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2024 MarsdenLR 928
HIGH COURT MALAYA KUALA LUMPUR
LIM POH CHUAN – Appellant
Versus
LIM POH LEONG – Respondent
[Originating Summons No: WA-24NCVC-710-12-2022]
The court cannot compel DNA testing for paternity without a legal basis, and the burden of proof lies with the Plaintiff to establish his claims.
Headnote:(A) Courts of Judicature Act 1964 – Section 24(d) – Deoxyribonucleic Acid (DNA) Identification Act 2009 – Application for DNA testing to establish paternity – Plaintiff sought to compel Defendant to undergo DNA testing to prove sibling relationship with deceased – Court held no legal basis for such an order as Plaintiff is not a child under the law – Inherent jurisdiction of the Court cannot be invoked to facilitate substantive rights. (Paras 1, 6, 10, 18)
(B) Burden of Proof – The Plaintiff bears the burden to prove the authenticity of his birth certificate and relationship to the deceased – Court emphasized that the Plaintiff must provide evidence supporting his claim, not merely rely on the birth certificate. (Paras 14, 15)
Facts of the case: The Plaintiff claimed to be a child of the deceased and sought a DNA test to establish his entitlement to the deceased's estate, challenging the Defendant's status as the sole heir. The Defendant objected, citing lack of legal grounds for the application. (Paras 1-5)
Findings of Court: The Court found that the Plaintiff did not meet the legal criteria for ordering a DNA test and failed to provide sufficient evidence to support his claim of paternity. (Paras 10, 18)
Issues: The main issues were whether the Plaintiff could compel a DNA test and the legal basis for such an order in the absence of a child. (Paras 1, 6)
Ratio Decidendi: The Court ruled that it lacked the authority to compel DNA testing without a clear legal provision and that the Plaintiff must prove his claims with adequate evidence. (Paras 7, 18)
Result: Application dismissed with costs.
JUDGMENT
Application To Order For DNA Testing
[1] The Plaintiff filed this application [Encl 28] seeking for this Court to order the parties to undergo a DNA test to determine whether they are siblings from the same father. The basis cited for the Plaintiff's application was because the Defendant did not admit and acknowledge that the Plaintiff is an issue of Lim Kean Chie (the deceased) who is the Defendant's father. The Defendant challenged the data on the birth certificate of the Plaintiff that stated the father as the deceased. The issue for trial is whether the Plaintiff is entitled to a distributive share of the deceased's estate.
[2] The Plaintiff relied on the inherent powers of this Court for such orders. The Defendant vehemently objected to this application. It was argued that there are no provisions of law that allow for such orders sought by the Plaintiff. This Court heard submissions that s 24(d) Courts of Judicature Act 1964 (CJA) only allows the Court to order DNA testing for a child where here neither the Plaintiff nor the Defendant is a child.
The Facts Pleaded
[3] The Defendant, the only child of the deceased and Toh Guat Huah was named as the deceased lawful heir, as Toh was. Back in 10 July 1990, the Defendant was appointed as the Administrator of the deceased's estate.
[4] The Plaintiff claimed he was a child of the deceased and filed this suit thirty-two (32) years after the Letter of Administration had been issued. He produced a photocopy of his birth certificate that stated the deceased's name in the 'Father' section.
[5] The Plaintiff's suit is to revoke the Letter of Administration and claim for his entitlement to the deceased's estate. Enclosure 28 was filed to counter the Defendant's challenge that the Plaintiff was the issue of the deceased.
The Defendant's Objection
[6] The Defendant who professed to have no knowledge of the existence of the Plaintiff for the past sixty-five years of his life, objected to Encl 28. Arguing that there was no legal basis for such an application, the Defendant referred to the Deoxyribonucleic Acid (DNA) Identification Act 2009 (DNA Act). As the provisions of the DNA Act only apply to criminal proceedings, the Defendant submitted that he could not be compelled to take the DNA test in civil proceedings like these. Furthermore, it was not for the purpose of resolving paternity disputes.
This Court's Consideration
[7] This Court was invited to consider the decision in Peter James Binsted v. Jevencia Autor Partosa, [2000] 2 MLJ 569 where it was held that there was no general power for the High Court to compel a person to undergo a DNA test to ascertain paternity. Any person like the Defendant was entitled to refuse to submit to such DNA test and the courts cannot compel him in the absence of any legal provisions.
[8] A case this Court considered deeply is Lee Lai Cheng (suing as the next friend of Lim Chee Zheng and herself) v. Lim Hooi Teik, [2017] 6 CLJ 668 where the Court decided not to invoke its inherent jurisdiction and powers as it viewed that was limited to prevent injustice or abuse of the Court process. Reliant upon O 92 r 4 Rules of 2012 (RoC) and IH Jacob's article 'The Inherent Jurisdiction of the Court' Current Legal Problems (1970) 23(1): A23-52, it upheld that the provision is only defensive in nature to abate procedural injustice. To borrow the exact words in the decision:
"In other words, the inherent power cannot be utilized to invoke or facilitate a substantive right, albeit unjustly denied."
[9] As to s 24(d) relied on by the Defendant, the civil jurisdiction of this Court includes "jurisdiction to appoint and control guardians of infants and generally over the persons and property of infants." In England, the courts had long recognize this in common law as it derived from the right and duty of the Crown as parens patriae to take care of children in their kingdom who were not able to take care of themselves. Closer to home, the Court of Ap
