OMH v. MT

FCMP 161 / 2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 161 OF 2011

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J U D G M E N T
(Leave to appeal)

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Introduction

1.  This is the application taken out by the Applicant for leave to appeal the Order of this Court dated 18 March 2014 (“the Order”) dismissing the Originating Summons dated 8 July 2011 issued under the Parent and Child Ordinance, Cap.429 (“the Ordinance”) after a full hearing on 14 February 2014.  Full Reasons for Decision was handed down on 18 March 2014 (“the Decision”).

2.  The background leading to the issuance of the Originating Summons was set forth in the Decision which I do not intend to repeat here.

3.  On 31 March 2014, the Applicant filed an Inter Partes Summons attached with the Grounds of Appeal (19 paragraphs in total) signed by the solicitors Messrs. Massie & Clement. The hearing was scheduled for 28 May 2014 when Counsel Miss Jane Moir was instructed to represent the Applicant.   At that hearing, questions were raised by the Court as to the context and drafting of the 19 paragraphs grounds of appeal.  Counsel rightly conceded the Court’s observation and saw the need to modify the context and drafting of the grounds.  Leave was then granted at that hearing for amendment of the Applicant’s grounds of appeal.

4.  On 10 June 2014, an amended Grounds of Appeal settled by Counsels Mr Neal Clough and Miss Jane Moir was filed.  Not surprisingly, this is a complete re-draft of the entire Grounds of Appeal with the initial 19 paragraphs all deleted and replaced by 12 new paragraphs. Be that as it may, I will adopt the term “Amended ” Grounds of Appeal used by the Applicant in this Judgment and also referred to each of those grounds by their numbers.

The Amended Grounds of Appeal

5.  The 12 paragraphs of the Amended Grounds of Appeal reads as follows :-

“The Applicant challenges the learned Deputy Judge’s Reasons for Decision

as follows :

1. The learned Deputy Judge erred in law in that the Court was charged with the determination on the evidence as to whether it was proved that it was true that the Respondent is the putative father of the Applicant in consequence of the event of the Applicant being conceived, namely sexual congress between the Respondent and AS, the Applicant’s mother and next friend, and to determine that issue on the standard of civil proof which is a balance of probabilities, and he failed to do so.

2. The learned Deputy Judge erred as aforesaid in the premises that there is no requirement for corroboration of the testimony of the mother [or of any witness].

3. The learned Deputy Judge erred as aforesaid in the premises that there is no requirement for scientific testing whether DNA or other form of scientific testing.

4. The learned Deputy Judge erred as aforesaid in holding that the Court’s ability to direct a DNA test in paternity declarations creates a ‘caution’ on the Court if it is minded to accept non-scientific tests, or where they are not available, making this a factor relevant in determining parentage.

5. The learned Deputy Judge further erred in the premises that the Court had made an order for substituted service and being satisfied as to the fact that service had been properly effected was entitled to infer from the fact that the Respondent did not appear and give evidence that any evidence that he would have given would not have assisted his case [in the event that he has denied his paternity].

6. The learned Deputy Judge further erred in the premises that in these circumstances the Court should have made an adverse inference by the failure of the Respondent to appear and give evidence.

7. The learned Deputy Judge further erred in the premises that it is trite that the Court may only draw inferences from the failure to call evidence when the evidence is available to the party and not when it was impossible for the Applicant to present such evidence.

8. The learned Deputy Judge further erred in the premises that it is contrary to public policy to hold that the Respondent (or any putative father) can ignore his legal obligations to his dependent children by ignoring Court process.

9. The learned Deputy Judge further erred in the premises if he had determined the issue on the standard of civil proof which is a balance of probabilities on the evidence before him that was unchallenged and not impeached, he was bound to find that the Respondent is the father of the Applicant.

10. The learned Deputy Judge failed to make that finding since he misled himself by holding that there is a requirement for corroboration or for scientific testing before paternity can be established. The learned Deputy Judge confused the availability of scientific testing with a requirement for scientific testing.

11. The learned Deputy Judge erred in failing to give any weight to the unchallenged evidence of the Applicant and/or any grounds for disbelieving her evidence.

12.  The learned Deputy Judge erred in holding that public policy requires that paternity declarations cannot be determined on oath alone.”

The relevant provisions on granting leave to appeal

6.  The jurisdiction to grant leave to appeal rests with section 63A of the District Court Ordinance, Cap.336 which provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard.

7.  The relevant test for determining whether the appeal has a reasonable prospect of success is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Hartmann JA at paragraphs 8 and 9 of the Judgment).

The Intervener’s stance

8.  The Department of Justice was joined in as Intervener at the earlier stage of the proceedings.  The Intervener had all along adopted a neutral stance and hence, with leave of the Court, the trial proper was heard in their absence.  Having been served with the Court’s decision of the 18 March 2014 and being notified of the present application for leave to appeal, the Intervener filed its submissions to assist the Court on the ‘public policy’ point determined by the Court.  Leave was granted later with consent of the Applicant’s solicitors for them to supplement their submissions after the filing of the Amended Grounds of Appeal.  

Discussion

9.  On Ground No.1, the challenge rests upon the Court’s failure to determine the Respondent is the putative father by considering the evidence of sexual congress between the Applicant’s mother AS and the Respondent according to the civil standard of proof, namely, on a balance of probabilities.

10.  As said in paragraph 27 of the Decision, the court needs to determine the weight to be attached to the evidence before it in order to be satisfied that an issue in question was proved to the requisite standard, namely, balance of probabilities.  Nowhere in the Decision had this Court referred to a different standard of proof being applied to the present case apart from the requisite civil standard of proof, namely, balance of probabilities.  The fact is that after careful consideration, this Court could not be satisfied that the core issue of the Respondent to be the putative father of the Applicant had been proved to the requisite civil standard by the Applicant’s mother’s evidence. 

11.  This lead to the second challenge about the requirement of ‘corroboration’ of the testimony of the Applicant’s mother [or of any witness] stated in Ground No.2.  In civil cases (which includes family court cases), the sufficiency or strength of a piece of evidence to prove an issue in question does not require corroboration unless otherwise required by statutory provisions.  Again, nowhere in the Decision had this Court ever looked for or suggested that there is the requirement of corroboration or corroborative evidence.  At paragraph 26 of the Decision, it was actually said :

“26. The ultimate question before this Court is whether the oral testimony of the mother, her supporting Affirmation and exhibits “AS-1” and

“AS-4” whether putting together or in isolation is sufficient, on balance of probabilities, to prove that the Respondent MT is the natural father of the applicant OMH”.

12.  Thus, Ground Nos. 1 and 2 have no reasonable prospect of success on appeal.

13.  Ground No. 3 referred to this Court having erred in law that there is no requirement for scientific testing, whether DNA or other form of scientific testing.  As said in paragraph 28 of the Decision, the provision on the use of scientific tests to determine parentage under Section 13 of the Parent and Child Ordinance, Cap.429, had not (my emphasis) displaced the Court’s discretion to accept affirmation and testimonial evidence.  It is incorrect to say scientific testing was required by this Court.  

14.  Ground No.3 has no reasonable prospect of success on appeal.

15.  Ground No.4 is a 2-limb challenge.  It linked up the ‘caution’ noted in paragraph 28 of the Decision with the Court’s ability to direct a DNA test if it is minded to accept non-scientific tests; or where non-scientific tests are not available, DNA test would then become a factor relevant in determining parentage.

16.  This Court at paragragh 28 of the Decision was of the view that the empowering provision under Section 13 to direct scientific tests had not displaced the Court’s powers to receive and accept non-scientific test.  That there to be a ‘caution’ noted by the Court was premised by the existence of such statutory provision by the legislature about the mode for collating evidence is uncommon and rare.  It is incorrect to say “the Court’s ability to direct a DNA test in paternity declarations creates (my emphasis) a ‘caution’ on the Court….”.   Where non-scientific tests are not available, DNA test then becomes a relevant factor speaks for itself.

17.  Ground No.4 has no reasonable prospect of success on appeal.

18.  Ground No.5 referred to the Respondent not appearing to give evidence or made any challenges to the application, despite substituted service of proceedings had been effected, entitled the Court to draw inference that any evidence the Respondent would have given would not have assisted his case in the event the Respondent disputed paternity.  With due respect to Counsel, such contention must fail for 2 reasons.  First and foremost, it is always the Applicant who has to prove his or her case by sufficient evidence to the requisite standard.  It is not for the Court to decide whether the Applicant’s case or a particular issue raised by the Applicant had been successfully proved by drawing inference against the opposite party.  Secondly, to draw inference upon inactivity or silence of the Respondent to the effect that whatever evidence that might have been given by him would not have assisted his case is incorrect.  Drawing inference upon inactivity or silence could not be conclusively taken to mean that whatever evidence that would be produced but for such inactivity or silence must have no evidential value.   

19.  Ground No.5 has no reasonable prospect of success on appeal.

20.  Ground No.6 referred again to this Court not drawing adverse inference against the Respondent upon his failure to appear and give evidence.  Such ground has no reasonable prospect of success on appeal for the reasons stated for Ground No.5 above.

21.  Ground No.7 is, again without disrespect to Counsel, incorrect.  Nowhere in the Decision had this Court drawn any inference upon the evidence produced by the Applicant’s mother’s testimony including her supporting Affirmation.  This is exactly what this Court inclined to do but unable to do since there was no evidence before the Court about the Respondent’s response after he learnt about the pregnancy from the Applicant’s mother.  It was at all possible rather than impossible for the Applicant (or more accurately should be the mother of the Applicant) to present the relevant evidence.  At paragraph 29 of the Decision, this Court had said :-

“29. I noted the mother in paragraph 4 of her supporting Affirmation deposed to herself having informed the Respondent the pregnancy of the Applicant OMH. It is unfortunate that she had not, anywhere in her supporting Affirmation or oral testimonies in Court, stated the answer or response of the Respondent upon learning from her the pregnancy. Did the Respondent accept or deny paternity ? The mother is the only person to tell the Court what the Respondent had said. This is particularly important in light of the fact that the Respondent is absent throughout these proceedings. The mother who has all along been legally represented in these proceedings could not have omitted such piece of crucial evidence. In the absence of such crucial evidence, this Court cannot even draw any inference (my emphasis) that the Respondent had admitted paternity ………..”

22.  Ground No.7 has no reasonable prospect of success on appeal.

23.  Ground No.8 is a challenge that it is contrary to public policy for the Respondent (or any putative father) who can ignore his legal obligations towards dependent children by ignoring Court process.  As drafted, this ground appears to say this Court had erred in not arriving at such a conclusion or touched upon such time.  However, upon careful consideration of the contents of the Decision, nowhere in the Decision had this Court ever decided upon the question of ignoring legal obligations by ignoring Court process. 

24.  Ground No.8 has no reasonable prospect of success on appeal.

25.  Ground No.9 referred to this Court, having determined the issue of standard of proof, was bound to find the Respondent to be the father of the Applicant upon the evidence available which was unchallenged and not impeached.  In my decision, it is over simplistic to accept unchallenged evidence as sufficient proof of an issue without due consideration on the quality and weight to be given.  As said in paragraph 31 of the Decision, this Court had given careful consideration to the evidence and concluded that the Respondent to be the father of the Applicant had not been proved to the satisfaction of the Court.  The Court is always entitled to take into account the quality of the evidence and the weight to be attached when deciding whether an issue before it had been proved to the requisite standard at law.

26.  Ground No.9 has no reasonable prospect of success on appeal.

27.  Ground No.10 referred to this Court having confused the availability of scientific testing with a requirement for scientific testing, and further misled itself by holding to a requirement for corroboration or scientific testing for proof of paternity.  However and upon careful consideration of the contents of the Decision, nowhere in the Decision had this Court ever confused or misled itself as so submitted. 

28.  Ground No.10 has no reasonable prospect of success on appeal.

29.  Ground No.11 referred to this Court having failed to give any weight to the unchallenged evidence of the Applicant and/or any grounds for disbelieving the mother’s evidence.  As said above and in paragraph 31 of the Decision, careful consideration had already been given to the unchallenged evidence.  The conclusion arrived at was that the mother’s unchallenged evidence, which essentially are bare statements on sexuality or non-sexuality, are not sufficient for proving paternity to the requisite standard.

30.  Ground No.11 has no reasonable prospect of success on appeal.

31.  Ground No.12 referred to this Court found public policy requires paternity declarations not to be determined on oath.  As said in paragraph 25 of the Decision, the law requires solid and cogent evidence in applications for declaration on parentage since such declaration, if granted, attracts massive rights, duties and obligations. Although evidence under oath is to be accepted as evidence, there is still the question of preponderance of probabilities that the truth of the proposition had or had not been proved to the requisite civil standard.     

32.  Ground No.12 has no reasonable prospect of success on appeal.

Any other reasons for granting leave to appeal ?

33.  Apart from the reasons set out above to the Applicant’s grounds of appeal, I also find that there being no reason in the interests of justice that leave to appeal should be granted.

Conclusion

34.  For the above reasons, I dismiss the Applicant’s Summons dated 31 March 2014 seeking leave to appeal.

35.  Last but not least, I wish to express my gratitude to the Department of Justice for its legal submissions on the public policy issue.  I also direct a copy of this Judgment to be forwarded to the Department of Justice.

Orders

36.  I now grant the following Orders :-

(a) The Applicant’s Summons dated 31 March 2014 be  dismissed;

(b) There be no Order as to costs including all costs reserved.

FCMP 161 / 2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 161 OF 2011

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REASONS FOR DECISION

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Introduction

1.  The Applicant (“OMH”) is a boy born in Hong Kong on 13 July 2009 at Queen Elizabeth Hospital.  This is an application taken out by the natural mother of the Applicant (“AS”) as his next friend seeking a declaration under Section 6 (1)(a) of the Parent and Child Ordinance, Cap.429 (“the Ordinance”) that the Respondent (“MT”) is the natural father of the Applicant.

2.  The mother AS filed her affirmation in support of the application on 8 July 2011 together with 4 exhibits. Suffice to say is that both OMH and AS are currently staying in Hong Kong under Recognizance as applicants under the Claim Against Torture (“CAT”) regime since 2009. 

3.  At one stage there are concerns on jurisdictional issue as to whether Section 6 (2) of the Ordinance applies to applicants under the CAT regime.  It is for this reason that the Court exercised its powers under Section 7 of the Ordinance and directed the Secretary for Justice be joined as intervener in these proceedings to answer the issue on jurisdiction.  Having considered submissions from the Secretary for Justice and the solicitors for the Applicant, the jurisdictional issue was resolved in the Applicant’s favour and these proceedings moved along.

4.  Notice of today’s hearing was substituted by way of advertisement once in The Standard newspaper on 18 December 2013.  Service was proved by an Affirmation of Wong Chung Fu filed on 30 December 2013.

The Parent and Child Ordinance, Cap.429 (“the Ordinance”)

5.  To start with, I recite below those statutory provisions under the Ordinance which I considered important for determination of the present case.

6.  Section 5 of the Ordinance provides:-

“(1) A man shall be presumed to be the father of a child –

(a) if he was married to the mother of the child at any time and if there arises by virtue of that marriage a presumption of law that the child is the legitimate child of that man; or

(b) where no man is presumed to be the father under paragraph (a), and subject to section 10 (3), if he has been registered as the father of the child by an entry made after the commencement of this section in any register of births kept by the Registrar of Births and Deaths under any Ordinance.

(2) Any presumption under subsection (1) may be rebutted by proof  on a balance of probabilities.

(3) The presumption of law as to a child’s legitimacy arising by virtue of the marriage of the child’s mother at a time related to   the conception or birth of the child may be rebutted by proof on a   balance of probabilities.

(4) Subsection (1) (a), and the presumption referred to in subsection (3), shall apply in the case of a void or voidable marriage as they apply in the case of a valid marriage.”

7.  Section 6 of the Ordinance provides:-

“(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.

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

(5) Any declaration made under this section shall be binding on the Crown and all other persons.

(6) The court, on the dismissal of an application for a declaration under this section, shall not have power to make any declaration  for which the application has not been made.

(7) No declaration which may be applied for under this section may be made otherwise than under this section by any court.

(8) No declaration may be made by any court, whether under this section or otherwise, that any person is or was illegitimate.”

8.  Section 13 of the Ordinance 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 matters 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 to 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.”

The Mother’s evidence

9.  The Mother SA, being the next friend for the Applicant, filed her Affirmation dated 5 July 2011, setting out the factual background leading to the birth of the Applicant and in support of the application.

10.  At paragraphs 4 to 7 of her supporting Affirmation, she deposed to the following:-

“4. I met MT (“the Respondent”) in Hong Kong in a bar in Wanchai in October 2005 and then we became friends and courted each other. I then began having sexual intercourse with him and we met once a week and during public holidays.  I then lived with him for one year from 2007 to 2008.  We lived at 4/F, xx Station Lane, Hung Hom, Kowloon, Hong Kong at that time. 

During this period, I continued the relationship with him only and had no sexual intercourse with anyone else.  In September 2008, I found I was pregnant with the said child.  I had informed the Respondent accordingly.

5. In October 2008, the Respondent and I separated as he was having an affair with another woman and at the same time, I did not think we could continue the relationship, hence I left him and went to live in a boarding house in Jordan, Kowloon, Hong Kong for a while.  During that period, I found a job and worked in a restaurant in Tsim Sha Tsui as a waitress for about two weeks illegally. I was then arrested by the police for overstaying and illegal working in Hong Kong.

6. On 13^th July 2009, I gave birth to the said child in Queen Elizabeth Hospital in Hong Kong.  Since then I have not marital relationship with the Respondent.  So the Birth Certificate of the said child did not state the name of the father there as I could not find the Respondent for endorsement of the Birth Certificate. 

There is now produced and shown to me marked exhibit “AS-1” a copy of the said child’s birth certificate.

7. As I cannot find the Respondent, so I cannot request the Respondent and said child to undergo the paternity test in Hong Kong”

11.  At the trial the Mother, who was legally represented by Mr. Clement assigned by the Legal Aid Department, confirmed the contents of the supporting Affirmation are true and accurate, then adopted as her evidence in chief.

12.  No witnesses or further evidence are produced by the Mother in the present application.

Presumptions on Parentage

13.  Section 5 of the Ordinance provides a statutory presumption on paternity if either one of the two situations exist (sections 5 (1)(a) or (b)).   Such statutory presumption is a rebuttable one by proof on balance of probabilities (sections 5 (2) and (3)).  Such evidence in rebuttal would no doubt come from the other party against whom the declaration is sought.

14.  If neither of these presumptions applies, the applicant would have to prove by evidence the truth of his or her case to the satisfaction of the court.  Upon such proof, the court shall (my emphasis) make the declaration unless to do so would manifestly be contrary to public policy (section 6 (3)).

15.  Having said and, since the Respondent in the present case is absent, the issues fall to be considered would be:-

(a) Whether any one of the statutory presumptions in section 5 (1)(a) or (b) applies ?

(b) If not, whether the applicant (through her mother) can prove the truth of the proposition to the court’s satisfaction that the Respondent is the natural father?

(c) Having proved, whether it is contrary to public policy for the court to make the declaration on parentage?

The available evidence

16.  The mother in her supporting Affirmation produced the applicant’s birth certificate as exhibit “AS-1” where the surname and name of the father was marked with asterisks.  She also confirmed the non-marital relationship with the Respondent.  The reason for this was stated in paragraphs 5 and 6 of the mother’s supporting Affirmation.

17.  Therefore, none of the two statutory presumptions under section 5 (1) apply to the Applicant.

18.  Thus, the only evidence available to this Court is the mother’s affirmation and her oral testimony in court.  At the hearing, the mother confirmed the contents of her supporting Affirmation are true and accurate, and adopted as her evidence in chief.  No other witnesses or proofs, such as photographs of the mother and the Respondent taken together, emails or mobile text messages exchanged between the parties are available. The only documentary evidence produced by the mother AS are 2 staff cards, 1 member card, 1 HSBC visa card and 1 Bank of China bank card, all with the name of the Respondent on it and produced them collectively as one exhibit marked “AS-4”. Exhibits “AS-2” and AS-3” are the mother’s and child’s own recognizance respectively.

19.  In addition to the exhibits, the mother at paragraph 4 of her supporting Affirmation stated the following which I now repeat:-

“I met MT (“the Respondent”) in Hong Kong in a bar in Wanchai in October 2005 and then we became friends and courted each other.  I then began having sexual intercourse with him and we met once a week  and during public holidays.  I then lived with him for one year from  2007 to 2008. ………  During this period, I continued the relationship with him only and had no sexual intercourse with anyone else.  In September 2008, I found I was pregnant with the said child.  I had informed the Respondent accordingly. (myemphasis)” 

20.  The next question to be asked is thus whether, on balance of probabilities, the truth of the proposition that the Respondent is the natural father of the applicant has been proved by such evidence of the mother? 

The Court’s view

21.  First of all, I have not been assisted by Mr. Clement on any cases or authorities of similar factual background which I can consider.  Secondly, after the mother had given her testimony and in Mr. Clement’s final submission, I specifically sought Mr. Clement’s confirmation as to whether he had any submissions to make on Section 13 of the Ordinance.  The answer given by Mr. Clement was that he had no such submission.

22.  The only case of superior court which I am aware of is the case of Re “A” and “B” [2008] 4 HKLRD 526, however, the facts of which are completely different from here as that case was one of those ‘run of the mill’ cases.  In that case, the Respondent did not contest the application.  Further, there is cogent scientific evidence by way of DNA testing which supported the application.  His Lordship Mr. Justice Lam (as he then was) granted the application with some reference to those statutory provisions under the English Family Law Act 1986 (as amended) and the Family Proceedings Rules 1991 (see paragraphs 5 and 6 of the Judgment).

23.  In the absence of any leading authorities which I may rely upon, I believe it is proper and fair for this Court to start with by first considering all the statutory provisions in the Ordinance and, if necessary, to also consider the legislative intent and underlying objective of the Ordinance. 

24.  The declaration sought under Section 6 falls under Part IV of the Ordinance (Part IV: Declaration of Status).  Section 13 of the Ordinance falls under Part VI of the Ordinance (Part VI : Use of ScientificTests in Determining Parentage) which empowers the Court, either of its own motion or on application by any party to the proceedings, give directions for use of scientific tests to show parentage and for taking bodily samples, in any civil proceedings in which parentage falls to be determined (my emphasis).  More importantly, Section 13 (3) specifically refers to cases where parentage falls to be determined within applications under Part IV of the Ordinance.   

25.  In my decision, Section 13 is wide and far reaching for the fact that it is applicable to any civil proceedings (my emphasis).  The specific reference in Section 13 (3) to its applicability in determining parentage before granting a Section 6 declaration in the Ordinance, in my view, reinforces the importance and necessity of solid and cogent evidence in applications for declaration on parentage.  This requirement is correct since it is not just a matter of status and relation once the declaration of parentage is granted.  There are massive consequential rights (succession or otherwise), duties and obligations (legally or morally) which will follow such declaration.  This may well be the legislative intent and underlying object which the law aimed at.  Whilst protecting the rights of those persons born out of non-marital union of their natural parents (in the old days classified as being born ‘illegitimate’), it also seeks to ensure the degree of accuracy on parentage of the person against whom the declaration is sought.   

Discussion and Analysis

26.  The ultimate question before this Court is whether the oral testimony of the mother, her supporting Affirmation and exhibits “AS-1” and “AS-4” whether putting together or in isolation is sufficient, on balance of all probabilities, to prove that the Respondent MT is the natural father of the applicant OMH. 

27.  From the evidential aspect, affirmations and verbal testimonies can be considered in court proceedings to prove statement of facts.  It is for the court to decide how much weight to be attached to such evidence so as to decide whether the issue in question had been proved to the requisite standard, whether it is on balance of probabilities for civil cases or it is beyond reasonable doubt for criminal cases.

28.  The fact that Section 13 of the Ordinance provides for ‘Use ofScientific Tests in Determining Parentage’, though this had not expressly displaced the Court’s powers and discretion to accept affirmation and testimonial evidence, is a ‘caution’ upon the Court if it is minded to accept non-scientific tests evidence or where no scientific tests are available or could be obtained as in the present case. In my view, it is uncommon and rare for the legislature not only stating the nature and source of evidence needed, but also empowers the Court to call for such evidence. 

29.  I noted the mother in paragraph 4 of her supporting Affirmation deposed to herself having informed the Respondent the pregnancy of the Applicant OMH.  It is unfortunate that she had not, anywhere in her supporting Affirmation or oral testimonies in Court, stated the answer or response of the Respondent upon learning from her the pregnancy.  Did the Respondent accept or deny paternity?  The mother is the only person to tell the Court what the Respondent had said.  This is particularly important in light of the fact that the Respondent is absent throughout these proceedings.  The mother who has all along been legally represented in these proceedings could not have omitted such piece of crucial evidence.  In the absence of such crucial evidence, this Court cannot even draw any inference that the Respondent had admitted paternity by simply relying on the mother’s evidence, namely, that she had no sexual relationship with anyone else and she had informed the Respondent of the pregnancy.

30.  I have also considered whether there are any additional evidence from the mother at the substantive trial hearing or any circumstantial evidence which may assist her case.  Upon careful consideration, there are no other direct or indirect evidence available.  Moreover, there was no submission either from Mr. Clement that, given the particular factual circumstances of the case, this Court should not have taken any consideration of Section 13 whether in the evaluation of evidence or in its fact-finding exercise.

31.  In conclusion and after careful consideration, I find the truth of the proposition that the Respondent is the natural father of the applicant OMH is not proved to the satisfaction of the Court.  The Applicant’s case fails.

32.  Had I been wrong in my conclusion over the mother’s evidence and that the declaration ought to be granted (which I do not agree), I believe there are good reasons for not making such declaration for it would manifestly be contrary to public policy to determine parentage by mere statements on sexuality or non-sexuality.  In my view, accepting statements of sexuality or non-sexuality as sufficient evidence for proof on paternity for granting Section 6 declaration would be in defiance to Section 13 of the same Ordinance if not rendering it obsolete.

33.  Though I have full sympathy on the mother’s case in that the chance of obtaining a DNA test report is slim, this is the legal position which she should have been legally advised by her lawyers.

34.  For the above reasons, I dismiss the Applicant’s case.

35.  As the Secretary for Justice was an intervening party, I direct a copy of this Reasons for Decision be forwarded to them.

Orders

36.  I now grant the following Orders :-

(a) The Originating Summons dated 8 July 2011 be dismissed;

(b) There be no Order as to costs including all costs reserved;

(c) Applicant’s own costs be taxed in accordance with Legal Aid Regulations;

(d) Any costs incurred by the Secretary for Justice be taxed in accordance with Legal Aid Regulations and be paid by the Legal Aid Department.