Ooi Thye Ping v Pendaftar Besar Kelahiran dan Kematian Jabatan Pendaftaran Negara Malaysia (P-01(NCvC)(A)-500-09/2023)

KERAJAAN MALAYSIA ... RESPONDENTS [DALAM MAHKAMAH TINGGI MALAYA DI PULAU PINANG (BAHAGIAN SIVIL) SAMAN PEMULA NO: PA-24NCvC-494-04/2023 Dalam Perkara Artikel 5,8,14(1) (b) 18,19,30,31 dan Fasal Kedua Bahagian Tiga Perlembagaan Persekutuan Malaysia Dan Dalam Perkara Akta Pendaftaran Kelahiran dan Kematian 1957 Dan Perkara 5 (3) (a) Peraturan-Peraturan Pendaftaran Negara 1990 Dan Akta Pendaftaran Negara Dan Dalam Perkara Aturan 7 dan 73 Kaedah-Kaedah Mahkamah 2012 ANTARA OOI THYE PENG (NO SIJIL KELAHIRAN:CI 92076) ...PLAINTIF

KERAJAAN MALAYSIA ...DEFENDAN-DEFENDAN] AZIZAH BINTI HAJI NAWAWI, CJSS MOHD NAZLAN BIN GHAZALI, JCA AZHAHARI KAMAL BIN RAMLI, JCA GROUNDS OF JUDGMENT

The appellant filed this appeal against the decision of the learned High Court Judge in dismissing his application for citizenship pursuant to:

Article 14 (1)(b) read together with section 1(a) of Part II of the Second Schedule of the Federal Constitution (by virtue of his birth in Malaysia);

(ii) Article 14(1)(b) read together with Section 1 (a) of Part II of the Second Schedule and Section 19B of Part III of the Second Schedule of the Federal Constitution.

(iii) Article 14(1)(b) read together with Section 1 (e) of Part II of the Second Schedule.

In this judgment, the parties will be referred to as they were in the court below.

The plaintiff was born on 8.6.1986. He was informed by his adopted father, Mr Ooi Keat Hoe, that he was adopted at the age of four months from his biological mother known only as Susila. There were no accompanying documents identifying the plaintiff or his biological mother.

On 9.7.1992, the plaintiff's adopted father applied to the National Registration Department, Wilayah Persekutuan ('the first defendant') to conduct a search on the plaintiff's birth certificate. Vide the first defendant's letter dated 30.7.1992, the plaintiff's adopted father was informed that no information in relation to the plaintiff could be obtained.

On 19.11.1992, the plaintiff's adopted father affirmed a Statutory Declaration confirming that he had been the adopted father of the plaintiff since the plaintiff was four months old.

No further action was taken by the plaintiff or his adopted father from the year 1992 to 2006. However, the plaintiff had received his primary and secondary education in Penang until SPM in 2003.

On 24.4.2006, the plaintiff's adopted father conducted another search for the plaintiff's birth registration at the first defendant's office.

On 22.6.2006, the first defendant issued their "Keputusan Carian Dalam Daftar". While acknowledging that the plaintiff was born on

6.1986 to one Susila, the details of the plaintiff's biological father, being unknown, was recorded as "tiada rekod".

On 2.8.2006, the plaintiff applied via Form JPN.LMO1 together with a Statutory Declaration for the late registration of birth. In this application, it was stated that:

The name of the baby boy born on 8.6.1986 was Ooi Thye Peng;

(ii) The biological mother was Susila and no other information had been submitted in relation to the biological mother;

(iii) There was no information with respect to the biological father; and

(iv) The informant was stated as Ooi Keat Hoe.

On 31.12.2008, the plaintiff's adopted father lodged a police report stating, among others, that sometime in September 1986, one Susila had handed over a child to him requesting that he adopt the child but without any documents. The plaintiff's adopted father also stated in the police report that he had been looking after the child since the age of four months and that his attempts to obtain a birth certificate were unsuccessful. This police report was sent to the first defendant together with another request to conduct a search on the plaintiff's birth certificate.

Pursuant to the plaintiff's application for the late registration of birth, an enquiry was conducted by the first defendant with the plaintiff's adopted father for the purposes of the plaintiff's application for birth registration. The plaintiff's application for late registration of birth was approved on 17.6.2010 and a birth certificate bearing number CJ92076 was issued with the following particulars:

The birth certificate was issued in the name of Ooi Thye Peng and the date of birth and the place of birth have been recorded as 8.6.1986 and Setapak, Kuala Lumpur respectively.

(ii) The mother's information was recorded as "SUSILA".

(iii) The father's name was recorded as "MAKLUMAT TIDAK DIPEROLEHI".

(iv) The plaintiff's citizenship status has been classified as "BUKAN WARGANEGARA". THE HIGH COURT DECISION

The learned HCJ was minded that the provision of Article 14 (1)(b) read together with Section 1 (a) of Part II of the Second Schedule of the Federal Constitution encompasses the twin concept of "jus soli and "jus sanguinis". The plaintiff needed to satisfy both concepts; hence the burden was on the plaintiff to prove that the plaintiff's biological mother and/or father is a Malaysian citizen or permanent resident in Malaysia. The learned HCJ also held that the identity of the parents was unknown as neither the plaintiff's adopted father nor other witnesses were able to provide any cogent evidence to establish that, at the time of the plaintiff's birth, the plaintiff's biological father or mother is a Malaysian citizen or permanent resident in Malaysia. The plaintiff did not fall within the broadest possible interpretation of the word "found exposed" given by the Federal Court in CCH & Anor v Pendaftar Besar Bagi Kelahiran dan Kematian Malaysia [2022] 1 MLJ 71; [2022] 1 CLJ 1; [2022] 1 MLRA 185. In this regard, the learned HCJ was not satisfied that the plaintiff had established that he was abandoned or could be considered a 'newborn child found exposed.'

The learned HCJ also held that apart from the prerequisite that the plaintiff was born within the Federation, it was also a constitutional requirement that the citizenship of the biological parents to be determined in order to satisfy the condition that the plaintiff was not born a citizen of any other country. Since the identity of the plaintiff's biological parents was unknown, it was not possible to determine the plaintiff's lineage to enable him to be conferred citizenship by lineage. ANALYSIS AND FINDING Article 14(1)(b) read together with Section 1 (e) of Part II of the Second Schedule.

The acquisition of Malaysian citizenship is governed by Part III of the FC. Article 14(1) of the FC provides for the citizenship by operation of law. It provides that: "14 (1) Subject to the provisions of this part, the following persons are citizens by operation of law, that is to say:

every person born before Malaysia Day who is a citizen of the Federation by virtue of the provisions contained in Part I of the Second Schedule; and

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

(Repealed)”

Part II of the Second Schedule provides as follows:

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; and

every person born outside the Federation whose father is, at the time of birth a citizen and either was born in the Federation or is at the time of birth in the service of the Federation or of the State; and

every person born outside of the Federation whose father is at the time of the birth a citizen and whose birth is, within one year of its occurrence or within such longer period as the Federal Government may in any particular case allow, registered in a consulate of the Federation or, if it occurs in Brunei or in a territory prescribed for this purpose by order of the Yang Di Pertuan Agong, registered with the Federal Government; and

every person born in Singapore of whose parents one at least is at the time of the birth a citizen and who is not born a citizen otherwise that by virtue of this paragraph; and

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

Section 19B of Part III of the Second Schedule of The Federal Constitution provides: "19B. For the purposes of Part I and Part 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 following facts are not disputed:

The plaintiff was born on 8.6.1986 in Setapak, Kuala Lumpur;

(ii) He was adopted by Ooi Keat Hoe;

(iii) The name of his biological mother is Susila. However besides the plaintiff's contention that Susila is an Indian woman, there is no other information available regarding Susila;

(iv) There is also no information regarding the plaintiff's biological father; and

There is no information as to whether the biological father and the biological mother of the plaintiff were married at the time of his birth.

However, during the enquiry that was conducted by the first defendant with the plaintiff's adopted father for the purpose of the plaintiff's application for a birth certificate, the following fact was recorded: "33. Sila ceritakan latar belakang keluarga ini dan kanak-kanak yang tuan/puan ketahui: MASA JUMPA IBU, UMURNYA LEBIH KURANG 18 HINGGA 19 TAHUN. MASA ITU DIA ADA JUAL KUEH DAN GORING PISANG DENGAN BOY FRIEND DIA DEKAT JALAN RAJA LAUT MASA SAYA KENAL DIA, DIA SEDANG MENGANDUNG. SELEPAS BERSALIN DIA ADA MINTA SAYA PUNYA KAWAN AMBIL DIA PUNYA ANAK TAPI KAWAN SAYA TIDAK MAU. SAYA KATA SAYA MAU, LEPAS ITU DIA LETAK ATAS KUSYEN DI HOTEL TEMPAT SAYA TIDUR.LEPAS ITU DIA TERUS HILANG, SEBELUM ITU SAYA TANYA BILA INI BUDAK LAHIR. DIA BAGI SAYA TARIKH DAN TEMPAT DIA BERSALIN. TAPI BILA SAYA PERGI TENGOK DAN TANYA-TANYA SEMUA TAK ADA".

Further, the plaintiff's adopted father gave the following version in the Statutory Declaration dated 24.8.2009: "SAYA TELAH MENERIMA SEORANG BAYI BERBANGSA INDIA PADA USIA 3 HINGGA 4 BULAN PADA TAHUN 1986 YANG DISERAHKAN OLEH IBUNYA SENDIRI KEPADA SAYA. SEMASA PENYERAHAN BAYI INI, TIADA SEBARANG DOKUMEN DIBERIKAN KEPADA SAYA OLEH IBUNYA"

Next, in his police report dated 31.12.2008, the plaintiff's adopted father stated: "PADA TARIKH TIDAK INGAT BULAN SEPTEMBER TAHUN 1986, SAYA TELAH AMBIL SEORANG ANAK LELAKI DARI SEORANG PEREMPUAN INDIA YANG BERNAMA SUSILA, YANG MENYERAHKAN KANAK-KANAK TERSEBUT KEPADA SAYA DAN SAYA AMBIL KANAK-KANAK TERSEBUT SEBAGAI ANAK ANGKAT TANPA SEBARANG DOKUMEN DAN PENGENALAN DIRI".

For a citizenship application under Article 14 (1) (b) read together with section 1(e), Part II of the Second Schedule, the plaintiff must fulfil the following requirements:

He was born on or after Malaysia Day;

(ii) He was born within the Federation; and

(iii) He was not born a citizen of any country.

There is no dispute that the plaintiff was born in the Federation after Malaysia Day. The issue lies in requirement item (iii) i.e. whether he was not born a citizen of any country.

The phrase 'was not born a citizen of any country' requires the plaintiff to prove the status of the child's lineage at the time of his birth, i.e. the relationship to his biological and lawful parents at the time of his birth.

This issue had been decided by this court in Lim Jen Hsian & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2018] 6 MLJ 548; [2017] 8 CLJ 412; [2017] 6 MLRA 426. In delivering the decision of the court, Badariah Sahamid JCA opines at p 556 of the judgment as follows: [26] The second issue before us is whether the second appellant has satisfied the requirements stipulated in para 1 (e) of Part II, Second Schedule of the Federal Constitution, to be read with art 14 (1) (b) of the Federal Constitution to obtain citizenship by operation of law. [27] Article 14(1)(b) of the Federal Constitution encapsulates the requirement of citizenship by jus soli ie by place of birth; while para 1 (e) of Part II, Second Schedule of the Federal Constitution (not born a citizen a citizen of any country) encapsulates the requirement of citizenship by jus sanguinis i.e. by blood or lineage."

In the case of Than Siew Beng & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 5 MLJ 662; [2017] 8 CLJ 16; [2017] 6 MLRA 358 it was held that: "[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 phase, 'who is not born a citizen of any country'. For the purpose 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..." [emphasis added]

The burden of proof lies on the plaintiff to establish that he "was not born a citizen of any country". This is consistent with the basic principle of the law of evidence that he who asserts must prove. Hence in Lim Jen Hsian & Anor (supra) it was held that: "[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. This burden of proof is on the appellant to established 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."

The crucial time when the plaintiff could be said "was not born a citizen of any country" is at the time of his birth. This principle of law is laid down by the Federal Court in CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 4 MLJ 236; [2021] 6 CLJ 471; [2021] 4 MLRA 713 which held that: "[82] Concluding my view and discussions, I am clear in my mind and reinforced in my view, that the qualification of acquiring citizenship by operation of law, must be met at birth. And if the qualifications are not met, this court is not at liberty to add or subtract any other or qualifications which the FC states otherwise."

Unfortunately, the plaintiff could not prove the identity of his biological parents. That being the case, it is almost impossible to ascertain his lineage and to bring the plaintiff's application within section 1 (e) of Part II of Second Schedule of the Federal Constitution. It follows that the plaintiff is not eligible for citizenship under para 1 (e) of Part II, Second Schedule of the Federal Constitution.

Still on this issue, the plaintiff also submitted that by virtue of Section 2 (3) of Part II of the Second Schedule of the Federal Constitution, he would only be treated as a citizen of any other country if he had acquired such citizenship within one year of his birth. In this case, the plaintiff maintains that there is nothing in the affidavit that shows that he acquired any citizenship of any other country within one year of his birth.

Section 2 (3) of Part II of the Second Schedule of the Federal Constitution provides: "For the purposes of paragraph (e) of section 1 a person is to be treated as having at birth any citizenship which he acquires within one year afterwards by virtue of any provisions corresponding to paragraph (c) of that section or otherwise.

In our view, section 2(3) does not in any way assist the plaintiff's case. Section 2(3) is not an additional condition for acquiring citizenship by operation of law. In this regard, we agree with Noorin Badaruddin J (as she then was) in Siow Chew Lian & Ors v Pendaftar Besar Kelahiran dan Kematian Malaysia [2022] MLJU 2237; [2022] 1 LNS 2155; [2022] MLRHU 1932 where Her Ladyship opines: [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 the 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" or "born".

We find no merit in this issue. Article 14(1)(b) read together with Section 1 (a) of Part II of the Second Schedule and Section 19B of Part Ill of the Second Schedule of the Federal Constitution.

We will deal with these two issues together.

The plaintiff contended that the learned HCJ erred when he dismissed the plaintiff's prayer for citizenship under Article 14 (1) (b) read together with section 1 (a) Part II of the Second Schedule of the Federal Constitution. For ease of reference we reproduce Article 14 (1) (b) read together with section 1 (a) Part II of the Second Scheduled of the Federal Constitution: "Article 14 (1) (b) 14 (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 qualification specified in Part II of the Second Schedule.

(Repealed)

(Repealed)

(Repealed)”

Section 1 (a) of Part II of the Second Schedule provides: "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 whose parents one at least is at the time of birth either a citizen or permanently resident in the Federation; and

(b)...

(c)...

(d)...

(e)... “

In relying on Article 14 (1) (b) read together with section 1(a), Part II of the Second Schedule of the Federal Constitution, the plaintiff must fulfil the following conditions: i. He was born on or after Malaysia Day; ii. He was born within the Federation; and iii. His parents one at least is at the time of the birth either a citizen or permanently resident in the Federation.

For an application under Article 14 (1)(b) read together with section 1(a), Part II of the Second Schedule of the Federal Constitution the plaintiff must also fulfil the requirement of jus soli and jus sanguinis. This principle has been affirmed by the case of Pendaftar Besar Kelahiran dan Kematian, Malaysia v Pang Wee See & anor (applying on their behalf and as litigation representative of Pang Cheng Chuen, a child) [2017] 3 MLJ 308; [2017] 7 CLJ 33; [2018] 2 MLRA 406 where it was held that: [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 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 citizen 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) of Part II of the Second Schedule of the Federal Constitution is a provision which is anchored on the elements of both the concepts of jus sanguinis and 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 (1) (b) read with s 1(a), Part II, Second Schedule of the Federal Constitution".

Based from the fact, we could not agree with the plaintiff that he has fulfilled both requirements of jus soli and jus sanguinis. The identity of both the biological father and mother of the plaintiff remain unknown. In his judgment, the only person who has personal knowledge of the plaintiff history before and during the first few months of the plaintiff's birth was his adopted father. The evidence of the adopted father's friend and uncle was derived solely from the information provided by the adopted father. In the circumstances, we are of the considered view that the learned HCJ was justified in rejecting their evidence. At this appellate stage, we would hesitate to interfere with the finding of fact made by the learned HCJ.

As it stands, we find that the plaintiff has not proven that his parents, or at least one of them is a Malaysian citizen or permanent resident.

We will now turn to section 19B of Part III of the Second Schedule of the Federal Constitution.

The plaintiff submitted that he has fulfilled the requirement that has been laid down in the case of CCH & Anor v Pendaftar Besar Bagi Kelahiran dan Kematian, Malaysia [2022] 1 MLJ 71; [2022] 1 CLJ 1; [2022] 1 MLRA 185. On section 19B, the Federal Court held that: "[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 child 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 '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 a child abandoned at a place of birth by the birth mother whose identity is unknown. The operative word 'exposed' is 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".

Applying CCH (supra) to the present case, it is obvious that the plaintiff was not an abandoned child when his adopted father took him into his care. The evidence clearly shows that the plaintiff was handed over by his biological mother to his adopted father at the age of four months. In his statement during the enquiry with the first defendant, the adopted father admitted that the plaintiff's biological mother had first offered to give the plaintiff to his adopted father's friend but the friend declined. Only then did the adopted father agreed to take the plaintiff. In fact, according to the plaintiff's adopted father, it was the plaintiff's biological mother who brought the plaintiff to the hotel where he was staying and left the baby on the sofa before leaving the hotel.

In our considered view, this is not a case of abandoned child. For whatever reason, the plaintiff's biological mother's intention at that material time is to give up the plaintiff for adoption. The plaintiff could not bring himself within the provision of s 19B. We see no reason to disagree with the finding of the learned HCJ. We also find no merit in this issue.

Based on the above reasons, we are of the considered view that there is no appealable error on the part of the learned HCJ warranting our appellate intervention. The appeal is unmeritorious. We dismiss the appeal. The decision of the learned HCJ is hereby affirmed. Dated: 10 November, 2025 -sgd-AZHAHARI KAMAL BIN RAMLI JUDGE COURT OF APPEAL MALAYSIA Counsel for the Appellants:(1) Rajit Singh a/l Tara Singh

Robin Lim Fang Say [Tetuan Rajit Gill & Co.]Counsel for the Respondents:Puan Kogilambigai Muthusamy Peguam Kanan Persekutuan [Jabatan Peguam Negara]