Omh v. Mt

FCMP 161 / 2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 161 OF 2011

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Coram: Deputy District Judge G. Own in Chambers(Not Open to Public)

Date of Hearing : 28 May and 8 August 2014

Date of Judgment : 15 September 2014

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J U D G M E N T
(Leave to appeal)

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Introduction

1.This is the application taken out by the Applicant for leave to appeal the Order of this Court dated 18 March 2014 (“the Order”) dismissing the Originating Summons dated 8 July 2011 issued under the Parent and Child Ordinance, Cap.429 (“the Ordinance”) after a full hearing on 14 February 2014.  Full Reasons for Decision was handed down on 18 March 2014 (“the Decision”).

2.The background leading to the issuance of the Originating Summons was set forth in the Decision which I do not intend to repeat here.

3.On 31 March 2014, the Applicant filed an Inter Partes Summons attached with the Grounds of Appeal (19 paragraphs in total) signed by the solicitors Messrs. Massie & Clement. The hearing was scheduled for 28 May 2014 when Counsel Miss Jane Moir was instructed to represent the Applicant.   At that hearing, questions were raised by the Court as to the context and drafting of the 19 paragraphs grounds of appeal.  Counsel rightly conceded the Court’s observation and saw the need to modify the context and drafting of the grounds.  Leave was then granted at that hearing for amendment of the Applicant’s grounds of appeal.

4.On 10 June 2014, an amended Grounds of Appeal settled by Counsels Mr Neal Clough and Miss Jane Moir was filed.  Not surprisingly, this is a complete re-draft of the entire Grounds of Appeal with the initial 19 paragraphs all deleted and replaced by 12 new paragraphs. Be that as it may, I will adopt the term “Amended ” Grounds of Appeal used by the Applicant in this Judgment and also referred to each of those grounds by their numbers.

The Amended Grounds of Appeal

5.The 12 paragraphs of the Amended Grounds of Appeal reads as follows :-

“The Applicant challenges the learned Deputy Judge’s Reasons for Decision

as follows :

1. The learned Deputy Judge erred in law in that the Court was charged with the determination on the evidence as to whether it was proved that it was true that the Respondent is the putative father of the Applicant in consequence of the event of the Applicant being conceived, namely sexual congress between the Respondent and AS, the Applicant’s mother and next friend, and to determine that issue on the standard of civil proof which is a balance of probabilities, and he failed to do so.

2. The learned Deputy Judge erred as aforesaid in the premises that there is no requirement for corroboration of the testimony of the mother [or of any witness].

3. The learned Deputy Judge erred as aforesaid in the premises that there is no requirement for scientific testing whether DNA or other form of scientific testing.

4. The learned Deputy Judge erred as aforesaid in holding that the Court’s ability to direct a DNA test in paternity declarations creates a ‘caution’ on the Court if it is minded to accept non-scientific tests, or where they are not available, making this a factor relevant in determining parentage.

5. The learned Deputy Judge further erred in the premises that the Court had made an order for substituted service and being satisfied as to the fact that service had been properly effected was entitled to infer from the fact that the Respondent did not appear and give evidence that any evidence that he would have given would not have assisted his case [in the event that he has denied his paternity].

6. The learned Deputy Judge further erred in the premises that in these circumstances the Court should have made an adverse inference by the failure of the Respondent to appear and give evidence.

7. The learned Deputy Judge further erred in the premises that it is trite that the Court may only draw inferences from the failure to call evidence when the evidence is available to the party and not when it was impossible for the Applicant to present such evidence.

8. The learned Deputy Judge further erred in the premises that it is contrary to public policy to hold that the Respondent (or any putative father) can ignore his legal obligations to his dependent children by ignoring Court process.

9. The learned Deputy Judge further erred in the premises if he had determined the issue on the standard of civil proof which is a balance of probabilities on the evidence before him that was unchallenged and not impeached, he was bound to find that the Respondent is the father of the Applicant.

10. The learned Deputy Judge failed to make that finding since he misled himself by holding that there is a requirement for corroboration or for scientific testing before paternity can be established. The learned Deputy Judge confused the availability of scientific testing with a requirement for scientific testing.

11. The learned Deputy Judge erred in failing to give any weight to the unchallenged evidence of the Applicant and/or any grounds for disbelieving her evidence.

12.  The learned Deputy Judge erred in holding that public policy requires that paternity declarations cannot be determined on oath alone.”

The relevant provisions on granting leave to appeal

6.The jurisdiction to grant leave to appeal rests with section 63A of the District Court Ordinance, Cap.336 which provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard.

7.The relevant test for determining whether the 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.  A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Hartmann JA at paragraphs 8 and 9 of the Judgment).

The Intervener’s stance

8.The Department of Justice was joined in as Intervener at the earlier stage of the proceedings.  The Intervener had all along adopted a neutral stance and hence, with leave of the Court, the trial proper was heard in their absence.  Having been served with the Court’s decision of the 18 March 2014 and being notified of the present application for leave to appeal, the Intervener filed its submissions to assist the Court on the ‘public policy’ point determined by the Court.  Leave was granted later with consent of the Applicant’s solicitors for them to supplement their submissions after the filing of the Amended Grounds of Appeal.  

Discussion

9.On Ground No.1, the challenge rests upon the Court’s failure to determine the Respondent is the putative father by considering the evidence of sexual congress between the Applicant’s mother AS and the Respondent according to the civil standard of proof, namely, on a balance of probabilities.

10.As said in paragraph 27 of the Decision, the court needs to determine the weight to be attached to the evidence before it in order to be satisfied that an issue in question was proved to the requisite standard, namely, balance of probabilities.  Nowhere in the Decision had this Court referred to a different standard of proof being applied to the present case apart from the requisite civil standard of proof, namely, balance of probabilities.  The fact is that after careful consideration, this Court could not be satisfied that the core issue of the Respondent to be the putative father of the Applicant had been proved to the requisite civil standard by the Applicant’s mother’s evidence. 

11.This lead to the second challenge about the requirement of ‘corroboration’ of the testimony of the Applicant’s mother [or of any witness] stated in Ground No.2.  In civil cases (which includes family court cases), the sufficiency or strength of a piece of evidence to prove an issue in question does not require corroboration unless otherwise required by statutory provisions.  Again, nowhere in the Decision had this Court ever looked for or suggested that there is the requirement of corroboration or corroborative evidence.  At paragraph 26 of the Decision, it was actually said :

“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 probabilities, to prove that the Respondent MT is the natural father of the applicant OMH”.

12.Thus, Ground Nos. 1 and 2 have no reasonable prospect of success on appeal.

13.Ground No. 3 referred to this Court having erred in law that there is no requirement for scientific testing, whether DNA or other form of scientific testing.  As said in paragraph 28 of the Decision, the provision on the use of scientific tests to determine parentage under Section 13 of the Parent and Child Ordinance, Cap.429, had not (my emphasis) displaced the Court’s discretion to accept affirmation and testimonial evidence.  It is incorrect to say scientific testing was required by this Court.  

14.Ground No.3 has no reasonable prospect of success on appeal.

15.Ground No.4 is a 2-limb challenge.  It linked up the ‘caution’ noted in paragraph 28 of the Decision with the Court’s ability to direct a DNA test if it is minded to accept non-scientific tests; or where non-scientific tests are not available, DNA test would then become a factor relevant in determining parentage.

16.This Court at paragragh 28 of the Decision was of the view that the empowering provision under Section 13 to direct scientific tests had not displaced the Court’s powers to receive and accept non-scientific test.  That there to be a ‘caution’ noted by the Court was premised by the existence of such statutory provision by the legislature about the mode for collating evidence is uncommon and rare.  It is incorrect to say “the Court’s ability to direct a DNA test in paternity declarations creates (my emphasis) a ‘caution’ on the Court….”.   Where non-scientific tests are not available, DNA test then becomes a relevant factor speaks for itself.

17.Ground No.4 has no reasonable prospect of success on appeal.

18.Ground No.5 referred to the Respondent not appearing to give evidence or made any challenges to the application, despite substituted service of proceedings had been effected, entitled the Court to draw inference that any evidence the Respondent would have given would not have assisted his case in the event the Respondent disputed paternity.  With due respect to Counsel, such contention must fail for 2 reasons.  First and foremost, it is always the Applicant who has to prove his or her case by sufficient evidence to the requisite standard.  It is not for the Court to decide whether the Applicant’s case or a particular issue raised by the Applicant had been successfully proved by drawing inference against the opposite party.  Secondly, to draw inference upon inactivity or silence of the Respondent to the effect that whatever evidence that might have been given by him would not have assisted his case is incorrect.  Drawing inference upon inactivity or silence could not be conclusively taken to mean that whatever evidence that would be produced but for such inactivity or silence must have no evidential value.   

19.Ground No.5 has no reasonable prospect of success on appeal.

20.Ground No.6 referred again to this Court not drawing adverse inference against the Respondent upon his failure to appear and give evidence.  Such ground has no reasonable prospect of success on appeal for the reasons stated for Ground No.5 above.

21.Ground No.7 is, again without disrespect to Counsel, incorrect.  Nowhere in the Decision had this Court drawn any inference upon the evidence produced by the Applicant’s mother’s testimony including her supporting Affirmation.  This is exactly what this Court inclined to do but unable to do since there was no evidence before the Court about the Respondent’s response after he learnt about the pregnancy from the Applicant’s mother.  It was at all possible rather than impossible for the Applicant (or more accurately should be the mother of the Applicant) to present the relevant evidence.  At paragraph 29 of the Decision, this Court had said :-

“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 (my emphasis) that the Respondent had admitted paternity ………..”

22.Ground No.7 has no reasonable prospect of success on appeal.

23.Ground No.8 is a challenge that it is contrary to public policy for the Respondent (or any putative father) who can ignore his legal obligations towards dependent children by ignoring Court process.  As drafted, this ground appears to say this Court had erred in not arriving at such a conclusion or touched upon such time.  However, upon careful consideration of the contents of the Decision, nowhere in the Decision had this Court ever decided upon the question of ignoring legal obligations by ignoring Court process. 

24.Ground No.8 has no reasonable prospect of success on appeal.

25.Ground No.9 referred to this Court, having determined the issue of standard of proof, was bound to find the Respondent to be the father of the Applicant upon the evidence available which was unchallenged and not impeached.  In my decision, it is over simplistic to accept unchallenged evidence as sufficient proof of an issue without due consideration on the quality and weight to be given.  As said in paragraph 31 of the Decision, this Court had given careful consideration to the evidence and concluded that the Respondent to be the father of the Applicant had not been proved to the satisfaction of the Court.  The Court is always entitled to take into account the quality of the evidence and the weight to be attached when deciding whether an issue before it had been proved to the requisite standard at law.

26.Ground No.9 has no reasonable prospect of success on appeal.

27.Ground No.10 referred to this Court having confused the availability of scientific testing with a requirement for scientific testing, and further misled itself by holding to a requirement for corroboration or scientific testing for proof of paternity.  However and upon careful consideration of the contents of the Decision, nowhere in the Decision had this Court ever confused or misled itself as so submitted. 

28.Ground No.10 has no reasonable prospect of success on appeal.

29.Ground No.11 referred to this Court having failed to give any weight to the unchallenged evidence of the Applicant and/or any grounds for disbelieving the mother’s evidence.  As said above and in paragraph 31 of the Decision, careful consideration had already been given to the unchallenged evidence.  The conclusion arrived at was that the mother’s unchallenged evidence, which essentially are bare statements on sexuality or non-sexuality, are not sufficient for proving paternity to the requisite standard.

30.Ground No.11 has no reasonable prospect of success on appeal.

31.Ground No.12 referred to this Court found public policy requires paternity declarations not to be determined on oath.  As said in paragraph 25 of the Decision, the law requires solid and cogent evidence in applications for declaration on parentage since such declaration, if granted, attracts massive rights, duties and obligations. Although evidence under oath is to be accepted as evidence, there is still the question of preponderance of probabilities that the truth of the proposition had or had not been proved to the requisite civil standard.     

32.Ground No.12 has no reasonable prospect of success on appeal.

Any other reasons for granting leave to appeal ?

33.Apart from the reasons set out above to the Applicant’s grounds of appeal, I also find that there being no reason in the interests of justice that leave to appeal should be granted.

Conclusion

34.For the above reasons, I dismiss the Applicant’s Summons dated 31 March 2014 seeking leave to appeal.

35.Last but not least, I wish to express my gratitude to the Department of Justice for its legal submissions on the public policy issue.  I also direct a copy of this Judgment to be forwarded to the Department of Justice.

Orders

36.I now grant the following Orders :-

(a) The Applicant’s Summons dated 31 March 2014 be  dismissed;

(b) There be no Order as to costs including all costs reserved.

Mr. Neal Clough and Miss Jane Moir instructed by Messrs. Massie & Clement, solicitors for the Applicant

Respondent being absent

Miss Evelyn Tsao for the Department of Justice (Intervener)