WSJ (MINOR), BY HIS MOTHER AND NEXT FRIEND HC v. WZC AND ANOTHER

CACV 10/2016

[2019] HKCA 89

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 10 OF 2016

(ON APPEAL FROM FCMP NO. 176 OF 2015)

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J U D G M E N T

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Hon Cheung and Chu JJA (giving the Judgment of the Court) :

1.  This is the applicant’s appeal against the order of Deputy District Judge Grace Chan, as Her Honour Judge Chan then was, (‘the Judge’) made on 21 September 2015 dismissing his application for a declaration under section 6(1) of the Parent and Child Ordinance, Cap. 429 (‘the PCO’) that the 1^st respondent is in law his father on the ground that the jurisdiction requirement under section 6(2)(c) of the PCO was not met.

2.  The only issue in this appeal is what constitutes ‘substantial connection’ for the purpose of section 6(2)(c) of the PCO, whether it entails the same requirement as that adopted in cases decided in matrimonial proceedings.   

The relevant facts   

3.  The applicant is a minor born in Hong Kong on 29 April 2010.  He has the right of abode and is a permanent resident of Hong Kong.

4.  The application before the Judge was not opposed by the respondents.  The Secretary for Justice (‘the Secretary’) was not joined as a party in the proceedings below.  Between the applicant, his mother and next friend (‘HS’), and the respondents, it is common ground that the applicant was born ex-nuptial of HS and the 1^st respondent, and the 1^st respondent is the biological father of the applicant.

5.  The application was occasioned by an incorrect entry in the applicant’s birth certificate, namely, the 2^nd respondent was entered as his father.  The circumstances leading to the application can be briefly stated as below. 

6.  Both HC and the 1^st respondent are Chinese nationals living in Wuhan city in mainland China.  They are not permanent residents of Hong Kong, and have not lived in Hong Kong.  The 2^nd respondent is the younger brother of the 1^st respondent.  Like the 1^st respondent, he was born and lives in Wuhan.  He is not a Hong Kong permanent resident and has never lived in Hong Kong. 

7.  HC and the 1^st respondent began an intimate relationship in late 2008.  HC was then single while the 1^st respondent was married.  In September 2009, HC discovered she was pregnant.  Considering their personal circumstances and the childbirth policy in the Mainland, the 1^st respondent arranged for HC to give birth in Hong Kong.  He had accompanied HC to Hong Kong for pre-natal check-ups.   

8.  On 29 April 2010, HC gave birth to the applicant at the Hong Kong Sanatorium and Hospital.  On that occasion, the 1^st respondent did not accompany HC to Hong Kong due to work commitment.  Instead, he arranged for the 2^nd respondent to accompany HC to Hong Kong.  He visited HC at the hospital after the applicant was born.  It is common ground between the applicant and the respondents that the name of the applicant was given by the 1^st respondent. 

9.  On 3 May 2010, HC registered the birth of the applicant at the Births and Deaths Registry and obtained a birth certificate for him.  

10.  According to the 2^nd respondent, he paid a woman he met at the hospital to help with the documentation and procedure for obtaining the applicant’s birth certificate.  He gave her HC’s and his identity and travel documents.  The woman filled in the form, and gave it to him to sign.  The woman later took HC and the 2^nd respondent to the Births and Deaths Registry to complete the procedure.  The applicant’s birth certificate was kept by the 2^nd respondent.

11.  On 4 May 2010, HC and the 2^nd respondent returned to Wuhan with the applicant. 

12.  HC and the 1^st respondent later broke up.  HC married another person in 2012.

13.  Since returning to Wuhan, the applicant has been living with and cared for by the 1^st respondent and his family.  

14.  Between 4 May 2010 and 13 August 2015, when the application was made to the Family Court, the applicant had been to Hong Kong on ten occasions.  They were all short trips; a few were day or overnight trips, and the longest stay was for five days.  The visits were mainly for the applicant to receive vaccinations and medical check-ups.  

15.  According to the 2^nd respondent, after returning to Wuhan he soon discovered that his name was incorrectly entered in the applicant’s birth certificate as the name of the applicant’s father, but he dared not tell the 1^st respondent.  

16.  In October 2014 when applying for a visa for the applicant to visit the USA, the 1^st respondent discovered the mistake in the applicant’s birth certificate.

17.  Under section 27(1)(c) of the Births and Deaths Registration Ordinance, Cap. 174, subject to the requirements set out therein, an error of fact or substance in the Births Register may be corrected by entry in the margin, but without any alteration of the original entry.  In May 2015, HC and the 1^st respondent jointly applied the Registration of Persons Office to correct the entry of the father’s name in the applicant’s birth certificate.  Upon being informed by the Registration of Persons Office that the correction would take the form of crossing out the 2^nd respondent’s name and inserting the 1^st respondent’s name, HC and the 1^st respondent considered this was not a satisfactory solution as the presence of the 2^nd respondent’s name could cause problems and embarrassment in future.        

Proceedings in the Family Court

18.  On 13 August 2015, the applicant, acting by HC, commenced proceedings in the Family Court by way of originating summons to apply for a declaration under section 6(1) of the PCO that the 1^st respondent is in law his father.

19.  The application was supported by an affirmation of HC and also an affirmation made by the 2^nd respondent. They dealt with the background facts of the application.  A paternity test report dated 30 June 2015 prepared by DNA Laboratory Limited was exhibited to the applicant’s affirmation.  The report showed that the results of the DNA test conducted on the applicant and the 1^st respondent produced a probability of paternity of 99.99%.     

The Judge’s decision

20.  The case came before the Judge for a call-over hearing on 21 September 2015.  The applicant’s counsel submitted that the applicant had a substantial connection with Hong Kong by reason of the fact that he was born in Hong Kong, has right of abode and permanent resident status in Hong Kong.  He further argued that the body of cases dealing with the requirements of substantial connection have no application because they are related to divorce proceedings whereas applications under the PCO relate to parentage.  It was said that in parentage cases, as in the present case, the primary consideration should be the welfare of the child.

21.  The Judge did not accept the submission, and dismissed the application on the basis that, on the evidence, the applicant had failed to establish his substantial connection with Hong Kong.

22.  As summarised in her decision on leave to appeal (at [6]), the Judge’s reasons for the decision are that :

(1)   There is no dispute that the applicant has never lived or stayed in Hong Kong since his birth. 

(2)   It has been held that in order to establish ‘connection’, there must be physical presence in Hong Kong and not of a transitory nature : ZC v. CN [2014] 5 HKLRD 43 at paragraph 9.4.

(3)   Although most of the cases on ‘substantial connection’ were decided in the context of divorce jurisdiction, there is no basis for the Court to adopt a less stringent approach in parentage applications such that an applicant is not required to be physically present in Hong Kong for any period of time.

23.  The applicant applied to the Judge for leave to appeal against her decision to the Court of Appeal.  By her decision dated 12 January 2016, the Judge granted leave to appeal on the sole ground of : ‘whether in determining if an applicant has a substantial connection with Hong Kong for the purpose of the Ordinance, the criteria and/or standard for satisfying the requirement of “substantial” is the same as that in the divorce cases’.  The Judge, although not persuaded of the merits of the appeal, was prepared to give leave to appeal having regard to the fact that there is currently no appellate decision on what constitutes ‘substantial connection’ for the purpose of section 6(2)(c) of the PCO.  

The appeal

24.  The appeal first came before this Court (Cheung and Kwan JJA and Tong J) on 29 June 2016.  The applicant was legally represented while the 1^st and 2^nd respondents, who were unrepresented, were absent.  The Court was of the view that the Secretary should be joined in the proceedings, and the appeal was adjourned so that the applicant could serve the papers on the Secretary.  Directions for the filing of further evidence by the applicant and by the Secretary were also given. 

25.  After considering the papers, the Secretary decided to intervene in the appeal pursuant to section 7(2)(a) of the PCO. 

26.  Pursuant to further directions of the Court made on 24 February, 31 July and 9 November 2017, the Secretary filed an affirmation making observations on the factual circumstances of the case as well as the paternity test report exhibited to HC’s affirmation filed in the Family Court.  The applicant had also filed further affirmation and affirmations in reply made by HC and the 1^st and 2^nd respondents. 

27.  The appeal was restored for hearing before this Court on 25 October 2018.  The 2^nd respondent did not attend the hearing.  The Secretary appeared as intervener. 

The applicant’s arguments

28.  The thrust of the submission of Mr Chow for the applicant is that :

(1)   The Court should adopt a more relaxed approach when exercising jurisdiction over children, and should exercise the jurisdiction in the best interest of the child concerned in so far as the child has connection with Hong Kong.

(2)   The Hong Kong Court is the only forum that could make the parentage declaration sought.  If the Court adopts a restrictive interpretation of ‘substantial connection’ in section 6(2)(c), the applicant will be left with no redress with regard to the error in his birth certificate.

(3)   The line of authorities in divorce cases which establish that temporary or transient presence in the jurisdiction is insufficient to establish ‘substantial connection’ should not apply to an application under section 6(1) of the PCO. The Court should adopt a lower threshold.

(4)   In the present case, by reason of his being born in Hong Kong, his birth being registered in Hong Kong and his immigration status i.e. a permanent resident of Hong Kong, the applicant has met the requirement for establishing substantial connection such that the Hong Kong Court has jurisdiction to grant the declaration sought. 

The intervener’s arguments

29.  The Intervener adopts the reasoning of the Judge and contends that the appeal should be dismissed.  The principal submission of Mr Ng is that the criteria and standard for establishing ‘substantial connection’ in divorce cases apply to section 6(2)(c), and that in construing the meaning of ‘substantial connection’ in section 6(2)(c), the welfare or best interest of the applicant as the first and paramount consideration is irrelevant and should not be taken into account. 

30.  Specifically, it is argued that :

(1)   The issue in the appeal is an issue of statutory interpretation.  The Court may refer to ordinances in pari material including the Matrimonial Causes Ordinance, Cap. 179 (‘MCO’) and Matrimonial Proceedings and Property Ordinance, Cap. 192 (‘MPPO’). 

(2)   When the PCO was enacted in 1993, there was no debate on the term ‘substantial connection’ and it was simply repeated in section 6(2)(c) without any alteration to its meaning.  In light of the decisions on the meaning of the term in the MCO and MPPO, it is to be presumed that the legislature intends the term to have the same meaning as that already given by a court of competent jurisdiction.

(3)   An applicant for a parentage declaration under section 6(1) of the PCO can be a minor or an adult.  The jurisdiction requirements for an adult and a minor applicant should be the same.  It would lead to absurdity if the Court were to take account of the welfare or best interest of a minor applicant and to lower the jurisdiction threshold for him.  If an ordinance is capable of two interpretations, one of which would lead to an absurdity while the other would not, the Court would adopt the latter to avoid absurdity.

(4)   The legislative intent of section 6 is not to provide remedies or facilitate correction of errors made when providing information to the Registrar of Births and Deaths.  The jurisdiction requirements are to prevent abuse and to ensure Hong Kong will not become a fly-in fly-out jurisdiction for seeking parentage declarations.  In the present case, the correction of the error in the applicant’s birth certificate is only ancillary to the parentage application.  Further, the rectification can also be achieved by following the mechanism under section 27 of the Births and Deaths Registration Ordinance.  

(5)   On the facts of this case, adopting the threshold established in divorce cases, the applicant cannot establish substantial connection with Hong Kong and his application must fail.  

Section 6(2) of the PCO

31.  Under section 6(1) of the PCO, any person may apply to the Court for a declaration that a person named in the application is in law his parent.  Section 6(3) further provides that ‘where the truth of the proposition to be declared is proved to the satisfaction of the court, the court shall make that declaration unless to do so would manifestly be contrary to public policy.’

32.  Section 6(2) provides that the Court shall only have jurisdiction to entertain an application under section 6 if, at the date of the application, the applicant (a) is domiciled in Hong Kong; (b) has been habitually resident in Hong Kong throughout the period of one year ending with that date; or (c) has a substantial connection with Hong Kong.

33.  Mr Chow accepts that the applicant is unable to establish domicile under subsection (a) or habitual residence under subsection (b).  He is relying on substantial connection with Hong Kong under subsection (c) to establish jurisdiction.  Mr Chow further accepts that if the test for ‘substantial connection’ under subsection (c) is the same as that adopted for matrimonial proceedings, then the applicant would not be able to meet the requirements.

34.  The issue in this appeal is therefore a narrow one : whether the body of cases on ‘substantial connection’ in matrimonial cases should apply to section 6(2)(c) of the PCO.

Our view

35.  Apart from the PCO, there are other family legislations with similar jurisdictional requirements such as the MCO and the MPPO, both of which were introduced as part of the family law reform in the 1970’s. 

36.  Under section 3 of the MCO, in respect of proceedings for divorce, the jurisdictional requirements are similarly stated to be domiciled in Hong Kong, habitual residence in Hong Kong or substantial connection with Hong Kong.  Section 29AE of the MPPO also sets out three similar jurisdictional alternative requirements for the granting of financial relief.

37.  In ZC v CN, supra, this Court reviewed previous cases decided under the MCO on the meaning of substantial connection.  Such cases include the first Hong Kong decision which interpreted this phrase, namely, Jean Michel Savournin v Lau Yat Fung [1971] HKLR 180.  We held in ZC that :

‘ 9.4 Whether a person has a substantial connection with Hong Kong is clearly a question of fact. No definition for this term will be succinct or comprehensive enough. What one may do is to look at the surrounding factors to see whether that person is substantially connected with Hong Kong at the time of the petition. As a starting point, one begins to see if that person has connection here and then decide whether that connection is a substantial one, see S v S [2006] 3 HKLRD 751, [15]. In terms of connection, there must be physical presence in Hong Kong, this must be the ground rock of invoking the divorce jurisdiction. But because of the requirement of “substantial”, the presence cannot be of a transitory nature otherwise this will encourage “fly in” and “fly out” divorces, a theme that the Court has consistently emphasised, see, for example, Griggs (née Sharp) v Griggs [1971] HKLR 299, Ta Tran Thi Thanh v Ta Van Hung [1981] HKDCLR 37 and more recently S v S, B v A [2008] 1 HKLRD 43.’

38.  We noted in ZC the case of CMU v WPM (Part IIA Application) [2012] HKFLR 245 which applied the same interpretation of the phrase ‘substantial connection’ under the MPPO.

39.  In Medical Council of Hong Kong v Chow Siu Shek (2000) 3 HKCFAR 144, Bokhary PJ held at 156B that :

‘ It is well-established that the context in which a statute is to be interpreted includes other statutes in pari materia ie other statutes dealing with comparable matters.’

40.  Mr Ng referred us to the judgment of Viscount Buckmaster in Barras v Aberdeen Steam Trawling and Fishing Co [1933] AC 402, at 411 that :

‘ It has long been a well established principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context, must be construed so that the word or phrase is interpreted according to the meaning that has previously been assigned to it.’

41.  It is of note that this principle is not strictly a rule as such, as Lord Scarman explained in R v Chard [1984] AC 279 at 294 :

‘ I respectfully agree with my noble and learned friend that it would be wrong to extract from the speeches of their Lordships in Barras v. Aberdeen Steam Trawling and Fishing Co. Ltd. [1933] A.C. 402 an inflexible rule of construction to the effect that where once certain words in an Act of Parliament have received a judicial construction in one of the superior courts and the legislature has repeated them without alteration in a subsequent statute, the legislature must be taken to have used them according to the meaning which a court of competent jurisdiction has given to them. Viscount Buckmaster (p. 412) clearly thought that such a rule existed and that it was salutary and necessary: but others of their Lordships took a different view, notably Lord Blanesburgh (p. 414) and Lord Macmillan (pp. 446-447). Lord Macmillan–for, as I respectfully think, compelling reasons–treated the rule not “as a canon of construction of absolute obligation” but as a presumption in circumstances where the judicial interpretation was well settled and well recognised: and even then his Lordship thought the rule must yield to the fundamental rule that in construing statutes the grammatical and ordinary sense of the words is to be adhered to, unless it leads to some absurdity, repugnance, or inconsistency. This view accords with modern principles of statutory interpretation and should, in my opinion, be preferred to that adopted by Viscount Buckmaster.’

42.  The PCO was enacted in 1993.  There was no legislative debate on the term ‘substantial connection’ in the legislative process, see Official Record of Proceedings, Hansard, 24 June 1992 and 10 March 1993 (‘the Legislative Council Brief dated 3 June 1992’).  In the present case there is really nothing in counsel’s submission that can challenge the application of the presumption that the same interpretation which the Courts have placed on ‘substantial connection’ in other family legislations should be adopted in interpreting a similar phrase in the PCO.  There is also no contrary argument that the construction which the Courts have placed on the phrase ‘substantial connection’ will lead to absurdity, repugnance or inconsistency. 

43.  The only substantial point that has been put forward by the applicant is that it is in the best interest of the child for this Court to accept jurisdiction.  We are unable to accept this submission.  This is tantamount to putting a gloss on the plain words of ‘substantial connection’.  In our view, there should be no distinction drawn between an adult and a child on the statutory interpretation of ‘substantial connection’.  Mr Chow referred to QMY v. GSS (2017) 20 HKCFAR 303 in which the Court of Final Appeal held that the Family Court had jurisdiction to order maintenance for an ex- nuptial child living with her mother in the Mainland against the child’s father who was living in Hong Kong but who had been properly served in Hong Kong with the proceedings.  The application was made under section 10(2) of the Guardianship of Minors Ordinance (‘GMO’), Cap. 13.  Unlike the PCO, MCO and MPPO, there is no jurisdictional requirement in the GMO.  This case does not assist the applicant once its context is properly understood.  The Court of Final Appeal did not decide the case on the basis that the child’s best interest as the first and paramount consideration should be adopted in statutory interpretation, let alone across the board for all statutes.

44.  We agree with Mr Ng that the legislative intent of section 6 of the PCO is to introduce a new and separate procedure to enable a person to apply to the Court for a declaration as to his parentage when in the past a finding of paternity could only be made incidental to other proceedings such as custody or maintenance.  Section 6 is not for the purpose of providing a mechanism to rectify mistakes in the registration of birth and death. 

45.  On the face of the present application, what the applicant seeks by way of relief is a declaration of parentage.  It is only ancillary to the declaration of parentage, if successfully obtained, that the Registrar of Births and Deaths can authorize a re- registration of his birth pursuant to section 12B of the Births and Deaths Registration Ordinance.  In fact, there is a separate mechanism under section 27 of that ordinance for the applicant to make corrections to errors in the register of births and deaths.

46.  In this case, the only connecting factors of the applicant to Hong Kong are that he was born here and has a permanent resident status.  He also came to Hong Kong from time to time. On the issue of someone with a resident status here, this Court observed in ZC that :

‘ 9.8 The fact that a party has resident status which allows him or her to live here legally is only a factor to be taken into account. He or she may not be living here on a long term basis and only comes here occasionally. No doubt one has to look at other factors such as the party’s past pattern of life, the frequency of his visit to Hong Kong, the length and purpose of the stay, whether the party is engaged in business or work here, whether the rest of the family is here and whether a home has been established here and whether the children are at school here...’

47.  In QMY, Tang PJ held :

‘ ... it may be, though I do not decide, that in a proper case an infant’s status as a permanent resident may persuade a Hong Kong court to make a guardianship order under s.10.’

48.  The observation by Tang PJ will not assist the applicant because it was not said in the context of discussing the meaning of ‘substantial connection’.  In our view, the applicant’s sporadic visits to Hong Kong do not qualify as establishing a substantial connection with Hong Kong. 

49.  The present case is to be distinguished on the facts from Re WS (Minor) (Jurisdiction: Substantial Connection) [2017] 1 HKLRD 282 where Deputy District Judge Ivan Wong (as His Honour Judge Ivan Wong then was) dealing with a similar application under section 6 of PCO, held that the jurisdictional requirement of substantial connection was satisfied.  The child there was born in Hong Kong and has lived in the Mainland with his parents.   He, however, for nearly one year commuted every day across the border to attend school here in Sheung Shui in the New Territories.  Although Judge Ivan Wong said (at [13]) that the welfare of the child should carry weight, this was in the context of considering whether to adjourn the determination of the application before him pending the determination of this appeal (see [9] and [10]).  Further, the facts of that case can be said to have justified the finding of substantial connection with Hong Kong.

50.  Mr Chow conceded that if the principles on ‘substantial connection’ established in divorce proceedings are applied to his case, the applicant will be unable to establish substantial connection with Hong Kong.  He also did not rely on inherent jurisdiction.

Conclusion

51.  For the reasons set out above, the appeal is dismissed.

52.  We also make an order nisi that there be no order as to costs between the applicant and the 1^st and 2^nd respondents, and that the costs of the intervener be paid by the applicant, to be taxed if not agreed.

Other matter

53.  Applications like the present one are unusual.  Genuine mistakes on the identity of parents are unlikely to be made in registering the birth of children.  Further, declaration of parentage is a serious matter, and can lead to potentially far- reaching consequences.  We would like to repeat that in applications under section 6 of the PCO, the applicant should consider serving the papers on the Secretary to enable her to decide whether she should intervene in the proceedings.  This is because the Secretary is in a better position before the case is heard to ascertain all the relevant information, including whether the application is genuine, so as to ensure that the judicial process is not being abused or used for collateral purposes : see also Re OMH (Parent and Child : Declaration) [2017] 3 HKLRD 323.  In this case, the original evidence including the DNA report filed by the applicant was extremely sketchy.  It was only upon further directions given by the Court that a fuller case was presented.  There are also questions arising from the evidence filed as to when the matters would have come to the knowledge of the parties.  We would urge lawyers to be vigilant and ensure full and frank disclosure of all relevant facts is given by their clients before an application is lodged.