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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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IN THE MATTER of OMH, an infant
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and |
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IN THE MATTER of Section 6(1)(a) of the Parent and Child Ordinance, Cap. 429 |
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BETWEEN
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OMH (a minor) by AS, his mother and next friend |
Applicant |
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and
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MT |
Respondent |
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The Department of Justice |
Intervener |
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| Coram: Deputy District Judge G. Own in Court |
| Date of Hearing : 14 February 2014 |
| Date of Decision : 18 March 2014 |
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REASONS FOR DECISION
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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:-
“(1) A man shall be presumed to be the father of a child –
(a) if he was married to the mother of the child at any time and if there arises by virtue of that marriage a presumption of law that the child is the legitimate child of that man; or
(b) where no man is presumed to be the father under paragraph (a), and subject to section 10 (3), if he has been registered as the father of the child by an entry made after the commencement of this section in any register of births kept by the Registrar of Births and Deaths under any Ordinance.
(2) Any presumption under subsection (1) may be rebutted by proof on a balance of probabilities.
(3) The presumption of law as to a child’s legitimacy arising by virtue of the marriage of the child’s mother at a time related to the conception or birth of the child may be rebutted by proof on a balance of probabilities.
(4) Subsection (1) (a), and the presumption referred to in subsection (3), shall apply in the case of a void or voidable marriage as they apply in the case of a valid marriage.”
7. Section 6 of the Ordinance 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.
(4) Where a declaration is made on an application under subsection (1)(a) or (b), the Registrar of the court shall notify the Registrar of Births and Deaths, in such manner and within such period as may be prescribed, of the making of that declaration.
(5) Any declaration made under this section shall be binding on the Crown and all other persons.
(6) The court, on the dismissal of an application for a declaration under this section, shall not have power to make any declaration for which the application has not been made.
(7) No declaration which may be applied for under this section may be made otherwise than under this section by any court.
(8) No declaration may be made by any court, whether under this section or otherwise, that any person is or was illegitimate.”
8. Section 13 of the Ordinance provides:-
“(1) In any civil proceedings in which the parentage of any person falls to be determined, the court may, either of its own motion or on an application by any party to the proceedings, give a direction –
(a) for the use of scientific tests showing whether a party to the proceedings is or is not the father or mother of that person; and
(b) for the taking of bodily samples from that person or any party to the proceedings, and the court may at any time revoke or vary a direction previously given under this subsection.
(2) The person responsible for carrying out scientific tests in pursuance of a direction under subsection (1) shall make to the court a report in which he shall state –
(a) the results of the tests; and
(b) the value of the results in determining whether any party to whom the report relates is or is not the father or mother of the person whose parentage is to be determined, and the report shall be received by the court as evidence in the proceedings of the matters stated in it.
(3) Where the proceedings in which the parentage of any person falls to be determined are proceedings on an application under Part IV, any reference in this section to any party to the proceedings shall include a reference to any person named in the application.
(4) Where a report has been made to a court under subsection (2), any party to the proceedings may, with the leave of the court, or shall, if the court so directs, obtain from the person who made the report a written statement explaining or amplifying any statement made in the report, and that statement shall be deemed for the purposes of this section to form part of the report made to the court.”
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:-
“4. I met MT (“the Respondent”) in Hong Kong in a bar in Wanchai in October 2005 and then we became friends and courted each other. I then began having sexual intercourse with him and we met once a week and during public holidays. I then lived with him for one year from 2007 to 2008. We lived at 4/F, xx Station Lane, Hung Hom, Kowloon, Hong Kong at that time.
During this period, I continued the relationship with him only and had no sexual intercourse with anyone else. In September 2008, I found I was pregnant with the said child. I had informed the Respondent accordingly.
5. In October 2008, the Respondent and I separated as he was having an affair with another woman and at the same time, I did not think we could continue the relationship, hence I left him and went to live in a boarding house in Jordan, Kowloon, Hong Kong for a while. During that period, I found a job and worked in a restaurant in Tsim Sha Tsui as a waitress for about two weeks illegally. I was then arrested by the police for overstaying and illegal working in Hong Kong.
6. On 13th July 2009, I gave birth to the said child in Queen Elizabeth Hospital in Hong Kong. Since then I have not marital relationship with the Respondent. So the Birth Certificate of the said child did not state the name of the father there as I could not find the Respondent for endorsement of the Birth Certificate.
There is now produced and shown to me marked exhibit “AS-1” a copy of the said child’s birth certificate.
7. As I cannot find the Respondent, so I cannot request the Respondent and said child to undergo the paternity test in Hong Kong”
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:-
(a) Whether any one of the statutory presumptions in section 5 (1)(a) or (b) applies ?
(b) If not, whether the applicant (through her mother) can prove the truth of the proposition to the court’s satisfaction that the Respondent is the natural father?
(c) Having proved, whether it is contrary to public policy for the court to make the declaration on parentage?
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:-
“I met MT (“the Respondent”) in Hong Kong in a bar in Wanchai in October 2005 and then we became friends and courted each other. I then began having sexual intercourse with him and we met once a week and during public holidays. I then lived with him for one year from 2007 to 2008. ……… During this period, I continued the relationship with him only and had no sexual intercourse with anyone else. In September 2008, I found I was pregnant with the said child. I had informed the Respondent accordingly. (my emphasis)”
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 :-
(a) The Originating Summons dated 8 July 2011 be dismissed;
(b) There be no Order as to costs including all costs reserved;
(c) Applicant’s own costs be taxed in accordance with Legal Aid Regulations;
(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.
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(George Own)
Deputy District Judge
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Mr. Richard Clement of Messrs. Massie & Clement, solicitors for the Applicant
Respondent being absent
Department of Justice (Intervener), being absent
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