Zhao Ying v. Chow Lai Ching and Others
Read the full judgment text of HCMP 53/2009 on BabelCite. This High Court CFI judgment was delivered on 22 July 2010.
1. On 25 March 2010, I joined Mr Chiu Tang as the 3 rd defendantto these proceedings. On 22 July 2010, I decided that I ought to give a direction of my own motion under section 13(1) of the Parent and Child Ordinance that scientific tests be conducted to determine the parentage of the infant plaintiff. These are my reasons for that decision.
Cited by 9 cases · Cites 1 case
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HCMP53/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 53 OF 2009 ------------------------------
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------------------------------ Before : Hon Bharwaney J in Chambers (Open to public) Date of Hearing : 22 July 2010 Date of Decision :22 July 2010 Date of Reasons for Decision : 6 August 2010 --------------------------------------------------------------- REASONS FOR DECISION --------------------------------------------------------------- 1.On 25 March 2010, I joined Mr Chiu Tang as the 3rd defendantto these proceedings. On 22 July 2010, I decided that I ought to give a direction of my own motion under section 13(1) of the Parent and Child Ordinance that scientific tests be conducted to determine the parentage of the infant plaintiff. These are my reasons for that decision. 2.The present proceedings have been brought by the infant, Zhao Ying, by his mother and next friend, Madam Wu Meimei, for an order that the infant is entitled to succession under the Intestates’ Estate Ordinance in the estate of Chiu Pang, deceased (“the deceased”), which is being administered by the 1st and 2nd defendants under Grant No. HCAG009127/2008. The deceased died intestate on 30 August 2008. The question raised in the proceedings is whether the infant is the natural son of the deceased. If it were determined that he is the natural son of the deceased, he would be entitled to inherit a portion of the estate of the deceased under the provisions of the Intestates’ Estate Ordinance. 3.The 1st defendant is the lawful widow of the deceased. The widow and the deceased had two sons, both in their teenage years at the time of the death of the deceased on 30 August 2008. Madam Wu’s case is that Chiu Pang had an extra-marital relationship with her and that the plaintiff was born out of such relationship in Beijing on 7 June 2006. 4.The 1st defendant and the 2nd defendant, who is the younger brother of the 1st defendant, are the co-administrators of the estate of the deceased. They do not accept that the infant plaintiff is a natural son of the deceased and they require Madam Wu to prove her claim that he is. 5.The matter came before me on 25 March 2010. Mr C.Y. Li, who appeared on behalf of the 1st and 2nd defendants, conceded that if the infant plaintiff is the natural son of the deceased, he would be entitled to a share of the estate of the deceased and that it did not matter that he was illegitimate. It is clear from the provisions of section 3 of the Parent and Child Ordinance and the decision of Andrew Cheung J in Chow Shun Yung v. Ethel Lew and Others, HCAP6/2005, 19 September 2006, that the concession is rightly made. 6.In cases where parentage is an issue, the parties very frequently agree to undergo DNA testing. In this case, Madam Wu’s request for DNA testing has been refused. When the matter came before me on 25 March 2010, I raised the issue of the court’s power to order DNA tests and whether or not I should give a direction for scientific tests to be conducted in the present case. At that time, Chiu Tang, the elder son of the deceased, was already an adult. He was born in September 1990. The younger son, Chiu Cheung, born in May 1993, was and is still under 18 years of age. They are both pursuing education in the United Kingdom (“UK”), the elder son studying at the University of Sussex, and the younger son pursuing secondary education in Surrey. I was informed that they were both likely to return to Hong Kong in the summer for their vacation. I then gave directions for Chiu Tang to be joined as the 3rd defendant and I adjourned the hearing to 22 July 2010, by which time he would have returned to Hong Kong on vacation. The purpose of the hearing on 22 July 2010 was to receive representations from the parties, including the 3rd defendant, as to whether or not I should give a direction for scientific tests to be conducted to determine whether or not the deceased was the natural father of the infant plaintiff. 7.On 22 July 2010, I heard from Mr Alfred Fung, who appeared on behalf of the infant plaintiff, and who submitted that I had power under section 13(1) of the Parent and Child Ordinance to give directions for the use of scientific tests to determine parentage, and that I should give such a direction of my own motion in the present case. He submitted that there was a long-standing practice of ordering such tests in cases where the paternity of a child was in issue, and he referred me to the decision of the Court of Appeal in Yeung Chung Ping v. Yeung Wan Yuet Kuen [1987] 1 HKC 206, in which Roberts CJ identified the general practice of the court of ordering blood tests in circumstances where the paternity of a child was in issue. In that case, the former Chief Justice concluded that there was no reason why the court should depart from the general practice. Mr Fung also referred me to the decision of Ormrod J in B v. Attorney-General (N.E.B. and Others Intervening) [1967] 1 WLR 776, where the learned judge noted (at p. 777D) the extraordinary advantages and immense value of blood tests properly and carefully carried out in the determination of issues of paternity in the case before him, and in other similar cases where the paternity of a child was in question. I was also referred to paragraph 7 of the Law Commission’s Report on Blood Tests and The Proof of Paternity in Civil Proceedings (Law Com. No. 16, 30 October 1968) in which the makers of the Report referred to the decision in B v. Attorney-General (N.E.B. and Others Intervening) and noted the usefulness of blood tests in determining succession rights. The Family Law Reform Act 1969 c. 46 was enacted after the publication of that Law Commission Report. Part III of the Act contains provisions for the use of blood tests in determining paternity. Those provisions were amended by section 23 of the Family Law Reform Act 1987 c. 42. Our provisions, contained in sections 13 to 15 of the Parent and Child Ordinance, are based on those UK provisions. 8.Section 13 of the Parent and Child Ordinance is contained in Part VI of the Ordinance which deals with the use of scientific tests in determining parentage. Section 13 provides as follows :
Sections 14(1), 15(1) and (3) are also relevant. They provide as follows :
9.Mr C.Y. Li, appearing for the 1st and 2nd defendants, informed me that his clients’ position was neutral. DNA tests could be conducted by taking and comparing samples from the infant plaintiff and from either one of the parents of the deceased, who lived in Beijing, or from the 3rd defendant, or from the other child of the deceased, Chiu Cheung. Mr Li emphasized that the 1st and 2nd defendants were not in a position to compel either the parents of the deceased, or the 3rd defendant, or the other child, Chiu Cheung, to undergo any DNA test. 10.The 3rd defendant was separately represented, and Mr George Hui, who appeared on his behalf, submitted that the court had no jurisdiction to give a scientific test direction in the present case. He submitted, in the alternative, that even if the court had jurisdiction to do so, the court should not exercise its discretion to give such a direction in the present case. The court’s jurisdiction to give a direction for scientific tests to be carried out 11.Mr Hui adopted a literal reading of section 13 of the Parent and Child Ordinance and submitted that the power of the court to give directions for scientific tests was confined to cases where the issue is whether “a party to the proceedings” is or is not the father or mother of a child whose parentage is in issue or, in the case of an application for a status declaration under section 6 of the Parent and Child Ordinance, where the issue is whether “a person named in the application” is or is not the father or mother of the child. He submitted that the court did not have jurisdiction to give a direction for scientific tests in the present type of case, where the putative father (the deceased in the present case) is not and cannot, by reason of his death, be “a party to the proceedings”. 12.It was conceded and accepted by Mr Fung that the deceased cannot be “a person named in [an] application” for a status declaration under section 6, for the reason that the infant plaintiff is resident in Beijing and could not satisfy the requirements, under section 6, for a substantial connection with Hong Kong, either by domicile, habitual residence, or otherwise. 13.Mr Hui readily conceded that the interpretation imposed an unsatisfactory limitation on the court’s jurisdiction but he submitted that this was an inevitable and only permissible construction of the provisions in question. For my part, I can see no reason why the court’s jurisdiction to give a scientific test direction should be unlimited in declaration proceedings under section 6, the only requirement being that the relevant person (who may or may not be deceased at the time of the application) be named in the application for a status declaration, but limited in other civil proceedings. I cannot discern any reason why the court’s jurisdiction should be wide in proceedings for a status declaration and so much narrower in other civil proceedings. 14.However, Mr Hui purported to give a historical reason for the limitation in section 13(1) of the Parent and Child Ordinance, which he conceded was “unsatisfactory”. He submitted that the wording of sections 13 to 15 under Part VI of the Parent and Child Ordinance is based on sections 20 to 23 of the Family Law Reform Act 1969, as amended by the Family Law Reform Act 1987. Sections 20 to 23 of the 1969 Act were enacted following the Law Commission’s recommendations in their 1968 Report (Law Com. No. 16). Mr Hui submitted that, as stated in the report, the state of the science at the time would only enable a comparison of blood samples from various individuals, which in turn could provide “conclusive evidence” in a negative sense, i.e. that such comparison could prove that a given man could not be the father of a particular child. Mr Hui submitted that, unlike the situation today, given the state of the science then, blood samples from a putative half-sibling had no or very little probative value for establishing the paternity of a particular child. He submitted that it was therefore clear from the 1968 Report that the legislative intent was to confine the potential scope of such blood tests to the child, the mother and the putative father(s). 15.Even if Mr Hui is correct that the science in 1969 was so limited, I do not accept his submission that the legislative intent, to confine the scope of the court’s power to direct blood tests to be taken, was based on the state of science at that time. Quite to the contrary, as Mr Fung for the plaintiff pointed out to me, the makers of the 1968 Report recognised that the science in this area was developing (see paragraph 5 of the Report). If one were to infer any legislative intent by regard to the developing state of the science, that intent must have been to enact provisions which would cater for that developing science, rather than to enact provisions which would be made obsolete by the developing science. 16.Mr Li, in his neutral and very helpful submission to the court, pointed out to me paragraphs 33 and 34 of the Law Commission Report as containing statements which might or might not be of assistance to me in the construction of these provisions. I reproduce those paragraphs as follows :
17.It is clear to me, from a perusal of the relevant provisions in sections 13 to 15 of the Parent and Child Ordinance, and paragraphs 33 and 34 of the Law Commission Report, that the legislative intent in limiting the court’s power to give directions for scientific tests to be conducted and bodily samples to be taken from persons is that such power is only to be exercised against persons who are parties to the proceedings and who can enjoy the rights and privileges of being a party to the proceedings, including the right to be heard in the matter and to object to the court giving such directions, as indeed Mr Hui has done on behalf of the 3rd defendant. If we break down the requirements contained in section 13(1) of the Parent and Child Ordinance, which have to be satisfied before the court can invoke the power to give a direction for the use of scientific tests, we can see that the requirement for an issue of parentage to be determined in a civil proceeding is satisfied in this case, because the parentage of the infant plaintiff is in issue and, indeed, the main issue which has to be determined in these proceedings. Section 13(1) goes on to state that the court may, either of its own motion or on an application by any party to the proceedings, give a direction for the use of scientific tests showing whether a party to the proceedings is or is not the father or mother of that person, and for the taking of bodily samples from that person or any party to the proceedings. The latter requirement for the taking of bodily samples from a person that is a party to the proceedings is satisfied in the case of the 3rd defendant, because he has been made a party to the proceedings. The question of parentage posed in this present case is whether or not the deceased was the father of the infant plaintiff. However, before the court can invoke the power to give a direction for the use of scientific tests in the present case, or in other cases similar to the present case, the deceased, alleged to be the father of the child whose parentage was in question, must be made a party to the proceedings. 18.Mr Fung, for the infant plaintiff, submitted that the deceased was a party to the proceedings because the 1st and 2nd defendants had been sued as the co-administrators of the estate of the deceased, and not in their personal capacities. Mr Li, for the 1st and 2nd defendants, very fairly conceded that, although there was no clear statement to that effect in the Originating Summons, in substance the 1st and 2nd defendants were being sued as personal representatives of the estate of the deceased. However, Mr Li brought to my attention the common law principle that the personal representatives of the estate did not enjoy any proprietary rights over the corpse of the deceased person. Be that as it may, I conclude that the requirements of section 13(1) are satisfied if the estate of the deceased person, who was alleged to have been the father of the child in question, is, or is joined as, a party to the proceedings. The interests of the deceased person can only be protected by the personal representatives of his estate. Mr Li, who appears for the personal representatives of the estate, has maintained, very fairly, a neutral position to this application. No doubt he would have taken a different stance if the personal representatives took the view, after advice from their legal representatives, that the interests of the estate of the deceased person required that the present application be supported or opposed. In this case, my direction would require that bodily samples be taken from the 3rd defendant, who has already been joined as a party to the proceedings and has been heard on this issue. 19.There may be cases in future where the question arises as to the taking of bodily samples from the body of a deceased person. I have not heard argument on this point and it is not necessary, strictly speaking, for me to rule on that issue in the present case and I decline to do so. However, I do recognise that a cogent submission can be made that the court can only give a direction for the taking of bodily samples from a living person who is a party to the proceedings. It is clear from provisions of section 14 of the Parent and Child Ordinance that bodily samples should not be taken from any person without his consent. In the case of a minor under the age of 16, that consent can only come from a person who has his care and control; and in the case of a person suffering from a mental disorder, from the person having his care and control. There is no provision in section 14 or elsewhere in the Parent and Child Ordinance for consent to be given by the personal representatives of the estate of the deceased for bodily samples to be taken from the body of the deceased. Complications must necessarily arise if an application were to be made under section 13(1) for bodily samples to be taken from the body of a deceased person. These complications arise from the fact that there is no property in a corpse and that a man cannot, by will, dispose of his dead body, and that any direction by will or otherwise by the deceased on burial cannot be enforced and is void (see the recent judgment of Au J in Lu Sen Moon Hwa v. Lu Chung Chun, HCMP847/2010, 10 May 2010, in which he dealt with the legal principles relevant to determine who should be entitled to the body of a deceased and to direct the manner of its burial). I also refer to Lambeth London Borough v. S, C, V and J (By His Guardian) [2007] 1 FLR 152, in which Ryder J of the Family Court ordered that there was no power in the Family Court to order disclosure of DNA samples retained by the police and obtained by them during an investigation of an offence pursuant to the provisions of section 64(1A) of the Police and Criminal Evidence Act 1984. 20.It does not follow, as a matter of logic, that just because the court may not have power under section 13(1) of the Parent and Child Ordinance to give a direction for the taking of samples from a dead body that the court does not and should not have such power in the present case. 21.What is sauce for the goose is sauce for the gander. Although I am not saying that the present case is such a case, the right to invoke the court’s power to order DNA testing in a case such as the present is a powerful defence tool which the personal representatives of the estate of deceased persons can utilize to protect the estate against false and fraudulent claims of parentage. To accede to the submission that the court has no power to order DNA testing in a case where the alleged father is deceased would be to deny to potential defendants the right to utilise the best available evidence to defend such claims. 22.The present case does not involve an application for the taking of samples from the body of a deceased person. It is an application to take bodily samples from the 3rd defendant, who is a party to the proceedings. The purpose of the scientific tests is to determine whether or not the deceased was the father of the infant plaintiff. The estate of the deceased is a party to the proceedings in that the 1st and 2nd defendants have been sued as personal representatives of the estate. I conclude that the requirements of section 13(1)(a) have been satisfied and that I am empowered to give the direction for the use of scientific tests to determine parentage. For the avoidance of doubt, I give leave to the plaintiff to amend the Originating Summons by inserting the words “as the personal representatives of the estate of Chiu Pang, deceased” after the words “1st and 2nd Defendants” in the second line of page 2 of the Originating Summons. Re-service of the same is dispensed with. The exercise of discretion 23.The authors of Rayden & Jackson on Divorce and Family Matters, 18th Edition, Vol. 1(1) Text have set out the principles governing the use of scientific tests as follows :
24.Although Mr Li has taken a neutral stance in the matter on behalf of the 1st and 2nd defendants, he did acknowledge in his earlier written submissions dated 22 March 2010 that DNA tests might be the better way to help resolve the question of parentage. He also pointed out that the plaintiff had made no application to effect such DNA tests, either by taking bodily samples from the deceased’s parents in China or bodily samples from the sons of the deceased in Hong Kong. That statement prompted me to consider whether or not the court should give a direction of its own motion for the use of scientific tests and to join the 3rd defendant in order to hear submissions from him on the matter and, if it came to that, to direct that bodily samples be taken from the 3rd defendant. 25.Both Mr Fung and Mr Hui pointed me to various English authorities where the factors affecting the exercise of the court’s discretion in giving a direction for scientific tests to be carried out were considered, including S v. S; W v. W [1972] AC 24 (at 44F-45E per Lord Reid; at 53C-56C per Lord Morris; and at 58F-59D per Lord Hodson); and the decision of Bodey J in Re T (Paternity: Ordering Blood Tests) [2001] 2 FLR 1190. The following statements of Lord Hodson at p. 57H-58A and at p. 59B-C bear repeating :
I have also considered the cases of Re H (Paternity: Blood Tests) [1996] 2 FLR 65 and Re CG (A Minor) (Blood Tests) [1994] 2 FCR 889, 1 FLR 495. Whilst each case must be determined on its particular facts, the following broad principles appear to me to have general application :
26.Having taken into account these broad considerations, I turn to consider the specific factors that were addressed in this case. 27.Mr Hui, on behalf of the 3rd defendant, whilst conceding that a party’s refusal to give bodily samples is not determinative of the issue, nevertheless pressed upon me the affidavit evidence of the 3rd defendant that he would not consent to any such tests as a factor that I should take into account. In addition, he submitted that the feelings of the 3rd defendant, himself still a very young adult, would be seriously hurt and his image of the deceased as a father would be shattered if the outcome of such tests did not accord with his expectation. Mr Hui also urged me to have regard to the fact that this was not a case where there were conflicting claims between people having parental obligations, but a claim on the administrators for a share of the estate of the deceased. In cases such as S v. S, scientific tests were valuable to determine parentage. They were less valuable in the present case not involving parental obligations, and not involving a question of whether the child is the child of one person rather than another. He submitted that a decision not to direct such tests would not affect the interests of the infant plaintiff in any way because Madam Wu would surely tell the infant plaintiff, when he grows up, that the deceased is his true biological father. I accept that these are matters I must have regard to but, in relation to the last factor identified by Mr Hui, I consider that the opportunity to achieve truth and certainty overrides the effect of what Madam Wu might or might not tell the growing infant. 28.Finally, Mr Hui submitted that a comparison of DNA samples between alleged half-siblings would be less conclusive than DNA sampling between child and alleged father, and that this was a factor that should also weigh in my considerations. However, Mr Hui did not put forward any scientific material before me to suggest that DNA sampling between alleged half-siblings would produce a significantly less conclusive result. If the probability of relationship by DNA sampling tests between parent and child is 99.90%, and if the probability of relationship between two alleged half siblings is 99%, that is not a significantly less conclusive test. Although, as a matter of common sense, one may think that DNA sampling between alleged half-siblings is less conclusive than DNA sampling between alleged father and child and therefore, and to that extent, I ought to take this factor into account in this case, there is no evidence before me to demonstrate that DNA sampling between alleged half-siblings would produce a significantly less conclusive result. I also bear in mind that the application of common sense sometimes, and perhaps more often than not, produces a result that can be demonstrated scientifically to be wrong. 29.Mr Fung, on behalf of the plaintiff, submitted that it was in the best interests of the infant plaintiff and also of justice that the court should have before it the best evidence available and which could be provided by a DNA test comparing bodily samples of the infant plaintiff and the 3rd defendant. The plaintiff is an infant and his interests had to be weighed against the interests of the 3rd defendant who is an adult. It was in the infant’s interest that the truth about his paternity be known. Mr Fung submitted that no competing interests had been identified by the 3rd defendant to demonstrate why such a test would be against his interests or the interests of the defendants; alternatively, that it had not been demonstrated that any such competing interests demanded that the ascertainment of truth be suppressed. He concluded that the interests of the infant plaintiff outweighed any competing interests of the defendants, and that a direction for the use of scientific tests should be made so as to produce finality on the key issue of parentage before the court. 30.I have carefully considered the submissions of the parties on the exercise of my discretion in this matter. Having regard to the broad considerations I have identified, and balancing the factors that have been identified to me for my consideration, and placing on those factors the weight that they deserve, I have come to the firm conclusion that I ought to give a direction, of my own motion, under section 13(1) of the Parent and Child Ordinance, that scientific tests be conducted to determine the parentage of the infant plaintiff. 31.The parties were in general agreement that I could issue a direction in the form of Form 1 under Schedule 1 of the Blood Tests (Evidence of Paternity) Regulations 1971. In the absence of rules under our Parent and Child Ordinance, I see no reason why we should not follow the English practice in making a direction similar to the direction set out in Form 1 of the Blood Tests (Evidence of Paternity) Regulations 1971. I note that Lam J in A v. B (HCMP 1652 of 2007, 10 March 2008) also followed an English form, i.e. Form FL424, when he gave a declaration in that case under section 6 of the Parent and Child Ordinance. 32.I left it to the legal representatives of the plaintiff and the 3rd defendant to agree the proper wording of my direction and granted them liberty to apply, in the case of disagreement. I also directed that the 3rd defendant remain a party to these proceedings but that his future attendance in the proceedings was excused. I reserved the question of costs but I gave liberty to the 3rd defendant to make written submissions to me on costs without the need to attend any future hearing where the question of costs would be determined.
Mr Alfred Fung, instructed by Messrs LCP, for the Plaintiff Mr C.Y. Li, instructed by Messrs Fairbairn Catley Low & Kong, for the 1st and 2nd Defendants Mr George Hui, instructed by Messrs Yu, Chan & Yeung, for the 3rd Defendant | |||||||||||||||||||||||||||
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