CHOW PO YUEN, a minor by PANG ZHENGYUN, her mother and next friend AND ANOTHER v. CHOW CHUN KIT, the administrator of the estate of CHOW WING CHEUK, deceased and in his personal capacity AND OTHERS

HCMP 1400/2014

[2019] HKCFI 1112

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1400 OF 2014

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AND

HCMP 1455/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1455 OF 2014

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(Heard together)

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JUDGMENT

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Introduction

1.  This judgment concerns:

(a)   HCMP 1400/2014 (“MP 1400”), an action commenced in June 2014 by Ms Chow Po Yuen (“the infant girl”), a girl born in May 2009, (through Mdm Pang, the infant girl’s natural mother (and a lover of the deceased mentioned in para 2 below)); Mdm Pang herself has ceased to be a plaintiff therein;

(b)   HCMP 1455/2014 (“MP 1455”), an action commenced in June 2014 by Mr Chow Chun Kit (“the son administrator”).

By an order dated 5 February 2018, MP1400 and MP1455 are directed to be heard together.  Although there are 3 defendants in MP 1400, they take a common stance as regards the claim therein.  For this reason, the defendants will be collectively called “the son administrator” below for convenience.

2.  Both actions involve a Mr Chow Wing Cheuk (“the dec’d”), who passed away in Hong Kong in September 2011.  The infant girl seeks principally in MP 1400 a declaration that the infant girl is a natural child of the dec’d and is entitled to succession under the Intestates’ Estates Ordinance (Cap 73). On the other hand, the son administrator seeks principally in MP 1455 a declaration to the contrary.

3.  Apart from MP 1400, Mdm Pang and the infant girl commenced another proceeding earlier in August 2012 seeking maintenance from the dec’d’s estate (relying on the Inheritance (Provision for Family and Dependants) Ordinance (Cap 481)), contending therein they were respectively the lover and illegitimate child of the dec’d (FCMP 182/2012 (“FCMP 182”)).  That claim is still on-going.

Background

4.  The following summary of the relevant background is largely undisputed for present purpose (they may be disputed for the purpose of FCMP 182).

5.  The dec’d was a businessman who carried on a decoration and design business.  According to the schedule of assets and liabilities attached to the affirmation filed in connection with the application for grant of representation, assets forming part of the dec’d’s estate include:

(1)   various publicly listed stocks;

(2)   several businesses;

(3)   land properties.

6.  The dec’d was married in Hong Kong.  His next-of-kins are:

(a)   Mdm Chow, the widow;

(b)   the son administrator, his lawful son;

(c)   Ms Chow, his lawful daughter.

(however, as will be mentioned below, the blood relationship between the dec’d and the son administrator and Ms Chow (“the Chow siblings”) was disputed by Mdm Pang during the hearing of MP 1400 and MP 1455).

7.  An order was made in FCMP 182 (in January 2013) directing a DNA test to be carried out (“the Jan 2013 order”).  This resulted in a DNA test report dated 29 April 2013 (“the DNA test” and “the DNA test report”).  By an order dated 17 September 2014 made in both actions, the DNA test report was to be adopted as evidence at the hearing of both actions.

DNA test report

8.  As stated in the DNA test report (and as directed by the Jan 2013 order), the DNA test report was prepared by the joint instructions of all parties.

9.  The expert who verified the DNA test report noted that, genotype for reference from:

(1)   the dec’d was unavailable (due to his death);

(2)   the biological mother of the Chow siblings was unavailable;

(3)   the grandparents of the Chow siblings were unavailable.

The expert therefore considered this to be a “deficiency” case; namely, a DNA test without the genetic information from the dec’d for direct comparison.

10.  Below is a summary of the results of the various relevant tests mentioned in the DNA test report:

(a)   “Mitochondrial DNA” (or mtDNA) test: this shows the infant girl has inherited her mtDNA from Mdm Pang; that the infant girl’s mtDNA is different from the Chow siblings’; that the Chow siblings’ mtDNA is identical (showing they have the same biological mother);

(b)   “Siblingship and Uncle/Nephew-Niece” test: this shows that the Chow siblings are most likely full siblings with the same biological parents; that the infant girl is possibly a half sibling of the Chow siblings with different biological mothers; that whether the infant girl and the Chow siblings have the same biological father is inconclusive;

(c)   “Y-Chromosome Analysis” test: this shows inheritance along the paternal line, and shows that the son administrator and the dec’d’s brother have the same paternal lineage;

(d)   “X-Chromosome Analysis” test: this shows that daughters with the same biological father will share the same paternal genetic allele, and shows that the infant girl and Ms Chow are most likely to have different biological father.

11.  Because the DNA test report was prepared by the parties’ joint instructions, the authenticity and reliability of its conclusions are undisputed.  The expert opinions therein are supported by reasons which appear to be well founded.  Accordingly, I see no valid basis for not giving its conclusions full weight.

12.  The infant girl relies on the DNA test being a “deficiency” case as a ground for doubting its conclusions.  It is obvious the expert was well aware of this, and expressly mentioned this in the DNA test report.  However, while the expert mentioned the lack of direct comparison, I do not understand him to be saying that this has rendered the conclusions to be less accurate or reliable.

13.  Finally, the infant girl asks me to draw an adverse inference against the son administrator for his failure to procure his mother and grandmother to take part in the DNA test.  However, since the conclusions reached in the DNA test report are clear, and critical to the main factual dispute herein, there is little room for inferences to be drawn in this regard.

Witnesses’ credibility and reliability

14.  The following witnesses testified for the infant girl at trial:

(1)   Mdm Pang;

(2)   Mdm Lok, Mdm Pang’s friend and former colleague.

There was only one defence witness; namely, the son administrator.

15.  The testimony of Mdm Lok and the son administrator can be dealt with relatively briefly.  It has to be borne in mind the main factual dispute herein concerns whether there was blood relationship between the dec’d and the infant girl (especially sufficient blood relationship for the infant girl to bring herself within Cap 73); this action has nothing to do with any claim which may arise out of Cap 481 (that claim is the subject matter of FCMP 182).  For this reason, because neither of these witnesses has testified to the blood relationship issue (and there being no dispute (for present purpose) the dec’d and Mdm Pang used to be in an intimate relationship), their testimony has no relevance.

16.  Mdm Pang claimed during her testimony (as she has done in various affirmations filed earlier in different proceedings) that the dec’d was the only man with whom she had an intimate relationship during the year or so before the infant girl’s birth (in May 2009).  She therefore says that the dec’d must have been the infant girl’s biological father.

17.  But the credibility of Mdm Pang’s above claim will have to be assessed in the light of the DNA test report.

18.  The conclusion of the DNA test report summarized in para 10(d) above contradicts Mdm Pang’s above claim and assertion.

19.  In response, Mdm Pang contends that this conclusion can also mean Ms Chow is not the dec’d’s biological daughter (and/or the Chow siblings are not his children).  I reject this contention for the following reasons:

(a)   as summarized in para 10(c) above, the DNA test report concluded that the son administrator also has the same paternal lineage as the dec’d’s brother;

(b)   as summarized in para 10(b) above, the DNA test report concluded that the Chow siblings are most likely to have the same biological parents;

(c)   in view of sub-para (a) and (b) above, in order for Mdm Pang to make good her contention, logically she would also have to contend (i) the son administrator is not the dec’d’s biological son either, and/or (ii) the dec’d’s brother mostly likely is not the dec’d’s biological brother (because the Chow siblings and the dec’d’s brother most likely share the same paternal lineage). This contention is too far-fetched.

20.  When the trial opened, Mdm Pang’s contention summarized in para 19 above was not made part of the infant girl’s case. However, by close of her case, that contention was also put forth.  Based on the reasons given above, the contention is rejected.

21.  Besides the inconsistency between Mdm Pang’s assertion that the dec’d was the infant girl’s biological father and the conclusions of the DNA test report, Mdm Pang’s testimony also discloses that she was married to two other men.

22.  Mdm Pang was married to a Mr Leung in the Mainland from December 2003 to end of 2006 (Mdm Pang’s relationship with the dec’d became intimate shortly after January 1994).  She claims that there was no contact between them after the divorce.

23.  Mdm Pang was married to a Mr Tsui in Hong Kong in July 2009 (shortly after the birth of the infant girl (in May 2009)). According to Mdm Pang:

(1)   she was introduced to Mr Tsui by the dec’d in 2006 or 2007 (it is noted that Mdm Pang’s affirmation does not mention the dec’d’s involvement in the relationship);

(2)   hence, she had known Mr Tsui for about two to three years before their marriage;

(3)   her relationship with Mr Tsui became “fragile” after the dec’d passed away (in September 2011) (alternatively, after 2012) and this resulted in their divorce (in August 2014).

24.  Mdm Pang’s claim that “between late 2006 … and early July 2009 …, I was single and did not have any romance with anyone save and except [the dec’d]” (in the affirmation dated 10 June 2014) will need to be looked at with the matters set out in para 23 above in mind.

25.  The infant girl also relies on the dec’d:

(a)   signing the “Consent Form for Operation” relating to the birth of the infant girl;

(b)   declaring himself as the infant girl’s father,

as evidence of the blood relationship between him and the infant girl.

26.  I will give the above little weight because:

(1)   the dec’d is (naturally) unavailable for cross-examination;

(2)   it can be inferred Mdm Pang was mostly probably the source for the dec’d’s belief that the infant girl was his daughter.

27.  Other miscellaneous matters are also relied on by the infant girl as showing the blood relationship between the infant girl and the dec’d (such as the dec’d providing a credit card for Mdm Pang’s use; Mdm Pang’s family arranging the infant girl to meet the dec’d; no other child has come forth to claim blood relationship with the dec’d).  Suffice it to say I have considered them and do not find them to materially affect my determination.

Conclusion

28.  By reason of the matters above, I find that the son administrator has discharged his burden of rebutting the presumption provided for by s 5(1)(b), Parent and Child Ordinance (Cap 429) (to the effect a man who registered himself as the father of a child shall be presumed to be the child’s father).

29.  Accordingly, I find for the son administrator in relation to both MP 1400 and MP 1455.

Other matters

30.  The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the judgment and its easier comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

Costs order

31.  The parties agree to the usual rule that costs should follow the event.  There will accordingly be a costs order that the costs of MP 1400 and MP 1455 be paid by the infant girl to the son administrator to be taxed if not agreed.  The infant girl is legally aided; her own costs are to be taxed in accordance with the Legal Aid Regulations (Cap 91A).