Abdul Hamid Omar LP:

This is an appeal from the judgment of the High Court, Kota Bahru. We heard the appeal on 2 March 1990 and gave a short oral judgment. We indicated that in view of the importance of this case we would give a written judgment. We do so now.

We have studied minutely the appeal records and given full weight to the various views expressed by the trial Judge and the Counsel before us. However, many of the issues dealt with by the learned Judge were not quite relevant for the decision of this appeal. In our grounds of judgment, we shall only place emphasis to those matters in respect of which we think some explanation would be helpful for future cases.

The facts of the case according to the affidavits filed and submission made by Counsel are quite simple in our view. The plaintiff is a Buddhist and his daughter Susie Teoh Bee Kue (referred to as "the infant") born on 5 April 1968 and nearing the age of 18 years, a minor by secular law, was found missing on 18 April 1985. The discovery of her absence was made by her boyfriend, Tan Boon Hwee. After futile searches for a week, the plaintiff's son-in-law then made a police report. Later it was reported that she was converted on 22 December 1985 as a Muslim by the Kadi of Pasir Mas, Kelantan. There is no evidence at all that the plaintiff's daughter was persuaded by any responsible person or authority in any manner to purportedly change her religion. In fact, it would appear that at the material time, the plaintiff's daughter had two boyfriends, one known and approved by the father and the other unknown to the father with whom apparently she disappeared, leaving no clue about her whereabouts, when the hearing took place.

The original action was filed in Kota Bahru High Court seeking a declaration that the plaintiff, as the lawful father and guardian has the right to decide her religion, education and upbringing. There were also other prayers seeking consequential relief. The application of the plaintiff was dismissed with costs. The girl has now reached the majority of age and therefore the appeal in so far as this case is concerned is purely of academic interest.

We have carefully studied the grounds of judgment by the learned Judge who made a thorough analysis of law and facts but in our considered opinion the trial Judge was wrong in both law and facts. It is to be observed that the learned Judge did not avail himself of the opportunity to interview the infant girl but formed certain inferences to the prejudice of the plaintiff, the father of Susie, based on possibilities of the situation. For the purpose of our decision, we need not elaborate more except to say that no religious authority, be it the first defendant or second defendant, was in any way to blame or to be held responsible for the course of events. The first defendant who purportedly converted Susie did so in good faith as he had no reason to doubt whatsoever story she told about her legal and factual status and affairs of life. What we are more concerned with is the Judge's purported elucidation of our constitutional law, especially relating to religion and the rights and powers of a parent of a non-Muslim child under the Guardianship of Infants Act 1961. While we cannot say that his contents are totally devoid of merit, we feel that his analysis and interpretation, rooted on wrong premises are not in accordance with the spirit and intention behind respective legislation in particular in his attempts to maintain that the infant in this case, the plaintiff's daughter aged 17 years and eight months at the material time was a person who could decide for herself her religious training and religion in the exercise of her constitutional right. He bases his contention on clause (1) and (4) of Article 11 of our Constitution which reads "Every person has the right to profess and practice his religion and, subject to clause (4), to propagate it." The trial Judge's conclusion is that the expression "ev