C H (A Minor), Suing By C K Y N, His Mother and Next Friend v. W K Y P

CAMP 19/2020

[2020] HKCA 415

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 19 OF 2020

(ON AN INTENDED APPEAL FROM FCMP 121/2017)

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Before:  Hon Lam VP and Barma JA in Court

Dates of Written Submissions:  20 February 2020, 9 March 2020

Date of Judgment:  4 June 2020

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.This is the Respondent’s application for leave to appeal against the judgment (“Judgment”) of Deputy District Judge Adriana Tse (“Judge”), as Judge Tse then was, on 27 March 2019 directing that scientific tests be used to show whether the Respondent is the father of C H (“the Child”) under section 13 of the Parent and Child Ordinance (Cap 429) (“PCO”).

Background

2.The relevant background is set out in §§2-7 of the Judgment. For present purposes, it is sufficient to state the following.

3.The Applicant is the mother of the Child.  She came to Hong Kong with a one-way permit in 2006.  In about September 2007, she was working as a masseuse at a clubhouse in Wanchai.

4.The Respondent was at all material times married with three adult children.  He was a regular customer at the clubhouse and became intimate with the Applicant.

5.From about November 2007, the Respondent rented a property near his office as the Applicant’s residence, visiting her 4-5 days per week and paying her a monthly maintenance of HK$20,000.  In about September 2009, the Respondent purchased an apartment in Wanchai in the Applicant’s name for HK$2.3 million.

6.In about October 2015, the Applicant became pregnant.  On 1 April 2016, the Child was born.  Since the Respondent has denied paternity, the Applicant commenced the present proceedings by way of Originating Summons on 22 June 2017 seeking the following substantive relief:

“ 1. A direction that scientific tests be used to show whether or not the Respondent is or is not the father of the Minor;

2. A declaration that the Respondent is the natural father and in law the parent of the Minor;

3. A direction that the Registrar of the Court shall notify the Registrar of Births and Deaths of the making of the declaration in paragraph 2 above;

4. The Respondent do make payment to the Applicant pursuant to section 10(2) of the Guardianship of Minors Ordinance (Cap 13)…”

7.At the first hearing of the Originating Summons on 12 October 2017, the Respondent indicated his intention to challenge the constitutionality of the use of scientific tests.[1]  Consequently, the Judge directed to hear only §1 of the Originating Summons first.

The Judgment

8.The substantive hearing of §1 of the Originating Summons took place before the Judge on 27 February 2018.

9.Prior to the commencement of argument (and contrary to his indication at the first hearing of the Originating Summons), the Respondent confirmed that there was no constitutional challenge to the use of scientific tests.[2]

10.Nevertheless, the Respondent opposed §1 of the Originating Summons on the grounds that (i) since it was very improbable that he was the father of the Child, the Court should not order scientific tests unless and until the Applicant is cross-examined on her allegations and she can prove that he was indeed the father of the Child[3] and (ii) the obtaining of bodily sample would disclose information of a highly personal and unique nature.[4]

11.On 27 March 2019, the Judge handed down the Judgment, making an order in substantially the same terms as §1 of the Originating Summons.

12.The Respondent applied to the Judge for leave to appeal.  In essence, the intended grounds of appeal were that the Judge erred in (i) failing to conduct a balancing exercise to weigh the competing rights and interests of the Child and the Respondent (ii) reversing the burden of proof to the Respondent and (iii) failing to give the Respondent an opportunity to cross-examine the Applicant.[5]

13.On 17 January 2020, the Judge refused to grant leave to appeal.

The Renewed Application for Leave to Appeal

14.It is unnecessary to examine the Judge’s reasons for refusing to grant leave because, as accepted by Mr Paul Lam SC, leading counsel for the Respondent (who did not appear before the Judge), the Respondent is now relying on only one intended ground of appeal which was not raised in the Court below, namely:

“ The Judge erred in failing to take into account that the Respondent has already indicated clearly on oath that he will refuse to undertake any such scientific test”

15.Mr Lam’s submissions can be summarised as follows:

(a)  As held by Re H (A Minor) [1997] Fam 89and Re P (Parentage: Blood Tests) [2010] 4 HKLRD 497, a respondent’s prospective non-compliance with the direction is relevant to whether the Court should order such a direction.[6]

(b)  In this case, the Judge has not considered the Respondent’s stance at all in deciding how her discretion should be exercised. This entitles the Court of Appeal to exercise the discretion afresh.[7]

(c)  Since the Respondent is adamant that he would not take the test even if ordered to do so, the Court of Appeal should not make the direction, since such a direction would simply be futile.  It is no answer to say that the Respondent’s refusal would allow the Court to draw adverse inference against the Respondent (on the question of whether he is indeed the father of the Child), because the Court is entitled to draw such an adverse inference even if it has not directed the Respondent to take the test.[8]

16.Ms Carol Wong, counsel for the Applicant, submitted the following:

(a)  A respondent’s stance to the taking of scientific test cannot be a relevant factor to deciding whether the Court should direct such a test be taken, save in the very exceptional cases (such as where the respondent is a haemophiliac).[9]

(b)  Despite the Respondent’s stance, it would not be futile for the Court to direct scientific tests.  This is because the Court can draw a stronger adverse inference against the Respondent where there is a court direction.[10]

(c)  The Judge’s exercise of discretion should not be lightly interfered.  This is particular so where, as here, the factors in favour of directing a scientific test are so overwhelming.[11]

Our Decision

17.In our view, the intended ground of appeal is unarguable as the Judge clearly took into account the Respondent’s stance when she made the direction.

18.The first thing to note is that the Respondent made his stance abundantly clear in §§20-21 of his affirmation in opposition to the Originating Summons:

“ 20. I have been advised and I am well apprised of the fact that the Court has power to direct (subject to my consent) that I undertake a scientific test to show whether or not I am indeed the father of the [Child] under section 13 of the PCO (that I cannot be made to take the test unless I consent is not subject to dispute (and is indeed indisputable) even on Cheung’s own case – see paragraph 24 of Cheung’s Affirmation). I am also well aware of the fact that I have the right to refuse to give consent to the undertaking of such scientific tests under section 14 of the PCO and that failure to comply with a direction under section 13 of the PCO may result in an adverse inference being drawn against me by the Court.

21. Nevertheless, in the present circumstances, in the event that this Honourable Court is minded to direct that a scientific test be done, I do wish to elect to exercise my right of withholding consent to undertake any kind of scientific test so directed…” (emphasis added)

19.The Judge was obviously aware of the Respondent’s stance as she recorded it in §7 of the Judgment:         

“ … Since the issue of the Originating Summons, the respondent has indicated that he will exercise his right to refuse to give consent to any scientific tests ordered by the court.”

20.The Judge went on to identify the relevant provisions of the PCO in §§13-16 of the Judgment.  In particular, the Judge quoted in full s.14 (which provides that no bodily sample can be taken from a person except with his consent) and s.15 (which provides that such refusal may allow the Court to draw adverse inference where appropriate).  The Judge again alluded to the effect of ss.14 and 15 of the PCO, in §63(5) and (6) of the Judgment.

21.What this shows is that not only was the Judge aware of the Respondent’s evidence that he would refuse to take the test, she plainly understood the normative significance of such evidence.

22.At §67 of the Judgment, as the Judge summed up her analysis, she stated that “the Child’s interests overrode any competing interests of the respondent”.  In our view, this is another clear indication that the Judge had considered the Respondent’s stance (as well as the various points advanced by the Respondent’s counsel which were said to militate against ordering a test) before ruling against him.

23.We accept that the Judge did not dwell on the Respondent’s stance in the course of her analysis, but this is entirely understandable and absolutely unimpeachable:

(a)  In Tsang Wing Kwai v Tsang Wing Fai (No 2) [2019] 1 HKLRD 1300, the Court said (at §§36-38)[12]:

‘ 36. … As has been said repeatedly by this Court, a judge is not obliged to set out every argument or point taken or case cited by counsel or every fine detail considered in the process of determination in the reasoned judgment.

38. … The acid test, in our view, is as follows: reading the judgment as a whole in light of the matters that have been argued before the court, does the judgment adequately inform the appellate court and the parties of the reasoning of the judge in determining the case. In this respect, one would naturally expect the judgment to discuss important issues whilst omission to address minor details or obvious matters are unlikely to form a valid basis for disturbing the judgment.’ (emphasis added)

(b)  Here, the Respondent’s unwillingness to take the test was an undisputed and obvious fact which could not have escaped the attention of the Judge; as we have mentioned, this matter was expressly recorded in §7 of the Judgment. Furthermore, it is important to note that since the Respondent did not advance the futility argument (see §15(c) above) before the Judge, the Respondent’s stance was not an important issue but merely a minor detail.  We therefore see no basis to criticise the Judge’s analysis whatsoever and no ground to exercise the discretion afresh.

24.Having reached this conclusion, it is not necessary for us to decide whether the Respondent’s refusal to consent is irrelevant as submitted by Ms Wong.  In this respect, we do read the judgment of Ward LJ in Re H (A Minor), supra, as holding that the refusal of a party can only be relevant in the case of an haemophiliac.  That was given as an example but not as an exclusive statement on the limit of relevance of the refusal.  But what is important and clear is that the refusal cannot by itself be determinative.  In that respect, the Court of Appeal categorically disagreed with the decision to the contrary in In re CB [1994] 2 FLR 762.

25.On the facts of the present case, we agree with Ms Wong that the objection of the Respondent could not outweigh the other factors in the case which point in favour of giving a direction in the way the Judge did.  As held by Ward LJ at p.103D, a refusal to comply after the solemnity of the court’s decision is more eloquent testimony of an attempt at hiding a truth than a mere intransigent objection.  Flouting the court’s direction is a more compelling circumstances for drawing the adverse inference, see p.103G. We reject the submission of Mr Lam that it is futile to make the direction in light of the objection of the Respondent.    

26.For these reasons, we are of the view that the intended ground of appeal is totally without merit and will dismiss the application with costs, summarily assessed at HK$65,000.  We will also order, pursuant to Order 59 rule 2A(8) of the Rules of the High Court (Cap 4A), that the Respondent is not allowed to apply for an oral hearing to reconsider his application.

Ms Carol Wong, instructed by Chan, Wong & Lam, for the applicant

Mr Paul Lam SC, Mr Osmond Lam and Mr Dexter Leung, instructed by Lee Wong & Co, for the respondent