Cd and Another v. Tkh and Another

FCMP148/2017

[2021] HKFC 113

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 148 OF 2017

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Coram : Deputy District Judge Thelma Kwan in Chambers (paper disposal)

Date of A2’s Submission : 19.3.2021

Date of Judgment : 21.6.2021

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J U D G M E N T

( Leave to Appeal )

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1.This is a Summons filed on 19 March 2021 by the 2^nd Applicant for leave to appeal against my judgment of 5 March 2021 (the “Judgment”) which inter alia was his application for a parental declaration against the 2^nd Respondent and for DNA test to be performed to ascertain that the 2^nd Respondent is his father.

Background

2.The background of the case has been set down in the Judgment and will not be repeated here.

3.I shall refer to the 2^nd Applicant as the “Child” in this decision.

4.None of the other parties in these proceedings has opposed this leave application, and no submissions have been made.

5.By their letter of 25 March 2021, the Secretary of Justice had indicated that they would not be filing any submission in response to this leave application.

The Applicable Legal Principles

6.The appropriate test when seeking leave to appeal is set out at s.63A of the District Court Ordinance (Cap. 336), which states that either the appeal must have a reasonable prospect of success or that there is some other reason in the interest of justice why the appeal should be heard.

7.The relevant test of whether an appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal.  The case of SMSE v KL [2009] 4 HKLRD 125, elaborated as follows:

“…. Reasonable prospects of success involve the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”.

The Child’s Grounds of Appeal

Ground 1:  The Child had established his “substantial connection” to Hong Kong

8.The Child contends that I have erred in finding that he was not able to establish that he had a “substantial connection”, and that I have failed to place sufficient weight on the following evidence which was undisputed by the 2^nd Respondent:

“1.   (1) The Child was born in Hong Kong:

(2) He has the right of abode and permanent resident status in Hong Kong;

(3) When the Child was 6 years old, he lived in Hong Kong for at least a period of 10 months (i.e. from September 2016 to 30 June 2017) with 1^st Applicant (“the Mother”) renting a home in Ma On Shan.

(4) The Child had attended primary school every day in Hong Kong for the full academic year of 2016/2017. A2 had left Hong Kong through no choice his own. As a 6 years old, he had no choice but to follow the Mother.

(5) The evidence from the Mother also suggested that between August 2016 to CNY 2017 (which was the time that the Child had resided and was studying in Hong Kong), the Child had met with the 2^nd Respondent on several occasions.”

9.On this ground, the Child further put forward the following argument:

“2. Further, the learned Judge failed to consider that prima facie, on the evidence that Child had a relationship with the 2^nd Respondent throughout his life whether it was the 2^nd Respondent visiting the Child in the PRC or whilst he was studying in Hong Kong. Moreover, even in the Child’s school handbook, the 2^nd Respondent’s name was inserted as the Child’s Father. Given this existing relationship , and on the basis that a DNA test would have confirmed the 2^nd Respondent as the Child’s biological father, it is contended that the 2^nd Respondent’s own substantial connection to Hong Kong including inter alia, the fact that he spent most of his time in Hong Kong, and that he has family in Hong Kong (meaning the Child had step brothers / sisters), would have been sufficient to establish the Child’s substantial connection by reason of their parental relationship.”

Discussion on Ground 1

10.With reference to Section 6 of the Parent and Child Ordinance (“PCO”), and on whether an applicant, which is the Child here, has established substantial connection, I should be looking at the factors at the date of the application.  I have set out my analysis in paragraphs 40-45 of the Judgment.

11.I also refer to the authorities I quoted in the Judgment.  The fact that Child was born here gives him the right of abode and permanent residency in Hong Kong, paragraphs 1 (1) and (2) in the grounds of appeal are in effect the same point.  He has only lived in Hong Kong in rented premises for 10 months between 2016-2017 for the purpose of studying, he has left Hong Kong by the time the 1^st Applicant took out her Summons on 27 July 2017 (the “Originating Summons”), and has enrolled to study in the Mainland in the immediate following school year in September 2017.  The Child was not even physically present in Hong Kong at the time the Originating Summons was taken out, which is one of the basis for considering connection.  I reiterate that based on these factors alone, it is not enough for him to establish substantial connection in Hong Kong. 

12.The Child’s case also relied on

i.  Child having spent time with the 2^nd Respondent over 7 months when he was studying here.

ii.  2^nd Respondent had visited the Child in the Mainland.

iii.  That the 2^nd Respondent name appeared in the Child’s school book.

13.The Originating Summons was in part about ascertaining whether the 2^nd Respondent is the father of the Child, this has yet to be established via the DNA test which has been ordered pursuant to the Judgment. I cannot see how I could have assessed the substantial connection of the Child based on the counsel’s argument that “a DNA test would have confirmed the 2^nd Respondent as the Child’s biological father”.  These factors raised by the Child with regard the 2^nd Respondent should not be considered for the purpose of determining the Child’s connection to Hong Kong at the time of the application, as parentage has not been established.       

14.I am not satisfied that the Child has any reasonable prospect of success on his intended appeal relying on this ground.

Ground 2: The consideration of the Child’s “best interest” when considering “Substantial Connection” and /or exercise of Inherent Jurisdiction 

15.On this ground, the Child put forward the following arguments:

“3.  In considering whether the Child had established “substantial connection”, or in exercising its inherent jurisdiction, the learned Judge erred in failing to consider as one of the relevant factors, whether it would be in the best interest of the Child to obtain the relief that he was seeking (i.e. in this case a declaration of parentage) in particular when the inability to obtain a declaration, would lead to injustice to the Child (see: CH suing by CKYN, his mother and next friend v WKYP [2019] 2 HKLRF 850 at paragraph 54 relying on Spencer v Spencer [2016] Fam 391.

4.  The learned Judge was wrong to rely on Re WSJ (Minor) (Parentage: jurisdiction) [2019] 1 HKLRD 977 where the Court of Appeal held that the Court’s jurisdiction under the Parent and Child Ordinance (Cap.429) (“PCO”) is the same whether the applicant is an adult or a minor.  On this, there is no dispute.  However, this does not detract from the contention that the learned Judge ought to have considered, as part of the basket of relevant considerations or whether to exercise its inherent jurisdiction, what was in the best interest of the Child when considering whether the Child has met the jurisdictional threshold.

5.  Had the learned Judge considered the best interest of the Child, it would have found that it is in the welfare of the Child to know with certainty who his parents are (see: Re T (Paternity: Ordering Blood Tests) [2001] 2 FLR 1190 at 1194 and Zhou Ying v Chow Lai Ching & Others [2010] 6 HKC 217 at 228E to 229A) and thus, in addition to the other facts set out above under Ground 1, Would have been sufficient to establish the Child’s “substantial connection” to Hong Kong.”

Discussion on Ground 2

16.The issue of whether “best interest” comes into the consideration in the application of Section 6 of the PCO had been canvassed in the Judgment.  This appeared in paragraph 40 which quoted the Court of Appeal decision in Re WSJ and needs no repetition.

17.The basis of an application for determining parentage rests on jurisdiction, which looks to the determination of domicile, habitual residence and / or the substantial connection of the applicant.  In this case, the Child has only pleaded substantial connection to Hong Kong.  I disagree that the Court needs to further consider the best interest of the Child.  To argue that it is in the best interest of a child to accept jurisdiction is “tantamount to putting a gloss on the plain words of substantial connection” (Re WSJ paragraph 43).

18.Counsel for the Child has not put forward any authority to support his contention that best interest of the Child is to be considered in applying section 6 of the PCO. 

19.I am therefore not satisfied that the Child has any reasonable prospect of success on his intended appeal relying on this second ground.

Order

20.In conclusion, the respondent has failed to show that he has an arguable case on any of his grounds.  The intended appeal has no reasonable prospect of success, and there are no other reasons in the interests of justice to grant such leave.  In the circumstances, the application for leave to appeal must be dismissed and I so order.

Costs

21.Given none of the other parties to these proceedings have responded to this leave application, I shall make no Order as to costs.

22.Costs of the 2^nd Applicant to be taxed in accordance with Legal Aid Regulations, with certificate for counsel.     

Mr. Eric Leung, Counsel instructed by Messrs Hui & Lam for 2^nd Applicant, assigned by Director of Legal Aid.

Messrs Hui & Lam for 1^st Applicant.

1^st Respondent acting in person.

Messrs O. Tse & Co. for 2^nd Respondent.