WSJ (MINOR), BY HIS MOTHER AND NEXT FRIEND HC v. WZC AND ANOTHER

FCMP 176 / 2015

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DECISION
(Leave to appeal)

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Background

1.  The applicant of this case is a 5-year’s old boy suing through his next friend who is his natural mother. By way of an originating summons of 13 August 2015, he seeks a declaration from this court that the 1^st respondent is in law his father pursuant to section 6 (1) (a) of Parent and Child Ordinance (“Ordinance”) and to amend the particulars in his birth certificate accordingly.  

2.  It is not disputed that the boy in question was born in Hong Kong in 2010, but since then, he has never come, lived or stayed in the jurisdiction.  It is his case that he was born out of the wedlock of his mother and the 1^st respondent who is in fact his biological father (“biological father”). The 2^nd respondent is the brother of the biological father (“paternal uncle”).  His natural parents and paternal uncle are PRC citizens who do not have right of abode in Hong Kong at all material times.  In/about April 2010, the mother, accompanied by the paternal uncle, came to Hong Kong to give birth to the boy. A mistake (not caused by the government officials of the birth registry) was said to be made in the Hong Kong birth certificate that the paternal uncle was wrongly named as the father. The mistake was known to the paternal uncle shortly after the birth certificate was issued, but only recently noted by the natural father when he tried to apply for a USA visa for the boy. The boy now wishes to amend the particulars of his birth certificate so that the biological father would be correctly named as his father in his birth certificate. He has produced a DNA test report to confirm parentage of the biological father.

3.  For obvious reason, the application was uncontested by either the biological father or the paternal uncle.  It is accepted by the applicant boy that at the time of the application, he was neither domiciled nor habitually resident in Hong Kong.  The issue here relates to jurisdiction of this court pursuant to section 6 (2) (c) of the Ordinance, ie whether the applicant boy has a substantial connection with Hong Kong as at the date of his application. 

Hearing of 21 September 2015

4.  In the call-over hearing of 21 September 2015, counsel for the applicant (not Mr Chow now appearing before me) took his own initiation to make submission on the jurisdictional point. He submitted that the applicant has a substantial connection with Hong Kong, because he has a right of abode and permanent residency in this jurisdiction.

5.  Counsel referred to the judgment of Hartmann J (as he then was) in B v A [2008] 1 HKLRD 43, in which the learnt justice said that the term “substantial connection” should be given its ordinary meaning and a purpose approach should be taken as to its interpretation, but adamantly submitted that B v A (supra) is given in the divorce context, which is different from the scope and purpose of the Ordinance. He continued that the legislative intent is to differentiate between divorce and parentage, as is reflected in the different jurisdictional requirement under Matrimonial Causes Ordinance (“MCO”). In particular, the period of “habitual residence” required under section 3 (b) of MCO is 3 years, whereas under section 6(2) (b) of the Ordinance it is merely 1 year. He further said that only the Hong Kong courts have the jurisdiction to make a declaration to rectify the birth certificate. Without this remedy, the applicant’s welfare may be greatly affected.

6.  Upon hearing submission from counsel, I found that the applicant boy has not been able to establish his substantial connection with Hong Kong at this stage. I dismissed the originating summons (“Order”) and gave, in broad terms, the following ex tempore reasons:

(1) It is not disputed that the applicant has never lived or stayed in Hong Kong since his birth.  He came, or to be exact, was born here simply to obtain a Hong Kong birth certificate;

(2) The case law is clear that in order to establish “connection”, there must be physical presence in Hong Kong and not of transitory nature (See: ZC v CN[2014] 5 HKLRD 43 at §9.4). The applicant has not overcome this hurdle;

(3) While most of the case law on “substantial connection” is given in the context of divorce jurisdiction, the applicant is not able to provide any authority, nor able to persuade this court that a “less stringent” approach to the extent of not requiring any physical presence of an applicant in Hong Kong for any period of time should be adopted in an application under the Ordinance.

Proposed grounds of appeal

7.  The applicant now wishes to apply for leave to appeal the Order. His draft notice of appeal is prepared in Chinese. But since the hearing of 21 September 2015 was conducted and the ex tempore reasons given in English, I have directed that this leave to appeal application shall be heard in English.

8.  In the leave to appeal hearing of 18 December 2015, I acceded to the request of the applicant through Mr Enzo Chow of counsel to file further intended ground of appeal with supplemental submission on the legislative intent upon his further research. The said supplemental submission with further proposed ground of appeal was filed on 31 December 2015.

9.  In essence, the applicant says that I was wrong in refusing jurisdiction in this case. He sets out 4 proposed grounds of appeal in his draft Notice of Appeal as follows:

(1) That I erred in following the judgment in ZC v CN(supra) (“Ground 1”);

(2) That I failed to take into account that the best interest of the applicant (a minor) is of the paramount consideration (“Ground 2”);

(3) That I failed to adopt a purposive and less stringent approach in determining whether the court has jurisdiction to deal with the application made by a minor (“Ground 3”);

(4) That I failed to consider the legislative intent of the Ordinance which is to provide remedies to those who might have been prejudiced by statutes acquired by their births and to facilitate those who are in need to establish paternity (“Ground 4”).

Applicable law on leave to appeal

10.  It is trite to say that section 63A(2) of the District Court Ordinance provides that leave to appeal shall not be granted unless:

(a) the intended appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice that the appeal should be heard.

12.  Mr Chow of counsel confirms in the hearing that the applicant boy intends to rely on both limbs of section 63A(2) of the District Court Ordinance in this application.

13.  The relevant test of whether an 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 therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”: SMSE v KL [2009] 4 HKLRD 125; KNM v HTF, HCMP 288/2011.

14.  For the “some other reason” ground for granting leave to appeal, it is impossible to give an exhaustive list of the circumstances that the Court of Appeal would find that there is some other reasons in the interest of justice that an appeal should be heard.  The Court of Appeal may grant leave if the question is one of general principle, decided for the first time, or a question of importance upon which further argument and a decision of the Court of Appeal would be to the public advantage (See: Hong Kong Civil Procedures 2016, Vol 1 para 59/2A/4 at p1067).

Section 6 of the Ordinance

15.  The applicant’s original summons is premised on Section 6 of the Ordinance. The section provides:-

“ (1) Any person may apply to the court for a declaration that –

(a) a person named in the application is or was in law his parent;

(b) he is the legitimate child of his parents; or

(c) he has become, or has not become, a legitimated person.

(2) A court shall only have jurisdiction to entertain an application under this section if, at the date of the application, the applicant –

(a) is domiciled in Hong Kong;

(b) has been habitually resident in Hong Kong throughout the period of 1 year ending with that date; or

(c) has a substantial connection with Hong Kong.

(3) Where on an application for a declaration under this section the truth of the proposition to be declared is proved to the satisfaction of the court, the court shall make that declaration unless to do so would manifestly be contrary to public policy.” (emphasis added)

Reasonable prospect of success

(i) Grounds 1 and 3

16.  I shall deal with grounds 1 and 3 together, because they both touch on the approach and application (or non-application) of the case law in the divorce jurisdiction on “substantial connection” to an application under the Ordinance.

17.  In his submission, Mr Chow accepts that if the legal principles on “substantial connection” expounded in B v A (supra) and ZC v CN(supra) are applied to this case, the applicant boy is unable to establish a substantial connection with Hong Kong. He also accepts that the main tone of the aforesaid cases would have great force on this court in determining the issue, but seeks to argue that they were decided in the context of the divorce jurisdiction, which is of a different nature of the application now before this court. He adamantly urges that the court should adopt a more relaxed approach in exercising jurisdiction over children and, if that is done, should conclude that the fact that the applicant boy was born in Hong Kong is, by itself, a sufficient fact to establish that he has a substantial connection with Hong Kong.  It seems to be me that Mr Chow relies on, among other cases, the Court of Appeal’s recent judgment in QMY v GSS [2015] 4 HKLRD 641 in support of his argument that the court would usually adopt a more relaxed approach in exercising jurisdiction over children.

18.  To begin with, I have to point out that these points advanced by Mr Chow were already taken by the applicant boy in the original hearing of 21 September 2015. Mr Chow is merely repeating the main theme but with updated authorities.  

19.  On the other hand, I am fully alive to the difference in nature of the application under the Ordinance and of the divorce jurisdiction. I am also alive to the fact that B v A (supra) and ZC v CN(supra) were decided in the context of matrimonial proceedings between a couple.  However, as rightly and fairly accepted by Mr Chow in this hearing, the broad and main principles on “substantial connection” decided by the superior court in these cases carry great force and should not be overlooked by me. So far as it is relevant, I think they include the following:

(1) In deciding whether a party has a substantial connection with Hong Kong, 2 questions should be asked: (a) does the party have a connection with Hong Kong? and (b) is that connection of sufficient substance? (B v A (supra) at §23);

(2) An artificially construed connection is not a substantial connection. A connection must be real in the sense, for example, that it has not been engineered for temporary tactical advantage (B v A (supra) at §25);

(3) There must be physical presence not of a transitory nature (ZC v CN (supra) at §9.4);

(4) The fact that the party has a resident status (such as a Hong Kong identity card) which allows him/her to live in Hong Kong legally is only a factor to be taken into account (ZC v CN (supra) at §9.8).

20.  In my view, if the above main principles are applied to the facts of this case, it is clear to me that the applicant boy has not been able to establish his substantial connection with Hong Kong as at the time of the issuance of his originating summons, at least not at the present stage. 

21.  It is further my view that no matter how relaxed an approach this court should take in an application concerning children, it would not be as low a threshold as not requiring an applicant to ever stay or live in this jurisdiction for any appreciable period of time.

22.  The case of QMY (supra), in my decision, does not help to advance the position of Mr Chow any further.  It should be noted that that case was decided in the context of the Guardianship of Minors Ordinance (“GMO”). Unlike the Ordinance which restricts the right to apply for parentage declaration in Hong Kong to 3 scenarios of having domiciled here or ordinarily resident here or having a substantial connection here, there is no such restriction on invoking the jurisdiction of the court in the GMO.  Despite that the GMO is less stringent than the Ordinance in terms of invoking the jurisdiction of the court, the Court of Appeal is of the view that (at §8.18 of the judgment),

“…the Court should be extremely circumspect in assuming any jurisdiction in relation to a child who is currently physically present in some other jurisdiction simply because of [the child’s] residence status here.”

23.  Due to the above analysis, I cannot see any reasonable prospect of success in relation to Grounds 1 and 3 of the intended appeal.

(ii) Ground 2

24.  Under this ground, Mr Chow argues that since this application deals with a confined issue on parentage, it is a one-off application. The Hong Kong courts are the only available forum avail to the applicant boy. Therefore, I should have looked at the best interest of the child and should have approved his application.

25.  In my view, Mr Chow is again merely repeating, though in a more eloquent way with authorities, the argument of the applicant which was made but rejected after consideration by me in the hearing proper.

26.  He refers me to the English authorities of Hope v Hope (1985) 4 De GM & G 328 and Re P (G.E.) (an infant) [1965] 1 Ch 568 and Re Willoughby (an infant) [1885] 3 Ch D 324 to illustrate how the court may exercise its jurisdiction over a child despite he is not domiciled or habitually resident in England. I have considered these authorities but am not hesitant to say that they come to no assistance to Mr Chow. These cases either do not touch on the issue of substantial connection, or the facts show that the child or at least one of the child’s parents or grandparents was present in the jurisdiction of the English courts.

27.  Mr Chow also cites another English authority of Re S (a child) (declaration of parentage) [2012] EWCA Civ 1160 to show that under section 55A of the Family Law Act (England) for an application for declaration of parentage, an important consideration is on the child’s interest.

28.  In Re S (supra), the parents of a minor, J, was never married. He only met his natural father very briefly when he was very young. His father was later sent to life imprisonment due to murder. While in prison, the father applied for contact order and a declaration of parentage. The issue in Re S (supra) is whether the English court should, in the best interest of the child, allow the father’s application for declaration of parentage. It does not concern the jurisdictional point. I regret to say that this case cannot offer any assistance to Mr Chow.

29.  I do not hold any adverse view that in any application concerning a child, the child’s best interest should be of paramount consideration.  However, one has to bear in mind that the Ordinance imposes a jurisdictional restriction on this court.  An applicant has thus to satisfy the requirement that this court has, to begin with, the jurisdiction to deal with his application pursuant to section 6 of the Ordinance. My problem with Mr Chow’s argument is that if the applicant is unable to overcome the jurisdictional hurdle, it would be putting the cart before the horse for this court to consider the child’s best interest.  Therefore, his argument cannot be accepted.

(iii) Ground 4

30.  Despite his research, I was informed by Mr Chow that there is no record in the Legislative Council’s discussion on section 6 of the Ordinance. However, he refers me to the long title of the Ordinance when it was first enacted in 1993:

“An Ordinance to reduce the legal disabilities associated with illegitimacy, to consolidate and amend certain aspects of the law relating to parentage, legitimacy and legitimation, to provide for the determination of parentage in cases where birth or pregnancy results from medical treatment services, to provide for the use of scientific tests in determining parentage in court proceedings, and for connected purposes.”

31.  It is Mr Chow’s submission that the intent of the legislation as stated in the Long Title is clear to provide remedies to those who might have been prejudiced by statutes acquired by their births and to facilitate those who are in need to establish parentage. It was enacted to serve a remedial and facilitative function.

32.  It is pertinent for me to point out that the research result now presented by Mr Chow was not made available for my consideration in the hearing of 21 September 2015.  But even if such information was submitted there and then, it does not occur to me that the legislative intent of the section 6 of the Ordinance would cover a person with merely a birth certificate issued by Hong Kong government authority. If this was ever the intention of the legislature, it begs an explanation why this had not been expressly provided for in section 6(2) of the Ordinance.  

“Some other reason” ground

33.  On this ground, Mr Chow submits that since there has never been any case decided on “substantial connection” in the context of this Ordinance, this gives rise to an important question of whether the standard and/or criteria for satisfying the requirement of “substantial” in the Ordinance is the same as that in the divorce cases.

34.  Applications under the Ordinance with similar facts (ie child born in but never resided in Hong Kong) do come before the Family Court from time to time. As far as I am aware of, there is at least one other case with similar facts pending the determination of the Family Court. While the case law on substantial connection from superior courts in the context of matrimonial proceedings between husband and wife has been building up recently (eg ZC v CN (supra); LCYP v JEK [2015] 4 HKLRD 798), there is no case law on this issue in the context of children’s matter, in particularly the Ordinance. I thus agree with Mr Chow that some general guidance from the Court of Appeal on this issue would be beneficial to the judges in the Family Court way forward.   

Conclusion

35.  Due to the matters set out above, I conclude that there is no reasonable prospect of success in all proposed grounds of appeal of the applicant boy, but agree that appeal should be allowed on “some other reasons” ground.

36.  In the circumstances, I shall make the following order:

(1) Leave is granted to the applicant to appeal the Order of 21 September 2015 on whether in determining if an applicant has a substantial connection with Hong Kong for the purpose of the Ordinance, the criteria and/or standard for satisfying the requirement of “substantial” is the same as that in the divorce cases; and

(2) Costs of the application be in the cause of the intended appeal.