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

FCMP 121 / 2017

[2019] HKFC 79

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 121 OF 2017

----------------------------

---------------------------

____________________

Judgment

(Scientific Test)

____________________

1.  By an Originating Summons dated 22 June 2017, 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 Parent and Child Ordinance, Cap 429 (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 Ordinance; and

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

Background

2.  The Minor was born in Hong Kong on 1 April 2016.  The Mother is a 41-year-old housewife. She was born in Mainland China 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 is a 61-year-old merchant. He was at all material times married and has three adult children with his wife.

3.  In about September 2007, the Mother was working as a masseuse at a club house in Wan chai. 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 between the Mother and the Respondent 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 the Mother 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 Wan chai 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 is the Mother’s case that in addition to the monthly maintenance, the Respondent spent lavishly on her clothing, accessories and travelling. This is denied by the Respondent.

4.  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.

5.  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 Mother to strict proof thereof (B/9).

6.  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 (B/12-18).  A copy of the test report was sent by the Mother to the Respondent via WhatsApp (B/20). The Respondent admitted that he was at the Mother’s residence on 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.

7.  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

8.  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 scientific tests.

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

10.  The Respondent says that the Minor was probably conceived in about June 2015, during which time 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 (A/48§21). 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.  

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

12.  The Respondent argues that his right to privacy is protected by multiple international conventions, including the ICCPR. It is part of Hong Kong’s domestic law: Article 14 of the Hong Kong Bill of Rights.  The provisions of the HKBOR have the status of constitutionally guaranteed rights and provisions of an Ordinance must be applied consistently with such rights: Ubamaka v Secretary for Security 92012) 15 HKCFAR 743 at 19, 42-44.  This basic principle is explicitly recognized in other jurisdictions.  He submitted that in the context of DNA analysis, the provision of bodily sample will disclose information of a highly personal and unique nature, including medical and other information relating to the individual who is obliged to give the sample: S v Marper v United Kingdom (2008) 48 EHRR 50. The Respondent argued that the question of a respondent’s competing right to privacy had not been considered by the courts in Hong Kong.  However, it has been affirmed that applications for declarations of paternity involving DNA testing entail the weighing of competing privacy rights, of the child and the putative parent: Spencer v Spencer [2016] Fam 391 and Lewisham London Borougth Council v D [2011] 1 FLR 895

Applicable Legal Principles

13.  Section 6 of the PCO provides as follows:

“(1) Any person may apply in the court for a declaration that –

(a) A person named in the application is or was in law his parent…

(3) Where on an application for a declaration under this section the truth of the proposition to be declared is proved t the satisfaction of the court, the court shall make that declaration unless to do so would manifestly be contrary to public policy.

(4) Where a declaration is made on an application under subsection (1)9a) or (b), the Registrar of the court shall notify the Registrar of Births and Death, in such manner and within such period as may be prescribed, of the making of that declaration.”

14.  Section 13 of the PCO provides:-

“(1) In any civil proceedings in which the parentage of any person falls to be determined, the court may, either of its own motion or on an application by any party to the proceedings, give a direction-

(a) For the use of scientific tests showing whether a party to the proceedings is or is not the father or mother of that person; and

(b) For the taking of bodily samples from that person or any party, to the proceedings,

And the court may at any time revoke or vary a direction previously given under this subsection.

(2) The person responsible for carrying out scientific tests in pursuance of a direction under subsection (1) shall make to the court a report in which he shall state-

(a) the results of the tests; and

(b) the value of the results in determining whether any party to whom the report relates is or is not the father or mother of the person whose parentage is to be determined

And the report shall be received by the court as evidence in the proceedings of the matter stated in it.

(3) Where the proceedings, in which the parentage of any person falls to be determined are proceedings on an application under Part IV, any reference in this section to any party to the proceedings shall include a reference to any person named in the application.

(4) Where a report has been made in a court under subsection (2), any party to the proceedings may, with the leave of the court or shall, if the court so directs, obtain from the person who made the report a written statement explaining or amplifying any statement made in the report and that statement shall be deemed for the purposes of this section to form part of the report made to the court.”

15.  Section 14 of the PCO provides:-

“(1)…a bodily sample which is required to be taken from any person for the purpose of giving effect to a direction under section 13 shall not be taken from that person except with his consent.”

16.  Section 15 of the PCO provides:-

“(1) Where a court gives a direction under section 13 and any person fails to take any step required of him for the purpose of giving effect to the direction, the court may draw such inference, if any, from that fact as appear proper in the circumstances.

(3) Where any person named in a direction under section 13 fails to consent to the taking of a bodily sample from himself or from any person named in the direction of whom he has the care and control, he shall be deemed for the purposes of this section to have failed to take a step required of him for the purpose of giving effect to the direction”.

17.  S v McC; W v W [1972] AC24 involved two appeals. In the first of these two appeals, a wife who married in 1946 have birth to a girl in December 1965. Her husband denied that the child was his and in March 1966 he filed a petition for divorce on the ground of the wife’s adultery from July 1965 with one M, a Pakistani, and adultery with an unknown person during a period covering the probable date of conception.  The wife by her answer, while admitting adultery with M from August 1965, claimed that her husband was the father of the child.  The official solicitor was appointed guardian ad litem to the child as intervener. Before the petition was heard, the wife took out a complaint before the magistrates in affiliation proceedings in which she alleged that M was the father of the child. Those proceedings were adjourned pending the hearing of the petition. It was heard in May 1968. The wife and M as the named co-respondent did not defend it. The husband’s evidence was that the wife had left home in 1963, returned in 1964, left again on 20 March 1965, for a short time and after a further return had left with M in May; that she came home shortly before the child was born in December but had after a few weeks gone with the child to the house where M lived and had remained there. The commissioner granted the husband a decree nisi and directed that the issue as to the legitimacy of the child be tried. On the husband’s application for a blood test to be ordered on the child for the purposes of the legitimacy issue, the judge ordered tests of the husband, wife and child and of M, subject to M’s consent. M did not consent, and the order was made in respect of husband, wife and child. The Court of Appeal, by a majority, dismissed an appeal by the Official Solicitor on behalf of the child. The Official Solicitor appealed to the House of Lords.

18.  In the second appeal, the spouses were married in 1957 and they had two children born in 1959 and 1961 respectively. In 1963, the wife stayed with her mother from time to time when West Indian lodgers were staying in the mother’s house. The spouses continued to have sexual relations and apparently the husband did not suspect his wife of misconduct. In July 1963, the wife left her husband and she, taking the two children with her, stayed with a man in Bristol where she acted as housekeeper. While there she gave birth to a boy. On February 8, 1964, she petitioned for divorce on the ground of cruelty. In October 1966, the wife sent to the husband at his request a photograph of the three children. That photograph showed a great difference in appearance between the elder children and the youngest child and the husband at once asserted that the youngest child was not his. He obtained a confession from his wife that she had committed adultery with a West Indian, and on December 17, 1968, he obtained a decree nisi on the ground of adultery. The Official Solicitor was appointed guardian ad litem of the youngest child and an issue was ordered to be tried whether the child was the child of the husband. The husband wished the child to have a blood test, but that was refused by Sir Jocelyn Simon P. The Court of Appeal, by a majority, dismissed an appeal by the husband. The husband then appealed to the House of Lords.

19.  The House of Lords dismissed the first appeal but allowed the second appeal. It was held that on the trial of an issue as to the legitimacy of a child, it was in the interest of the child and also of justice that the court should have before it all the best evidence available, including modern scientific evidence as provided by blood tests which might resolve the issue conclusively and that the interests of a child were best served if the truth was ascertained.

20.  In Yeung Chung Ping v Yeung Wan Yuet [1987] 1 HKC 209F, the parties were married on 25 September 1980 and lived together both in Hong Kong and Canada. The Respondent (wife) filed a petition for divorce in 1985 on the ground of unreasonable behavior. Among the allegations were that the husband had frequently accused her of improper relations with other men and that the wife was assaulted by the husband a number of times during the course of the marriage. The parties had a child to the marriage. The husband disputed the paternity of the child and had a blood test administered to that effect without the participation of the wife in 1983. The husband applied to the High Court for an order that blood tests should be carried out on the parties to the marriage and on the child of the marriage. The application was dismissed on the ground that the application was premature. The husband appealed to the Court of Appeal.  The Court of Appeal applying S v McC (supra) held, allowing the appeal that:-

(1)     The judge below ought to have reached a conclusion that the issue of the paternity of the child had already been raised in the affidavits of both of the parties and that it was, therefore, open to him to consider whether or not a blood test should have been ordered;

(2)     There was no reason within the scope of the protective jurisdiction of the court over infants which would justify any departure from the general practice of ordering blood tests in circumstances where the paternity of a child was in issue. It was apparent from material before the court that the question of the child’s paternity was long standing.

21.  In Re A (A Minor) (Paternity: Refusal of Blood Test) [1994] 2 FLR 463, the child was born in 1989. The mother at the time of the child’s conception was having a sexual relationship with three different men, any of whom could have been the child’s father. The mother claimed maintenance for the child against one of the men, G. G’s relationship with the mother has ended. He was a prosperous businessman who was not prepared to accept paternity of the child. G contended that it was unjust to compel him to accept against his will, fatherhood of a child who could equally be the child of either of the two men. G refused to undergo the blood test which had been directed by the court. The judge upheld G’s contention and dismissed the summons which the mother had brought under the Guardianship of Minors Acts to establish G’s liability to maintain the child. The mother appealed. It was held that:

(1) In 1969, the Law Commission considered and rejected the introduction of a facility for joint defendants in cases where there were two or more candidates for paternity. The commission also proposed no change in the general law of affiliation and advised the introduction of a formalized system of blood testing which would be accompanied by a repeal of the presumptions of legitimacy and illegitimacy, leaving the court to draw whatever inference it thought appropriate from the refusal if a man to submit to a blood test. Those recommendations were enacted in the Family Law Reform Act 1969;

(2) All issues of paternity now fell to be resolved within the framework of the Children Act 1989 by the courts, which had been given statutory freedom to deal with the evidence at large, and to reach their own determination as to the significance to be attached to a person’s refusal consent to a scientific test directed by the court under the amended s.20 of the Family Law Reform Act 1969. That freedom had not been curtailed by case law;

(3) The degree of proof involved in the burden of establishing paternity upon a balance of probability had been the subject of case law. The question raised by an issue of paternity, was a serious one and the balance of probability had to be established to a degree of sureness in the mind of the court which matched the seriousness of the issue. However, the weighing process to establish this degree of sureness should not be over elaborate;

(4) The judge regarded his power to draw inferences from G’s failure to comply with the blood test direction as being limited to conclusions drawn by the court is to the state of G’s knowledge of his paternity of the child, and in limiting his powers in that way the judge fell into error. The court’s power to draw inference under s.23(1) of the 1969 Act were wholly at large and unconfined. They were amply wide enough to extend to an inference drawn as to the very fact which was in issue namely the child’s actual paternity…

(5) Any man who was unsure of his own paternity, and harboured the least doubt as to whether the child he was alleged to have fathered might be that of another man, had it within his powers to set all doubts at rest by submitting to a test. It had ceased therefore to be possible for any man in such circumstances to be forced against his will to accept paternity of a child whom he did not believe to be his. Against that background of law and scientific advance, it followed in justice and in common sense that if a mother made a claim against one of the possible fathers, and he chose to exercise his right not to submit to be tested, the inference that he was the father of the child should be virtually inescapable. He would have to advance very clear and cogent reasons for his refusal to be tested;

(6) G was given the opportunity to have the child’s paternity established by his submission to a blood test. He rejected that opportunity. The fact that there were others to whom the same opportunity might have been afforded was irrelevant to the inference that could now be drawn from G’s refusal.

22.  In Re P (Parentage: Blood Tests) (also known as Zhao Ying v Chow Lai Ching) [2010] 4 HKLRD 497, proceedings were brought by the plaintiff, an infant, through his mother and next friend, Madam Wu for an order that the plaintiff was entitled to succession under the Intestates’ Estate Ordinance in the estate of Chiu Pang, deceased (the deceased), which was being administered by the 1^st and 2^nd defendants. The deceased died intestate on 30 August 2009. The 1^st defendant was the lawful widow of the deceased. The deceased had two sons, both in their teens. The plaintiff’s mother claimed that the deceased had an extra-marital relationship with her and the plaintiff was born out of this relationship in Beijing on 7 June 2006. The 1^st defendant and the 2^nd defendant, the younger brother of the 1^st defendant, were co-administrators of the estate of the deceased and required Madam Wu to prove the plaintiff’s claim. Her request for DNA testing was refused. On 25 March 2010, the 3^rd defendant, the elder son of the deceased was joined in the proceedings. The Court of First Instance, having referred to a number of cases, extracted the following broad principles in relation to the ordering of blood tests:-

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

(2)     Courts 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;

(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 interest of other persons may also be involved and have to be considered;

(5)     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 direction for scientific tests to determine the issue of parentage is entitled to its own considerations;

(6)     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;

(7)     In general, DNA testing is in the child’s best interests where doubts as to paternity are in the public domain.

The Respondent’s Arguments

The Nature of the Relationship

23.  The Respondent argued that his “relationship” with the Mother was a commercial one. He only saw her for about 10 to 15 hours per week. It was therefore possible for the Mother to be having a relationship with another man or men. He says that he is a wealthy man and is an obvious target for such an application. The Mother says that she maintained a sexual relationship with the Respondent from September 2007 until June 2016 and that the Respondent was her only sexual partner.

24.  Firstly, the allegation that the Mother may have been having a relationship with other men is mere speculation. There is not an iota of evidence in support. Further, as can be seen from S v McC; W v W  (supra)  and Re A (supra), the fact that the mother of the child had another relationship or relationships would not prevent the court form ordering scientific tests to determine paternity. Consideration as to the length and nature of the parents’ relationship and whether or not the child was planned are generally of little if any relevance, since the child’s needs and dependency are the same regardless (applying J v C (Child Financial Provision) [1999] 1 FLR 152 at 154B).

25.  As in Re A (supra), if the Respondent were unsure of his own paternity, and harbored the least doubt as to whether he is the father of the Child, he had it within his powers to set all doubts at rest by submitting to a test. It had ceased therefore to be possible for any man in such circumstances to be forced against his will to accept paternity of a child whom he did not believe to be his. The fact that there may be other possible paternity candidates is irrelevant.

26.  The Respondent argued that because he never cohabited with the Mother, he cannot be sure whether he is the father of the Child. If the Respondent was having sexual intercourse with the Mother, it does not matter whether he was living with her. He was married to and living with his wife, and yet he was able to have a sexual relationship with the Mother. 

The Respondent’s Ability to Father the Child

27.  In his 1^st Affirmation, the Respondent suggested that his physical condition was very fragile at that time of conception and that he only visited the Mother at the Rented Apartment for meals and rest (A/43/§7, 44/§10, 48/§21):

“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 and turning in bed. On 4 July 2016, I underwent a deep brain 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 Honourable 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. ”

28.  It would appear that the Respondent was implying that her was unable to have sexual intercourse with the Mother. However, in the same Affirmation, the Respondent admitted that he had a sexual relationship with the Mother (A/43/§§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 at paragraphs 18-20 of (the Mother’s) Affirmation, the relationship between (the Mother) and I was almost completely broken down by around mid-2016…”

29.  It is 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. In other words, he was able to father the Child.

The Respondent’s Authorities

30.  It was accepted by the Respondent that the Child has a right to know his parentage. He also agreed that applications of this nature should be determined by the most cogent available evidence, and if available, scientific evidence (See S v McC; W v W [1972] AC 24).

31.  However, the Respondent argued that the obtaining of a bodily sample will disclose information of a highly personal and unique nature, including medical and other information relating to the individual who is obliged to give the same. He relied on the cases of S & Marper v United Kingdom (2008) 48 EHRR 50, Spencer v Spencer [2016] Fam 39; Lewisham London Borough Council v D [2011] 1 FLR 895.

32.  The facts in those cases are very different from the present case and were decided on their own facts.

33.  In S v United Kingdom (supra), the 1^st applicant, a British national, had been arrested in January 2001 at the age of 11 and charged with attempted robbery. His fingerprints and DNA samples were taken. He was acquitted in June 2001. The second applicant, also a British national, was arrested in March 2001 and charged with harassment of his partner. His fingerprints and DNA samples were taken. The case against him was formally discontinued in June 2001. Both applicants asked for their fingerprints and DNA samples to be destroyed. The police authorities refused. Under domestic law the police authorities were entitled to retain indefinitely the fingerprints and DNA samples of those suspected but later not convicted of a criminal offence.

34.  The police relied on their powers under the Police and Criminal Evidence Act 1984 (PACE) which contains powers for the taking of fingerprints and samples. Under s.61 of that Act, fingerprints may only be taken without consent if an officer of at least the rank of superintendent authorizes the taking, or if the person has been charged with a recordable offence or has been informed that he will be reported for such an offence. Before fingerprints are taken, the person must be informed that the prints may be the subject of a speculative search, and the fact of the informing must be recorded as soon as possible. The reason for the taking of fingerprints is recorded in the custody record. Parallel provisions relate to the taking of samples.

35.  As to the retention of fingerprints and samples (and the records thereof), s.64(1A) of PACE was substituted by s.82 of the Criminal Justice and Police Act 2001. It provides was follows:-

“Where---(a) fingerprints or samples are taken from a person in connection with the investigation of an offence, and (b) subsection (3) below does not require them to be destroyed, the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any party except for purposes related to the prevention or detection of crime, the investigation of an offence, or the conduct of a prosecution…

(3) If---(a) fingerprints or samples are taken from a person in connection with the investigation of an offence; and (b) that person is not suspected of having committed the offence, they must except as provided in the following provisions of this Section be destroyed as soon as they have fulfilled the purpose for which they were taken.

(3AA)   Samples and fingerprints are not required to be destroyed under subsection (3) above if (a) they were taken for the purposes of the investigation of an offence of which a person has been convicted; and (b) a sample or, as the case may be, fingerprint was also taken from the convicted person for the purposes of that investigation”

36.  The applicants sought to challenge the refusal through the domestic courts. However, their application was rejected in turn by the Administrative Court, the Court of Appeal and the House of Lords. The House of Lords held that the mere retention of fingerprints and DNA samples did not constitute an interference with the applicants’ right under art.8 to respect for private life. Neither, it held, did it amount to a breach of art.14 in that the difference of treatment between the applicants and the general body of persons who had not had their fingerprints and DNA samples taken and retained by the police was not a difference based on a relevant “status”. 

37.  The applicants complained. Relying on art.8, that the retention of their fingerprints, cellular samples and DNA profiles amounted to a violation of their right to respect for private life. They further complained, relying of art 14, that in this regard they had been subjected to discriminatory treatment as compared with other unconvicted persons.

38.  It was held unanimously that:

(1) There had been a violation of art 8.

(2) It was not necessary to consider separately the complaint under art 14

(3) The finding of a violation was sufficient just satisfaction for the non-pecuniary damage sustained.

39.  It was further held that:

(a)   The applicants’ concern about the possible future use of private information retained by the authorities was legitimate and relevant to a determination of the issue of whether there had been an interference. In addition, cellular samples contain much sensitive information about an individual and contain a unique generic code.;

(b)   Due to the to the nature and the amount of personal information contained in cellular samples, their retention per se was regarded as interfering with the right to respect for the private lives of the applicants;

(c)   The DNA profile’s capacity to provide a means of identifying genetic relationships between individuals was in itself sufficient to conclude that their retention interfered with the right to respect for the private lives of the applicants. It was irrelevant that there was currently, in practice, a low likelihood of detriment to the applicants;

(d)   …

(e)   The retention of the applicants’ fingerprint and DNA records had a clear basis in domestic law…

(f)   The retention was undertaken in pursuit of a legitimate purpose, namely the detection and prevention of crime…

(g)   The crucial question was whether the retention of the fingerprint and DNA data of the applicants was necessary in a situation where they had been suspected of a crime, but not convicted. The core principles of data protection require the retention of data to be proportionate in relation to the purpose of collection and insist on limited periods of storage…

(h)   …

(i)   The retention of the first applicant’s data was to be considered especially harmful given his special situation as a minor and the importance of his development and integration in society;

(j)   The blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences failed to strike a fair balance between the competing public and private interests (my emphasis).

40.  It will be more than obvious that there are marked differences between S v United Kingdom and the present proceedings and does not assist the Respondent:-

(1) The fingerprints and DNA samples were taken as a result of criminal investigations. The present proceedings are family proceedings;

(2) There was a constitutional challenge to the legal provisions. The Respondent in the present case specifically conceded that there is no such challenge in this case;

(3) There was no objection to the taking of the fingerprints and DNA samples. The subject matter of the present case is an order for the taking of DNA samples;

(4) The question before the European Court of Human Rights was the retention of the fingerprints and samples after the purpose for which they were taken had been served and the possible future use of such fingerprints and samples in cases other than the one in which they were taken;

(5) Under PACE, fingerprints and DNA samples could still be taken over the suspect’s objection and thereafter retained for other purposes. In the present case, samples cannot be taken without the Respondent’s consent. Any sample taken is only restricted to their use in these proceedings;

(6) The provisions in PACE are wholly different from those in the Parent and Child Ordinance.

41.  In Lewisham London Borough Council v D (Local Authority Disclosure of DNA samples to police) [2010 EWHC 1238 (fam), the local authority became concerned that the woman who claimed to be the mother 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 s64 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. The woman resisted the application.

42.  This was again an application to use test samples originally taken for a different purpose. Not only was disclosure sought for a different purpose, it was sought for the purposes of a criminal investigation Under section 64(1A) of PACE 1984.  

43.  The applicant in Spencer v Spencer (supra) brought an application for a DNA sample to be tested to establish paternity. However, the facts of that case were very unusual. David Spencer, who was born on 13 August 1986 applied under section 55A of the Family Law Act 1986 for a declaration that the late William Anderson (the Deceased) who died intestate in 2012, was his father. The respondents were the applicant’s mother, Mr. Hall, his mother’s former husband (who was named on the applicant’s birth certificate as his father) and Mrs. Anderson, the deceased’s mother, who was the personal representative of his estate. Within those proceedings the applicant applied, relying on section 20 of the Family Law Reform Act 1969, for a direction that a sample of the deceased’s DNA, which had been extracted while the deceased was being treated for bowel cancer and retained by the hospital, be tested alongside a sample of his own DNA to establish whether or not he was the deceased’s son.

44.  The wording of Sections 20 and 21 of the Family Law Reform Act 1969 is essentially the same as those in sections 13 and 14 of the Parent and Child Ordinance.

45.  Mr. Spencer’s case. Based on his mother’s account, is that he was conceived in the course of a relationship between his mother (the Ms. Potter) and the Deceased, which ended when she was about three months pregnant. His mother then began a relationship with Mr. Hall and they registered him as the child’s father at birth, knowing that this was not the case. DNA testing has confirmed that Mr. Hall was not Mr. Spencer’s father. The relationship between Mr. Spencer’s mother and Mr. Hall later broke down and his mother married a Mr. Spencer. Thereafter, in 1996, when he was aged nine, David Spencer’s surname was changed from Potter (his surname at birth) to Spencer. There was no contact between Mr. Spencer and the Deceased’s lifetime and it was not clear from the evidence whether the Deceased knew of Mr. Spencer’s existence, although everyone lived in the same general area. Mr. Spencer stated that as a child, he was told by his mother that his real father had moved away. He never made any attempt to trace his father. At some point, Mr. Spencer’s mother named the Deceased but it was not until 2013, when Mr. Spencer was 26 and the Deceased had passed, that Mr. Spencer sought to establish his paternity.

46.  In 2006, the Deceased was diagnosed with bowel cancer and underwent treatment at Central Manchester University Hospital. Because of a family history of bowel cancer, a blood sample was taken and DNA was extracted from it. This was used for testing for two high risk genes, which were not found. The hospital retained a single DNA sample and no longer held blood or tissues. In 2010 and 2012, the hospital wrote to the Deceased enclosing a consent form regarding testing to allow recommendations to be made in relation to his siblings. He did not sign and return these forms. The Deceased died of a heart attack on 23 July 2012. He did not leave a valid will and on 1 May 2013, his wife became his personal representative.

47.  Mr. Spencer’s case is that Mrs. Anderson contacted him out of the blue in June 2013 to express her concern that the Deceased had died from a rare form of hereditary cancer and that in consequence Mr. Spencer may be at risk and should take a DNA test. Having raised the issue, Mrs. Anderson then progressively withdrew her co-operation. Her case was that Mr. Spencer’s mother contacted her out of the blue to announce that she was the mother the Deceased’s son and that Mr. Spencer thereafter badgered her at a time when she was mourning the death of her son.

48.  There was no reason to believe that Mr. Spencer was aware of the history of bowel cancer in the Deceased’s family before the Deceased’s death. The hospital stated that Mrs. Anderson contacted it in September 2013 to discuss paternity testing. In February 2015, Mrs. Anderson gave Mr. Spencer a handwritten letter to take to his GP. It read:

“Dear Doctor,

      The question has arisen as to whether your patient David Spencer is the unknown son of the later William B Anderson who I am the mother of. Since there is a history of colon cancer in the family, it is essential we know David’s parentage. The Manchester Centre for Genetic Medicine at the University Hospital have agreed to see David Spencer to establish one way or other as they hold DNA samples on my son. That is, David would be tested to see if he is at risk of bowel cancer and clarify paternity. Under the NICE guidelines I am requesting that you refer David as soon as possible using the reference [number given]. The consultant genetic counsellor is [name, address and telephone number given].

      Many thanks for your co-operation,

      Yours sincerely,

      V Anderson” 

49.  However, in April 2015, Mrs. Anderson and one of her daughters contacted the hospital to request that the stored DNA sample should be destroyed. In May 2015, Mr. Spencer was seen by the hospital’s genetic counsellor. She wrote to him after the consultation, saying that the Deceased had been diagnosed with bowel cancer at the age of 38 and that the Deceased’s father and grandfather had both had that condition. This suggested that if Mr. Spencer is the Deceased’s son, he himself would have a 50% risk of inherited predisposition to bowel cancer, a condition known as Lynch Syndrome. Bowel screening by colonoscopy every two years was recommended and could dramatically reduce the risk of developing the disease. The counsellor asked to be informed of the outcome of any paternity testing. A consultant surgeon has advised that the pattern of colonoscopy surveillance would not apply if Mr. Spencer was unrelated to the Deceased and that the risks of colonoscopy are an approximately 1:1000 risk of bowel perforation. The hospital takes a neutral stance and does not seek to participate in the proceedings. Its original stance was that Deceased provided the sample on the understanding that it would be used for genetic testing in respect of hereditary/genetic conditions in relation to himself. In a letter dated August 2015, the hospital suggested that the sample was provided by the Deceased not only for his own benefit but also for other family members. However, it was clear that the sample was not given or stored with any contemplation of, still less consent for, its use in paternity testing.

50.  The Court examined the provisions of the Family Law Act 1986, The Family Law Reform Act 1969, the Human Tissue Act 2004 and the Human Rights Act 1998. Section 55A of the Family Law Act 1986. The wording in section 55A(1) of the Act is almost the same as the wording in section 6(1) of the Parent and Child Ordinance in Hong Kong. Section 55A(1) provided as follows:

“Declarations of parentage

(1) Subject to the following provisions of this section, any person may apply to the High Court or the family court for a declaration as to whether or not a person named in the application is or was the parent of another person so named.”

51.  The Court observed that it was common ground between the parties that Mr. Spencer was entitled to bring his application and that the court must hear it. There was narrative evidence that would doubtless enable a conclusion to be reached on the balance of probabilities. However, DNA testing would answer the question of parentage with near certainty and would in effect determine the outcome.

52.  The Court pointed out 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..”

53.  The Court then set out the competing interests in that case. The factors in favour of testing included the applicant’s natural desire or right to know his parentage; the value that knowledge of paternity will have in clarifying his medical status and the need (or not) for intrusive investigations and the interests of justice and the need for the best available evidence. The factors against testing included an unjustified interference with Mrs. Anderson’s own article 8 rights by compounding a distressing situation and creating a risk that a genetic relationship would be identified between herself and a person who has caused her stress and anxiety; the argument that human DNA is intensely personal and very strong justification is therefore required if it is to be used for any purpose without that person’s consent (the sample being provided by Mr. Anderson for his own benefit during the course of medical treatment. He was entitled to a high expectation of confidentially).

54.  After weighing all those matters, the Court granted the application. It was held that there was no power under section 20 of the Family Law Reform Act 1969, or any other statute, to direct the use of post mortem scientific tests or the taking of DNA to establish a person’s parentage; but that, in cases where the absence of a remedy would lead to injustice and the circumstances fell outside the scope of the 1969 Act, the inherent jurisdiction of the High Court empowered the court to direct such testing, although the power should be used sparingly; that, given the applicant’s natural desire to know his biological parentage and the value which knowing his paternity would have in clarifying his risk of having an inherited predisposition to bowel cancer, it was in the interests of justice that testing should take place and that, accordingly, a direction to that effect would be made.

55.  Again 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 the law was clear. You cannot test samples taken for one purpose for a different purpose without consent. In the present case, the applicant is asking for directions for a test sample for one purpose only, to determine paternity.

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

57.  The Respondent argued that Spencer v Spencer (supra) and Lewisham London Borough Council v D (supra) established that in applications of paternity involving DNA testing entailed the weighing of competing privacy rights of both the child and the alleged putative parent. The issues in those cases were very different. As explained above, the application in Lewisham London Borough Council v D was made under PACE 1984. In both cases, the applicants were seeking to use test samples which were previously taken for a different purpose. The Courts found that the situations in those cases did not come within the wording of the Family Law Reform Act (which is the same as our Parent and Child Ordinance). In those circumstances, the courts had to determine whether to exercise its inherent jurisdiction. 

58.  The Respondent submitted that when his right to privacy is implicated, the Court should not make the order under section 13 of the Parent and Child Ordinance unless it is satisfied that it is a “reasonably necessary” step to take in the circumstances of the case. He went on to argue that that the proportionality test required to be satisfied in considering the validity of legislative measures impinging on fundamental rights. He proceeded to ask the Court to apply the principles set out in Hysan Development Co Ltd v Town Planning Board 92016) 19 HKCFAR 372.

59.  There was a constitutional challenge in that case. The Respondent in this case specifically stated that he was not posing a constitutional challenge but reserves the right to do so in the future. Yet, not only did he embark on a constitutionality analysis, he asked the Court to apply the principles apposite to such a challenge. Either he challenges the constitutionality of the provisions of the Parent and Child Ordinance or he does not. To introduce the test of proportionality in Hysan when there is no constitutional challenge is simply the wrong approach.

60.  Constitutionality is not an issue before the Court and it is unnecessary for me to rule on it. In the event that I am wrong, the following are the Court’s observations:

(1) The determination of constitutionality was a question of law for the courts to determine. Where there is a constitutionally guaranteed right that was not absolute, the law might validly create restrictions limiting such rights. It was for the Court to determine the permissible extent of those restrictions and it does so by a process referred to as a proportionality analysis: Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs (2017) 20 HKCFAR 353 at §29; Hysan Development Co Ltd v Town Planning Board (supra) applied.

(2) The first step for determining constitutionality is to identify the constitutionally guaranteed right; the relevant legislation or measure said to infringe such constitutional right and the infringement itself: Kwok Cheuk Kin (supra at §30).

(3) Article 14 in section 8 of the Hong Kong Bill of Rights Ordinance (HKBORO) provides for the protection of privacy, stating that no one shall be subjected to “arbitrary or unlawful interference with his privacy”. The legislation allegedly infringing the privacy right is section 13 of the Parent and Child Ordinance. The alleged infringement is that obtaining of a bodily sample will disclose information of a highly personal and unique nature.

(4) The second step in the analysis is to look at the constitutional right itself to see whether there are any inbuilt qualifications. Qualifications to rights contained in the Basic Law might be expressly stipulated or might also appear in the Hong Kong Bill of Rights (BOR): Kwok Cheuk Kin (supra at §31) . Interference with one’s privacy, if such interference is not “arbitrary or unlawful” is permissible under the constitutional framework.

(5) In Democratic Party v Secretary for Justice [2007] 2 HKLRD 804, Hartmann J noted, as stated in General Comment No. 16 on art. 17 of the ICCPR that “the term ‘unlawful’ means that “there can be no interference unless envisaged by the law…”. The term “arbitrary” may extend to an interference which is envisaged by law but is nevertheless capricious, an interference, for example, that is found to amount to an abuse of power (§821). This is tested by the use of the proportionality test.

(6) In Keen Lloyd Holdings v Commissioner of Customs and Excise [2016] 2 HKLRD 1372, the Court of Appeal held that in relation to the protection of the right to privacy, the ascertainable measures enforceable in law must be in place to allow for a proportionate limitation of the right while at the same time providing adequate safeguards to prevent executive abuse. The broad concept of arbitrariness formed the juridical basis for the applicability of the proportionality test. This must be applied cautiously so that only a statutory provision which was manifestly disproportionate would be struck down as arbitrary (§§55-62). Further, prior authorization would provide an opportunity for the conflicting interests of the state and the individual to be assessed before the event so that the individual’s right to privacy would be breached only where the appropriate standard had been met (§§64-74).

(7) The proportionality exercise involves four steps for the Court to determine: (1) whether the intrusive or restrictive measure pursued a legitimate aim; (2) if so, whether the measure was rationally connected to such legitimate aim; (3) whether the measure was no more than necessary for the purpose; and (4) whether a reasonable balance had been struck between the societal benefits of the restrictions and the inroads into the constitutionally protected right: Kwok Cheuk Kin at §134-135.

(8) In considering the considerations of the “no more than necessary” step, the margin of appreciation was the area of discretion that the Court would accord to a decision maker, or in the case of legislation, to the legislature. It reflected the separate constitutional and institutional responsibilities of the judiciary and other organs of government:

“It is now well established that in subjecting a challenged statutory restriction to scrutiny, and where due margin of appreciation is to be accorded to the relevant authority (say the legislature in the present case), the court readily recognizes that the legislature may adopt a general rule even though it will or may have hard cases where a detrimental effect on individuals may arise. The fact that there may be hard cases that can be caught by the drawing of the line, and that there may possibly be other alternatives as to where and how that line should be drawn does not necessarily make the challenged restriction disproportionate and thus unlawful”: Kwok Cheuk Kin at §40; Hysan Development at §116).

(9) Further, an important factor in conducting the proportionality evaluation is the extent of the restriction on the fundamental right in question. In Democratic Party v The Secretary for Justice (supra at §67), Hartmann J observed that if the law, the subject of the challenge provides measures by which the seriousness of the restriction may, in appropriate circumstances be limited, then “that … is a matter of considerable relevance, indeed determinative.”

61.  In the present case, the alleged interference with privacy rights pursues a legitimate aim. It protects the rights of children. As stated in Article 20 of section 8 of the BORO, every child shall have without discrimination as to birth, the right to such measures of protection as are required by his status as a minor on the part of his family, society and the State; and that every child shall be registered immediately after birth. Secondly, it protects the minor’s right to a fair trial, including the right to have paternity established. Scientific tests enable the minor to have the best evidence to establish paternity.

62.  There is no dispute that the restrictions to privacy right is rationally connected to such legitimate aim.

63.  The restriction is no more than necessary for the purpose. The operation of the entire Parent and Child Ordinance should be examined:

(1) Although the Court has a discretion to order scientific tests under section 13 of the Parent and Child Ordinance, it is guided by principles set out in Zhao Ying v Chow Lai Ching (supra);

(2) The prior authorization by the Court based on these principles would provide an opportunity for the conflicting interests to be assessed and balanced;

(3) The purpose of the tests is confined solely to showing whether a party to the proceedings is or is not the father or mother of that person. Thus there is no power to order a test if parentage is not in issue;

(4) The power under this section is only to be exercised against persons who are parties to the proceedings and who can enjoy the rights and privileges of being a party to the proceedings, including the right to be heard on the matter and to object to the court giving a direction for the use of scientific tests;

(5) Even if the power were exercised, such scientific tests cannot be conducted without the party’s consent;

(6) The effect of withholding consent is that the Court may draw necessary inferences.

64.  The technique of DNA profiling can establish a particular man’s paternity with virtual complete certainty using various bodily samples from the man, mother and the child.  It is difficult to see how it could be argued that a reasonable balance has not been struck between the societal benefits of the restrictions and the inroads into the constitutionally protected right.

Conclusion

65.  I have carefully considered the submissions of the parties on the exercise of my discretion in this matter. Having regard to the broad considerations I have identified, and balancing the factors that have been identified to me for my consideration, and placing on those factors the weight that they deserve, I have come to the firm conclusion that I ought to give a direction under section 13(1) of the Parent and Child Ordinance, that scientific tests be conducted to determine the parentage of the Child.

66.  In the present case, there was no dispute that the Respondent had a sexual relationship with the Mother (at the very least). He was capable of having sex and he did have sex with the Mother around the time of the Child’s conception. In other words, the undisputed evidence demonstrates clearly that there is a possibility that the Respondent is the father of the Child.

67.  A child’s welfare generally demands that he or she knows the truth about his or her parentage. The interest of justice is best served by the ascertainment of the truth. The court should be furnished with the best available scientific evidence, particularly if that evidence proves or disproves paternity with certainty or near certainty. In general, DNA testing is in the child’s best interests where doubts as to paternity are in the public domain. In fact, such tests are the best defence tools against the opportunistic claims which the Respondent most fears. In the light of the undisputed evidence, the Child’s interests overrode any competing interests of the Respondent.

68.  By reason of all the aforesaid matters, the Court makes the following Orders:

(1) A direction that scientific tests be used to show whether the Respondent is or not the father of the Child under section 13 of the Parent and Child Ordinance (Cap.429);

(2) Such direction shall be in the form of Form 1 under Sch.1 of the Blood Tests (Evidence of Paternity) Regulations 1971;

(3) Liberty to apply;

(4) Costs of this application be paid by the Respondent to the Applicant forthwith, to be taxed if not agreed.