Omh v. Mt
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FCMP 161 / 2011 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 161 OF 2011 ----------------------------
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------------------------- REASONS FOR DECISION ------------------------- Introduction 1.The Applicant (“OMH”) is a boy born in Hong Kong on 13 July 2009 at Queen Elizabeth Hospital. This is an application taken out by the natural mother of the Applicant (“AS”) as his next friend seeking a declaration under Section 6 (1)(a) of the Parent and Child Ordinance, Cap.429 (“the Ordinance”) that the Respondent (“MT”) is the natural father of the Applicant. 2.The mother AS filed her affirmation in support of the application on 8 July 2011 together with 4 exhibits. Suffice to say is that both OMH and AS are currently staying in Hong Kong under Recognizance as applicants under the Claim Against Torture (“CAT”) regime since 2009. 3.At one stage there are concerns on jurisdictional issue as to whether Section 6 (2) of the Ordinance applies to applicants under the CAT regime. It is for this reason that the Court exercised its powers under Section 7 of the Ordinance and directed the Secretary for Justice be joined as intervener in these proceedings to answer the issue on jurisdiction. Having considered submissions from the Secretary for Justice and the solicitors for the Applicant, the jurisdictional issue was resolved in the Applicant’s favour and these proceedings moved along. 4.Notice of today’s hearing was substituted by way of advertisement once in The Standard newspaper on 18 December 2013. Service was proved by an Affirmation of Wong Chung Fu filed on 30 December 2013. The Parent and Child Ordinance, Cap.429 (“the Ordinance”) 5.To start with, I recite below those statutory provisions under the Ordinance which I considered important for determination of the present case. 6.Section 5 of the Ordinance provides:-
7.Section 6 of the Ordinance provides:-
8.Section 13 of the Ordinance provides:-
The Mother’s evidence 9.The Mother SA, being the next friend for the Applicant, filed her Affirmation dated 5 July 2011, setting out the factual background leading to the birth of the Applicant and in support of the application. 10.At paragraphs 4 to 7 of her supporting Affirmation, she deposed to the following:-
11.At the trial the Mother, who was legally represented by Mr. Clement assigned by the Legal Aid Department, confirmed the contents of the supporting Affirmation are true and accurate, then adopted as her evidence in chief. 12.No witnesses or further evidence are produced by the Mother in the present application. Presumptions on Parentage 13.Section 5 of the Ordinance provides a statutory presumption on paternity if either one of the two situations exist (sections 5 (1)(a) or (b)). Such statutory presumption is a rebuttable one by proof on balance of probabilities (sections 5 (2) and (3)). Such evidence in rebuttal would no doubt come from the other party against whom the declaration is sought. 14.If neither of these presumptions applies, the applicant would have to prove by evidence the truth of his or her case to the satisfaction of the court. Upon such proof, the court shall (my emphasis) make the declaration unless to do so would manifestly be contrary to public policy (section 6 (3)). 15.Having said and, since the Respondent in the present case is absent, the issues fall to be considered would be:-
The available evidence 16.The mother in her supporting Affirmation produced the applicant’s birth certificate as exhibit “AS-1” where the surname and name of the father was marked with asterisks. She also confirmed the non-marital relationship with the Respondent. The reason for this was stated in paragraphs 5 and 6 of the mother’s supporting Affirmation. 17.Therefore, none of the two statutory presumptions under section 5 (1) apply to the Applicant. 18.Thus, the only evidence available to this Court is the mother’s affirmation and her oral testimony in court. At the hearing, the mother confirmed the contents of her supporting Affirmation are true and accurate, and adopted as her evidence in chief. No other witnesses or proofs, such as photographs of the mother and the Respondent taken together, emails or mobile text messages exchanged between the parties are available. The only documentary evidence produced by the mother AS are 2 staff cards, 1 member card, 1 HSBC visa card and 1 Bank of China bank card, all with the name of the Respondent on it and produced them collectively as one exhibit marked “AS-4”. Exhibits “AS-2” and AS-3” are the mother’s and child’s own recognizance respectively. 19.In addition to the exhibits, the mother at paragraph 4 of her supporting Affirmation stated the following which I now repeat:-
20.The next question to be asked is thus whether, on balance of probabilities, the truth of the proposition that the Respondent is the natural father of the applicant has been proved by such evidence of the mother? The Court’s view 21.First of all, I have not been assisted by Mr. Clement on any cases or authorities of similar factual background which I can consider. Secondly, after the mother had given her testimony and in Mr. Clement’s final submission, I specifically sought Mr. Clement’s confirmation as to whether he had any submissions to make on Section 13 of the Ordinance. The answer given by Mr. Clement was that he had no such submission. 22.The only case of superior court which I am aware of is the case of Re “A” and “B” [2008] 4 HKLRD 526, however, the facts of which are completely different from here as that case was one of those ‘run of the mill’ cases. In that case, the Respondent did not contest the application. Further, there is cogent scientific evidence by way of DNA testing which supported the application. His Lordship Mr. Justice Lam (as he then was) granted the application with some reference to those statutory provisions under the English Family Law Act 1986 (as amended) and the Family Proceedings Rules 1991 (see paragraphs 5 and 6 of the Judgment). 23.In the absence of any leading authorities which I may rely upon, I believe it is proper and fair for this Court to start with by first considering all the statutory provisions in the Ordinance and, if necessary, to also consider the legislative intent and underlying objective of the Ordinance. 24.The declaration sought under Section 6 falls under Part IV of the Ordinance (Part IV: Declaration of Status). Section 13 of the Ordinance falls under Part VI of the Ordinance (Part VI : Use of Scientific Tests in Determining Parentage) which empowers the Court, either of its own motion or on application by any party to the proceedings, give directions for use of scientific tests to show parentage and for taking bodily samples, in any civil proceedings in which parentage falls to be determined (my emphasis). More importantly, Section 13 (3) specifically refers to cases where parentage falls to be determined within applications under Part IV of the Ordinance. 25.In my decision, Section 13 is wide and far reaching for the fact that it is applicable to any civil proceedings (my emphasis). The specific reference in Section 13 (3) to its applicability in determining parentage before granting a Section 6 declaration in the Ordinance, in my view, reinforces the importance and necessity of solid and cogent evidence in applications for declaration on parentage. This requirement is correct since it is not just a matter of status and relation once the declaration of parentage is granted. There are massive consequential rights (succession or otherwise), duties and obligations (legally or morally) which will follow such declaration. This may well be the legislative intent and underlying object which the law aimed at. Whilst protecting the rights of those persons born out of non-marital union of their natural parents (in the old days classified as being born ‘illegitimate’), it also seeks to ensure the degree of accuracy on parentage of the person against whom the declaration is sought. Discussion and Analysis 26.The ultimate question before this Court is whether the oral testimony of the mother, her supporting Affirmation and exhibits “AS-1” and “AS-4” whether putting together or in isolation is sufficient, on balance of all probabilities, to prove that the Respondent MT is the natural father of the applicant OMH. 27.From the evidential aspect, affirmations and verbal testimonies can be considered in court proceedings to prove statement of facts. It is for the court to decide how much weight to be attached to such evidence so as to decide whether the issue in question had been proved to the requisite standard, whether it is on balance of probabilities for civil cases or it is beyond reasonable doubt for criminal cases. 28.The fact that Section 13 of the Ordinance provides for ‘Use of Scientific Tests in Determining Parentage’, though this had not expressly displaced the Court’s powers and discretion to accept affirmation and testimonial evidence, is a ‘caution’ upon the Court if it is minded to accept non-scientific tests evidence or where no scientific tests are available or could be obtained as in the present case. In my view, it is uncommon and rare for the legislature not only stating the nature and source of evidence needed, but also empowers the Court to call for such evidence. 29.I noted the mother in paragraph 4 of her supporting Affirmation deposed to herself having informed the Respondent the pregnancy of the Applicant OMH. It is unfortunate that she had not, anywhere in her supporting Affirmation or oral testimonies in Court, stated the answer or response of the Respondent upon learning from her the pregnancy. Did the Respondent accept or deny paternity? The mother is the only person to tell the Court what the Respondent had said. This is particularly important in light of the fact that the Respondent is absent throughout these proceedings. The mother who has all along been legally represented in these proceedings could not have omitted such piece of crucial evidence. In the absence of such crucial evidence, this Court cannot even draw any inference that the Respondent had admitted paternity by simply relying on the mother’s evidence, namely, that she had no sexual relationship with anyone else and she had informed the Respondent of the pregnancy. 30.I have also considered whether there are any additional evidence from the mother at the substantive trial hearing or any circumstantial evidence which may assist her case. Upon careful consideration, there are no other direct or indirect evidence available. Moreover, there was no submission either from Mr. Clement that, given the particular factual circumstances of the case, this Court should not have taken any consideration of Section 13 whether in the evaluation of evidence or in its fact-finding exercise. 31.In conclusion and after careful consideration, I find the truth of the proposition that the Respondent is the natural father of the applicant OMH is not proved to the satisfaction of the Court. The Applicant’s case fails. 32.Had I been wrong in my conclusion over the mother’s evidence and that the declaration ought to be granted (which I do not agree), I believe there are good reasons for not making such declaration for it would manifestly be contrary to public policy to determine parentage by mere statements on sexuality or non-sexuality. In my view, accepting statements of sexuality or non-sexuality as sufficient evidence for proof on paternity for granting Section 6 declaration would be in defiance to Section 13 of the same Ordinance if not rendering it obsolete. 33.Though I have full sympathy on the mother’s case in that the chance of obtaining a DNA test report is slim, this is the legal position which she should have been legally advised by her lawyers. 34.For the above reasons, I dismiss the Applicant’s case. 35.As the Secretary for Justice was an intervening party, I direct a copy of this Reasons for Decision be forwarded to them. Orders 36.I now grant the following Orders :-
(d) Any costs incurred by the Secretary for Justice be taxed in accordance with Legal Aid Regulations and be paid by the Legal Aid Department.
Mr. Richard Clement of Messrs. Massie & Clement, solicitors for the Applicant Respondent being absent Department of Justice (Intervener), being absent | ||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMP 161/2011