Pendaftar Besar Kelahiran dan Kematian, Malaysia v Leong Wei Kid & Anor

Appellant(s): Pendaftar Besar Kelahiran Dan Kematian Jabatan Pendaftaran Negara Malaysia

Respondent(s):

• Leong Wei Kid
• Foo Chiew Huey (Memohon Bagi Pihak Mereka Sendiri Dan Sebagai Wakil Litigasi Leong Weng Onn, Seorang Kanak-kanak)

YA Datuk Hayatul Akmal binti Abdul Aziz

• A child (LWO) was born in Malaysia in 2009 and initially registered as the biological child of the respondents (both Malaysian citizens), resulting in a birth certificate recording him as a Malaysian citizen. When LWO applied for a MyKad at age 12, JPN investigations revealed the respondents had provided false parental information; they admitted LWO was not their biological child and that his biological parents were unknown.
• Following the investigation, JPN corrected the birth register under s.27(3) of the Birth and Death Registration Act 1957 (BDRA 1957), reissuing a birth certificate recording LWO's citizenship status as "Bukan Warganegara." The respondents subsequently obtained a court adoption order and filed an Originating Summons seeking a declaration that LWO was a Malaysian citizen by operation of law under Article 14(1)(b) read with ss.1(e) and 2(3) of Part II of the Second Schedule of the Federal Constitution (FC).
• The High Court allowed the application and declared LWO a Malaysian citizen, prompting the appellant (Registrar-General) to appeal to the Court of Appeal.

• Whether LWO satisfied the constitutional requirements for citizenship by operation of law under Article 14(1)(b) read with s.1(e) of Part II of the Second Schedule of the FC, specifically whether the jus sanguinis requirement (that LWO was "not born a citizen of any country") could be established where the biological parents' identities and citizenship status were entirely unknown.
• Whether the burden of proof to establish LWO's lineage and statelessness rested on the respondents, and whether a bare positive assertion — unsupported by evidence of the biological parents' citizenship — was sufficient to discharge that burden.
• Whether the appellant's correction of the birth register under s.27(3) BDRA 1957 (changing LWO's status from "Warganegara" to "Bukan Warganegara") constituted an unlawful revocation of citizenship, or was a lawful exercise of the appellant's statutory duty to maintain accurate birth records.

• The Court held that citizenship by operation of law under Article 14(1)(b) read with s.1(e) requires satisfaction of both jus soli and jus sanguinis; since LWO's biological parents were entirely unknown, it was impossible to establish the requisite blood lineage, and the constitutional requirement of jus sanguinis remained unsatisfied. The Court affirmed that the burden lay on the respondents throughout to prove LWO's lineage, and a bare assertion of statelessness without cogent evidence of the biological parents' citizenship was insufficient.
• The Court rejected the High Court's approach of granting the "benefit of the doubt" to the respondents, finding it impermissible for the respondents to benefit from their own misrepresentation, and that factors such as LWO's residence in Malaysia and school attendance were legally irrelevant as they flowed directly from the falsely obtained first birth certificate.
• The Court held that the correction of the birth register under ss.27(3) and 28 of the BDRA 1957 was a lawful exercise of the appellant's statutory duty to maintain accurate records, and did not constitute a revocation of citizenship. The appeal was allowed, the High Court's decision was set aside, and no order as to costs was made.