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

HCMP 2476/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2476 OF 2014

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J U D G M E N T

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Introduction

1. I have before me an application made by 鄧智聰 (Tang Chi Chung), minor (“the plaintiff”), by 鄧齊安 (Tang Chai On), his father and next friend, by way of originating summons issued on 8 October 2014 seeking a declaration that the plaintiff, as a member of 鄧麟閣祖 (Tang Lun Kok Tso) (“the Tso”), is entitled to (i) have his name recorded in the Register of Indigenous Inhabitants (“the Register”) in respect of the Tso and (ii) be paid an appropriate share of all distributions of proceeds or money made to members of the Tso.

2. It is not in dispute that:

(1) The land registered in the Land Registry as Lot No 440 in Demarcation District 122, New Territories, Hong Kong, is held for the benefit or on behalf of the Tso.

(2) The Tso consists of male descendants of a focal ancestor called Tang Lun Kok.

(3) Tang Chai On is a member of the Tso.

(4) The 1^st defendant is the current sole surviving manager and trustee of the Tso.

(5) The 2^nd defendant is the current treasurer of the Tso.

3. The plaintiff claims to be the natural son of Tang Chai On. In support of this claim, the following evidence has been produced by or on behalf of the plaintiff:

(1) An affirmation made by Tang Chai On filed on 24 October 2014.

(2) A 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 his father was a person by the name of邓齐安.

(3) A DNA report dated 6 November 2013 issued by Dr Wan Kwong Kee stating that the probability of Tang Chai On being the biological father of 邓智聪 is 99.9908%, and the likelihood of Tang Chai On being the biological father of 邓智聪 is “practically proven”.

4. The 1^st defendant, who is represented by Raymond Chan, Kenneth Yuen & Co, has not produced any evidence to challenge the relationship between Tang Chai On and the plaintiff.  The 2^nd defendant appears in person today but has not filed any evidence.  On the materials before me, I have no difficulty in coming to the conclusion that the plaintiff is the natural son of Tang Chai On.

5. The status of the plaintiff as a member of the Tso has not been recognised by the 1^st and 2^nd defendants.  In the 1^st defendant’s affirmation filed herein on 13 November 2014, it is said that the members of the Tso have not yet reached any consensus to accept or object to the present application, and the 1^st defendant questions the qualification of Dr Wan Kwong Kee to prepare the DNA report. It is also said that the members of the Tso have required Tang Chai On to appoint an expert on genetic engineering or related science or technology to give an opinion to confirm that the plaintiff is the natural son of Tang Chai On, but Tang Chai On has not appointed any such expert.  On the other hand, in a letter issued by T K Tsui & Co on behalf of the 2^nd defendant to Tang Chai On dated 8 August 2014, it was stated that the two brothers of Tang Chai On objected to the plaintiff’s name being entered on the register of members of the Tso, on the ground that they questioned the relationship between Tang Chai On and the plaintiff.  None of the above matters is, in my view, sufficient to cast any doubt on the existing evidence that the plaintiff is indeed the natural son of Tang Chai On and is entitled to be recognised as a member of the Tso.

6. Although not raised in the affirmation of the 1^st defendant filed on 13 November 2014, Mr Jerry Jim (for the 1^st defendant) has in his skeleton submission filed in the afternoon on 19 January 2015 raised the point that (i) on page 3 of the DNA report, it is stated that “All paternal genes in邓智聪can be found in MA Yu Hong”, and (ii) on page 5 thereof, “MA Yu Hong” is referred to as being the “Tested Man”.  However, the DNA report is bilingual, and it is clearly stated in the Chinese version in each instance that the person referred to is 鄧齊安 (Tang Chai On). It seems to me clear that the references to “MA Yu Hong” are mistaken.  These discrepancies have now been clarified by Dr Wan in a letter dated 19 January 2015, a copy of which was handed up to the court at the hearing today without any objection by Mr Jim.

7. The question of whether the plaintiff is a legitimate or illegitimate son of Tang Chai On cannot affect his entitlement to be recognised as a member of the Tso: see Tang Chun Kit (minor) by Tang Man Lok (his father and next friend) and Another v Tang Po Ling sued as registered manager for and on behalf of Tang Nam Kai (or Chai) Tso or Nam Kai Tso, HCMP 5529/2000 (10 September 2004), paragraph 34 per Lam J (as he then was).

8. As indicated at the beginning of this judgment, the plaintiff seeks a declaration that he is entitled to have his name recorded in the Register in respect of the Tso.  As I pointed out to counsel at the directions hearing on 13 November 2014, the evidence did not deal with the significance of the Register as a matter of customary law, or the implications arising from one’s name being entered on the Register.  No evidence on this issue has been adduced in the 2^nd affirmation of Tang Chai On filed after the last hearing. In the circumstances, I am not prepared to grant a declaration that the plaintiff is entitled to have his name recorded in the Register in respect of the Tso.

9. I shall, however, grant a declaration that the plaintiff is a member of the Tso as from the date of his birth on 16 February 2011, and is entitled to enjoy all rights of members of the Tso, including the right to be paid an appropriate share of the distributions of income or profits by the Tso to its members, as from 16 February 2011.

10. I shall hear the parties on the question of costs.