LIM YONG KIM v Ketua Setiausaha Kementerian Dalam Negeri (JB-24NCvC-308-06/2024)

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1 DALAM MAHKAMAH TINGGI DI MUAR DALAM NEGERI JOHOR DARUL TAKZIM, MALAYSIA SAMAN PEMULA NO.: JB-24NCvC-308-06/2024 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 23/12/2025 16:00:10 JB-24NCvC-308-06/2024 Kand. 23 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. LIM YONG KIM (NO. K/P: 631030-01-6291) 2. LEONG SIEW CHAN (P) (NO. K/P: 701211-01-5256) 3. LIM YONG KIM (WAKIL LITIGASI KEPADA LIM WEI QI BELUM DEWASA) Sijil kelahiran No. Daftar: C0265/2024, No. Siri: 003988XA) … PEMOHON-PEMOHON DAN 1. KETUA SETIAUSAHA KEMENTERIAN DALAM NEGERI 2. PENDAFTAR BESAR KELAHIRAN DAN KEMATIAN, MALAYSIA … RESPONDEN-RESPONDEN JUDGEMENT BRIEF BACKGROUND 1. By this Originating Summons (enclosure 1) the Applicants pray for Malaysian citizenship to be granted to the 3rd Applicant (a minor named Lim Wei Qi) by way of operation of law under Article 14(1)(b) of the Federal Constitution read together with part II, Section 1(a) and Part 111, Section 19B of the Second Schedule to the Federal Constitution. Enclosure 1 prays for the following reliefs: - “i) Deklarasi bahawa Lim Wei Qi adalah seorang warganegara Malaysia melalui operasi undang-undang; ii) Perintah mandamus untuk Responden-Responden mengeluarkan sijil kelahiran bagi Lim Wei Qi sebagai warganegara Malaysia; iii) Perintah mandamus untuk Responden-Responden mengeluarkan kad pengenalan Malaysia bagi Lim Wei Qi sebagai warganegara Malaysia; iv) Perintah mandamus untuk Responden-Responden mengeluarkan sijil kewarganegeraan dan/atau apa-apa dokumen yang diperlukan bagi tujuan mengeluarkan suatu kad pengenalan Malaysia dan sijil kelahiran yang sah kepada Lim Wei Qi sebagai warganegara Malaysia; v) Perintah dan/atau arahan selanjutnya yang difikirkan patut dan suaimanfaat oleh Mahkamah Yang Mulia ini.” 2. The 3rd Applicant was born on 18.11.2010 in Labis, Johor. He was registered on 18.9.2018 as a non-citizen of Malaysia. His mother is said to be one Efriyani, an Indonesian citizen. The father’s information is not available on the birth certificate. The 3rd Applicant was born illegitimate and was later adopted by the 1st and 2nd Applicants on 10.7.2023. ANALYSIS AND FINDINGS 3. Article 14(1)(b) of the Federal Constitution confers citizenship by operation of law on every person born on or after Malaysia Day having any of the qualifications specified in Part II of the Second Schedule. 4. Under Part II, Section 1(a), citizenship accrues to “every person born within the Federation of whose parents one at least is at the time of the birth either a citizen or permanently resident in the Federation”. 5. Part III, Section 19B of the Second Schedule creates a presumption protecting abandoned children. It states: - “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; …” 6. In determining citizenship of a person, two concepts are commonly applied, namely the concept of jus soli and the concept of jus sanguinis 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 withs (1)(a) Part 11, Second Schedule of the Federal Constitution. (See: Pendaftar Besar Kelahiran Dan 33. Kematian, Malaysia v. Pang Wee See & Anor [2017] 7 CLJ CA). 7. Further Article 31 of the Federal Constitution states as follows: - “31. Until Parliament otherwise provides, the supplementary provisions contained in Part III of the Second Schedule shall have effect for the purposes of this Part.” 8. Section 17 of Part III of the Second Schedule provides as follow: - “Interpretation 17. For the purposes of Part III of this Constitution references to a person’s father or to his parent, or to one of his parents, are in relation to a person who is illegitimate to be construed as references to his mother, and accordingly section 19 of this Schedule shall not apply to such a person.” 9. Even though there were differing judicial interpretations on the applicability of the above Section 17 to Article 14(1)(b), the recent majority ruling of the Federal Court in CTEB & Anor v. Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 6 CLJ 471 has decided that Section 17 could not be detached from art. 14(1)(b). Ignoring the application of s.17 would also render art. 31 of the Federal Constitution as otiose. Section 17 provides for reference to the “father” of an illegitimate child to refer to his ‘mother’. The only clear meaning to be concluded therefore is that the child’s citizenship follows of his mother. There is nothing ambiguous about s.17 to permit other rules of interpretation. 10. Based on the above decision of the Federal Court which is binding on this Court by the doctrine of stare decisis, the present application has no merits because the qualification for citizenship has not been met for the following reasons: - a) 3rd Applicant was born illegitimate and the citizenship will follow the mother. Article 14(1)(b) will only apply if the child was legitimate at the time of birth and the father was a Malaysian citizen at the time. An illegitimate child does not qualify for citizenship by operation of law. b) Further, the adoption of the 3rd Applicant by the 1st and 2nd Applicant on 10.7.2023 does not operate retrospectively to acquire citizenship by operation of law under art. 14(1)(b) read together with 1(a) Part 11, Second Schedule of the Federal Constitution. In this respect, before the decision of the Federal Court in CTEB (supra) was delivered, there were two conflicting decisions of the Court of Appeal, namely Madhuvita Janjara Augustin (suing through next friend Margaret Louisa Tan) v Augustin a/l Lourdsamy & Ors [2018] 1 MLJ 307 and CTEB (supra). However, that controversy or conflict has since been (somewhat) settled by the majority decision of the Federal Court in CTEB (supra), which had clearly and unequivocally posited that it is the legitimate or illegitimate status of the child “at the time of birth” that matters. In the present case, the 3rd Applicant was illegitimate at the time of birth. His subsequent adoption on 10.7.2023 by the 1st and 2nd Applicants would not have any retrospective effect of legitimacy at the time of birth. His birth status is not altered by the subsequent adoption order dated 10.7.2023. c) Section 19B of Part Ill of the Federal Constitution would not apply to the factual matrix of this dispute. Section 19B of Part Ill provides as follow: - “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.” 11. Counsel for the Applicant referred to the Federal Court case CCH & Anor v. Pendaftar Besar Bagi Kelahiran Dan Kematian, Malaysia [2022] 1 CLJ 1 to support his contention that the above provision will apply here since the 3rd Applicant will fall under the category of a newborn child found exposed. 12. The Federal Court in the case of CCH & Anor (supra) had the opportunity to expound the application of Section 19B of Part III of the Second Schedule of the Federal Constitution where it was held as follows: “[53] The operative words in s 19B are (any new born child found exposed in any place’. The purpose of this section, when read in context, must be to cover new born 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 new born children left abandoned near dumpsites, baby hatches, public or school toilets, places of worship and so on. A literal meaning of ‘exposed’ suggests a new born 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 ‘exposed3 in s 19B must therefore encompass the plight of abandoned new born children, otherwise the overarching intent of preventing statelessness would be defeated or rendered illusory.” 13. In short, the principles that can be derived from the decision in CCH & Anor (supra) are as follows: - a. The purpose of Section 19B of Part III of the Second Schedule of the Federal Constitution must be to cover newborn children who are left and discovered in a place without any trace of their biological parents; b. literal meaning of “exposed” suggests a newborn child who was “discovered” exposed near dumpsites, baby hatches, public or school toilets, places of worship and so on; c. the broadest possible interpretation of the word “found exposed” is to include a child abandoned at the place of birth by the birth mother whose identity is unknown; d. Once it is shown or averred that a newborn child is “found exposed” (or abandoned), two things are presumed, that is: - i. that the child is born to a mother who is permanently resident at the place where the finding was made (the jus sanguinis presumption); and ii. the date of the finding is taken as the date of the birth. Once Section 19B is invoked, any party challenging any of these presumptions must either show that: i. the child was not born of a mother permanently resident at the place where the newborn child was found; or ii. the date of the finding is taken as the date of the birth. 14. Based on the totality of evidence before me, the above presumption will not apply to the factual matrix of this case due to the following: - a) As opposed to being abandoned, the 3rd Applicant was given to the 1st and 2nd Applicant to be taken care of. b) There was some information stating that the 3rd Applicant’s biological mother was of Indonesian nationality. 15. As such, the case of CCH (supra) must be distinguished from the facts and would not apply here. Two recent judicial decisions that support this view can be seen in the cases of Siow Chew Lian & Ors v Pendaftaran Besar Kelahiran dan Kematian Malaysia [2022] MLJU 2237 and Ooi Thye Peng v Pendaftar Besar Kelahiran dan Kematian, Malaysia & Ors [2023] MLJU 2486. CONCLUSION 16. In the upshot, for all the reasons above, I dismiss this Originating Summons with no order as to costs. Dated 18th November 2025 t.t. KALYANA KUMAR A/L SOCKALINGAM JUDICIAL COMMISSIONER HIGH COURT OF MALAYA MUAR JOHORE DARUL TA’ZIM For the Applicants : Alvin Chang Teck Kiam Messrs Alvin’s Chang Chamber For the Respondents : Norafiah binti Saini Melaka State Legal Advisor Office