C H, suing by C K Y N, his mother and next friend v. W K Y P

FCMP 121 / 2017

[2020] HKFC 19

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 121 OF 2017

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Judgment
(Leave to Appeal – DNA test)

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1.  This is the Respondent’s application for leave to appeal against an order of this Court made under section 13 of the Parent and Child Ordinance (Cap.429) (PCO) dated 27 March 2019.

Backgound

2.  By an Originating Summons dated 22 June 2019, CH (the Minor) by his mother and next friend (the Mother) asked for an order inter alia, that:

a.     A direction that scientific tests be used to show whether the Respondent is or is not the father of the Minor under section 13 of the PCO;

b.     A declaration that the Respondent is the natural father and in law the parent of the Minor under section 6 of the PCO;

c.     Maintenance pursuant to section 10(2) of the Guardianship of Minors Ordinance, Cap.13 (GMO).

3.  The Minor was born in Hong Kong on 1 April 2016. The Mother was a 41 year old housewife. She was born in the Mainland but came to Hong Kong with a one way permit in 2006. At that time, she was married to another man in Hong Kong. She was divorced in early 2007. The Respondent was a 61 year old merchant. He was at all material times married and has three adult children with his wife.

4.  In about September 2007, the Mother was working as a masseuse at a club in Wanchai. The Respondent was a regular customer at the club house. There was no dispute that the Mother and the Respondent then became intimate. Although there was a dispute as to whether the arrangement amounted to “cohabitation”, the Respondent admitted that from about November 2007, he rented a property (the Rented Apartment) near his office as the Mother’s residence. He would visit her at the Rented Apartment 4 to 5 days per week and he paid her a monthly maintenance of HK$20,000 per month. In about September 2009, an apartment in Wanchai was purchased in the Mother’s name for a consideration of HK$2,300,000 (the Mother’s home). There was no dispute that the purchase was funded by the Respondent. There is a dispute as to whether this was a gift from the Respondent to the Mother. From early 2010 onwards, the Respondent increased the Mother’s monthly maintenance to HK$30,000 per month. It was the Mother’s case that in addition to the monthly maintenance, the Respondent spent lavishly on her clothing, accessories and travelling. This was denied by the Respondent.

5.  In about October 2015, the Mother became pregnant. The Minor was born on 1 April 2016 at the St. Paul’s Hospital. Although the Mother was able to register the Minor as the Respondent’s child at the Maternal and Child Health Centre with a copy of the respondent’s identity card, the Respondent refused to sign the Minor’s birth certificate registration application.

6.  In about August 2016, the Mother’s solicitors wrote to the Respondent, asking him to confirm that he was the father of the Minor and that he agreed to pay for his maintenance. However, in his solicitors’ letter, the Respondent denied paternity and put the other to strict proof thereof.

7.  In about early October 2016, the Respondent visited the Mother’s home, where he drank a concoction of cream soda and cream. The Mother sent the straw allegedly used by the Respondent to GenePro Diagnostic Technology (HK) Limited for a DNA test. The test confirmed that the donor of the saliva on the straw was the natural father of the Minor. A copy of the test report was sent by the Mother to the Respondent via Whatsapp. The Respondent admitted that he was at the Mother’s residence that day and had taken the drink with the straw. However, he challenged the accuracy of the test on the ground that the sample had been compromised as he had allegedly fed the drink to the Minor with the straw.

8.  On 22 June 2017, the present proceedings were commenced by the Minor by his Mother and next friend. Since the issue of the Originating Summons, the Respondent has indicated that he will exercise his right to refuse to give consent to any scientific tests ordered by the Court.

Issues

9.  At the first directions hearing on 12 October 2017, the Respondent indicated his intention to challenge the constitutionality of the use of scientific tests. Prior to the commencement of the argument, the Respondent confirmed that there was no constitutional challenge to the use of such tests.

10.  The Mother’s case was very straight forward. The question of paternity is at the heart of this case. She says that in those circumstances, it is common practice in the light of the interests of justice to order scientific tests to be used in the absence of strong reasons to the contrary.

11.  The Respondent says that the Minor was probably conceived in about June 2015, when he was in a terrible health condition. It was hence “extremely difficult, if not impossible” for him to have sexual intercourse with the Mother. He further argued that since he was only with the Mother for 10 to 15 hours a week, he could not be certain that she was not also having a relationship with other men. He also suggested that since the outset, his relationship with the Mother was based on sex and money. He says that in those circumstances, the Mother’s request for such tests should not be granted without first hearing evidence. Essentially, he says that the Mother should be first cross-examined on her allegations and such tests should only be ordered if she can prove that he was the father of the Minor. The Respondent says that such a course is consistent with the competing rights engaged by the application, including the Respondent’s right to privacy.

12.  The issue is whether the Court should order scientific tests to determine paternity in all the circumstances.

Applicable Legal Principles

13.  Section 63(2) of the District Court Ordinance, Cap 336 provides as follows:-

“Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that-

(a) The appeal has a reasonable prospect of success; or

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

14.  A Court should take great care before setting aside a decision of a judge which had involved the exercise of judicial discretion. The House of Lords in G v G ‘1985] 1 WLR 647 at 656, citing Charles Osenton & Co. Johnson [1942] AC 130:

“The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to relevant considerations such as those urged before us by the appellant, then the reversal of the order on appeal may be justified”.

15.    The high threshold to appeal an exercise of discretion was also recognized by the Court of Appeal in RK v YS (unreported) HCMP 1969/2012, 1 November 2012:

“It is well established in an application for custody involving the exercise of judicial discretion, it is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is in fact plainly wrong, that an appeal court is entitled to interfere.”

Grounds of Appeal

16.  The Respondent’s draft Grounds of Appeal are as follows:-

(1)     The Judge erred in law and principle in conflating the constitutionality and validity of section 13 of the PCO with the necessity (when considering whether to exercise her discretion to make an order under the said statutory provision) of conducting a balancing exercise taking into account the competing interests and fundamental rights of the Child and the Respondent;

(2)     In stating that the Respondent “had it within his powers to set all doubts at rest by submitting to a test” and “would have to advance very clear and cogent reasons for his refusal to be tested, the Judge erred in law by:

(i)     Reversing the burden of proof, shifting the onus of showing an honest, bona fide and reasonable belief in relation to the Child’s parentage from the Applicant to the Respondent; and/or

(ii)     Failing to conduct a proper weighing exercise of the competing interests and fundamental rights of the Child and Respondent.

(3)     When considering if a prima facie factual case had been made out by the Applicant for a direction to be made against the Respondent under section 13 of the PCO, the Judge erred by:

(i)     Failing to give the Respondent an opportunity to cross-examine and test the Mother’s evidence, contrary to the requirements of procedural fairness and/or the weighing of the competing interest and fundamental rights of the Child and the Respondent; and/or

(ii)     Materially misapprehending the contents of the Respondent’s affirmation in opposition to reach the conclusion that the Respondent had sexual intercourse with the Mother around the time the Child was conceived.

17.  I shall now deal with each of those grounds in turn.

Ground 1

18.  There was no misunderstanding of the issues in this case on the part of the Court. As was stated in paragraph 11 of the Judgment, the issue was whether the discretion under section 13 of the PCO should be exercised in all the circumstances of this case. It was not the Court that has “conflated the constitutionality and validity of section 13 of the PCO with the necessity of conducting a balancing exercise…”. It is the Respondent who is attempting to muddle the appropriate tests relevant to such applications.

19.  The Respondent again relied on the cases of Spence v Spencer [2016] Fam 391, Lewisham LBC v D [2011] 1 FLR 895; L v P [2013] 1 FLR 578 and Re M [2014] 1 FLR 695 as authorities for the proposition that the Court has to balance the competing rights of the child and the putative parent when considering whether to make an order involving the provision of personal DNA information to the other for the purpose of verifying parentage.

20.  Each of those authorities have already been carefully considered by the Court in its Judgment.

21.  As was pointed out in the Judgment, in the case of Lewisham LBC (supra), the local authority became concerned that the woman who claimed to be the other of three of four children was not in fact their mother during the course of care proceedings. The authority therefore obtained an order permitting DNA testing of the children and the woman. The Woman however, ultimately refused to provide a sample. It emerged that the police had already taken a DNA sample from the woman, who was being prosecuted for assault and willful ill treatment, in the course of their criminal investigation into the woman’s treatment of the children. At the court’s suggestion the children’s guardian explored the possibility of seeking an order for disclosure of the police DNA results in the care proceedings, but it quickly became clear that s.64 of the Police and Criminal Evidence Act 1984 prohibited disclosure of police DNA within care proceedings. The police then applied for disclosure to them of the children’s DNA samples and results held by the local authority. The police were particularly concerned with the question whether the woman was a child trafficker.

22.  This court repeats that Lewisham LBC (supra) involved an application to use test samples originally taken for a completely different purpose. Not only was disclosure sought for a different purpose, it was sought for the purposes of a criminal investigation.

23.  The facts in Spencer v Spencer (supra) were very unusual. They are set out in the Judgment and I will not repeat them here. The issues in that case were very different from the present case. In that case, the DNA sample had already been taken prior to the application. It was taken for a specific purpose (the deceased’s health issues) whereas the applicant wanted to use the sample for a purpose other than that for which it was taken (to establish paternity). One of the issues was therefore, whether the test sample could be used for a different purpose without consent and whether that situation fell within the wording of the legislation. In that regard, the law was clear. You cannot use test samples taken for one purpose for a different purpose without consent.

24.  Another issue was whether the use of the previously taken test samples was within the meaning of the legislation, and if not, whether the Court had inherent jurisdiction to give such a direction and whether such direction ought t be given. The Court concluded that it was not so covered.

25.  In both of the above cases, the Court pointed out that the situations did not come within the wording of the Family Law Reform Act (which is the same as our PCO). The Court then went on to consider whether it should exercise its inherent jurisdiction. It was only when the Court was considering whether it had an inherent jurisdiction and whether such inherent jurisdiction should be exercised that the competing interest and human rights arguments were considered. The present case does not involve previously taken test samples, nor does it involve the exercise of the court’s inherent jurisdiction.

26.  Re M [2014] 1 FLR 695 also concerned very different issues. The parents of the child were Latvian nationals. Following their separation, the father had regular contact with the child, who resided with him for a period of time while the mother worked abroad. In 2012, difficulties arose about the father continuing to have contact with the child, resulting in the in the father issuing proceedings in Latvia. An agreement was reached between the parties which was recorded in an order of the Latvian court. It recorded that the father’s claim had been pursued to establish a procedure for exercising rights “with the daughter”. In 2013, initially with the father’s consent, the mother left Latvia with the child to work in the UK. The intention was that the father would, after a period, travel to the UK to collect the child and return with her to Latvia. However, the mother failed to contact the father, resulting in him issuing Hague Convention proceedings. In the proceedings, the mother, for the first time, asserted that the father was not the child’s biological father and that accordingly, he had no rights either under Latvian law or under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the Convention). Accordingly, an issue arose as to whether the father had rights, whether under Latvian law, the Hague Convention or under the order of the Latvian court. The judge ordered that an expert to whom Latvian law could be posed be identified and agreed questions put to him. The judge also ordered DNA testing of the child, the mother and the father and for that to be carried out in parallel with instructions to the expert. The father appealed that part of the judge’s order requiring DNA testing. The father submitted that the order had been premature, that the Latvian court had presupposed that he was the child’s father and, unless and until that order was set aside, DNA testing was inappropriate. The mother submitted that the order had been sensible and was in any event a case management decision with which the court should not interfere. The court allowed the appeal, holding that DNA testing to establish paternity was a serious step for any court and should not be ordered unless it was necessary for it to be done before a conclusion could be reached. If DNA testing was to be done at all, it should only be done as a last resort. A determination of paternity was best carried out in a welfare context and by the court of the child’s habitual residence. Such a determination should only be made in the context of a Convention application if it was clear that that was necessary for the purpose of a decision which the court had to make. In that particular case, the DNA testing was not a mere case management decision. The expert in Latvian law should first give his answers to the questions of Latvian law posed to him. If by Latvian law, the father had a right of custody, or if, despite any conclusion of Latvian law, the father had a “right of custody” on the true construction of the Convention, any question of DNA testing would have fallen away. However, if the court concluded that the father had no right of custody on which he could rely unless he was actually the child’s biological father, then the question of DNA testing would have to be revisited. However, it should only be at that stage that any order should be made.

27.  It is obvious from first glance that Re M (supra) was not a consideration of the exercise of discretion under provisions similar to s.13 of the PCO. The ratio of the case was that DNA testing should not be ordered unless the necessity test was satisfied.

28.  The principles which guide the ordering of blood tests have been listed in Zhou Ying v Chow Lai Ching & Others [2010] 6 HKC 217 at 228E to 229A (of which the Respondent makes no reference in his draft ground of appeal):

“(a) the interests of justice are best served by the ascertainment of truth; (b) courts should be furnished with the best available scientific evidence, particularly if that evidence proves or disproves paternity with certainty or near certainty; (c) a child’s welfare generally demands that he or she knows the truth about his or her parentage; (d) 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 persons may also be involved and have to be considered; (e) the outcome of the proceedings in which the direction is sought is not a factor in deciding whether or not to make a direction; the question of paternity is free-standing and the application for the court to make a decision for scientific tests to determine the issue of parentage is entitled to its own considerations; (f) prospective non-compliance by a parent of a child under 16, or by a child over the age of 16, or by an adult is a factor to be taken into account but is not determinative of the issue of whether or not a direction should be made; (g) in general, DNA testing is in the child’s best interests where doubts as to paternity are in the public domain.”

29.  In that case, the Court of Appeal held that where paternity of a child is in issue, the general practice is for the court to order blood tests.

30.  Further, it was pointed out in Spencer v Spencer (supra) that:

“Knowledge of our biological identity is a central component of our existence. The issue can have consequences of the most far reaching kind, perhaps above all for those who do not know or are not sure of their parentage. Within our lifetimes, DNA testing has made the truth available. At the same time, it has made all other kinds of evidence almost irrelevant. While it remains possible to reach a conclusion about paternity without scientific tests, the practical and psychological consequences are different. A declaration made without testing is a finding while the result of a test is a fact…

The Human Rights Convention, as interpreted in Jaggi’s case 47 EHRR 30, underscores the importance of the opportunity to discover one’s parentage. Although the Convention cannot on its own create a remedy, it is desirable that our law is consistent with the approach taken in other jurisdictions if that is possible…

When all is said and done, the court is faced with a civil dispute that must be resolved. In cases where a power exists, it has long been emphasized that the establishment of the truth is both a goal in itself and a process that serves the interests of justice. As noted above, where a court makes findings of fact based upon witness and documentary testimony, there is always the possibility of error. Evidence will be incomplete because (by definition in a case of the present kind) people will have died and memories may have faded. When dealing with matters as important as parentage, the need to reach the right conclusion is obvious. The prospect of a court trying to ascertain the truth to the best of its ability when the truth is in effect there for the asking is a troubling one. Account must also be taken of the needless waste of resources that would accompany a trial involving narrative evidence…

The existence of a power cannot depend upon the circumstances of the particular case. What is relevant is the range of cases that might arise. It is possible to envisage opportunistic and unmeritorious applications, but there might equally be applications, perhaps concerning young children, where the need to know the truth about parentage is compelling. The answer cannot be that the court can consider an application in the second case but not in the first: jurisdiction cannot depend on merits…”

31.  It was clear from the above case that the impact of DNA testing was only of the factors to be considered by the court. However, this does not mean that the court has to treat it as a constitutionality challenge (when there was none) and conduct the proportionality test set out in Hysan Development Ltd v Town Planning Board (2016) 19 HKCFAR 372, as argued by the Respondent.

32.  In any event, the Mother never argued that there was no interference with privacy. Her case was that there was no constitutional challenge to the provisions of section 13 in this case. Even if there were, the right to privacy was not absolute. As long as the interference was not arbitrary or unlawful, it will not be caught by article 14 in section 8 of the Hong Kong Bill of Rights Ordinance (Cap.383). It is clear that the Court has carefully conducted a balancing exercise between the competing rights of the Minor and the Respondent.

Ground 2

33.  In the draft Notice of Appeal, the Respondent referred to paragraphs 21(5) and 25 of the Judgment and alleged that this Court had reversed the “burden of proof” and argued that the Court of Appeal should be given an opportunity to set out guidance on the same.

34.  This was a deliberate misreading of the Judgment. It is more than evident that paragraph 21 was not a finding of this court but was a summary of the facts and holdings in the case of Re A (A minor) (Paternity: refusal of Blood Test) [1994] 2 FLR 463. In particular, paragraph 21(5) related to the possible consequences of the court drawing adverse inferences in the event that he refuses to comply with an order for scientific testing. The Respondent was uncertain as to paternity and the fact that the Mother may be bringing an unmeritorious claim. In paragraph 25, the Court was merely pointing out that the fact that it was within the Respondent’s power to set all his doubts at rest by submitting to a scientific test.

Ground 3

35.  It was never in dispute that it was for the Applicant to establish the grounds for the requested direction. Section 13 of the PCO is an aid to provide the Court with the best evidence when paternity is in dispute. To require the Applicant to prove paternity before granting such an application would render section 13 of the PCO wholly nugatory.

36.  There was no misunderstanding of the Respondent’s evidence. He was cherry picking from his evidence. The Court repeats the relevant parts of the Respondent’s evidence:

“Since 2007, I have been diagnosed with Parkinson’s disease which gave rise to symptoms of right sided stiffness with slowness and dragging right leg. My condition gradually deteriorated and since 2012, I have gradually developed early wearing off and dyskinesia. I had difficulties even in activities of daily living, e.g. getting out of bed ad turning in bed. On 4 July 2016, I underwent a deep rain stimulation surgery and my condition has improved since then…

Back then in around November 2007, my physical condition has deteriorated to an extent that it was difficult and inconvenient for me to eat out in restaurants during lunch hours as my body has become very stiff with significant limitations in my movements. As such, to avoid the embarrassment of eating out during lunch hours, I would often go up to the Rented Apartment during lunch hours to have meals served to me by (the Mother) and to rest…

Nevertheless, in the present circumstances, in the event that this Honorable Court is minded to direct that a scientific test be done, I do wish to elect to exercise my right of withholding consent to undertake any kind of scientific test so directed, not least because it is inherently extremely unlikely that the Minor could have been my child. Given that the Minor was born on 1 April 2016, the relevant sexual intercourse with (the Mother) should have taken place in or around June 2015, during which I was, in fact, in a terrible health condition and thus, it would have been extremely difficult, if not impossible, for me to have sexual intercourse…

37.  Yet, in the same Affirmation, the Respondent admitted that he had a sexual relationship with the Mother [A43/§§8,12,15,17]:

“I met (the Mother) in or around September 2007 at a massage shop…in Wan Chai…we gradually became acquainted with each other and subsequently developed an affair….

The relationship between (the Mother) and I began to cool down significantly since around 2013, when I gradually started to see (the Mother) less and less frequently. Instead of ending our relationship amicably as I have endeavoured to, (the Mother) kept harassing me by sending me seductive pictures of her to induce me to go visit her at her place…Because of my fear that (the Mother) will continue to pester and harass me and my family members and friends, I would sometimes succumb to the seduction and go visit (the Mother) at her residence. This is how these proceedings arose…

Though (the Mother) stated at paragraph 10 of her Affirmation that she “did not have any sexual relationship with other men” during the subsistence of our relationship, there is no way in which I could have ascertained whether or not this is true given that we have never been in any kind of cohabitation. As I have stated above, I would at most only see her for about 2-3 hours a day for 4-5 days a week (and that was limited to the prime of our relationship, i.e. the relatively short period where we had regular sex)…

As can be seen at5 paragraphs 18-20 of (the Mother’s) Affirmation, the relationship between (the Mother) and I was almost completely broken down by around mid 2016…”

38.  It was obvious from the Respondent’s evidence that he was able to and did have sexual intercourse with the Mother around the time of the Child’s conception. To put it another way, if he had been physically unable to and/or did not have sexual intercourse with the Mother, there would have been no need for him to speculate as to whether he could have fathered the Minor. He should have been absolutely certain that he is not the father.

39.  By reason of all the above mentioned matters, this proposed appeal has no reasonable prospect of success. The law in respect of the application of section 13 of the PCO is settled. The Respondent is merely trying to befuddle the issues by citing authorities which have nothing to do with the relevant dispute in this case. In my judgment, there is no other reason in the interests of justice why the appeal should be heard.

40.  Accordingly, the Respondent’s application is dismissed. The costs of and incidental to this application be borne by the Respondent, to be taxed if not agreed. There be Certificate for Counsel.