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XXXX v 1. ) M. P. P. L. (WA-22F-1-05/2019)

High Court of Malaysia19 May 2021WA-22F-1-05/2019

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Refers toAdoption ActExternal
“a child. A “father of the child” is one of the qualified persons under section 7(2). The phrase “father of the child” is not defined in BDRA 1957. [242] Birth certificates are also issued under the Adoption Act 1952 (“AA 1952”). Section 25A of the AA 1952 states that upon receipt of an adoption order, the Registrar-Gen”
Refers toChild ActExternal
“to the UNCRC. It had made reservations to several articles of the UNCRC including Article 7, which has not been ratified as law in Malaysia. Parliament had incorporated only part of the UNCRC in the Child Act 2001: it had left out, among others, the provisions in article 7 of the Convention. S/N ttUrx/Fu30ypvxHcIbJxA *”
Refers toCivil Law ActExternal
“LJ 1; [2019] 8 AMR 325; [2019] AMEJ 1450, FC, held that common law is law as long it remains in force and that the mechanism for determining of whether it remains in force lies in section 3(1) of the Civil Law Act 1956 (“CLA 1956”). Section 3(1) of the CLA 1956 reads as follows: “3. Application of UK common law, rules”
Refers toDNA ActExternal
“a DNA test in civil proceedings. [226] Parliament had officially recognised the taking and use of DNA samples as evidence with the passing of the Deoxyribonucleic Acid (DNA) Identification Act 2009 (“DNA Act”). Also, the Federal Court in Pathmanabhan Nalliannen v Public Prosecutor & Other Appeals S/N ttUrx/Fu30ypvxHcIb”
Refers toDeaths Registration ActExternal
“red the order of the High Court. Therefore, the decision of the Court of Appeal in Tiow Weng Theong v Melawangi Sdn Bhd is no longer good law. [240] Birth certificates are issued under the Birth and Deaths Registration Act 1957 (“BDRA 1957”). Section 14 of the BDRA 1957 states that at the time of registering the birth”

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Refers toEvidence ActExternal
“iff’s application in the OS. They filed an application under Order 14A of the Rules of Court 2012 to dismiss the OS on the grounds that pursuant to the presumption of legitimacy in section 112 of the Evidence Act 1950 (“EA”), the fact that Child C was born during the 1st Defendant’s valid marriage to the 2nd Defendant”
Refers toFamily Law Reform ActExternal
“a DNA test on a child for purposes of determining paternity. [254] Ms. Dhaliwal submits that unlike Malaysia, the Courts in England is empowered by the express provisions in section 20(1) of the UK’s Family Law Reform Act 1969 (“FLRA 1969”), to give directions for blood tests to be used to ascertain paternity in civil”
Refers toFederal ConstitutionLegislation
“jurisdiction, in the interest of justice, to direct DNA testing to provide evidence of paternity in circumstances falling outside the scope of its FLRA 1969. [274] In Malaysia, article 160(2) of our Federal Constitution defines “law” to include: S/N ttUrx/Fu30ypvxHcIbJxA **Note : Serial number will be used to verify th”
Refers toIdentification ActExternal
“t have the power to order a DNA test in civil proceedings. [226] Parliament had officially recognised the taking and use of DNA samples as evidence with the passing of the Deoxyribonucleic Acid (DNA) Identification Act 2009 (“DNA Act”). Also, the Federal Court in Pathmanabhan Nalliannen v Public Prosecutor & Other Appe”
Refers toIndian Evidence ActExternal
“f is whether it is in the best interest and welfare of Child C to know her biological father. [289] The presumption of legitimacy in section 112 of the EA is worded verbatim to the section 112 of the Indian Evidence Act 1872. It was para materia with section 114(1)(a) and (b) of the Singapore Evidence Act 1893 S/N ttUr”
Refers toInfants ActExternal
“ontrol guardians of infants and generally over the persons and property of infants;” [250] Learned counsel for the Plaintiff, Ms. Honey Tan, submits that pursuant to section 11 of the Guardianship of Infants Act 1961 (“GIA 1961”), this Court shall have regard primarily to the welfare of the Child, S/N ttUrx/Fu30ypvxHcI”
Refers toJohor EnactmentExternal
“imacy and paternity are two distinct concepts. David Wong Dak Wah CJ (Sabah & Sarawak) referring to the Court of Appeal’s judgment in CAS v MPPL & Anor (No.1) held: “[164] To reconcile s. 111 of the Johor Enactment 2003 and s. 112 of the Evidence Act 1950, we must fall back on the fact that under our law, legitimacy an”
Refers toJudicature ActExternal
“e BDRA 1957 or the AA 1952, is not proof of the said child’s paternity. The High Court’s inherent jurisdiction as parens patriae [249] The Plaintiff’s case is that under section 24(d) of the Court of Judicature Act 1964 (“CJA 1964”) and as parens patriae, the High Court has the power to order a child to undertake a DNA”
Refers toLegitimacy ActExternal
“lves to undertake the DNA test in order to prove the paternity of child and had provided the results of the DNA test in Court to support the petitioner’s application to legitimise the child under the Legitimacy Act 1961. [228] The first notable case in Malaysia where a party prayed for the Court to order a DNA test was”
Refers toPENAL CODELegislation
“nity”. He was of the view that subjecting a person to take a DNA test against his will, by way of taking blood, tissue or bone specimen, would amount to hurt within the meaning of section 319 of the Penal Code. Section 319 of the Penal Code states “Whoever causes bodily pain, disease or infirmity to any person is said”
Refers toSingapore Evidence ActExternal
“father. [289] The presumption of legitimacy in section 112 of the EA is worded verbatim to the section 112 of the Indian Evidence Act 1872. It was para materia with section 114(1)(a) and (b) of the Singapore Evidence Act 1893 S/N ttUrx/Fu30ypvxHcIbJxA **Note : Serial number will be used to verify the originality of thi”
Cites[1961] MLJ 105External
“verify the originality of this document via eFILING portal 12 care and test it against the whole of the evidence and the circumstances of the case. Thomson CJ in Khoon Chye Hin v Public Prosecutor [1961] MLJ 105; [1961] 1 LNS 41 held: “If a witness demonstrably tells lies on one or two points then it is clear that he i”
Cites[1962] MLJ 220External
“proved by oral evidence: section 59 of the EA. The oral evidence is sufficient to prove a fact in the absence of documentary evidence to support it: see for e.g., STU v The Comptroller of Income Tax [1962] MLJ 220; [1962] 1 LNS 179. Section 60 of the EA stipulates that the oral evidence must be direct evidence. [38] Th”
Cites[1964] AC 1254External
“urisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process." (Connelly v. DPP [1964] AC 1254 at 1301). [63] Inherent powers of the court are separate and distinct source of jurisdiction from statuto”
Cites[1981] CLJ 124AExternal
“It is settled law that the High Court as parens patriae has inherent jurisdiction over all children in the jurisdiction. The Federal Court in Mahabir Prasad v Pushpa Mahabir Prasad [1981] CLJ Rep 65; [1981] CLJ 124A, FC, per Raja Azlan Shah Acting LP, held “The High Court in hearing a custody case regarding infants wit”
Cites[1986] AC 717External
“cts with one another. It is a “he said, she said”— he would say one thing and she would say another. [39] The House of Lords in Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd’s Rep 1 57; [1986] AC 717 held that: " ……….. where there is a conflict of evidence such as there was in the present case, reference t”
Cites[1993] SC 2295External
“stice or to prevent abuse of the process of the Court.” [268] The Supreme Court of India in Sharda v Dharmpal (2003) 4 SCC 493 had reviewed its earlier decision in Goutam Kundu v State of West Bengal [1993] SC 2295 and held: “39. Goutam Kundu is, therefore, not an authority for the proposition that under no circumstanc”
Cites[2005] SGHC 30Case
“s view in the judgment of Ravindra Bhat J in Shri Rohit Shekhar v. Shri Narayan Dutt Tivoari & Anor A No 4720/2008 ………….. and we concur with his views. [293] In Singapore, Choo Han Teck J in AD v AE [2005] SGHC 30; [2005] 2 SLR 180 (a case prior to the amendment of the section 114 of the Singapore Evidence Act) said: “”
Cites[2007] SGCA 47Case
“ourse of the trial, never shifting regardless of the evidence that is led.” The Singapore Court of Appeal in an earlier case of Britestone Pte Ltd v Smith & Associates Far East Ltd [2007] 4 SLR 855; [2007] SGCA 47 (“Britestone”) explained the difference between “legal burden of proof” and “evidential burden of proof” a”
Cites[2012] MLJU 56External
“(M) Bhd v. Luqman Kamil Mohammed Don [2012] 3 CLJ 551; [2012] MLJU 56 FC). [73] The 1st Defendant did not plead when Child C was conceived. Therefore, she cannot adduce facts and issues which she had not pleaded: see Samuel Naik (supra). [74] Nonetheless, even if she h”
Cites[2013] MLJU 93External
“said to cause hurt”. [229] The next case of note is Lee Lai Ching (As the next friend of Lim Chee Zheng and on behalf of herself) v Lim Hooi Teck [2013] 4 CLJ 107; [2013] 2 AMR 628; [2013] 4 MLJ 272; [2013] MLJU 93 (“Lee Lai Ching No. 1”). The plaintiff mother in that case claimed that she had met the defendant (the pu”
Cites[2015] SGCA 7Case
“s not shift from the party that desires the Court to give judgment as to any legal right or liability. As explained by the Singapore Court of Appeal in SCT Technologies Pte Ltd v Wester Copper Co Ltd [2015] SGCA 7; [2016] 1 SLR 1471 (“SCT Technologies”), “once it is established who bears the legal burden of proof, it w”
Cites[2016] EWHC 851External
“e means whenever the occasion requires.” [Emphasis added] [262] Learned counsel for the Defendants also did not bring this Court’s attention to the recent English case of Spencer v Spencer and others [2016] EWHC 851 (Fam); [2016] Fam. 391 (“Spencer v Spencer”). In S/N ttUrx/Fu30ypvxHcIbJxA **Note : Serial number will b”
Cites[2018] AMEJ 0708External
“ontends that for this reason the Plaintiff’s application should be dismissed. [238] Ms Dhaliwal cited as authority the case of Tiow Weng Theong v Melawangi Sdn Bhd [2019] 2 CLJ 655, [2018] 5 AMR 465; [2018] AMEJ 0708; [2018] 6 MLJ 761, CA, where the Court of Appeal held that in an action for defamation, the parties by”
Cites[2019] AMEJ 1090External
“Court. It was cited with approval by the Federal Court in subsequent cases. In TR Sandah Tabau & Ors v Director of Forest, Sarawak & Anor and Other Applications [2019] 10 CLJ 436, [2019] 6 AMR 526; [2019] AMEJ 1090, FC, David Wong Dak Wah CJ (Sabah & Sarawak), held that notwithstanding the non-incorporation of article”
Cites[2019] AMEJ 1450External
“a DNA test — on a child to determine the child’s paternity. [280] The Federal Court in Tony Pua Kiam Wee v Government of Malaysia & Another Appeal [2020] 1 CLJ 337; [2019] 12 MLJ 1; [2019] 8 AMR 325; [2019] AMEJ 1450, FC, held that common law is law as long it remains in force and that the mechanism for determining of”
Cites[2019] AMEJ 1483External
“child to undergo a DNA test or blood test to determine his or her paternity. [284] Additionally, the Court of Appeal in the recent case of Stone World Sdn Bhd v Engareh (M) Sdn Bhd [2020] 4 CLJ 354; [2019] AMEJ 1483, CA (“Stone World v Engareh”) had held that Courts may extend S/N ttUrx/Fu30ypvxHcIbJxA **Note : Serial”
Cites[2020] AMEJ 0137External
“aintiff. [239] Unfortunately, she failed to bring to this Court’s attention that the Federal Court on 28.02.2020, as reported in Melawangi Sdn Bhd v Tiow Weng Theong [2020] 4 CLJ 1; [2020] 2 AMR 505; [2020] AMEJ 0137, FC had overturned the Court of Appeal’s decision and restored the order of the High Court. Therefore,”
Cites[2020] AMEJ 0225External
“x/Fu30ypvxHcIbJxA **Note : Serial number will be used to verify the originality of this document via eFILING portal 72 Negeri Johor (Intervener) [2020] 4 CLJ 731; [2020] 2 MLJ 277; [2020] 2 AMR 725; [2020] AMEJ 0225, FC, reiterated that under Malaysian law, legitimacy and paternity are two distinct concepts. David Wong”

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1 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM NEGERI WILAYAH PERSEKUTUAN, MALAYSIA (BAHAGIAN KELUARGA) WRIT NO. WA-22F-1-05/2019 (dahulunya Saman Pemula No. WA-24F-107-07/2015) ANTARA C.A.S. PLAINTIF DAN DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] Do Courts in Malaysia have the power to order a child to undergo a deoxyribonucleic acid (“DNA”) test to determine paternity? Whilst the High Court has held that it does not have the power in civil proceedings to compel adults to produce DNA samples to prove the paternity of a child, the question of whether Courts in Malaysia have the power to make an order for a child to undergo a DNA test to ascertain the child’s paternity, has yet to be decided. [2] The Plaintiff had brought this action for an order of Court for a child (referred to as “Child C” or “the Child” in this judgment) to undergo a DNA test to determine her paternity. 23/06/2022 10:29:18 Kand. 188 S/N ttUrx/Fu30ypvxHcIbJxA [3] The 1st and 2nd Defendants are husband and wife. They were married on 03.03.2007. The 1st Defendant gave birth to Child C on 23.06.2008, whilst married to the 2nd Defendant. [4] The Plaintiff claims that he is the biological father of Child C. He claims to have had sexual relations with the 1st Defendant prior to her marriage with the 2nd Defendant, and that their sexual relations continued until around January 2014. He also claims to have had access to the Child since her birth until December 2013 and that he had provided monies to the 1st Defendant for the Child’s maintenance until around August 2014. [5] In November 2015, the Plaintiff filed an originating summons (“OS”) seeking, among others, for an order of Court for a DNA test to be conducted on Child C to determine her paternity. [6] At the material time, the Plaintiff was a pilot with a Malaysian based airline and the 1st Defendant was an air stewardess/ flight attendant in the same airline. The 2nd Defendant was a pilot with a Singapore based airline. [7] The Defendants strenuously opposed the Plaintiff’s application in the OS. They filed an application under Order 14A of the Rules of Court 2012 to dismiss the OS on the grounds that pursuant to the presumption of legitimacy in section 112 of the Evidence Act 1950 (“EA”), the fact that Child C was born during the 1st Defendant’s valid marriage to the 2nd Defendant is conclusive proof that Child C is the legitimate child of the 2nd Defendant. S/N ttUrx/Fu30ypvxHcIbJxA [8] In their affidavits in the OS, the Defendants had denied all the Plaintiff’s claims, including that he had intimate and sexual relations with the 1st Defendant prior to and during her marriage to the 2nd Defendant. [9] The High Court allowed the Defendants’ Order 14A application and summarily dismissed the Plaintiff’s OS. [10] The Plaintiff appealed the High Court’s decision. The Court of Appeal allowed the Plaintiff’s appeal and set-aside the High Court’s order: see CAS v MPPL & Anor [2018] 8 AMR 525, [2019] 2 CLJ 454, [2019] 4 MLJ 243 (“CAS v MPPL & Anor (No. 1)”). [11] The Court of Appeal held that legitimacy and paternity are two distinct, though interrelated concepts. In its judgment, the Court of Appeal held that legitimacy is question of law, whilst paternity is a question of fact. Thus, the presumption of legitimacy in section 112 of the EA does not bar enquiry into a person’s paternity. [12] The Court of Appeal found that the High Court judge fell into error in having summarily dismissed the Plaintiff’s application pursuant to section 112 of the EA, without first determining the facts of the case. It held: “In our reading of the affidavits in this action, it is as plain as pikestaff that the defendants deny many of the allegations made by the plaintiff in respect of his purported relationship with the first defendant and Child C. These are crucial matters. The plaintiff's claim ought not to have been dismissed outright in the absence of judicial determination on these crucial issues. Such determination can only be made with full viva voce evidence. S/N ttUrx/Fu30ypvxHcIbJxA [13] Because of these disputed facts, the Court of Appeal directed that the Plaintiff’s OS be converted into a writ action to enable the factual disputes to be determined by way of viva voce evidence of witnesses. [14] The Defendants obtained leave to appeal to the Federal Court against the Court of Appeal’s decision. On 29.01.2019, the Federal Court affirmed the Court of Appeal’s judgment and dismissed the Defendants’ appeal: see MPPL & Anor v CAS (02(f)-14-03-2018(W) - 29 January 2019). This Writ Action [15] In the OS and the appeals before the Court of Appeal and the Federal Court, the Defendants had denied the Plaintiff’s claim of sexual relations between him and the 1st Defendant before and during her marriage to the 2nd Defendant. They continued to deny the Plaintiff’s claims in their statement of defence in this writ action. [16] There were various issues to be tried filed by the parties prior to the trial of this action, which issues can be categorised into the following broad categories, namely:

i

(i) whether there was sexual intercourse between the Plaintiff and the 1st Defendant, before her marriage to the 2nd Defendant and during her marriage, especially around September 2007;

Subparagraph

(ii) whether the Plaintiff had access to Child C after her birth until December 2013; S/N ttUrx/Fu30ypvxHcIbJxA

Subparagraph

(iii) whether the Plaintiff provided the 1st Defendant maintenance for Child C until the 1st Defendant closed her bank account at Maybank; and

Subparagraph

(iv) whether this Court has the power to order a DNA test on the Child to determine whether the Plaintiff is the biological father of the Child, and if so, ought such an order be made? [17] The first three issues are questions of fact, and the fourth issue is a question of law. [18] The Court of Appeal in CAS v MPPL & Anor (No. 1) held that the question of law is to be decided by this Court after determination of the determination of the factual issues. [19] Notwithstanding the Defendants denial in their pleadings of sexual relations between the Plaintiff and the 1st Defendant, during the trial of this writ action, the 1st Defendant admitted that she had sexual relations with the Plaintiff prior to her marriage to the 2nd Defendant. She testified that her sexual relationship with the Plaintiff continued during her marriage until January 2014. Question of Fact: Has the Plaintiff made out a prima facie case for a DNA test on the Child to determine her paternity? [20] The Court of Appeal in CAS v MPPL & Anor (No.1) had tasked this Court to find the “factual matrix” of this case before it can go on to decide whether it has the power to order a DNA test on a child to determine her paternity. S/N ttUrx/Fu30ypvxHcIbJxA [21] The principal question before this Court is what are the facts that must be proved for the Plaintiff to make a prima facie case to support his application for DNA test on the Child to prove her paternity. Is it sufficient that he proves that he had sexual relations with the 1st Defendant before and during her marriage to the 2nd Defendant? Or must he prove on a balance of probabilities that he had sexual intercourse with her during the period Child C was conceived? [22] The Court of Appeal in Lim Hooi Teik v Lee Lai Cheng (As the next friend of Lim Chee Zheng and on behalf of herself) [2016] 3 CLJ 529 (“Lim Hooi Teik”) held that the plaintiff mother must make out a prima facie case against the defendant that she was in an intimate relationship with him before the Court can order that the defendant undergo a DNA test to determine her child’s paternity. Vernon Ong JCA (as he then was) held: “[26] We take the view that at the very least, the plaintiff ought to have produced evidence to prove that fact of the relationship as pleaded; and that such relationship once proven would warrant the making of an order to compel the defendant to undergo a DNA test for the purpose of determining the paternity of the minor.” [23] By reason of the 1st Defendant’s admission to her sexual relationship with the Plaintiff prior to and during her marriage to the 2nd Defendant, premised on the Court of Appeal’s judgment in Lim Hooi Teck, the Plaintiff would have sufficiently discharged his burden of proving a prima facie case that would warrant this Court to consider the question of law of whether it can make an order for Child C to under a DNA test to determine her paternity. S/N ttUrx/Fu30ypvxHcIbJxA [24] The Court of Appeal’s judgment in Lim Hooi Teck, relates to an application for a DNA test on the putative biological father of a child. It held that proof of sexual relations between the applicant mother and the putative biological father was sufficient for the Court to order a DNA test on the putative father to determine the paternity of the child. [25] However, in this instant action, the Plaintiff applicant is a person who claims to be the putative biological father of the Child and his application is for an order for a DNA test on the Child to determine her paternity. [26] It is my view that in an application for a DNA test on a child (as opposed to an adult) for purposes of determining the said child’s paternity, a prima facie case of sexual relationship between an applicant and the mother of the said child is not sufficient for a Court to order that the said child undergo a DNA test to determine his or her paternity. To my mind, it would open the floodgates where any man who makes out a prima facie case of sexual relations with a woman may obtain a Court order for a DNA test on a child born to the said woman. [27] In my view, any man who claims to be the biological father of a child must at least make a prima facie case that he had sexual relations during the period the child was conceived (“conception period”) and provide other supporting evidence to validate his claim that he may be the biological father of the child before a Court can make an order that the child undergo a DNA test to determine his or her paternity. S/N ttUrx/Fu30ypvxHcIbJxA When was Child C’s conception period? [28] The possible conception period of a child is determined by the length of human pregnancy. It is a matter of science, particularly biology. Section 57(2) of the EA empowers a Court in all matters of science to resort for its aid to appropriate books or documents of reference. Section 57(2) of the EA reads as follows: “(2) In all these cases, and also on all matters of public history, literature, science or art, the court may resort for its aid to appropriate books or documents of reference.” [29] In determining the likely conception period of the Child in this instant action, this Court had referred to the studies by Mongelli, Max et al., entitled “Estimating the date of confinement: Ultrasonographic biometry versus certain menstrual date”, published in the American Journal of Obstetrics Gynaecology, Vol.174, Issue 1, Part 1, p. 278-281, January 1996, (the “Mongelli Study”) and by A.M. Jukic et al., entitled “Length of Human Pregnancy and Contributors to its Natural Variation”, published by Oxford University Press on behalf of the European Society of Human Reproduction and Embryology 2013, (the “Jukic Study”). [30] The studies show that doctors estimate the approximate time when a Child was conceived based on the mother’s last menstrual period (LMP) or by ultrasound. The Jukic Study states that whilst it is a common clinical practice to assign pregnant woman a due date based on 280 days from their last menstrual period (LMP), the Mongelli Study found that only 4% of women deliver at 280 days and only 70% deliver within 10 days of their estimated due date, even when the date is estimated by ultrasound. S/N ttUrx/Fu30ypvxHcIbJxA [31] The Jukic Study is a scientific study on the length of human pregnancy and the natural variation in the length of healthy pregnancies. It found that the ovulation to birth ranged from 247 to 284 days, where the variation in pregnancy length spanned 37 days, and that the median time from ovulation to birth was 268 days (38 weeks 2 days). The authors of the Jukic Study concluded that the implications of their findings of the variation in pregnancy length among healthy pregnancies are as follows: “Implications The length of human gestation varies considerably among healthy pregnancies, even when onset of pregnancy is measured by an accurate marker of ovulation. This variability is greater than suggested by the clinical assignment of a single ‘due date’. The duration of previous pregnancies may provide a useful measure of a woman's ‘natural’ length of pregnancy and may help in predicting an individual woman's due date. We also found that events in the first 2 weeks after conception were strongly predictive of the total length of pregnancy, suggesting that the trajectory for the timing of delivery may be set in early pregnancy.” [Emphasis added] [32] From the Mongelli Study and the Jukic Study cited above, it is clear no one can pinpoint the exact date of conception, since the length of human gestation varies. As the Jukic Study found the variation of the length of healthy pregnancies spanned 37 days. [33] What we know is that Child C was born on 23.06.2008. The Jukic Study shows that ovulation to birth ranged from 247 to 284 days and that the median time from ovulation to birth is 268 days. Accordingly, Child C could have been conceived between the dates of 13.09.2007 (284 days of conception) and 20.10.2007 (247 days of conception). S/N ttUrx/Fu30ypvxHcIbJxA [34] Therefore, I find that Child C’s conception period was between 13.09.2007 and 20.10.2007. Analysis of the Evidence [35] The trial of this writ action was heard over 11 non-consecutive days. 5 witnesses including the Plaintiff testified on behalf of the Plaintiff and 2 witnesses — the 1st Defendant and the 2nd Defendant — testified on behalf of the Defendants. The main witness for the Plaintiff is the Plaintiff himself (“PW1”) and the main witness for the Defence is the 1st Defendant (“DW1”) herself. [36] The evidence presented in Court during the trial were the oral testimonies of witnesses and documentary evidence. The documentary evidence comprised of emails and WhatsApp messages between the Plaintiff and the 1st Defendant, photographs and videos. [37] It is trite that all facts, except for the contents of documents, may be proved by oral evidence: section 59 of the EA. The oral evidence is sufficient to prove a fact in the absence of documentary evidence to support it: see for e.g., STU v The Comptroller of Income Tax [1962] MLJ 220; [1962] 1 LNS 179. Section 60 of the EA stipulates that the oral evidence must be direct evidence. [38] The law is settled that evidence produced in a civil action does not require corroboration. Nevertheless, where there is conflicting oral evidence, it falls upon the Court to assess the credibility of the oral evidence of the witnesses, by reference to the objective facts and documents proved independently of their testimonies. In this case, much of the oral evidence of the Plaintiff and the 1st Defendant, save for the fact S/N ttUrx/Fu30ypvxHcIbJxA they had sexual relations from the end of 2005 until January 2014, conflicts with one another. It is a “he said, she said”— he would say one thing and she would say another. [39] The House of Lords in Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd’s Rep 1 57; [1986] AC 717 held that: " ……….. where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth." [40] In Tindok Besar Estates v Tinjar Co [1979] 2 MLJ 229, [1979] 1 LNS 119, FC, Chang Min Tat FCJ said: ”Judicial perception of the evidence requires that the oral evidence be critically tested against the whole of the other evidence and the circumstances of the case.” [41] In assessing the credibility of a witness’ testimony, Courts recognise that there will always be discrepancies and contradictions in a witness’ testimony, particularly where they have to recall an event that took place a few years prior to the trial. Such discrepancies do not automatically make the witness an unreliable witness and the whole of his/her evidence unacceptable. Charles Ho J (as he then was) in Mohamed Alias v PP [1983] 2 MLJ 172; [1981] 1 LNS 200 said that where there are discrepancies in a witnesses’ testimony, it is for the Court “having observed the demeanour of the witness and after careful consideration of such discrepancies to accept part of the witness’s evidence if it considers them to be true”. [42] However, where a witness demonstrably tells lies, Courts as a matter of prudence must scrutinise the witnesses’ oral evidence with great S/N ttUrx/Fu30ypvxHcIbJxA care and test it against the whole of the evidence and the circumstances of the case. Thomson CJ in Khoon Chye Hin v Public Prosecutor [1961] MLJ 105; [1961] 1 LNS 41 held: “If a witness demonstrably tells lies on one or two points then it is clear that he is not a reliable witness and as a matter of prudence the rest of his evidence must be scrutinised with great care and indeed with suspicion.” [43] The 1st Defendant has demonstrably told lies in this action and in the OS. Her oral admission during the trial to sexual relations with the Plaintiff shows that she had lied in her pleadings. It also shows that she had lied under oath in her affidavits filed in the High Court in the OS, and the appeals to the Court of Appeal and the Federal Court. In the pleadings and in all her affidavits she had denied any sexual relations with the Plaintiff, only to later admit to such sexual relations during the trial of this action. [44] She had also lied to her husband, the 2nd Defendant. Based on the 1st Defendant’s own testimony during the trial, she had carried on her extra-marital sexual relationship with the Plaintiff for more than 6 years — she had brought the Plaintiff into her marital home since Child C was 2 weeks old without the 2nd Defendant’s knowledge. [45] None of these facts were evident from the Defendants’ affidavits in the OS and from their pleadings in this action. The Defendants’ affidavits and pleadings paint a picture of a loving married couple, raising Child C in a strong and secure marriage, and the Plaintiff a bounder aiming to destroy the Defendants’ family unit with his “spurious” claims of sexual relations with the 1st Defendant and his application for a DNA test on Child C. S/N ttUrx/Fu30ypvxHcIbJxA [46] However, the 1st Defendant’s admission during the trial of her sexual relations with the Plaintiff from 2005 to 2014 and her testimony that she was attracted to Plaintiff — so much so that she had considered leaving her husband for the Plaintiff, tells a completely different story. She told this Court that her husband, when home, was very absorbed and focused on Child C — he was so “totally preoccupied” with Child C that he did not see that she too needed his attention. She said that the Plaintiff, in contrast, was focused on her when he was around. However, she decided not to leave her husband for the Plaintiff. She said that she broke-off her relationship with the Plaintiff in January 2014 because upon checking the Plaintiff’s emails and phone, she felt that he was seeing other women and his ex-girlfriends behind her back. In the 1st Defendant’s words expressed during the trial, she had ended her sexual relationship with the Plaintiff in January 2014 because of “his lack of commitment, philandering and womanising character”. [47] The 1st Defendant’s given reason for terminating her relationship with Plaintiff ties in with the Plaintiff’s testimony that the 1st Defendant’s allegation of his alleged infidelity to her was a constant source of argument between him and the 1st Defendant. This was also evident during the trial where she was visibly distraught when asked during cross-examination about the Plaintiff’s flirtatious emails to other female flight attendants in the Malaysian based airlines. [48] Therefore, as the 1st Defendant had demonstrably told lies in this writ action, the OS and the appeals to the Court of Appeal and the Federal Court, this Court as a matter of prudence must scrutinise the 1st Defendant’s oral evidence with great care and test her oral testimony against the whole of the evidence presented during the trial and the S/N ttUrx/Fu30ypvxHcIbJxA circumstances of the case. Section 114 of the EA allows this Court to presume the existence of certain facts which it thinks likely to have happened in relation to the facts of this instant action. [49] The Plaintiff testified that he had visited the 1st Defendant and the Child at hospital after her birth and that he had been involved in the Child’s life since her birth until the Plaintiff stopped his access to her in December Burden of Proof [50] The phrase “burden of proof” comprises of two distinct concepts, namely, (a) legal burden of proof (i.e. the burden of establishing a case), and (b) evidential burden of proof (i.e. the burden of introducing evidence). [51] The Federal Court in International Times & Ors v Leong Ho Yuen [1980] 2 MLJ 86; [1980] 1 LNS 31, FC explained the distinction between legal burden of proof and evidential burden of proof. Delivering the Federal Court’s judgment, Salleh Abas FJ (as he then was) citing the Indian cases of Naanji & Co v Jatashankar Dossa & Ors AIR 1961 SC 1474, 1478 and Raghavamma v Chenchamma AIR 1964 SC 136, 143, referred to the legal burden of proof as “burden of proof” and the evidential burden of proof as “onus of proof”. His Lordship held: “For the purpose of this appeal it is necessary to bear in mind the distinction between the two senses in which the expressions burden of proof and onus of proof are used ( Nanji & Co v Jatashankar Dossa & Ors AIR 1961 SC 1474 1478 and Raghavamma v Chenchamma AIR 1964 SC 136 143). The first sense, signified by the expression burden of proof such as referred to in section 101 of the Evidence Act is the burden of establishing a case and this rests S/N ttUrx/Fu30ypvxHcIbJxA throughout the trial on the party who asserts the affirmative of the issue. …………….. The second sense referred to as onus of proof, on the other hand, relates to the responsibility of adducing evidence in order to discharge the burden of proof. The onus as opposed to burden is not stable and constantly shifts during the trial from one side to the other according to the scale of evidence and other preponderates. Such shifting is one continuous process in the evaluation of evidence. According to section 102 and 103 of the Evidence Act, if the party with whom this onus lies whether initially or subsequently as a result of its shifting does not give any or further evidence or gives evidence which is not sufficient, such party must fail. It is this onus that we are concerned with in the present appeal. [Emphasis added] [52] In a civil suit, the legal burden of proof does not shift from the party that desires the Court to give judgment as to any legal right or liability. As explained by the Singapore Court of Appeal in SCT Technologies Pte Ltd v Wester Copper Co Ltd [2015] SGCA 7; [2016] 1 SLR 1471 (“SCT Technologies”), “once it is established who bears the legal burden of proof, it will remain fixed on the party who bears it throughout the course of the trial, never shifting regardless of the evidence that is led.” The Singapore Court of Appeal in an earlier case of Britestone Pte Ltd v Smith & Associates Far East Ltd [2007] 4 SLR 855; [2007] SGCA 47 (“Britestone”) explained the difference between “legal burden of proof” and “evidential burden of proof” as follows: “[58] The term “burden of proof” is more properly used with reference to the obligation to prove. There are in fact two kinds of burden in relation to the adduction of evidence. The first, designated the legal burden of proof, is, properly speaking, a burden of proof, for it describes the obligation to persuade the trier of fact that, in view of the evidence, the fact in dispute exists. This obligation never shifts in respect of any fact, and only “shifts” in a manner of loose terminology when a legal presumption operates. The second is a burden of proof only loosely speaking, for it falls short of an obligation to prove that a particular fact exists. It is more accurately designated the S/N ttUrx/Fu30ypvxHcIbJxA evidential burden to produce evidence since, whenever it operates, the failure to adduce some evidence, whether in propounding or rebutting, will mean a failure to engage the question of the existence of a particular fact or to keep this question alive. As such, this burden can and will shift.” [Emphasis added] [53] Unlike the legal burden of proof, the evidential burden can shift from one party to the other depending on the evidence that is adduced at trial by either side: see Britestone, SCT Technologies and International Times. The Federal Court in International Times (supra) held: “According to section 102 and 103 of the Evidence Act, if the party with whom this onus lies whether initially or subsequently as a result of its shifting does not give any or further evidence or gives evidence which is not sufficient, such party must fail.” [54] Section 102 of the EA states that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Augustine Paul JC (as he then was) in Aziz bin Muhamad Din v Public Prosecutor [1996] 5 MLJ 473 at 498, HC held that the burden of proof referred to in section 102 of the EA is the burden of introducing evidence. He said: “The burden of establishing a case must be contrasted with the burden of introducing evidence (the evidential burden). The former is governed by s 101 of the Act which states: ……….. The latter is governed by s 102 of the Evidence Act 1950 which states: ,,,,,,,,,,,, The burden of establishing a case rests throughout the trial on the party who asserts the affirmative. However, the burden of introducing evidence in a case shifts constantly as evidence is introduced by one side or the other. The distinction between both the burdens was ably explained by Lee Hun Hoe J (as he then was) in Wong Sieng Ping v PP [1967] 1 MLJ 56 at pp 57-58 ….” [Emphasis added] S/N ttUrx/Fu30ypvxHcIbJxA [55] Lee Hun Hoe J (as he then was) in Wong Sieng Ping v Public Prosecutor [1967] 1 MLJ 56, HC held that the burden of establishing a case rests throughout the trial on the party who asserts the affirmative.

Preamble

Whereas the burden of introducing evidence in a case shifts constantly as evidence is introduced by one side to another. Who bears the legal burden of proof and the evidential burden of proof in this writ action? [56] This action is the Plaintiff’s application for an order for Child C to undertake a DNA test to determine her paternity. It is the Plaintiff’s case that he is the biological father of the Child. Accordingly, pursuant to section 101 of the EA, the legal burden of proof is on the Plaintiff to prove on balance of probabilities a prima facie case that he is the biological father of the Child. [57] However, the evidential burden of proof shifts between the Plaintiff and the Defendants as evidence is introduced by one party to the other. Were there sexual relations between the Plaintiff and the 1st Defendant during Child C’s conception period, especially around September 2007? [58] Based on the Mongelli Study and the Jukic Study, this Court had found that Child C’s conception period was between 13.09.2007 and 20.10.2007. This Court must next determine whether there was, on a balance of probabilities, sexual intercourse between the Plaintiff and the 1st Defendant during the said conception period. S/N ttUrx/Fu30ypvxHcIbJxA [59] The Plaintiff asserts that in August 2007, whilst sleeping in the living room of the 1st Defendant’s sister’s house, he found “pre-wedding” photographs between the 1st and 2nd Defendants tucked in the side-pocket of the sofa. He confronted the 1st Defendant about her status with the 2nd Defendant. He said that she assured him that he had nothing to worry about and that they had a good future. The Plaintiff went on to say that sometime later in the same month, the 1st Defendant told the Plaintiff that the wedding dinner between her and the 2nd Defendant had been booked and cannot be cancelled. The 1st Defendant assured him that the wedding dinner was only a dinner and not a real wedding. She also told him that the photos were included as a part of the wedding dinner payment and that she had taken the photos for the 2nd Defendant’s sake. [60] The Plaintiff says that one night in September 2007, the 1st Defendant seeing that he was upset about the wedding dinner, had suggested that they start their own family. The Plaintiff said that he and the 1st Defendant had sexual intercourse regularly and that from the day they had agreed to have a family together, all their sexual intercourse involved him ejaculating into her. [61] According to the Plaintiff, a few days after they decided to have a child together, the 1st Defendant told him that she was officially married to the 2nd Defendant. He said that although he was very angry with her, he decided to give her time as he still loved her. He said that as the 1st Defendant told him that she never had sex with the 2nd Defendant, he asked her to get an annulment of her marriage with the 2nd Defendant at once. He said the 1st Defendant agreed to annul her marriage and asked him to give her time. However, she did not annul her marriage with the 2nd Defendant. S/N ttUrx/Fu30ypvxHcIbJxA [62] The Plaintiff was asked by his counsel whether he continued to have sexual intercourse with the 1st Defendant after finding out about her marriage with the 2nd Defendant. He answered yes. He was also asked whether he still agreed to have a child with the 1st Defendant even after finding out about her marriage. He answered yes. He said it was because the 1st Defendant had assured him that she was making arrangements for an annulment of her marriage to the 2nd Defendant and that she never had sex with the 2nd Defendant. [63] The Plaintiff said that in January 2008 the 1st Defendant told him that she was pregnant. She told him that he was the father of the child. He was asked by his counsel whether his feelings for the 1st Defendant had changed. He said that it did not but as time passed, he began to have some doubts as to whether the 1st Defendant was telling him the truth. He said that he checked with the 1st Defendant how positive she was that the child was his and the 1st Defendant told him that she was certain. The Plaintiff said that he told the 1st Defendant to get an annulment of her marriage to the 2nd Defendant before her pregnancy was visible. [64] The Plaintiff’s mother (“PW3”) also gave oral evidence that the 1st Defendant had told her that the Plaintiff is the father of the Child. PW3 said that to convince her that Child C is the Plaintiff’s, the 1st Defendant told her that the name “C” was chosen for the Child because it resembles the Plaintiff’s name. [65] The Plaintiff said that when the 1st Defendant’s pregnancy became obvious, he asked her why the 2nd Defendant did not ask her about the pregnancy since he had never had sex with the 1st Defendant. He said that the 1st Defendant told him that it was because after finding S/N ttUrx/Fu30ypvxHcIbJxA out she was pregnant, she had sex with the 2nd Defendant. The Plaintiff said that he was infuriated by her answer. He said that the 1st Defendant realising his anger, told him that it was not the time to build negative energy as it will affect the baby in her womb. She also told him that she had found a regular doctor to attend to her pregnancy and that he did not need to worry about it. [66] In their statement of defence, the Defendants denied that 1st Defendant had suggested to the Plaintiff that they have a child and start a family. The Defendants also denied that the 1st Defendant had sexual intercourse in September 2007, or on occasions thereafter. to allegedly fast track a marriage between the Plaintiff and her. [67] Nevertheless, notwithstanding her admission of a sexual relationship with the Plaintiff from the end 2005 until January 2014, the 1st Defendant maintains that the Plaintiff could not be the biological father of Child C because she did not have any sexual relations with Plaintiff during the months of August, September and October 2007. [68] The 1st Defendant continued to deny that she had told the Plaintiff that he is the father of the Child. However, she admitted that she had told the PW3 that the Plaintiff is the Child’s father. During her examination-in-chief, the 1st Defendant said, “I had called and told his mother that [the Plaintiff] was the father of my baby although this was not true”. [69] The Defendants did not plead in their statement of defence when was the Child was conceived. However, during her examination-in-chief, the Defendants’ counsel, Ms. Kiran Dhaliwal, asked the 1st Defendant the additional question (to be numbered as Q.33A in her witness statement) S/N ttUrx/Fu30ypvxHcIbJxA “When did you did you conceive [Child C]” and the 1st Defendant answered, “end of September 2007.” [70] Counsel for the Plaintiff, Ms. Honey Tan, objected to the introduction by the 1st Defendant of the evidence relating to when the Child was conceived since it was not pleaded, and because it was being introduced through an additional question to the 1st Defendant’s witness statement, after the Plaintiff had closed its case. Ms. Tan cited the case of Aik Ming (M) Sdn Bhd & Ors v Chang Ching Chuen & Ors & Another Appeal [1995] 3 CLJ 639, [1995] 2 MLJ 770, where the Court of Appeal held that the two fundamental rules of procedural fairness requires

a

(a) that the evidence led must be in proof of the pleaded case; and (b) that pursuant to rule in Browne v Dunn [1893] 6 R 67, a party’s case be expressly put to his opponent’s material witness when they are under cross-examination. [71] The Plaintiff was recalled for cross-examination by the Defendants’ counsel on the 1st Defendant’s testimony that Child C was conceived at the end of September 2007. The Plaintiff testified that he did not know when the Child was conceived. He maintained his earlier testimony that he had unprotected sexual intercourse with the 1st Defendant during the months of August, September and October 2007. [72] It is settled law that parties are bound by their pleadings. In Samuel Naik Siang Ting v Public Bank Berhad [2015] 6 MLJ 1; [2015] 8 CLJ 944; [2018] 3 AMR 259, FC (“Samuel Naik”), the Federal Court per Ramly Ali FCJ held: “[29] It is a cardinal rule in civil litigation that parties are bound by their pleadings and are not allowed to adduce facts and issues which they have not pleaded (see: State Government of Perak v. Muniandy [1985] 1 LNS 117; [1986] 1 MLJ S/N ttUrx/Fu30ypvxHcIbJxA 22 490; and Anuar Mat Amin v. Abdullah Mohd Zain [1989] 1 LNS 74; [1989] 3 MLJ 313). In Blay v. Pollard & Morris [1930] 1 KB 628, Scrutton LJ ruled that: "Cases must be decided on the issues on the record; and if it is desired to raise other issues there must be pleaded on the record by amendment." [30] The Supreme Court in Lee Ah Chor v. Southern Bank Bhd [1991] 1 CLJ 667; [1991] 1 CLJ (Rep) 239; [1991] 1 MLJ 428, had also emphasised the importance of pleadings and ruled that where a vital issue was not raised in the pleadings it could not be allowed to be argued and to succeed on appeal (see also Ambank

m

(M) Bhd v. Luqman Kamil Mohammed Don [2012] 3 CLJ 551; [2012] MLJU 56 FC). [73] The 1st Defendant did not plead when Child C was conceived. Therefore, she cannot adduce facts and issues which she had not pleaded: see Samuel Naik (supra). [74] Nonetheless, even if she had pleaded that Child C was conceived at the end of September 2017, it is a fact within her particular knowledge.

Preamble

Pursuant to section 103 of the EA, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence. Section 103 of the EA states: “103. Burden of proof as to particular fact 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 the proof of that fact shall lie on any particular person. [75] Additionally, section 106 of the EA states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon her. Section 106 of the EA states: “106. Burden of proving fact especially within knowledge When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” S/N ttUrx/Fu30ypvxHcIbJxA [76] The 1st Defendant wants this Court to believe that the Child was conceived at the end of September 2007. Therefore, pursuant to section 103 and section 106 of the EA, she must prove on a balance of probabilities that Child C was conceived at the end of September 2007. Her bare averment is insufficient to prove on a balance of probabilities that Child C was conceived at the end of September 2007. [77] The 1st Defendant did not provide any evidence to support her testimony that the Child was conceived at the end of September 2007. She did not produce any evidence as to when her last menstrual period (LMP) was prior to the conception of Child C. Such information would normally be recorded by her obstetrician/gynaecologist during her first consultation to enable the doctor to ascertain the possible “due date” for the birth of the Child. [78] She also did not call her obstetrician/gynaecologist as a witness to produce the medical records and to testify whether an ultrasound was conducted on her, what was the due date assigned for Child C’s birth and whether the due date was premised either by the 1st Defendant’s last menstrual period (LMP) or by ultrasound results. As the Jukic Study shows from the assigned “due date” of birth, there is a variation of 37 days of actual birth of the child in a healthy pregnancy. In this case, there was also no evidence provided as to whether the 1st Defendant’s pregnancy of Child C was healthy or otherwise. The only evidence before this Court was that the 1st Defendant delivered Child C by way of a caesarean section on 23.06.2008. S/N ttUrx/Fu30ypvxHcIbJxA [79] The Plaintiff’s case is that he had sexual intercourse with the 1st Defendant in August, September and October 2007 but he does not know exactly when the child was conceived. [80] The 1st Defendant during her examination in chief testified that she could not have met with the Plaintiff in August, September and October 2007 because in August 2007, the 2nd Defendant “was able to take annual leave for almost a month to be back in KL and help me with our wedding banquet preparations”, and the 2nd Defendant was regularly home in September 2007. She said that in September 2007, she and the 2nd Defendant were very busy sending out their wedding invitations. And that the 2nd Defendant and her would go together to hand deliver the formal invitations to their relatives and friends throughout September 2007 right into mid-October 2007. She said, “There was just no time to meet [the Plaintiff] from August 2007 right through till after our wedding banquet”. [81] However, under cross-examination, the 1st Defendant admitted that the 2nd Defendant was not with her every day in August 2007 because she was also flying. She also admitted that the 2nd Defendant was not with her every day in September 2007 and October 2007. [82] During re-examination by her counsel, the 1st Defendant said that she was with the 2nd Defendant from August because it was his birthday month, and he took leave. She said that if she was not with the 2nd Defendant, she was off to work. As for September 2007, she said that the 2nd Defendant was back “earlier of the month” and then from 22.09.2007. She said that 22.09.2007 was the date of their “wedding banquet food tasting at the restaurant”, and that on 25.09.2007 she and the 2nd S/N ttUrx/Fu30ypvxHcIbJxA Defendant went to Jaya Jusco One Utama to buy wine, which they carried to the restaurant. She said that on the following days, she and the 2nd Defendant went to Cheras together to deliver their invitation cards to her relatives. [83] The 1st Defendant’s testimony during cross-examination and re-examination, contrasts with her testimony during her evidence in chief. In her evidence in chief, the 1st Defendant said that she and the 2nd Defendant went together throughout September 2007 right into mid-October 2007 to hand deliver formal invitations to their relatives and friends. [84] However, during her re-examination, she said that in September 2007, the 2nd Defendant was only back during “earlier in month” and from 22.09.2007 onwards, instead of the whole month of September 2007. [85] The 2nd Defendant under cross-examination testified that he was not physically together with the 1st Defendant for the whole month of August 2007. He said that in September 2007, he was with the 1st Defendant for three quarters of the month and that in October 2007, he was also with the 1st Defendant for three quarters of the month. When asked by the Plaintiff’s counsel, the 2nd Defendant said that when he was with the 1st Defendant in the months of August, September and October 2007, he was with her for 24 hours a day except for “toilet and other breaks”. [86] The Defendants wish this Court to believe that they were together during the month of August, September and October 2007. However, the analysis below of their oral evidence shows that this is not in fact true: S/N ttUrx/Fu30ypvxHcIbJxA

a

(a) August 2007 The 2nd Defendant said that he was with the 1st Defendant for the whole month of August 2007. Whereas the 1st Defendant said that they were not together for the whole month of August, September and October since she was also flying.

b

(b) September 2007 The 2nd Defendant said that he was with the 1st Defendant for the three quarters of the month of September 2007. The 1st Defendant stated in her witness statement that they were delivering invitation cards throughout “September until mid-October 2007”. But under cross-examination, the 1st Defendant admitted that she was not with the 2nd Defendant for the whole month of September. And during re-examination, the 1st Defendant said that in September 2007, the 2nd Defendant was back in KL “earlier of the month” and from 22.09.2007. [87] As discussed in para. [75] above, section 106 of the EA provides that “when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.” [88] Augustine Paul JC (as he then was) in Public Prosecutor v Hoo Chee Keong [1997] 2 CLJ SUPP 357; [1997] 4 MLJ 451 explained section 106 is an exception to section 101 of the EA. He said: “This section is an exception to s.101 of the Evidence Act 1950 which lays down the general rule that in a criminal case the burden of proof is on the prosecution and this provision is not intended to relieve it of that duty. It is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are S/N ttUrx/Fu30ypvxHcIbJxA 'especially' within the knowledge of the accused and which he could prove without difficulty or inconvenience.” [89] The Federal Court in Pendakwa Raya v Gan Boon Aun [2017] 3 MLJ 12, [2017] 3 AMR 164, FC referred to section 106 as an “enigmatic” section. The Court held: “[19] Section 106 of the EA which provides ‘When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him’ is a further exception. This enigmatic section is intended to address exceptional circumstances in which it would not be possible or particularly difficult for a party (‘the first party’) to prove a fact which is only known to the other party (‘the second party’), or which can be accessed by the second party with relative ease but cannot be accessed by the first party without considerable difficulty” [90] The dates on which the 1st Defendant was flying and when the 2nd Defendant was flying in the months of August, September and October 2007, and when the 2nd Defendant took leave in August 2007, when he was back in KL in August, September and October 2007, and when he and the 1st Defendant were together in those months are within the personal knowledge of the Defendants. Thus, under section 106 of the EA, the evidential burden of proof is on the Defendants to prove these facts. [91] Nonetheless, during the trial, the Defendants did not produce their flight rosters for the month of August, September and October 2007 to show when they were flying in those months. They also did not produce any documents to prove the days on which the 2nd Defendant was on leave in August 2007. S/N ttUrx/Fu30ypvxHcIbJxA [92] In light of the discrepancies in the Defendants’ oral testimonies as to when they were together in the month of August, September and October 2007 and their failure to provide their flight rosters for that period and any documentary evidence of the 2nd Defendant’s leave approval for August 2007, I find that the Defendants had failed to discharge their evidential burden of proof as regards the dates that the 2nd Defendant is back in KL in the months of August, September and October 2007. [93] The obvious discrepancy between the 1st Defendant’s and the 2nd Defendant’s oral testimonies, and the 1st Defendant’s own testimony during her evidence in chief, cross examination and re-examination means that they have failed to prove their case that the 1st Defendant was with the 2nd Defendant for the whole month of August, September and October 2007. [94] Applying the inference under section 114 of the EA, I also find that the 2nd Defendant’s claim that he was with the 1st Defendant for 24 hours a day except for “toilet and other breaks” when he was back in KL during the months of August, September and October 2007 to be highly improbable. [95] The 1st Defendant had told this Court that she would meet up with the Plaintiff when both the Plaintiff and the 1st Defendant were in the country and the 2nd Defendant was out of the country on his flight duties. Thus, her clarification during re-examination that the 2nd Defendant was back in KL “earlier of the month” of September and from 22.09.2007, means that there are several days in September 2007 between “earlier of the month” and 22.09.2007 (“the unaccounted days”) that the 1st S/N ttUrx/Fu30ypvxHcIbJxA Defendant and the Plaintiff could have met up and engaged in sexual intercourse. [96] The fact that “the unaccounted days” in September 2007 falls within the conception period of Child C, goes to support the Plaintiff’s case that on a balance of probabilities there were sexual relations between him and the 1st Defendant during the conception period, especially around September 2007. [97] Accordingly, based on the evidence before this Court, I find that the Plaintiff has discharged his legal burden of proof that on a balance of probabilities that he had sexual intercourse with the 1st Defendant during Child C’s conception period, particularly in September 2007. [98] On the Defendants’ issue to be tried of whether there was access and therefore sexual relations between the 1st Defendant and 2nd Defendant at the time the Child was conceived, the Court of Appeal in CAS v MPPL & Anor (No.1) had held that as section 112 of the EA does not prevent enquiry into paternity, there is no need to prove “non-access” by the 2nd Defendant to the 1st Defendant. It follows that the proof of access by the 1st Defendant’s husband i.e., the 2nd Defendant to the 1st Defendant does not disprove the Plaintiff’s claim that he had sexual intercourse with the 1st Defendant during the Child’s conception period. The fact that the 2nd Defendant had access and sexual intercourse with the 1st Defendant at the time Child C was conceived does not in any way cancel or extinguish any proof that the Plaintiff too had access and sexual intercourse with the 1st Defendant during the Child’s conception period. S/N ttUrx/Fu30ypvxHcIbJxA Was the Plaintiff told by the 1st Defendant that he is the biological father of the Child? [99] To support his case, the Plaintiff claims that the 1st Defendant had told him on a number of occasions that he is the biological father of the Child. He also said that he had checked with her how positive she was that the Child that she was carrying was his and she had told him that she was certain that he is the father of the Child. [100] The Plaintiff had given direct oral evidence that the 1st Defendant had told him that he is the biological father of the Child. His mother, PW3 had also given direct oral evidence that the 1st Defendant had told her that the Plaintiff is the father of the Child. PW3 said that to convince her that Child C is the Plaintiff’s, the 1st Defendant told her that the name “C” was chosen for the Child because it resembles the Plaintiff’s name. [101] The Defendants in their statement of defence denied that the 1st Defendant had told the Plaintiff that he was the biological father of Child C. [102]

Preamble

Pursuant to section 101 and 102 of the EA, the burden of proof and the onus of providing the evidence is on the Plaintiff to prove, on a balance of probabilities, that the 1st Defendant had told him that the Child was his. This is because the Plaintiff would fail to prove his claim if no evidence at all were given on either side. [103] During the trial, the 1st Defendant continued to deny that she had told the Plaintiff that he is the father of the Child. But she admitted that she had told PW3 that the Plaintiff is the Child’s father. During her examination-in-chief, the 1st Defendant said “I had called and told his S/N ttUrx/Fu30ypvxHcIbJxA mother that [the Plaintiff] was the father of my baby although this was not true”. [104] The fact remains that PW3 had given direct oral evidence in Court that the 1st Defendant had told her that the Plaintiff is Child C’s father and that she had told PW3 that the Child was named “C” because it resembles the Plaintiff’s name. The 1st Defendant admitted that she had told PW3 that the Plaintiff is the Child’s father but claims that what she had told PW3 is not true. [105] The question for this Court is when did the 1st Defendant lie? Did she lie when she told PW3 that the Plaintiff is the father of the Child. Or did she lie during the trial when she said what she had told PW3 was not true. [106] The challenge this Court faces is that the 1st Defendant has told so many untruths — not only to this Court, but also to the Court of Appeal and the Federal Court — that it is difficult to tell what she says is true or untrue from her demeanour alone. Additionally, based on her own testimony, she had successfully carried out an extra marital relationship with the Plaintiff for over 6 years without her husband knowing. [107] Therefore, this Court must consider all the other available evidence and the conduct of the parties against the oral testimonies of the witnesses in order to decide whether the Plaintiff has discharged his burden of proving that the 1st Defendant had told him that the Child is his. [108] The 1st Defendant’s email to the Plaintiff dated 30.04.2008 (page 267 of Bundle C3, forming part of the documents marked collectively as exhibit “P1”) shows her asking him whether he would like to take her out S/N ttUrx/Fu30ypvxHcIbJxA for dinner on 26.05.2008, approximately a month before Child C’s birth. The email reads as follows: “Hi [Plaintiff]. TQ for sending me your roster .. would you be free on the 26th after your arrival from medan? Would you like to bring me out for dinner? Well, it’s a month time from now, and I hope [C] is not too eager to come out yet!” [109] The Plaintiff in his email dated 4.5.2008 replied that he is “very happy to leave my time free” and asked her “would you like us to meet on the 26th night or the 27th night?” The 1st Defendant in her email dated 20.05.2008 informed the Plaintiff that she is craving for kebab and houmous. The Plaintiff in his reply on the same day suggested that they go to the Turkish Restaurant at Le Meridien. The 1st Defendant replied on 21.05.2008 that since the Plaintiff was bringing her to a 5-star hotel, she would have to wear a dress “but please don’t ask me to lift up my dress to see [C].” [110] Both her emails of 30.04.2008 and 21.05.2008 show that she had told the Plaintiff that the baby she is carrying is a girl and that the baby’s name is “C”. [111] In her witness statement at A23, the 1st Defendant said that she and the 2nd Defendant were informed by the doctor on 03.03.2008 that she was expecting a baby girl. She said that the 2nd Defendant and her mutually agreed that they should name the baby “Cay---". She said that they had added the middle name “A---na” for the Child because she had always liked the name “A----ra”. She said “I wanted my baby’s name to be connected to mine. I have been using the name “M--- A---ra” for my email address and on the credit cards since before I met the 2nd Defendant.” S/N ttUrx/Fu30ypvxHcIbJxA [112] The name C is almost similar in pronunciation with the Plaintiff’s first name – the only difference is the “ay” in Child C’s name from the “o” in the Plaintiff’s first name. Both the Plaintiff’s name and the Child’s name are 2 syllables: the first syllable of the Plaintiff’s first name is “Co---” and the Child’s first name is “Cay---“. The 2nd syllable of their names, although spelt differently, is pronounced the same. [113] The Plaintiff further claims that he had been involved in Child C’s life since her birth until the 1st Defendant stopped his access to the Child in December 2013. He testified that he saw the Child on the third day of her birth when the 1st Defendant invited him to the hospital. [114] In an email dated 10.02.2009 (at page 286 of Bundle C3, part of the correspondence between the Plaintiff and the 1st Defendant, collectively marked as “P1”), the 1st Defendant signed off the email as “your wife-to-be and daughter”. [115] Under cross-examination, the 1st Defendant admitted that Child C called the Plaintiff “D”, which stands for “Daddy”. However, she tried to explain it away by saying that although the Child called the Plaintiff “D” for “Daddy”, it was for the future as to when she and the Plaintiff had a life together. She says that the Child refers to the 2nd Defendant as “Papa”. [116] However, the fact that the Child C refers to the Plaintiff as “Daddy” can also be seen from the Valentine’s card from the 1st Defendant to Plaintiff (on page 693 of Bundle C2, marked as exhibit “P2”). In the Valentine’s card, the 1st Defendant wrote “Only for you [the Plaintiff’s middle name] honey ………..You Are the Only Valentine for Me, with all my heart to you [the 1st Defendant’s Chinese name] SLK”. On the next page of the Valentine’s card, the 1st Defendant wrote “Dearest: [the S/N ttUrx/Fu30ypvxHcIbJxA Plaintiff’s middle name] honey. She wrote a long message declaring her love for the Plaintiff and signed it off “I love you, [the Plaintiff’s middle name], [her 1st name], [Child C] love you, daddy.” [117] The Plaintiff had testified that the 1st Defendant and him had nicknames for each other – “Sweetie Lou Por (SLP)” and “Honey Lou Koong (HLK)” and that they had signed off notes to each other with the initials “SLP” and “HLK”. This can be seen in their emails to each other and in the Valentine’s card in exhibit “P2”. [118] The fact that the Plaintiff is referred to as “Daddy” by the Child is also evidenced from the scrap book that the 1st Defendant had put together (in pages 690-692 of Bundle C2, marked as exhibit “P17”) after their holiday in Kuantan in October 2008. It was entitled “The Story of Our Family”. The Plaintiff was referred to “Daddy”, the 1st Defendant as “Mommy” and Child C as “Little Girl”. On the last page of the scrap book, the 1st Defendant had written: LITTLE GIRL C.A.S MOMMY M.A.S DADDY C.A.S [119] Their names were written in full in the scrap book, where the 1st Defendant had adopted the Plaintiff’s surname “S” for both her and Child C. Not only is Child C’s first name almost similar in pronunciation with the Plaintiff’s but with the use of Plaintiff’s surname, their initials are the same. [120] On the “Happy Father’s Day” card on page 694 of Bundle C3 (marked as exhibit “P18(a)”) from the Child to the Plaintiff, it is written “This is to Certify that C.A.S. is the “World’s Most Loving Daddy”. You are S/N ttUrx/Fu30ypvxHcIbJxA fantastic, cool, funny, thoughtful, patient, charming & brilliant. Thank you for being so understanding. And for your unconditional love. Happy Father’s Day”. The card is signed off with the Child’s first name “C”. [121] The evidence shows that the Plaintiff and the 1st Defendant celebrated the Child’s 1st birthday together (see the photographs in exhibit “P31”) with friends at McDonalds restaurant. The photograph at page 309 of Bundle C4 (part of exhibit “P31”) shows that the words iced on the Child’s birthday cake was “HAPPY BIRTHDAY C.A.S.” The cake was not iced with the Child’s name on her birth certificate (in exhibit “D76”), which is “C.A.H.Y.W.” “S” is the Plaintiff’s surname. The “H” in the Child’s name in her birth certificate is her legal surname and the 2nd Defendant’s surname. [122] Additionally, the 1st Defendant’s WhatsApp message to the Plaintiff on 21.05.2013 (part of exhibit “P3” in Bundle B3) shows that 1st Defendant had wished the Plaintiff “happy parents day”. [123] Based on the available evidence before me, I find that it is improbable that if the 1st Defendant had not told the Plaintiff that he is the father of the Child, she would tell him the unborn Child’s name whilst she was still pregnant (as she did in her emails of 30.04.2008 and 21.05.2008), and that she would name the Child with a name so similar to that of the Plaintiff’s, where the only difference between the pronunciation of the Plaintiff’s name and the Child’s name is the “o” in the first syllable of the his name and the “ay” in the 1st syllable of her name. It is also highly improbable for a woman to refer to a man as “Daddy” to her child, to send him a “Happy Father’s Day Card” signed-off by the child, and to wish him S/N ttUrx/Fu30ypvxHcIbJxA “Happy Parent’s Day” in her text message to him, if she had not told the said man that he is the father of her child. [124] Furthermore, it is highly improbable for a woman who has not told a man that he is the father of her child to send him a Valentine’s Card which is signed off by the said child with the words “love you, Daddy”, to prepare him a scrapbook of their holiday together where the Child’s name is written as “C.A.S.” — where she adopts his surname and where he is referred to as “Daddy”, and to celebrate the Child’s 1st birthday together with friends in public, where the Child’s name on the birthday cake was iced as “C.A.S.” — again adopting his surname instead of her actual surname. [125] I find that these documents and photographs, together with the fact that (a) she had invited the Plaintiff to the hospital after the birth of the Child, particularly since she said that he was the only non-family member who had visited her and the Child in the hospital, (b) that she had invited him to into her matrimonial home 2 weeks after the Child’s birth after the 2nd Defendant had gone back to work in Singapore, and (c) that she told the Plaintiff’s mother that the Plaintiff is the Child’s father, proves on a balance of probabilities, that she had told the Plaintiff that he is the father of the Child. [126] For these reasons, I find that the Plaintiff has discharge his burden of proving on a balance of probabilities that the 1st Defendant had told him that he is the father of Child C. S/N ttUrx/Fu30ypvxHcIbJxA Did the Plaintiff have access to the Child after her birth and was involved in her life, until December 2013? [127] The Defendants in their defence deny that the Plaintiff had access to Child C and that he was involved in her life until the 1st Defendant stopped his access to her in December 2013. In paragraph 7 of her affidavit in support of her application to strike out the Plaintiff’s OS in the High Court (affirmed on 20.11.2015), the 1st Defendant averred that during the Child’s birth she stayed in the hospital for 3 days and that the 2nd Defendant stayed overnight in the hospital throughout. [128] However, during the trial, the 1st Defendant admitted that the Plaintiff had visited her and the Child at the hospital on 25.06.2008 and that the Plaintiff was her only friend i.e., non-family member that had visited her at the hospital after the Child’s birth. Her admission corroborates the Plaintiff’s testimony that he had visited the 1st Defendant on the third day of the Child’s birth when the 1st Defendant invited him to see her at the hospital. It also shows that her averment in the OS that the 2nd Defendant had stayed throughout her 3-day hospital stay was untrue. It is implausible for the 2nd Defendant to have been at the hospital with the 1st Defendant during the Plaintiff’s visit with the 1st Defendant and the Child. [129] The fact that the Plaintiff had visited the 1st Defendant and the Child at hospital after her birth was corroborated by the Plaintiff’s mother, PW3. PW3 testified that the 1st Defendant had told her that the Plaintiff had visited her at the hospital after the Child was born. PW3’s testimony on this fact was not challenged by the Defendants’ counsel during cross-examination. S/N ttUrx/Fu30ypvxHcIbJxA [130] In this writ action, the Plaintiff had produced before this Court photographs and videos of the Plaintiff with the 1st Defendant and the Child, which he says were deleted by the 1st Defendant from the Plaintiff’s laptop and phone. The Plaintiff said that after the hearing of his appeal at the Court of Appeal, with the use of retrieval software, he managed to retrieve many of these photographs. The Plaintiff’s testimony that the 1st Defendant had deleted the photographs and videos and that the Plaintiff had retrieved them were not challenged during cross-examination. [131] He said that about 85% of the photographs and videos were recovered. Under cross-examination, he agreed with the Defendants’ counsel suggestion that approximately 90% of the deleted photographs and videos were recovered. Also exhibited are photographs which the Plaintiff said were sent to him by the 1st Defendant, and emails and WhatsApp messages between the Plaintiff and 1st Defendant. [132] Only photographs and videos that have been admitted as evidence and marked as exhibits during the trial, are referred to in this judgment. § June 2008 [133] The photograph of the Plaintiff and the Child at the top of page 269 of Bundle C1 shows the Plaintiff with the Child as baby wrapped up in a blanket in what appears to be a hospital cot. At the hearing before this Court on 10.07.2019, counsel for the Plaintiff and the Defendants agreed by consent to admit this photo as evidence and for the photo to be marked as exhibit “P58”. The is no metadata/EXIF information of the photograph showing the date. However, based on the photo and the fact that Child C was born on 23.06.2008, on a balance of probabilities, this S/N ttUrx/Fu30ypvxHcIbJxA photo was taken in June 2008 when the Plaintiff visited the Child and the 1st Defendant at the hospital after the Child’s birth. § July 2008 [134] The photographs at the bottom of page 269 and on pages 271 and 274 of Bundle C1 (part of the photographs marked collectively as exhibit “P7”) shows the Plaintiff sitting on a sofa feeding the Child from a milk bottle. The metadata/EXIF information of the photographs show that they were taken on 11.07.2008. [135] The photographs at pages 277 of Bundle C2 (part of the photographs marked collectively as exhibit “P7”) shows the Plaintiff sitting in a sofa and holding up the Child. The metadata/EXIF information of the photographs show that they were taken on 11.07.2008. [136] The photographs at pages 280 and at the top of page 298 of Bundle C1 (part of the photographs marked collectively as exhibit “P7”) shows the Plaintiff feeding the Child, and the photographs at pages 286, 289, 292 and 295 (part of the photographs marked collectively as exhibit “P7”) shows the Plaintiff sitting on a sofa holding the Child. The metadata/EXIF information of the photographs show that they were taken on 12.07.2008. [137] The photograph at the bottom of page 298 and on pages 301, 303, and 307 (part of the photographs marked collectively as exhibit “P7”) shows the Plaintiff holding the Child next to a baby’s cot and the photograph at page 310, shows the Plaintiff leaning into a baby’s cot with the Child laying inside the cot. The metadata/EXIF information of the photographs show that they were all taken on 13.07.2008. S/N ttUrx/Fu30ypvxHcIbJxA § September and October 2008 [138] The photographs of the Plaintiff and the Child at pages 313 to 377 of Bundle C1 (part of the photographs marked collectively as exhibit “P8”) shows the Plaintiff carrying the Child either in a baby-carrier or in his arms at shopping centres and at restaurants. The metadata/EXIF information of the photographs show that they were taken on 27.09.2008, 02.10.2008,

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12.10.2008, 16.10.2008. [139] The photographs at pages 364, 367, 370 and at the top of page 373 of Bundle C1 (part of the photographs marked collectively as exhibit “P8”) shows the Plaintiff sitting on a bed and feeding the Child. The metadata/EXIF information of the photographs show that they were taken on 17.10.2008. § Trip to Kuantan from 25 to 27 October 2008 [140] The emails at pages 278 and 279 of Bundle C3 (marked collectively as part of exhibit “P1”) shows that the Plaintiff, the 1st Defendant and the Child stayed at the Hyatt Regency Kuantan Resort from 25 to 27 October 2008. The Plaintiff in his email dated 19.10.2008 to the Hyatt Regency Kuantan Resort (on page 279 of Bundle C3) stated that he would like to book a stay at the hotel from 25 to 27 October 2008 and he had referred to the 1st Defendant and the Child in the email as “my wife and baby girl.” [141] The photographs at pages 378 to 428 of Bundle C1, (marked collectively as exhibit “P9”) show that the Plaintiff and the 1st Defendant went on a holiday to Kuantan, together with Child C. The metadata of the photographs show that they were taken on 25, 26 and 27 October 2008, which ties with their stay at the Hyatt Regency Kuantan Resort. S/N ttUrx/Fu30ypvxHcIbJxA [142] The air stewardess in the photographs at page 426 of Bundle C1 at exhibit “P9”, testified in Court as the fourth witness for the Plaintiff (“PW4”). PW4 said that she was a leading stewardess around October

2008

She said that she met the Plaintiff, the 1st Defendant and Child C on the flight from Kuantan. She said that they were sitting in the business class section of the plane. PW4 confirmed that she was in the airlines uniform in the photograph at page 426 of Bundle C3. PW4 said that she was quite shocked to see the Plaintiff, the 1st Defendant and the Child together because as she knew the 1st Defendant was married to another pilot from the Singapore-based airlines and not the Plaintiff. She said that she thought that the 1st Defendant has ended her relationship with the Singapore-based airline pilot and started a family with the Plaintiff. She said that she had a quick chat with the 1st Defendant on the flight, who told PW4 that she had resigned from the Malaysian-based airline to concentrate on the care of their baby. [143] The photographs at the bottom of page 373 and page 376 (part of the photographs marked collectively as exhibit “P8”) shows the Plaintiff carrying the Child in a baby carrier outside a restaurant. The metadata/EXIF information of the photographs show that they were taken on 28.10.2008. § November and December 2008 [144] The photographs at pages 429 and 452 of Bundle C1 (part of the photographs marked collectively as exhibit “P10”) show the Plaintiff together with the 1st Defendant and the Child. The metadata/EXIF information of the photographs show that they were taken on 21.11.2008,

27

27.11.2008, 01.12.2008, 06.12.2008. The photograph at the bottom of page 429 shows the Plaintiff and the 1st Defendant next to each other on S/N ttUrx/Fu30ypvxHcIbJxA platform in a shopping centre with the 1st Defendant’s arm on the Plaintiff’s thigh with the Child sitting between them, on the Plaintiff’s thigh. The photographs on page 435 and 438 shows the Plaintiff and the Defendant standing next to each other in front of the platform decorated with the Christmas trees, where on page 435 the 1st Defendant’s arm wrapped around the Plaintiff’s waist and the Plaintiff holding the Child, and on page 438 the Plaintiff had his hand wrapped around the 1st Defendant’s waist. § December 2008 [145] The photographs on page 441 and at the top of page 444 of Bundle C1 (part of the photographs marked collectively as exhibit “P10”), which based on metadata/EXIF information of the photographs show that they were taken on 01.12.2008, show the Plaintiff, the 1st Defendant and the Child at a restaurant table, where the Plaintiff and the 1st Defendant were sitting next to each other and the Child between them – where in the photograph at the bottom of page 441 and at the top of page 444, the Plaintiff had his arms around the 1st Defendant’s shoulder and the Child asleep in her arms. [146] The photographs at the bottom of page 444 shows the Plaintiff asleep on the bed with the Child and on the photographs on pages 447 and 450 shows the Plaintiff with the Child on the bed. The metadata/EXIF information of the photographs show that they were taken on 06.12.2008. § January 2009 [147] The photographs on pages 453 to 470 of Bundle C3 (marked collectively as exhibit “P11”) shows the Plaintiff, the 1st Defendant and the Child on holiday in Genting Highlands. The metadata/EXIF information of S/N ttUrx/Fu30ypvxHcIbJxA the photographs show that they were taken on 01.01.2009 - New Year’s Day of 2009. [148] The photographs at pages 471 to 637 of Bundle C2 are marked collectively as exhibit “P12”. The photographs on pages 471 and 471 shows the Plaintiff sitting on a sofa in a home with the Child on him. The photographs on pages 477 and the top of page 480 are “selfies” of the Plaintiff and the 1st Defendant and the Child on the same sofa. The metadata/EXIF information of the photographs show that they were taken on 13.01.2009. [149] The photograph at the bottom of page 480 shows the Plaintiff carrying the baby in front of him on a baby carrier. The metadata/EXIF information of the photographs show that they were taken on 14.01.2009. [150] The photographs at page 483, 486 and at the top of page 489 shows the Plaintiff sitting with the Child in his arms on a sofa. The metadata/EXIF information of the photographs show that they were taken on 20.01.2009. § February 2009 [151] The photograph at the bottom of page 489 shows the Child sleeping next to the 1st Defendant on a bed. The metadata/EXIF information of the photographs show that they were taken on 02.02.2009 at around 6pm. The photographs on pages 492, 495, 498 and the top of page 501 shows the Plaintiff sitting with the Child on his lap on a bed. The metadata/EXIF information of the photographs show that they were taken on 03.02. 2009 in the morning at around 10am. The photographs at the bottom of page 501 and pages 504, 507 and 510 shows the Plaintiff and the Child in a “soft-play” gym/play area for babies. The metadata/EXIF S/N ttUrx/Fu30ypvxHcIbJxA information of the photographs show that they were also taken on 03.02.2009 but in the afternoon at around 3.30pm. [152] The photographs at pages 513 and the top of page 516 shows the Plaintiff in a red mandarin-collared shirt and the Defendant in a cheongsam at home. The metadata/EXIF information of the photographs show that they were taken on 04.02.2009 at around 1.30pm. The photograph at the bottom of page 516 shows the Plaintiff holding the Child on a seesaw with a swimming pool and apartment block in the background. The metadata/EXIF information of the photographs show that they were taken on the same day as the photo of them in festive clothes on 04.02.2009 but at the later time of 3.41pm. [153] The photographs at page 519 and 522 shows the Plaintiff feeding the Child who is sitting in baby-walker in a living room of a home. The metadata/EXIF information of the photographs show that they were taken on 13.02.2009 at around 1.22pm. § March 2009 [154] The photographs at page 525 and the top of page 528 shows the Plaintiff carrying the Child in a building, which states “Department of Civil Aviation” on the wall. The metadata/EXIF information of the photographs show that they were taken on 30.03.2009 at around 3.25pm. The photograph at the bottom of page 528 shows the Plaintiff with the Child on his lap sitting in a restaurant. The metadata/EXIF information of the photograph show that it was taken on 30.03.2009 at around 2.40pm. [155] The photograph at the top of page 351 shows the Child on a bed with a hand on her ear. The metadata/EXIF information of the photograph show that it was taken on 26.03.2009 at 10.56am. The photographs at the S/N ttUrx/Fu30ypvxHcIbJxA bottom of pages 528 and 534 show the Plaintiff with the Child in a restaurant. The metadata/EXIF information of the photographs show that they were taken on 26.03.2009 at 6.21pm. The photograph at the top of page 537 shows the Plaintiff, the 1st Defendant and the Child (in the same restaurant as the photographs at pages 528 and 534) with the 1st Defendant holding a bouquet of flowers and the Plaintiff’s arm around the 1st Defendant. The metadata/EXIF information of the photograph show that it was taken on 26.03.2009 at 6.30pm. [156] The photograph at the bottom of page 537 shows the Plaintiff carrying the Child outside a supermarket and the photographs at page 540 shows the Plaintiff the Child in a supermarket. The metadata/EXIF information of the photographs show that they were taken on 27.03.2009 at 8.49pm. [157] The photograph at the top of page 543 shows the Plaintiff bending over the Child who is a pram, next to 3 plastic bags of shopping full of toys in front of an elevator. The metadata/EXIF information of the photographs show that they were taken on 28.03.2009 at 11.12am. [158] The photographs on the bottom of pages 543, 546 and 549 show the Plaintiff in a t-shirt and boxer shorts sitting on a playmat in a living room playing with the toys with the Child. The metadata/EXIF information of the photographs show that they were taken on 28.03.2009 at between 5.31 and 5.42pm. § April 2009 [159] The photograph at the top of the page 555 shows the Plaintiff carrying the Child in a living room with 2 people eating in the background S/N ttUrx/Fu30ypvxHcIbJxA – it is not clear who these 2 people are. The metadata/EXIF information of the photograph show that it was taken on 21.04.2009 at 2.38pm. § May 2009 [160] The photographs at the bottom of pages 555, 558 and the top of page 561 shows the Child drinking out of a bottle on the Plaintiff’s lap. The metadata/EXIF information of the photographs show that they were taken on 13.05.2009 at 4.36pm. [161] The photograph at the bottom of page 561 shows the Plaintiff and the 1st Defendant with the Child on the Plaintiff’s arm standing in front of what appears to be a restaurant. The metadata/EXIF information of the photograph show that it was taken on 13.05. 2009 at 7.08pm. § The Plaintiff’s birthday in May 2009 [162] The photographs at the bottom of the page 564 and on page 567 shows the Plaintiff, the 1st Defendant and the Child sitting around a dining table in a living room with party hats and a slice cake with one candle on it. The Plaintiff and the 1st Defendant were wearing t-shirts and shorts. The metadata/EXIF information of the photograph show that it was taken on 26.05.2009 at 9.45pm and 9.47pm. [163] The photograph at the page 564 shows the Plaintiff with his arm wrapped around the 1st Defendant and the Child in the 1st Defendant’s arm in front of a doorway with a curtain. The metadata/EXIF information of the photograph show that it was taken on 27.05.2009 at 6.55pm, which is the Plaintiff’s birthday. [164] The photographs on page 570 shows the Plaintiff and the 1st Defendant only siting around the same around the same dining table in S/N ttUrx/Fu30ypvxHcIbJxA the same living room as the photo taken on 26.05.2009, wearing party hats and bigger slice of case with more candles on it. The Plaintiff was wearing the same t-shirt and shorts that he wore in photo of them with the Child taken the day before. The 1st Defendant was wearing a different t-shirt and she does not appear to be wearing any bottoms. The metadata/EXIF information of the photographs show that they were taken on 27.05.2009 at 10.10pm and 10.13pm. [165] The photographs on pages 573 and 576 were of the Plaintiff carrying the Child in a zoo – there are animals in enclosures behind them in photos. The metadata/EXIF information of the photographs show that they were taken on 28.05.2009 from 3.13pm to 5.16pm. [166] Based on these photos, it appears that the Plaintiff had spent his birthday with the 1st Defendant and the Child from 26 to 28 May 2009. § June 2009 [167] The photographs on page 579 of Bundle C2 (part of the photographs marked collectively as exhibit “P12”), shows the Plaintiff kneeling besides the Child who is in a stroller in in what appears to be a shopping centre. The metadata/EXIF information of the photographs show that they were taken on 11.06.2009 at 3.04pm. The photographs in pages 582, 585 and 588 shows the Plaintiff carrying the Child in front of a clothing shop. The metadata/EXIF information of the photographs show that they were taken on 11.06.2009 at 3.59pm. [168] The photographs on pages 309, 312, 315, 318, 321, 324, 327 and 330 of Bundle C4 (marked collectively as exhibit “P31”) shows the Plaintiff, the 1st Defendant and the Child celebrating the Child’s 1st birthday with a group of friends and their children at McDonalds. The metadata/EXIF S/N ttUrx/Fu30ypvxHcIbJxA information of the photographs show that they were taken on 12.06.2009 from 5.23 pm to 5.41pm. The 1st Defendant was wearing a party hat and the Child in a pink party dress with roses in all the photographs. [169] The photograph at the top of page 309 of bundle birthday cake on in the same of a number “1”. The words iced on the cake was “HAPPY BIRTHDAY C.A.S.”, and not her name on her birth certificate (in exhibit “D76”), which is “C.A.H.Y.W.” “S” is the Plaintiff’s surname. Whilst “H” in the Child’s name in her birth certificate is the 2nd Defendant’s surname and “Y.W.” is the Child’s Chinese name. [170] The photograph at the bottom of page 315 shows the Plaintiff, the 1st Defendant holding the Child in front of the birthday cake and the Plaintiff blowing the birthday cake. [171] The photograph at the top of page 312 of Bundle C4 (part of exhibit “P31”) is the same as the photograph at the top of page 591 of Bundle C2 (part of the photographs marked collectively as exhibit “P12”). It shows the Plaintiff and the 1st Defendant holding the Child, sitting next to each other and looking at the camera, at the Child’s 1st birthday party in McDonalds. [172] The photographs at the bottom of page 591, 594, 597, and the top of page 600 show that the Plaintiff and the 1st Defendant with the Child with the Plaintiff giving the Child a box of toys and there is box wrapped in a “happy birthday” wrapper next to them and a photo of the Child with a new toy. The metadata/EXIF information of the photographs show that the photographs were taken on 12.06.2009 from 7.19 to 7.24pm. The Child was no longer in a party dress. But the Plaintiff and the 1st S/N ttUrx/Fu30ypvxHcIbJxA Defendant were in the same outfits that they wore at McDonalds minus the party hat. § July 2009 [173] The metadata/EXIF information of the photographs on page 603, 607 and 609, shows the photographs of the Plaintiff with the Child in a shopping centre on 17.07.2009. [174] The metadata/EXIF information of the photographs on page 612, 615, 618, 621, 624, 627, 630, 633, 636 show the photographs of the Plaintiff with the Child in a water park / swimming pool on 24.07.2009. § September 2010 [175] The photograph at the top of page 643 on show the Plaintiff and the Child walking on a beam outdoors. The metadata/EXIF information of the photograph shows it was taken on 21.09.2010 at 5.20pm. [176] The photograph at the bottom of page 643 shows the Plaintiff. the Defendant and the Child sitting on a sofa indoors, with the Plaintiff’s and 1st Defendant’s arms wrapped around each other and the Child sitting between them on the 1st Defendant’s lap. The metadata/EXIF information of the photograph shows it was taken on 22.09.2010 at 11.03am. § October 2010 [177] The photograph on page 638 shows the Plaintiff and the Child and the photograph on page 641 shows the 1st Defendant and the Child out in in the evening with the PETRONAS Twin Towers behind them. The metadata/EXIF information of the photographs show the photographs were taken on 29.10.2010 at around 8pm. S/N ttUrx/Fu30ypvxHcIbJxA [178] The video recording taken on 23.10.2010 (on CD attached to page 696 of Bundle C2, marked as exhibit “P20(e)”) shows the Plaintiff and the 1st Defendant at the barber shop, where the barber is cutting the Child’s hair. The Plaintiff can be seen in mirror videoing the Child hair being cut and the 1st Defendant standing next to him. The 1st Defendant is seen in the video walking in front and behind the Child. The video lasts for 9 mins and 56 seconds. [179] The video recording on 28.10.2010 (on CD attached to page 696 of Bundle C2, marked as exhibit “P20(a)”) shows the Child, shows the Child dancing to Indian music in the living room of a house. The Child comes down the stairs with the Plaintiff and she continues to dance. He reclines on a sofa. She then jumps on to him and continues to dance to the music. The Plaintiff can be heard to say to her “Daddy watching you dance. Dance enjoy watching you dance”. The 1st Defendant can be heard in the background saying “I love you”. She later says “I’ll make coffee, I’ll make coffee” and the Plaintiff saying “I’ll make coffee” and she says “I’ll make, I’ll make.” [180] The 1st Defendant’s sister (“PW2”) testified that the video of the Child dancing to the Indian music was taken at her house. [181] Another video recording on 28.10.2010 (on CD attached to page 696 of Bundle C2, marked as exhibit “P20(d)”) marked shows the Plaintiff, the 1st Defendant and the Child eating in a food court. The 1st Defendant was videoing them eating. She starts with the Child, where she asks “Is it nice, [C] ……..”. Then the Plaintiff can be heard saying “You can try to video father now”. And the Defendant replying, “doing video now”. She then videos the Plaintiff, where he waves at her and says “hello”. S/N ttUrx/Fu30ypvxHcIbJxA § 2011 [182] The photographs on pages 646 to 658 shows photographs of the Plaintiff with the Child and the 1st Defendant. The metadata/EXIF information of the photographs show the photographs were taken on 19.03.2019, 28.03.2019, 17.04.2011, 25.08.2011. [183] The video shot on 14.03.2011 (on CD attached to page 696 of Bundle C2, marked as exhibit “P20(f)”) shows the Child speaking to the Plaintiff in a shopping centre, where she shows him a hat that she had picked up and tried to give it to the Plaintiff. The Plaintiff can be heard saying “Careful. Its too, it’s too big for me. It’s for you. Too big for me. Nah, give you back”. The Child then put the hat on her head. She then asks the Plaintiff “Where’s mummy”. The Plaintiff replied, “Mummy trying on clothes”. [184] The video shot on 17.04.2011 (on CD attached to page 696 of Bundle C2, marked as exhibit “P20(g)”) shows the Child skipping around near the entrance of a shop in a shopping centre with the Plaintiff’s voice heard in the background. The next video shows the Child in a car on a carousel in the arcade or shopping centre they are in. [185] The video dated 25.08.2011 (on CD attached to page 696 of Bundle C2, marked as exhibit “P20(i)”) is a video of the Plaintiff, the 1st Defendant and Child having dinner in Melaka. The video shows the Plaintiff and the Child with her books. The 1st Defendant asked “What are you doing there? What are you all doing?”. The Plaintiff answered, “We are reading this book” and the Child saying “No”. They then talked about the Child’s Elmo books. The Plaintiff told the Child “You got a good collection of storybook” and she answered “Yes, I got a bag there, I put all S/N ttUrx/Fu30ypvxHcIbJxA the storybook.” The second video (on CD attached to page 696 of Bundle C2, marked as exhibit “P20(j)”) of the dinner in Melaka on 25.08.2011 shows the Plaintiff teasing the Child that he thought that he heard her passing wind. And the Child denying that she had passed wind and said that it was the Plaintiff or the 1st Defendant. The Plaintiff and the Defendant continued to tease the Child about passing wind and passing motion and her not eating vegetables. [186] The video dated 30.09.2011 (on CD attached to page 696 of Bundle C2, marked as exhibit “P20(k)”) shows the Plaintiff, the 1st Defendant and Child having dinner at a food court. It shows the Child finishing the chocolate in her bowl and licking the bowl. The Plaintiff and the 1st Defendant can be heard teasing the Child about eating the chocolate and asking her to wash her hands after she finished eating. § 2012 [187] The photographs on pages 662 to 679 of Bundle C2 are marked as exhibit “P16”, shows the photographs of the Plaintiff and the Child in a food court. The metadata/EXIF information of the photographs show the photographs were taken on 30.01.2012. [188] The video dated 30.01.2012 (on CD attached to page 696 of Bundle C2, marked as exhibit “P20(b)”) shows whilst the Plaintiff was eating and talking to the 1st Defendant who was behind the video camera, the Child playfully put a pencil into the back of the Plaintiff’s shirt and saying to the Plaintiff “You find, I tell you”. The Plaintiff then takes out the pencil and smilingly asks the Child “You are giving. Let me check. Who do you think did this?”. S/N ttUrx/Fu30ypvxHcIbJxA [189] A video dated 01.09.2012 (on CD attached to page 696 of Bundle C2, marked as exhibit “P20(c)”) shows the Plaintiff and the Child playfully pressing their foreheads against each other. [190] There are other photographs of the Plaintiff with the 1st Defendant and/or the Child or the Plaintiff with the Child or the 1st Defendant and the Child. However, the photographs were not accompanied by the metadata/EXIF information. These photographs were admitted as evidence by consent of the Plaintiff’s and Defendants’ counsel at a hearing before me on 10.07.2019 and marked as exhibits. Description of the photographs and the markings are detailed in the table below: NO DESCRIPTION & DATE BUNDLES & PAGES EXHIBIT NO. C1 C2

C4

1

Photo of Plaintiff and 1st Defendant without a date 268 “P57”

2

Photo of Plaintiff and Child C • see para. [133] above 269(T) “P58”

3

Photos of Plaintiff, 1st Defendant’s and Child’s trip to Macau and Hong Kong 661 “P59”

4

Photos of Plaintiff and Child around July to August 2012 680-682 “P65”

5

Photos of Plaintiff, 1st Defendant and Child at a Hot Air Balloon with a modified date of 02.05.2014 572-581 “P65” S/N ttUrx/Fu30ypvxHcIbJxA NO DESCRIPTION & DATE BUNDLES & PAGES EXHIBIT NO. C1 C2

C4

6

Photo of Plaintiff with Child at a food stall with a modified date of 16.10.2013. 587(B) “P66”

7

Photo of Plaintiff, 1st Defendant and Child with what appears to be a “Happy Birthday” sign on a cake with a modified date of 18.09.2011. 600(T) “P66” [191] I find these photographs and videos show that the Plaintiff had access to and was involved in the Child’s life from her birth until his access to the Child was stopped by the 1st Defendant in December 2013. [192] The 1st Defendant’s admission that the Plaintiff visited her and the Child at the hospital after her birth and that she had called the Plaintiff to help her with the Child when the Child was 2 weeks old, and her testimony below, corroborates the Plaintiff’s assertion that he had access to the child from her birth until the 1st Defendant stopped his access to Child in December 2013. The 1st Defendant’s testimony is reproduced below: By the end of 2013, I told [the Plaintiff that it was not good for [Child C] to be with me when I was seeing him and carrying on our affair. [The Plaintiff] was not taking any steps to build a family with us and I did not think it wise for [Child C] to be exposed any further to [the Plaintiff] or our affair. She was 5 years old and beginning to be more aware of things happening around her. [The Plaintiff] had no issue with that. I continued to see [the Plaintiff] after dropping [Child C] at school. S/N ttUrx/Fu30ypvxHcIbJxA [193] The photographs show that the Plaintiff and the 1st Defendant had an intimate relationship. The photographs also show that the Plaintiff acted as the father figure and the 1st Defendant acted as the mother figure of the Child. They show them celebrating the Child’s 1st birthday together with friends, going on holidays together (to Kuantan in October 2008, to Genting Highlands to celebrate New Year 2009, to Macau and Hong Kong), taking the Child for outings such as going to the zoo, to see a hot air balloon, eating out at restaurants and shopping at shopping centres. These are activities that parents would do with their children. [194] To my mind, any third-party looking at the videos of the Plaintiff, the 1st Defendant and the Child would conclude that they were a family unit, where the Plaintiff is the father and the 1st Defendant is the mother of the Child — the way they interact together and with the Child when she had her hair cut at the barber; the pride in the Plaintiff’s face when the Child was dancing to the Indian music and the ease at which she was interacting with him and dancing all over him when he laying on the sofa; the Child putting the pencil at the back of his shirt when they were eating at the food court; the Child showing the Plaintiff her storybooks and them going through her story books during their dinner in Melaka; and the Plaintiff and the Defendant teasing the Child in one video about the amount of chocolate she was eating and in another of her passing wind; the Child sharing her food with the Plaintiff and the Child helping the Plaintiff put on a hat whilst they waited for the 1st Defendant shopping. [195] For these reasons, I find that the Plaintiff has discharged his burden of proof that on balance of probabilities the Plaintiff did have access to the Child since her birth until December 2013. S/N ttUrx/Fu30ypvxHcIbJxA Did the 1st Defendant lead a double life with the Plaintiff? [196] The 1st Defendant denied that she had led a double life with the Plaintiff. When asked by, she said it was because they do not have a house together and they do not live together. She said that the Plaintiff was just an affair. [197] The dates and times on the metadata/EXIF information of the photographs show several occasions that the Plaintiff would be with the 1st Defendant from morning until night for a few days at a stretch. The dates and times of several of the photographs show the Plaintiff feeding the Child on a bed or a sofa in the morning and them being out at shopping mall or restaurant in the afternoon and them at home in the evening. There are also photos of the Plaintiff sitting in his boxer shorts playing with the Child on the living room floor of the house; and him sitting with the Child on a bed or a sofa in a living room, the 1st Defendant sleeping with the Child on a bed with her breasts partly exposed and her celebrating his birthday at night at the dining table of the house with only a t-shirt on. These photographs show how familiar and comfortable they are with each other. [198] The 1st Defendant said that she would see the Plaintiff when he was not on flight duty and the 2nd Defendant was away on flight duty. This is partly true because the facts show that she had invited the Plaintiff to see her and the Child in the hospital even though the 2nd Defendant was in the country and we know from 1st Defendant’s testimony that the 2nd Defendant only went back to Singapore when the Child was 2 weeks old. [199] The 1st Defendant had testified that she had invited the Plaintiff to her home when the Child was 2 weeks old to help her with the Child. She S/N ttUrx/Fu30ypvxHcIbJxA did not dispute the Plaintiff’s claim that he was a familiar face with the confinement lady and the breast-feeding consultant that came to the house. She only said that it was she who called for a nurse for a post-natal home visit and not him. She said “[the Plaintiff] did not deal with my breast-feeding issues even though I had mentioned it to him and he was with me at that time.” [200] The photograph at exhibit “P31” of the Plaintiff and the 1st Defendant celebrating the Child’s 1st birthday with friends and their family at McDonalds, where the Child’s name on the birthday cake was “C.A.S” i.e., the Child’s surname is the same as Plaintiff’s surname. McDonalds is a public place. The birthday party and the Child’s name on the cake would have conveyed the message to the friends who attended the birthday party that the Plaintiff and the 1st Defendant are proud parents celebrating their child’s 1st birthday and that the Plaintiff is the Child’s father. [201] The 1st Defendant’s colleague, the stewardess, PW4, who was on duty on their flight home from Kuantan had referred to the Child as the Plaintiff and the 1st Defendant’s daughter. She said that she was quite shocked when she saw them. She testified “As I know, [the 1st Defendant] was married to another co-pilot from the [Singapore based airlines], not [the Plaintiff. …. I thought the [the 1st Defendant] had ended her relationship with that [Singapore based airline] co-pilot and started a family with [the Plaintiff]”. [202] The WhatsApp conversation between the Plaintiff and the 1st Defendant shown on pages 16 to 29 of Bundle B3 (marked collectively as exhibit “B3”) shows their conversation included mundane issues such as S/N ttUrx/Fu30ypvxHcIbJxA which backpack to get for the Child, the condition of the Child’s stool, the Child has a high fever, buying a poodle for the Child, the Child’s swimming lessons — all not uncommon topics discussed between parents of children. The messages also show the Plaintiff giving the 1st Defendant his flight roster for time to time. The WhatsApp messages also show that at 8.52am on 21.05.2013, the 1st Defendant sent the Plaintiff a message “Morning ….. happy parents day”. [203] If it was only an affair with the Plaintiff as the 1st Defendant claims, she would be having her sexual relations with the Plaintiff at somewhere neutral like a hotel room. She would not have invited the Plaintiff to stay in her matrimonial home whenever the Plaintiff is in KL and her husband is away. She would also not have involved the Plaintiff in the Child’s life for more than 5 years – as is evident from the photographs, the videos, and the WhatsApp messages. She would also not have wished someone she was just having an affair with “Happy Parents’ Day” or that he was “World’s Most Loving Daddy”. She would not have celebrated the Child’s 1st birthday party with the Plaintiff and his friends at a public place such as McDonalds. And she would not have signed off her Valentine’s Card to him (exhibit “P2”), with the words “Love you, daddy” next to the Child’s name, or make a hand-written scrap book after their Kuantan holiday together (exhibit “P17”). She also would not have asked the Child to call the Plaintiff “D” for Daddy in preparation for the future when she leaves her husband and sets up home with him. The excerpt of 1st Defendant’s testimony on this subject is reproduced below: Plaintiff Counsel 1 (PC1): [1st Defendant], you had admitted that [Child C] calls [the Plaintiff] D, why D? S/N ttUrx/Fu30ypvxHcIbJxA It was a name suggested by [the Plaintiff] himself, to play house with me. PC1: My instructions are not that’s not true, and that D is actually the initial for Daddy, do you agree with me? I would love for [Child C] to call him Daddy, if one day that I can with [the Plaintiff] because I have really thought of leaving my husband of [the Plaintiff], that’s why I asked [the Plaintiff] to give us a home because I comes with the child, whenever I go my child will come with me. PC1: [1st Defendant], you just need to say yes. so the answer is yes, right? D is for Daddy, is that correct? Just answer yes or no. Yes, for in the future. He must be a daddy to [Child C]. [Emphasis added] [204] Furthermore, if it was only an affair between her and the Plaintiff, the 1st Defendant would not have been upset that she was not asked to take a photo with the Plaintiff and his family during his cousin’s wedding. Both the Plaintiff and his mother, PW3, testified that the 1st Defendant had asked why she was not invited to be in the Plaintiff’s family photo at his cousin’s wedding. PW3 said that she told the Plaintiff that the 1st Defendant is not family. During the trial, the Defendants’ counsel cross-examined PW3 at length as to why she did not want to introduce the 1st Defendant to the family at the wedding. This can be seen from the excerpt of the Defendants’ counsel cross-examination of the PW3 reproduced below: Defendants Counsel 2 (DC2): Yes, So Mdm [T], by this time, by that 15th November 2008, you already knew that [the 1st Defendant] had a child, correct? S/N ttUrx/Fu30ypvxHcIbJxA Yes And that was why you told [the 1st Defendant] that you couldn’t introduce her to the family at the wedding? Yes. So isn’t [it] true Mdm [T] that you did not want to accept [the 1st Defendant] or her child? It is just that on that occasion, I just told her that you know I can’t introduce her to the family. And you had you had …….. I wouldn’t know, I wouldn’t know what to say. You had even told your son that [the 1st Defendant] was not part of the family, isn’t that so? When he when he asked me, he told me [the 1st Defendant] asked him why is it that you know, she’s not invited to take photograph, she was not invited to take photograph with the family. I told him that she is not she is not part of the family because it was a family photograph. So you were not accepting of her, correct? It is not so much of accepting, it’s, she’s not like officially a family member or anything, and it’s a family photograph. No, you said you cannot even introduce her to the family. What am I going to introduce her as? So you had problems accepting [the 1st Defendant], wouldn’t you say. I wont want to have somebody’s wife, introduce her as my son’s girlfriend or anything. So Mdm [T] it comes back to the fact that you did not accept [the 1st Defendant], yes or no? PW3” Accept her, may I ask accept her in what way am I supposed to accept her? S/N ttUrx/Fu30ypvxHcIbJxA But your son has brought her to this wedding. So in that role, that somebody that your son has brought, somebody that he had wanted to include in the family photo. He didn’t. Because he actually ask you. He didn’t ask me to include her, he just told me [the 1st Defendant] asked him why she’s not included. And that was after everything has finished. [205] In my view, the aforementioned evidence shows that the 1st Defendant had led a double-life with the Plaintiff vis-à-vis her husband, the 2nd Defendant. It was not just as an affair as the she claims – the 1st Defendant had been playing happy families with the Plaintiff for more than 5 years since the Child was 2 weeks old. From her own testimony, the 1st Defendant said that she had contemplated leaving the 2nd Defendant for the Plaintiff and had asked the Child to refer to the Plaintiff as “D” for “Daddy” in preparation for the time when she does set up home with the Plaintiff. As can be seen from the cross-examination of PW3 by the Defendants’ counsel, the 1st Defendant had expected that she be accepted by the Plaintiff’s mother as a member of his family and that she be included in a photograph with the rest of the Plaintiff’s family. A married woman who is “just having an affair” with a man would not expect the said man’s mother to accept her as a member of the man’s family and to be included in his family photographs. She would also not have instructed her counsel to cross-examine her lover’s mother at length as to why she was not accepted as being part of his family and not invited to be in a photograph with family. S/N ttUrx/Fu30ypvxHcIbJxA Did the Plaintiff provide the 1st Defendant maintenance for Child C until the 1st Defendant closed her bank account at Maybank? [206] The Plaintiff’s case is that he had contributed financially to the Child’s maintenance since she was born until the 1st Defendant closed her back account at Maybank. In paragraph 5.19 of his statement of claim, the Plaintiff pleaded that he paid the 1st Defendant RM1,000.00 per month as maintenance for the Child and occasionally he would pay the 1st Defendant in cash. He pleaded that after his relationship with the 1st Defendant broke down, he increased the monthly maintenance payment to RM3,000.00. He said that the payments stopped when the 1st Defendant closed her bank account in or around August 2014. [207] The Plaintiff’s relevant bank accounts were produced in pages 30 to 256 of Bundle B3 during the trial and were marked as exhibit “P4”. The 1st Defendant’s savings account at Maybank for the years 2010 to 2013 were produced in pages 17 to 32 of Bundle B2 (marked collectively as exhibit “P28”). And her Young Savers Account held jointly with the Child at Standard Chartered Bank were produced in pages 33 and 34 of Bundle B2 (marked collectively as exhibit “P29”). [208] The Plaintiff was unable to show, during the trial, the exact amount of the sums transferred made. Although his bank statements show that transfers were made, they do not show to whose account the said transfers were made. There were also discrepancies between the dates of the transfers and the amounts transferred in his testimony as compared to that in the bank statements. Additionally, payments which he says were made made by cash to the 1st Defendant, were not reflected in the bank statements. S/N ttUrx/Fu30ypvxHcIbJxA [209] The Defendant in their defence deny that the Plaintiff had paid any maintenance for the Child. In paragraph 2.8 of their defence, the Defendants pleaded: “The Plaintiff had never paid maintenance for the Child, the 2nd Defendant throughout bearing all the Child’s expenses and maintaining her since her birth.” [210] Nevertheless, during the trial the 1st Defendant admitted that the Plaintiff did pay RM1,000.00 monthly into her Maybank account, although she said the monies were for her and were not maintenance for the Child. She also admitted that the Plaintiff had paid the monies into her Maybank account until she closed the account in December 2014. The excerpt of her testimony on this subject is reproduced below: Sometime in 2010, to test the level of [the Plaintiff’s] commitment to our relationship, I did ask [the Plaintiff] to give me RM1,000 monthly for my personal spending. I made this request while I was still struggling with my depressions and experiencing uncertainties generally. [The Plaintiff] had not shown any move to be committed to me. ………. When [the Plaintiff] agreed to giving me some money, it gave me some sense of [the Plaintiff] being committed to our relationship. At no time was this money meant for [Child C], [the 2nd Defendant] bearing all of [Child C’s] expenses. This sum was never paid consistently, with various sums paid at different time. [The Plaintiff] had deposited these monies into my Maybank account. I eventually closed my Maybank account in December 2014 [211] The question of whether the Plaintiff had paid monies into the 1st Defendant’s Maybank account falls within the principle underlying the second principle in section 102 of the EA. S/N ttUrx/Fu30ypvxHcIbJxA [212] The 1st Defendant had admitted that the Plaintiff had paid the sum of RM1,000.00 monthly into her bank account at Maybank from sometime in 2010 until she closed her Maybank account in December 2014. However, she positively asserted that the monies paid by the Plaintiff into her Maybank account were for her personal spending and not for Child C. She also said that all the Child’s expenses were borne by the 2nd Defendant. The Defendants had pleaded that the 2nd Defendant had borne all the Child’s expenses and maintained her since birth. [213] Hence, pursuant to section 102 of the EA, the burden is on the Defendants to prove that the monies paid by the Plaintiff into 1st Defendant’s bank account was for 1st Defendant and not the Child and that all the Child’s expenses were borne by the 2nd Defendant. [214] Furthermore, section 103 of the EA sets out the general rule as to where the burden of proof as to a particular fact lies. In this instant case, it is the 1st Defendant who had asserted and wishes this Court to believe the monies paid by the Plaintiff into her account were for her own personal spending and not for the maintenance of the Child and that all the Child’s expenses were borne by the 2nd Defendant. Therefore, section 103 places the burden of proving those facts on the Defendants. [215] Additionally, section 106 of the EA places the burden of proof of this particular fact on the Defendants. Whether the monies paid by Plaintiff into the 1st Defendant’s Maybank account were for her own personal spending and not for the maintenance of Child C is within the 1st Defendant’s knowledge. And the fact whether all the Child’s expenses and maintenance were borne by the 2nd Defendant is also within the S/N ttUrx/Fu30ypvxHcIbJxA Defendants’ knowledge. Therefore, the burden of proving these facts lies with the Defendants. [216] The Defendants did not provide any documentary evidence in Court to prove that the monies paid by the Plaintiff into the 1st Defendant’s bank account at Maybank was for her personal spending and not for the Child’s maintenance. They also did not provide any evidence to prove that all the Child’s expenses and maintenance were all borne by the 2nd Defendant. Accordingly, the Defendants failed to discharge their burden of proof. [217] It follows that the 1st Defendant’s admission that the Plaintiff had paid the sum of RM1,000 monthly into her bank account until her bank account was closed in December 2014, and the Defendants’ failure to discharge their burden of proof under sections 102, 103 and 106 of the EA that the monies were for the 1st Defendant’s spending and not the Child’s maintenance, and that all the Child’s expenses were borne by the 2nd Defendant, means that the Plaintiff had successfully proven that he had paid monies for the maintenance of the Child into the 1st Defendant’s bank account at Maybank since 2010 until she had closed the account in December 2014. Findings of Fact [218] For all the reasons above, upon analysing the parties’ pleadings, the oral testimonies of the witnesses and the documentary evidence produced during the trial, I find that the Plaintiff has discharged his legal burden of proof. He has proven on a balance of probabilities that: S/N ttUrx/Fu30ypvxHcIbJxA

a

(a) he had intimate and sexual relations with the 1st Defendant prior to and during her marriage to the 2nd Defendant until January 2014;

b

(b) he had sexual intercourse with the 1st Defendant during Child C’s conception period, particularly in September 2007;

c

(c) the 1st Defendant had told him that he was the father of Child C;

d

(d) he had access to and was involved in Child C’s life since her birth until December 2013; and

e

(e) he had provided the 1st Defendant monies for the Child’s maintenance until she closed her bank account at Maybank in approximately August 2014. [219] Accordingly, I find that the Plaintiff has proven on a balance of probabilities a prima facie case that he may be the biological father of Child C. [220] During the trial, I had the opportunity to observe the facial features of the Child in the videos and the photographs submitted in Court, particularly those submitted by the Defendants showing the Child at an older age of approximately 12 years. Comparing the facial features of the Child with that of the Plaintiffs and the Defendants, whom I had observed physically in Court, it appears to me that the Child’s facial features is a combination of the Plaintiff’s and the 1st Defendant’s facial features. [221] Nonetheless, the law is settled that facial resemblance is not relevant evidence of paternity: see Ng Chian Peng v Ng Ho Peng [1998] 2 CLJ (Supp) 227; [1998] 2 MLJ 686; Lee Lai Cheng (Suing as the Next S/N ttUrx/Fu30ypvxHcIbJxA Friend of Lim Chee Zheng and Herself) v Lim Hooi Teik [2017] 10 MLJ 331; [2017] 6 CLJ 668. Therefore, this Court cannot take into account any facial resemblance between the Chid and the Plaintiff as relevant evidence in this action. Question of Law: Do Courts have the Power to Order DNA Test on a Child to Determine Paternity? [222] Having made the finding of fact that the Plaintiff has established a prima facie case that he may be the biological father of Child, this Court now has to consider whether it has the jurisdiction in civil proceedings to order a DNA test on a child to determine the child’s paternity. [223] Whether or not the Plaintiff is the biological father of the Child can only be conclusively determined by a DNA test on the Child and the Plaintiff. [224] There are currently diverging views in our laws on whether the Malaysian Courts are empowered to order DNA test in civil proceedings for the purpose of determining paternity. [225] The Plaintiff contends that it is the best interest of Child C to know who her biological parents are and that this Court as parens patriae has the power to order a DNA test on Child C. The Defendants disagree. They submit that Malaysian Courts do not have the power to order a DNA test in civil proceedings. [226] Parliament had officially recognised the taking and use of DNA samples as evidence with the passing of the Deoxyribonucleic Acid (DNA) Identification Act 2009 (“DNA Act”). Also, the Federal Court in Pathmanabhan Nalliannen v Public Prosecutor & Other Appeals S/N ttUrx/Fu30ypvxHcIbJxA [2017] 4 CLJ 137; [2017] 3 MLJ 141; [2017] 3 AMR 105 held that DNA evidence is admissible under section 45, 46 and 51 of the EA 1950. Arifin Zakaria CJ delivering the judgment of the Federal Court held that DNA evidence is “basically opinion evidence of an expert.” [227] Our Courts have relied on DNA tests and evidence since 1994 to determine paternity. In Lau Zhan Chen (An Infant by his mother and next friend Lau Fatt Wan) v Makoto Togase & Ors [1995] 1 CLJ 841; [1995] 1 AMR 281 (“Lau Zhan Chen”), the parents of the child, to prove scientific evidence of paternity had their blood taken for DNA testing, which results confirmed that the 1st respondent was the biological father of the child with a probability of paternity of 99.96%. The parties in Lau Zhan Chen had agreed among themselves to undertake the DNA test in order to prove the paternity of child and had provided the results of the DNA test in Court to support the petitioner’s application to legitimise the child under the Legitimacy Act 1961. [228] The first notable case in Malaysia where a party prayed for the Court to order a DNA test was Peter James Binsted v Jevencia Autor Partosa [2000] 2 CLJ 906; [2000] 2 MLJ 569. In that case the applicant mother had applied to the Magistrate’s Court under the Married Women and Children (Maintenance) Act 1950 for maintenance for herself. She claimed that she was married to the respondent and that they had a child from the marriage. On the applicant’s lawyer’s oral application that the parties and the child undergo a DNA test, the Magistrate allowed the application. The respondent appealed the Magistrate’s decision to the High Court. KC Vohrah J allowed the appeal and set aside the magistrate’s decision, on the grounds that the Married Women and Children (Maintenance) Act 1950 has no provision to allow any court to S/N ttUrx/Fu30ypvxHcIbJxA make an order for a DNA test. He held that “there is no general power provided by legislation or through common law for any court in Malaysia to order a person to undergo a test to ascertain paternity”. He was of the view that subjecting a person to take a DNA test against his will, by way of taking blood, tissue or bone specimen, would amount to hurt within the meaning of section 319 of the Penal Code. Section 319 of the Penal Code states “Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt”. [229] The next case of note is Lee Lai Ching (As the next friend of Lim Chee Zheng and on behalf of herself) v Lim Hooi Teck [2013] 4 CLJ 107; [2013] 2 AMR 628; [2013] 4 MLJ 272; [2013] MLJU 93 (“Lee Lai Ching No. 1”). The plaintiff mother in that case claimed that she had met the defendant (the putative biological father) at an entertainment centre. The defendant is the managing director of Follow Me Sdn Bhd. He offered her a commercial contract to sing and record song albums for the company. The plaintiff claimed that her relationship with the defendant became intimate after the execution of the contract with the company. The relationship lasted for 8 years. The defendant terminated the relationship after the plaintiff refused to undergo an abortion upon falling pregnant. He refused to acknowledge the child who was born to the plaintiff as his son. The plaintiff then filed an application under Order 14A of the Rules of Court 2012 for an Order of Court for the defendant to undergo DNA test in order to determine the paternity of the child. Zamani Rahim J (as he then was) allowed the plaintiff’s application based on the inherent power and discretion of the Court. [230] The Court of Appeal allowed the defendant’s appeal on the grounds that it was not an appropriate case for the disposal on a point of S/N ttUrx/Fu30ypvxHcIbJxA law without the full trial of the action. It held that the plaintiff must have made out a prima facie case against the defendant of a close and intimate relationship between the plaintiff and defendant before an order can be made to compel the defendant to undergo a DNA test to determine the paternity of a minor. [231] The matter returned to the High Court for trial. The judgment of Lim Chong Fong J in that case is reported in Lee Lai Ching (As the next friend of Lim Chee Zheng and on behalf of herself) v Lim Hooi Teck [2017] 10 MLJ 331; [2017] 6 CLJ 668 (“Lee Lai Ching No. 2”). His Lordship found that the plaintiff mother had proved on a balance of probabilities that there was a close and intimate relationship between the plaintiff mother and the defendant father. However, he did not grant the order for a DNA test on the ground he did not have the power to do so since the Courts’ inherent jurisdiction is “limited to prevent injustice or to prevent abuse of process of the court”. [232] Hence, the question is whether Zamani Rahim J (as he then was) was correct to have held that Courts pursuant to its inherent jurisdiction have the power to order an DNA test to determine paternity in Lee Lai Ching No. 1 or was Lim Chong Fong in Lee Lai Ching No. 2 correct in holding that Courts do not have the power to order DNA tests in paternity cases because its inherent jurisdiction is “limited to prevent injustice or to prevent abuse of process of the court”? Law on Legitimacy and Paternity [233] The Court of Appeal in CAS v MPPL & Anor (No. 1) held that whilst section 112 of the EA conclusively presumes legitimacy of a child during the continuance of valid marriage, it does not bar enquiries into S/N ttUrx/Fu30ypvxHcIbJxA paternity. It held that “legitimacy” and “paternity” are two distinct and separate concepts. Nallini Pathmanthan JCA (as she then was) in delivering the judgment of the Court of Appeal held as regards the concept of “paternity” and “legitimacy: “[24] We were of the view that the concepts of ‘paternity’ and ‘legitimacy’ should necessarily be separated. The former concerns a question of fact; the latter a question of law. Section 112 of the EA constitutes adjectival law, and it is trite that adjectival law must be interpreted liberally so as not to defeat the rights of parties. This is all the more so when it comes to s 112 of the EA which dates back to 1872. It is an outdated and anachronistic legal provision that ought to be construed and given effect in line with modern day scientific advancements. …………. [28] Our law, and indeed the law of many civilised nations, recognises that a child may in fact be an illegitimate child, but, by operation of the law, the said child may still be considered legally legitimate. We seek to illustrate this point.” ……………… [36] We do not see why the aforementioned principles are not applicable in Malaysia. As we have already held, s. 112 of the EA does not bar enquiries into paternity yet, at the same time, conclusively presumes legitimacy. Enquiries per se into paternity do not in this sense illegitimise a child. Thus, this emphasis on the fear of illegitimising the said child is not the determining factor when deciding to order a DNA test to determine paternity. Instead, the best interest of the child to know its biological parents is the larger concern. In this vein, the learned judge fell into error in Her Ladyship's pre-occupation with the supposed fear of illegitimising Child C. [Emphasis added] [234] The Court of Appeal’s decision was upheld by the Federal Court in MPPL & Anor v CAS (02(f)-14-03-2018(W) - 29 January 2019). [235] The Federal Court in the latter case of Jabatan Pendaftaran Negara & Ors v Seorang Kanak-Kanak & Ors; Majlis Agama Islam S/N ttUrx/Fu30ypvxHcIbJxA Negeri Johor (Intervener) [2020] 4 CLJ 731; [2020] 2 MLJ 277; [2020] 2 AMR 725; [2020] AMEJ 0225, FC, reiterated that under Malaysian law, legitimacy and paternity are two distinct concepts. David Wong Dak Wah CJ (Sabah & Sarawak) referring to the Court of Appeal’s judgment in CAS v MPPL & Anor (No.1) held: “[164] To reconcile s. 111 of the Johor Enactment 2003 and s. 112 of the Evidence Act 1950, we must fall back on the fact that under our law, legitimacy and paternity constitute two distinct concepts. On this issue, there is at least one case in point i.e., the judgment of the Court of Appeal in CAS v MPPL & Anor [2019] 2 CLJ 454 which was affirmed by the Federal Court in MPPL & Anor v CAS (02(f)-14-03-2018(W) - 29 January 2019). The facts were these. [165] The suit was an action by the plaintiff seeking a DNA test to determine the paternity of child C - a female. The plaintiff claimed that he was the father of child C and that she was born as a result of an affair he had with the first defendant. The child was born while the first defendant was married to her husband, the second defendant. At the High Court, the defendants argued that the plaintiff's suit was summarily determinable on a point of law under O. 14A of the Rules of Court 2012, to wit, that s. 112 of the Evidence Act 1950 conclusively presumed child C was the legitimate child of the defendants. Allowing the plaintiff's claim would effectively illegitimise child C. The High Court agreed with the defendants' arguments and held that an inquiry into child C's paternity would have the effect of illegitimising her and accordingly dismissed the plaintiff's suit on that point of law. [166] The question before the Court of Appeal was whether that dismissal on that point of law was correct. It was held that legitimacy and paternity are two distinct concepts. Section 112 of the Evidence Act 1950 pertains exclusively to legitimacy. Thus, it remained open to the plaintiff to determine paternity. The Court of Appeal accordingly remitted the matter to the High Court for trial. [167] In my view, the judgment of the Court of Appeal in that case was correct. On a broader note, the effect of separating paternity from legitimacy means that that child could potentially have two fathers - one in law and another in fact. A paternity test, if positive, would simply prove the fact that the plaintiff in that case was the biological father of the child. But by virtue of S/N ttUrx/Fu30ypvxHcIbJxA s. 112 of the Evidence Act 1950, the birth of child C during the valid marriage between the first and second defendants, legally, means that the second defendant is in law the legitimate father of child C. This is because under the said s. 112, the conclusive presumption of legitimacy may only be rebutted by proof of 'non-access'. [Emphasis added] [236] Accordingly, in Malaysia, the law on legitimacy and paternity as it currently stands is that:

a

(a) legitimacy and paternity of a child are two separate and distinct concepts; and

b

(b) the presumption of legitimacy under section 112 of the EA does not bar any enquiries into the paternity of a child. Is a birth certificate proof of paternity? [237] Learned counsel for the Defendants, Ms. Kiran Dhaliwal, submits that the Plaintiff by agreeing that the Child’s birth certificate be categorised as a Part A document means that Plaintiff had agreed and accepted that the contents of the birth certificate is true, and had, accordingly conceded that the 2nd Defendant is the biological father of the Child. She contends that for this reason the Plaintiff’s application should be dismissed. [238] Ms Dhaliwal cited as authority the case of Tiow Weng Theong v Melawangi Sdn Bhd [2019] 2 CLJ 655, [2018] 5 AMR 465; [2018] AMEJ 0708; [2018] 6 MLJ 761, CA, where the Court of Appeal held that in an action for defamation, the parties by agreeing to place the email which the Plaintiff says contained the impugned statement in Part A of the agreed bundle of documents means that the plaintiff had accepted the truth of the contents of the documents and had conceded the impugned statements S/N ttUrx/Fu30ypvxHcIbJxA of true, which in turn means that the defendant’s defence of justification had been proven or conceded by the plaintiff. [239] Unfortunately, she failed to bring to this Court’s attention that the Federal Court on 28.02.2020, as reported in Melawangi Sdn Bhd v Tiow Weng Theong [2020] 4 CLJ 1; [2020] 2 AMR 505; [2020] AMEJ 0137, FC had overturned the Court of Appeal’s decision and restored the order of the High Court. Therefore, the decision of the Court of Appeal in Tiow Weng Theong v Melawangi Sdn Bhd is no longer good law. [240] Birth certificates are issued under the Birth and Deaths Registration Act 1957 (“BDRA 1957”). Section 14 of the BDRA 1957 states that at the time of registering the birth of any child, the Registrar of Births and Deaths (the “Registrar”) shall give to the informant a Certificate of Birth in the prescribed form and certified as required by subsection 32(2) of the Act. [241] An informant is a person qualified under section 7(2) of the BDRA 1957 to inform the Registrar of the birth of a child. A “father of the child” is one of the qualified persons under section 7(2). The phrase “father of the child” is not defined in BDRA 1957. [242] Birth certificates are also issued under the Adoption Act 1952 (“AA 1952”). Section 25A of the AA 1952 states that upon receipt of an adoption order, the Registrar-General of Births and Deaths (the “Registrar-General”), upon the surrender to him by the child’s birth certificate issued under BDRA 1957, shall issue a birth certificate in respect of the child in the form set out in the Second Schedule of the AA

1952

Section 25A(5) of the AA 1952 states that the birth certificate issued under AA 1952 shall replace the child’s birth certificate issued under the S/N ttUrx/Fu30ypvxHcIbJxA BDRA 1957, and “shall for all purposes be known as the Certificate of Birth of the child”. The birth certificate states the name and details of the child and the adoptive parents or parent pursuant to an adoption order. [243] In the case of an illegitimate child, section 13 of the BDRA 1957 provides: “Notwithstanding anything in the foregoing provisions of this Act, in the case of an illegitimate child, no person shall as father of the child be required to give information concerning the birth of the child, and the Registrar shall not enter in the register the name of any person as father of the child except at the joint request of the mother and the person acknowledging himself to be the father of the child, and that person shall in that case sign the register together with the mother.” [244] The Registrar-General is empowered under section 17 of the BDRA 1957 to authorise the re-registration of the birth of a person who had become a legitimated person within the meaning of the Legitimacy Act 1961. The Registrar-General shall only authorise the re-registration if the information is furnished by both parents, where (a) under section 17(1)(a) the name of a person acknowledging himself to be the father of the legitimated person had been entered in the register pursuant to section 13 of the BDRA 1957, or (b) under section 17(1)(b) the paternity of the legitimated person has been established by a maintenance order under the Married Women and Children (Maintenance) Act 1950 or by a decree of a Court of competent jurisdiction. [245] From the ordinary and natural reading of sections 7, 13 and 17 of the BDRA 1957, the phrase “father of the child” in section 7 does not mean that the man who had provided the information to the Registrar of a child’s birth is the biological father of the child. S/N ttUrx/Fu30ypvxHcIbJxA [246] In the case of an illegitimate child, pursuant to section 13 of the BDRA 1957, the “father of the child” is the “person who acknowledges himself to be the father of the child”. [247] In this instant case, the 2nd Defendant is presumed to be the father of Child C by reason of the statutory presumption in section 112 of the EA that a child born during the child’s mother valid marriage to a man, is the legitimate child of that man. Hence, the 2nd Defendant is “father of the child” of Child C for purposes of section 7 of the BDRA 1957 by reason of the said statutory presumption of legitimacy. [248] For the reasons discussed above, a birth certificate under the BDRA 1957 or the AA 1952 does not prove a child’s biological father. Accordingly, I find that the birth certificate of a child, issued either under the BDRA 1957 or the AA 1952, is not proof of the said child’s paternity. The High Court’s inherent jurisdiction as parens patriae [249] The Plaintiff’s case is that under section 24(d) of the Court of Judicature Act 1964 (“CJA 1964”) and as parens patriae, the High Court has the power to order a child to undertake a DNA test to determine the child’s paternity. Section 24(d) of the CJA 1964 reads as follows: “24. Without prejudice to the generality of section 23 the civil jurisdiction of the High Court shall include: ……………

d

(d) jurisdiction to appoint and control guardians of infants and generally over the persons and property of infants;” [250] Learned counsel for the Plaintiff, Ms. Honey Tan, submits that pursuant to section 11 of the Guardianship of Infants Act 1961 (“GIA 1961”), this Court shall have regard primarily to the welfare of the Child, S/N ttUrx/Fu30ypvxHcIbJxA and where the Child has a parent or parents, consider the wishes of such parent or both of them, as the case may be. [251] It is settled law that the High Court as parens patriae has inherent jurisdiction over all children in the jurisdiction. The Federal Court in Mahabir Prasad v Pushpa Mahabir Prasad [1981] CLJ Rep 65; [1981] CLJ 124A, FC, per Raja Azlan Shah Acting LP, held “The High Court in hearing a custody case regarding infants within the jurisdiction is invested with an inherent jurisdiction derived from the Crown’s prerogative as parens patriae. It is the law of this country as it is the law of India that the welfare and happiness of the infant must be the paramount consideration in child custody adjudication.” [252] Learned counsel for the Defendants submits that the High Court does not have the power to order a person to undergo a DNA test in civil proceedings because there are no statutory provisions or common law rules in Malaysia empowering the Court to do so. [253] She argues that whilst the Court has the jurisdiction under section 24(d) of the CJA to hear matters in relation to infants generally, it lacks the power to order a DNA test on a child to determine the child’s paternity because there are no statutory provisions or common law rules capable of granting the High Court with the necessary power to order a DNA test on a child for purposes of determining paternity. [254] Ms. Dhaliwal submits that unlike Malaysia, the Courts in England is empowered by the express provisions in section 20(1) of the UK’s Family Law Reform Act 1969 (“FLRA 1969”), to give directions for blood tests to be used to ascertain paternity in civil proceedings. S/N ttUrx/Fu30ypvxHcIbJxA [255] Regretfully, she did not to bring to this Court’s attention that in England, prior to the enactment of the FLRA 1969, the English Court of Appeal had held that the High Court under its inherent jurisdiction as parens patriae has the power to order a blood test of a child where the child’s paternity is in issue: see In Re L. (An Infant) [1967] 3 W.L.R. 1645; [1968] P.119; [1968] 1 All ER (“In Re L. (An Infant)”) and B (BR) v B(J) [1968] P466; [1968] 3 WLR 566; [1968] 2 All ER 1023 (“B (BR) v B(J)”). [256] In In Re L. (An Infant), the English Court of Appeal had occasion to decide the question whether the High Court can order a test to be taken of a child’s blood in the absence of consent and in face of the opposition of the Official Solicitor, who was the child’s guardian ad litem. The facts in In Re L. (An Infant) are similar to the facts of this instant case, where in that case the husband and wife were married. The wife met another man and had sexual intercourse regularly with the other man. She became pregnant and bore a baby girl. She let her husband believe that the child was his. Like the 2nd Defendant in this instant case, the husband in In Re L. (An Infant) did not know about his wife’s affair with the other man. He regarded the baby girl as his child and she was brought up as one of the family. The wife later left the husband and took the child with her. She went to live with the other man, and at that stage admitted to their adultery. Lord Denning MR held that as soon as the wife and the other man admitted adultery, “it became obvious that there is a serious question as to who was the father of the little girl. Was it the husband? Or the other man? It might be either. There were two important factors to consider. One was the presumption of legitimacy. The other was the taking of blood tests. I will deal with them in turn” S/N ttUrx/Fu30ypvxHcIbJxA [257] Lord Denning held that in proceedings relating to the custody of a child and “in any proceedings where it is in the best interest of the child to have its paternity settled one way or another”, any judge of the High Court can order a test to be taken of the child’s blood. He said: “I hold, therefore, that in proceedings relating to the custody of a child, any judge of the High Court can order a test to be taken of the child’s blood. So also in a paternity issue, or any proceedings where it is in the best interests of the child to have its paternity settled one way or the other, the court can order a blood test. Even in a petition for divorce on the ground of adultery, the judge can in my view order a blood test on the child for there too the child is vitally affected by the outcome.” [Emphasis added] [258] Lord Denning held that the Courts’ inherent jurisdiction over children “derives from the right and duty of the Crown as parens patriae to take care of those who are not able to take care of themselves.” He held: “This wide jurisdiction of the old Court of Chancery is now vested in the High Court of Justice and can be exercised by any judge of the High Court. ……………. If a question arises as to the welfare of a child before any judge of the High Court, he can make such order as may be appropriate in the circumstances. ………….” [259] Abdul Malik Ishak J (as he then was) in Lau Zhan Chen (supra) said that since In Re L. (An Infant), medical science has advanced by leaps and bounds, whereby through DNA testing the paternity of child can be determined by 99.96% accuracy. [260] In the latter case of B (BR) v B(J) (supra) in 1968, the English Court of Appeal had to decide the question of whether a judge can order S/N ttUrx/Fu30ypvxHcIbJxA a blood test on a child on a paternity issue, or any other issue. The question before the Court was summarised by Sachs LJ as follows: “The sole question posed here today is whether that jurisdiction qua parens patriae is limited to what has been referred to as custodial cases where it will be for the benefit of the infant to use that jurisdiction, or whether the jurisdiction extends to all cases when it would be of benefit to the infant that the test be made. In using the word "benefit" I have in mind the sense in which it is used in the exercise of the court's parens patriae functions, ….” [261] The English Court of Appeal in B (BR) v B(J) held that the High Court in the exercise of its jurisdiction as parens patriae has the inherent jurisdiction to order blood tests on a child in any proceedings where it was in best interests of the child. Lord Denning MR held: “It is unnecessary to review the matter at length. That was done in In re L. (An Infant). Suffice it to say that, after full discussion, we see no reason for confining the jurisdiction, as Willmer L.J. did, to the court's custodial jurisdiction. The jurisdiction is unlimited in a judge of the High Court. He can order a blood test to be taken whenever it is in the best interests of the child. I repeat what I said in that case [In re L (An Infant)]: ………….. The conclusion of the whole matter is that a judge of the High Court has power to order a blood test whenever it is in the best interests of the child. The judges can be trusted to exercise this discretion wisely. I would set no limit, condition or bounds to the way in which judges exercise their discretion. The object of the court always is to find out the truth. When scientific advances give us fresh means of ascertaining it, we should not hesitate to use those means whenever the occasion requires.” [Emphasis added] [262] Learned counsel for the Defendants also did not bring this Court’s attention to the recent English case of Spencer v Spencer and others [2016] EWHC 851 (Fam); [2016] Fam. 391 (“Spencer v Spencer”). In S/N ttUrx/Fu30ypvxHcIbJxA that case, the High Court of England and Wales had made an order under its inherent jurisdiction directing that the extracted DNA sample of a deceased person be tested posthumously to determine paternity. In that case, the applicant had applied under section 20 of the FLRA 1969 for an order for the testing of the deceased’s DNA sample held by a hospital, alongside the applicant’s own DNA to establish whether the deceased was his father. [263] Whilst there is legislation in the UK that enables the Courts to give directions for DNA tests by extracting bodily samples from living persons, in civil proceedings relating to paternity, there is no legislation relating to paternity testing using extracted DNA. Its common ground that the FLRA 1969 does not provide any statutory provision for a Court to direct the post-humous testing of a deceased’s DNA sample. Thus, the question before the High Court in Spencer v Spencer was whether the Courts’ inherent jurisdiction could be used to fill the legislative void. [264] Peter Jackson J (as he then was) in Spencer v Spencer held that the application for the DNA test on a deceased person’s DNA sample is outside the scope of section 20 of the FLRA 1969 — the section only applied to DNA tests and the taking of DNA samples of living persons. He held that in cases where the absence of remedy would lead to injustice, the inherent jurisdiction of the High Court empowered the Court to make the order for the DNA testing of a deceased’s DNA samples in order to determine paternity. [265] On appeal by the respondent, the English Court of Appeal upheld the High Court’s order: see Anderson v Spencer [2018] EWCA Civ 100 (“Anderson v Spencer”). The Court of Appeal held that the High Court S/N ttUrx/Fu30ypvxHcIbJxA judge had not fallen into error in finding that he had the power to make such an order pursuant to the High Court’s inherent jurisdiction. It held that the judge had been right to hold that such a direction for the DNA test could be made under the Court’s inherent jurisdiction, even though it fell outside the scope of section 20 of the FLRA 1969. The Court of Appeal agreed that in order for an extension of inherent jurisdiction to be principled, it was not necessary to slot such extension of jurisdiction into a “previously recognised category.” It held that “to do so would constrain the legitimate use of Lord Donaldson’s great safety net”. King LJ held that the High Court judge was sensible of the need to avoid any unprincipled extension of the jurisdiction saying: “71(1) there is a legislative void, both in relation to post-mortem paternity testing and in relation to paternity testing using extracted DNA. I accept that in an area of this kind, policy considerations arise which would be better regulated by Parliament than by individual decisions of the court. In one sense, this speaks for judicial reticence. However, there is no indication that Parliament has turned its attention to the situation that arises in the present case, or that it is likely to do so at any early date. That gives rise to the possibility of an indefinite period during which individuals would be left without a remedy." [Emphasis added] [266] Similarly, in India, the Supreme Court of India had held that the Indian Courts may invoke their inherent power to direct and enforce orders for parties to undergo DNA tests in paternity cases see Sharda v Dharmpal (2003) 4 SCC 493; Bhapani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women and Another (2010) 8 SCC 633. [267] Section 151 of India’s Code of Civil Procedure 1908 is in pari materia with Order 92 rule 4 of our Rules of High Court 2012. It states: S/N ttUrx/Fu30ypvxHcIbJxA “151. Saving of inherent powers of Court.—Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.” [268] The Supreme Court of India in Sharda v Dharmpal (2003) 4 SCC 493 had reviewed its earlier decision in Goutam Kundu v State of West Bengal [1993] SC 2295 and held: “39. Goutam Kundu is, therefore, not an authority for the proposition that under no circumstances the court can direct that blood tests be conducted. It, having regard to the future of the child, has, of course, sounded a note of caution as regards mechanical passing of such order. In some other jurisdictions, it has been held that such directions should ordinarily be made if it is in the interest of the child”. [269] In the latter case of Bhapani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women and Another (2010) 8 SCC 633, the Supreme Court of India clarified that there is no conflict between its decisions in Goutam Kundu and Sharda v Dharmpal, where it said: “23. There is no conflict in the two decisions of this Court, namely, Goutam Kundu and Sharda. In Goutam Kundu it has been laid down that courts in India cannot order blood test as a matter of course and such prayers cannot be granted to have roving inquiry; there must be strong prima facie case and the court must carefully examine as to what would be the consequence of ordering the blood test. In Sharda while concluding that a matrimonial court has power to order a person to undergo a medical test, it was reiterated that the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. Obviously, therefore, any order for DNA test can be given by the court only if a strong prima facie case is made out for such a course”. [270] The Indian Courts’ powers to order a DNA test to determine paternity was succinctly summarised by the Madras High Court in Selvi S/N ttUrx/Fu30ypvxHcIbJxA Vijayalakshmi v A. Sankaran and Another [2017] 4 MLJ (Madras Law Journal) 463 as follows: “33. Now, what follows from the above analysis of the ratios laid down in Goutam Kundu v. State of West Bengal (supra) and in Sharda v. Dharmpal (supra) is that it is not that the Courts have no power to order DNA test. It can order, but it cannot be a routine matter because it involves personal freedom of an individual. Only in rare cases and real cases such a test can be ordered, provided there is a prima facie case for ordering such a test. (See Bommi and Another v. Manirathanam (supra).” [Emphasis added] [271] The common thread of the Indian and English authorities cited above, is that Courts have the power to use their inherent jurisdiction to fill legislative voids. [272] In India, its Supreme Court has held that the Courts have the power pursuant to their inherent jurisdiction to order DNA testing on a child to determine the child’s paternity. [273] Whilst in England, prior to the enactment of section 20 of the FLRA 1969, the Court of Appeal had held that the High Court as parens patriae has the power to under its inherent jurisdiction to order a blood test on a child to determine the child’s paternity. And after the enactment of the FLRA 1968, the English Court of Appeal in Anderson v Spencer (supra) held that the High Court may use its inherent jurisdiction, in the interest of justice, to direct DNA testing to provide evidence of paternity in circumstances falling outside the scope of its FLRA 1969. [274] In Malaysia, article 160(2) of our Federal Constitution defines “law” to include: S/N ttUrx/Fu30ypvxHcIbJxA “written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof”. [275] “Common law” is defined in section 3 of the Interpretation Acts 1948 and 1967 as “the common law of England.” In Majlis Perbandaran Ampang Jaya v. Steven Phoa Cheng Loon & Ors [2006] 2 CLJ 1; [2006] 2 AMR 563; [2006] 2 MLJ 389, FC, Abdul Hamid Mohamad FCJ (as he then was) held: “Strictly speaking, when faced with the situation whether a particular principle of common law of England is applicable, first the court has to determine whether there is any written law in force in Malaysia. If there is, the court does not have to look anywhere else. If there is none, then the court should determine what is the common law as administered in England on 7 April 1956, in the case of West Malaysia.” [276] The orders for a blood test on a child to determine the child’s paternity by the English Court of Appeal in In Re L. (An Infant) and B (BR) v B(J) (supra), were made pursuant to a long existing English common law principle that the Courts have the inherent jurisdiction as parens patriae to make whatever order it deems appropriate in the best interest and welfare of a child. Lord Denning MR held that pursuant to this common law principle that the Courts as parens patriae have the power to order a child in custody cases and in paternity cases to undergo a blood test to determine the child’s paternity: see paragraphs [257] and [261] above. [277] In In Re L. (An Infant) Lord Denning had cited Lord Cottenham LC’s judgment in In re Spence (1847) 2 Ph. 247, where it was held that the old Court of Chancery had the power to interfere for the protection of S/N ttUrx/Fu30ypvxHcIbJxA an infant, by virtue of the prerogative which belongs to the Crown as parens patriae, by making whatever order as might be appropriate. [278] It is clear from Lord Cottenham LC’s judgment in In re Spence in 1847, as applied 120 years later by Lord Denning MR in In Re L. (An Infant) and B(BR) v B(J) that the common law of England on 7 April 1956 empowers the Courts as parens patriae to make any order as may appropriate for the best interest and welfare of a child. [279] Therefore, I have to respectfully disagree with learned counsel for the Defendants’ submission that there was no common law of England as administered in England on 7 April 1956 empowering the Courts to order a blood test on a child to determine paternity. I find that based on the English common law as administered in England on 7 April 1956, the High Court in Malaysia has the jurisdiction to order a blood test — and with the advances of science, a DNA test — on a child to determine the child’s paternity. [280] The Federal Court in Tony Pua Kiam Wee v Government of Malaysia & Another Appeal [2020] 1 CLJ 337; [2019] 12 MLJ 1; [2019] 8 AMR 325; [2019] AMEJ 1450, FC, held that common law is law as long it remains in force and that the mechanism for determining of whether it remains in force lies in section 3(1) of the Civil Law Act 1956 (“CLA 1956”). Section 3(1) of the CLA 1956 reads as follows: “3. Application of UK common law, rules or equity and certain statutes

Subsection

(1) Save so far as other provision has been made or may hereafter be made by any written law in force in Malaysia, the Court shall -

a

(a) in Peninsular Malaysia or any part thereof, apply the common law of England and the rules of equity as administered in England on the 7 April 1956; …………… S/N ttUrx/Fu30ypvxHcIbJxA Provided always that the said common law, rules of equity and statutes of general application shall be applied so far only as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary.” The Federal Court held that the common law is applicable in Malaysia, subject to the proviso in section 3(1) of the CLA 1956, unless the common law has been modified, varied or abrogated by written law. [281] There are presently no written laws in Malaysia governing the power of the Courts to order a DNA test on children in civil proceedings. Thus, it follows that there are no written laws in force in Malaysia that has modified, varied or abrogated the common law of England on this issue. [282] Accordingly, based on the common law of England and under section 3(1) of the CLA 1956, the Courts in Malaysia pursuant to its inherent jurisdiction as parens patriae has the power to order that a child undergo a DNA test in order to determine the child’s paternity. [283] Even if the common law of England was not in force in Malaysia by reason of section 3(1) of the CLA 1956, the case laws of England and India on the subject are of persuasive authority in Malaysia. The Supreme Court of India in Sharda v Dharmpal (supra), Goutam Kundu (supra) and Bhapani Prasad Jena (supra) and the English Court of Appeal in In Re L. (An Infant) (supra) and in B (BR) v B(J) (supra) have all held that the Courts have the power to make an order for a child to undergo a DNA test or blood test to determine his or her paternity. [284] Additionally, the Court of Appeal in the recent case of Stone World Sdn Bhd v Engareh (M) Sdn Bhd [2020] 4 CLJ 354; [2019] AMEJ 1483, CA (“Stone World v Engareh”) had held that Courts may extend S/N ttUrx/Fu30ypvxHcIbJxA its inherent jurisdiction “to any instance which requires its intervention in the absence of precise statutory regulation, or where injustice or abuse might otherwise result.” Zabariah Mohd Yusof JCA (as she then was) held: [62] It is to be noted that O. 92 r. 4 ROC is merely a declaratory provision which declares that the Rules do not limit or affect the inherent powers of the High Court. A reminder of the existence of such inherent power was further provided under r. 4. These inherent powers of the court are intrinsic to a superior court in order to facilitate the proper functioning of it as a court of law. “There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such limited jurisdiction. A court must enjoy such powers in order to enforce its rules of practice and to suppress any abuses of its process and to defeat any attempted thwarting of its process." (Connelly v. DPP [1964] AC 1254 at 1301). [63] Inherent powers of the court are separate and distinct source of jurisdiction from statutory powers of the court. They are residuary and reserve source of power. The inherent powers of the court are in addition to the powers specifically conferred by the rules on the court. They are complementary to those powers. The court is free to exercise them towards the ends of justice or to prevent the abuse of the process of the court. Thus it can be exercised cumulatively and concurrently with other sources of power. It is part of procedural law, not substantive law. It is invoked in relation to the process of litigation ………... Their application depends on the circumstances of the case. The significance of the doctrine of inherent jurisdiction lay in its flexibility, for the court can extend it to any instance which requires its intervention in the absence of precise statutory regulation, or where injustice or abuse might otherwise result. It should be exercised judiciously and should not be circumscribed by rigid criteria or tests. (Wee Soon Kim Anthony v. The Law Society of Singapore (Unreported; Civil Appeal No 6000 of 2001) (Wee Soon Kim Anthony). It must not be applied indiscriminately (See Malaysian Civil Procedure 2018 vol, 1 p. 1246). [Emphasis added] S/N ttUrx/Fu30ypvxHcIbJxA [285] Therefore, premised on the Court of Appeal’s decision in Stone World v Engareh, in the absence of any statutory or common law power to order a DNA test, the Courts nonetheless have the inherent power as parens patriae to order the taking of DNA tests on a child to determine paternity. [286] Accordingly, even if the English common law as administered in England on 7 April 1956 does not provide the English Courts with the jurisdiction to order a blood test on a child to determine paternity, and even if the laws of India and England are not of persuasive authority, the Courts in Malaysia may extend its inherent jurisdiction as parens patriae to fill in the legislative void to order a DNA test on a child to determine his or her paternity. Is it in the welfare and best interest of a child to know his/her biological parents? [287] This Court has found that the Plaintiff has established a prima facie case that he had sexual relations with the 1st Defendant during Child C’s conception period, particularly in September 2007, and that he may be the biological father of Child C. This Court has also concluded that Courts as parens patriae have the power to order that a child undertake a DNA test for purposes of determining his or her paternity. [288] The next question this Court must ask itself is whether it is in the best interest and welfare of Child C to know her biological father. [289] The presumption of legitimacy in section 112 of the EA is worded verbatim to the section 112 of the Indian Evidence Act 1872. It was para materia with section 114(1)(a) and (b) of the Singapore Evidence Act 1893 S/N ttUrx/Fu30ypvxHcIbJxA (Cap 97), until Singapore in 2013 amended the said section to do away with the requirement to prove “non-access”. Lord Denning MR in In L (An Infant) (supra) at pg. 153 D explained the presumption of legitimacy as follows: “The presumption of legitimacy goes back for centuries, long before blood tests. In order to decide the paternity of a child, the courts in those days had to rely upon circumstantial evidence. Illegitimacy was a grave stigma: and carried severe penalties on the child. So the courts raised a presumption of legitimacy. When a married woman bore a child, her husband was presumed to be the father unless the contrary was proved. The presumption was so strong that it could not be rebutted except by proof beyond reasonable doubt that the husband was not the father.” [290] The Courts in India, Singapore and Malaysia are all of the view that the section 112 of the EA (and the equivalent sections in the Indian and Singapore Evidence Acts) is an outdated provision. The provision was promulgated in the 19th century when, as observed by the Singapore High Court in AD v AE (cited below), it was not contemplated that the paternity of a child could be proved scientifically at a level of confidence beyond 99.9%, and was premised on the Victorian era view, that it was in the best interest of a child not to illegitimise or “bastardise” the said child. [291] Even Lord Denning in 1967 was of the view that “there is not nearly the same stigma on illegitimacy as there used to be” and that “the sins of the fathers are no longer visited on the children.” He said in In L (An Infant) at pg. 153 F-G: “Moreover, there is not nearly the same stigma on illegitimacy as there used to be. It can be, and often is, cured by subsequent marriage of the parents. Even when the parents do not marry, the penalties on the child have been largely removed. The sins of the fathers are no longer visited on the children.” S/N ttUrx/Fu30ypvxHcIbJxA [292] Nallini Pathmanathan JCA (as she then was) held in CAS v MPPL & Anor (No. 1) held: “[24] ……….. s. 112 of the EA which dates back to 1872. It is an outdated and anachronistic legal provision that ought to be construed and given effect in line with modern day scientific advancements.” ……………………….. [35] However, this 'supposed' policy reasoning behind s. 112 of the EA in not wanting to illegitimise children ought no longer to be the sole judicial philosophy in light of modern day global advancements in science and international human rights law. We find strong support for this view in the judgment of Ravindra Bhat J in Shri Rohit Shekhar v. Shri Narayan Dutt Tivoari & Anor A No 4720/2008 ………….. and we concur with his views. [293] In Singapore, Choo Han Teck J in AD v AE [2005] SGHC 30; [2005] 2 SLR 180 (a case prior to the amendment of the section 114 of the Singapore Evidence Act) said: “[8] Section 114 of the Evidence Act was promulgated at a time when it was not contemplated that the paternity of a child could be proved scientifically at a level of confidence beyond 99.9%. It was intended to avoid bastardising children and the social stigma that attached to it, more so in the past than today, perhaps. Although some changes to this section might be necessary to avoid more serious problems than the one before me, it is still useful to have a provision that presumes paternity, provided that it is not, as presently so, an irrebuttable or conclusive presumption.” [294] Crucially, the universal view of what is in the best interest of a child has moved on since the 19th century. It is now recognised that it is in the best interest of child to know his or her biological parents. As held by Ravindra Bhat J in Shri Rohit Shekar v Shri Narayan Dutt Tiwari & Anr [IA No. 4720/2008 in CA(OS) 700/2008 decided on 23 December 2010] (“Shri Rohit Shekar”): S/N ttUrx/Fu30ypvxHcIbJxA “23. The right of the child to know of her (or his) biological antecedents is now recognised internationally as being of critical importance. Major international instruments such as the UN Declaration on Human Rights have recognised the rights of a child irrespective of her (or his) legitimacy and the Convention on the Rights of Child, 1990 has expressly specified a right to knowledge of parenthood.

24

The Convention therefore, specifically requires that as far as possible, the State must enable the child to know of his true paternity...

25

A child's right to know of her or his biological parentage has had a critical influence also in many developments in Europe that have led to lifting the anonymity of a donor in assisted pregnancies and in case of sperm donors. …………….. These developments all over the world indicate that there is a very tenable argument in the child's interests that support its right to know the truth of its origin.” [Emphasis added] [295] It is not just in the best interest of children to know who their biological parents are. The English Court of Appeal in Anderson v Spencer (supra) held that it is in “the interest of the living” to know their biological identity. It held the English High Court was entirely correct to decide that based on the Court’s inherent jurisdiction, it had the jurisdiction to make the order for the test of the deceased’s DNA sample because it was in “the interests of the living in knowing their biological identity together with the interests of justice including the desirability of knowing the truth”. [296] Malaysia is a member of the United Nations and a signatory to the UNCRC. It had made reservations to several articles of the UNCRC including Article 7, which has not been ratified as law in Malaysia. Parliament had incorporated only part of the UNCRC in the Child Act 2001: it had left out, among others, the provisions in article 7 of the Convention. S/N ttUrx/Fu30ypvxHcIbJxA [297] Although Article 7 of the UNCRC is not ratified as law, our Courts are charged with the duty to interpret local statutes in a manner where their “language will be in conformity and not in conflict with international law”: see CAS v MPPL & Anor (No. 1) and Noorfadilla Ahmad Saikin v Chayed Basirun & Ors [2012] 1 CLJ 769; [2012] 1 MLJ 832. [298] As stated by the Court of Appeal in CAS v MPPL & Anor (No. 1) international treaties and conventions are not directly applicable to domestic law until and unless they are incorporated into domestic law. But where the law is ambiguous, Courts are required to interpret local statutes in a manner “where their language will be in conformity and not in conflict with international law”. [299] Furthermore, member states who are signatories of any conventions of the United Nations, whilst not obliged to ratify such convention into local law, are required “to refrain from acts that would defeat or undermine the treaty’s objective and purpose”. The United Nations in its publication entitled “How the Convention on the Rights of the Child works” states that: “While signing does not commit a State to ratification, it does oblige the State to refrain from acts that would defeat or undermine the treaty’s objective and purpose.” [300] As for the statutory provision in section 112 of the EA, the Court of Appeal in CAS v MPPL & Anor (No. 1) had held the presumption of legitimacy in the said section does not bar enquiries into the paternity of a child. The Court of Appeal held that it is in best interest of a child to know his or her biological parents. Nallini Pathmanathan JCA (as she then was) said: S/N ttUrx/Fu30ypvxHcIbJxA “[42](iv) In determining whether a paternity test ought to be ordered, the court must have regard to the best interests of the child. 'Best interests' here refers to the right of the child to know who his or her biological parents are. The court ought not to be concerned solely or wholly with fears of 'illegitimising the child'. When the factual disputes have been determined, the trial court can then go on to balance the competing interests of paternity and legitimacy and arrive at a fair and just determination of the matter. As matters stand, the plaintiff has been effectively deprived of the right to be heard fully.” (Emphasis added) [301] The Court of Appeal’s decision in CAS v MPPL & Anor (No. 1) was upheld by the Federal Court. It was cited with approval by the Federal Court in subsequent cases. In TR Sandah Tabau & Ors v Director of Forest, Sarawak & Anor and Other Applications [2019] 10 CLJ 436, [2019] 6 AMR 526; [2019] AMEJ 1090, FC, David Wong Dak Wah CJ (Sabah & Sarawak), held that notwithstanding the non-incorporation of article 7 of the UNCRC in the Child Act 2001, the Court of Appeal in CAS v MPPL & Anor (No.1), “applying the common law presumption on requiring conformity in international law, the Court of Appeal held that article 7 applied in spirit.” [302] Under the doctrine of stare decisis, the Court of Appeal’s decision that it is in the best interest of a child to know who his or her biological parents are, is binding on this Court. [303] Moreover, once Child C’s mother admitted to having sexual relations with the Plaintiff, and once this Court had made the finding of fact that the 1st Defendant had sexual relations with the Plaintiff during Child C’s conception period, the serious question arises — who is the biological father of Child C? Is it the 2nd Defendant? Or is it the Plaintiff? It could only be either of them. The Child has the right to know who her S/N ttUrx/Fu30ypvxHcIbJxA biological father is. It is in her best interest to know who her biological father is. The only way the question of the Child’s paternity can be resolved conclusively is by way of a DNA test. Science has come a long way from blood test that Lord Denning referred to in the custody and paternity cases of In L (An Infant) and B (BR) v B(J) respectively. A DNA test can tell with 99.96% rate of accuracy as to who the father of Child C is. In Lau Zhan Chen (supra), Abdul Malek Ishak J (as he then was) said: “where scientific evidence by means of a blood test, can resolve the issue of paternity conclusively, the interests of justice require that a blood test should be done, in the absence of strong reasons to the contrary.” [304] In this instant case, there are no strong reasons to the contrary as to why the Child should not undertake the DNA test. I find that the Defendants’ counsel’s argument that “the Child was raised and brought up by the Defendants knowing the Defendants to be her biological parents” is not a strong enough reason as why the Child should not undertake a DNA test to determine her paternity. [305] Based on the 1st Defendant’s admission to sexual relations with the Plaintiff and this Court’s findings of fact that the Plaintiff has made a prima facie case that he had sexual intercourse with the 1st Defendant during the Child’s conception, I disagree with the Defendants’ counsel’s submission that the dispute as regards the Child’s paternity “has been built purely on speculative assertions". The 1st Defendant had admitted to sexual relations with the Plaintiff from 2005 to 2014. She only denies sexual relations with him during the months of August, September and October 2007, which for the reasons discussed above, this Court has found to be untrue. S/N ttUrx/Fu30ypvxHcIbJxA [306] Accordingly, based on these reasons, I am of the opinion that it is in the Child’s best interest to undergo a DNA test to determine her paternity. Hence, I find that this Court ought to make an order for Child C to undergo a DNA test to determine her paternity. [307] Nevertheless, if the DNA test results show that the Plaintiff is Child C’s biological father, in my view, it would be in the Child’s best interest and welfare that the Plaintiff be reintroduced to her gradually and under the guidance and advice of a qualified child psychologist with experience in the disclosure of the biological origins/parents of children. Decision [308] Accordingly, for the reasons above, I hereby make the following orders:

a

(a) that either the 1st Defendant and/or the 2nd Defendant shall bring Child C to Hospital Tunku Azizah (formerly known as the Kuala Lumpur Women and Children Hospital)(“the Hospital”) within 7 days from the service of the order on the 1st Defendant and/or the 2nd Defendant to enable the Hospital to take all the necessary steps to obtain specimens, by intimate or non-intimate means as decided by a medical professional at the Hospital, from Child C and the Plaintiff in order for a DNA test be carried out to determine the Child’s paternity in relation to the Plaintiff;

b

(b) that if the results of the DNA test show that the Plaintiff is the biological father of Child C, the following orders be made:

i

(i) a declaration that the Plaintiff is the biological father of the Child; S/N ttUrx/Fu30ypvxHcIbJxA

Subparagraph

(ii) the Plaintiff and the 1st Defendant and/or the 2nd Defendant shall appoint, within 21 days of the DNA test results or such longer period as mutually agreed by the parties, a qualified child psychologist with experience in the disclosure of the biological origins/parents of children, to advice and guide the parties as to how to reintroduce the Plaintiff into Child C’s life and his access to Child C;

Subparagraph

(iii) if the parties cannot agree on the appointment of the child psychologist with the said 21 days or the mutually agreed period, either the Plaintiff or the Defendants may apply to this Court for the appointment of such suitably qualified and experience child psychologist; and

Subparagraph

(iv) the Plaintiff is at liberty to apply for further orders relating to his access to Child C and the method of payment of maintenance for Child C upon receipt of the advice and guidance of the child psychologist. [309] There is no order as to costs. Dated: 21 June 2022 FAIZAH JAMALUDIN Judge High Court of Malaya at Kuala Lumpur S/N ttUrx/Fu30ypvxHcIbJxA COUNSELS: For the Plaintiff: Honey Tan Lay Ean (Matt Wong and Tay Kit Hoo with her) Messrs Tan Law Practice No. 40, Jalan Bachang, Off Jalan Sultan Azlan Shah 51200 Kuala Lumpur For the Defendants: Kiran Dhaliwal (Foo Yet Ngo and Yu Yi Lin with her) Messrs Y N Foo & Partners H-2-12, Block H, Plaza Damas, Jalan Sri Hartamas 1, 50480 Kuala Lumpur S/N ttUrx/Fu30ypvxHcIbJxA

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