PH (formerly known as CH) (a minor), suing by CKYN, his mother and next friend v. WKYP
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FCMP 121/2017
[2022] HKFC 136
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS
NUMBER 121 OF 2017
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| IN THE MATTER of CH, a minor | |
| and | |
| IN THE MATTER of Sections 6(1) and 13 of the Parent and Child Ordinance, Cap. 429 and Section 10(2) of the Guardianship of Minors Ordinance (Cap.13) |
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BETWEEN | ||
| C H (a minor), suing by C K Y N, his mother and next friend | Applicant | |
| and | ||
| W K Y P | Respondent | |
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Coram: District Judge S. Lo in Chambers (Not open to Public)
Date of Respondent’s closing submission: 3 March 2022
Date of Applicant’s closing submission: 4 March 2022
Date of Judgment: 5 July 2022
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Judgment
(Declaration of status and Maintenance)
____________________________________
INTRODUCTION
1. This is the trial of the Originating Summons dated 22 June 2017 (the “OS”) by the Applicant, CH (the “Minor”), suing by his mother CKYN (the “Mother”), against the Respondent, seeking, inter alia:-
a. A direction that scientific tests be used to show whether the Respondent is or is not the father of the Minor under section 13 of the Parent and Child Ordinance (Cap 429) (“PCO”) (“Scientific Direction Issue”);
b. A declaration that the Respondent is the natural father and in law the parent of the Minor under section 6 of the PCO, and consequentially a direction that the Registrar of the Court shall notify the Registrar of Births and Deaths of the making of the aforesaid declaration of paternity (“Paternity Declaration Issue”); and
c. Maintenance pursuant to section 10(2) of the Guardianship of Minors Ordinance (Cap 13) (“GMO”) (“Maintenance Issue”).
2. In relation to the Scientific Direction Issue, by the Judgment and Order of Deputy District Judge A Tse Ching (as she then was) dated 27 March 2019, it was ordered that scientific tests be used to show whether the Respondent is or is not the father of the Minor under section 13 of the PCO and that “Such direction shall be in the form of Form 1 under Sch.1 of the Blood Tests (Evidence of Paternity) Regulations 1971” (“UK Form 1”) (the “DNA Test Order”).
3. The Respondent sought leave to appeal against the DNA Test Order but was refused by District Judge A Tse Ching by her judgment dated 17 January 2020[1] and the Court of Appeal by judgment dated 4 June 2020[2].
4. The present trial concerns the Paternity Declaration Issue and the Maintenance Issue.
5. The Mother and the Respondent have each filed various affirmations setting out the issues on the dispute of paternity and maintenance. In short, the Mother states that the Respondent is the father of the Minor, hence the Respondent should pay the Minor maintenance. The Respondent, on the other hand, disputes that he is the father of the Minor and refuses to pay maintenance.
6. The Applicant’s case on the Paternity Declaration Issue is straight-forward. Since the Respondent has failed to take any steps pursuant to the DNA Test Order and no explanation or justification has been given, inescapable adverse inference should be drawn against the Respondent pursuant to the PCO. This, coupled with other available evidence by the Applicant/the Mother in her affirmations, shows that this Court should grant the Paternity Declaration.
7. If the paternity declaration is granted, it follows that the Applicant is entitled to be paid maintenance. The Respondent gave an undertaking in the order made by me on 27 May 2021 that he would not take issue on his financial ability to pay any maintenance sought by the Applicant and so ordered by the Court in the proceedings. The only question would be what maintenance would be payable based on the needs of the Minor (including carer’s allowance).
PATERNITY DECLARATION ISSUE
Background
8. The Mother was born in Mainland China, now 46 years old. She was previously married to another man in Hong Kong and gave birth to a son on 27 February 2002. In 2006, she obtained a one-way permit and moved from Mainland China to Hong Kong. In early 2007, she divorced. The custody of her son was granted to her former husband and she had reasonable access to her son.
9. The Respondent was born in 1956. He is married with 3 adult children who were born in 1983, 1985 and 1988. The Respondent carries on the business of property management.
10. The Mother and the Respondent began their relationship since about September 2007. At that time, the Mother was working as a massage master at a club house in Wan Chai and the Respondent was a regular customer there.
11. According to the Mother, between about September 2007 and June 2016, the Mother and the Respondent cohabited together and had sexual relationship regularly. During this period, the Mother said that she did not have sexual relationship with other men.
12. The Respondent denied any form of cohabitation with the Mother. However, he admitted visiting the Mother at her then residence and later rented a place for her at Hennessy Road No. 3XX, Wan Chai (the “Rented Apartment”) “out of affection and sympathy”. The Rented Apartment was very close to the Respondent’s office at that time at No. 3YY Hennessy Road, Wan Chai. The Respondent admitted that he would at most see the Mother for about 2 to 3 hours a day for 4 to 5 days a week at the prime of their relationship, being the time when they had regular sex.
13. In September 2009, the Mother purchased a premise at Flat in Kwong Sang Hong Building, No. 1ZZ Wan Chai Road, Hong Kong (the “Premises”) in the sum of HK$2,300,000. According to the Mother, she paid the initial deposit of HK$900,000 for the purchase of the Premises and the balance of the purchase price in the sum of HK$1,400,000 by mortgage payments within 3 years. She added that the above was funded by the Respondent which he gifted to the Mother. Although the Mother asked the Respondent to purchase the Premises in their joint names, the Respondent turned down saying that if anything happened, there would be a risk of his wife taking his share of the Premises if the Premises was purchased partly under his name.
14. The Respondent denied purchasing the Premises for the Mother. He said that he paid the Mother HK$900,000 for settling the initial deposit. Thereafter, he also increased the monthly maintenance that he used to pay the Respondent from HK$20,000 to HK$30,000 per month in order for her to settle the Premises’ mortgage monthly instalment. However, he said that the Premises belong to him beneficially and merely allowed the Mother to reside therein during the subsistence of their relationship.
15. The Respondent claimed against the Mother in HCA 2021/2017 (the “High Court Action”) for return of the Premises but he failed. By the Judgment of Madam Justice Mimmie Chan dated 27 October 2021, the Respondent’s claim was dismissed and it was decided that the Premises belong beneficially to the Mother. The Respondent now appeals against such judgment by Notice of Appeal dated 24 November 2021 in CACV 522/2021, which will be heard on 25 October 2022.
16. From 2010 onwards, the Respondent paid the Mother’s living expenses in the sum of HK$30,000 per month. On top of that, he spent on the Mother’s clothing, watches, shoes and overseas travelling approximately HK$400,000 per year, which is denied by the Respondent.
17. The Mother said that she was initially pregnant with the Respondent’s child in late 2010 but the Respondent arranged an abortion with the Applicant at the Hong Kong Sanatorium & Hospital.
18. According to the Mother, in or about October 2015, she was pregnant with the Respondent’s child again. She told the Respondent about bearing his baby and the Respondent persuaded the Mother to have another abortion. However, the Mother refused.
19. In or about November 2015, the Respondent’s wife phoned the Mother indicating that she would not divorce with the Respondent and the Respondent would not accept the baby as his son.
20. In or about the end of March 2016, the Respondent asked the Mother to give birth to the baby at St. Paul’s Hospital in Hong Kong. He told the Mother that the charges there were less expensive than the Hong Kong Sanatorium & Hospital and that his daughter had previously given birth to her baby at St. Paul’s Hospital as well. The Respondent was satisfied with the service there. He admitted to give the Mother HK$100,000 in cash in order to settle her medical expenses at St. Paul’s Hospital.
21. The Minor was born on 1 April 2016 in St. Paul’s Hospital and has since been living with the Mother at the Premises. The name of father of the Minor’s birth certificate is left blank.
22. After the Mother gave birth to the Minor, she discovered that the Respondent had developed sexual relationships with two other women. She met with one of them in or about June 2016 and quarrelled with her. The Respondent separated with the Mother in or about June 2016.
23. By letter dated 15 August 2016 from Chan Wong & Lam (“CWL”), solicitors for the Applicant, to the Respondent, the Respondent was asked to confirm paternity of and provide maintenance to the Minor. By letter dated 24 August 2016 from Fong Yin Cheung & Co, then solicitors for the Respondent, to CWL, the Respondent did not admit paternity and requested the Applicant to provide evidence to substantiate her claim.
24. In September 2016, the Applicant intended to initiate legal proceedings against the Respondent for, inter alia, a declaration that the Respondent is the natural father and in law the parent of the Minor and for an order requesting the Respondent to pay maintenance to the Minor. However, the Respondent persuaded the Mother not to do so as he was prepared to pay maintenance into a bank account jointly owned by him and the Mother for the Minor. In or about November 2016, the Respondent opened a joint savings account No. 266XXX432, which the Respondent informed the Mother via Whatsapp dated 3 November 2016. However, the Respondent reneged on his promise and did not pay any maintenance to the Minor.
25. In or about early October 2016, the Respondent visited the Mother at the Premises. During the Respondent’s visit at the Premises, he had taken a cocktail containing cream and cream-soda with as plastic straw. After drinking the said cocktail drink, the Respondent left his saliva on the said plastic straw. The Mother took the said plastic straw for a DNA test. The Test Report dated 28 October 2016 conducted by GenePro Dnagnostic Technology (HK) Limited (“DNA Test Report”) confirmed that the Respondent is the natural father of the Minor.
26. The Mother orally and through Whatsapp message informed the Respondent of the DNA test outcome. However, the Respondent failed to confirm his paternity.
27. In January 2017, the Respondent took the Mother together with the Minor to a Guangzhou trip.
28. On 31 March 2017, the Respondent attended the 1st birthday party of the Minor at “Playt Restaurant” of the Park Lane Hotel in Causeway Bay, Hong Kong. The Mother, the Respondent and the Minor took some pictures at the Playt Restaurant. He also paid the deposit and booked the table there.
29. At present, the Minor is now 6 years old and will soon begin his primary education in North Point this September.
30. Despite the DNA Test Order, no steps in doing the DNA test has been taken until to date.
Legal principles: the operation of the PCO
31. Section 6 of the PCO provides for the declaration of parentage:-
“(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.
(2)…
(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.”
32. Section 13 of the PCO provides for the court ordered scientific tests:-
“(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.”
33. Section 14 of the PCO provides that consent is required before bodily sample is taken from a person under the court ordered scientific test:-
“(1) …a bodily sample which is required to be taken from any person for the purpose of giving effect to a direction under section 13 shall not be taken from that person except with his consent.”
34. Section 15 of the PCO provides that inference may be drawn for a person’s failure to give consent for taking of bodily sample under the court ordered scientific test:-
“(1) Where a court gives a direction under section 13 and any person fails to take any step required of him for the purpose of giving effect to the direction, the court may draw such inferences, if any, from that fact as appear proper in the circumstances.
(3) Where any person named in a direction under section 13 fails to consent to the taking of a bodily sample from himself or from any person named in the direction of whom he has the care and control, he shall be deemed for the purposes of this section to have failed to take a step required of him for the purpose of giving effect to the direction.”
Legal Principles on declaration
35. As the Mother and the Respondent were not married at any time and the Respondent has not been registered as the Minor’s father by the Registrar of Births and Deaths, there is no presumption in law under section 5 of the PCO that the Respondent is the Minor’s father.
36. The principles of the application of section 6 of the PCO are set out by the Court of Appeal in Re OMH (Parent and Child: Declaration) [2017] 3 HKLRD 323 at §40 to 44. Applying Re A (a minor) (paternity: refusal of blood test) [1994] 2 FLR 463, the burden of establishing paternity is on the applicant and upon a balance of probability:-
“(1) The question raised by an issue of paternity is a serious one — more serious in the scale of gravity than, for example, proof of debt or minor negligence.
(2) The balance of probability has to be established to a degree of sureness in the mind of the court which matches the seriousness of the issue.
(3) The weighing process involved in (2) must not however be over-elaborate. The court should not attempt, in a precise —almost mathematical—way to determine precisely what degree of probability is appropriate to the gravity of the issue. There is still ample scope for the influence of common sense and the insight gained from first impression.”
37. Further, as to the public policy consideration, it was held that such residential discretion should be sparingly used (at §44):-
“As to the public policy consideration, the phrase “manifestly contrary to public policy” was considered by the Court of Final Appeal in ML v YJ (2010) 13 HKCFAR 794, albeit in the context of s.61 of the Matrimonial Causes Ordinance (Cap.179). It was held that this is a residual discretion to be sparingly used (at [69(1)] per Chan PJ dissenting with Bokhary PJ; [121], [123] and [125] per Litton NPJ with Ribeiro PJ and Sir Anthony Mason NPJ agreeing), and that “the public policy discretion has only been applied in cases where the decree offends against our ideas of “substantial justice” (at [124] per Litton NPJ with Ribeiro PJ and Sir Anthony Mason NPJ agreeing).”
38. Despite the absence of scientific test in Re OMH, the Court of Appeal considered the applicant’s own evidence to be sufficient to establish paternity and granted the declaration of paternity (at §49).
Legal Principles on drawing adverse inference for failure to take scientific test
39. Where a scientific test has been directed but the person named in such direction fails to take the test, adverse inference may be inferred (see section 15 of PCO).
40. In Re A (a minor) (paternity: refusal of blood test) [1994] 2 FLR 463 at 472-473, the English Court of Appeal held that refusal to provide a bodily sample for the scientific test will mean that the court will draw such inferences as it considers proper, including adverse inferences as to paternity in the absence of clear and cogent reasons for the refusal. The rationale is explained as follows:-
“Genetic testing, already advanced to a high degree of probability through the negative techniques of exclusion, has now moved on to the point where it has become possible to achieved positive certainty. That has had a profound effect on cases like the present, where a mother has been having relations with different men at the time of conception. Any man who is unsure of his own paternity and harbours the least doubt as to whether the child he is alleged to have fathered may be that of another man now has it within his power to set all doubt at test by submitting to a test. It has ceased, therefore, to be possible for any man in such circumstances to be forced against his will to accept paternity of a child whom he does not believe to be his.
Against that background of law and scientific advance, it seems to me to follow, both in justice and in common sense, that if a mother makes a claim against one of the possible fathers, and he chooses to exercise his right not to submit to be tested, the inference that he is the father of the child should be virtually inescapable. He would certainly have to advance very clear and cogent reasons for this refusal to be tested – reasons which it would be just and fair and reasonable for him to be allowed to maintain.”
41. In In re G (Parentage: Blood Sample) [1997] 1 FLR 360 at p 367D, it was held that:
“The court must be astute to discern what are the real motivations behind the refusal. It should look critically at any proffered explanation or justification. It should only uphold an explanation that is objectively valid, demonstrating rationality, logicality, and consistency. Anything less will usually lead to an adverse inference.”
42. Re A (a minor) and In re G have been adopted in the more recent case of MS v RS and others [2021] Fam 2 at §64. It was further held that:-
a. Where no scientific samples, or acceptable scientific samples are available, other evidence may still permit the court to determine the application. The evidence of a husband and wife is admissible in any proceedings to provide whether intercourse did or did not take place (at §65).
b. If the mother gives evidence that sexual intercourse took place at the relevant time it is for the putative father to rebut that evidence. Once it is established that the spouses had intercourse at the relevant time, the husband (in the case of married couple) must show that the child is not the issue of that intercourse to rebut the presumption. The presumption is not rebutted merely by proving that someone else had sexual intercourse with the wife (at §66).
c. The court may also admit photographic evidence of a suggested factual resemblance as being relevant to the question of paternity, although such evidence is described as very unsafe and conjectural (at §67).
Discussions on Paternity Declaration Issue
43. To start with, Mr Lam together with Mr Leung for the Respondent contend that the DNA Test Report is plainly inadmissible. They rely on MS v RS [2021] Fam 1, in which MacDonald J observed at §§77 to 79 that:
(a) “it is likely that any procedural or professional deficiencies that are identified in the testing will make it impossible for the court to rely on the conclusions of such testing”
(b) “the court cannot ignore the fact that in this case the person who seeks to rely on the DNA test results to make good his application, namely the father, is the very same person who undertook the sampling for those tests in circumstances that were not the subject of any of the detailed regulatory safeguards that Parliament has decided should apply to DNA tests used in legal proceedings”
(c) “there was no independent witness to the samples being taken, there is no confirmation beyond the father’s account that the samples sent were the samples taken from the children and there is no demonstrable chain of custody with respect to the samples. This is very far from the reliable forensic context for testing required by the statutory regulations.” (emphasis added)
44. In MS v RS, the applicant was married to the children’s mother. There was a presumption in law that the applicant was the children’s father. The applicant later believed that he was not the children’s father, so he sought a declaration that he was not the children’s father. He took the children’s sample for DNA testing without the children’s knowledge, but such DNA test information was not guaranteed since the test was performed based on information and samples provided by the applicant. The children felt violated and refused to conduct further test.
45. Since the court must have very unfettered discretion as to the admissibility of evidence as said in §62 of MS v RS, I do not accept that the DNA Test Report is inadmissible. However, as the DNA Test Report clearly states “This report is only suitable as a personal reference”, “Note: If the consignor supplies the sample[s] in this test, the results of this test are based only on the sample[s] as provided” and “Note: For private use, test results are intended for reference only”, I will put very minimal or even no weight on the DNA Test Report.
46. Putting aside the DNA Test Report, the Respondent acknowledges that he “at most” saw the Mother “about 2-3 hours a day for 4-5 days a week”, that was “limited to the prime of [their] relationship, i.e. the relatively short period when [they] had regular sex”. The Respondent has affirmed that at the time of the Minor’s conception in around June 2015, given the state of the Respondent’s body impacted by his Alzheimer’s disease at that point in time, it was physically extremely difficult for him to father any child.
47. The Respondent said that he refused to do scientific test because of his own strong conviction about his right to privacy and bodily integrity as well as because it was extremely unlikely that the Minor was his child. Such reasons had been rejected by Deputy District Judge A Tse Ching (as she then was) in §§27 to 29 of her judgment dated 27 March 2019 and the Court of Appeal in §38 of its judgment dated 4 June 2020. Besides, Deputy District Judge A Tse Ching (as she then was) in her judgment said below:
“59. There was a constitutional challenge in that case. The Respondent in this case specifically stated that he was not posing a constitutional challenge but reserves the right to do so in the future. Yet, not only did he embark on a constitutionality analysis, he asked the Court to apply the principles apposite to such a challenge. Either he challenges the constitutionality of the provisions of the Parent and Child Ordinance or he does not. To introduce the test of proportionality in Hysan when there is no constitutional challenge is simply the wrong approach.
60. Constitutionality is not an issue before the Court and it is unnecessary for me to rule on it.
…
64. The technique of DNA profiling can establish a particular man’s paternity with virtual complete certainty using various bodily samples from the man, mother and the child. It is difficult to see how it could be argued that a reasonable balance has not been struck between the societal benefits of the restrictions and the inroads into the constitutionally protected right.
…
67. A child’s welfare generally demands that he or she knows the truth about his or her parentage. The interest of justice is best served by the ascertainment of the truth. The court should be furnished with the best available scientific evidence, particularly if that evidence proves or disproves paternity with certainty or near certainty. In general, DNA testing is in the child’s best interests where doubts as to paternity are in the public domain. In fact, such tests are the best defence tools against the opportunistic claims which the Respondent most fears. In the light of the undisputed evidence, the Child’s interests overrode any competing interests of the Respondent.” (emphasis added)
48. The Court of Appeal affirmed such finding as follows:-
“9. Prior to the commencement of argument (and contrary to his indication at the first hearing of the Originating Summons), the Respondent confirmed that there was no constitutional challenge to the use of scientific tests.
…
22. At §67 of the Judgment, as the Judge summed up her analysis, she stated that “the Child’s interests overrode any competing interests of the respondent”. In our view, this is another clear indication that the Judge had considered the Respondent’s stance (as well as the various points advanced by the Respondent’s counsel which were said to militate against ordering a test) before ruling against him.
…
25. On the facts of the present case, we agree with Ms Wong that the objection of the Respondent could not outweigh the other factors in the case which point in favour of giving a direction in the way the Judge did. As held by Ward LJ at p.103D, a refusal to comply after the solemnity of the court’s decision is more eloquent testimony of an attempt at hiding a truth than a mere intransigent objection. Flouting the court’s direction is a more compelling circumstances for drawing the adverse inference, see p.103G. We reject the submission of Mr Lam that it is futile to make the direction in light of the objection of the Respondent.” (emphasis added)
49. I can see no reason that the findings of Deputy District Judge A Tse Ching and the Court of Appeal should be disturbed.
50. During cross-examination, when being asked whether during his relationship with the Mother (between September 2007 and 2017), the Respondent had regular sexual intercourse, he answered “yes”. Although he said in re-examination that he reduced sexual intercourse in 2013 and could not do it between 2014 and 2015 (due to his poor health condition because of Parkinson disease), I am of the view that such evidence contradicted his own affirmation evidence (see extracts of the Respondent’s evidence in the above judgments at §§27 to 29 and §38) and is thus rejected in light of the findings of the previous courts.
51. Further, I consider that the Respondent is incredible in relation to his evidence concerning his ability to father the Minor. He has given inconsistent evidence in the High Court Action and during cross-examination in this case. For instance, as per §4 of the M Chan J’s Judgment in the High Court Action, the Respondent described his relationship with the Mother as “extra-marital affair”, while he denied the same in cross-examination in the present case and said the relationship was merely “money and sex transaction”. He said he could not have sex due to poor health in the High Court Action, but at the same time admitted that he had sexual intercourse with the Mother during their relationship in cross-examination.
52. In any event, there is no medical evidence that the Respondent was physically unable or incompetent to have sexual intercourse with the Mother at the material times. During the cross examination, Mr Lam together with Mr Leung for the Respondent did not challenge the evidence of the Mother that she did not have sexual relationship with other men at the material times.
53. Further, I disagree with the submission of Mr Lam together with Mr Leung for the Respondent that the Mother was plainly not a credible and reliable witness. For the purpose of determination of the Paternity Declaration Issue, I consider that she is a truthful, reliable and reasonable witness, whose evidence should be accepted by this Court.
54. By reason of the aforesaid, I am of the view that it is entirely unnecessary for this court to decide whether to draw adverse inference against the Respondent. Upon a balance of probability, I am satisfied that the Mother has discharged the burden of proof. By applying the common sense and the insight gained from first impression as said by the Court of Appeal in Re OMH (Parent and Child: Declaration), I consider that the Mother’s own evidence is sufficient to establish paternity and hence, I conclude that that the Paternity Declaration should be granted.
Respondent’s allegation that Applicant failed to serve UK Form 1
55. The Respondent complained for the very first time in his opening submissions that the Applicant failed to serve the UK Form 1 of the UK legislation under Schedule 1 of the Blood Tests (Evidence of Paternity) Regulations 1971 (the “1971 Regulations”).
56. Ms Wong for the Applicant argued that according to the wordings used in the DNA Test Order, it does not impose any obligation on the Applicant to serve the UK Form 1, which only directs the Respondent to do the test. The compliance of such direction rests on the Respondent.
57. In my view, it is only an academic issue since I have already determined the Paternity Declaration Issue in favour of the Applicant without the need to draw adverse inference against the Respondent under Section 15(1) of the PCO.
58. Both parties’ Counsel have done a very thorough legal research on this issue, which I must highly appreciate. In case I need to resolve this issue, I tend to accept the submission of Mr Lam and Mr Leung for the Respondent.
59. First of all, sections 18(1)(b) and 18(2)(b) of the PCO provide that the “Chief Justice may make rules as to the manner of giving effect to directions under section 13” (ie directions for the use of scientific tests to determine parentage). However, to date, no such rules have been made. Thus, there is a lacuna.
60. In this connection, according to the Review of Family Procedure Rules: Interim Report and Consultative Paper published by the Chief Justice’s Working Party on Family Procedure Rules in February 2014, it was observed at §32 that “In specific matters such as declaratory proceedings concerning marital status, parentage, legitimacy or legitimation, there are no specific provisions on how and where to commence such proceedings. One may have to resort to the English practice even though it is not provided for in any Ordinance or rule”.
61. In view of the absence of any statutorily prescribed form of direction (whether under the PCO or any rules made thereunder) where the Court makes a direction the use of scientific tests under section 13 of the PCO, it was open to DDJ Tse-Ching to follow the approach of Bharwaney J in Re P (Parentage: Blood Tests) [2010] 4 HKLRD 497 and adopt the form of direction used in England. Bharwaney J stated at §31 of his judgment that there was no reason why the Hong Kong Court could not adopt the form of direction used in England in a similar situation:
“The parties were in general agreement that I could issue a direction in the form of Form 1 under Sch.1 of the Blood Tests (Evidence of Paternity) Regulations 1971. In the absence of rules under our Parent and Child Ordinance, I see no reason why we should not follow the English practice in making a direction similar to the direction set out in Form 1 of the Blood Tests (Evidence of Paternity) Regulations 1971.”
62. Bearing in mind the nature of the DNA Test Order, I accept that it was the Applicant’s responsibility to draw up and serve the UK Form 1 on the Respondent under the English practice and the 1971 Regulations. I also consider that the UK Form 1 is a fundamental requirement but not a mere formality. The purposes of the UK Form 1 are, amongst others, to:
(i) In Parts I and II of the 1971 Regulations, give proper notice to the Respondent as to the deadline for submitting to a test and the identity of the sampler (so that the Respondent can make a properly informed decision as to whether to submit to a test).
(ii) In Part V thereof, give an opportunity for the Respondent to make a contemporaneous written signed declaration either giving or withholding consent and recording the reason therefor.
(iii) In Parts VII / VIII thereof, require the sampler to make a formal written signed declaration to the Court confirming that the sample was taken or that the Respondent failed to attend at the arranged time, with an opportunity to record any reasons given by the Respondent for failing to attend.
(iv) In Part IX thereof, require the tester to make a formal written signed declaration to the Court confirming that the sample was received and handled by him.
63. Besides, the court may draw such inferences, if any, from that fact as appear proper in the circumstances, as per section 15(1) of the PCO. If the Applicant did serve the UK Form 1 on the Respondent, he should have the right to seek legal advice as to how to response to it. In the circumstances, I consider improper to exercise my discretion to draw adverse inference against the Respondent.
64. Hopefully, the Judiciary would issue a practice direction to deal with the relevant practice and procedure in the near future.
MAINTENANCE ISSUE
Legal principles: the application of GMO
65. The jurisdiction to provide maintenance for children borne out of wedlock is provided in section 10(2) of the GMO:
“The court may as regards a minor, on the application of a person with whom, whether by virtue of an order under subsection (1) or otherwise, custody of the minor lies at law, make in respect of the minor any one or more of the following orders—
(a) an order requiring payment to the applicant by the parent or either of the parents of the minor of such lump sum (whether in one amount or by instalments) for the immediate and non-recurring needs of the minor or for the purpose of enabling any liabilities or expenses reasonably incurred in maintaining the minor before the making of the order to be met, or for both, as the court thinks reasonable having regard to the means of that parent;
(b) an order requiring payment to the applicant by such parent or either of such parents of such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of that parent;
(c) an order requiring the securing to the applicant by such parent or either of such parents, to the satisfaction of the court, of such periodical sum towards the maintenance of the minor as the court thinks reasonable having regard to the means of that parent;
(d) an order requiring the transfer to the applicant for the benefit of the minor, or to the minor, by such parent or either of such parents, of such property, being property to which the parent is entitled (either in possession or reversion), as the court thinks reasonable having regard to the means of that parent;
(e) an order requiring the settlement for the benefit of the minor, to the satisfaction of the court, of such property, being property to which such parent or either of such parents is so entitled, as the court thinks reasonable having regard to the means of that parent.”
66. The legal principles in relation to the provision of maintenance for children borne out of wedlock are summarized in WGL v ASB, HCMP 489/2013, 28 June 2013, §§54 to 57, which adopted the leading English authority of Re P (Child: Financial Provision) [2003] 2 FLR 865:-
“54. Notwithstanding those differences in legislation, in relation to the financial provision of a child of unmarried parents, as I have set out in H v S, and also recently set out by Judge B Chan in his judgment in IDC v SSA, those principles and guidelines set out in the leading English authority of Re P (Child: Financial Provision) and the line of cases thereafter have provided very helpful guidance to the courts in Hong Kong.
55. In Re P, a summary of the relevant considerations was set out by Bodey J, as follows:
(i) The welfare of the child while a minor, although not paramount, is naturally a very relevant consideration as one of ‘...all the circumstances…’ of the case
(ii) Considerations as to the length and nature of the parents' relationship and whether or not the child was planned are generally of little if any relevance, since the child's needs and dependency are the same regardless: J v C (child: financial provision) [1998] 3 FCR 79 at 81.
(iii) One of the 'financial needs of the child' (to which by para 4(1)(c) the court must pay regard) is for him or her to be cared for by a mother who is in a position, both financially and generally, to provide that caring. So it is well established that a child's need for a carer enables account to be taken of the caring parent's needs: Haroutunian v Jennings [1980] FLR 62 at 66; and A v A (financial provision for child) [1995] 1 FCR 309 at 317.
(iv) By paras 4(1)(a) and (b) of Sch 1, the respective incomes, earning capacities, property and other financial resources of each of the parents must be taken into account, together with their respective financial needs, obligations and responsibilities. So 'the child is entitled to be brought up in circumstances which bear some sort of relationship with the father's current resources and the father's present standard of living: J v C (child: financial provision) [1998] 3 FCR 79 at 87 per Hale J.
(v) However, as this latter concept lends itself to demands going potentially far wider than those reasonably necessary to enable the mother properly to support the child, 'one has to guard against unreasonable claims made on the child's behalf but with the disguised element of providing for the mother's benefit rather than for the child: J v C (child: financial provision) [1998] 3 FCR 79 at 87.
(vi) In cases where the father's resources permit and the mother lacks significant resources of her own, she will generally need suitable accommodation for herself and the child, settled for the duration of the child's minority with reversion to the father; a capital allowance for setting up the home and for a car; and income provision (with the expense of the child's education being taken care of, generally, by the father direct with the school).
(vii) Such income provision is reviewable from time to time, according to the changing circumstances of the parties and of the child.
(viii) The overall result achieved by orders under Sch 1 should be fair, just and reasonable taking into account all the circumstances.
56. Bodey J then went on to say in Re P that from the experience of that case, he would propose three further considerations :
“(i) In considering the mother's budget, at least in bigger money cases, the court should paint with a broad brush, not getting bogged down in detailed analyses and categorisations of specific items making up opposing budgetary presentations. Rather, the court should do its best to achieve a fair and realistic outcome by the application of broad common sense to the overall circumstances of the particular case.
(ii) Comparisons with the commercial cost of providing professional care are unlikely to be of great assistance and may only serve to distract.
(iii) When setting up a budget for the sort of lifestyle a child should be enabled to have, the court should not generally attach weight to the risk that the father may reduce or withdraw his support when the child comes of age (or ceases education or training) thereby obliging the child to adapt to a lower lifestyle at that time.”
57. In Hong Kong, this court’s jurisdiction is discretionary. No factors having been set out in legislation, the only criteria in s 10 (2) of our GMO is what the court deems “reasonable” having regard to the means of the parent to whom the application is directed, which in the present case is the Father. In exercising discretion, this court will have regard to all the circumstances of the case, and in my view, these should include those matters as provided in the English legislation.”
67. The standard of living of the father is a relevant factor, as stated in J v C (child: financial provision) [1999] 1 FLR 152 at 160, adopted in Re P at §55 (above): “the child is entitled to be brought up in circumstances which bear some sort of relationship with the father's current resources and the father's present standard of living.”
68. Ms Wong for the Applicant also submitted, which is not disputed by the Respondent’s counsel, that this principle requiring the taking into account of the caring parent’s needs by awarding mother’s or carer’s allowance is recognized in Re P (above) at §§48-49:
“48. In making this broad assessment how should the judge approach the mother’s allowance, perhaps the most emotive element in the periodical payments assessment? The respondent will often accept with equanimity elements within the claim that are incapable of benefiting the applicant (for instance school fees or children’s clothing) but payments which the respondent may see as more for the benefit of the applicant than the child are likely to be bitterly resisted. Thus there is an inevitable tension between the two propositions, both correct in law, first that the applicant has no personal entitlement, secondly, that she is entitled to an allowance as the child’s primary carer. Balancing this tension may be difficult in individual cases. In my judgment, the mother’s entitlement to an allowance as the primary carer (an expression which I stress) may be checked but not diminished by the absence of any direct claim in law.
49. Thus, in my judgment, the court must recognise the responsibility, and often the sacrifice, of the unmarried parent (generally the mother) who is to be the primary carer for the child, perhaps the exclusive carer if the absent parent disassociates from the child. In order to discharge this responsibility the carer must have control of a budget that reflects her position and the position of the father, both social and financial. On the one hand she should not be burdened with unnecessary financial anxiety or have to resort to parsimony when the other parent chooses to live lavishly. On the other hand whatever is provided is there to be spent at the expiration of the year for which it is provided. There can be no slack to enable the recipient to fund a pension or an endowment policy or otherwise to put money away for a rainy day.”
69. Ms Wong for the Applicant further submitted that this was also recognized in T v J, FCMP 38/2007, 26 August 2008, §24:
“While the court must always guard against unreasonable claims made on behalf of a child’s behalf with the disguised element of providing for the mother’s benefit rather than the child, as the Father suspects to be the case here, it is well established that a child’s need for a carer enables account to be taken of the caring parent’s financial needs, as the welfare of the child is not just one of the relevant circumstances, but also a constant influence on the discretionary outcome : N v D. It is therefore not realistic simply to apportion items of the budget as referable to the child’s needs because, in my judgment, financial provision must also be made to the mother to enable her to meet the child’s needs, even if it means only temporary until she is able to obtain domestic help and returns to work to maintain herself, as is the proposal of the Mother here, and as the Court of Appeal in the case of Re P (Child : Financial Provision) [2003] 2 FLR 865, [2003] All ER (D) 312 (Jun), CA, indicated that “a more generous approach to the calculation of the mother’s allowance is not only permissible but also realistic”.”
Respondent’s financial position
70. The Respondent has not filed a Form E but undertook that he would not take issue on his financial ability to pay any maintenance sought by the Applicant. The Respondent’s standard of living is however a relevant factor. Ms Wong for the Applicant submitted which I accept that he lives in a high-class lifestyle:-
a. The Respondent currently lives with his three children and his wife in Flat X, 27th floor, T Court, No. ZZ Tai Hang Road, Hong Kong. It is one of the properties owned by him and is worth over HK$88M. He confirmed in cross-examination that it is over 3,000 sq. ft.
b. The Respondent’s three children are all grown up. They were born in 1983, 1985 and 1988 (ie. aged 39, 37, 34). The Respondent is served by one helper and one driver.
c. He is a Hong Kong Jockey Club member.
d. He is holding the following properties in Hong Kong, as confirmed in cross-examination:-
i. Flat X, 27th floor, T Court, No. ZZ Tai Hang Road, Hong Kong
ii. Shop WW, 1st Floor, M O House, Nos. 1UU Wan Chai Road, Hong Kong
iii. Shop VV, Vth Floor, CNT Tower, 338 Hennessy Road, Hong Kong
iv. Flat A, XXth Floor, Wai Sing Mansion, Sing Fai Terrace, No. 12 Taikoo Shing Road, Taikoo Shing, Hong Kong
v. BB Floor, No. 26A Russell Street, Hong Kong
vi. CC Floor, No. 28 Russell Street, Hong Kong
vii. DD Floor, No. 28 Russell Street, Hong Kong
e. The Respondent further holds one property in London and one property in Japan, as confirmed in cross-examination.
f. He had mentioned to the Mother that his assets were over HK$300M. He disputed at first in cross-examination but when shown the transcript of the High Court Action where he admitted the same, he said he did not remember. In the M Chan J’s judgment of the High Court Action, it was stated: “The property at Tai Hang Road, which was the matrimonial home for Wong[3] and his wife, was worth over $88 million, and Wong holds 50% of the shares in the company which holds the property. Wong does not dispute that he had informed Nicole[4] that his total assets were worth $800 million.[5] ”
g. The Respondent owns his business of real estate and property management with the company called CR Consultants (HK) Ltd.
71. In light of the above, I accept that the present case is quite close to a big money case and this Court may adopt a broad brush approach in deciding maintenance:- see WGL v ASB, HCMP 489/2013, 28 June 2013, §§56(i), adopting Re P:-
“In considering the mother's budget, at least in bigger money cases, the court should paint with a broad brush, not getting bogged down in detailed analyses and categorisations of specific items making up opposing budgetary presentations. Rather, the court should do its best to achieve a fair and realistic outcome by the application of broad common sense to the overall circumstances of the particular case.” (emphasis added)
72. While the Respondent is living in a high-class lifestyle, Ms Wong submitted that the Applicant is not asking for the same standard but only a standard approaching a middle-class lifestyle.
Mother’s own financial position, earning capacity and income
73. The Mother had worked for a short period of time:
b. From October 2020 to July 2021 (10 months), the Mother worked for her friend Ms. Lai as her personal assistant at L10 Property Management Limited with a monthly income of HK$49,500 (inclusive of MPF payment of HK$1,500). The Mother testified that her friend could no longer employ her because her business was affected by the pandemic. Her friend offered her the short-term job merely as a friend to relieve her financial burden as she knew that the Mother was involved in litigation. (“Job 2”). The information provided by the Mother is consistent with the tax return which states that in year 2020/21 (ie. April 2020 to March 2021), the annual income was HK$297,000 (approx. HK$49,300 X 6 months being from October 2020 to March 2021).
74. Other than the above, the Mother said that she had not been working since September 2007 when the Respondent asked her to stop working as a massage master earning about HK$30,000 a month.
75. From the above, I accept that the Mother has been out of the job market for many years. Her attempt to find a job between 2018 and 2019 only ended up in Job 1 with an income of HK$17,000 per month, and she is further subject to restriction as she had to take care of the Minor who is only 6 years as of now. Her short-term income in Job 2 is not indicative of her earning capacity since it was a short-term offer by her friend to alleviate her immediate financial needs. In any event, such friend can no longer employ the Mother.
76. In light of the above, I consider that the Mother possesses very low earning capacity. According to her Form E, the general expenses are about HK$26,700 per month whilst her personal expenses are about HK$14,300 per month. I am of the view that her earnings are just capable and sufficient to discharge her personal expenses with part of the general expenses, not to say the Minor’s expenses.
77. Although Mr Lam for the Respondent tried to argue that the Mother was less than forthcoming and gave unsatisfactory answers in her Form E, it cannot be disputed that their financial resources have huge disparity, namely the Respondent has much greater financial resources than the Mother. I conclude that the Respondent should be wholly responsible for the reasonable needs of the Minor.
Provision of another property to accommodate the Minor
78. The Mother, a domestic helper and the Minor currently live in the Premises (a 2-bedroom property of 380 sq ft gross floor area situated in Wan Chai). In my view, unless the decision of M Chan J’s is overturned by the Court of Appeal, the Premises is indeed a gift by the Respondent to the Mother.
79. Ms Wong for the Applicant sought settlement of property in her closing submission for the benefit of the Minor to be held for the Respondent by way of reversion. I disagree as such request is a bit complicated in view of the old age of the Respondent and the succession issue.
80. Since the appeal in CACV 522/2021 is not yet determined, I have to take that the Mother is the beneficial owner of the Premises as at the date of this judgment. I consider that the Premises is insufficient for the Minor’s reasonable needs and provision for another property of larger in size, say 650 sq ft, is reasonable and necessary. A reasonable amount for monthly rental (until the Minor reaches the age of majority or completes full-time education, whichever is later) should be allowed and included in the monthly periodical payments. Based on her affirmation[6] and the materials adduced[7] with upward adjustment, I am of the view that HK$28,000 is the reasonable amount for monthly rental.
81. While the Minor and the Mother reside in another larger flat, the Premises should be rented out. In cross-examination, the Mother estimated that the Premises can be rented out at around HK$12,000 to 13,000 per month. But she said in her affirmation[8] that the monthly rental of the Premises was $14,000. Accordingly, I consider that HK$13,000 be deducted from the reasonable amount for monthly rental of the larger flat and that the net rental payable by the Respondent is HK$15,000 per month (“Net Rental”).
82. If the appeal in CACV 522/2021 is allowed (ie the Respondent is held to be the beneficial owner of the Premises), then the said HK$13,000 should not be deducted and the rental payable by the Respondent is HK$28,000 per month.
Carer’s allowance
83. Mr Lam for the Respondent submitted that no proper basis has been made out for a “carer’s allowance” to be paid by the Respondent to cover the Mother’s loss of earnings:
(1) At the time of the Minor’s birth, the statutory length of maternity leave was 10 weeks: Employment Ordinance, Cap. 57, section 12[9].
(2) On the Mother’s own case, although she has provided no documentary evidence in support, she contends that she employed a domestic helper at the time of the Minor’s birth.
(3) The Court should only allow a “carer’s allowance” for the first 3 months after the Minor’s birth (i.e. April to June 2016). Thereafter, the Mother should have been capable of returning to work while the domestic helper cared for the Minor. In this regard, the Mother testified in cross-examination that when she worked as a ‘relationship officer’ at OP Spring from around October 2018 to March 2019 (with her working hours typically beginning at around 5pm and ending at around 2 to 3am), her domestic helper looked after the Minor (who was, at that time, 2 years old). This shows that it was unnecessary for the Mother herself to care for the Minor full-time.
(4) On the Mother’s own case, she was employed as a personal assistant at LP Management Ltd from October 2020 to July 2021, earning a monthly salary of HK$49,500 (inclusive of HK$1,500 MPF). This shows that the Mother was perfectly capable of finding a well-remunerated job.
(5) The fact that the Mother did not work for certain periods of time after the birth of the Minor was due to her own conscious decision and could not be justified by the purported need for her to care personally for the Minor full-time. In this connection, it is noteworthy that the Mother acknowledged that in her free-time, she played mahjong in the afternoon of Friday 18 June 2021.
84. By using the standard of a middle-class lifestyle in Hong Kong, I consider that it is uncommon to hire a domestic helper together with a carer to look after a child. Hence, I accept Mr Lam’s submission that the Mother’s claim for a “carer’s allowance” in the sum of HK$30,000 per month (equating to her alleged loss of earnings) should be entirely disallowed starting from July 2016 (ie the 4th month after the Minor’s birth). Instead, only a total sum of HK$90,000 should be allowed as the Mother’s “carer’s allowance” for the 3 months from April to June 2016. The cost of employing a domestic helper is covered by the claim for living and household expenses.
The Minor’s needs and claims
85. The Applicant claims a lump sum payment of HK$4,522,238.80 as expenses already incurred in relation to the Minor:
Expenses for giving birth to the Minor HK$202,112[10] Expenses for the Minor from his birth on 1.4.2016 to 11.9.2017 HK$1,086,904 Expenses for the Minor from 1.10.2017 to 31.8.2021 HK$3,233,222.80 Total lump sum payment: HK$4,522,238.80
86. The Applicant further claims a periodical payment for the Minor’s monthly expenses, being HK$91,374 per month, which consists of the following:
Living and household expenses
(see item 4.1 of Form E)HK$26,711 Children expenses
(see item 4.3 of Form E)HK$34,663 Loss of monthly earnings to take care of the Minor (ie carer’s allowance) HK$30,000
(based on the earnings of the Mother’s previous job as a massage master, which the Mother gave up at the request of the Respondent).Total per month: HK$91,374
87. Ms Wong for the Applicant submitted that such general expenses are expected to increase by HK$31,927 by September 2022, when the Minor graduates to primary education, which will entail, among other things, an increase in expenses for tuition, extracurricular activities, family entertainment (e.g. when travel restrictions are lifted), thus rendering the estimated monthly expenses to be incurred to be HK$123,301 per month from September 2022 onwards.
88. As to the Applicant’s claim for the provision of a property to accommodate the Minor and the carer’s allowance, these issues have been discussed and dealt with above.
89. Mr Lam for the Respondent submitted that the quantum of the remaining claims is significantly inflated, not reasonably necessary and liable to be adjusted downwards.
90. As explained by Deputy High Court Judge B. Chu (as she then was) in WGL v ASB [2013] HKFLR 391 at §55(iv), “the child is entitled to be brought up in circumstances which bear some sort of relationship with the father's current resources and the father's present standard of living”. I accept that this does not mean that a child is entitled to be brought up in circumstances which are identical to the father’s current resources and present standard of living.
91. As observed by HH Judge Bruno Chan in JGBMK v JPLY (unrep., FCMC 61/2011, 4 October 2013) at §15, the Court would consider “the reasonable needs and requirements of the child which must necessarily be linked to the situation of the custodial parent, financially and otherwise”. In the present case, the situation of the Mother including her living standard before the Minor’s birth has to be considered, in particular the Mother’s evidence, which is accepted by the Court, that the Respondent paid $30,000 every month to the Mother who agreed to give up her job as a massage master.
92. Generally speaking, I agree with Mr Lam’s submission that the receipts produced by the Mother in these proceedings are significantly incomplete and that some of them do not properly evidence the level of spending for the Minor alleged by the Mother. Nonetheless, I appreciate that it is always very difficult to keep all kinds of receipts fort the spending. In the circumstances, the court may have to use a board-brush approach with some common sense.
93. I consider that the amount of HK$202,112 claimed as expenses relating to the Minor’s birth is excessive. Since no proper documentary evidence has been provided in support, I only allow HK$160,000.
94. In respect of household expenses (such as electricity, water, management fees etc), as such expenses are incurred for both the Mother and the Minor, I only accept that the Respondent should only be responsible for about half of them being the share attributable to the Minor.
95. As set out in the breakdown provided by the Mother, the sum of HK$1,086,904 claimed as expenses for the Minor from his date of birth (1 April 2016) until 11 September 2017 includes the monthly sum of HK$40,000 claimed by the Mother as a “carer’s allowance” equating to her alleged loss of earnings (HK$40,000 x 17months = HK$680,000”). After this sum of HK$680,000 is deducted from HK$1,086,904, HK$406,904 is claimed as living and household expenses for the said period of 1 year 5 months, i.e. HK$23,936 per month. In my view, this amount is excessive and shall be reduced to $18,000 per month, which is reasonable and allowed.
96. For the expenses claimed from 1 October 2017 until 31 August 2021, as the Respondent accepted the school fees claimed to be reasonable, HK$245,300 (ie HK$74,300 + HK$85,500 + HK$85,500) should be allowed. However, Mr Lam submitted that the amounts claimed for living and household expenses (HK$26,711 per month) and extracurricular activities (HK$10,533.80 per month) are excessive and should be reduced. I agree and only allow HK$22,000 per month for living and household expenses and HK$8,000 per month for extracurricular activities.
97. To sum up, I allow HK$2,141,300 as lump sum, breakdown of which is set out as follows:
Expenses for giving birth to the Minor HK$160,000 Expenses for the Minor from his birth on 1.4.2016 to 30.9.2017 (ie $18,000 X 18 months plus $90,000 being carer’s allowance for 3 months from April to June 2016) HK$414,000 Expenses for the Minor from 1.10.2017 to 31.8.2021 (ie $245,300 + $22,000 X 47 months + $8,000 X 36 months) HK$1,567,300 Total lump sum allowed: HK$2,141,300
98. From 1 September 2021 to 31 August 2022, I allow HK$13,400 per month roughly half of the general expenses as claimed, which represents the Minor’s share and HK$31,000 per month for the Minor’s expenses, totalling HK$44,400 per month.
99. From 1 September 2022 onwards, I disagree with the Applicant’s submission that the general expenses are expected to increase by HK$31,927 by September 2022, when the Minor graduates to primary education. The Applicant fails to justify as to how the figure of HK$31,927 is arrived. On top of the Net Rental of HK$15,000 payable by the Respondent as said above, I can only accept 10% increase and allow HK$63,840 per month (ie $15,000 + $44,400 X 10%).
CONCLUSION
100. In the circumstances, I make an order as follows:
1. A declaration that the Respondent is the natural father and in law the parent of the Minor under section 6 of the PCO, and consequentially a direction that the Registrar of the Court shall notify the Registrar of Births and Deaths of the making of the aforesaid declaration of paternity;
2. The Respondent do pay a sum of HK$2,141,300 as lump sum to the Applicant within 7 days; and
3. The Respondent do pay the Applicant a periodical payment for the benefit of the Minor for HK$44,400 per month from 1 September 2021 to 31 August 2022 and for HK$63,840 per month from 1 September 2022 onwards and thereafter on the first day of each month until the Minor reaches the age of 18 or completes full-time education, whichever is later.
101. As to the question of costs, I see no reason to depart from the general principle, namely costs follow events. I make a costs order nisi that the Respondent do pay the Applicant costs of the proceedings including all costs reserved, if any, with certificate for counsel to be taxed if not agreed, which shall become absolute unless any of the parties apply for variation by way of summons together with supporting affidavit, if necessary, within 14 days.
102. Last but not least, I thank all Counsel for their valuable assistance.
| ( Simon Lo ) District Judge |
Ms Carol Wong instructed by Chan, Wong & Lam, Solicitors for the Applicant
Mr Osmond Lam and Mr Dexter Leung instructed by Lee Wong & Co., Solicitors for the Respondent
[1] FCMP 121/2017 [2020] HKFC 19
[2] CAMP 19/2020 [2020] CA 415
[3] ie Respondent
[4] ie Mother
[5] Bundle A2 pg 416. Ms Wong for the Applicant clarified that the Respondent confirmed HK$300 million in the High Court Action instead of HK$800 million.
[6] Bundle A pg 83
[7] Bundle B pg 213 to 220
[8] Bundle A pg 83
[9] The said statutory provision was amended in 2020 to increase the length of maternity leave from 10 to 14 weeks
[10] Bundle A, pg 110 - 113