王志遠 (WANG CHI YUEN) (“未成年人”)， 由其母親及訴訟代理人 曹海洋 (CAO HAIYANG) 代表 v. WONG PUI WAH AND ANOTHER

DCMP 1645/2018

[2019] HKDC 1308

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1645 OF 2018

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REASONS FOR DECISION

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INTRODUCTION

1.  This is an application by a 12 year old minor (“the Minor”), who is suing by his mother and next friend Madam Cao (“Madam Cao”).  By an amended originating summons filed on 3 August 2018, the Minor seeks a declaration from this court that the 1^st respondent in law is his father pursuant to section 6(1)(a) of the Parent and Child Ordinance, Cap 429 (“the Ordinance”).  In short, the Minor asks the court to give an order to amend his birth certificate in order to substitute the name of the 1^st respondent in place of the 2^nd respondent. 

2.  At the hearing on 19 September 2019, I dismissed the application with costs against the applicant.  I said I would provide the reasons for my decision in due course.  Here are the reasons.

BACKGROUND

3.  It is not disputed that the Minor was born in a private hospital in June 2007 in Hong Kong.  Hence, he enjoys a permanent resident status by virtue of his birth in the jurisdiction. However, save for some irregular visits during weekends and long holidays, he has never come to live or study in Hong Kong.  Madam Cao claims that the Minor was born out of the wedlock between her and the 1^st respondent who is his biological father.  Madam Cao in her affirmation explained that she and the 1^st respondent were lovers and had lived together from 2004 to 2007. In 2007 when she told the 1^st respondent that she was pregnant, the 1^st respondent told her that he was not psychologically prepared to look after or raise any children at the time.  Therefore, Madam Cao decided to give birth to the child and become a single mother instead. At the same time, she also decided to separate from the 1^st respondent.  In June 2007, she gave birth to the Minor.

4.  Both the 1^st respondent and the 2^nd respondent are Hong Kong permanent residents.  Madam Cao on the other hand is a Mainland resident who does not enjoy right of abode in Hong Kong.

5.  Madam Cao explains that the 2^nd respondent was her friend in Hong Kong whom she had known for over 5 years at the time when the Minor was born.  After obtaining his consent, she put the name of the 2^nd respondent as the father of the Minor on the birth certificate as she thought that the name of the father must be filled in.  Madam Cao claims that both she and the 2^nd respondent considered that was an appropriate and lawful way of dealing with the matter at the time.

6.  In 2015, having learned from a third party that Madam Cao had given birth to his child, the 1^st respondent contacted Madam Cao and re-established relationship with the Minor.  It is claimed that the 1^st respondent starts to treat the Minor as his own son and pays for his living expenses. 

7.  Madam Cao also claims that since 2015, the Minor has stayed in Hong Kong and lived with the 1^st respondent on a regular basis. They have since fostered a close father and son relationship.

8.  Both Madam Cao and the 1^st respondent claim that since the Minor is still studying in a school in Shenzhen, he spends most of the school days living there with Madam Cao.  However, Madam Cao claims that during weekends and long holidays, the Minor would be spending time with the 1^st respondent and living with them in Hong Kong together.  The plan is that the Minor will come to study in Hong Kong and would spend more time here.  He would only return to Shenzhen to visit Madam Cao during the holidays.  According to both Madam Cao and the 1^st respondent, they are planning to get married, and after they get married, they will then live in Hong Kong with the Minor together as a family.  According to them, this is the reason behind why they want to correct the mistake made on the Minor’s birth certificate.

9.  In so far as the relationship between the Minor and the 1^st respondent is concerned, there is little doubt that the Minor is the biological son of the 1^st respondent.  This has been unequivocally proven by a DNA testing report by a reputable gene diagnostic technology company with samples taken by a registered medical petitioner in Hong Kong.  In the report dated 28 November 2017, the chief scientist of the technology company concluded that the probability of the paternity between the 1^st respondent and the Minor is at 99.9876%.  Put in another way, the genotype of the 1^st respondent is consistent with the paternity and he would be 8,060 times more likely to be the father of the Minor than a randomly selected man of similar racial/ethnic origin.  Based on those statistical findings, the chief scientist of the laboratory concluded that the 1^st respondent no doubt is the biological father of the Minor.

Legal principles

10.  The applicant’s amended originated summons is based on section 6 of the Ordinance.  Section 6 provides as follows:-

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

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

(b) he is the legitimate child of his parents; or

(c) he has become, or has not become, a legitimated person.

(2)     A court shall only have jurisdiction to entertain an application under this section 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 1 year ending with that date; or

(c) has a substantial connection with Hong Kong.

(3) Where on an application for a declaration under this section 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.

… ”

11.  According to section 6(1), there is no doubt that the Minor, through Madam Cao, is entitled to make the application to ask the court to declare that the 1^st respondent is in law his father.

12.  However, the law also provides that the court will only have jurisdiction to entertain such an application, if, at the date of the application, the applicant is either domiciled in Hong Kong; or has been habitually resident in Hong Kong throughout the one-year period previously to the application; or has a substantial connection with Hong Kong.

13.  Mr Chan for the applicant rightly accepts that the applicant is unable to establish domicile under sub-section (a) or habitual residence under sub-section (b).  Hence, he is only relying on the “substantial connection with Hong Kong” ground under sub-section (c) in order to establish jurisdiction.

14.  To that end, Mr Chan relies on the case of ZC v CN [2014] 5 HKLRD 43 where it has been held that “in terms of connection, there must be physical presence in Hong Kong” and “because of requirement of ‘substantial’ the presence cannot be of a transitory nature”. 

15.  The case of B v A [2008] 1 HKLRD 43 at 48 was also cited by Mr Chan where it was held that:-

“(a) ‘In deciding whether a party has a substantial connection with Hong Kong, 2 questions should be asked: (a) does the party have a connection with Hong Kong? and (b) was that connection of sufficient substance’;

(b) ‘a connection must be real in the sense, for example, that it has not been engineered for temporary tactical advantage’; and

(c) ‘there is a difference between residing in Hong Kong for a month or two to oversee a short-term project and being posted here together with one’s family for a period of several years’.”

16.  In the applicant’s written submission, Mr Chan also relies heavily on the case of WSJ (minor) by his mother and next friend HC v WZC and another [2016] HKCU 211 where Deputy Judge Grace Chan (as Her Honour Judge Chan then was) laid out the following principles at §19 of the decision:-

“(1) In deciding whether a party has a substantial connection with Hong Kong, 2 questions should be asked: (a) does the party have a connection with Hong Kong? and (b) is that connection of sufficient substance? (B v A (supra) at §23);

(2) An artificially construed connection is not a substantial connection. A connection must be real in the sense, for example, that it has not been engineered for temporary tactical advantage (B v A (supra) at §25);

(3) There must be physical presence not of a transitory nature (ZC v CN (supra) at §9.4);

(4) The fact that the party has a resident status (such as a Hong Kong identity card) which allows him/her to live in Hong Kong legally is only a factor to be taken into account (ZC v CN (supra) at §9.8).”

17.  HH Judge Chan’s decision was affirmed by the Court of Appeal in the same case in WSJ (Minor) (Parentage: jurisdiction) [2019] 1 HKLRD 977 which unfortunately was not cited to me by Mr Chan at the hearing even though the case was decided in January this year. In any event, the Court of Appeal has affirmed Judge Chan’s decision and confirmed the legislative intent of section 6 of the Ordinance was 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. The Court of Appeal emphasized that section 6 was not a mechanism to rectify mistakes in registration of birth and death: see §§44 and 45 at pp 988-989.

Evidence relied on by the applicant

18.  In support of the applicant’s application, the 1^st respondent has filed a total of two affirmations. In the 1^st affirmation, he mainly relied on the result of the DNA testing report in order to establish that he is the biological father of the Minor. As said, this is a fact which can hardly be disputed. He also states the reasons why he now wants the Minor to come to live in Hong Kong with him and his intention to get married with Madam Cao. In his supplemental affirmation, the 1^st respondent states that the only reason why the Minor does not live in Hong Kong but lives in Shenzhen with Madam Cao is because he still needs to attend school there. However, he says that both Madam Cao and the Minor generally spend weekends and holidays with him in Hong Kong and they live as a family unit together. He claims that they would carry out a lot of family activities on weekends and holidays together, like going out to eat, shopping, going to the parks, cinemas, etc.

19.  When this matter was first heard before His Honour Judge Kent Yee on 15 November 2018, both respondents did not attend the hearing. The court ordered the applicant to file and serve a supplemental affirmation exhibiting both Madam Cao and the Minor’s travel records for the past 24 months. Further, the court ordered the applicant, as far as practicable, to procure the 2^nd respondent to file and serve an affirmation or at least a signed document to confirm his consent to this application.

20.  The Minor, through his mother Madam Cao, has on 29 April 2019, filed a further affirmation to comply with HH Judge Yee’s order, exhibiting both Madam Cao and the Minor’s travel records obtained from the Immigration Department for the two-year period from 1 January 2017. However, the 2^nd respondent has never responded to the court order, whether by affirmation or by document, confirming his consent to the present application.

21.  The travel record of Madam Cao reveals that she had in fact travelled to Hong Kong on 71 occasions for the period from 1 January 2017 to 18 November 2018.  The record shows that she usually would stay for 2 to 3 days on each of those occasions.

22.  However, for the two-year period from 1 January 2017, the Minor had only visited Hong Kong on 18 occasions. Most of the time he would only spend 2 to 3 days in Hong Kong.  The longest time he had stayed in Hong Kong was in August 2018 for 11 days only.

Findings of the Court

23.  In my judgment, the above travel records of Madam Cao and the Minor do not support the allegations made by Madam Cao and the 1^st respondent in their affirmations. In particular, in the case of the Minor, it could hardly be said that he would “generally” come to Hong Kong during the weekends or on his long holidays as alleged by the 1^st respondent.  As held in WSJ (minor), supra, the mere fact that the Minor was born in Hong Kong or was holding a Hong Kong permanent identity card does not provide “substantial connection” with the place.  In my view, 18 visits spread over a two-year period can hardly be consistent with someone who claims to have substantial connection with Hong Kong. Further, save for one occasion when the Minor stayed for 11 days in August 2018, all the other stays are of transient nature and could not support the claim that the Minor leads a normal family life with the 1^st respondent and his mother in Hong Kong.

24.  For the above reasons, I rejected the applicant’s argument that the Minor has established a “substantial connection with Hong Kong” and therefore is entitled to ask the court to entertain his application. 

25.  I would like to make a note here that should the Minor’s circumstances change in future, for example, if he decides to move to Hong Kong to attend school and domiciles here, then of course he is entitled to make a fresh application under section 6(1) again. There is nothing to prevent him from making such an application provided he can establish one of the requirements under section 6(1)(a) at the time of the application.

CONCLUSION

26.  For the above reasons, I rejected the applicant’s application with costs against him.