Wong Kin Mun v Ketua Pengarah Jabatan Pendaftaran Negara (WA-25-142-04/2024)

1.

2.

WONG HAO MING (Seorang budak mendakwa melalui wakil litigasinya) ... PLAINTIF-PLAINTIF

KETUA PENGARAH JABATAN PENDAFTARAN NEGARA,

2.

KERAJAAN MALAYSIA ... DEFENDAN-DEFENDAN

This application for judicial review was filed by the 3rd Plaintiff (‘P3’) as a child claiming through his litigation representatives, namely his father as the 1st Plaintiff (‘P1’) and his mother as the 2nd Plaintiff (‘P2’), concerning his citizenship status under the provisions of the Federal Constitution.

Basically, the Plaintiffs claimed that P3 is stateless and should be recognised as a Malaysian citizen by operation of law. In this regard, the Plaintiffs invoked Article 14(1)(b) read with paragraph

of section 1 and section 2(3), Part II, Second Schedule of the Federal Constitution.

After judicious consideration of the cause papers and written submissions by the parties, I found that the Plaintiffs failed to establish the legal requirements for a favourable outcome of their application for declaratory orders and orders for certiorari and mandamus against the Defendants. Accordingly, the Plaintiffs’ application was dismissed.

Dissatisfied, the Plaintiffs are pursuing their right of appeal to the Court of Appeal.

These are my full grounds of judgment for purposes of the appeal.

The salient facts as discerned from the Statement which was filed pursuant to O. 53, r. 3(2) of the Rules of Court 2012 (encl. 3) and the exhibits in the affidavits are as follows.

P1 was born in Kuala Lumpur on 11.10.1969 and he is a Malaysian citizen.

P1 was born in Sibu, Sarawak on 26.3.1969 and she is a Malaysian citizen.

P1 and P2 were lawfully married on 21.9.2002 at Kuala Lumpur.

At the end of October 2009, P1 was informed by his mother that there was a baby who had been born and was abandoned or found exposed in Petaling Jaya.

P1 and P2 then agreed to take in P3. Around early November 2009, P1 and his mother met a Chinese woman, whose name P1 cannot recall, at Hilton Hotel Petaling Jaya.

The Chinese woman handed over P3 to P1. P1 was informed that P3 was born on 4.11.2009 but no information was disclosed as regards P3’s biological parents.

On 13.11.2009, P1 submitted the form for the issuance of a birth certificate for P3 at the National Registration Department (‘NRD’), Port Klang Branch. On the same date, Birth Certificate No. CF 74801 was issued with the following details:

P3 was born on 4.11.2009 at Poliklinik dan Pusat Bersalin Barakah, Klang;

P3 is a Malaysian citizen;

P2, a Malaysian citizen, is the mother of P3; and

P1, a Malaysian citizen is the father of P3 (hereinafter referred to as the ‘1st Birth Certificate’).

On 22.12.2021, P1 applied for P3’s Identity Card at NRD, Taman Maluri Branch the upon P3 reaching the age of 12 years. However, suspicion arose whereby, according to the “Memo Serahan Kes ke BSK” (Bahagian Siasatan dan Penguatkuasaan) on even date: “RUPAPARAS DIRAGUI

1.

IBUBAPA BERUMUIR DAN SABJEK ANAK

SABJEK BERKULIT GELAP TIDAK MENYERUPAI IBUBAPA”.

The NRD conducted an investigation into the matter. Based on the statements made by P1 and P2 to the Investigating Officer (‘IO’) and the Division’s investigations, –

P1 and P2 admitted that P3 is not their biological child and they refused to take a DNA test;

P1 stated that P3 was handed over by a woman in her 50s to P1’s mother while P1 stayed in the car near Hilton Hotel Petaling Jaya. The said woman assisted P1 to register P3’s birth at NRD, Port Klang Branch by submitting documents containing false information with P1’s and P2’s names as P3’s biological parents;

Barakah Healthcare And Services Sdn Bhd confirmed, vide letter dated 31.1.2022 to the NRD, that they have no records of any patient by P2’s name; and

the 1st Birth Certificate contained false information.

Thereafter, P1 was charged with the following offences:

at the Klang Criminal Magistrates’ Court on 13.12.2022 for an offence under Regulation 25(1)(b) of the National Registration Regulations 1990 [P.U.(A) 472/90] for intentionally submitting false information when applying for P3’s identity card. P1 pleaded guilty and was fined RM1,800.00 or 2 months’ imprisonment in default thereof; and

at the Kuala Lumpur Criminal Magistrates’ Court on 13.12.2022 for an offence under s 36(b) of the Births and Deaths Registration Act 1957 [Act 299] for giving false information when applying for P3’s birth certificate. P1 pleaded guilty and was fined RM1,000.00 or 3 months’ imprisonment in default thereof.

On 16.3.2023, P1 submitted an application for correction of information in the 1st Birth Certificate pursuant to sub-s 27(3) of Act 299 to correct the information pertaining to P3 as “Bukan

P3’s birth place as “Tempat Letak Kereta Hotel Hilton Petaling Jaya”; and P3’s parents as “Maklumat Tidak Diperolehi”.

On 19.5.2023, the NRD approved the application and issued the amended Birth Certificate (‘2nd Birth Certificate’) with the particulars as per P1’s application. The 1st Birth Certificate was “Dibatalkan”.

Consequently, P1 and P2 commenced adoption proceedings under the Adoption Act 1952 [Act 257]. On 3.11.2023, the Kuala Lumpur Sessions Court granted the adoption order in their favour.

Upon the direction of the NRD, P1’s solicitors applied to amend the adoption order to include P3’s name after adoption; that the court is satisfied that the child who was born on 4.11.2009 at Hilton Hotel Petaling Jaya is the same as the owner of Birth Certificate No. CF 74801; and that the 2nd Birth Certificate is returned to the Registrar of Births and Deaths. The application was allowed by the court on 10.1.2024.

Following the amended Adoption Order, P1’s solicitors made an application for a new birth certificate for P3.

By the letter dated 27.2.2024, the NRD issued Birth Certificate (Reg. No. C0180/2024) and coloured pink for P3 (‘3rd Birth Certificate’).

The 3rd Birth Certificate shows that P1 and P2 are P3’s parents; P3’s place of birth is Hilton Hotel Petaling Jaya; and P3 is “Bukan Warganegara”.

The NRD’s decision to maintain P3’s status as a non-citizen led to the filing of the instant application on 4.4.2024.

The reliefs sought by the Plaintiffs are, among others, for –

a declaration that P3 –

was born to a permanent resident under s 19B, Second Schedule, Part III of the Federal Constitution; and

(ii) is a Malaysian citizen by operation of law pursuant to Article 14(1)(b) read with paragraph (e) of section 1 and section 2(3), Part II, Second Schedule of the Federal Constitution;

an order of certiorari to quash the Defendants’ decision in issuing the 3rd Plaintiff’s Birth Certificate via the NRD letter dated 27.2.2024; and

an order of mandamus to compel the Defendants to issue and/ or produce a new birth certificate to P3 that registers, shows and records that P3 is a Malaysian citizen within seven days from the date of the court Order.

Leave to commence judicial review proceedings was allowed by the court on 14.5.2024.

The learned Federal Counsel (‘FC’) submitted at length on the applicable law. She cited the following case authorities for the proposition that, in Malaysia, the law on citizenship is exclusively contained in the Federal Constitution and the interpretation of the provisions on citizenship is provided in the Constitution itself:

CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 4 MLJ 236 at p 277 (FC): “[125] The concept of citizenship law predated the formation of the Federation of Malaysia. It was there even before independence. Laws pertaining to citizenship in Malaysia then form part of the supreme law and no longer remain as ordinary law. These provisions too are entrenched in the FC in that, they are not easily amended as it requires the consent of the Conference of Rulers pursuant to art 159(5) of the FC. Even with the Proclamation of Emergency under art 150 as we are currently under, no emergency law may be passed which is inconsistent with provisions relating to citizenship (see art 150(6A)).”

Pendaftar Besar Kelahiran dan Kematian, Malaysia v Pang Wee See & Anor (applying on their behalf and as litigation representatives for Pang Cheng Chuen, a child) [2017] 3 MLJ 308 at p 317 (CA): “[21] We must state here that the law on citizenship is contained, both procedurally and substantively in the Federal Constitution itself. There is no statute that was specially legislated to house the specific provision pertaining to citizenship. Rather, these provisions reside in the Federal Constitution. We noted too, that these provisions make no reference to other specific statutes, especially in aid of its interpretation. In fact, the Federal Constitution itself provides for the interpretation required in order to make clear what the words in the citizenship provisions are supposed to mean. In other words, the citizenship provisions in the Federal Constitution are exclusively housed in the Federal Constitution itself. The Federal Constitution, like most other written Constitutions, is interpreted not in the like manner in which other statutes are normally interpreted. In relation to the Federal Constitution, all other statutes are subsidiary legislations. Thus the constitutionality of the Federal Constitution is considered from the perspective of the Constitution itself. It is not to be interpreted by reference to other statutes, albeit they were passed by Parliament.”.

There are four ways of acquiring Malaysian citizenship and they are by –

operation of law (Article 14);

registration (Articles 15, 15A, 16, 16A and 18);

naturalisation (Article 19); or

incorporation of territory (Article 22) (see CTEB’s case at p 277).

Article 14(1)(b) of the Federal Constitution reads as follows: “Citizenship 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: …

every person born on or after Malaysia Day, and having any of the qualifications specified in Part II of the Second Schedule.”.

Paragraph (e) of section 1 and section 2(3), Part II, Second Schedule of the Federal Constitution are re-produced below for ease of reference: “PART II [Article 14(1)(b)] CITIZENSHIP BY OPERATION OF LAW OF

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: …

every person born within the Federation who is not born a citizen of any country otherwise than by virtue of this paragraph.

(1) … …

For the purpose 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 provision corresponding to paragraph (c) of that section or otherwise.”.

The Plaintiffs do not dispute that the qualifications which must be fulfilled based on Article 14(1)(b) read with paragraph (e) of section 1, Part II, Second Schedule of the Federal Constitution are that the person was –

born on or after Malaysia Day;

born within the Federation; and

not born a citizen of any country.

The requisite qualifications of acquiring citizenship by operation of law under Article 14(1)(b) read with section 1, Part II, Second Schedule of the Federal Constitution must be met at birth. If the qualifications are not met, the court is not at liberty to add and subtract any other qualification (see CTEB’s case at p 291).

The acquisition of citizenship by operation of law under the abovementioned provisions is premised on the doctrines of jus soli and jus sanguinis. These doctrines were lucidly explained by Abang Iskandar JCA (as His Lordship then was) in Pang Wee See’s case (supra, at p 320) in these words: “[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.”.

The third qualification of not being born a citizen of any country thus encapsulates the concept of jus sangunis. It necessitates proof of lineage through the relationship of the person to his biological parents at the time of birth as elucidated in in the following cases:

Than Siew Beng & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 5 MLJ 662 at pp 669 - 671 (CA): “[23] Article 14(1)(b) of the Federal Constitution encapsulates the requirement of citizenship by jus soli ie place of birth; while para 1(e) of Part II of the Second Schedule of the Federal Constitution (‘not born a citizen of any country’) encapsulates the requirement of citizenship by jus sanguinis ie by blood or lineage. [24] Thus, it would appear that the second appellant would need to satisfy both the requirements of jus soli and jus sanguinis in order to fulfil the requirements of art 14(1)(b) and para 1(e) of Part II, Second Schedule of the Federal Constitution (refer to Chin Kooi Nah (suing on behalf of himself and as litigation representative to Chin Jia Nee, child) v Pendaftar Besar Kelahiran dan Kematian, Malaysia [2016] 7 MLJ 717). … [27] The contentious issue is in respect of the requirement of jus sanguinis in para 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 para 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 Di perolehi’.” [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 para 1(e) of Part II of the Second Schedule of the Federal Constitution (refer to Chin KooiNah (suing on behalf of himself and as litigation representative to Chin Jia Nee, child) v Pendaftar Besar Kelahiran dan Kematian, Malaysia [2016] 7 MLJ 717).”; and

Lim Jen Hsian & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2018] 6 MLJ 548 at pp 556 - 558 (CA): “[27] Article 14(1)(b) of the Federal Constitution encapsulates the requirement of citizenship by jus soli ie by the place of birth; while para 1(e) of Part II, Second Schedule of the Federal Constitution (not born a citizen of any country) encapsulates the requirement of citizenship by jus sanguinis ie by blood or lineage. [28] Thus, it would appear that the second appellant would need to satisfy both the requirements of jus soli and jus sanguinis in order to fulfil the requirements of art 14(1)(b) and s 1(e) of Part II, Second Schedule of the Federal Constitution (refer to Chin Kooi Nah (suing on behalf of himself and as litigation representative to Chin Jia Nee, child) v Pendaftar Besar Kelahiran dan Kematian, Malaysia [2016] 7 MLJ 717).” … [36] Paragraph 1(e) of Part II, Second Schedule of the Federal Constitution confers citizenship to a person born by jus sanguinis, by reference to his blood or lineage. Thus when a child has not, at birth, acquired citizenship of any country, this would render him/her not born a citizen of any country.”.

The burden of proving the third qualification lies on the person who claims citizenship. He must prove that at the time of his birth, based on his lineage, he does not acquire citizenship of any country. In Lim Jen Hsian (supra, at p 558), the Court said: “[33] It is a well established principle of law that he who asserts must prove. This is particularly so in respect of facts which are within the appellants’ knowledge. The burden of proof is on the appellants to establish on the balance of probabilities that the second appellant was not born a citizen of any country. Such rule of evidence is enunciated in s 103 of the Evidence Act 1950 which provides: The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that proof of that fact shall lie on any particular person. [34] In the case of Ong Boon Hua @ Chin Peng & Anor v Menteri Hal Ehwal Dalam Negeri,Malaysia [2008] 3 MLJ 625; [2008] 5 CLJ 42, it was held that the burden is on the applicant to prove his citizenship status by the relevant documents, the absence of which would be fatal to prove his claim. [35] The burden of proof would only shift to the respondent to prove positively that the second appellant was born a citizen of a foreign country once the appellant has established a prima facie case (refer to Toh Whye Teck v The Happy World Ltd [1953] 1 MLJ 171).” [see too, Than Siew Beng (supra, at p 670)]. Issues, Analysis and Findings of the Court

The main issue which arose for determination was whether the Plaintiffs have proven the requisite qualifications under Article 14(1)(b) read with paragraph (e) of section 1 and section 2(3),

The first requirement that P3 was born on or after Malaysia Day was not disputed. This left the following three questions to be answered i.e. whether P3 –

was born within the Federation;

was not born a citizen of any country; and

acquired any citizenship within one year after birth. 1st Issue: Whether P3 was born within the Federation

The Plaintiffs submitted that this question must be answered in the affirmative because P3’s place of birth was explicitly stated in the 2nd Birth Certificate as Hilton Hotel Petaling Jaya. This birth place was confirmed by the NRD after the completion of their investigations.

Furthermore, the NRD requested an amendment to be made to the Adoption Order. This fact was not denied or rebutted by the Defendants in their affidavit; hence it must be treated as an admission by them (see Ng Hee Thong & Anor v Public Bank Bhd [2000] 2 MLJ 29).

Pursuant to NRD’s request, the Sessions Court was satisfied that “… Anak tersebut yang dilahirkan pada 04.11.2009 di Hotel Hilton Petaling Jaya adalah sama dengan pemilik Sijil Lahir No.: CF 74801”.

After scrutinising the affidavit evidence and written submissions, I find that P3’s initial place of birth was stated as Poliklinik dan Pusat Bersalin Barakah, Klang in the 1st Birth Certificate. After P1 was charged and convicted of the offences as previously stated, he then applied for several corrections to be made in the Register, including P3’s birth place to “Tempat Letak Kereta Hotel Hilton Petaling Jaya”. The 2nd Birth Certificate and 3rd Birth Certificate then showed P3’s birth place as “Hotel Hilton Petaling Jaya”.

In his statement to the IO, P1 stated, among others, as follows: “… S7: DIMANAKAH KAMU MENDAPAT WONG HAO MING? BEGINI, IBU SAYA BAGITAHU DIA ADA PERGI KE PASAR PAGI PANDAN JAYA DAN TELAH BERJUMPA DENGAN SEORANG PEREMPUAN YANG MENAWARKAN BAYI IAITU WONG HAO MING DAN BOLEH BANTU JADIKAN ANAK ANGKAT S8: ADAKAH KAMU BERJUMPA DENGAN PEREMPUAN ITU? ADA SEKALI, SEMASA SAYA AMBIL BAYI TERSEBUT S9: DIMANAKAH KAMU MENGAMBIL BAYI TERSEBUT DARIPADA PEREMPUAN ITU? SAYA TIDAK INGAT, SEINGAT SAYA DI TEMPAT LETAK KERETA SEBUAH HOTEL DI PETALING JAYA, SEBELAH FEDERAL HIGHWAY SAHAJA HOTEL ITU S10: APAKAH NAMA HOTEL ITU? BOLEH JELASKAN KEADAAN HOTEL SAYA TIDAK TAHU, TAPI SEINGAT SAYA HOTEL HILTON PETALING JAYA TAPI TIDAK PASTI JUGA … S13: BOLEH CERITAKAN KEADAAN PEREMPUAN ITU? DIA PEREMPUAN CINA, AGAK BERUSIA LEBIH KURANG 50 TAHUN, SAYA TIDAK PASTI DIA WARGANEGARA MALAYSIA ATAU TIDAK, KETIKA PENYERAHAN BAYI, IBU SAYA YANG MENGAMBIL BAYI TERSEBUT DAN SAYA HANYA BERADA DI DALAM KERETA SAHAJA …”.

Meanwhile in her statement to the IO, P2 answered: “… S9: DIMANAKAH BAYI TERSEBUT DIAMBIL? SAYA TIDAK TAHU, IBU MERTUA SAYA DAN SUAMI YANG AMBIL, SAYA TIDAK TAHU AMBIL DIMANA …”.

Although P1 had an opportunity to inquire about P3’s birthplace from the Chinese woman, he did not do so. Based on P1’s statement to the IO, clearly Hilton Hotel Petaling Jaya was the place where P3 was handed over by the Chinese woman to P1’s mother.

In paragraph 6.7 of the Affidavit In Reply (‘AIR’; encl. 10), the Defendants averred that – “6.7 Siasatan BSK, JPN menunjukkan:

Plaintif Pertama dan Plaintif Kedua mengaku bahawa Plaintif Ketiga bukan anak kandung mereka;

(ii) Plaintif Pertama memaklumkan bahawa Plaintif Ketiga DISERAHKAN oleh seorang wanita berketurunan cina berusia lebih kurang 50 tahun (“Orang Tengah”) berdekatan Hotel Hilton, Petaling Jaya;

(iii) Plaintif Pertama juga menyatakan bahawa Orang Tengah tersebut menyerahkan Plaintif Ketiga kepada ibu Plaintif Pertama dan semasa penyerahan tersebut, Plaintif Pertama hanya berada di dalam kereta sahaja;

(iv) Plaintif Pertama kemudiannya hadir ke JPN Cawangan Pelabuhan Klang ditemani dan dibantu oleh Orang Tengah untuk mendaftarkan kelahiran Plaintif Ketiga dengan mengemukakan dokumen-dokumen yang mengandungi maklumat palsu dengan memasukkan namanya dan Plaintif Kedua sebagai ibu bapa kandung Plaintif Ketiga; …”.

The Plaintiffs admitted the above affirmations based on exhibit “D-7” in encl. 10 (see subparagraph 9(i) of the Plaintiffs’ AIR, encl. 12).

Based on the affidavit evidence, I was inclined to the view that Hotel Hilton Petaling Jaya was identified as the place where P3 was handed over by the Chinese woman to P1’s mother and not P3’s birth place. There is simply no evidence to support the Plaintiffs’ contention that P3 was born at Hilton Hotel Petaling Jaya, except for the entries made in the 2nd Birth Certificate and 3rd Birth Certificate, which must be understood in the light of the events that had taken place at that location.

In the circumstances, I accepted the FC’s submission that the second requirement that P3 was born within the Federation has not been fulfilled. 2nd Issue: Whether P3 was not born a citizen of any country 3rd Issue: Whether P3 acquired any citizenship within one year after birth

The 2nd Issue and 3rd Issue are discussed together as there was an overlap in the Plaintiffs’ submission on these matters.

The Plaintiffs’ contentions on these issues were that –

with reference to the decision by the Ipoh High Court in Ong Xin Tong v. Pendaftar Besar Kelahiran Dan Kematian Malaysia & Anor [2022] 6 CLJ 274, the phrase “not born a citizen of any country” in paragraph (e) of section 1 must be read with section 2(3), Part II, Second Schedule of the Federal Constitution in determining a child’s citizenship by operation of law. In that case, the court found that the plaintiff was stateless because she has no other citizenship apart from her classification as “bukan warganegara” in her birth certificate and that the plaintiff had satisfied the qualification in paragraph (e) of section 1, Part II, Second Schedule of the Federal Constitution and ought to be automatically entitled by operation of law to be a Malaysian citizen. Similarly, in the 2nd Birth Certificate, P3 was classified as “Bukan Warganegara”. Hence, P3 was stateless and has not acquired citizenship of any other country within the first year of his birth. Consequently, he was automatically entitled to Malaysian citizenship by operation of law;

the words “parents”, “father” or “mother” are absent from paragraph (e) of section 1, Part II, Second Schedule of the Federal Constitution when compared to the preceding provisions in paragraphs (a) to (d). Therefore, there is no requirement to prove parental lineage or the citizenship of the biological parents;

P3 has resided exclusively in Malaysia since birth and the identity of his biological parents remains unknown. P3 was also recognised as a Malaysian citizen from birth until that status was revoked by the Defendants following directions issued for the particulars to be rectified when P3 attained the age of 12. Thus, it was practically and legally impossible for P3 to have acquired citizenship of any other country within one year after his birth (see LKP & Anor v Pendaftar Besar Kelahiran dan Kematian, Malaysia [2023] 3 CLJ 243). The revocation of the 1st Birth Certificate did not amount to a deprivation, annulment or withdrawal of citizenship; rather it was a rectification of the civil register to correct an erroneous entry;

it was illogical and onerous to expect the Plaintiffs to prove a negative fact (see Rosliza Ibrahim v. Kerajaan Negeri Selangor & Anor [2021] 3 CLJ 301 at p 325). As P3 was stateless, the burden of proof should shift to the Defendants to prove that P3 has acquired any citizenship within one year after birth. In this regard, the Defendants have not affirmed any facts as to the identity, nationality or citizenship of P3’s biological parents;

P3 had a Malaysian passport from 2010 until 2020 when the passport expired. Thereafter, P3 never obtained a passport which was issued by another country; and

the purpose of the insertion of paragraph (e) of section 1 and s 2(3), Part II, Second Schedule of the Federal Constitution was to guard against statelessness (see CCH & Anor v. Pendaftar Besar Bagi Kelahiran Dan Kematian, Malaysia [2022] 1 CLJ 1). The Court was urged to adopt a broad and purposive interpretation of the provisions and to give real and effective meaning to the safeguards enacted to prevent statelessness.

In my considered view, the Plaintiffs’ submission is not meritorious for the following reasons:

as regards the 2nd Issue, and as mentioned earlier, P1 and P2 could have elicited information on P3’s biological parents, or at least his biological mother, when they received P3 from the Chinese woman but they failed to do so. For 14 years, they made no attempt to discover P3’s lineage. They lodged the police report only on 21.7.2023, which was actually to fulfil the adoption process. Their failure to obtain proof of P3’s lineage was caused by their own action;

P1 and P2 are not P3’s biological parents as evident through the adoption process. It is trite that adoption does not confer citizenship;

P1 intentionally concealed the true facts as to P3’s birth. P1 had admitted to providing false information for P3’s birth registration and identity card applications and he was accordingly convicted and sentenced by the Magistrates’ Courts. The 1st Birth Certificate was issued as a result of the false information;

the burden of proof would only shift to the Defendants to prove that P3 was born a citizen of a foreign country only after the Plaintiffs have established a prima facie case, which they have not. The Plaintiffs’ argument on the shifting of the burden of proof is contrary to the legal principles as laid down in Than Siew Beng (supra) and Lim Jen Hsian (supra);

in the course of the hearing, the learned FC informed the Court that there were two appeals pending at the Court of Appeal against the decisions in Tan Kar Chai & Anor v. Pendaftar Besar Kelahiran Dan Kematian & Anor [2024] CLJU 2076 and Elaine Leong Ee Ling v. Pendaftar Besar Warganegara & Ors [2025] CLJU 116, where the facts are similar as in the instant application. Before I delivered my decision for this application, the learned Federal Counsel wrote the letter dated 24.4.2026 (encl. 36) to provide the status update that, on 21.4.2026, the Court of Appeal had dismissed the appeal in Tan Kar Chai. As can be seen from the broad grounds of judgment (encl. 39), the Court of Appeal applied the legal principles as enunciated in Than

the Defendants have sufficiently rebutted the Plaintiffs’ contention as regards P3’s passport in their AIR as re-produced below: “14. … Selanjutnya saya telah dinasihati oleh Peguam Persekutuan dan sesungguhnya menyatakan bahawa:

14.1 undang-undang untuk mendapatkan pasport Malaysia adalah berbeza dengan undang-undang berkaitan kewarganegaraan;

14.2 pemerolehan pasport tidak menentusahkan taraf kewarganegaraan seorang individu;

14.3 pasport Malaysia yang dikeluarkan kepada Plaintif Ketiga adalah bersandarkan kepada Sijil Kelahiran asal/pertama Plaintif Ketiga yang tidak teratur dan mengandungi maklumat palsu yang menyebabkan status taraf kewarganegaraannya sebagai seorang “Warganegara”;

14.4 dalam erti kata lain, Plaintif-Plaintif mengambil kesempatan untuk mendapatkan pasport Malaysia bagi Plaintif Ketiga walaupun Plaintif Pertama dan Plaintif Kedua mempunyai pengetahuan bahawa Sijil Kelahiran asal/pertama Plaintif Ketiga tidak teratur disebabkan mengandungi maklumat palsu yang diberikan ketika mendaftar kelahiran

14.5 oleh itu, Plaintif Ketiga dalam apa-apa jua keadaan sekali pun sememangnya tidak layak secara ab initio untuk diiktiraf sebagai warganegara Malaysia melalui kuat kuasa undang-undang.”;

section 2(3), Part II, Second Schedule of the Federal Constitution intends to treat any citizenship acquired within the first year after birth as if it had been acquired at birth. This was illuminated by the High Court in Siow Chew Lian & Ors v. Pendaftar Besar Kelahiran dan Kematian Malaysia [2022] 1 LNS 2155 in these words: “[31] Section 2(3) Part II, Second Schedule of the FC only operates to treat any citizenship which a person acquires within 1 year after his birth as a citizenship that he acquires at the time of his birth. In other words, the said provision operates as a presumption as to the time of acquisition of citizenship, to treat any citizenship acquired within 1 year after birth as citizenship acquired at the time of birth. It can be understood that the operation of Section 2(3) Part II, Second Schedule of the FC to treat the citizenship as being acquired at the time of birth is in line with the determining point of time for acquisition of citizenship by operation of law under Section 1, Part II, Second Schedule of the FC where all of the paragraphs

(a)-(e) use the words “at the time of the birth” and “born”. [32] Returning to the present matter, since there is no evidence adduced to show that the 3rd Applicant has acquired any citizenship within 1 year after his birth for such citizenship to be treated as acquired at the time of his birth, it is of the considered view that Section 2(3) Part II, Second Schedule of the FC has no application to the present case. [33] Pertinently, Section 2(3), Part II, Second Schedule of the FC does not provide that if a person does not acquire any citizenship within 1 year after his birth, he was not born a citizen of any country under Section 1(e) Part II, Second Schedule of the FC. As rightly submitted by the learned Federal Counsel, if the framers of the FC intended for Section 2(3), Part II, Second Schedule of the FC to operate in such manner, such provision would have been expressly included.”; and

section 2(3), Part II, Second Schedule of the Federal Constitution does not automatically grant Malaysian citizenship under paragraph (e) of section 1 based solely on the assertion that P3 did not acquire citizenship of any foreign country within one year of his birth. The Plaintiffs did not adduce any evidence to show that P3 has acquired any citizenship within one year after his birth for such citizenship to be treated as acquired at the time of his birth. Therefore, section 2(3), Part II, Second Schedule of the Federal Constitution has no application to the present case.

In the premises, the Plaintiffs fulfilled only the first qualification where P3 was born after Malaysia Day i.e. on 4.11.2009. However, they did not satisfy the second qualification as there was doubt with regard to P3’s actual place of birth; and neither did they fulfil the third qualification that P3 was not born a citizen of any country.

The Plaintiffs’ failure to adduce evidence to prove P3’s place of birth and lineage resulted in the non-fulfilment of both the jus soli and jus sanguinis qualifications and was fatal to the application under Article 14(1)(b) read with paragraph (e) of section 1 and section 2(3), Part II, Second Schedule of the Federal Constitution. Therefore, I find and hold that P3 is not a Malaysian citizen by operation of law under the said provisions.

Based on the aforesaid reasoning, the Plaintiffs’ application in encl. 8 was dismissed with no order as to costs. DATED: 28.5.2026 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR (BKK1) Solicitors for the Plaintiffs: Chris Chin Shang Yoon (Karamveer Singh Gill with him) Messrs. Shang & Co.