Re Chau Ping-san

HCMP000443/1973

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

MISCELLANEOUS PROCEEDINGS NO. 443 OF 1973

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Coram: Cons, J.

Date of Judgment: 13 February 1974

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JUDGMENT

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1. This is a petition brought for a declaration that as from the 1st January 1949 the petitioner is a British subject for the purposes of the British Nationality Act, 1948. It is said to be brought under s.23 of that Act. I must confess I find this somewhat difficult to understand. That section deals only with persons who are born out of wedlock but later legitimated by the subsequent marriage of their parents.

2. It is then said that the court has power to make the declaration under 0.15 r.16 of the Rules of the Supreme Court. That rule provides as follows:

"No action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed."

In Knowles v. Attorney-General⁽¹⁾ a declaration of legitimacy was sought under this rule. The court refused to entertain the application. One ground of its refusal was "the proposition that the court will not lightly make a declaration binding in rem except where the statute specifically authorises it." There was, however, a statute which did specifically authorise such an enquiry, s.2 of the Legitimacy Act, 1926, and the court dealt with it under that section.

3. In principle I can see no distinction between the circum-stances of that case and the present. Nationality is as much a matter in rem as legitimacy and there is a statute which specifically authorises an application, namely, s.49(4) of the Matrimonial Causes Ordinance which provides:

"Any person who is domiciled in Hong Kong or claims any real or personal estate situate in Hong Kong may apply to the court for a decree declaring his right to be deemed a British subject."

4. On the other hand the Knowles case has not remained without criticism: see Zamir, "The Declaratory Judgment" at p.121. And in two more recent cases it would appear that declarations of nationality were made under the order although no specific mention of it is made⁽²⁾. Again in Woyno v. Woyno⁽³⁾ the specific statutory authority was ignored, and a marriage declared valid under the same general order. It is probable, therefore, that this court would have jurisdiction if an appropriate action were brought. As the Attorney General has in fact appeared in the present proceedings I will not enter into the question of whether it would have been fatal to the petitioner to have proceeded by way of petition instead of writ. The converse was held to be so in Warter v. Warter(4). It is enough for me to say that in any event upon the evidence presented to me I am not prepared to make the order. The petitioner attempts to establish his identity, which is the crucial question in this matter, upon a copy of a birth certificate extracted from the files of the Registrar General. That certificate is not in a name by which he has been known for most of his life and the only way in which he can connect himself with it is by his own memcry from early childhood of the names of his father and mother and the street where he used to live. These conform to the details on the certificate. The difference in the name by which he was in fact known he explains by saying that he was given away in adoption at the age of nine. The persons who could speak directly as to these matters, that is, the natural and the adoptive parents, the friend of the family who assisted him in discovering the birth certificate and the person who acted as referee upon his application for his British passport are all said to be dead or untraceable. But the point which immediately strikes so forcibly is that no serious research or enquiry has apparently ever been made to find either those who might nevertheless still be alive or to find other witnesses or evidence which could perhaps lend support to his story. Two obvious avenues of approach would have been the Canadian Immigration Authorities, and acquaintances or authorities in China. With both of these there was said to be contact for periods of many years. Time passes quickly and it may be that the most extensive enquiries would have unearthed nothing, but the failure to initiate any at all increases the doubt that arises otherwise in my mind.

5. For these reasons this petition must be dismissed.

Representation:

Robert Tang (Fairbairn & Kwok) for the Petitioner.

Paul Stoppa, C.C., for the Respondent.

(1) [1950] 2 All E.R. 6

(2) Bulmer v. Attorney General [1955] Ch. 558; Attorney General v. Prince Ernest Augustus of Hanover [1957] A.C. 436

(3) [1960] 2 All E.R. 879

(4) [1980] 15 Probate Div. 35