Lee Hong Huat v Ketua Pengarah Pendaftaran Negara, Malaysia (WA-24-21-03/2023)

1.

LEE ENG HOONG ... PLAINTIF-PLAINTIF

1.

2.

KERAJAAN MALAYSIA ... DEFENDAN-DEFENDAN

In this application by the Plaintiffs, they claimed that the 2nd Plaintiff (‘P2’) was abandoned at birth or is stateless and therefore, he should be recognised as a Malaysian citizen by operation of law. In this regard, the Plaintiffs invoked Article 14(1)(b) read with paragraphs (a) and (e) of section 1, 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, among others, declaratory orders and an award of damages against the Defendants. Accordingly, the Plaintiffs’ application was dismissed.

Dissatisfied, the Plaintiffs have filed their Notice of Appeal against my decision.

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

The 1st Plaintiff (‘P1’) is married to Ho Sau Chan (‘HSC’). They are both Malaysians.

In June 1995, a middleman informed P1 and HSC that a baby (P2) was born on 15.6.1995 at Kuala Selangor. According to the middleman, no one willing to raise the baby and hence P1 and HSC decided to adopt the baby. P1 and HSC never met the baby’s biological parents.

2’s birth was registered on 27.6.1995 and the details in the Birth Certificate are as follows:

P2 was born on 15.6.1995 at No. 18, Jalan Duku, Kampong Kasipillay, Off Jalan Ipoh, Kuala Lumpur;

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

P1, a Malaysian citizen is the father of P2 (hereinafter referred to as the ‘1st Birth Certificate’).

On 14.9.2007, when P2 turned twelve, he obtained an Identification Card/MyKad which states that he is a Malaysian citizen.

P2 also obtained a passport that was issued on 16.4.2015.

On 12.11.2015, P1 and HSC applied for a MyKad for their second adopted child, Esther Lee En Yi (‘Esther’). However, suspicion arose because Esther’s features and skin colour differed from her adopted parents. This triggered an internal investigation by the National Registration Department (‘NRD’). As a result, the 1st Birth Certificate and P2’s MyKad was withdrawn and blacklisted.

On 3.12.2015, the NRD in Kuala Lumpur had recorded P1’s and HSC’s statements and they admitted that –

P2 and Esther are not their biological children;

P2 was handed over by P1’s mother to P1 and HSC at her house at Kampung Sasaran Jeram, Kuala Selangor;

P1 and HSC did not receive any documents pertaining to P2’s birth and the registration of P2’s birth was handled by P1’s mother; and

P1 and HSC do not know P2’s actual birth place.

The NRD advised P1 to apply for correction of the information in the 1st Birth Certificate. Subsequently, P2 was issued with a second Birth Certificate (‘2nd Birth Certificate’) which stated –

the date, time and place of birth as 15.6.1995, 3.15 p.m. at Kampung Sasaran, Jeram, Kuala Selangor;

that P2 is not a citizen; and

all details pertaining to P2’s parents as “Maklumat Tidak Diperolehi”.

Additionally, P2 was given a green temporary Identification Card with the status “Bukan Warganegara”.

An advertisement was placed in the Malay Mail newspaper on 28.9.2017 in an attempt to locate P2’s biological parents.

On 13.10.2017, the Sessions Court at Bandar Baru Bangi, Selangor had made an Order for the adoption of P2 by P1 and HSC (‘Adoption Order’).

However, in December 2019, Pendaftar Besar Kelahiran dan Kematian Malaysia had applied to set aside the Adoption Order on the ground that P2 was already over the age of 21. On 12.2.2020, the said application was allowed.

On 7.9.2021, P1 through his solicitors, applied under Article 19(1)(A)(i) of the Federal Constitution for P2 to be recognised as a citizen of Malaysia but there has not been any response from the NRD.

P2 also applied for his green MyKad to be replaced by a blue MyKad on 2.11.2021 but the application could not be processed due to the absence of a reference number.

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

a declaration that P2 is a Malaysian citizen in accordance with Article 14(1)(b) read with paragraph (a) or (e) of section 1, Part II, Second Schedule of the Federal Constitution;

an order directing the Defendants to issue a Birth Certificate and a MyKad stating that P2 is a citizen of Malaysia within 14 days from the date of the Court Order;

an order that the 1st Defendant (‘D1’) registers and updates the Plaintiff’s name to the Register pursuant to s 4 of the National Registration Act 1959 [Act 78] and regulations 4, 11 and 14 of the National Registration Regulations 1990; and

general damages to be assessed for constitutional rights violations.

In Wong Kim Mun & 2 Ors v Ketua Pengarah Jabatan Pendaftaran Negara & 2 Ors [2026] MLJU 2338 where the provisions which were invoked by the plaintiffs were Article 14(1)(b) read with paragraph (e) of section 1 and section 2(3),

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.

2.

… …

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),

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.”.

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

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)].”.

The Plaintiffs in the present suit have also sought to rely on paragraph (a) of section 1, Part II, Second Schedule of the Federal Constitution which reads:

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 of whose parents one at least is at the time of the birth either a citizen or permanently resident in the Federation; …”.

For a person to be a Malaysian citizen by operation of law pursuant to the above quoted provision, the requisite qualifications that the person was born on or after Malaysia Day and born within the Federation are the same as under Article 14(1)(b) read together with paragraph (e) of section 1, Part II, Second Schedule of the Federal Constitution. The only difference is the requirement that at the time of the person’s birth, one of his parents is a Malaysian citizen or permanently resident in the Federation.

Acquisition of citizenship by operation of law under Article 14(1)(b) read together with paragraph (a) of section 1, Part II, Second Schedule of the Federal Constitution is also anchored on both concepts of jus soli and jus sanguinis [see Pang Wee See (supra)].

The word “parents” in the said provision refers to biological parents and not to adoptive parents as held by the Court of Appeal in Pang Wee See’s case as follows: “[31] What had become clear to us had been that one of the key ingredients stipulated in art 14(1)(b) read together with s 1(a) of Part II of the Second Schedule of the Federal Constitution, is that the person seeking to be a citizen of Malaysia via this specific constitutional provision must show proof that when he was born in this country, one of his parents must either be a citizen of Malaysia or was permanently resident in this country. The phrase that is employed under that provision reads, ‘is at the time of the birth’. To our minds, that phrase has categorically made a reference to the biological parent of the person, who must either be a Malaysian citizen or a person who is permanently resident in Malaysia. By virtue of this phrase, any person intending to claim citizenship by operation of law under the above stated constitutional provision, it is not sufficient that he or she was born in Malaysia. He must be a person, whose either parent was a Malaysian citizen or a Malaysian permanent resident, when he was born in Malaysia. That provision does not contain any reference to an adoptive parent, albeit a Malaysian adoptive parent.”.

In addition, the marital status of the biological parents of the person at the time of his birth must be ascertained because, if the person was born out of wedlock, the word “parents” is to be construed as his mother. In this regard, section 17, Part III, Second Schedule of the Federal Constitution provides as follows: “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.”.

In CTEB’s case (supra), the Federal Court said that: “[156] 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 that of his mother. There is nothing ambiguous about s 17 to permit other rules of interpretation.”.

Therefore, for a person to fulfil the third qualification i.e. at the time of the person’s birth, one of his parents is a Malaysian citizen or permanently resident in the Federation, he must prove that one of his biological parents, if he was born legitimate, or his biological mother, if he was born illegitimate, is a Malaysian citizen or permanently resident in the Federation [see too, Lim Jen Hsian (supra)].

For present purposes, Section 19B, Part III, Second Schedule of the Federal Constitution is also relevant and it reads as follows: “19B. For the purpose of Part I or 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.”.

The phrase “any new born child found exposed in any place” was elucidated by the Federal Court in CCH & Anor v. Pendaftar Besar Bagi Kelahiran Dan Kematian, Malaysia [2022] 1 CLJ 1 in these words: “[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.”.

Guided by the aforementioned legal principles, my analysis and findings on each of the issues which arose at the hearing of the instant application are addressed in the succeeding part of this judgment. Analysis and Findings of the Court 1st Issue: Whether P2 is a citizen of Malaysia pursuant to Article 14(1)(b) read with paragraph (a) of section 1, Part II,

The first requirement that P2 was born on or after Malaysia Day was not disputed. This left the following questions to be answered i.e. whether P2 –

was born within the Federation; and

at the time of his birth, one of his parents is a Malaysian citizen or permanently resident in the Federation.

The burden of proof of course lies on the Plaintiffs to prove the material facts to satisfy the requisite criteria to be declared as a Malaysian citizen by operation law (see ss 101, 102 and 103 of the Evidence Act 1950 [Act 56]).

The Plaintiffs submitted that the fact that P2 was born within the Federation was an agreed fact and hence, the principle of jus soli was not an issue in this case. However, a perusal of the Defendants’ Affidavit In Reply (‘AIR’; encl. 4) and Written Submission (encl. 7) shows that the Defendants had disputed this matter.

As narrated earlier, P2’s place of birth was first recorded as No. 18, Jalan Duku, Kampong Kasipillay, Off Jalan Ipoh, Kuala Lumpur. However, pursuant to P1’s application, the place of birth was corrected and stated as Kampung Sasaran Jeram, Kuala Selangor.

During the investigations by the NRD, P1 and HSC admitted that they do not have any information on P2’s place of birth. The relevant excerpts of the recorded statement in exhibit “ZM-3” of the Defendants’ AIR are as follows: P1’s Percakapan Dalam Pemeriksaan on 3.12.2015: “S23: BILA DAN DI MANA SUBJEK DILAHIRKAN? SAYA TIDAK TAHU. S24: BETUL ATAU TIDAK TEMPAT LAHIR DI DALAM SIJIL LAHIR NO. K575436 YANG MANA SUBJEK TELAH DILAHIRKAN NO 18 JALAN DUKU KAMPUNG KASIPILLAY? SAYA TIDAK TAHU”. HSC’s Percakapan Dalam Pemeriksaan on 3.12.2015: “S9: MENGAPAKAH ALAMAT YANG DIDAFTARKAN DI DALAM SIJIL KELAHIRAN BERLAINAN DARI ALAMAT KAMU MENERIMA LEE ENG HOONG? KERANA KAWAN IBU MERTUA SAYA MENYATAKAN DIA MENERIMA SUBJEK DI ALAMAT SIJIL LAHIR TERSEBUT DAN SAYA PULA TERIMA DIA DI KAMPUNG IBU MERTUA SAYA DI SASALAN. SAYA TAK TAU SEMUA IBU MERTUA URUSKAN MASA ITU. S23: BILA DAN DI MANA SUBJEK DILAHIRKAN? SAYA TIDAK TAHU. S24: BETUL ATAU TIDAK TEMPAT LAHIR DI DALAM SIJIL LAHIR NO. K575436 YANG MANA SUBJEK TELAH DILAHIRKAN NO 18 JALAN DUKU KAMPUNG KASIPILLAY? SAYA TIDAK TAHU.”.

Based on the evidence adduced before this Court, I was of the considered view that the Plaintiffs have failed to prove that P2 was born in Malaysia.

Moving on to the next requirement as to the jus sanguinis principle, the Plaintiffs relied on paragraph 54 of the judgment in CCH’s case as quoted previously and to the Affidavit in Support (‘AIS’) where P1 had averred as to the efforts made to find P2’s biological parents.

It was contended that, based on CCH’s case, the burden was on the Defendants to prove the identity of P2’s biological mother and that she was not a permanent resident at the place of the finding. The relevant excerpt from the judgment in CCH’s case is as follows: “[56] The simple answer to that assertion is this. 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. [57] Evidence-wise, the answer to this predicament is in the recent judgment of this Court in Rosliza bt Ibrahim v Kerajaan Negeri Selangor & Anor [2021] 2 MLJ 181 which deals with the proof of negative facts. It is quite illogical in this appeal to expect the appellants to show that they do not have knowledge of the biological parents or the mother at least.”.

The Plaintiffs submitted that the Defendants have not discharged the burden of proof as they made no averments on the identity of P2’s biological parents. Hence, the jus sangunis principle was fulfilled as P2’s biological other was presumed to be permanently resident in the Federation.

After deliberation, I was not persuaded by the Plaintiffs’ arguments.

In order for Section 19B, Part III, Second Schedule of the Federal Constitution to apply, it must be first be proven by the Plaintiffs that P2 falls within the classification of “any new born child found exposed in any place”.

In CCH’s case, the Federal Court said: “[57] ... This is what the appellants averred in their affidavit in reply dated 12 April 2019:

4.5 In January 2004, we were informed by a friend that a baby boy (the Child) has been born and abandoned at Hospital University Kebangsaan Malaysia, Cheras. We decided to adopt the Child and named him CYM ... [58] There is nothing in the evidence, as far as we have examined it, to suggest that the appellants were lying about the fact of abandonment. According to s. 19B therefore, the burden of showing that the child’s mother was not permanently resident at the place of finding rests on the respondent. Given that the child was born in the said hospital, surely the respondent has the means to verify from the hospital’s admission records, the identity of the child’s biological mother, if not the father. Therefore, as the record stands, the respondent has not been able to discharge that burden. No affidavit has been deposed nor a modicum of evidence adduced to suggest that the narrative provided by the appellants is inherently incredible or even false or untrue ... [70] ... Further, the respondent did not directly address or respond to any of the positive averments made by the appellants regarding how the child was found abandoned, thus leaving those averments admitted.”.

Based on the above excerpt, the Federal Court held that Section 19B, Part III, Second Schedule of the Federal Constitution applies to the child in that case because –

there was an averment by the appellants that the child was abandoned at the University Kebangsaan Malaysia Hospital, Cheras;

there was no evidence to suggest that the appellants were lying about the fact of the abandonment; and

the respondent did not directly address or respond to any of the positive averments made by the appellants regarding how the child was found abandoned, thus leaving those averments admitted.

Additionally, it was observed that, in Ong Zi Xin v Ketua Pengarah Pendaftaran Negara & Ors [2023] MLJU 1476, the child was born at a women’s clinic.

In contrast, the affidavit evidence submitted by the Plaintiffs herein does not support a finding that P2 was abandoned. Again, referring to the recorded statement in exhibit “ZM-3” of the Defendants’ AIR: P1’s Percakapan Dalam Pemeriksaan on 3.12.2015: “S11: BILA SUSPEK “LEE ENG HOONG” DILAHIRKAN DAN DI MANA, JAM BERAPA? 15 JUN 1995. S12: SIAPA YANG MENDAFTARKAN KELAHIRAN SUBJEK? MAK SAYA YANG URUSKAN KETIKA ITU, SAYA TIDAK PERGI BALAI ITU. S15: DARI MANA KAMU DAPAT LEE ENG HOONG? DARI EMAK SAYA DI KAMPUNG SASALAN SUNGAI BULOH DI SELANGOR MELALUI KAWAN MAK SAYA. S21: SIAPA IBUBAPA KANDUNG SUBJEK? SAYA TIDAK TAU KERANA MAK SAYA YANG MENGURUSKAN PENDAFTARAN ANAK SAYA. SAYA HANYA BAGI KAD PENGENALAN SAYA SAHAJA. S22: IBU KAMU MASIH ADA? MAK SAYA SUDAH MENINGGAL.” HSC’s Percakapan Dalam Pemeriksaan on 3.12.2015: “S9: MENGAPAKAH ALAMAT YANG DIDAFTARKAN DI DALAM SIJIL KELAHIRAN BERLAINAN DARI ALAMAT KAMU MENERIMA LEE ENG HOONG? KERANA KAWAN IBU MERTUA SAYA MENYATAKAN DIA MENERIMA SUBJEK DI ALAMAT SIJIL LAHIR TERSEBUT DAN SAYA PULA TERIMA DIA DI KAMPUNG IBU MERTUA SAYA DI SASALAN. SAYA TAK TAU SEMUA IBU MERTUA URUSKAN MASA TU. S15: DARI MANA KAMU DAPAT LEE ENG HOONG? DARI EMAK SAYA MELALUI KAWAN MAK MERTUA SAYA. KAWAN MAK MERTUA YANG MEMBERITAHU ADA BAYI YANG BARU DILAHIRKAN DI SITU. S.16: APA BANGSA IBU KANDUNG SUBJEK? TAK TAU S17: DI MANAKAH KAMU MENERIMA SUBJEK KETIKA ITU? DI KAMPUNG MAK MERTUA DI SASALAN KUALA SELANGOR.”.

Based on the Plaintiffs’ affidavits, there is insufficient evidence and lack of explanation as to the facts to enable this Court to conclude that P2 was abandoned. As opposed to being found exposed and abandoned at any place, P1’s mother came to know about P2’s birth and had arranged everything until P2 was eventually brought home by P1 and HSC. The Plaintiffs did not file any affidavit from anyone who may have actually known P2’s biological parents.

P1 and HSC then concealed the truth and did not inform the NRD of P2’s real status.

The Defendants registered Kampung Sasaran, Jeram, Kuala Selangor as P2’s place of birth based on the information provided by the Plaintiffs. The Defendants had no other means to investigate the place of births as 12 years have passed since P2’s birth when the truth was discovered by the Defendants.

Clearly, the factual matrix of the present case was materially different from CCH’s case. I find that the facts in the instant application were similar to Ketua Pengarah Pendaftaran Negara & Ors v Tan Jun Yan and another appeal [2026] 3 MLJ 134 (see paragraphs 25 and 26 in the judgment by the Court of Appeal; for the judgment of the High Court, see Tan Jun Yan v Ketua Pengarah Pendaftaran Negara & Ors [2023] MLJU 1504).

The Plaintiffs have failed to prove the element of “any new born child found exposed in any place” and therefore, the presumption under Section 19B, Part III, Second Schedule of the Federal Constitution cannot be invoked.

The Plaintiffs made an alternative submission that the word “parents” in paragraph (a) of section 1, Part II, Second Schedule of the Federal Constitution should be read liberally to include adopted parents. In support of the submission, references were made to sub-s 9(1) and 25A of the Adoption Act 1952 [Act 257] and the decision by the Court of Appeal in Madhuvita Janjara Augustin (suing through next friend Margaret Louisa Tan) v Augustin a/l Lourdsamy & Ors [2018] 1 MLJ 307 as well as the High Court in Lew Yee Hong @ Liew Yee Hong & Anor v Ketua Setiausaha, Kementerian Dalam Negeri & Ors [2020] 8 MLJ 62, where Madhuvita’s case was said to have been relied on excessively.

However, the short answer to the above contention is that the Adoption Order was set aside by the Sessions Court as averred by P1 himself in paragraph 15 of the AIS.

The Adoption Order was set aside on 12.2.2020 without any objection to the application by Pendaftar Besar Kelahiran Dan Kematian Malaysia on the ground that P2 was more than 21 years old when the application for adoption was made.

In any event, even if there is a valid adoption order, this cannot be taken as an automatic grant of citizenship. There is no provision in the Federal Constitution and Act 257 which provides that, upon adoption, a person will be conferred citizenship. In Foo Toon Aik (Suing on His Own Behalf and as Representative of Foo Shi Weh Child) v Ketua Pendaftar Kelahiran Dan Kematian, Malaysia [2012] 9 MLJ 573, the court held that: “(1) Before a person can qualify as a citizen by operation of law, he must be born to a lawful parent under art 14 of the Constitution. The word ‘parent’ in art 14 must refer to lawful parent. The child here could not qualify as a citizen by operation of law because he was not born to a lawful parent (see paras 10 - 11).

The emphasis of the requirement under art 14 has to be placed on his birth status because art 14 clearly refers to the fulfilment of the requisite conditions at the time of his birth. It could not be disputed that his birth status did not qualify him to be a citizen by operation of law (see para 11).” (see too, Pang Wee See’s case as quoted in paragraph 24 above).

In the premises, the 1st Issue was answered in the negative. 2nd Issue: Whether P2 is a citizen of Malaysia pursuant to Article 14(1)(b) read with paragraph (e) of section 1, Part II,

The first requirement that P2 was born on or after Malaysia Day was not disputed. The issue of whether P2 was born within the Federation has been addressed under the 1st Issue. This leaves the questions as to whether P2 –

was not born a citizen of any country; and

acquired any citizenship within one year after birth.

The Plaintiffs submitted that the words “not born a citizen of any country” does not require a child to prove the identity of his/ her biological parents and it is sufficient to prove that he/ she did not acquire citizenship of any country within one year of his/ her birth. The phrase “by operation of law” requires only simple verification of facts in order to satisfy the said requirements.

It was also submitted that Section 1(e) does not use the words “father” or “parent”. Section 1(e) is a safeguard to prevent and reduce statelessness in the country. The issue of lineage is irrelevant. If Section 1(e) was to be interpreted to require proof that P2’s biological mother was a Malaysian, there would be an overlap between Section 1(a) and Section 1(e), with the result that Section 1(e) would be rendered nugatory. In order to ensure consistency and purpose, Section 1(e) read with Section 2(3), Second Schedule of the Federal Constitution must be given its full effect and meaning, without any reference to the child’s biological parents.

In addition, it was again argued that the burden on proof lies on the Defendants to prove that P2 is a citizen of another country as one cannot proof a negative first (see Rosliza Ibrahim’s case).

In my considered view, the Plaintiffs’ submissions were not meritorious for the following reasons:

P1 and HSC are not P2’s biological parents;

P1 intentionally concealed the true facts as to P2’s birth. 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 P2 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 and Lim Jen Hsian;

based on the broad grounds of appeal by the Court of Appeal in Tan Kar Chai & Anor v. Pendaftar Besar Kelahiran Dan Kematian & Anor (see [2024] CLJU 2076 for the High Court judgment), the Court had applied the legal principles as enunciated in Than Siew Beng and Lim Jen Hsian and the appeal was dismissed on 21.4.2026 [see too, paragraphs 40 - 53 in Tan Jun Yan (supra)];

section 2(3), Part II, Second Schedule of the FC intends to treat any citizenship acquired within the first year after birth as if it had been acquired at birth. Contrary to the submission by the learned counsel for the Plaintiffs that the said section has not been discussed, argued or decided in any courts, the High Court in Siow Chew Lian & Ors v. Pendaftar Besar Kelahiran dan Kematian Malaysia [2022] 1 LNS 2155 had considered the provision and said: “[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 P2 did not acquire citizenship of any foreign country within one year of his birth. The Plaintiffs did not adduce any evidence to show that P2 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 P2 was born after Malaysia Day i.e. on 15.6.1995. However, they did not satisfy the second qualification as there was doubt with regard to P2’s actual place of birth; and neither did they fulfil the third qualification that P2 was not born a citizen of any country.

The 2nd Issue was similarly answered in the negative.

The Plaintiffs’ failure to adduce evidence to prove P2’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 paragraphs (a) or (e) of section 1,

Based on the aforesaid reasons, the Plaintiffs’ application in encl. 1 was dismissed with no order as to costs. DATED: 10.7.2026 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR (BKK1) Solicitors for the Plaintiffs: Larissa Anne Louis Messrs. Azri, Lee Swee Seng & Co