TANG CHI CHUNG) (MINOR) BY TANG CHAI ON v. TANG SUN YIP AND ANOTHER

CACV 48/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 48 OF 2015

(ON APPEAL FROM HCMP NO 2476 OF 2014)

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REASONS FOR JUDGMENT
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Hon Cheung JA:

1.  I agree with the reasons for judgment of Au-Yeung J.

Hon Kwan JA:

2.  I agree with the reasons for judgment of Au-Yeung J.

Hon Au-Yeung J:

INTRODUCTION

3.  In the court below, Chow J made an order declaring that Tang Chi Chung (“the plaintiff”) was a member of Tang Lun Kok Tso (“the Tso”) as from the date of his birth and was entitled to enjoy all the rights of a member of the Tso including the rights to be paid an appropriate share of distributions of income or profits by the Tso to its members as from the date of his birth.

4.  The appellant (manager of the Tso) now appeals against that order.  The grounds of appeal largely turn on the learned judge’s treatment of a DNA report.

5.  At the end of the hearing, this court dismissed the appeal with costs to the respondent.  Here are the reasons.

THE FACTS

6.  The plaintiff (a minor) claims to be the natural son of Tang Chai On. The status of the plaintiff as a member of the Tso was not recognized by the appellant.  

7.  Chow J came to his decision after considering (i) the affirmation of Tang Chai On; (ii) the birth certificate apparently issued by the Ministry of Health of the People’s Republic of China dated 4 March 2011 stating that 邓智聪was born on 16 February 2011 and that his father was a person by the name of邓齐安; and (iii) a DNA report dated 6 November 2013 (“the DNA report”) issued by Dr Wan Kwong Kee (“Dr Wan”) stating that the probability of Tang Chai On being the biological father of 邓智聪 was 99.9908%, and the likelihood of Tang Chai On being the biological father of 邓智聪 was “practically proven”.

8.  At the hearing before Chow J, the 1^st defendant questioned the qualification of Dr Wan in preparing the DNA report.  The learned judge was informed of the failure of Tang Chai On in appointing an expert to give an opinion to confirm the parentage, and that the 2 brothers of Tang Chai On questioned the parentage.  Chow J held that these were insufficient to cast doubt on the evidence that the plaintiff was the natural son of Tang Chai On.

9.  The 1^st defendant also challenged the quality of the DNA report.  In 2 places of the DNA report, there were references to “All paternal genes in邓智聪 can be found in MA Yu Hong”; and “MA Yu Hong” was referred to as being the “Tested Man”.  Chow J considered that the references to “MA Yu Hong” were mistaken.  He accepted the clarifications in Dr Wan’s letter dated 19 January 2015 (“Dr Wan’s letter”), which was handed up to the court at the hearing without any objection from the 1^st defendant’s solicitor.

GROUNDS OF APPEAL

10.  The grounds of appeal advanced by Mr Chu in his skeleton submission are directed at the following:

A. The procedural error in admitting the DNA report;

B. The quality of the DNA report; and

C. The wrong joinder of D2 and wrong award of costs against him.

THE PROCEDURAL ERROR IN ADMITTING THE DNA REPORT

11.  Mr Chu submits that Chow J should not have admitted the DNA report, which was an inadmissible piece of hearsay evidence, to determine the substantive rights of the parties.  He had accorded disproportionate weight and relied solely on the DNA report without giving the opportunity to the appellant to produce his own report or cross-examine Dr Wan.  Given the erroneous approach and lack of procedural fairness, Mr Chu submits that the judgment below ought to be quashed as being Wednesbury unreasonable.

12.  It is correct to say that the DNA report did not qualify as an expert report under Part IV of Order 38 as it was not verified by a statement of truth (r37A).  There was no reference to the code of conduct being given to the maker of the report (r37B).  There was no declaration of the maker’s duty to the court (r37C).  Dr Wan had not been instructed to give or prepare evidence for the purpose of proceedings in the Court (r35(2)). 

13.  Whilst leave has to be sought before adducing expert evidence, Order 38, rule 36(2) provides that:

“Nothing in paragraph (1) shall apply to evidence which is permitted to be given by affidavit or shall affect the enforcement under any other provision of these rules (except of Order 45, rule 5) of a direction given under this Part of this Order.”

14.  The rationale is that the filing of an affidavit and its service on the other parties is as effective a means of securing the disclosure of expert evidence as is provided by Part IV of Order 38; and moreover, it would be highly impracticable to apply the provisions of Part IV of Order 38 to proceedings, such as interlocutory proceedings in which evidence is normally given by affidavit:  Hong Kong Civil Procedure 2015, Vol 1, §38/36/1, p 808.

15.  The proceeding before Chow J was by way of originating summons, which was not interlocutory in nature.  However affidavits are usually filed pursuant to Order 28.  The DNA report was voluntarily disclosed by the plaintiff as an exhibit to the supporting affirmation of Tang Chai On.  It was in the nature of hearsay evidence.

16.  Section 47(1) of the Evidence Ordinance, Cap 8, provides that in civil proceedings, evidence shall not be excluded on the ground that it is hearsay unless a party against whom the evidence is to be adduced objects to the admission of the evidence and the court is satisfied, having regard to the circumstances of the case, that the exclusion of the evidence is not prejudicial to the interests of justice. 

17.  In the court below, the appellant has not raised objection to the admissibility of the DNA report on the ground of hearsay but, rather, on its quality.  Raising a point on appeal that has not been argued below is not permissible.

“Even though there is some evidence upon the matter, the rule is that, if a point was taken before the tribunal which hears the evidence, and evidence could have been adduced which by any possibility could prevent the point from succeeding, it cannot be taken afterwards.” Hong Kong Civil Procedure 2015, Vol 1, §59/10/7.

18.  The DNA report being admissible evidence, Mr Chu’s argument that Chow J had accorded disproportionate weight and solely relied on it is untenable.  Chow J clearly relied also on 2 other pieces of evidence:

(1) The affirmation of Tang Chai On which confirmed that the plaintiff was Tang Chai On’s natural son. 

(2) The birth certificate which, though issued from a foreign jurisdiction, was at least prima facie evidence to prove the relationship of father and son: Lau Cho Kun alias Lau Yu Chak v Lau Siang Kok Lionel, CACV 212/2012, 30 July 2013, §54.

19.  There was no evidence produced by the 1^st defendant to challenge the relationship between Tang Chai On and the plaintiff.  The finding that the plaintiff was the natural son of Tang Chai On was plainly open to the learned judge on the evidence before him.

20.  That said, how much weight a judge placed on a piece of evidence was a matter of discretion.  It is trite law that the Court of Appeal would not interfere with the exercise of discretion on appeal unless it is satisfied either that the judge exercised his discretion upon a wrong principle or that, the judge’s decision being so plainly wrong, he must have exercised his discretion wrongly: G v G [1985] 1 WLR 647, 652E. 

21.  Mr Chu has not shown that the learned judge has erred in the exercise of his discretion as to warrant the interference of the Court of Appeal.

22.  The complaint that Chow J had not afforded an opportunity to the 1^st defendant to produce his own report and cross-examine Dr Wan is, again, misconceived. 

23.  Tang Chai On had twice offered to conduct, at his own expense, another DNA test by an expert arranged by the 1^st defendant, once by his solicitor’s letter dated 2^nd September 2014 before the hearing and the second time in his reply affirmation.  At no time had 1^st defendant accepted such invitation or filed his own DNA report.

24.  Further, at the directions hearing on 13 November 2014, no expert directions nor leave to cross-examine a deponent were sought by the 1^st defendant.  At no time was Chow J invited to invoke his powers to order the use of scientific tests or taking of bodily samples to test parentage under section 13 of the Parent and Child Ordinance, Cap 429, which Mr Chu now purports to rely on.

25.  This head of complaint is directed at case management matters which this court sees no reason to disagree with.

26.  The complaint of lack of procedural fairness is totally unmeritorious. Mr Chu’s reliance on the Wednesbury unreasonable principles is also wrong as a matter of law.  The test in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 225, which the court applies in deciding whether it is entitled to exercise judicial control over the decision of an administrative body, is not the appropriate test for deciding on whether the Court of Appeal is entitled to interfere with the decision made by a judge in the exercise of his discretion: G v G, page 653E-F.

THE QUALITY OF THE DNA REPORT

27.  Mr Chu submits that the DNA report was not reliable for failing to comply with Order 38, rules 37-37C.  His wide-ranging attacks included querying how the DNA sample was obtained, how it came into the hands of Dr Wan, the professional expertise of the laboratory and its relationship with Dr Wan and whether Dr Wan had confirmed the authenticity of his report.  Mr Chu also points to the many errors in the DNA report, especially that concerning the “tested man”.

28.  The DNA report referred to a MA Yu Hong as the “tested man” in the English version. Mr Chu submits that the learned judge failed to notice that it was stated in page 4 of the report that the Chinese version was only for reference and that if there was any “dispute”, the English version shall prevail.

29.  With respect, the error has been corrected by Dr Wan’s letter. There was no longer a “dispute” between the English and Chinese versions.  It was open to Chow J to rely on the Chinese version of the DNA report and Dr Wan’s letter to come to his finding.

30.  The rest of Mr Chu’s attacks under this ground were not raised before the learned judge. It is not permissible to raise them on appeal. 

31.  In any case, Dr Wan’s letter has explained the reason why the report was reliable:

“The report is suitable for legal use because sample collection, transportation and testing procedures are documented (page 2 of report and our internal documents) according to “Chain of Custody”, as well as the identities of the tested subjects (Page 2 of report) are verified, which are in line with international common practices and the same as our practice for other reports in the past for legal use.”

32.  The quality of the DNA report ground is untenable.

THE WRONG JOINDER AND WRONG AWARD OF COSTS AGAINST D2

33.  The 2^nd defendant is not appealing against the decision.  Not being his representative, it is not open to the 1^st defendant to advance grounds of appeal in relation to the 2^nd defendant.

CONCLUSION

34.  None of the grounds advanced by the 1^st defendant were tenable. The appeal was therefore dismissed with costs of the appeal to the respondent.

35.  We thank counsel for their assistance.