Lee Lai Ching v. Lim Hooi Teik
High Court of Malaya, Pulau Pinang
8 February 2013
Article 3: Best interests of the child
Article 7: Name and Identity
Federal Constitution, Articles 8(1) and (2): Child’s right to equal protection under the law
The complainant, Lee Lai Ching, was the natural mother of Lim Chee Zheng (“the child”). She alleged that the defendant was the child’s natural father and wanted the court to order him to undergo DNA testing to determine paternity. The defendant denied that he was the child’s father and refused to undergo the test, relying on the authority of a precedent case (the “Peter James Binsted” case). In that case, the High Court held that a person could not be compelled under the existing law in Malaysia to undergo DNA testing to determine paternity, ruling that whoever subjected a person against his will to undergo such a test would be voluntarily causing hurt, an offence under section 323 of the Penal Code.
The complainant relied on the CRC, to which the Malaysian Government had acceded in 1995 albeit with reservations, and argued that the Court should determine the issue by considering whether ordering the defendant to undergo DNA testing was in the best interests of the child in accordance with Article 3(1). The complainant also relied on Article 8(1) and (2) of the Federal Constitution and argued that the child was entitled to equal protection of the law and therefore had the right to know the identity of his biological father.
Issue and resolution:
Right to know identity of parent, paternity tests. Whether the Court could compel a person to undergo DNA testing for paternity. The Court ordered the DNA test as it was in the best interest of the child to determine paternity.
The Court considered that international conventions and treaties to which Malaysia was signatory had been invoked by courts to resolve disputes when merited, and noted that in several other jurisdictions such as the United States, Canada, United Kingdom, France, Germany, Israel and China, the courts had power to order paternity tests.
In the exercise of judicial discretion and the inherent power of the court, and having regard to Article 3 of the CRC, the Court held that it was in the best interests of the child that the defendant be ordered to undergo DNA testing to determine paternity. In reaching its conclusion that the child had the right to know whether the defendant was his father, the Court considered Article 7 of the CRC, which states that a child had the right to know and be cared for by his or her parents, and found it to be applicable as it did not contradict and indeed was very much in conformity with the Federal Constitution, national laws and national policies of the Government of Malaysia.
The decision in the Peter James Binsted case was found to be distinguishable as the issue of the best interests of the child had not been considered in that case, which the Court emphasised had been decided within an overly narrow scope 13 years ago. An order for DNA testing should not be construed as causing ‘hurt’ as defined in the Penal Code because the intention or objective behind the test was to determine paternity. No intentional harm would be caused as only a blood sample was required for the test. With the advent of technology, even extraction of blood might not be necessary and a simple swab of sweat or saliva might suffice.
Excerpts citing CRC and other relevant human rights instruments:
 … the United Nations Convention on the Rights of the Child (‘CRC’) of which the Government of Malaysia acceded to on 17 February 1995, albeit expressing reservations to certain articles of the CRC.
 … Malaysia’s reservations are to articles 1-2, 7, 13-15, 28 (para 1(a)) and 37 of the CRC but at the same time declared that the said provisions shall be applicable only if they are in conformity with our Constitution, national laws and national policies of the Government of Malaysia.
 Therefore article 3(1) of the CRC provides as follows: [Article 3 reproduced]
 The plaintiff submits that the primary consideration of this court is the paramount or best interests of the minor. However this court is not suggesting that the rights of the defendant is to be negated altogether but to consider that the interest of the minor shall take priority or precedence.
 In Lai Meng v Toh Chew Lian  8 MLJ 180, the court was faced with, amongst others, the following issues: (a) whether the court had the jurisdiction to grant access to the putative father of an illegitimate child; and (b) whether access should be granted in the case.
 … Yeoh Wee Siam J held amongst others that ‘This court had the jurisdiction to decide on matters regarding access by a putative father to an illegitimate child after considering what was for welfare and best interest of the child.
 In coming to the decision whether it was in the best interest of the child that the putative father be
granted access to the child, the learned judge made the following consideration:
 The Government of Malaysia acceded to the CRC on 17 February 1995 but in a declaration dated 19 July 2010 it expressed its reservations with respect to certain articles (which did not include articles 3 and 9) and declared that the said provisions shall be applicable only if they are in conformity with the Federal Constitution, national laws and national policies of the Government of Malaysia.
 The CRC applies to both legitimate and illegitimate children.
 Both articles 3 and 9 of the CRC state that the best interests of the child shall be the consideration for the matters provided therein. This is consistent with the welfare principle that I had earlier dealt with.
 … what is of primary importance is the incorporation of the CRC into Malaysian Common Law.
 Therefore having precedent set in Lai Meng v Toh Chew Lian, where the test, ‘best interests of the child’ provided by the CRC was adopted and considered by our High Court in determining the issue of access.
 By adopting the same approach, and by invoking article 3 of the CRC and consider that the best interest of the minor shall be the primary consideration in determining whether the defendant can be compelled to undergo a DNA test to determine the paternity of the minor.
 In addition, the applicability of International Conventions/Treaties does not pose as unfamiliar to our High Court, an example is seen in Noorfadilla bt Ahmad Saikin v Chayed bin Basirun & Ors  1 MLJ 832, where the court was tasked with deciding whether an untrained teacher who had an offer for employment as a temporary teacher withdrawn when she answered that she was pregnant. Zaleha Yusof J ruled that she was indeed discriminated and applied the United Nations Convention in Elimination of All Forms of Discrimination against Women of which Malaysia has been a signatory to since 1995.
 Therefore, with reference to the action before this court, having no specific provision of statute to order DNA testing, in the exercise of my judicial discretion having regard to article 3 of the CRC, it is in the best interest of the minor that the defendant be ordered to undergo DNA testing to determine the paternity of the minor.
CRIN believes this decision is consistent with the CRC. The best interests of the child should be the primary consideration in all decisions concerning them, including the decision of a court on whether to make an order for DNA testing. In this case, the order for DNA testing was essential to the fulfilment of the child’s rights to identity under Article 7.
Civil Suit No. 22-587 of 2004
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.