Kau Yau Fung and Another v. Attorney General

HCMP000191/1968

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

MISCELLANEOUS PROCEEDINGS NO. 191 OF 1968

-----------------

Coram: Huggins & Williams, JJ. in Court

Date of Judgment: 3 April 1969

-----------------

JUDGMENT

-----------------

Huggins, J: This originating summons raises a question which, for some reason which is not immediately apparent to me, the parties thought of sufficient importance to warrant a hearing before the Full Court in the first instance and they obtained from a judge in chambers a consent order that the summons be heard by the Full Court by way of special case.

1. The first applicant was born in Hong Kong over 21 years ago. His birth was duly registered in accordance with the provisions of the Births and Deaths Registration Ordinance but the entry in the Register indicated no name as having been assigned to him. It is now desired that the names which the first applicant has assumed shall be added to the Register and for that purpose application was made to the Registrar General under s.13 of the Ordinance. The Registrar General refused the application and the opinion of the court is sought as to the true construction of the section. It is contended on behalf of the Attorney General that the word "child" in the section connotes an infant child, while the applicants contend that the word includes offspring of any age.

2. Some argument was addressed to us as to the existence and extent of any right of a person to change his name but in my view it is unnecessary for us to reach any conclusion upon that matter and counsel for the applicants, I think, agreed.

3. Section 13(1) reads:

"In every case where it is desired after registration to alter or add to the name of any child whose birth has been registered with a name, or to give a name or names to any child whose birth has been registered without a name, the parent or guardian of such a child may make a declaration in writing before a Registrar in the prescribed form:"

and there then follows a proviso which covers the situation where, owing to death or absence from the Colony or other reasonable cause, the parent or guardian is unable to attend to make a declaration in writing in accordance with the section. We are, of course, concerned here not with the alteration of a name but with the registration of names for a person who was registered without a name.

4. I think it is necessary to have firmly in mind the object of the Ordinance in which this provision appears. As stated in the title it is "To consolidate and amend the law relating to the registration of births and deaths". There can be no doubt that the English legislation upon which this Ordinance was based originated from a desire to have available vital statistics for the population of Great Britain: it was not concerned primarily to provide individuals with evidence for their private purposes, although in the course of time certified copies of entries in the Registers have been admitted as prima facie evidence of the facts recorded. It is therefore not necessarily inconsistent with the intention of the Legislature that there should be a time limit on the registration of altered or added names. Indeed, we have been referred to the English Acts and it is apparent that both under the Act of 1874 and the Act of 1953 there has in England been a time limit of one kind or another. Under the Act of 1874 no addition or alteration could be registered after the expiry of twelve months from the registration of the birth. Under the Act of 1953 the time limit for the actual registration of any addition or alteration was abolished but in its place was inserted a provision that no addition or alteration could be registered except such addition or alteration as had been made before the expiration of twelve months from the date of registration of the birth.

5. The Ordinance contains no definition of "child" and it is common ground that the word must be construed according to the context in which it appears. In some statutes the Legislature has used the phrase "infant child" but no such limitation appears in s.13 of the Ordinance. Counsel for the applicants argues that where the word "child" is used in a context in which the relationship to the parent rather than the age of the child is of paramount importance then it should be construed as meaning "offspring" and he contends that this is such a case. With respect I think this argument tends to beg the question. Counsel appearing on behalf of the Attorney General has pointed to the various sections of the Ordinance in which the word "child" appears. In sections 7 and 8 the Legislature dealt with the duty of parents and persons in loco parentis to register any birth within 42 days after the date of such birth. Although the duty arises from the relationship it is manifest that in these sections the word "child" can only refer to persons of tender age. Provision is made in s.9(2) for late registration of a birth, provided that the required information is tendered not more than twelve months from the date of birth of the child. The word "child" does not appear in this subsection but it necessarily follows from its terms that late registration is available only in the case of a child not exceeding one year in age. After the expiry of twelve months from the date of birth late registration cannot be effected without the consent of the Registrar but there is no time limit within which application to the Registrar must be made: s.9(3). Again in this subsection the word "child" does not appear at all but here there is no necessary implication that the registration must be effected within the minority of the person concerned.

6. Mr. Jones concedes that in s.13(1) his argument requires that the words "where it is desired" must be construed as meaning "where the parent or guardian desires" but that construction finds some support in the terms of the Forms of Declaration prescribed in the Schedule for use upon an application under the subsection: in each of the two forms prescribed it is the parent or guardian who declares that he desires the name to be altered or added. It would indeed be strange if where an adult child desired to change his name it should never the less be the parent or guardian who was required to make the declaration. While there could be no question of a parent's presuming to change the name of an adult child, if an adult child is within the subsection then he could not register the change on his own application but would have to persuade his parent (if still living) to make a declaration before the Registrar. That seems to me an absurd situation and one which could not have been intended by the Legislature. The combination of the words "parent or guardian" similarly is some indication of an intention that the declaration should be made during the infancy of the child. I do not attach great weight to the omission of any express words of limitation of time such as was contained in both the English statutes because it seems to me that the necessity for implying a limitation is clear. The Hong Kong Legislature has departed sufficiently from the form of the English provision, otherwise than by omitting the express limitation of time, to make reference to the English statute of no assistance in interpreting the Ordinance.

7. The originating summons was, by virtue of s.13(4), correctly confined to the addition of personal names and the Case does not ask for a declaration relating to the surname. I would hold that "the word 'child' merely means a child who has not attained majority" and would therefore enter judgment for the respondent. We have been told that the parties agreed as to provision for the costs of the action before the trial and they ask for no order as to costs.

3rd April, 1969.

Representation:

Mr. Mills-Owens for the Applicants (John Ip & Co.)

Mr. Jones for the Respondent