1. TONG SIEW ENG (menyaman sebagai sahabat wakil TONG YUN YI) 2. TONG YUN YI 1. RAJA MALINA BINTI R OTHMAN 2. PEGAWAI PENDAFTARAN, JABATAN PENDAFTARAN NEGARA, DAERAH KULAI, JOHOR

JA-24NCvC-682-11/2020 15 June 2021 ……………………………………………………………………………………………… IN THE HIGH COURT OF MALAYA AT JOHOR BAHRU IN THE STATE OF JOHOR DARUL TAKZIM, MALAYSIA ORIGINATING SUMMONS NO: JA-24NCvC-682-11/2020 BETWEEN 1. TONG SIEW ENG (menyaman sebagai sahabat wakil TONG YUN YI) 2. TONG YUN YI ... PLAINTIFFS AND 1. RAJA MALINA BINTI R OTHMAN 2. PEGAWAI PENDAFTARAN, JABATAN PENDAFTARAN NEGARA, DAERAH KULAI, JOHOR ... DEFENDANTS GROUNDS OF JUDGMENT ________________________________________________________________________ 1 JA-24NCvC-682-11/2020 15 June 2021 ……………………………………………………………………………………………… Introduction [1] This was the Plaintiffs’ application (“this Application”) for an Order that an identity card (“MyKad”) be issued by the Defendants to the Second Plaintiff, who had reached the age of 12 on 3 January 2020. The background facts [2] The First Plaintiff claimed to be the biological mother of the Second Plaintiff, who was purportedly born on 3 January 2008. Upon reaching the age of 12 on 3 January 2020, an application for the issuance of the MyKad was made by the First Plaintiff for the Second Plaintiff. [3] The First Defendant (the Registration Officer of the Second Defendant), through a letter dated 9 March 2020, had informed the First Plaintiff that the matter was under investigation, as the details of the biological parents of the Second Plaintiff were doubtful. On 23 September 2020, a subsequent letter was issued on behalf of the Second Defendant requesting for the First Plaintiff’s cooperation in providing further information for the purpose of processing the Second Plaintiff’s MyKad. The First Plaintiff, however, refused and instead, through her solicitors, sent a letter dated 17 November 2020 to the Defendants, containing an ultimatum that they would take action if the MyKad was not issued. [4] On 26 November 2020, the Plaintiffs filed this Application pursuant to section 44 of the Specific Relief Act 1950, which was dismissed for the following reasons. ________________________________________________________________________ 2 JA-24NCvC-682-11/2020 15 June 2021 ……………………………………………………………………………………………… Contentions, evaluation, and findings [5] The Defendants, in resisting this Application, relied on regulations 5 and 21 of the National Registration Regulations 1990 (“National Registration Regulations”), which read: Regulation 5 – Issue of identity cards (1) The registration officer may at his discretion issue to the person giving the particulars referred to in regulation 4 an identity card as prescribed in sub-regulation (2) of this regulation containing a copy of such person's photograph, fingerprints impressions and such other particulars as may be necessary for his identification. (2) An identity card shall contain the particulars as prescribed in the First Schedule or Schedule 1A, as the case may be, and such other particulars as may be necessary for the identification of the person to whom it is issued. … ********* Regulation 21 – Registration officer may call for further information (1) A registration officer may, for the purpose of carrying out provisions of these Regulations and any order made under- (a) call upon any person to appear before him to answer any question which he may consider it reasonably necessary to ask him for such purpose; (b) require- (i) any person applying for registration under the Regulations; or (ii) any person registered under these Regulations; (iii) any person exempted from registration under the Regulations; ________________________________________________________________________ 3 JA-24NCvC-682-11/2020 15 June 2021 ……………………………………………………………………………………………… to make further declaration or furnish further particulars or documents as he may reasonably require; or (c) impound any document produced to him in connection with any application for registration or for a replacement identity card if he has reason to doubt its genuineness correctness or validity of the issue thereof. (2) A registration officer may administer any affirmation or statutory declaration which may be required for the purposes of these Regulations, and any person summoned before him under these Regulations may be examined by him on affirmation. [Emphasis added] [6] Pursuant to regulation 21 of the National Registration Regulations, a letter dated 23 September 2020 was issued by the Second Defendant, requesting the First Plaintiff to facilitate proof of her biological relationship with the Second Plaintiff. The relevant parts of the letter read: Tuan/Puan diminta menghubungi pihak kami dalam tempoh 14 hari dari tarikh surat ini ke Bahagian Siasatan dan Penguatkuasaan Jabatan Pendaftaran Negara, Negeri Johor pada waktu pejabat bagi menentukan tarikh temujanji untuk urusan Ujian Perbandingan Darah (DNA) diantara tuan/puan bersama pemohon seperti nama di atas. Segala kos ujian tersebut akan ditanggung oleh pihak tuan/puan. Sila bawa bersama dokumen-dokumen berikut: 3.1 Kad pengenalan Tuan/Puan 3.2 Sijil Nikah/ Cerai – (Sijil Mati suami jika berkenaan). 3.3 Sijil Kelahiran adik beradik subjek 3.4 Gambar ukuran passport subjek, ibu subjek dan adik beradik subjek 3.5 Gambar ukuran poskad (3R) subjek sahaja 3.6 Buku Pemeriksaan Buku Ibu Mengandung dan Buku Kesihatan subjek ________________________________________________________________________ 4 JA-24NCvC-682-11/2020 15 June 2021 ……………………………………………………………………………………………… [7] The Plaintiffs expressed consternation and took umbrage to this request, claiming that it was degrading and insulting to the First Plaintiff to be asked to prove that she is the biological mother of the Second Plaintiff, since she averred that there was nothing in the documents that had indicated otherwise. Whether the Defendants’ request was reasonable [8] The Defendants had explained, via affidavit evidence, that their request for the First Plaintiff to provide further information regarding the registration of the Second Plaintiff’s birth pursuant to the Births And Deaths Registration Act 1957, was due to doubts that arose regarding the details pertaining to the biological relationship between the First and Second Plaintiffs, as there was a wide age gap between Second Plaintiff and her purported sibling. [9] Secondly, it was undisputed that the medical centre where the Second Plaintiff was allegedly born, could not verify the details of her birth, and this was confirmed by one Dr Robert Luk Tai Kong, as he claimed, via letters written to the Second Defendant, that the records were confiscated by the police pursuant to investigations that they were compelled to carry out. [10] The Defendants’ doubts were also compounded by the fact that Dr Robert Luk, who had attended to the Second Plaintiff’s birth, was charged in 2008 (and eventually convicted) with falsifying information of the biological parents of several babies to obtain birth ________________________________________________________________________ 5 JA-24NCvC-682-11/2020 15 June 2021 ……………………………………………………………………………………………… certificates, using forged application forms for the birth certificates, and endorsing certain couples as the biological parents when they were not. These charges were proffered against Dr Robert Luk in the same year that the Second Plaintiff was born. [11] In light of these undisputed facts surrounding the birth of the Second Plaintiff, it was not unreasonable for the Defendants to harbour doubts about the biological relationship between the First and Second Plaintiffs, and to make such request via the letter of 23 September 2020. [12] It is trite that the Court cannot usurp the powers or the executive, especially where the executive has exercised its discretion reasonably (see Robert John Reeves v. Menteri Sumber Manusia Malaysia & Anor [2000] 1 CLJ 180). In light of my finding that the Defendants had acted with perspicuity and reasonableness, there was no basis for the Court to compel the Defendants to issue the MyKad to the Second Plaintiff. Whether the burden of proof was on the Defendants [13] The Defendants had invited the Court’s attention to regulation 24 of the National Registration Regulations, which provides that the burden was on the Plaintiffs to prove the truth of the contents in the application for the issuance of the MyKad. Regulation 24 of the National Registration Regulations reads: Regulation 24 – No presumption concerning contents of identity cards, etc (1) The burden of proving the truth of the contents of any written application for registration under these Regulations, or the contents of an identity card, ________________________________________________________________________ 6 JA-24NCvC-682-11/2020 15 June 2021 ……………………………………………………………………………………………… shall be on the applicant, or on the person to whom such identity has been issued, or on any other person alleging the truth of such contents. (2) Where any person claims that he is an exempted person the burden of proving such fact shall lie upon him. [Emphasis added] [14] The Plaintiffs contended that the applicable provisions were sections 101 and 102 of the Evidence Act, which imposed the burden on the Defendants to disprove the biological relationship between the First and Second Plaintiffs, and that it was not for the Plaintiffs to prove otherwise. Sections 101 and 102 of the Evidence Act read: Section 101 – Burden of proof (1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. **** Section 102 – On whom burden of proof lies 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. [15] The Plaintiffs further submitted that the provisions in the Evidence Act should prevail over those in the National Registration Regulations, in light of the fact that the National Registration Regulations is merely subsidiary legislation enacted pursuant to the National Registration Act, in comparison to the Evidence Act. ________________________________________________________________________ 7 JA-24NCvC-682-11/2020 15 June 2021 ……………………………………………………………………………………………… [16] I was unable to agree with the Plaintiffs on the burden of proof, as the National Registration Regulations is a specific legislation whilst the Evidence Act is general in nature, thus invoking the time-honoured maxim generalia specialibus non derogant. In any event, the relevant and applicable provision in the Evidence Act that was underscored was section 106, which reads: Section 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. [Emphasis added] [17] The rationale for section 106 of the Evidence Act was detailed by Augustine Paul J (as he then was) in PP v Hoo Chee Keong [1997] 4 MLJ 451, in the following passage: … is an exception to section 101 of the Evidence Act which lays down the general rule that in a criminal case, the burden of proof is on the prosecution and 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 ‘especially’ within the knowledge of the accused and which he could prove without difficulty or inconvenience. … The two Illustrations to the section make its application clear. Where a person is found travelling without a ticket and is charged with so travelling, the prosecution need not and indeed cannot prove that the man never had a ticket. Once it is proved that he was travelling without a ticket, a case against him is established. If the accused person once had a ticket and lost it, then such a fact is especially within his knowledge and it is for him to prove such a fact. Similarly when a person does an act with some intention other than that which the character and circumstances of the act suggest, it is not for the prosecution to eliminate all other possible ________________________________________________________________________ 8 JA-24NCvC-682-11/2020 15 June 2021 ……………………………………………………………………………………………… intentions. If the accused had a different intention, that is a fact especially within his knowledge which he must prove. [Emphasis added] [18] The word ‘especially’ in section 106 of the Evidence Act was explained in the case of PP v Lim Kwai Thean [1959] 1 MLJ 179, in the following passage: It does not say ‘exclusively’ or ‘solely’ within the knowledge of any person. And, as I see it, the effect of the word ‘especially’ is this: That if it is an easy matter for the person, the proof of which by the prosecution would present the prosecution with inordinate difficulties, then ordinary common sense demands that the balance of convenience should be in favour of the prosecution. [19] Although the references above were made to criminal cases, the principle with regard to section 106 of the Evidence Act applies equally to a civil case. As such, it was the First Plaintiff who had the burden of proving the truth of the contents in the application for the issuance of the MyKad, as she was in the best position to do so since, she would have had special knowledge of the facts. [20] Bearing in mind that it was the First Plaintiff who had the legal burden to prove the truth of the contents in the application for the issuance of the MyKad, it was not wrong for this Court to make an adverse inference against the First Plaintiff for her refusal in cooperating to facilitate proof of her biological relationship with the Second Plaintiff. ________________________________________________________________________ 9 JA-24NCvC-682-11/2020 15 June 2021 ……………………………………………………………………………………………… Whether the Defendants’ conduct had infringed articles 5 and 8 of the Federal Constitution [21] The Plaintiffs, in relying heavily on Hong Leong Equipment Sdn. Bhd. v. Liew Fook Chuan & Other Appeals [1997] 1 CLJ 665, argued that the Defendants’ conduct was unconstitutional as it had violated articles 5 and 8 of the Federal Constitution, which read: Article 5 – Liberty of the person (1) No person shall be deprived of his life or personal liberty save in accordance with law. … ********* Article 8 – Equality (1) All persons are equal before the law and entitled to the equal protection of the law. (2) Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment. … [22] In my view, this argument was untenable in light of the fact that first and foremost, the Defendants were acting in accordance with the law prescribed by regulation 21 of the National Registration Regulations. ________________________________________________________________________ 10 JA-24NCvC-682-11/2020 15 June 2021 ……………………………………………………………………………………………… Secondly, all that the First Plaintiff was asked to do was to facilitate proof of her biological relationship with the Second Plaintiff. Thirdly, the reliance on the provisions in the Federal Constitution was misconceived, as the Court in Hong Leong Equipment Sdn. Bhd. v. Liew Fook Chuan & Other Appeals had to deal with an application for judicial review of the decision of the Minister pursuant to the Industrial Relations Act 1967, which is a social legislation. The present case had nothing to do with judicial review of any decision because there was no decision that was made in the first place, for there to be any review of. In any event, the relevance of article 5 of the Federal Constitution in Hong Leong Equipment Sdn. Bhd. v. Liew Fook Chuan & Other Appeals was in the context of the right to livelihood. [23] The Plaintiffs had also submitted at length on the infringement of the equality provision in article 8 of the Federal Constitution. In my view, the Plaintiffs’ reliance on article 8 of the Federal Constitution in this situation was misconceived. I had already alluded to the fact that the Defendants were acting in accordance with regulation 21 of the National Registration Regulations in requesting for further information or details regarding the birth of the Second Plaintiff. However, I am impelled to address the issue of article 8 of the Federal Constitution, which was put very aptly by the Federal Court in the case of Beatrice Fernandez v Sistem Penerbangan Malaysia and Anor [2005] 2 CLJ 713: The equal protection in clause (1) of article 8 thereof extends only to persons in the same class. It recognises that all persons by nature, ________________________________________________________________________ 11 JA-24NCvC-682-11/2020 15 June 2021 ……………………………………………………………………………………………… attainment, circumstances and the varying needs of difference classes of persons often require separate treatment. [Emphasis added] [24] I also found instructive the Federal Court cases of PP v. Khong Teng Khen & Anor [1976] 1 LNS 100, and Datuk Haji Harun Idris v PP [1976] 1 LNS 19, where in the latter case it was stated by Suffian LP: The principle underlying Article 8 is that a law must operate alike on all persons under like circumstances, not simply that it must operate alike on all persons in any circumstances, nor that it 'must be general in character and universal in application and that the State is no longer to have the power of distinguishing and classifying persons... for the purpose of legislation', Kedar Nath v State of West Bengal (AIR 1953 SC 404 406). In my opinion, the law may classify persons into children, juveniles and adults… the law may classify persons into women and men, or into wives and husbands, and provide different rights and liabilities attaching to the status of each class; …. All that Article 8 guarantees is that a person in one class should be treated the same as another person in the same class, so that a juvenile must be tried like another juvenile, a ratepayer in one area should pay the same rate as paid by another ratepayer in the same area, and a millionaire the same income tax as another millionaire, and so on. [Emphasis added.] [25] In that case, it was said that discrimination is allowed if it was made on "reasonable" or "permissible" classification, provided that (i) the classification is founded on an intelligible differentia which distinguished persons that are grouped together from others left out of the group; and that (ii) the differentia has a rational relation to the object sought to be achieved by the law in question. The classification may be founded on different bases such as geographical, or according to ________________________________________________________________________ 12 JA-24NCvC-682-11/2020 15 June 2021 ……………………………………………………………………………………………… objects or occupations and the like. What is necessary is that there must be a nexus between the basis of classification and the object of the law in question. In fact, in Ahmad Tajudin Ishak v Suruhanjaya Pelabuhan Pulau Pinang [1997] 2 MLJ 241, it was explained by Malek Ahmad JCA, that ‘that nexus may be based on sociological or economic or cultural considerations.’ [26] The Plaintiffs, in this case, took the position that the Defendants were obliged to issue the MyKad to the Second Plaintiff, and that the Second Defendant’s request for the First Plaintiff to facilitate proof of her biological relationship with the Second Plaintiff was unfair and discriminative of the Plaintiffs. In my view, this was a case where the Defendants had grounds (as alluded to earlier) for suspecting that the information in the application for the issuance of the MyKad for the Second Plaintiff, was untrue. Therefore, unless the Plaintiffs could adduce evidence to prove that the Defendants had conducted themselves differently towards other applicants in similar situations as the Plaintiffs, their reliance on article 8 of the Federal Constitution was totally misconceived. Whether Plaintiffs were entitled to equitable relief [27] In light of the findings above, this Application cannot be allowed, as the First Plaintiff, by failing to cooperate, but instead issuing an ultimatum to the Defendants, had not come to court with clean hands. Even if the Plaintiffs abhorred the suggestion of having a DNA test conducted to determine the biological relationship between the First and Second ________________________________________________________________________ 13 JA-24NCvC-682-11/2020 15 June 2021 ……………………………………………………………………………………………… Plaintiffs, due to the sensitivity of this matter, the First Plaintiff, instead of remaining furtive, could have agreed to cooperate in other ways to enable the Defendants to process the MyKad, or at least to have some discussion with the Defendants to resolve this matter. In my view, therefore, the Plaintiffs’ conduct in preempting the Defendants’ final decision with regard to the application for the issuance of the MyKad, was inequitable, improper and nothing but a ‘knee-jerk reaction. [28] This was compounded by the fact that the requirements in section 44 of the Specific Relief Act had not been established. The provision reads: Section 44 – Power to order public servants and others to do certain specific acts (1) A Judge may make an order requiring any specific act to be done or forborne, by any person holding a public office, whether of a permanent or a temporary nature, or by any corporation or any court subordinate to the High Court: Provided that- (a) an application for such an order be made by some person whose property, franchise, or personal right would be injured by the forbearing or doing, as the case may be, of the said specific act; (b) such doing or forbearing is, under any law for the time being in force, clearly incumbent on the person or court in his or its public character, or on the corporation in its corporate character; (c) in the opinion of the Judge the doing or forbearing is consonant to right and justice; (d) the applicant has no other specific and adequate legal remedy; and (e) the remedy given by the order applied for will be complete. ________________________________________________________________________ 14 JA-24NCvC-682-11/2020 15 June 2021 ……………………………………………………………………………………………… … [29] At this juncture, reference was made to Koon Hoi Chow v. Pretam Singh [1972] 1 LNS 56 and Chin Kooi Nah (Suing By Herself And As Next Of Kin To Chin Jia Nee, An Infant) v. Pendaftar Besar Kelahiran Dan Kematian, Malaysia [2016] 1 CLJ 736, where it was held that all the five conditions laid down in section 44 of the Specific Relief Act are cumulative and must be fulfilled. [30] In the present case, there was no forbearing or doing of a particular act as provided for in section 44(1)(a) of the Specific Relief Act, since the Defendants had not made any decision regarding the issuance of the MyKad to the Second Plaintiff, as they were in still in the process of investigation. It was the Plaintiffs who had assumed that a final decision had been made and proceeded to file this Application. [31] Furthermore, it was not a case where the Plaintiffs had no other specific and adequate legal remedy, as provided for in section 44(1)(d) of the Specific Relief Act. Their remedy was to cooperate with the Defendants, and their refusal to do so was the root of the conundrum that they had found themselves in. Conclusion [32] In the final analysis, this was a straightforward case where the Defendants were in compliance with the law when they had asked the First Plaintiff to cooperate in providing further information, but where ________________________________________________________________________ 15 JA-24NCvC-682-11/2020 15 June 2021 ……………………………………………………………………………………………… the First Plaintiff had deliberately refused to do so. In fact, if the MyKad was of such great importance to the Plaintiffs, the cooperation by the First Plaintiff would have enabled parties to arrive at a quicker and more effective resolution of this matter, instead of filing this Application and wasting precious judicial time. [33] In my view, it would not be an understatement to say that the First Plaintiff, in refusing to cooperate with the Defendants, had triggered the application of the penal provision in regulation 25(1)(c) of the National Registration Regulations, which reads: Regulation 25 – Offences and penalties (1) Any person who- … (c) fails to comply with a summons or requisition of a registration officer made under regulation 21; … shall be guilty of an offence against these Regulations and shall be liable on conviction to imprisonment for a term not exceeding three year or to a fine not exceeding RM20,000 or both. … [Emphasis added.] [34] In the upshot, based on the aforesaid reasons, and after judicious consideration of all the evidence before this Court, including submissions of both parties, this Application was dismissed, with costs. ________________________________________________________________________ 16 JA-24NCvC-682-11/2020 15 June 2021 ……………………………………………………………………………………………… Dated: 15 June 2021 ………SIGNED……… (EVROL MARIETTE PETERS) Judicial Commissioner High Court, Johor Bahru Counsel For the Plaintiffs – Ong Kow Meng; Messrs KM Ong, Lee & Co For the Defendants – Haji Jailani bin Haji Abdul Rahman; Senior Federal Counsel Cases referred to:  Ahmad Tajudin Ishak v Suruhanjaya Pelabuhan Pulau Pinang [1997] 2 MLJ 241  Beatrice Fernandez v Sistem Penerbangan Malaysia and Anor [2005] 2 CLJ 713  Chin Kooi Nah (Suing By Herself And As Next Of Kin To Chin Jia Nee, An Infant) v. Pendaftar Besar Kelahiran Dan Kematian, Malaysia [2016] 1 CLJ 736  Datuk Haji Harun Idris v PP [1976] 1 LNS 19  Hong Leong Equipment Sdn. Bhd. v. Liew Fook Chuan & Other Appeals [1997] 1 CLJ 665  Koon Hoi Chow v. Pretam Singh [1972] 1 LNS 56 ________________________________________________________________________ 17 JA-24NCvC-682-11/2020 15 June 2021 ………………………………………………………………………………………………  Malaysian Bar v Government of Malaysia [1987] CLJ Rep 187  PP v Hoo Chee Keong [1997] 4 MLJ 451  PP v Lim Kwai Thean [1959] 1 MLJ 179  PP v. Khong Teng Khen & Anor [1976] 1 LNS 100  Robert John Reeves v. Menteri Sumber Manusia Malaysia & Anor [2000] 1 CLJ 180 Legislation referred to:  Births And Deaths Registration Act 1957  Evidence Act 1950 – sections 101, 102, 106  Industrial Relations Act 1967  National Registration Regulations 1990, regulations 5, 21, 24, 25  Specific Relief Act 1950 – section 44 ________________________________________________________________________ 18