Omh (A Minor) By As, His Mother and Next Friend v. Mt

CACV65/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 65 OF 2015

(ON APPEAL FROM FCMP 161 OF 2011)

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JUDGMENT

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Hon Lam VP:

1.I respectfully agree with the judgment of Chu JA.

2.I would also highlight the need to adopt a cautious approach in proceedings of this nature when a respondent does not take part in the proceedings (and service is effected by way of substituted service) and there is no independent evidence (like independent DNA test) to corroborate the evidence of the mother.

3.As Mr Chan (appearing for the Secretary for Justice) reminded us, and as Mr Clough (appearing for the applicant) candidly accepted, the purpose of these proceedings (or at least one of the purposes) is to establish the immigration status of the child applicant.  It must not be overlooked that his mother may also has a vested interest in seeking the declaration in connection with her own claim for permission to remain in Hong Kong. In such circumstances, I am of the view that the Director of Immigration must have a role to play in the proceedings.

4.In this appeal, upon the further evidence produced by the applicant’s mother regarding her further contacts with the father since the hearing below, we now have evidence on the father's actual knowledge of the proceedings and his position regarding the same.  We are therefore satisfied that the declaration can properly be made even though the father does not appear and there is no DNA evidence.  But for that, I agree with Chu JA that the matter should be remitted to the court below. I would also add that in that event the Director of Immigration should be invited to intervene in light of what I said above.

5.Even in a case where there are no immigration concerns, I am of the view that the court should exercise its power to assist an applicant in procuring the relevant information concerning the whereabouts and the status of the putative father. If necessary, the court can make an order of discovery against third parties who are in possession of such information notwithstanding that this is not a typical Norwich Pharmaceutical situation. It is in the interest of administration of justice that the court should have access to all relevant information in proceedings on parentage given their significance (and the binding nature of a declaration so granted) in many respects as further explained by Chu JA. In the present case, we have exercised that power to direct the Director of Immigration to give such discovery. Those acting for a child applicant should consider seeking similar discovery when the applicant cannot locate the putative father before resorting to seeking substituted service by advertisement in newspaper.

Hon Cheung JA:

6.I agree with the judgment of Chu JA.

Hon Chu JA:

7.This is the applicant’s appeal against the order of Deputy District Judge Own, as His Honour Judge Own then was, (‘the Judge”) made on 18 March 2014 dismissing his application for a declaration under section 6(1) of the Parent and Child Ordinance, Cap. 429 (“the Ordinance”) that the respondent is his natural father. 

The relevant facts

8.The applicant is a minor born in Hong Kong on 13 July 2009.

9.The applicant’s mother (“AS”) is an Indonesian national.  Between May 2001 and May 2007, she worked in Hong Kong as a domestic helper.  She has since June 2007 been overstaying in Hong Kong.

10.The respondent is a Pakistani national.  He became a Hong Kong Permanent Resident in November 2007. 

11.According to AS, she met the respondent in October 2005 in a bar in Wanchai.  In 2007, they began cohabiting in a unit in Hunghom, Kowloon.  In September 2008, AS discovered she was pregnant.  She had told the respondent of her pregnancy.  It is AS’ evidence, both in affirmation and oral evidence, that during her cohabitation with the respondent and during 2008, she did not have sexual relationship with anyone other than the respondent.  She therefore believes that the respondent is the natural father of the applicant.

12.AS said she left the respondent in October 2008, after she learnt that the respondent was having an affair with another woman.  She moved to a boarding house in Jordan and worked as a waitress illegally.  She was arrested by the Immigration Department for overstaying in Hong Kong and working illegally, and released from custody on recognizance.

13.In July 2009, AS gave birth to the applicant at Queen Elizabeth Hospital.  In the applicant’s birth certificate, the spaces for entering the name and surname of the father are marked with asterisks.  The applicant has been living with and cared for by AS.

Proceedings in the Family Court

14.Through AS, who also acted as his next friend, the applicant commenced proceedings in 2011 in the Family Court by way of originating summons seeking a declaration under section 6(1) of the Ordinance that the respondent is his natural father. 

15.The Department of Justice was joined as an intervener to the proceedings at the Family Court’s invitation to assist on a jurisdiction point, which has since been resolved and is not relevant to this appeal.[1]

16.It is the evidence of AS that she had lost contact with the respondent. She said she made enquiries about the respondent’s whereabouts with their mutual friends and also went looking for the respondent in Wanchai and at the Hunghom address where they had cohabited, but they were all to no avail.  Attempt by the applicant’s solicitors to effect service at the Hunghom address was also unsuccessful.  The applicant’s solicitors had also made enquiries with the respondent’s employers. One of them replied that it did not have contact with the respondent as he had left his employment, while the other indicted that they could not process the request without the respondent’s consent.  AS had also exhibited two bank cards of the respondent, but no step has been taken to seek information from the banks.   

17.Since the address of the respondent could not be established, the applicant applied for, and was given leave, to effect substituted service of the originating summons, the supporting affirmation and the notice of the hearing by advertisements in a local English newspaper. It is AS’ evidence that the respondent can read and write English.  

18.The respondent did not enter an appearance in the Family Court.  Neither did he attend the hearing before the Judge. 

The Judge’s decision

19.By his order dated 18 March 2014, the Judge dismissed the applicant’s originating summons.

20.In his Reasons for Decision (at [15]), the Judge identified the issues in the applicant’s application to be:

(1)   Whether the statutory presumptions in section 5(1)(a) or (b) of the Ordinance apply; and

(2)   If not, whether the requirements in section 6(3) of the Ordinance are met, namely, (a) whether it is proved to the court’s satisfaction that the respondent is the natural father, and (b) whether it is contrary to public policy for the court to make the declaration on parentage.

21.The Judge concluded (at [16] and [17]) that the presumptions do not apply because there is no marital relationship between the respondent and AS, and the respondent is not registered as the applicant’s father in the applicant’s birth certificate.

22.On the issue of whether it has been proved that the respondent is the applicant’s natural father, the Judge observed (at [18]) that the only evidence available came from AS’s affirmation and oral evidence.  The Judge also referred to section 13 of the Ordinance, which empowers the Court in civil proceedings, in which parentage falls to be determined, to direct for the use of scientific tests to show parentage and for the taking of bodily samples from the parties to the proceedings.  The Judge considered (at [25]) that this and the specific provision in section 13(3) for the applicability to section 6 application “reinforces the importance and necessity of solid and cogent evidence in applications for declaration on parentage”, having regard also to the massive consequences that flow from such a declaration.

23.The Judge concluded that the applicant failed to prove to his satisfaction that the respondent is his natural father.  He gave his reasons in [28] to [30]:

“28. The fact that Section 13 of the Ordinance provides for ‘Use of Scientific Tests in Determining Parentage’, though this had not expressly displaced the Court’s powers and discretion to accept affirmation and testimonial evidence, is a ‘caution’ upon the Court if it is minded to accept non-scientific tests evidence or where no scientific tests are available or could be obtained as in the present case. In my view, it is uncommon and rare for the legislature not only stating the nature and source of evidence needed, but also empowers the Court to call for such evidence.

29. I noted the mother in paragraph 4 of her supporting Affirmation deposed to herself having informed the Respondent the pregnancy of the Applicant OMH. It is unfortunate that she had not, anywhere in her supporting Affirmation or oral testimonies in Court, stated the answer or response of the Respondent upon learning from her the pregnancy. Did the Respondent accept or deny paternity? The mother is the only person to tell the Court what the Respondent had said. This is particularly important in light of the fact that the Respondent is absent throughout these proceedings. The mother who has all along been legally represented in these proceedings could not have omitted such piece of crucial evidence. In the absence of such crucial evidence, this Court cannot even draw any inference that the Respondent had admitted paternity by simply relying on the mother’s evidence, namely, that she had no sexual relationship with anyone else and she had informed the Respondent of the pregnancy.

30. I have also considered whether there are any additional evidence from the mother at the substantive trial hearing or any circumstantial evidence which may assist her case.  Upon careful consideration, there are no other direct or indirect evidence available.  Moreover, there was no submission either from Mr. Clement that, given the particular factual circumstances of the case, this Court should not have taken any consideration of Section 13 whether in the evaluation of evidence or in its fact-finding exercise.”

24.The Judge further held (at [32]) that it would have been manifestly contrary to public policy “to determine parentage by mere statement of sexuality or non-sexuality”, and that “accepting statements of sexuality or non-sexuality as sufficient evidence for proof on paternity for granting section 6 declaration would be in defiance to section 13 of [the Ordinance] if not rendering it obsolete.”

25.The applicant’s application for leave to appeal was refused by the Judge.

The appeal

26.Leave to appeal was granted by the Court of Appeal on 20 January 2015.[2]

27.With leave of the court, substituted service of the Notice of Appeal, the Amended Notice of Appeal and the Notice of Setting Down was effected by advertisements in newspaper.  The respondent did not appear at the hearing.

28.The intervener takes a neutral stance in the appeal. 

29.The applicant’s appeal is directed at the Judge’s conclusion that the applicant has failed to prove parentage to the satisfaction of the court, and that it will be contrary to public policy to grant the declaration sought by the applicant.  The thrust of the submission of Mr Clough for the applicant is that:

(1) In light of the clear, unambiguous and unchallenged evidence of AS and in the absence of adverse finding on her credibility, the Judge erred in concluding that the applicant failed to establish the paternity of the respondent on balance of probabilities.

(2) The unavailability of evidence of scientific tests is an irrelevant consideration in that: (a) there is no requirement for corroboration of AP’s evidence; and (b) scientific tests could not be carried out due to the respondent’s failure to participate in the proceeding, and no adverse inference should be drawn against the applicant.

(3) The Judge erred in holding that it would have been contrary to public policy to make the declaration sought based solely on the evidence of AS that she had sexual relationship with the respondent and no one else during their cohabitation.

Development after the Family Court proceedings

30.Before considering the grounds of appeal, it is necessary to set out the further information that has become available after the conclusion of the proceedings in the Family Court. 

31.At the direction of Lam VP, the Department of Justice has obtained from the Immigration Department information on the respondent’s immigration status in Hong Kong and his latest movement record.  The information shows that: (1) The respondent has since November 2007 acquired the status of Hong Kong permanent resident; (2) Between 1 January 2008 and October 2015, apart from a six-month trip between November 2009 and May 2010 and some short trips in 2010, 2013 and 2015, the respondent has been staying in Hong Kong; and (3) The respondent last departed from Hong Kong on 4 October 2015 and returned on 17 October 2015.

32.At the conclusion of the hearing of the appeal, we reserved our decision.  Subsequently, by letter dated 1 December 2015, the applicant’s solicitors informed the court that on 27 November 2015, AS was able to trace the respondent through a social media website “Badoo”, and was further able to converse with the respondent by telephone.     

33.On 3 December 2015, we gave leave to the applicant to file evidence on his mother’s latest contact with the respondent and to give information of the respondent’s latest address or means of contact.  We further directed the applicant’s solicitors to cause the papers filed in the Family Court and in this appeal, together with the appeal bundles and submissions, as well as this court’s directions to be personally served on the respondent.   We also gave leave to the respondent to file evidence on the application and the appeal, and directed that the appeal be listed for further hearing on a date to be fixed.

34.Pursuant to the above directions, AS made an affirmation giving details of her contact with the respondent since the hearing of the appeal.   AS filed a second affirmation on 15 December 2015, in which she deposed to, and provided screen shots of, further messages exchanged between her and the respondent. 

35.The second affirmation also exhibited the applicant’s solicitors’ letter to the respondent dated 14 December 2015 informing him of this court’s directions given on 3 December 2015, and requesting him to either provide an address for service of the papers upon him or indicate a convenient time for him to collect the papers from the solicitors’ office.  This letter was sent to the respondent on 14 December 2015 by way of a WhatsApp message.  On the same day shortly after the message was sent, the applicant’s solicitor spoke to the respondent on telephone, reiterating the request that he either collected the papers from the solicitors’ office or provided an address for effecting service.  In response, the respondent told the applicant’s solicitor to give the papers to AS.  He then hanged up.   A record of the telephone conversion was exhibited to the third affirmation of AS filed on 12 January 2016. 

36.AS further deposed in the third affirmation that the respondent has since blocked her calls, and she is no longer able to contact him.  

37.In the light of the above development and the details deposed to in the applicant’s mother’s three affirmations filed in this appeal, we are satisfied that the respondent has been given notice of the proceedings in the Family Court and of this appeal, and also the directions made on 3 December 2015.  We are of the view that the respondent’s conduct demonstrates that, despite having notice, he does not wish to take part in the court proceedings.  In the circumstances, no useful purpose is served by holding a further hearing.  Accordingly, we directed that the further hearing of the appeal be dispensed with.  We will determine the appeal based on all the evidence and materials now available to us.

Section 6 of the Ordinance

38.Under section 6(1) of the Ordinance, any person may apply to the court for a declaration that a person named in the application is his natural parent.  Section 6(3) further provides that “where the truth of the proposition to be declared is proved to the satisfaction of the court, the court shall make that declaration unless to do so would manifestly be contrary to public policy.”

39.In this appeal, two issues fall to be considered under section 6(3).  The first is the degree of proof required for the making of a section 6(1) declaration.  The second is what would be manifestly contrary to public policy for the court to make the declaration.

40.On the issue of proof, the applicant accepts that he bears the burden of proof and the standard of proof is one of balance of probabilities.  In Re A (A minor) (Paternity: Refusal of Blood Test) [1994] 2 FLR 463, 470B-D, an appeal arising from a paternity dispute concerning a child, Waite LJ considered the degree of proof involved in the burden of establishing paternity upon a balance of probability, and summarised the position of the case law as follows (at 470B-D):

“(1) The question raised by an issue of paternity is a serious one – more serious in the scale of gravity than, for example, proof of debt or minor negligence.

(2) The balance of probability has to be established to a degree of sureness in the mind of the court which matches the seriousness of the issue.

(3) The weighing process involved in (2) must not however be over-elaborate. The court should not attempt, in a precise – almost mathematical – way to determine precisely what degree of probability is appropriate to the gravity of the issue. There is still ample scope for the influence of common sense and the insight gained from first impression.”

41.The Judge had observed (at [25]), and I agree, that massive consequential rights, duties and obligations can follow from a declaration of paternity.  Under section 6(5) of the Ordinance, the declaration is binding on the HKSAR government and on all other persons.  Mr Chan, who appears for the intervener, in his helpful submission, has provided illustrations of the importance and potentially far reaching effects of a section 6(1) declaration under section 10 of Guardianship of Minors Ordinance, Cap. 13, the Intestates’ Estate Ordinance, Cap. 73 and the Inheritance (Provision for Family and Dependants) Ordinance, Cap. 481. In the present case, the declaration sought will also have an effect on the applicant’s immigration status in Hong Kong since at the time of his birth, the respondent has acquired a Hong Kong permanent resident (see paragraph 2(e) of Schedule 1 to the Immigration Ordinance, Cap. 115).

42.It was said by the Court of Final Appeal in Solicitor (24/07) v. Law Society of Hong Kong (2008) 11 HKCFAR 117, 149 at [71] that: “The seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been provided to the reasonable satisfaction of the tribunal”.

43.The issue of paternity is a serious one.  The Court in dealing with an application for declaration of paternity under section 6(1) of the Ordinance will have to bear in mind the potentially far reaching effects of the declaration sought, and should proceed with caution and require cogent proof of the truth of the proposition sought.  At the same time, the court should also be realistic and have regard to common sense when approaching and assessing the evidence.  

44.As to the public policy consideration, the phrase “manifestly contrary to public policy” was considered by the Court of Final Appeal in ML v. YJ (2010) 13 HKCFAR 794, albeit in the context of section 61 of the Matrimonial Causes Ordinance, Cap. 179.  It was held that this is a residual discretion to be sparingly used (at [69(1)] per Chan PJ dissenting with Bokhary PJ; [121], [123] and [125] per Litton NPJ with Ribeiro PJ and Sir Anthony Mason NPJ agreeing), and that “the public policy discretion has only been applied in cases where the decree offends against our ideas of “substantial justice” (at [124] per Litton NPJ with Ribeiro PJ and Sir Anthony Mason NPJ agreeing). 

1^st issue – sufficiency of proof

45.With the above legal principles in mind, I turn to address the two issues in this appeal.

46.On the first issue of whether parentage has been proved to the required standard, as the Judge correctly pointed out, the only evidence in support of the applicant’s assertion of paternity comes from AS.  But this is not to say that there must be other corroborative evidence to support an application under section 6, although this is a factor to be taken into account in considering whether the requirements in section 6(3) have been satisfied. 

47.It is also relevant to consider that notice of the application and the hearing was given by substituted service through advertisements in the newspapers, and the respondent had not entered an appearance.  It could not be said with certainty that the application must have come to the actual attention of the respondent.

48.In the circumstances, and in view of the potentially far reaching consequences that can flow from the declaration of paternity, the Judge did not err in taking the view that the court should adopt a cautious approach to the application.

49.In my view, however, the Judge’s approach to the evidence in the case has given cause for concern in two respects.  The first is that he has been unduly swayed by the absence of evidence of scientific tests in the case.  AS’ evidence is that she had lost contact with the respondent even before the applicant’s birth.  As such, it is not possible for any scientific tests to be conducted to resolve the paternity issue between the applicant and the respondent.  Although the non-availability of evidence of scientific tests is a factor that the Judge may take into account, he should at the same time consider and bear in mind that this is not due to a refusal to undergo the tests or the result of a deliberate decision to avoid the tests, but is due to circumstances beyond the applicant’s control.  On an overall view of this case, and given that the Judge had made no adverse finding on the credibility and reliability of AS and her evidence, the non-availability of evidence of scientific tests should not bear adversely on whether to act on AS’ evidence or the applicant’s case.

50.Secondly, the Judge had expressed concern over what he perceived to be a gap in AS evidence, namely, she had not mentioned in her evidence what was the respondent’s reply when AS told him about her pregnancy (at [29]).  It is open to the Judge to take the view that the respondent’s response on learning of AS’ pregnancy is potentially crucial, and that evidence of the respondent’s response could have provided the basis for inferring an admission of paternity.  But the fact that AS did not mention in her evidence a potentially crucial aspect of the case does not mean that the court should not or could not act on her evidence alone, including her evidence that she did not have sexual relationship with other person during her cohabitation with the respondent.  The Judge must still have regard to the other parts of AS’ evidence in considering whether parentage has been proved to the required standard.  It would appear from [29] of his Reasons for Decision that the Judge took a dim view of the omission to mention the respondent’s response since the applicant was legally represented.  Mr Clough submits, and I accept from reading the transcript of the hearing, that this matter and the Judge’s concern on the state of AS’ evidence was not canvassed at all at the hearing.  If the Judge was disturbed by the omission and inclined to form an adverse view of the applicant’s case, he should afford counsel an opportunity to address him on what effect, if any, the omission may have on the rest of AS’ evidence and the applicant’s case.

51.Moreover, while it is correct that AS’ evidence that she did not have sexual relationship with other person during her cohabitation with the respondent does not give rise to an inference that the respondent had admitted paternity, this remains a relevant and pertinent piece of evidence.  This evidence, which the Judge had neither rejected nor expressed doubt, is capable of supporting the applicant’s case on the issue of paternity and merits the Judge’s consideration.  It would appear that as a result of the concern over what he perceived to be a gap in AS’ evidence, the Judge had not given proper regard to this part of AS’ evidence in assessing whether parentage has been proved to the required standard.         

52.In the circumstances, the Judge’s conclusion that the applicant has not discharged the burden of proving parentage cannot be supported.

53.AS had in the affirmations filed in the Family Court deposed to the attempts she had made to contact the respondent through his employers.  She also produced copies of his staff cards and two bank cards.  While the applicant’s solicitors had attempted to obtain information and contact address of the respondent through the employers, no step has been taken to seek discovery from the two banks with which the respondent has maintained accounts so as to establish the whereabouts and means of contact of the respondent.[3] Had the matter stood at that, it would have been more appropriate to remit the case back to the Family Court for a reconsideration of the evidence and the case.  However, since the hearing before the Family Court, more information about the respondent has been made available, and there have been further developments in the case as set out in AS’ affirmations filed in the appeal (see [32] to [37] above).   

54.Significantly, it has been confirmed that the respondent was present in Hong Kong at the time when substituted service was effected.  Further, he has been made aware of the birth of the applicant, and of the application for declaration of parentage and this appeal.  It is clear that despite having notice, the respondent does not wish to take part in the court proceedings or to challenge the applicant’s application.  It also appears from the messages he exchanged with AS that the respondent has not raised any issue over AS’ claim that the applicant is fathered by him.  It seems his real concern is that he has another family and he does not want his wife to know about it. 

55.In the light of all the evidence now available, this Court is in as good a position as the Family Court to form a view of the case and decide on the section 6(1) application.  Having regard to the evidence given by AS orally and in her affirmations filed here and below, I would be satisfied as to the truth of the applicant’s parentage.   

2^nd issue – public policy discretion

56.This brings me to consider the second issue of whether it would be manifestly contrary to public policy to grant the declaration of parentage.  This involves a discretion which should be exercised only in an exceptional case and sparingly.  As the matter now stands, the application is uncontested, and the only evidence in support of the application comes from the applicant’s mother.  Is there any reason of public policy against the making of the declaration?  The Judge held it would be manifestly contrary to public policy “to determine parentage by mere statement of sexuality or non-sexuality” ([32] of the Reasons for Decision). It would appear that his view was influenced by the provision of section 13 and the absence of other evidence in the case, notably evidence of scientific tests.  With respect, the fact that the only evidence on parentage comes from the mother, and the non-availability of evidence of scientific tests are not relevant considerations.  On the facts of this case, there is nothing repugnant to the ideas of substantial justice to grant the declaration.

Conclusion

57.For the reasons set out above, I would allow the appeal and make a declaration under section 6(1) of the Ordinance declaring the respondent to be the natural father of the applicant.  I would also make no order as to costs, save to order that the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

Mr Neal Clough, instructed by Massie & Clement, assigned by the Director of Legal Aid for the applicant (appellant)

The respondent, unrepresented, absent.

Mr Jeremy S K Chan, instructed by the Department of Justice, for the intervener