LIU KAIBANG, a minor, by his next friend and mother LIU LIJUAN v. LAI JOSEPH TAK

HCAP 44/2023

[2025] HKCFI 1251

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 44 OF 2023

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D E C I S I O N

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1.  Before me today is the plaintiff’s summons dated 19 August 2024. I make an order in terms of that summons with the changes which I have gone through with counsel before the break.[1] These are my reasons.

2.  There is a dispute over the basis of the jurisdiction for making the above orders. It is, however, not necessary for me to go into counsel’s arguments in detail and come to any definitive view in the present case.

3.  Insofar as is necessary, I rely on the following bases as alternatives:

(1)  sections 13 to 15 of the Parent and Child Ordinance, Cap 429;

(2)  Order 29, rule 3 of the Rules of the High Court; and

(3)  the inherent jurisdiction of the court.

4.  The general principles governing what DNA tests should be directed should be the same whichever jurisdiction the court is relying on. It involves the court exercising its discretion. I would particularly highlight the following principles set out in Re P (Parentage: Blood Tests) [2010] 4 HKLRD 497 at para 25:

(1)  The interests of justice would be best served by the ascertainment of truth;

(2)  The court should be furnished with the best available scientific evidence, particularly if that evidence proves or disproves paternity with certainty or near certainty;

(3)  A child’s welfare generally demands that he or she knows the truth about his or her parentage; and

(4)  The welfare of the child is a relevant but not paramount factor in deciding whether or not to make a direction for the use of scientific tests. The interests of other people may also be involved and have to be considered.

5.  The plaintiff’s primary position is that only “the uncle test”, ie the test in sub-para (a), should be conducted. If the test result is inconsistent with the PRC paternity report, then “the paternity test”, namely the test in sub-para (b), should be taken, but that would involve the exhumation of the remains of the deceased. If the paternity test is done, then “the sibling test” should be done at the same time as the control test. That would be the test in sub-para (c).

6.  As confirmed by counsel at the hearing, the plaintiff is now agreeable to all three tests being done at the same time.

7.  The defendant’s position is this. He will not give his consent for his bodily sample to be taken for the uncle test and the sibling test. His position is that only the paternity test should be done. His reasons are threefold.

8.  First, he claims that the uncle test would not add any value to the issue of parentage of the child as the plaintiff has adduced no positive evidence on how useful or definitive the result from the uncle test would be.

9.  Second, even if the uncle test turns out a positive result, there are still two theoretical possibilities, namely: first, the deceased was the father of the child; second, Andrew, another brother of the deceased, was the father of the child. In other words, the uncle test in itself would not be conclusive on who the father of the child was.

10.  Third, to order or to direct DNA tests involving the bodily sample of the defendant would interfere with his right of privacy in a disproportionate manner.

11.  As regards the first point, the evidence from the plaintiff shows that the uncle test would be of some use, although they may not be as definitive as the paternity test. On this evidence, I would conclude that the uncle test would be useful as it would provide some useful evidence on the issue of the relationship.

12.  As regards the second point, I would observe that up to this stage, there is nothing in the pleadings, the affirmations or the submissions of any party which suggests that Andrew would be the father of the child. In any event, that possibility, if it arises, will be dealt with at the trial of the preliminary issue.

13.  Bearing in mind the general principle that the court should order appropriate tests in order to achieve the objective that the truth be ascertained, and also that the court is to gather the best available scientific evidence to determine the issue, the uncle test should be done, but the court should at the same time consider alternative solutions.

14.  In this case, the alternative would be to conduct the paternity test. In fact, this is a test which both parties now agree on. However, it involves the exhumation of the remains of the deceased, and for that reason, it should be considered as a measure of last resort.

15.  The significant feature in this case is that the deceased, in fact, passed away in 2018. There has been a long lapse of time after his passing. According to the defendant’s affirmation evidence, to obtain sufficient and proper DNA samples from the remains would have a success rate of about 80 to 100%.

16.  If, indeed, the test is successfully undertaken, the result could well be the best evidence which would bring us closest to the truth of the parentage issue. That is, therefore, a forceful reason for ordering the test, even though exhumation is involved.

17.  If that is done, I accept that the sibling test should be conducted as a control. This is because the sample that can now be collected from the remains may not provide a reliable sample for the purpose of the test. It would therefore be useful to have the sibling test as a control mechanism.

18.  The defendant has indicated that he will not give his consent to the uncle test or the sibling test as it involves taking bodily samples from him, and it would intrude his rights of privacy.

19.  In the present case, all these tests are useful tools for determining the parentage of the child. I do not consider that the ordering of these tests would be a disproportionate measure. In any event, the uncle can refuse to give consent, and it would be a matter for the trial judge of the preliminary issue to draw any proper inference.

20.  For all these reasons, I make those orders which are set out in the summons as amended. I would also grant leave for the defendant to file the latest affirmation. It contains evidence on the collection of bones which I have considered on a de bene esse basis. I consider that the evidence is relevant. Hence, I grant leave for the admission of that evidence.

(Submissions re costs)

21.  I would order that the costs of the plaintiff’s summons, including the costs of today’s hearing, be in the cause of the preliminary issue.

22.  This application is taken out for the purpose of gathering proper evidence for the trial of the preliminary issue. The plaintiff’s position on which DNA test should be conducted has shifted throughout the course of this application. At the same time, some of the objections raised by the defendant are not upheld by this court. Therefore, I think the fairer order would be for the costs of this application be aligned with the costs of the trial of the preliminary issue.

Appendix

IT IS ORDERED that: -

1.  Leave be granted to the Plaintiff to amend the title of the action in the Writ of Summons to reflect that the Defendant is being sued in both his capacity as the executor of the Estate of the Deceased and in his personal capacity.

2.  There be a hearing for the determination of the following preliminary issue (the “Locus Issue”):

“Whether the Plaintiff is a natural biological son of the Deceased.”

3.  The following directions be given for the conduct of the hearing of the Locus Issue: -

(1)  Leave to the parties to jointly appoint a laboratory in Hong Kong with the expertise in DNA testing (“Lab”), to conduct the following three tests (“Tests”):

(a)  DNA comparison tests against the bodily samples of the Plaintiff and the Defendant, to determine whether the Defendant is the biological paternal uncle of the Plaintiff;

(b)  DNA comparison tests against the bodily samples of the Plaintiff and the samples exhumed from the Deceased’s remains (the “Remains”), to determine whether the Plaintiff is the biological son of the Deceased; and

(c)  DNA comparison tests against the bodily samples of the Defendant and the samples exhumed from the Remains, to determine whether the Defendant is the biological brother of the Deceased, which will serve as a control test for the tests in paragraph 3(1)(b) above.

(2)  If the parties cannot agree on the identity of the Lab within 7 days from the date hereof, each party do lodge and exchange written submissions within 5 days thereafter limited to 3 pages each (font size 14) stating (a) the name of that party’s proposed Lab; (b) the proposed Lab’s curriculum vitae; (c) the proposed Lab’s costs for the Tests; (d) estimated time by which the Tests can be completed by the proposed Lab, and (e) brief reason why no agreement can be reached. The Court will determine the choice of the Lab on papers (unless the Court directs a hearing).

(3)  Each of the Plaintiff and the Defendant do provide their bodily samples as required for the purpose of the Tests to the Lab, and leave be given to the Lab to obtain DNA samples from the Remains for the purpose of the Tests.

(4)  No bodily sample shall be taken from the Defendant except with his consent. The Court may draw such inferences (if any) from any refusal to consent as appear proper in the circumstances.

(5)  The Defendant shall, within 7 days from the date hereof, apply for a permit from the Food and Environmental Hygiene Department to exhume the Remains (“Permit”). Within 7 days after the Permit is granted, the parties shall arrange with the Lab the exhumation of the Remains at an agreed date and time for the purpose of the Tests.

(6)  Both parties and/or their legal representative shall be present when the Remains are exhumed and when the DNA specimens from the Remains, the Plaintiff and the Defendant are being obtained by the Lab respectively.

(7)  The evidence of the Lab shall be in the form of a signed written report and admitted into evidence at the hearing of the Locus Issue without the need to call the maker of the report to testify unless the Court directs otherwise.

(8)  Each of the Plaintiff and the Defendant do have leave to file and serve one affirmation confined to the Locus Issue within 35 days from the date hereof.

4.  The hearing of the Locus Issue be adjourned to a directions hearing which shall take place after the completion of the filing and serving of both documents stated in paragraphs 3(7) and 3(8), with 1 hour reserved (the “Directions Hearing”).

5.  Parties do lodge the jointly proposed directions at least 3 days before the Directions Hearing.

6.  Costs of the Summons and costs of today’s hearing be in the cause of the Locus Issue.