clinic appeared on the BC application form AV37927 (see: exhibit ‘RJ-3’ and ‘RJ-4’ of enclosure 5). [10] The Respondents in their affidavit in reply deposed that with no information of the LMH’s biological parent mother which could have been obtained through the unidentified friend of both the applicants, it could neither be said that the mother would have been a citizen nor was she not a citizen of any other state. Furthermore, there was no other evidence that LMH was unwanted, abandoned or exposed as there was no facts to suggest LMH was found unattended, found at a rubbish dump, public toilet or place of worship. [11] The Respondents further averred that the place of birth ‘Poliklinik Suria’ was maintained in the BC as the exercise carried out by the Respondent at that point of time was merely to rectified any piece of information found to be incorrect and as the place of birth as reflected in the said application form with the stamp of the clinic appearing was never part of the information that required any amendments be made by the 2nd applicant, this information was left untouched by the Respondents. S/N Di5bb3B7wkuu4yc/DMrDwA Page 6 of 22 [12] To the Respondents’ view, even if the place of birth would, as argued by the applicant, would have satisfied the principle of ‘Jus Soli’, the applicants have failed to fulfill the ‘Jus Sanguinis’ requirement. The act of both the applicants in being mum of these crucial facts, taking them to be a true declaration on their part and only admitting them to be wrong subsequently, work against them. [13] The absence of any police report or report to the Registrar under section 9 of the Births And Deaths Registration Act 1957 (Revised - 1983) that requires any information concerning the finding of new-born child found exposed, to be given to Registrar or a report to the Welfare Department is suspect. These were the reasons, the application for LMH’s IC and citizenship rejected was rejected by the Respondents. The law on citizenship in the Federal Constitution [14] The provisions on citizenship in the Federal Constitution can be found in Part III, with further and better particulars can be seen in the 1st and 2nd schedule as referred to in Part III of the Federal Constitution. In the application before this Court, the applicants relied on Article 14(1)(b) Federal Constitution ‘Citizenship by operation of law persons born on or after Malaysia day’, sections 1(b) and 1(e) of 2nd schedule Part II and section 19B Part III 2nd schedule of the Federal Constitution. [15] The relevant provisions of the Federal Constitution are extracted as follows: “Part III 14. Article 14 (Citizen by operation of law) (1) Subject to the provisions of this Part, the following persons are citizens by operation of law, that is to say: S/N Di5bb3B7wkuu4yc/DMrDwA Page 7 of 22 (a) ... (b) every person born on or after Merdeka Day, and having any of the qualifications specified in Part II of the Second Schedule... (Also, in Part III) 31. Article 31 (Application of Second Schedule) Until Parliament otherwise provides, the supplementary provisions contained in Part III of the Second Schedule shall have effect for the purposes of this Part. ... SECOND SCHEDULE ... PART II [Article 14(1)(b)] CITIZENSHIP BY OPERATION OF LAW OF PERSONS BORN 1. ON OR AFTER MALAYSIA DAY 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 the time of birth either a citizen or permanently resident in the Federation; 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) ... (2) ... (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 S/N Di5bb3B7wkuu4yc/DMrDwA Page 8 of 22 within one year afterwards by virtue of any provisions corresponding to paragraph (c) of that section or otherwise. PART III [Article 31] SUPPLEMENTARY PROVISIONS RELATING TO CITIZENSHIP Interpretation ... 19B. For the purposes of Part I or II of this Schedule 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; 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.” [16] Guided by the principle set in the cases (see: CTEB & Anor v. Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 6 CLJ 471; [2021] 4 MLJ 236 and CCH & Anor v. Pendaftar Besar Bagi Kelahiran Dan Kematian, Malaysia [2022] 1 CLJ 1) which held that: “[49] … fundamental rights and provisions must be construed as broadly as possible… provisions which limit those rights must be construed as narrowly as possible… [50] When construing a word or words in the FC protective of or guaranteeing a fundamental right, the court should give their widest possible meaning without changing or warping the ‘base’ meaning. And when construing interrelated provisions, the Court should read them as a whole having regard to the purpose and intent of those provisions and harmonise their S/N Di5bb3B7wkuu4yc/DMrDwA Page 9 of 22 collective meaning rather than put them at odds with another”. this Court proceeded to hear submissions by both parties on the effect of the available evidence in relation to these provisions in the Federal Constitution. Submissions by parties [17] It is the submission of the representatives that LMH’s 1st BC including his Malaysian passport was obtained legitimately without involving any syndicate, fraud, misrepresentation or corruption. For these reasons, the forfeiture of LMH’s citizenship is unlawful, unconstitutional, illegally forfeited and without legal justification. [18] It was further submitted that the application for the changes as per exhibit ‘RJ-5’ was made unwillingly but on the instruction by the Respondent with some of the changes including the ‘citizenship status’ as contended by the representatives was written by the JPN officer without obtaining the consent of the representatives. In addition, the representatives said the Respondent has failed to deny that the applicants had satisfied the Jus Sanguinis principle hence it must be taken that the failure to rebut only means an admission on the part of the Respondent that the Jus Sanguinis principle has been satisfied by the applicants. [19] With the retaining of the status of the place of birth by the Respondent and with LMH at all material time was abandoned, found exposed and/or unwanted by the birth parents by virtue of the fact that there is no information of LMH’s biological parents up to this date, the S/N Di5bb3B7wkuu4yc/DMrDwA Page 10 of 22 principles of Jus Soli and Jus Sanguinis have been satisfied by the applicants. [20] The Respondent on the other hand argued that the citizenship status of LMH must be determined not only based on the place of birth (Jus Soli) but must also qualify the ‘Jus Sanguinis’ requirement. This following the principle decided by the Court of Appeal in Than Siew Beng & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 8 CLJ 16, [2017] 5 MLJ 662. [21] It was further argued by the Respondent that the representatives being adoptive parents are not recognized by law as the biological parents of LMH as pronounced by the decision of Abang Iskandar COA (as he then was) in Pendaftar Besar Kelahiran Dan Kematian Malaysia v Pang Wee See & Anor [2017] 7 CLJ 33; [2017] 3 MLJ 309. The applicants in their submission in reply submits that this case did not discuss if adoptive parents can fill up the Application Form for Registration of birth with their own details. In any event, it was argued by the applicants that with LMH found exposed, abandoned and/or unwanted by the biological parents, the Jus Sanguinis principle has been satisfied. Findings by this Court [22] The latest decision by the Federal Court in CCH (supra) would provide the necessary guide to this Court in coming to a determination on the issues raised. As can be gathered from the affidavits and submissions specifically submission by the Respondent, there appears to be a consensus that the place of birth remains to be ‘Poliklinik Suria Johor’ and hence, to this Court’s view, the principle of Jus Soli would have been S/N Di5bb3B7wkuu4yc/DMrDwA Page 11 of 22 satisfied even without the application of the presumption under section 19B. [23] This can be seen from the decision in CCH that states as follows: "[52] Section 1(a) of Part II very clearly adopts the concepts of jus soli (citizenship based on birthplace) and jus sanguinis (citizenship based on blood relation). Section 19B in turn contains two presumptions - one of which relate to jus sanguinis. [53] The operative words in s. 19B are "any newborn child found exposed in any place". The purpose of this section, when read in context, must be to cover newborn children who are left and discovered in a place without any trace of their biological parents. We take judicial notice of the harsh realities of life: this includes newborn children left abandoned near dumpsites, baby hatches, public or school toilets, places of worship and so on. A literal meaning of "exposed" suggests a newborn child who was "discovered" exposed at any of these locations. [54] As such, the broadest possible interpretation of the word "found exposed" is to accord it a meaning to include a child abandoned at the place of birth by the birth mother whose identity is unknown. The operative word "exposed" in s. 19B must therefore encompass the plight of abandoned newborn children, otherwise the overarching intent of preventing statelessness would be defeated or rendered illusory”. S/N Di5bb3B7wkuu4yc/DMrDwA Page 12 of 22 [24] As a matter of repetition but necessary, section 1(a) of Article 14(1)(b) Part II of Schedule II is reproduced once more as follows: “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 the time of birth either a citizen or permanently resident in the Federation; …” [25] Section 1(a) encompasses both these principle of Jus Soli “born within the Federation” and the Jus Sanguinis “parents one at least at the time of birth a citizen or permanent resident of the Federation”. With the requirement of LMH stated to be born in ‘Poliklinik Suria Johor’ and nothing to the contrary to rebut this, this Court agrees that the Jus Soli principle is met. The next determination is on the principle of Jus Sanguinis. [26] The applicants (representatives) in their submission suggested that the word ‘unwanted’ can be read into the meaning of the word ‘exposed’ that would then trigger the presumption under section 19B. This would, based on this Court’s observation, probably be in tandem with the decision in CCH that uses the word ‘abandoned’ interchangeably. For easy reference, section 19B is produced again below: SUPPLEMENTARY PROVISIONS RELATING TO CITIZENSHIP “Interpretation ... S/N Di5bb3B7wkuu4yc/DMrDwA Page 13 of 22 19B. For the purposes of Part I or II of this Schedule 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; 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. (emphasize mine) [27] In order for the presumption to be triggered, the basic fact that “the newborn child found exposed in any place” must first be satisfied. For this purpose, the Federal Court in CCH ventilated further on the duty task on the Court’s shoulder in relation to interpretation of the provisions of the Federal Constitution. One crucial reminder highlighted by the Federal Court that guides this Court in the analysis, is found at page 17 as follows: “[45] Before proceeding to examine s. 19B with those principles in mind, we seek to remind ourselves of other important concepts on constitutional interpretation. [46] Citizenship no doubt is governed by Part III of the FC, but it is also a concept so inextricably linked to the right to life and personal liberty contained in art. 5(1). As such, any provisions on it must be construed as widely as possible”. [28] In coming to this decision in interpreting the Constitution, the dissenting judgment of the Federal Court in an earlier case of CTEB (supra) was relied by the panel in CCH as follows: “… the dissenting judgment of this court in CTEB & Anor v. Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 6 CLJ 471; [2021] 4 MLJ 236 (“CTEB”) where it was stated that Part III which S/N Di5bb3B7wkuu4yc/DMrDwA Page 14 of 22 contains enabling provisions is meant to aid or assist in the interpretation of Parts I and II, and not to qualify or conditionalise the application of Parts 1 and II to Part III. The dissenting judgment had commented on s. 19B of Part III, as follows: [161] Both ss. 19A and 19B of Part III are constitutional presumptions as to births. Section 19A codifies in part the international principle of flag state jurisdiction and applies in relation to persons who are born on a vessel such that their birth there is attributed to the place of registration of the vessel. Section 19B applies in relation to children who are found abandoned in any given place such that the place of abandonment is treated as their place of birth and where their mother is also permanently resident there. [162] All the above sections, namely ss. 17, 19, 19A and 19B exist as supplementary or filler sections – so to speak – to supplement or to close any gaps or to resolve technicalities that may arise when the person’s parents’ identity is in issue or even if their own place of birth is in issue so long as that is a relevant question for the purposes of Part I or Part II respectively”. [29] With this forming the framework on the interpretation of the Federal Constitution, the Federal Court proceeded to analyse the facts and evidence presented in CCH before coming to a finding as below: “[53] The operative words in s. 19B are "any newborn child found exposed in any place". The purpose of this section, when read in context, must be to cover newborn children who are left and discovered in a place without any trace of their biological parents. We take judicial notice of the harsh S/N Di5bb3B7wkuu4yc/DMrDwA Page 15 of 22 realities of life: this includes newborn children left abandoned near dumpsites, baby hatches, public or school toilets, places of worship and so on. A literal meaning of "exposed" suggests a newborn child who was "discovered" exposed at any of these locations. [54] As such, the broadest possible interpretation of the word "found exposed" is to accord it a meaning to include a child abandoned at the place of birth by the birth mother whose identity is unknown. The operative word "exposed" in s. 19B must therefore encompass the plight of abandoned newborn children, otherwise the overarching intent of preventing statelessness would be defeated or rendered illusory. [55] In the present case, we took pains to emphasise that throughout the course of this case, it has been an accepted fact that the child is an abandoned child who was born in Hospital Universiti Kebangsaan Malaysia, Cheras. This fact was acknowledged in the adoption order and in the third birth certificate... [56] …The follow-up words in s. 19B are contained in the phrase “until the contrary is shown”. Meaning, any person who claims that the child was not “found exposed” or otherwise abandoned by the mother as the case may be, bears the burden of showing the identity of the mother and more importantly, that the mother is not permanently resident at the place of the finding”. [30] The duty is now on this Court to ascertain whether the presumption is triggered. This Court, relying on the unanimous decision of the Court of S/N Di5bb3B7wkuu4yc/DMrDwA Page 16 of 22 Appeal in Pang Wee See (supra) that ruled ‘the word "parents" in Article 14(1)(b) read with Section 1(a), Part II, Second Schedule of the Federal Constitution refers to biological parents’, hence the applicants (representative) had not fulfilled the crucial biological, or the jus sanguinis, criterion as envisaged under the said article. [31] It must be remembered that section 1(a) of Article 14(1)(b) is divided into 2 limbs being the Jus Soli and the Jus Sanguinis when it provides “every person born within the Federation” as the 1st limb focusing on Jus Soli and “of whose parents one at least is at the time of birth either a citizen or permanently resident in the Federation” being the second limb on Jus Sanguinis. Thus, applying the meaning of the word ‘parents’ based on Pang Wee See as above, the applicants have not satisfied the Jus Sanguinis principle. [32] Hence, even if there was consensus by the Respondent on the Jus Soli principle having been met by the applicants, the satisfaction of the 1st limb does not mean it equally satisfy the 2nd. No facts were put forward by the applicants to show that the biological parents of LMH are either at the time of birth, a citizen or a permanent resident of Malaysia. [33] To begin with, the presumption in section 19B as decided in CCH is tied to the place of birth. In CCH, the finding was that the child was born in HUKM and abandoned. Following this, the analysis of the Federal Court in CCH, even if the parents’ identity is in issue or even if their own place of birth is in issue, but with the finding that the child was born in HUKM and abandoned (CCH supra), it thus moved the Federal Court to come to a finding with the aid of the presumption that the mother, permanently resident there. S/N Di5bb3B7wkuu4yc/DMrDwA Page 17 of 22 [34] Acting on the assumption that this Court is wrong on the determination of Jus Sanguinis by relying on Pang Wee See (supra), based on the Federal Court decision in CCH, moved this Court to ventilate and see if the presumption under section 19B is triggered hence, the need to determine if in fact the child is ‘found exposed’ or abandoned (which is used interchangeably in CCH) and if the aid of section 19B comes into play.1 [35] The identity of the mother would and could have been obtained by the applicants by the fact that there was available, an endorsement of the Doctor in exhibit ‘RJ-3’ who would have probably performed the delivery at the polyclinic Suria and it could have been sought from the individual called ‘friend’ by the applicants (representative) in their affidavits yet said of unknown identity, inevitably posed further dilemma to this Court. [36] This was added by the absence of a police report or report to the Registrar as required under section 9 of the Births And Deaths Registration Act 1957 (Revised - 1983) as follows: “PART II - REGISTRATION OF BIRTHS Section 9. Information concerning finding of new-born child to be given to Registrar within fourteen days. 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 1 19B. For the purposes of Part I or II of this Schedule 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; 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 S/N Di5bb3B7wkuu4yc/DMrDwA Page 18 of 22 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.” [37] In CCH, there was no reference made to the case of Pang Wee See (supra) and to section 9 of the Births And Deaths Registration Act 1957, thus how the effect of its absence would have a bearing on the decision of the Court is unknown. As the applicants (representatives) failed to carry out such attempt to ascertain this as opposed to ‘attempted but failed’, this Court is of the view the presumption under section 19B ought not to apply. This decision on the application of the presumption would apply across the board in other cases as well where issue of application of presumption is concerned. [38] The argument by the applicants that the word ‘unwanted’ to be inclusive in the word ‘exposed’, this Court once again finds it necessary to refer to the extract of the Federal Court judgment in CCH as follows: “[53] The operative words in s. 19B are "any newborn child found exposed in any place". The purpose of this section, when read in context, must be to cover newborn children who are left and discovered in a place without any trace of their biological parents. We take judicial notice of the harsh realities of life: this includes newborn children left abandoned near dumpsites, baby hatches, public or school toilets, places of worship and so on. A literal meaning of S/N Di5bb3B7wkuu4yc/DMrDwA Page 19 of 22 "exposed" suggests a newborn child who was "discovered" exposed at any of these locations. [54] As such, the broadest possible interpretation of the word "found exposed" is to accord it a meaning to include a child abandoned at the place of birth by the birth mother whose identity is unknown. The operative word "exposed" in s. 19B must therefore encompass the plight of abandoned newborn children, otherwise the overarching intent of preventing statelessness would be defeated or rendered illusory.” (emphasis mine) [39] The word ‘found’ must be accorded the same meaning as decided by the apex court in other cases and one case in particular that crosses this Court’s mind is the case of PP v Tan Tatt Eek & Other Appeals [2005] 2 MLJ 685, where Ahmad Fairuz CJ said as follows: “[43] As for s 37(da) of the Act, it does not start with 'any person who is deemed in possession' shall be presumed to be trafficking, in which case it will be considered a consequence of s 37(d) of the Act. Instead, the word 'found' is inserted and so there must be a finding of possession first before the presumption of trafficking comes about. It is, therefore, my considered opinion that the decision in Muhammed bin Hassan is correct”. (emphasis mine) [40] Augustine Paul FCJ in the same case, discussing the application of presumptions said at page 737 as follows: S/N Di5bb3B7wkuu4yc/DMrDwA Page 20 of 22 “[159] A presumption of law (like s 37(d)) is a rule of law (see Field's Law of Evidence (12th Ed) Vol I p 388). It arises when the rule of law is applied to facts that require to be proved and have in fact been proved. It is therefore a conclusion of law. Thus, a presumption of law must ordinarily come within the meaning of 'found in possession' in s 37(da); thereby bringing 'deemed' possession within its ambit. At this stage it is perhaps necessary to refer to the part of the judgment in Muhammed bin Hassan where it was held that there is '…no material difference …' between 'proved to have had in possession' and 'found in possession'. It was then concluded that both necessitate a finding or proof of possession beyond reasonable doubt based on evidence”. (emphasis mine) [41] Acting on this earlier decision of the Federal Court in Tan Tatt Eek (supra) that the word ‘found’ must mean affirmative finding based on evidence, the next exercise is for this Court to analyze if there is such proof by the applicants (representatives). This Court, having perused the affidavits of both parties, is of the view that in the absence of the affidavits by the Doctor or ‘friend’, there is no such proof of ‘abandoned’ or ‘exposed’ or even ‘unwanted’ of the mother by way of affirmative evidence but merely a conjecture by way of affidavits assertion. This Court, therefore is of the view that the principle in CCH that ‘the child was found without any trace of the biological parents’ or ‘unwanted’ has not been satisfied by the applicants (representatives). [42] As to the application under Article 15A, this Court repeats its stand in the earlier decision of this Court in OMY & Ors v. Kementerian Dalam Negeri & Anor [2024] 1 CLJ 316 as follows: S/N Di5bb3B7wkuu4yc/DMrDwA Page 21 of 22 “Application under Article 15A is an application made to the Federal Government as provided specifically by the Federal Constitution as follows: Special power to register children 15A. Subject to Article 18, the Federal Government may, in such special circumstances as it thinks fit, cause any person under the age of twenty-one years to be registered as a citizen. That being the case, it is not for this Court to encroach the clear provision of the Federal Constitution and must leave it to the wise decision of the relevant authority. This approach is consistent with the stand taken by Ahmad Kamal Shahid J in Auengchoon & Anor v Ketua Pengarah Pendaftaran Negara Malaysia & Ors [2023] 1 LNS 336”. [43] For all these reasons above, the application in enclosure 1 is dismissed. Having decided so, this Court in ensuring that the child is continuously protected, is guided by the fact that an adoption order has been issued earlier by the Session Court. Signed (NURULHUDA NUR’AINI BTE MOHAMAD NOR) Judge High Court of Malaya Johor Bahru Dated: 31.12.2023 S/N Di5bb3B7wkuu4yc/DMrDwA Page 22 of 22 COUNSEL For the applicant: Mr. Alvin Chang Teck Kiam Tetuan Alvin’s Chang Chamber 02-10 Block F Komersil Southkey Mozek Persiaran Southkey Mozek Persiaran Southkey 1 Kota Southkey 80150 Johor Bahru. For the Respondents: Pn. Zahilah Mohammad Yusoff Senior Federal Counsel Johore State Legal Advisor’s Office Aras 2 Bangunan Dato’ Jaafar Muhammad Kota Iskandar 79100 Nusajaya Johor. S/N Di5bb3B7wkuu4yc/DMrDwA