LAU CHO KUN alias LAU YU CHAK v. LAU SIANG KOK LIONEL

CACV 212/2012 and CACV 213/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 212 AND 213 OF 2012

(ON APPEAL FROM HCEA NO. 29 OF 2010)

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BETWEEN

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J U D G M E N T

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Hon Fok JA (giving the Judgment of the Court):

The applications

1.  By our judgment dated 23 July 2013, the reasons for which were handed down on 30 July 2013 (the Reasons for Judgment), the applicant’s two appeals against what were referred to as the Subpoena Decision and the DNA Decision were dismissed.

2.  The Subpoena Appeal (CACV 213/2012) involved an application under s. 7(3) of the Probate and Administration Ordinance (Cap. 10) and the DNA Appeal (CACV 212/2012) involved an application for directions under s. 13 of the Parent and Child Ordinance (Cap. 429).

3.  The applicant now applies for leave to appeal to the Court of Final Appeal from our judgment in both appeals.  The application for leave is made pursuant to s. 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) on the ground that the appeals involve questions of great general or public importance and on the “or otherwise” ground.

4.  The notices of motion dated 6 August 2013 set out the questions of great general or public importance said to be involved in the respective appeals.  By summonses dated 30 September 2013, the applicant sought to amend the questions set out in those notices of motion.

5.  Since they were not opposed, we granted leave to amend the notices of motion on the terms of the two summonses.

6.  We do not propose to set out at length the questions identified in the amended notices of motion since they have been conveniently and, we think, accurately summarised in the applicant’s skeleton in support of this application as follows:

(1) In the DNA Appeal, the question is whether:

“In relation to the application for a DNA test, the Court was wrong to regard itself as constrained or inhibited in making a direction under s.13 of Cap.429 by the conditions in Ladd v Marshall”.

(2) In the Subpoena Appeal, the question is whether:

“In relation to the application under s.7(3) of Cap.10, whether evidence of a prima facie interest or standing qua child of the testator is sufficient in a case where there is a disputed issue as to parentage and where the Court has before it the means by a direction for a DNA test under s.13 of Cap.429 to determine that issue conclusively.”

A preliminary point

7.  A preliminary point arises as to whether, in the DNA Appeal, leading counsel for the applicant appearing on the appeals (not Mr Adrian Huggins SC, who appears before us today) was mistakenly understood by this court to have conceded that the three conditions in Ladd v Marshall applied to the application for directions under s. 13 of the Parent and Child Ordinance (Cap. 429).  It is submitted that no such concession was made by counsel and in any event, even if it was, it is a concession on a point of law and cannot bind the Court of Final Appeal.

8.  It is further submitted that counsel clearly had intended to submit that the conditions in Ladd v Marshall would apply to the admission into evidence in the Subpoena Appeal of the results of any DNA test the court might direct under s. 13 and that, by reason of a typographical error in counsel’s written skeleton before us in the DNA Appeal, it appeared that the submission was that the court’s power to admit the further evidence would have been a power to allow the results to be adduced at the hearing of the DNA Appeal.

9.  We are quite satisfied that there was no mistaken understanding on the part of the court as to counsel’s concession below.  The clearest indication of what the court understood counsel to have conceded is set out in paragraph 36 of the Reasons for Judgment.  The material part of that paragraph noted that, on the application for a DNA test, “the judge would probably need to form a view if it is likely that the result of the DNA test would be admitted as further evidence on appeal”.  This shows clearly that counsel was understood to be making a point by reference to the results of the DNA test, to which it was rightly conceded the Ladd v Marshall conditions would apply.  It also shows, when read with the final sentence of the paragraph, that the court understood the submission of counsel to relate to the question of whether the results of the DNA test should be admitted as further evidence in the Subpoena Appeal.

10.  That this is the case is reinforced by reference to paragraph 38 of the Reasons for Judgment where the court noted, in relation to whether the first condition in Ladd v Marshall was satisfied, that the question was “whether the further evidence he seeks to adduce on appeal could have been obtained at the hearing before the judge in August 2011 with reasonable diligence”.  The hearing in August 2011 was the hearing on 26 August 2011 leading to the Subpoena Decision dated 20 February 2012.  We are satisfied that this demonstrates that the court was well aware that the submissions relating to Ladd v Marshall concerned the admissibility or otherwise of the results of any DNA test that was ordered for the purposes of the Subpoena Decision and any challenge thereto.

11.  Further reinforcement is provided by reference to paragraph 42 of the Reasons for Judgment which makes it clear that the court understood that the DNA Appeal was for the purposes of an “application to this court to give directions for a DNA test with the view of obtaining further evidence for use in the Subpoena Appeal”.

12.  The transcript of the hearing of the appeals, which we have now seen, demonstrates that the way counsel’s acceptance of the applicability of the Ladd v Marshall conditions was presented was not affected by the typographical error in the skeleton argument for the applicant on the DNA Appeal[1] and confirms our view that the concession was not misunderstood by us since the submissions on that appeal[2] clearly proceeded on the basis that the Ladd v Marshall conditions would have applied to the result of the DNA test, which this court might or might not have admitted as further evidence on the Subpoena Appeal.

The DNA Appeal

13.  Having addressed the preliminary point, we are satisfied that the questions identified in the amended notice of motion in the DNA Appeal which are said to be questions of great general or public importance are questions that are inherently fact-sensitive.  This conclusion is abundantly clear, in our view, from the opening words of each of the two questions framed in the amended notice of motion which posit the existence of an issue or an appeal under s. 7(3) of the Probate and Administration Ordinance.  It is also apparent from the remainder of the qualifying circumstances said to give rise to the questions of law sought to be referred to the Court of Final Appeal.

14.  In any event, we are satisfied that the concession made by counsel before us, as explained above, was correct and properly made and that this court’s decision proceeded on a proper understanding of the ambit of the concession.  In the light of that concession and also the view taken by the court on the Subpoena Appeal, we are not persuaded that the applicant’s appeal against the DNA Decision is reasonably arguable.

The Subpoena Appeal

15.  The question identified in the amended notice of motion in the Subpoena Appeal is, we think, plainly fact-sensitive.

16.  Furthermore, for the reasons already set out in the Reasons for Judgment (and, in particular, paragraphs 51 and 52 of those Reasons), we do not think, with respect, that the applicant’s challenge to the Subpoena Decision is reasonably arguable.

The “or otherwise” ground

17.  No arguments were advanced by the applicant as to why leave should be granted on the “or otherwise” ground.  In any event, save in exceptional circumstances, which we do not think exist here, the usual practice of the Court of Appeal is to leave the question of whether leave should be granted on the “or otherwise” ground to the Appeal Committee.[3]

Application to vary

18.  In a second skeleton submission dated 9 October 2013, the respondent asks this court to vary paragraph 2 of the order providing for inspection by the respondent.  The variation is sought by reference to certain comments of the applicant’s counsel at the hearing before us on 23 July 2013.  However, the disclosure now relied upon to justify the variation was already known to the respondent’s legal advisers at the conclusion of that hearing when the terms of the order for inspection were addressed but they did not ask for this form of order at that time.  Nor was this form of order sought in the Subpoena Appeal.  We do not think it is appropriate for the respondent at this late stage and in the wholly discrete context of the applicant’s application for leave to appeal to seek the variation in question and we therefore refuse the respondent’s request.

Disposition

19.  For these reasons, we dismiss the amended notices of motion.