LEUNG LAI FONG v. HO SIN YING

 CACV 3/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 3 OF 2007

(ON APPEAL FROM HCAP No. 8 OF 2004)

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JUDGMENT

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Hon. Yeung JA:

1.  I agree with the judgment of Yuen JA and have nothing else to add.  An order is made in terms of paragraph 53 hereof.

Hon. Yuen JA:

2.  This is the Defendant’s appeal from an order of Mr Justice Andrew Cheung that letters of administration of the estate of the late Dr Tsang Kwong Lik (“the Deceased”) be granted to the Plaintiff, the Deceased’s natural mother. 

The legislation

3.  Under r.21(1) of the Non-Contentious Probate Rules, Cap.10, where a person dies wholly intestate, persons having a beneficial interest in the estate are entitled to a grant of administration in the order of priority set out in that rule.  As the Deceased in the present case died a widower and childless, the order of priority provided for “the father or mother of the deceased” to be granted letters of administration (r.21(1)(iii) NCPR).  It is common ground that the Deceased’s father pre-deceased him.  The grant of administration should therefore be given to “the mother”. 

The parties’ claims

4.  At the hearing before the judge, the issue was whether the Plaintiff or the Defendant should be regarded as the Deceased’s “mother” for the purposes of r.21(1)(iii) NCPR. 

5.  It was not disputed that the Plaintiff was the Deceased’s natural mother. 

6.  The Defendant claimed however that she was the Deceased’s jimu (繼母)/stepmother under Chinese customary law and that the Plaintiff had ceased to be the mother of the Deceased after the Deceased’s father had divorced her and had elevated the Defendant to become his new principal wife in a fuzheng (扶正) ceremony. 

7.  The Defendant’s alternative case was that if she failed in her primary case that she had been elevated to principal wife, then she would still have been the Deceased’s cimu (慈母), that is, a concubine to whom the male partner had given the responsibility of raising a child of his principal wife who was unavailable (for instance through divorce) to raise the child and who had actually raised him.

8.  It would appear from the Judgment (§59) that during final submissions by counsel then instructed for the Defendant, a third alternative claim was suggested - that “both could be considered as mothers of the deceased for the purpose of succession pursuant to the Ordinance”.  However it would appear that this suggestion, made at the eleventh hour of the 7-day trial, was not pursued with rigour.  There was no amendment of the Defence and Counterclaim where the relief sought was for a declaration that the Plaintiff had “ceased” to be the Deceased’s lawful or legal mother (para. 1) and further declarations or orders that the Defendant was “exclusively entitled” to the Deceased’s estate and was entitled to obtain letters of administration to it (paras. 2 and 3). 

9.  A claim in the prayer for relief for an order that the Defendant was entitled to claim under the Inheritance (Provision for Family and Dependants) Ordinance Cap. 481 was abandoned at trial (Judgment §106).

Findings of fact

10.  The judge found that the Plaintiff and the Deceased’s father underwent a divorce in 1958 and soon after that, the Defendant (who was the father’s concubine or tsip 妾) became the father’s principal wife through the process of fuzheng.  She thereby became under Chinese customary law the Deceased’s jimu.

11.  The documentary evidence showed that during the Deceased’s lifetime, he maintained contact with both the Plaintiff and the Defendant, and that he participated in gatherings of both families (that is, the family of his father and the Defendant, as well as that of the Plaintiff and the man she married after the divorce). 

12.  However there remained much bitterness between the two parties and their respective families. 

Judgment

13.  In a judgment which if I may say with respect was clearly analysed and sensitively written, the judge said (§5): 

“In view of the sensitivity of the matter in terms of people’s feelings, emotions and good names, and on the firm footing that the quality of the fact-finding exercise and the consequential legal determination of the issues involved will not be compromised at all, I will be as brief as possible with the background facts and factual disputes and save where it is absolutely necessary, I will refrain from making findings on disputed facts”.  (Emphasis added).  

The witness statements show that the disputed facts included allegations about the extent and quality of the Deceased’s relationship with the Plaintiff and the Defendant respectively.

14.  The judge held that although the Defendant had become the Deceased’s jimu under Chinese customary law, on the true construction of s.4(7) Intestates’ Estates Ordinance Cap. 73 (with which r.21(1)(iii) NCPR should be read consistently) the legislature’s intention was that “mother” meant the natural mother.  The only exception was provided expressly by statute for adoptive parents in s.2(2) and s.2(2A) IEO.  The judge rejected the argument that the Defendant had ‘accrued rights’ under Chinese customary law.

Appeal

15.  Mr Paul Harris SC (who appeared in this court but not below) has not sought to disturb the judge’s findings of fact.  His first ground of appeal was that under Chinese customary law, the Defendant had become the mother of the Deceased to the exclusion of the Plaintiff, so that under the traditional rules of construction of s.4(7) IEO which admitted of only one person as “mother”, it was the Defendant who was the Deceased’s “mother”. 

16.  However in an alternative argument he argued that s.4(7) IEO should now be construed in the light of human rights legislation.  He challenged the judge’s construction of the IEO as having failed to conform with the Hong Kong Bill of Rights in particular Article 19 (protection of the family) and Article 22 (no discrimination on grounds of birth or other status).  Reference was also made to Article 23 of the International Covenant on Civil and Political Rights (which is similar to Art.19 of BOR) and Article 26 of the ICCPR (which is similar to Art.22 of BOR).  The ICCPR is required to be implemented in Hong Kong under Article 39 of the Basic Law.

Amendment of Defence and Counterclaim

17.  It would be noted that no BOR/ICCPR point had been pleaded in the Defence and Counterclaim or taken before the trial judge.  This presented obvious difficulties.  In the part of Mr Harris’ skeleton submissions dealing with “family ties” for the purposes of Article 19 BOR, he acknowledged that “the existence or non-existence of family ties is a question of fact depending on the real existence in practice of close personal ties” (para. 33). 

18.  If the Defendant’s case were to be based on “close personal ties” with the Deceased, the question arose whether the BOR arguments could be advanced on appeal – because that was a fact-sensitive issue which had not been raised at trial and the judge had not made any relevant determinations of fact in that respect (see the cases discussed in Hong Kong Civil Procedure 2008 §59/10/7).   

19.  In light of this, Mr Harris sought leave to amend the Defence and Counterclaim on a limited basis – founded only on the Defendant’s status as the Deceased’s jimu.  Mr Anderson Chow SC leading counsel for the Plaintiff was content with this.  Accordingly we gave leave to amend the Defence and Counterclaim.  The amendment (provided in its final form on 2 October 2007) was as follows:

“28A.	Further or alternatively by reason of the recognition of the Defendant as a jimu as pleaded in paragraphs 7 and 8 hereinbefore the Defendant is a person whose right to inherit property from the estate of the Deceased on the intestacy of the Deceased is protected by Article 19 of the Hong Kong Bill of Rights, by Article 23 of the International Covenant on Civil and Political Rights and by Article 39 of the Basic law and is therefore entitled to be recognized as a mother for the purpose of section 4(7) of the Intestates Estates Ordinance and Rule 21 of the Non-Contentious Probate Rules.
28B.	Further or alternatively the Defendant is a person whose right to inherit property from the estate of the Deceased on the intestacy of the Deceased is protected by Article 22 of the Hong Kong Bill of Rights, by Article 26 of the International Covenant on Civil and Political Rights and by Article 39 of the Basic law in that if the Intestates Estates Ordinance were to be construed so that the Defendant was not permitted to inherit property from the estate of the Deceased on the said intestacy she would be subject to unlawful discrimination on grounds of her status as the jimu of the Deceased as compared with:
(I)	the status of the Plaintiff as biological mother
(ii)	the status of adoptive mothers under Chinese customary law for whom express provision is made by Section 2(2) of the Intestates Estates Ordinance
and is therefore entitled to be recognized as a mother for the purpose of  section 4(7) of the Intestates Estates Ordinance and Rule 21 of the Non-Contentious Probate Rules”.

20.  The additional relief sought was in these terms:

“(3A) Alternatively a declaration that the Defendant is entitled to obtain the grant of Letters of Administration of the Deceased jointly with the Plaintiff being a person with an interest in the estate of the Deceased on the ground that by reasons of Articles 19 and/or 22 of the Bill of Rights Ordinance, Articles 23 and/or 26 of the International Covenant on Civil and Political Rights and Article 39 of the Basic law that she is and/or is entitled to be recognized as a mother of the deceased within the meaning of Rule 21 of the Non-Contentious Probate Rules Cap. 10".

21.  It will be noted that although this claim was for a declaration that the Defendant was entitled to obtain the grant of Letters of Administration jointly with the Plaintiff, the final form of the Amended Defence and Counterclaim retained the claim in para. 2 of the prayer for a declaration that the Defendant was exclusively entitled to the estate of the Deceased.  

Issues

22.  The issues in this appeal are therefore:

(1) Traditional construction

23.  It is clear from s.4 of the IEO that in providing for succession to a person who has died intestate, he is regarded as having only one father and one mother.  It is explicit in s.4(6) that “both parents” mean “the father and mother”.  Section 4(4)(b)(i) should be read consistently with that so that when it refers to “both parents” or “the 2 parents”, those words mean “the father and mother” (and not for instance “two mothers”).  Similarly when s.4(7) refers to “one parent” and “the surviving father or mother”, that means the survivor of those two parents, i.e. the father and mother. 

24.  Therefore the “traditional” construction would (in the circumstances of the present case) require the court to choose between a natural mother and a jimu – to the exclusion of the other.

25.  The prima facie meaning of a person’s “mother” is the woman who gives birth to him.  Where the legislature intended to mean another woman, there are clear provisions to that effect in the IEO.  Thus adoptions are specifically provided for: see s.2(2) and s.2(2A) IEO.  Also, where a man has taken one (or more) concubine(s), there are provisions stipulating that generally all his children (whether begotten by his wife or concubines) are regarded as children of the father, the wife and (all) the concubine(s) for the purpose of the children succeeding to these persons’ estates: paragraph 2 of Schedule 1 of the IEO.  

26.  Save for those provisions and certain specific provisions for succession between concubines and male partners set out in paragraphs 4 and 5 of Schedule 1 of the IEO, there is nothing to indicate that the legislature has intended to apply any other aspects of Chinese customary law to the statutory regime contained in the IEO.  And given those specific provisions, the principle of interpretation best-known by the Latin maxim ‘expressio unius est exclusio alterius’ indicates that the legislature intended that other aspects of Chinese customary law should not apply. 

27.  That the legislature intended that the IEO should be a new statutory regime governing succession is clear from the title: ‘to amend the law relating to the distribution of intestates’ estates”.  This new statutory regime, enacted at the same time as other new statutes to prescribe important aspects of the personal law of Chinese persons in Hong Kong, had long been awaited.  In Leung Sai Lun & Others v Leung May Ling & Others (1999) 2 HKCFAR 94, Ching PJ traced the rationale for the ‘remedial’ legislation as follows (p.102C-F):

“So far as Chinese law and custom were concerned the Strickland Committee was appointed in 1948 to consider and to make recommendations as to how far Chinese law and custom as it existed in 1843 was or still should be applicable to Chinese domiciled here or to other Chinese resorting hereto and to other related matters.  The Report, the Strickland Report on Chinese Law and Custom in Hong Kong was published some four or five years later and caused intensive public debate.  The difficulties continued and in 1969, in relation to a dispute as to the estate of a Chinese man, Mills-Owens J in Re Tse Lai Chiu [1969] HKLR 159 at p.197 was moved to say:

It is a matter which calls for remedial legislation which, happily, I understand is now contemplated, as the only possible solution.

It was not, however, until 1971 that substantial legislation was brought in”.

28.  The new statutory regime was established and designed to affect all persons who die intestate after the commencement date of the Ordinance: see s.12 IEO.  It is clear that its provisions abrogated certain well-established Chinese customary law.  Thus for instance, married daughters were given rights to inherit equal to those of sons.  As such it is clear in my view that the Chinese customary law survived only in those parts of the legislation which contained specific provisions incorporating or amending it.

29.  Accordingly I take the view that it was not necessary to the determination of this case in the Plaintiff’s favour to consider whether the Defendant would have been regarded under Chinese customary law as the Deceased’s “mother” for the purpose of succession to his estate.

30.  In any event the judge found that under Chinese customary law, the fact that a child had acquired a jimu did not terminate his relationship with his natural mother even though she had been divorced by the father (§55, §58).  If the relationship were terminated then it is difficult to see why mourning rites were still prescribed.  Mr Harris relied on a passage in Professor Dicks’ expert report quoting from a part of the Da Qing Luli (大清律例) on Cheng Qiqin Zufumu (稱期親祖父母)(‘Parents and Grandparents for whom [more than] a year of mourning [is required]’) which was translated as “Dimu 嫡母, jimu 繼母, cimu 慈母  and yangmu 養母 are all to be considered as the same as one’s own mother” but with the qualification “excluding from these categories a wife who by remarrying has broken the bond of marital righteousness”.  As I understand Professor Dicks’ report, the exclusion is of those categories (i.e.dimu, jimu, cimu and yangmu) who have remarried.  Such a person’s relationship with the child would be terminated upon her re-marriage and he would not be required to observe mourning rites for her.  Professor Dicks did not suggest that the child’s relationship with his natural mother terminates upon her re-marriage.  On the contrary he accepts that the child is required to observe mourning rites for her.   

31.  It was also argued on behalf of the Defendant that under the original s.2(2) IEO, the definition of “child” specifically included “(b) if [the deceased] is a female, a child of a valid marriage to which her last husband and another female were parties”.  Accordingly it was argued that the Deceased would have been entitled to succeed to the Defendant’s estate as her child had she died.  It was therefore inconsistent and unjust for the Defendant not to be entitled to succeed to the Deceased’s estate as his mother when he died and that could not have been the intention of the legislature.

32.  I would first note that the Law Reform Commission in its Report on Law of Wills, Intestate Succession and Provision for Deceased Persons’ Families and Dependants corroborates the view that that was indeed what the legislature had intended: see §11.6, 11.7.  I will discuss later the possible socio-economic reasons for that. 

33.  It should also be noted that s.2(2)(b) IEO was repealed in 1995 and replaced by provisions which did not provide specifically for a child of a first wife to succeed to his father’s tinfong wife.  In Yam Ying Hung v Secretary for Justice HCMP 2988/2003, unrep. however, Yam J held (in a judgment which contains a caveat as to its applicability to other cases) that notwithstanding the repeal of s.2(2)(b) IEO, the result was still the same.  As neither party has addressed us in detail on the judgment in the Yam Ying Hung case, it is not necessary for us to consider the reasons given for that decision.

34.  Assuming that the new provisions were equivalent to the original s.2(2)(b) IEO, the fact that a child could succeed to his jimu’s estate did not mean that the converse position should apply.  The judge took into account the principle that generally under Chinese customary law, succession was never ‘upwards’.  Referring to Dr Vermier Chiu’s book, The Chinese Law of Succession (p.3) the judge held that “direct ascendants, such as fathers or grandfathers, were not entitled to succeed to their sons’ or grandsons’ estates”  (§90) and concluded that “under Chinese customary law, a principal wife, a tinfong wife or a concubine would not succeed to the estate of a deceased child in the family.  To do so would be upward succession” (§91). 

35.  Mr Harris argued that the passage from Dr Chiu’s book was “neutral” and that Chapter 2 of Jamieson’s work Chinese Family and Commercial Law (p.30) made it clear that in the rare situation where there was no qualified male successor, in Mr Harris’ submission “female succession, including in the absence of descendants even upward female succession, was regarded as preferable to the forfeiting of the estate to the State for want of a successor”.

36.  I do not agree with Mr Harris on either score.  I do not consider Dr Chiu’s passage to be “neutral”.  The passage is clear that a jimu would not be entitled to succeed before, or even after, the enactment of the Civil Code (which Code did not form part of Chinese customary law in Hong Kong) (p.3):

“Parents and Grandparents.  Under the clan law, succession was downwards, from father to son and not upwards, from son to father or collaterally, from brother to brother.  So formerly, direct ascendants, such as fathers or grandfathers, were not entitled to succeed to their sons’ or grandsons’ estates upon their death.  However, under the modern law of succession [i.e. the Civil Code], fathers and mothers are entitled to succeed to the estates of their sons and daughters if the deceased sons or daughters have no direct descendants, and grandfathers and grandmothers have the right to succeed to the properties of their grandsons and granddaughters if the deceased grandsons or granddaughters have no direct descendants, brothers and sisters.  But fathers’ concubines, tin fong (fathers’ second or subsequent wives) mothers, because of the lack of blood relationships, are not entitled to succeed to the estates of the first wife’s sons upon their death.  This also applies to stepfathers and stepmothers who, because of the lack of blood relationships, are not entitled to succeed to the estates of their stepsons or stepdaughters upon their deaths”. 

In other words, upwards succession was never the law before the Civil Code, and even after the Code was promulgated, only certain classes of ascendants would be entitled to succeed (but those did not include a tinfong mother or jimu).  

37.  Nor can I agree with Mr Harris that Jamieson’s work suggests that there can be upward female succession under Chinese customary law.  The passage which Mr Harris relied on was as follows (p.30):

“(3) - If the male line becomes extinct and no successor has been, nor can be appointed, the daughters, or persons claiming in their right, are next entitled to divide the property.  In default of daughters the nearest females of the kindred are entitled, though in what precise order is not stated, presumably the analogy of male succession would be followed, but the forfeiture to the State (which is the next and final step in the process) is perhaps never insisted upon as against relations of any kind whether by consanguinity or affinity, ...”.

38.  I do not read that passage as entitling “upward female succession” as Mr Harris suggests.  The reference to the analogy of male succession for the order of “nearest females of the kindred” is an indication that in default of daughters, the next in line would be nieces, i.e. daughters of brothers, in the same way as where in default of sons, the next in line would be nephews, i.e. sons of brothers.  In any event, as the Deceased had younger brothers who are still alive, he may have nephews so that even assuming Chinese customary law applied strictly, there was no ground for upward female succession by a jimu. 

39.  I have earlier referred to the Defendant’s argument that it was so aberrant for legislation to provide that a child could succeed to his jimu’s estate but not the other way round that the legislature could not have intended it to be so and the position must have been ‘overlooked’.  I think the court should be very slow to arrive at that conclusion with legislation of this nature which had been researched for a considerable length of time against a background of socio-economic history affecting delicate relationships and sensitivities.  There may have been many reasons why children of a common father could succeed to the estates of the father’s female partners (whether wife or concubine) and not vice versa.  Historically when wealth was only created and retained by men, it is not unreasonable to assume that the bulk of the property the women had at death would have come from the male partner (i.e. the children’s father).  On the other hand, even assuming that there could be upwards female succession, there may be good reason for a person’s ousted natural mother to benefit from his death as after ousting, the natural mother would normally have had no financial support from his father.

40.  Be that as it may, it is not necessary to my conclusion on the traditional construction to consider these matters.  In my view the IEO (and thus the NCPR) was a new statutory regime which did not permit the importation of Chinese customary law concepts otherwise than where expressly provided.  There is nothing which would lead to the conclusion that the Defendant as jimu was entitled to the grant of Letters of Administration to the exclusion of the Plaintiff who was the Deceased’s natural mother.  As such it is not necessary for me to consider the Respondent’s Notice. 

(2) ‘Updated’ construction

41.  I then come to the submission that Articles 19 and/or 23 of BOR gives a jimu (by reason of that status alone) rights of inheritance.

42.  First of all there is the issue whether the BOR applies at all to an inter-citizen dispute.  It was held by this court (Sir Derek Cons V-P, Clough and Macdougall JJA in Tam Hing Yee v Wu Tai Wai [1992] 1 HKLRD 185) that by virtue of s.7 of the Hong Kong Bill of Rights Ordinance Cap. 383 (which provides that the Ordinance binds only the Government and all public authorities), the Ordinance had no application to a dispute between private individuals.  It was however also held by this court (Woo V-P, Cheung JA and Burrell J) in Solicitor (302/2002) v Law Society of Hong Kong [2006] 2 HKC 40, §107 that even if it was precluded by Tam Hing Yee to apply the HKBORO to inter-citizen litigation, the decision of this court (Nazareth V-P, Liu and Mayo JJA) in Cheung Ng Sheong Steven v Eastweek Publishers Ltd (1995) 5 HKPLR 428 “opened a back door” for the court to interpret the law in accordance with the ICCPR (with provisions similar to the BOR).     

43.  It is not necessary for us to consider this issue in the present appeal because in my view even if we applied the articles in the BOR/ICCPR, they do not change the result.

44.  The part of Article 19 (identical to Article 23 ICCPR and similar to Article 8 of the European Convention on Human Rights) on which Mr Harris relies is as follows:

“(1)  The family is the natural and fundamental group unit of society and is entitled to protection by society and the State”.

45.  The parts of Article 22 (similar to Article 26 ICCPR and Article 14 of the ECHR) on which Mr Harris relies are as follows:

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.  In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as ... birth or other status”. 

46.  Mr Harris has referred us to a number of cases in the European Court of Human Rights on the articles in the ECHR.  The closest was  Marckx v Belgium (1979) 2 EHRR 330 which was a case challenging Belgian laws which precluded a woman from giving or bequeathing all her property to her illegitimate child.  If the woman recognized the child as her illegitimate child and she had other relatives, she would only be allowed to give the child 3/4 of her property.  Ironically if she did not recognize the child and treated her as a stranger, then she would be free to give her all her property.

47.  The European Court of Human Rights held (§51-52) that as a matter of applicability of the article, the right of succession between children and parents comes within the sphere of Article 8 ECHR (Article 19 BOR) as “matters of intestate succession – and of disposition – between near relatives prove to be intimately connected with family life” (Emphasis added). 

48.  However it is important to note that the court held (§53):

“Nevertheless, it is not a requirement of Article 8 [Article 19 BOR] that a child should be entitled to some share in the estates of his parents or even of other near relatives: in the matter of patrimonial rights also, Article 8 in principle leaves to the Contracting States the choice of the means calculated to allow everyone to lead a normal family life (see para. 31 above [which focuses on the natural tie between mother and child]  and such an entitlement is not indispensable in the pursuit of a normal family life.  In consequence, the restriction which the Belgian Civil Code places on [the illegitimate daughter’s] inheritance rights on intestacy are not of themselves in conflict with the Convention, that is, if they are considered independently of the reason underlying them”. (Emphasis added).

49.  The court then held that the reason underlying the statutory restrictions (i.e. illegitimacy) constituted discrimination, and for that reason constituted a violation of the Convention.  Illegitimacy was also the focal point of the decisions in Inze v Austria (1987) 10 EHRR 394,  Vermiere v Belgium (1991) 15 EHRR 489and Mazurek v France Application No. 34406/97, 1 Feb 2000, unrep.

50.  It is therefore clear that the existence of a familial relationship by itself does not entitle a person to a right of intestate succession, and a contracting state has a choice how to regulate that aspect of family life (such as prescribing priorities in succession) so long as the underlying rationale does not violate other aspects of the Convention.

51.  This leads me to the argument based on Article 22.  I can see no ground for the submission that the class of jimu has been discriminated against in favour of the class of natural mother.  The first issue is whether they are “like cases”.  If they are, they should be treated alike.  Unlike cases should not be treated alike (Secretary for Justice v Yau Yuk Lung Zigo [2007] 3 HKC 545, §19). 

52.  In my view a natural mother and a jimu are not “like cases”.  Obviously there is a fundamental difference between the two: the ties of birth between a person and his natural mother are obvious; by comparison, a jimu is someone who a person’s father has chosen to marry.  They are not comparable situations.  Nor is a jimu like an adoptive mother.  The latter status derives from a conscious acceptance of a legal status vis-a-vis a child by which the child’s ties with his natural parents are severed, whereas the status of a jimu is a consequence of a male partner’s decision to fuzheng a concubine.  Faced with these different classes, it is for the legislature to establish a set of rules governing intestate succession.  This discussion is also informed by matters set out in the discussion regarding the traditional construction which I will not repeat (§39).  Indeed even in the situation where a man donated sperm for a lesbian couple and was denied access to the child, the Commission held that in view of the fundamental differences between him and the father of a legitimate child, the two situations could not be compared and no question of discrimination arose (G v Netherlands (1993) 16 EHHR CD 38).

Order

53.  For the above reasons I do not accept either the ‘traditional’ or  ‘updated’ construction suggested by the Defendant and I would uphold the judge’s order.  Presumably the Defendant will be advised on her rights (if any) under the Inheritance (Provision for Family and Dependants) Ordinance Cap. 481.  I would dismiss the appeal with an order nisi for costs to the Plaintiff/Respondent.  The parties’ own costs are to be taxed in accordance with Legal Aid Regulations.  It only remains for me to thank counsel for their assistance.

Hon Lam J:

54.  I agree with the judgment of Yuen JA.

55.  The expressions “parent” and “child” are used in many pieces of legislation in Hong Kong. They are intended to refer to readily identifiable persons. I can just give some examples apart from the IEO: Parent and Child Ordinance, Cap.429; Inheritance (Provision for Family and Dependants) Ordinance, Cap.481; Legitimacy Ordinance, Cap.184. If the contentions of the Defendant in the present case were upheld, that would bring in a lot of uncertainties in the operation of these statutes. Be it disputes on Chinese customary law as regards the status of various women associated with one’s father or disputes on family ties under the human right concepts argued by Mr Harris, they would not be conducive to the harmony of a family.

56.  Very often, family disputes open many emotional wounds in the past which are best kept at bay.  In my view, the law can serve the community better if one can say with reasonable certainty which persons are recognized in law as “parents” or “children”. In this connection, I respectfully commend the approach set out in paragraph 25 of the judgment of Yuen JA.

57.  I therefore agree that the appeal be dismissed with costs.