HO WAI YIN AND OTHERS v. CHENG SUET YEE

HCAP 18/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 18 OF 2003

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J U D G M E N T

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1.  This is an application by the Plaintiffs under O. 29 r. 3 of the Rules of the High Court, Cap. 4 for authorisation to obtain DNA samples from the remains and ashes of the deceased involved in this probate action as well as that of his deceased wife. 

2.  The crucial issue in the present probate action is whether the Defendant is the natural daughter of the deceased and his late wife.

3.  The purpose of the application to obtain the DNA samples of the deceased and his late wife is to enable the Plaintiffs to carry out a DNA comparison test between those DNA samples and the DNA samples that have already been obtained from the Defendant. 

4.  The application is strenuously opposed by the Defendant.  A number of objections, some technical and some on the substantive merits, have been raised by Mr Brian Wong, counsel for the Defendant at today’s hearing.  I will deal with these objections in turn. 

5.  Counsel submits that the present application does not fall within the ambit of O. 29 r. 3 in that a dead human body or the remains of a late person are not recognized as a matter of law as “property”.  Counsel relies on a line of English and Commonwealth authorities to support his proposition that there is no property in the body of a deceased person. 

6.  There are indeed quite a number of cases on this topic, which is assuming greater importance than in the days of old given the advances in science and the use of human tissues and human parts in scientific researches and medical treatments.  A very useful discussion of this aspect of the law can be found in Palmer & McKendrick, Interests in Goods (2^nd ed.), Chap. 2, where the case law has been subjected to a critical analysis. 

7.  The crucial question raised by counsel’s argument relates to whether the word “property” as used in O. 29 r. 3 (and for that matter, O. 29 rr. 2 and 4 as well) means a tangible thing to which a proprietary interest or right may be claimed as a matter of law or whether it simply means a tangible thing. 

8.  In this regard, my attention has been drawn to the definition of “property” in section 42(4) of the High Court Ordinance, Cap. 4.  In sub-section (2) of the same section, this court is authorised to make orders of the type provided in O. 29 r. 3 of the Rules.  In sub-section (4), “property” is defined to include “any land, chattel or other corporeal property of any description”. 

9.  Mr Wong argues that the definition of “property” means that the word is used only in relation to those tangible things which carry with them a proprietary right or interest and it does not include a human body in which no one can claim any property. 

10.  On the other hand, Mr Chong appearing for the Plaintiffs argues that the definition of “property” in section 42(4) is not exhaustive, particularly in the light of the use of the word “includes” in the definition.  My attention has also been drawn to the fact that in the former Order 50 of the English Rules of the Supreme Court, the phrase “property or thing” was used in the rule instead of the single word “property” in our present rule, but counsel has not been able to supply this Court with an explanation for the dropping of the word “thing” in our modern rule.

11.  For that reason, some of the older cases which referred to the court’s power to make orders in respect of any “property or thing” must be read with some caution.  At the end of the day, it is a matter of statutory construction and ascertaining the object and purpose of the provisions in question. 

12.  In this regard, I must not forget section 19 of the Interpretation and General Clauses Ordinance, Cap. 1, which requires the court to adopt a “fair, large and liberal” interpretation and construction of a piece of legislation (which includes subsidiary legislation), so as to best attain the object behind the legislation or subsidiary legislation in question “according to its true intent, meaning and spirit”.

13.  To some extent, I agree with Mr Wong that the intention behind the provisions in question is to enable the court to authorize specific things to be done in relation to a subject matter which does not belong to the parties to the action.  Indeed, section 42(2) specifically says that the inspection, photocopying, preservation, custody, detention, taking of samples and carrying out of experiments are to be done to a “property which is not the property of, or in the possession of, any party to the proceedings.” 

14.  In other words, the provisions provide for the interference with a third party’s proprietary right to or possession, custody or control of the subject matter in suitable circumstances.  The obvious intention is that in those circumstances, the interference is justified by the need to administer justice in the cause or matter before the court.  Viewed in that light, one would have thought that if the subject matter does not belong to a third party or is one in which no third party has any property (but is nonetheless in the possession or custody of or otherwise kept or controlled by a third party which thus gives rise to the need for a court order in the first place), the court should have the power to order the taking of the actions specified in the provisions in appropriate cases.  In other words, the latter case is really an a fortiori case. 

15.  In my view, the construction advanced by Mr Chong of the word “property” would better attain the object behind the provisions in question than the more restrictive meaning favoured by Mr Wong.

16.  As I said, section 42(2)(a) actually says that the court may make an order providing for the inspection, photocopying, preservation, custody and detention of a property “which is not the property of, or in the possession of, any party to the proceedings”.  But in my view, the quoted phrase does not require that the “property” in question be the property of a third party (or that it be legally capable of being so).  Mr Wong’s contention would actually restrict the “property” to a property belonging to (or legally capable of belonging to) a third party.

17.  Bearing everything that I have set out above in mind, I do not find any textual objection to the adoption of the wider construction advanced by Mr Chong. 

18.  Moreover from the point of view of a fair, large and liberal construction of the provisions in question, the wider meaning of the word “property” would seem to me to better ensure the attainment of the object behind the provisions according to their true intent, meaning and spirit.  I can see no logical, rational, sensible or practical reason for drawing a jurisdictional distinction between a tangible thing that may legally belong to a third party (and therefore a court order may be made in deserving circumstances) and one that no one can claim any ownership in (and therefore no court order may be made irrespective of the circumstances).  None has been suggested to me either.

19.  For all these reasons, I am prepared to hold that the word “property” in the relevant provisions is applicable to the remains of a late person, including the ashes of the deceased and his late wife in the present case.  I therefore reject counsel’s objection on this ground. 

20.  Mr Wong then says quite correctly that the ashes are not the subject matter of the present action.  More importantly, he says that no question arises in the present action as to the ashes.  He therefore says that the wording in O. 29 r. 3 has not been satisfied (“any property which is the subject matter of the cause or matter or as to which any question may arise therein”).

21.  With the last proposition of counsel, I do not agree.  In my view, again placing a fair, large and liberal construction on the provisions in question, the wording of rule 3(1) of Order 29 is wide enough to cover the type of situations faced by the Court in the present case.  In other words, in my view a question does arise in relation to the ashes in that the ashes may provide valuable evidence that is pertinent to an important if not crucial issue in dispute between the parties in the present case, i.e. the parentage of the Defendant.

22.  So again I reject counsel’s objection.  For the sake of completeness, I should add that I do not accept that this application is a mere fishing exercise with the stigma or connotation that the word “fishing” carries.  Rule 3(1) expressly says that where the court considers it “necessary or expedient for the purpose of obtaining full information or evidence in any cause or matter”, it may make an order specified in that rule.

23.  In my view, it is all a matter of extent and degree.  In my judgment, this is not a mere fishing exercise; the matter potentially goes to a highly material piece of evidence relating to a, if not the, crucial issue in this probate action.

24.  Mr Wong says that even if the wording in rule 3 is satisfied, the court still has a discretion to refuse an order.  I agree that the court does have a discretion under rule 3.  Mr Wong then says that the making of the order would be against social mores and decorum and that tampering with the remains of the deceased and his late wife would constitute disrespect to the dead particularly in a Chinese society like Hong Kong.  This is not something that can be financially compensated. 

25.  I understand the sentiment and I would not say that this is not a relevant factor to be taken into account.  But this is only one of the many factors that I should take into account, and I wish to say that I have carefully taken this highly sensitive factor into account.

26.  Next counsel says that the conduct of the 1^st Plaintiff in the past in relation to his (alleged) agreement to the Defendant’s obtaining letters of administration from the Registry which this probate action seeks to revoke taints the 1^st Plaintiff’s application.  But I believe counsel agreed with me during the course of his very able submission that this cannot take the Defendant’s objection very far because the application is a joint application of all the Plaintiffs who with the exception of the 1^st Plaintiff are not affected by this point at all.

27.  Here, I must not be taken to have expressed any view on the merit of the Defendant’s allegation against the 1^st Plaintiff.  Even if this was established, the weight to be attached to it would be limited.  In deciding how my discretion should be exercised, I am in fact quite prepared to adopt a cautious approach and assume the allegation as true in favour of the Defendant.

28.  Then Mr Wong highlights to me a number of possible limitations of the proposed DNA test.  Moreover, he argues on whether it is really necessary to conduct the proposed DNA test given that a DNA test involving the samples of a supposed sister of the deceased has been conducted. 

29.  To cut a long story short, the parties are in disagreement as to firstly, the real status of the supposed sister, and secondly, how the result of the DNA test done previously should be interpreted.  I think Mr Wong eventually agreed during his submission that on the basis of the existing disputes, the Plaintiffs cannot really be said to be pursuing a wholly unnecessary DNA test.

30.  I note the wording in O. 29 r. 3 is whether it is necessary or expedient to obtain the sample or to conduct the test in question.  Difficulties relating to the proper extraction of DNA samples from the ashes of the deceased and his late wife have been highlighted to the Court. 

31.  I have borne the supposed difficulties in mind.  I am not persuaded on the material before me that the extraction of any useful DNA elements or samples would definitely be impossible.  I cannot exclude the possibility of a failure either.  That is a factor to be borne in mind, but in my judgment, it is only one of the factors to be taken into account. 

32.  The Court does not need a guarantee that samples will be successfully extracted or the proposed DNA test successfully carried out before it can make the order or should exercise its discretion in favour of ordering the obtaining of the samples and carrying out of the test.  To be fair to Mr Wong, he has not put his case as high as that. 

33.  As regards the other conflicting views of the experts, I have borne them in mind, but in my view they are only of marginal significance in the weighing exercise.  They are really matters for ventilation at trial, but this brings me to whether I am widening the scope of dispute between the parties if I were to accede to the application.

34.  In other words, far from helping the Plaintiffs or the parties to obtain a conclusive answer to the disputed parentage of the Defendant, is the Court being asked to widen unnecessarily the scope of dispute between the parties, i.e. arguments over the result of the proposed DNA test?

35.  Having considered the expert evidence and the disputes between the experts and the parties, I am not persuaded that this is going to be the case.  But I have carefully borne this aspect of the case and the possibility in mind in my weighing exercise. 

36.  As I said, I have borne everything in mind, particularly those that have been specifically raised by Mr Wong in his oral as well as written submissions.  Having performed a weighing exercise, I come down in favour of the application.

37.  In order words, in the exercise of my discretion, I order that the Plaintiffs be authorised to obtain sufficient samples from the bone ashes and remains of Cheng Fong and that of Yuen Wong for the purposes of obtaining sufficient DNA samples from those samples to carry out a DNA comparison test with the DNA samples of the Defendant that have already been obtained by the Plaintiffs and to carry out the DNA comparison test.

38.  For the avoidance of doubt, I give the Plaintiffs liberty to serve a copy of the sealed Order on the relevant Government department with which the bone ashes and remains are for the time being kept. 

[Submissions on costs]

39.  Having heard counsel on the question of costs and having borne in mind what had happened before the master and the normal rule that costs should follow the event – Mr Wong having accepted that so far as the event is concerned his opposition to the substantive application today has failed, I think the fairest order is to give the costs of the application to the Plaintiffs in any event, to be taxed if not agreed, subject to one exception, namely the costs of the hearing before the master, which should be borne by the Plaintiffs in any event with a certificate for counsel for that hearing before the master.  And I so order.