LIU KAIBANG, a minor, by his next friend and mother LIU LIJUAN v. LAI JOSEPH TAK

HCAP 44/2023

[2026] HKCFI 1262

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 44 OF 2023

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DECISION

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Introduction

1.  On 25 February 2025, I made an order granting leave to the parties to appoint a laboratory in Hong Kong to conduct DNA tests for the purpose of determining whether the plaintiff is the natural biological son of the deceased. 

2.  The order was made after a contested hearing. My reasons for making the order are set out in the decision at [2025] HKCFI 1251.  I shall adopt the defined terms used in that decision below.

3.  Under para 3(1)  of the order, leave was granted to the parties to jointly appoint a single laboratory. 

4.  Under para 3(2)  of the order, the parties were given seven days to agree on the choice of the laboratory, but in the event that no agreement could be reached, the court would make a determination taking into account the curriculum vitae of the proposed laboratories and their respective costs and time estimates. 

5.  Parties could not reach agreement within the deadline, each nominating his own expert.  The defendant has proposed as his expert HK.DNA Diagnostics Laboratory Limited, a Hong Kong-based laboratory. The plaintiff has nominated Cellmark Forensic Services, a laboratory based in the United Kingdom. 

6.  The reason why the plaintiff has reached out to laboratories outside of Hong Kong is this.  According to the plaintiff’s solicitors, they had approached 29 private laboratories in Hong Kong, but none of them were able to agree to do the tests.  According to the laboratories, they were not able to conduct DNA tests on body remains or perform post-mortem DNA paternity tests which require exhumation.  They were not able to do so because the DNA samples on a deceased person who has died for some time and been buried, in this case for more than six years, will likely be deformed or degraded, making DNA testing unreliable and difficult.  Some of the laboratories stated that they are able to conduct post-mortem DNA tests only if the deceased had recently passed away such that his saliva, hair or soft tissues are still available. 

7.  The outcome of the plaintiff’s solicitors’ enquiries was that all of the 29 laboratories declined to conduct the tests. Furthermore, according to the laboratories, for a body who had been buried for more than six years, samples would have to be collected from the skeletal remains, and that expertise and equipment are needed to avoid cross-contamination.

8.  As the order required the party to appoint “a laboratory in Hong Kong”, for the plaintiff to engage Cellmark, a variation of the order is required.  In addition, as no agreement on the choice of laboratory can be reached between the parties, in order to break the deadlock, avoid delay, save time and spare unnecessary legal costs, the plaintiff’s position is that the order should also be varied, such that each of the parties are allowed to appoint their own laboratories. 

9.  It is in these circumstances that the plaintiff took out a summons on 23 April 2025 seeking variation of the order. 

10.  The main variations sought are accordingly: 

(1)  The appointment of the laboratory be changed from a single laboratory to separate laboratories for the parties; and

(2)  A laboratory outside of Hong Kong may be appointed. 

11.  The plaintiff’s summons was adjourned to today for substantive argument.  Last week, a consent summons was filed.  Parties now agree to the above two variations and other consequential directions. 

12.  On 19 January 2026, I raised the following queries on the consent summons: 

“3. Why would HK.DNA Diagnostics be regarded as a suitable laboratory given its admitted lack of experience in taking DNA tests on long deceased bodies?

4. Is there any reason for the defendant to oppose the plaintiff’s nominated expert?

5.  Is there any justification for altering the existing order that a single laboratory should be appointed?” 

13.  Parties have now addressed these issues by written submissions, supplemented by oral submissions made today.  This is my decision on the plaintiff’s summons and the consent summons. 

Basis for varying the order

14.  The starting point of the discussion must be the order made last February.  It was made after a contested hearing.  If a party wishes to seek a variation, he must provide a justification why the order should be disturbed. 

15.  Ms Carol Wong, counsel for the defendant, submits that the order was predicated on the expectation that the parties could agree on a mutually acceptable, single source of expert evidence.  This premise has now failed.  The parties are in fundamental disagreement.  Each has proposed a laboratory.  Each party has advanced reasons why the other party’s proposed expert is unsuitable.  In light of the opposition, Ms Wong submits that the appointment of a single joint expert is no longer practicable or suitable.  To force a joint appointment now would either compel one party to accept an expert that he believes to be inadequate or result in a deadlock that further derails the proceedings.  The procedural mechanism has been exhausted and that justifies a variation of the order made last February. 

16.  I do not agree with this submission.  

17.  It was expressly contemplated in the order that the parties might not be able to agree on the choice of laboratory, and it therefore provided for the mechanism that in that event, the parties should put in submissions, and the court would then make a determination.  That is the mechanism set up in para 3(2)  of the order.  Now that there is disagreement, the task of the court is to follow that mechanism and choose between the two proposed candidates, rather than to appoint two separate candidates. 

18.  It is also not correct for Ms Wong to say that the parties would be forced to accept the expert of the other side at the trial.  It remains open for either party to challenge at the trial the qualification, expertise and experience of the single expert and the contents of the final report, if they have a proper basis to do so. 

19.  I will therefore proceed to consider the two candidates and make a determination, but I will come back to the issue of whether there is other ground justifying the variation of the order later.

Challenges posed by post-mortem DNA tests

20.  The deceased passed away in September 2018 and the body has been buried in Hong Kong for more than seven years.  There is no dispute that by now there will have been decomposition in the body.  What one cannot tell is the extent of the decomposition.  However, due to the long lapse of time, there is plainly a possibility that the decomposition has progressed to such an extent that only the teeth and the bones of the body remain, with no soft tissue remaining.

21.  There can be no dispute that this type of post-mortem DNA test poses specific challenges as the DNA samples recovered from such skeletal remains may not be sufficient or of a good enough quality with the result that any test results conducted based on these samples are not reliable.  For instance, degraded or contaminated DNA may be collected, which would render the result inaccurate. 

22.  It is therefore crucial to appoint forensic scientists who possess the relevant experience and the necessary expertise in post-mortem DNA test, as opposed to those who only have experiences in doing DNA tests on live persons or recently deceased persons. 

HK.DNA vs Cellmark

23.  With the defendant’s consent, the plaintiff’s solicitors reached out to HK.DNA and made enquiry about the latter’s experience in conducting post-mortem DNA tests. 

24.  The questions asked were: 

“1. How long had those deceased persons passed away before samples were taken by Mr.Tong and Mr.Sum;

2. Whether samples of the deceased persons were collected after exhumation; and

3.  Whether the results were conclusive or inconclusive (and if so why).”

25.  The answers given were correspondingly: 

“1. We had previously taken the nails and hairs from the deceased persons within 30 days after they passed away.

2. Those samples of the deceased persons were collected before exhumation.

3.  All the results were conclusive.” 

26.  It is clear from the above that HK.DNA has no prior experience in conducting DNA tests on long deceased bodies.  In my view, that places it at a distinct disadvantage if it is to be appointed to be the laboratory for conducting the paternity test in our case. 

27.  Ms Wong argues that HK.DNA nevertheless has the required expertise in doing other types of DNA tests.  Further, it proposes to adopt an advanced technology called the “SNP analysis” rather than the conventional “STR analysis”, the former being more suitable for handling severely fragmented DNA samples, and the STR analysis is what Cellmark appears to be proposing to use. 

28.  I do not have sufficient information at this stage to determine which technology is more advanced or suitable.  The objective fact, however, remains that HK.DNA has no prior experience in conducting DNA tests on long deceased bodies.  It has never applied the SNP analysis on this kind of bodies.  Any opinion it now gives on the SNP analysis, however advanced it may be, is based on academic literature, but not based on actual experience.  As such, I am not able to give much weight to this opinion for present purposes. 

29.  Expertise is to be built upon, among other things, experiences.  The tests that are required in this action require special expertise.  As a matter of fact, HK.DNA has no prior experience doing these tests.  For that reason, I am not satisfied that it is a suitable candidate in this action. 

30.  By contrast, based on the information provided by the plaintiff, Cellmark would appear to have the relevant experiences and expertise. 

31.  According to its written proposal, Cellmark was established in 1987 by the pharmaceutical company ICI (subsequently AstraZeneca)  as the world’s first commercial DNA fingerprinting laboratory.  It is one of the largest ISO 17025 accredited forensic analysis companies in the UK.  It has about 450 employees.  It is contracted by over 80% of the police forces in England and Wales.  In addition, it holds contracts with the military, government agencies, and the private sector.  Cellmark became part of the Eurofins Scientific Group in August 2024. 

32.  As regards its experiences on post-mortem DNA tests, the company originally developed specialist extraction techniques for bone and teeth samples in 2005.  I quote this passage from the proposal below, in which Cellmark’s track record on conducting DNA tests on historical remains and in war zone and disaster situations is set out:

“Since then, we have undertaken over 1,500 body identification cases and, excluding training and validation samples, Cellmark has undertaken DNA testing on ~ 7,400 human bones and ~ 450 human teeth from historic remains (we are contracted to provide a DNA identification service for fallen British Commonwealth soldiers from the first and second world wars and also to the International Committee of the Red Cross for Forensic identification of individuals who have died in conflicts)  as well as more recently interred remains in police investigations and human remains from Disaster Victim Identification cases including the Ethiopian Airlines flight ET302 crash in 2019 …”

33.  According to the above information, Cellmark plainly has the right credentials and is the right match for the task at hand. At the hearing today, the defendant has not mounted any challenge on Cellmark’s experience and expertise.

34.  In my view, Cellmark is a more suitable candidate than HK.DNA to conduct the DNA tests on the Locus Issue. 

35.  Since Cellmark is based in the UK, that would require a third party to take samples in Hong Kong and transport them to the UK.  Ms Wong submits that given that there will be a chain of transfers and multiple parties are going to be involved, this would increase the risk of contamination of the DNA samples.  By comparison, HK.DNA will be able to collect and analyse the samples within the same team locally, thus reducing such contamination risks. 

36.  I agree that this is a relevant factor that should be taken into account in choosing the right candidate.  However, according to the proposal of Cellmark, it also has experiences in dealing with overseas remains.  The proposal also contains a protocol for the collection of DNA samples in this case to safeguard the integrity of the samples.  It appears to me that the contamination risk is manageable and Cellmark has the experience of managing such risk. 

37.  In any event, as remarked above, at the trial, it is open to the parties to query or challenge or raise the issue of contamination as they see fit.  Therefore, this factor would not detract from my view that Cellmark is the more suitable candidate in this case. 

Variation

38.  I therefore conclude that as between HK.DNA and Cellmark, the latter is the more suitable candidate.  There is no justification for departing from the direction that a single laboratory be appointed, and Cellmark should be appointed as that single laboratory.

39.  Due to the lack of suitable laboratories in Hong Kong, an order needs to be made to vary the previous order and allow Cellmark, an overseas institution, to be appointed, and consequential directions need to be given as a result.  In particular, an agent in Hong Kong needs to be appointed to collect the sample.  Directions ought to be given in this regard for taking the matter forward. 

Orders

40.  The parties have jointly come up with a draft order reflecting the points discussed above during the short adjournment. Based on that draft, I would order that paras 3 to 5 of the order dated 25 February 2025 be varied and replaced by the following with effect from today:

“3. The following directions be given for the conduct of the hearing of the Locus Issue:-

(1)  Leave to the parties to jointly appoint Cellmark Forensic Services, a United Kingdom based forensic laboratory (“Lab”), to conduct the following three tests (“Tests”):

(a)  DNA comparison tests against the bodily samples of the Plaintiff and the Defendant, to determine whether the Defendant is the biological paternal uncle of the Plaintiff;

(b)  DNA comparison tests against the bodily samples of the Plaintiff and the samples exhumed from the Deceased’s remains (the “Remains”), to determine whether the Plaintiff is the biological son of the Deceased; and

(c)  DNA comparison tests against the bodily samples of the Defendant and the samples exhumed from the Remains, to determine whether the Defendant is the biological brother of the Deceased, which will serve as a control test for the tests in paragraph 3(1)(b)  above.

(2)  Parties to provide joint instructions to the Lab.

(3)  Each of the Plaintiff and the Defendant do provide their bodily samples as required for the purpose of the Tests to the Agent(s)  (as referred to paragraph 3(4)  below)  in Hong Kong, and leave be given to the Agent(s)  to obtain DNA samples from the Remains for the purpose of the Tests.

(4)  The Agent(s)  shall have expertise in taking DNA samples from skeletal remains and soft tissues from deceased and living persons. The Agent(s)  appointed shall be responsible for collecting, packaging, and delivering DNA samples from the Remains and/or from the Plaintiff and Defendant in Hong Kong to the Lab.

(5)  If the parties cannot agree on the identity of the Agent(s)  within 21 days from the date hereof, each party do lodge and exchange written submissions within 5 days thereafter limited to 3 pages each (font size 14)  stating: (a)  the name of that parties’ proposed Agent(s); (b)  the proposed Agent(s)’ curriculum vitae; (c)  the proposed costs of the Agent(s); and (d)  brief reasons why no agreement can be reached. The Court will determine the choice of the Agent(s)  on paper (unless the Court directs a hearing).

(6)  No bodily sample shall be taken from the Defendant except with his consent. The Court may draw such inferences (if any)  from any refusal to consent as appear proper in the circumstances.

(7)  The Defendant shall renew or reapply for a permit from the Food and Environmental Hygiene Department to exhume the Remains (“Permit”)  after the date of exhumation is scheduled.

(8)  Both parties and/or their legal representative shall be present when the Remains are exhumed and when the DNA specimens from the Remains, the Plaintiff and the Defendant are being obtained by the Agent(s)  respectively in Hong Kong.

(9)  The evidence of the Lab shall be in the form of a signed written report. The question whether the maker of the report has to testify at the trial of the Locus Issue as a condition for the admission of the report into evidence be reserved.

(10)  Each party do ensure that the signed written report referred to in paragraph 3(9)  above be verified by Statement of Truth and a declaration of compliance with the Code of Conduct (Appendix D of the Rules of High Court)  pursuant to Order 38, rule 37C, the Rules of the High Court;

(11)  The Plaintiff do within 21 days from the joint engagement of the Lab inform the Court of the identify of the maker of the report referred to in paragraph 3(9)  above to attend cross-examination if necessary;

4. The hearing of the Locus Issue be adjourned to a directions hearing which shall take place after the completion of the filing and serving the report referred to in paragraph 3(9)  above, with 1 hour reserved (the “Directions Hearing”).

5.  Parties do lodge the jointly proposed directions at least 3 days before the Directions Hearing.”

(Submissions re costs)

41.  This is my order on costs.  The costs of the summons, including the preparation of the affirmations, and the costs of the consent summons be in the cause of the Locus Issue.  Costs of today’s hearing be borne by the defendant, summarily assessed at $40,000, payable on or before 4 February 2026. 

42.  These are my reasons.

43.  I consider that the first set of costs spent by the parties are on identifying a suitable candidate for the DNA tests.  These costs, therefore, form part of the costs of the Locus Issue and should be made costs in the cause. 

44.  Ultimately, the defendant has lost on the merits by nominating an expert which the court does not consider to be suitable.  It took today’s hearing to resolve that issue.  Therefore, the defendant should bear today’s costs. 

Mr Kwan Ping Kan, instructed by KB Chau & Co, for the plaintiff

Ms Carol Wong, instructed by ONC Lawyers, for the defendant

HCAP 44/2023

[2025] HKCFI 3105

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 44 OF 2023

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D E C I S I O N

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Introduction

1.  On 3 June 2025, I handed down a written decision (“the Decision”)[1], in which I dismissed D’s appeal against the Order of Master KH Hui (“the Master”) dated 6 December 2024, by which the Master dismissed D’s summons for security for costs issued on 30 July 2024. On 17 June 2025, D took out a summons (“the Summons”) for leave to appeal against the Decision. I have directed that the Summons be determined on paper without an oral hearing. The parties have lodged their respective written submissions in accordance with my directions, and I have considered the same. For ease of reference, the abbreviations used in the Decision are adopted herein.

2.  In this application, P is represented by Mr Kwan Ping Kan, and D is represented by Ms Carol Wong.

The principles

3.  Leave to appeal would only be granted if the appeal has a reasonable prospect of success (which means that the prospect of success is reasonable and more than fanciful, without having to be probable), or there is some other reason in the interests of justice why the appeal should be heard.[2] What is required is a reasonably arguable appeal. Merely showing that an appeal is “arguable” and “not fanciful” is insufficient.[3]

4.  D’s application for security for costs is made under Order 23 rule 1. It is trite that whether the Court would order security for costs under Order 23 rule 1 is a decision made as a result of an exercise of discretion of the Court.[4] In order to succeed in the intended appeal, D has to overcome a high hurdle.[5] It is well established that the Court of Appeal would not interfere merely because it would have reached a different conclusion had it been hearing the application at first instance.[6] The Court of Appeal would only interfere where (a) the court below has misunderstood the law or the evidence, or (b) the exercise of discretion by the court below was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible.[7] The Court of Appeal is not to exercise an independent discretion of its own – its initial function is one of review only.[8]

5.  An appeal from the judgment made by a judge of the Court of First Instance to the Court of Appeal is not a de novo hearing. In the notice of appeal, the appellant has to identify a justifiable basis upon which the Court of Appeal may interfere in the decision of the judge below. The appeal is not a retrial or a de novo rehearing of the application which has already been determined by the court below.[9]

Grounds of appeal

6.  The grounds of appeal as set out in the Draft Notice of Appeal annexed to the Summons are as follows:

“1. The learned Judge is wrong in principle to divide the proceedings into two parts for the purpose of assessing whether security for costs should be granted (i.e. Part I being the trial of the preliminary issue on the question of paternity and locus standi of [P]; Part II being the substantive issue on the challenge of the validity of the will dated 20 December 2016 (the “Will”) (§§27, 35, Decision).

a. This is a probate action, not a paternity suit. [P] has to succeed in both Part I and Part II in order to succeed in the action. Even if [P] succeeds in Part I eventually, he will still have to pay the entire costs if he loses in Part II. Accordingly, in determining the question of security for costs, both Part I and Part II should be assessed collectively, not distinctively.

b. It is incorrect for the learned Judge to suggest that if [D] fails in Part I, costs should follow the event and [D] should not be awarded costs of the entire proceedings even if he succeeds in Part II (§35, Decision). [D] is merely acting as an executor in carrying out the Deceased’s wishes. [D] does not know the answer to Part I. In raising the question of locus standi based on paternity (i.e. Part I), [D] is simply performing his duty as an executor to ascertain the relationship between [P] and [D] and it is incorrect for the learned Judge to suggest that there needs to be actual evidence from [D] in support of a case that [P] is not the natural biological son of the Deceased (§30(4), Decision). The raising of such question is wholly justifiable in light of the information available to [D], as described in §9 of the Decision. The question of paternity (i.e. Part I) becomes a live issue only because of [P]’s challenge to validity of the Will under Part II. If [D] is merely performing his duty as an executor under the Will, then in the absence of challenge of the Will by [P] in the present case, there is no need to find out whether [P] is the biological son of the Deceased (i.e. Part I). Hence, Part I is necessitated only by reason of [P]’s challenge under Part II. Accordingly, even if [D] is unsuccessful in Part I but successful in Part II, there is still a reasonable chance that [P] be ordered to pay the entire costs. In any event, the consideration that if [D] is unsuccessful in Part I, costs should follow the event (§35, Decision) (which is denied) may at most be a factor in assessing quantum of security. This is not a factor for refusing to grant security in the first place.

c. Further, Part I is not part of [P]’s pleaded case. [P]’s substantive pleaded case concerns only Part II. Part I existed in light of [D]’s challenge of [P]’s locus standi. The existence of Part I should not be an intervening factor to the learned Judge in the assessment of the merits of [P]’s probate action for the purpose of security for costs. The learned Judge wrongly took into account the existence of Part I when assessing the question of security.

2. The learned Judge erred in holding that [D] is not entitled to seek security for [D]’s costs in Part II before knowing the outcome of Part I (§34, Decision). This ruling is highly prejudicial to [D].

a. First, [D] will be prejudiced as he will be complained of delay. Since this is a probate action which [P] challenges the validity of the Will, the substantive disputes are those stated in the Statement of Claim, namely, Part II as categorized by the learned Judge. As early as the filing of the Statement of Claim, [D] is already in the position to know that [P] is a foreign party and to assess that [P]’s challenge of the validity of the Will is without merits. If [D] does not apply now but only wait until after the outcome of Part I, then such application would be said to be made with delay and not promptly.

b. Second, [D] will further be prejudiced because he will have no protection in relation to the substantial costs already incurred.

i. In relation to costs of Part II, they have been incurred since the commencement of the proceedings as the entire Statement of Claim concerns Part II. Substantial parts of the pleadings and evidence being prepared by [D] throughout the process concern Part II. There has never been a stay of proceedings in relation to Part II. Part I and Part II are running in parallel. [D] will risk not being able to recover the costs already incurred if the security for costs application is only made after the completion of Part I.

ii. In relation to costs of Part I, as recognized by the learned Judge, the amount is substantial (§35, Decision). Part I is very complicated. It requires directions on scientific test on DNA test to be conducted on someone who has passed away almost 7 years ago by now. There had been a contested hearing to determine what DNA test(s) to be conducted, eventually leading to the Order of Winnie Tsui J dated 25 February 2025 directing (i) the paternity test (between the Deceased and [P]), (ii) the uncle test (between [D] and [P]), and (iii) sibling test (between the Deceased and [D]) to be done by a Hong Kong laboratory. Then [P] took out another summons dated 23 April 2025 requesting the variation of the aforesaid order so that a foreign (instead of Hong Kong) laboratory can be appointed. This is again contested. After the performance of the DNA tests in due course, there will be the question whether the PRC paternity report dated 27 May 2016 is to be accepted, and both parties have prepared PRC legal opinion to discuss the status or problems of such report. There will also be other factual evidence from the witnesses in determining the preliminary issue of Part I, such as evidence from [D] and the lawyer who prepared the Will for the Deceased, since they were told by the Deceased that the PRC paternity report was not to be believed. [D] will have no protection of the substantial costs incurred in Part I if he can only apply for security for costs after completion of such part.

iii. Accordingly, if [D] can only apply for security for costs after the completion of Part I, then if [P] fails in Part I, or if [P] succeeds in Part I but fails in Part II, [D] will be deprived of the security for the substantial costs already incurred in both Part I and Part II prior to the completion of Part I.

3. The learned Judge erred in holding that the outcome of Part I would have an important impact on Part II (§33, Decision).

a. It is true that if the court rules against [P] in Part I, that would be the end of these proceedings without Part II (§33(1), Decision). This is precisely why security should be granted now but not later. Otherwise, as stated in §2(b)(i)-(ii) above, [D] will never be given the protection he is entitled for the costs incurred before the completion of Part I.

b. Contrary to the ruling by the learned Judge (§33(2), Decision), establishing paternity relationship between [P] and the Deceased in Part I shall not influence the outcome of the validity of the Will in Part II. A testator may disinherit wholly or in part his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and the court must give effect to his will. The inquiry of the court as regards testamentary capacity must be ‘directed to the testator’s soundness of mind, and not to general questions of perceived morality”: Chiu Man Fu and others v Chiu Chung Kwan Ying, CACV 40/2012, 18 June 2013, §62. Accordingly, it is wrong for the learned Judge to suggest that simply because [P] is shown to be the biological son of the Deceased, it would impact on his assessment on the merits of Part II or on the consideration of the applicability of the first exception in Nina Kung v Wang Din Shin (No 2) (2006) 9 HKCFAR 800 (i.e. where the litigation is caused by the conduct of the testator) and/or the second exception in Nina Kung (i.e. whether circumstances lead reasonably to an investigation of the will’s validity). In any event, since [P] brought this action for his personal benefit with substantial financial gain as explained in §4(b) below, and [P]’s case tends to suggest that [D] was exercising influence over the execution of the Will (see §§ 19(1), (2), (8)-(10) of the Statement of Claim), this can be categorised as hostile litigation and [P] shall bear the costs anyway if his challenge is unsuccessful: Nina Kung, §17; Tan Cheng Gay and others v Tan Choo Suan and Secretary for Justice, CACV 200/2013, 23 May 2014, §55.

c. It is further incorrect for the learned Judge to hold that any findings on credibility of Part I would have an impact on the consideration of the applicability of the second exception in Nina Kung (§33(3), Decision). The question of paternity and the question of validity of the Will are two entirely distinct issues. Even if the court disbelieves [D] in the former question, it does not necessarily follow that the court will disbelieve [D] in the latter question. Further the outcome of Part I depends predominantly on scientific evidence, which has little to do with the credibility of [D]. Any findings on [D]’s position in relation to Part I should not have any impact on Part II.

4. The learned Judge wrongly exercised discretion in assessing the merits of [P]’s case. For reasons explained in §1 above, the focus of the assessment should be on Part II, which [P] clearly does not have a meritorious case.

a. In Part II, [P]’s case to challenge the validity of the Will is a bare assertion. The Deceased passed away in 2018 but [P] (acting by his guardian mother) never entered probate. Instead, he affirmed the Will and asked for provisions to be made to him as “dependent” under the discretionary clause of the executor in the Will, pursuant to which [D] as executor had advanced RMB 9,475,000 over the years.

b. [P] suddenly changed his stance to challenge the validity of the Will by commencing this action in 2023, hoping to set aside the Will so that [P], purportedly the only child of the Deceased, would inherit the entire significant and substantial estate of the Deceased by the law of intestacy. No single piece of contemporaneous documents has been provided by [P] in suggesting that the Deceased lacked testamentary capacity.

c. On the contrary, [D] has provided a large amount of contemporaneous documents, including medical reports and communication between the Deceased and the lawyer who prepared the Will, to show that [D] had testamentary capacity. The lawyer who prepared the Will also put in affirmation to explain the circumstances of the execution of the Will. Further, the Will is substantially similar to an earlier will made in 2015. No suspicious circumstances existed. It is a clear case that [P] does not have a meritorious case in Part II.”

Discussion

7.  In my view, D has failed to show a reasonable prospect of success in his appeal by relying upon the grounds in the Draft Notice of Appeal.

8.  Ground 1

(1)  There is no reasonable prospect of success in arguing that this Court erred in principle in saying that these proceedings are divided into two parts as a result of the Paternity Directions.[10] In my view, it is an indisputable fact that these proceedings are now divided into Part I and Part II.

(2)  As submitted by Mr Kwan for P, in the Draft Notice of Appeal, there is no challenge to the conclusion of this Court made in §30 of the Decision, ie, P would have a high degree of probability of success in the trial in Part I.

(3)  This is also no challenge to the conclusion of this Court made in §35 of the Decision, ie the Paternity Issue in Part I is distinct and separate from the issues in Part II.

(4)  On the Paternity Issue, P’s case is that notwithstanding the fact that to D’s actual knowledge of the relationship between the Deceased on the one hand and P and Madam Liu on the other hand[11], D still chose to raise the Paternity Issue. If D fails and P succeeds in Part I (which means that P has raised an unreasonable challenge to P’s locus in this case), I do not see any reason why costs would not follow the event.[12]

(5)  I am not persuaded that D has demonstrated a reasonable prospect of success in challenging the analysis in §33 of the Decision. There is no merit in saying that this Court erred in taking into account the existence of Part I when assessing the question of security.

9.  Ground 2

(1)  The Court of Appeal would not interfere merely because any ruling made in the Decision is prejudicial to D. In fact, any ruling made by a court may well be prejudicial to a party in the case. As said in the above, the Court of Appeal would only interfere if this Court has misunderstood the law or the evidence, or the exercise of discretion by this Court was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible.

(2)  As a result of the Paternity Directions, Part II would not be heard before the determination of Part I. As per Ground 2(b)(ii), a lot of works would need to be done for the purpose of Part I. At the moment, D should put his resources into the preparation of Part I. There is no logical reason why D would need to incur costs to do the preparation works in both Part I and Part II in parallel and at the same time.

10.  Ground 3

(1)  As said in the above, I am not persuaded that D has demonstrated a reasonable prospect of success in challenging the analysis in §33 of the Decision.

(2)  With respect, I am of the view that nothing in this ground can impeach my analysis set out in §33 of the Decision.

(3)  There is no merit in this ground.

11.  Ground 4

(1)  By reading this ground as a whole, D is saying that this Court “wrongly exercised discretion in assessing the merits of [P]’s case” in Part II. As a matter of fact, I made no comment on the merits of the parties’ respective cases in Part II in the Decision. My view as stated in the Decision is that (a) “P has a high degree of probability of success in [the trial in Part I]”[13]; (b) “P is not liable to offer security for D’s costs incurred in Part I”[14]; and (c) “D is not entitled to seek security for D’s costs in Part II before knowing the outcome of Part I”[15].

(2)  With respect, nothing in Ground 4 constitutes a justifiable basis upon which the Court of Appeal may interfere in the decision made by this Court.

12.  Having considered all the grounds of appeal proposed by D, I am not satisfied that by those grounds collectively, or by any of the grounds individually, D has demonstrated a reasonable prospect of success in his intended appeal. I also do not see any other reason in the interests of justice why the appeal should be heard. Accordingly, the Summons must be dismissed.

Disposition

13.  I dismiss the Summons. Costs should follow the event. Costs of the Summons be paid by D to P forthwith, and those costs be summarily assessed. Having considered P’s Statement of Costs and D’s List of Objections, I agree with the objections raised by D. Taking a broad-brush approach, costs are summarily assessed at HK$67,220.

14.  Lastly, it remains for me to thank both counsel for the assistance rendered to the Court.

Mr Kwan Ping Kan, instructed by K.B. Chau & Co., for the Plaintiff

Ms Carol Wong, instructed by ONC Lawyers, for the Defendant

HCAP 44/2023

[2025] HKCFI 2352

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 44 OF 2023

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_______________

BETWEEN

__________________

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D E C I S I O N

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1.  This is the Defendant (“D”)’s appeal against the Order of Master KH Hui (“the Master”) dated 6 December 2024, by which the Master dismissed D’s summons for security for costs issued on 30 July 2024. It is trite that an appeal from a master’s decision to a judge in chambers is a de novo hearing. Subject to the restriction in Order 58 rule 1(5), the hearing before me is an actual rehearing as if the application came before me for the first time.[1] Accordingly, I would deal with D’s appeal by considering D’s application for security for costs (“D’s Security Application”) afresh, as if the same came before me for the first time.

2.  In the hearing before me, the Plaintiff (“P”) is represented by Ms Frances Lok SC, leading Mr Kwan Ping Kan. D is represented by Ms Audrey Eu SC, leading Ms Carol Wong.

Background

3.  P is a minor, born on 17 January 2014. He is suing by his next friend and mother, Madam Liu Lijuan (“Madam Liu”).

4.  This case concerns the validity of the will made by the late Mr Dennis Lai (黎德望, “the Deceased”) on 20 December 2016 (“the Will”). The Deceased had two brothers, namely D and the late Mr Andrew Lai (黎德光, “Andrew”). Under the Will, D and Andrew were appointed as the executors and the trustees of the Deceased’s estate. Clause 5 of the Will is as follows:

“My trustee shall distribute the Residuary Estate in the following manner:-

(a) The Trustee shall make provision from the Residuary Estate for any dependent(s) as they see fit, appropriate, necessary and sufficient; and

(b) The Trustee shall also make donations from time to time from the Residuary Estate to such charitable bodies as they may see fit and in their absolute discretion until extinction of the Residuary Estate.”

5.  The Deceased passed away on 3 September 2018. Probate was granted to Andrew and D on 4 February 2019 as joint executors (“the Grant”). Andrew passed away on 25 May 2020. Thereafter, D is the sole executor and the sole trustee of the Deceased’s estate.

6.  P’s case is that although Madam Liu did not formally marry the Deceased, P is a natural biological son of the Deceased, and the only issue of the Deceased. Being the only issue of the Deceased, P challenges the validity of the Will, which was purportedly made by the Deceased on 20 December 2016.

7.  In the Statement of Claim (verified by a Statement of Truth signed by Madam Liu) annexed to the Writ of Summons issued on 13 December 2023, P pleaded:

“6. In about 2012, the Deceased was diagnosed with lung cancer, for which he had to regularly leave home for a period of time to receive treatments (including chemotherapy) in hospitals. The Deceased responded well to treatment initially, but suffered from a relapse in about late 2015 / early 2016, such that he required more frequent treatments.

7. On 27 May 2016, the Deceased arranged for a forensic paternity test to be conducted on himself and the Son in a laboratory in Zhuhai, pursuant to which a report entitled “珠海婦幼法醫物證 [2016] 物證簽字第269號” ("Paternity Report") was issued. The Paternity Report commissioned by the Deceased proved that he was the biological father of the Son. The Paternity Report is notarized in Zhuhai (珠海市橫琴公證處).

8. In mid-2016, given the Deceased's advanced age (64 years old), his illness and relapse, and the tender age of his only Son (who was only 2 years old), the Deceased explained to Madam Liu his decision regarding his estate planning, in particular, his decision as to how to provide for Madam Liu and their Son after he passed away ("2016 Representation"):

(1) The Deceased told Madam Liu that he had decided to leave her and their Son all the assets (including cash and stock funds) in his accounts in ICBC China upon his death. Those assets were of the value of about RMB 100 million which would be sufficient to provide for Madam Liu and the Son, who were his dependents, for the years to come after he passed away;

(2) The Deceased gave the original Paternity Report to Madam Liu to keep, and repeatedly reminded her to keep it safe, as the Report would be able to prove that he was the biological father of their Son.”

8.  P complains that the Will is irrational. Under the Will, the Deceased’s two brothers had been given a complete discretion as to how to deal with the sizeable residuary estate under the Will. P says that this is in contradiction with the 2016 Representations. P claims for, inter alia, the Grant be revoked, a decree propounding against the validity of the Will, and an order that the letters of administration of the Deceased’s estate be granted to Madam Liu. P further claims that alternatively, if the Will is valid, given the presence of minor interest in the Deceased’s estate, and given the old age of D (D is now aged 77), D should be replaced by two new executors appointed by the Court, one being Madam Liu and the other being a trust corporation.

9.  In the Defence and Counterclaim filed on 13 May 2024, D disputes the locus of P. In other words, D does not admit that P is a natural biological son of the Deceased (“the Paternity Issue”). On the Paternity Issue, D’s case as pleaded in §3 of the Defence and Counterclaim is as follows:

“Non-admission of the identity of Madam Liu

(a) To the best of [D]’s knowledge, prior to his death, the Deceased had been in a relationship with a woman named “小敏” (transliterated as “Siu Man”) from Mainland China. However, they did not marry each other. The Deceased died single.

(b) [D] has no knowledge as to the real or full name of Siu Man. The Deceased never referred to Siu Man by the name of “Liu Lijuan” (ie Madam Liu's name).

(c) On various occasions when Siu Man requested [D] to transfer money to her, Siu Man designated the account of Madam Liu as the recipient account and when asked by [D], Siu Man represented to [D] that Madam Liu was to receive the money on her behalf.

(d) By letter dated 2 November 2022 from Yip, Tse & Tang (“YTT”), solicitors for [D], to KB Chau & Co. (“KBC”), solicitors for [P], it was enquired whether Madam Liu had names or alias other than the name "Liu Lijuan". In reply, by letter dated 3 November 2022 from KBC to YTT, it was confirmed that Madam Liu had no such other names or alias.

(e) Accordingly, it is not admitted that Siu Man and Madam Liu are the same person. Nor is it admitted that Madam Liu was in any way related to the Deceased.

Non-admission of the Deceased’s paternity of the Son and/or Kai Kai

(f) In or around September 2015, the Deceased told [D] that he might have a son of 2 years old (hence was born in or around 2013) named “開開” (transliterated as "Kai Kai") out of his relationship with Siu Man. However, since he only visited Siu Man in Zhuhai, China on scarce occasions and had been advised by his doctor that it was difficult for him to impregnate a woman because of his health condition, the Deceased doubted whether Kai Kai was his child. For reasons pleaded hereinbelow, the Deceased had always been doubtful of his paternity of Kai Kai.

(g) In or around May 2016, the Deceased informed [D] and the Deceased’s lawyer Lam Kin Hung Patrick (“Patrick”), solicitor of YTT, that he intended to apply for Kai Kai to come to Hong Kong from Mainland China. He asked for assistance from [D] and Patrick in handling such application.

(h) On 10 June 2016, Patrick was provided with a copy of the Paternity Report by Cindy Lai[2], the Deceased’s former sister-in-law, for the purpose of supporting the application for Kai Kai to come to Hong Kong.

(i) In or around June 2016, the Deceased informed [D] that he found out that Siu Man had a subsisting marriage at the time of Kai Kai's birth. He expressly told [D] and Patrick not to believe in the accuracy of the Paternity Report. He then asked [D] and Patrick to withhold and subsequently abandon all procedures for applying for Kai Kai to come to Hong Kong. Kai Kai did not come to Hong Kong eventually.

(j) In the Medical Certificate of Birth of Kai Kai produced by [P], the name of the father is omitted;

(k) Accordingly, it is not admitted that the Deceased was the natural father of Kai Kai. It is further not admitted that Kai Kai and the Son are the same person. Hence, it is not admitted that the Son is in any way related to the Deceased.

Absence of locus standi

(l) Since (i) the Will is the last will of the Deceased and [P] is not a beneficiary named in it, (ii) Siu Man and/or Madam Liu was not married to the Deceased and (iii) the paternity of Kai Kai and/or the Son is in dispute, [P] has no locus standi to pursue this action unless and until the paternity of Kai Kai and/or the Son is determined.”

10.  D further says that the Will is valid. D denies P’s claim and put forward a counterclaim. In D’s counterclaim, D seeks directions that the scientific tests be used to show whether or not the Deceased is or is not the father of P, a declaration as to the paternity status of the Deceased vis-à-vis P, a decree propounding for the validity of the Will, and a grant of probate of the Will in solemn form.

11.  In the Reply and Defence to Counterclaim filed on 9 July 2024, P pleaded that:

“3. …… [P] avers that, to [D]’s actual knowledge:

(1) Whilst Madam Liu had no legal name or alias other than her real name “Liu Lijuan” (刘丽娟), the nickname of Madam Liu used by her friends and family has been “小敏”

(2) The Deceased addressed Madam Liu as “小敏”.

(3) [D] addressed Madam Liu as “小敏” or “小敏媽媽” (when in front of the Son).

(4) Madam Liu had been in a long term relationship with the Deceased (despite that they did not register to be married) for more than a decade until the Deceased’s death.

(5) The Deceased and Madam Liu gave birth to the Son, nickname “開開”.

(6) [D] (being the Son's paternal uncle) visited Madam Liu and the Son from time to time.

(7) [D] himself addressed the Son as “開開”.

(8) The Son addressed [D] as “大伯” (big uncle).”

12.  Thereafter, on 11 July 2024, D’s solicitors wrote to P’s solicitors to request P to provide security for D’s costs up to the conclusion of these proceedings in the sum of HK$4,248,107. A skeleton bill of costs was enclosed in that letter.

13.  On 30 July 2024, D took out the summons for security for costs.

14.  On 19 August 2024, P took out a summons (“P’s Paternity Summons”) seeking directions on the Paternity Issue.

15.  There is a litigation between D and ICBC Bank in Mainland. An issue in the case is whether, D, being the sole executor of the Deceased’s estate, had the authority to deal with the money in the Deceased’s bank account with ICBC. P is a third party in this case. On 21 November 2024, the Zhuhai Intermediate People’s Court (“ZHIC”) handed down a judgment (“the ZHIC Judgment”), in which the ZHIC ruled against D. In that judgment, the ZHIC accepted the Paternity Report (pleaded in §7 of the Statement of Claim) as evidence and attached weight to that report, and held that P is the natural biological son of the Deceased.

16.  On 6 December 2024, D’s Security Application was dismissed by the Master.

17.  On 19 December 2024, D lodged this appeal.

18.  On 23 December 2024, D lodged an appeal (“D’s Mainland Appeal”) against the ZHIC Judgement to the Guangzhou High People’s Court (“GZHC”).

19.  On 25 February 2025, on P’s Paternity Summons, Winnie Tsui J made a decision, ordered that the Paternity Issue be resolved as a preliminary issue in these proceedings, and gave directions for the conduct of the preliminary issue. See [2025] HKCFI 1251. The terms of the Order (“the Paternity Directions”) made by the learned judge is annexed to that decision.

The parties’ respective submissions

20.  There is no dispute that P is residing in Zhuhai and is ordinarily resident out of Hong Kong.

21.  Both Ms Eu SC and Ms Lok SC refer me to the Court of Final Appeal’s decision in Nina Kung v Wang Din Shin (No 2) (2006) 9 HKCFAR 800, in which Ribeiro PJ said:

“12. Accordingly, the general rule where opposition to a will is unsuccessful is that costs follow the event. However, if the case can be shown to fall into one or other of the two exceptions, the order is, in the first category (where the litigation is caused by the conduct of the testator or the residual beneficiary) for the costs to come out of the estate; and in the second category (where circumstances lead reasonably to an investigation of the will’s validity) for there to be no order as to costs. I shall refer to these two categories as “the first exception” and “the second exception” respectively.

……

15. It is, however, important to note that the manner in which the challenge to a will is mounted may determine the court’s approach to costs. A case may fall prima facie within one of the two exceptions, but if opposition to the will goes beyond putting the proponent to strict proof of its validity and takes the form of hostile litigation, the general rule whereby costs follow the event is likely to be applicable. ……

17. It follows that in exercising its discretion, the court draws a distinction between litigation reasonably undertaken by a person in order to require the validity of a will to be investigated by the court, and litigation which is fundamentally hostile, where the opposing party takes it upon himself to establish a positive case such as of forgery, fraud or undue influence, with a view to defeating the will and advancing his own claim to the estate over that of the will’s proponent. It is of course perfectly open to the will’s opponent to adopt such an approach. However, he runs the risk of an adverse costs order if he is unsuccessful.”

22.  A contentious issue in D’s Security Application is whether this case is within one of the two exceptions in the Nina Kung case.

23.  Ms Eu SC for D submits that:

(1) P is ordinarily resident in Zhuhai. There is no evidence showing that he has any valuable asset in Hong Kong. In the circumstances, he is liable to provide security for D’s costs in this case.

(2) P does not have a meritorious case. D has provided cogent evidence to prove the validity of the Will.

(3) As to the two exceptions in Nina Kung, (a) the first exception would not apply, as there is no allegation that the conduct of the Deceased or the residuary beneficiary caused the litigation; and (b) the second exception also does not apply, for there is no circumstance which leads reasonably to an investigation of the Will’s validity. P’s approach in contesting the Will’s validity can be regarded as hostile litigation, and the effect of P’s claim is an attempt to yield substantial financial benefits for P. The action is brought for P’s own benefit and instead of the benefits of the estate. In these circumstances, costs should follow the event.

(4) The existence of D’s counterclaim would not prevent the grant of the security sought by D. In the counterclaim, D is seeking reliefs concerning (a) the Paternity Issue; and (b) a decree to propounding for the validity of the Will and a grant of probate of the Will in solemn form. The reliefs sought concerning the Paternity Issue in the counterclaim overlap with the directions sought in P’s Paternity Summons, and have been taken care of by the Paternity Directions. The other reliefs sought in the counterclaim would not be necessary if P’s claim is dismissed by reason of his failure to pay the security ordered by the Court. In that scenario, D would simply withdraw the counterclaim.

24.  Ms Lok SC for P submits that:

(1) The Will contains suspicious and inexplicable features which warrant the Court to investigate into its validity. The exceptions in the Nina Kung case should apply. Given the specific context in this probate case, ordering security is unjust.

(2) The quantum sought by D is plainly excessive.

(3) D’s conduct is unreasonable. D has inflicted financial pain on P by cutting off all his financial provisions (despite P being a dependent of the Deceased and only of tender age) and forces P to confront multiple interlocutory applications which escalated costs and caused delay. The result of P not succumbing to D’s demand for security would be the stifling of the investigation into the validity of the Will.

25.  Ms Eu SC submits that:

(1) There is no suspicious or inexplicable features in the Will.

(2) Litigation costs are increased because P’s unreasonable conduct in these proceedings.

(3) P’s stifling argument does not get off the ground. P has not adduced evidence to show that an order requiring him to provide security for costs would stifle his claim. Further, the Deceased had provided substantial assets to Siu Man during the Deceased’s lifetime. Also, D also transferred substantial sums to Siu Man after the death of the Deceased. The relevant evidence is in D’s 3^rd Affirmation filed on 21 November 2024, in which D said:

“9. In or about May 2016, the Deceased and I discussed the following matters:-

(1) I asked the Deceased if he wished to include KK as his beneficiary in his will. The Deceased indicated that there was no such need as he had purchased two luxury properties in Zhuhai in SM's name, ……, for use as the residence of SM and KK, and another for rental income to support their living. Further, the Deceased had provided sufficient cash in the amount of more than RMB 20 million to SM for her, her family and KK's future expenses, which the Deceased said would be sufficient to bring up KK decently up to his finishing up his university studies without the need of other financial assistance.

……

24. Indeed, if the 2016 Representation does in fact exist, I wonder why neither Madam Liu nor [P] has ever made any probate application in the Mainland China to get all the Deceased's assets in his accounts in ICBC China years upon his demise, but instead had to constantly appeal to me for monies using various excuses. SM has, since April 2019, made various requests for me to transfer money to her and up till 17 October 2022, I have at SM's request transferred an aggregate sum of RMB9,475,000 to her. For the avoidance of doubt, the person asking me for money has always been, insofar as I am aware of, SM, who had on various occasions designated the account of Madam Liu as the recipient account and when asked, SM represented to me that Madam Liu was to receive the money on her behalf. I note in the Reply and Defence to Counterclaim filed on 9 July 2024 that Madam Liu said she is SM. ……”

Discussion

26.  With no disrespect to counsel, I am not prepared to address each and every point raised by counsel in their respective submissions. I would state some matters in the paragraphs below, which are in my view important for the purpose of determining D’s Security Application. I have invited counsel to make submissions on these matters in the hearing.

27.  As a result of the Paternity Directions, these proceedings are now divided into two parts:

(1) Part I – trial of the preliminary issue, ie the Paternity Issue

(2) Part II – trial of the other issues, namely, (a) the validity of the Will, and (b) in the event that the Will is valid, removal of D as the executor of the Deceased’s estate, and appointing new executors of the estate.

28.  In my view, it would not be right to require P to provide security for D’s costs up to the conclusion of these proceedings.

(1) For Part I, no security for costs should be ordered, for P has demonstrated a high degree of probability of success on the Paternity Issue.

(2) For Part II, whether D is entitled to have security for costs would depend upon the circumstances after the determination of Part I. Before knowing the outcome of Part I, D is not entitled to seek security for costs for Part II.

29.  If security for costs is refused on the ground that there is strong merits in the plaintiff’s case, the plaintiff must have demonstrated that he has a high degree of probability of success at the trial, and the Court should approach the matter in a broad-brush manner. The relevant principles have been set out by B Chu J in Hannelore de Lasala-Debring v Ernest Ferdinand Perez de La Sala (HCMP 1029/2013, 8 July 2015), in which the learned judge said (footnotes omitted):

“8. Although the merits of a plaintiff’s claim may be a relevant consideration in deciding whether security should be ordered, this is to be approached in a broad-brush manner. It is not the function of the court to make a preliminary run at deciding the ultimate success or failure of the claim and parties shall not attempt to go into the merits of the case unless it can be clearly demonstrated that the plaintiff has a high degree of probability of success.

9. In Lim Yi Shen v. Wong Yuen Yee [2012] 3 HKLRD 505, Recorder Horace Wong SC has cautioned against forming any view on the merits simply on paper, especially if the facts are likely to be sensitive to oral evidence, and he held that the threshold of demonstrating probability of success in the context of a security for costs application is “very high”, and that the practice of going into the merits of the case in such application is “to be deplored” unless the merits are clear.

10. Similarly, although the Court will also consider whether the defendant has an arguable defence, this should also be approached in a broad-brush manner rather than embarking on an assessment exercise as though it were considering an application for summary judgment.” (Emphasis in original)

30.  Part I is the trial of the Paternity Issue. Based upon the evidence now before me, adopting a broad-brush approach, I am of the view that P has a high degree of probability of success in this trial.

(1) The Paternity Report

(a) The Paternity Report mentioned in the parties’ respective pleadings is evidence in support of P’s case on the Paternity Issue.

(b) In §3(i) of the Defence and Counterclaim, D pleaded that in or around 2016, the Deceased told him that Siu Man had a subsisting marriage at the time of Kai Kai’s birth, and D should not believe in the accuracy of the Paternity Report.

(c) The Paternity Report is a 司法鉴定意见书 issued by 珠海市妇幼保健院法医物证司法鉴定所 on 20 May 2016. According to that report, upon the request of the Deceased, DNA test was concluded by using the relevant blood samples to find out whether the Deceased is the natural biological father of P. The conclusion of the report is that the answer to the question is affirmative. A photo showing the Deceased happily holding P in his arms is attached to the report. It is not known on what basis the reliability or the accuracy of the report can be challenged.

(2) ZHIC Judgment

(a) In the ZHIC Judgment, the ZHIC said:

“三、关于黎德信是否有权要求工行珠海分行向其支付款项。根据黎德望的遗嘱，黎德信、黎德光为遗嘱的共同执行人。香港高等法院也将黎德望遗产的管理权共同授予了黎德信、黎德光。因此，黎德望的遗产应由黎德信、黎德光二人共同管理，不可由其中一人单独管理。虽然遗嘱规定，若黎德信、黎德光任何一位先于黎德望离世或未能比黎德望生存多于三十天，则在生一位便成为遗嘱唯一执行人。但黎德望于2018 年去世，黎德光于2020 年去世，黎德光的生存时间远超黎德望30天，故黎德信并不符合成为遗嘱唯一执行人的条件。《中华人民共和国民法典》第一千一百四十五条规定：

‘继承开始后，遗嘱执行人为遗产管理人；没有遗嘱执行人的，继承人应当及时推选遗产管理人；继承人未推选的，由继承人共同担任遗产管理人；没有继承人或者继承人均放弃继承的，由被继承人生前住所地的民政部门或者村民委员会担任遗产管理人。’

珠海市妇幼保健院法医物证司法鉴定所出具的亲子鉴定显示刘开邦为黎德望的儿子，黎德望存在继承人。在黎德信不具备遗产管理人资格的情况下，继承人需要重新推选遗产管理人或者由继承人担任遗产管理人。虽然黎德信在本案中请求确认其为遗产管理人，但指定遗产管理人属于适用民事诉讼特别程序审理的事项，不宜在本案中进行审处。因黎德信目前并不享有遗产管理权，工行珠海分行拒绝向其支付黎德望遗留的款项，具有事实和法律依据。

综上所述，黎德信的诉讼请求不能成立，本院不予支持。……” (underline added)

(b) In refusing D’s claim, ZHIC accepted the Paternity Report and made a ruling that P is the natural biological son of the Deceased.

(3) Even on D’s case, D admitted that the Deceased had a relationship with a woman called “Siu Man” in Mainland, and that woman had given birth to a boy called “Kai Kai”. D doubted whether Siu Man is Madam Liu, and whether that boy is P. However, up to now, only Madam Liu has come forward and claims that she is Siu Man. Further, according to D, all the RMB9,475,000 transferred by him went to Madam Liu’s account. In the circumstances, there is a high degree of probability that in the trial in Part I, the Court would find that “Siu Man” in fact is Madam Liu. Further, it would be natural that “Kai Kai” is the nickname of P, whose name is “Liu Kaibang”.

(4) There is no evidence from D showing that P is not the natural biological son of the Deceased. At best, D could only say that at one time, the Deceased doubted whether Kai Kai was his son (see §3(i) of the Defence and Counterclaim). However, there is actually no evidence from D in support of a case that P is not the natural biological son of the Deceased.

(5) In view of all the above, I am of the view that P has a high degree of probability of success in the trial in Part I.

31.  I am fully aware of the following:

(1) A DNA Report (“the DNA Report”) will be prepared in accordance with the Paternity Directions.

(2) D’s Mainland Appeal will be determined by the GZHC.

(3) If the DNA Report gives a definite negative answer on the Paternity Issue, and/or the GZHC gives some negative comments on the Paternity Report in D’s Mainland Appeal, these developments would have a negative impact on P’s chance of success in the trial in Part I.

32.  However, I cannot and would not speculate what would be the conclusion of the DNA Report, and whether the GZHC would give some negative comments on the Paternity Report. I have to decide D’s Security Application on the basis of the evidence now before me. Based upon the materials now available, I reach the conclusion as stated §30 above. Accordingly, in my judgment, P is not liable to offer security for D’s costs incurred in Part I. If there is any development in these proceedings in future which has a significant impact on P’s chance of success in Part I, that development would constitute a material change of circumstances. If there is indeed a material change of circumstances, D may make an application for security for D’s costs in Part I at that time.

33.  The outcome of Part I would have an important impact on Part II.

(1) If the Court rules against P on the Paternity Issue in Part I, that would be the end of these proceedings. In this scenario, there would be no Part II.

(2) If the Court rules in favour of P on the Paternity Issue in Part I, that would mean that P is the natural biological son of the Deceased, and P is the only son of the Deceased. All these would be taken into account in Part II in considering whether this case is falling within the first exception (ie where the litigation is caused by the conduct of the Deceased by making no specific provisions to P (being the Deceased’s only son) and/or Madam Liu (being the Mother of P) in the Will) and/or the second exception (ie where circumstances lead reasonably to an investigation of the Will’s validity) in the Nina Kung case.

(3) Further, if P is successful in Part I, the Court may also make findings on the credibility and/or reliability of D. For example, the Court may make a ruling on the matters pleaded by P in §3 of the Reply and Defence to Counterclaim, ie at all times, to D’s actual knowledge, Madam Liu is Siu Man, and P is the son of the Deceased and Madam Liu. If the Court make some adverse findings on D’s credibility and/or reliability, those findings would be relevant in Part II in considering whether this case is within the second exception in the Nina Kung case. Those findings would also be relevant in considering the costs of the application (which will be made by P if the Will if valid) for an order removing D from the office of the sole executor of the Deceased’s estate.

34.  For the reasons above, I am of the view that D is not entitled to seek security for D’s costs in Part II before knowing the outcome of Part I.

35.  Ms Eu SC submits that Part I is an indispensable part of these proceedings. If D succeeds in Part II, that would mean that D is the ultimate successful party in these proceedings, and D should get all the costs of these proceedings. Hence, according to Ms Eu SC, P should be required to provide security for D’s costs up to the conclusion of these proceedings now. With respect, I am unable to agree. In my view, the Paternity Issue in Part I is distinct and separate from the issues in Part II. The time and costs spent in each part would be substantial. I take the view that there should be one costs order covering Part I, and another costs order covering Part II. In the scenario that D fails in Part I but succeeds in Part II, there is no reason why D should be awarded costs of the entire set of proceedings. One must not forget that substantial costs are incurred in Part I, and D is the unsuccessful party in Part I. Costs should follow the event.

36.  Ms Eu SC also submits that if I dismiss D’s Security Application, D would not be able to apply for security for costs again in these proceedings, regardless of the outcome of Part I. With respect, this is not correct. My view has been clearly stated in §§27-34 above. For avoidance of any doubt, I would state that my ruling in this decision would not prevent D from making another application for security for costs after the conclusion of Part I.

37.  Having considered D’s Security Application afresh as if the same came before me for the first time, I am of the view that D’s Security Application should be dismissed.

Disposition

38.  I dismiss D’s appeal. Costs should follow the event. I make a costs order nisi that costs of D’s appeal be to P forthwith, with a certificate for two counsel, and those costs be summarily assessed. Unless there is an application by a summons for variation of the costs order nisi within 14 days from the date of this decision, the costs order nisi will become absolute without a further order. There be leave to P to lodge and serve a bill of costs (limited to 2 pages) for summary assessment within 7 days after the costs order nisi becoming absolute, and leave to D to lodge and serve a list of objections (limited to 2 pages) within 7 days thereafter.

39.  Lastly, it remains for me to thank all counsel for the helpful assistance rendered to the Court.

Ms Frances Lok, SC leading Mr Kwan Ping Kan, instructed by, K.B. Chau & Co. for the Plaintiff

Ms Audrey Eu, SC leading Ms Carol Wong, instructed by ONC Lawyers, for the Defendant

HCAP 44/2023

[2025] HKCFI 1251

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 44 OF 2023

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D E C I S I O N

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1.  Before me today is the plaintiff’s summons dated 19 August 2024. I make an order in terms of that summons with the changes which I have gone through with counsel before the break.[1] These are my reasons.

2.  There is a dispute over the basis of the jurisdiction for making the above orders. It is, however, not necessary for me to go into counsel’s arguments in detail and come to any definitive view in the present case.

3.  Insofar as is necessary, I rely on the following bases as alternatives:

(1)  sections 13 to 15 of the Parent and Child Ordinance, Cap 429;

(2)  Order 29, rule 3 of the Rules of the High Court; and

(3)  the inherent jurisdiction of the court.

4.  The general principles governing what DNA tests should be directed should be the same whichever jurisdiction the court is relying on. It involves the court exercising its discretion. I would particularly highlight the following principles set out in Re P (Parentage: Blood Tests) [2010] 4 HKLRD 497 at para 25:

(1)  The interests of justice would be best served by the ascertainment of truth;

(2)  The court should be furnished with the best available scientific evidence, particularly if that evidence proves or disproves paternity with certainty or near certainty;

(3)  A child’s welfare generally demands that he or she knows the truth about his or her parentage; and

(4)  The welfare of the child is a relevant but not paramount factor in deciding whether or not to make a direction for the use of scientific tests. The interests of other people may also be involved and have to be considered.

5.  The plaintiff’s primary position is that only “the uncle test”, ie the test in sub-para (a), should be conducted. If the test result is inconsistent with the PRC paternity report, then “the paternity test”, namely the test in sub-para (b), should be taken, but that would involve the exhumation of the remains of the deceased. If the paternity test is done, then “the sibling test” should be done at the same time as the control test. That would be the test in sub-para (c).

6.  As confirmed by counsel at the hearing, the plaintiff is now agreeable to all three tests being done at the same time.

7.  The defendant’s position is this. He will not give his consent for his bodily sample to be taken for the uncle test and the sibling test. His position is that only the paternity test should be done. His reasons are threefold.

8.  First, he claims that the uncle test would not add any value to the issue of parentage of the child as the plaintiff has adduced no positive evidence on how useful or definitive the result from the uncle test would be.

9.  Second, even if the uncle test turns out a positive result, there are still two theoretical possibilities, namely: first, the deceased was the father of the child; second, Andrew, another brother of the deceased, was the father of the child. In other words, the uncle test in itself would not be conclusive on who the father of the child was.

10.  Third, to order or to direct DNA tests involving the bodily sample of the defendant would interfere with his right of privacy in a disproportionate manner.

11.  As regards the first point, the evidence from the plaintiff shows that the uncle test would be of some use, although they may not be as definitive as the paternity test. On this evidence, I would conclude that the uncle test would be useful as it would provide some useful evidence on the issue of the relationship.

12.  As regards the second point, I would observe that up to this stage, there is nothing in the pleadings, the affirmations or the submissions of any party which suggests that Andrew would be the father of the child. In any event, that possibility, if it arises, will be dealt with at the trial of the preliminary issue.

13.  Bearing in mind the general principle that the court should order appropriate tests in order to achieve the objective that the truth be ascertained, and also that the court is to gather the best available scientific evidence to determine the issue, the uncle test should be done, but the court should at the same time consider alternative solutions.

14.  In this case, the alternative would be to conduct the paternity test. In fact, this is a test which both parties now agree on. However, it involves the exhumation of the remains of the deceased, and for that reason, it should be considered as a measure of last resort.

15.  The significant feature in this case is that the deceased, in fact, passed away in 2018. There has been a long lapse of time after his passing. According to the defendant’s affirmation evidence, to obtain sufficient and proper DNA samples from the remains would have a success rate of about 80 to 100%.

16.  If, indeed, the test is successfully undertaken, the result could well be the best evidence which would bring us closest to the truth of the parentage issue. That is, therefore, a forceful reason for ordering the test, even though exhumation is involved.

17.  If that is done, I accept that the sibling test should be conducted as a control. This is because the sample that can now be collected from the remains may not provide a reliable sample for the purpose of the test. It would therefore be useful to have the sibling test as a control mechanism.

18.  The defendant has indicated that he will not give his consent to the uncle test or the sibling test as it involves taking bodily samples from him, and it would intrude his rights of privacy.

19.  In the present case, all these tests are useful tools for determining the parentage of the child. I do not consider that the ordering of these tests would be a disproportionate measure. In any event, the uncle can refuse to give consent, and it would be a matter for the trial judge of the preliminary issue to draw any proper inference.

20.  For all these reasons, I make those orders which are set out in the summons as amended. I would also grant leave for the defendant to file the latest affirmation. It contains evidence on the collection of bones which I have considered on a de bene esse basis. I consider that the evidence is relevant. Hence, I grant leave for the admission of that evidence.

(Submissions re costs)

21.  I would order that the costs of the plaintiff’s summons, including the costs of today’s hearing, be in the cause of the preliminary issue.

22.  This application is taken out for the purpose of gathering proper evidence for the trial of the preliminary issue. The plaintiff’s position on which DNA test should be conducted has shifted throughout the course of this application. At the same time, some of the objections raised by the defendant are not upheld by this court. Therefore, I think the fairer order would be for the costs of this application be aligned with the costs of the trial of the preliminary issue.

Ms Frances Lok, SC and Mr Kwan Ping Kan, instructed by K B Chau & Co, for the plaintiff

Ms Carol Wong, instructed by ONC Lawyers, for the defendant

Appendix

IT IS ORDERED that: -

1.  Leave be granted to the Plaintiff to amend the title of the action in the Writ of Summons to reflect that the Defendant is being sued in both his capacity as the executor of the Estate of the Deceased and in his personal capacity.

2.  There be a hearing for the determination of the following preliminary issue (the “Locus Issue”):

“Whether the Plaintiff is a natural biological son of the Deceased.”

3.  The following directions be given for the conduct of the hearing of the Locus Issue: -

(1)  Leave to the parties to jointly appoint a laboratory in Hong Kong with the expertise in DNA testing (“Lab”), to conduct the following three tests (“Tests”):

(a)  DNA comparison tests against the bodily samples of the Plaintiff and the Defendant, to determine whether the Defendant is the biological paternal uncle of the Plaintiff;

(b)  DNA comparison tests against the bodily samples of the Plaintiff and the samples exhumed from the Deceased’s remains (the “Remains”), to determine whether the Plaintiff is the biological son of the Deceased; and

(c)  DNA comparison tests against the bodily samples of the Defendant and the samples exhumed from the Remains, to determine whether the Defendant is the biological brother of the Deceased, which will serve as a control test for the tests in paragraph 3(1)(b) above.

(2)  If the parties cannot agree on the identity of the Lab within 7 days from the date hereof, each party do lodge and exchange written submissions within 5 days thereafter limited to 3 pages each (font size 14) stating (a) the name of that party’s proposed Lab; (b) the proposed Lab’s curriculum vitae; (c) the proposed Lab’s costs for the Tests; (d) estimated time by which the Tests can be completed by the proposed Lab, and (e) brief reason why no agreement can be reached. The Court will determine the choice of the Lab on papers (unless the Court directs a hearing).

(3)  Each of the Plaintiff and the Defendant do provide their bodily samples as required for the purpose of the Tests to the Lab, and leave be given to the Lab to obtain DNA samples from the Remains for the purpose of the Tests.

(4)  No bodily sample shall be taken from the Defendant except with his consent. The Court may draw such inferences (if any) from any refusal to consent as appear proper in the circumstances.

(5)  The Defendant shall, within 7 days from the date hereof, apply for a permit from the Food and Environmental Hygiene Department to exhume the Remains (“Permit”). Within 7 days after the Permit is granted, the parties shall arrange with the Lab the exhumation of the Remains at an agreed date and time for the purpose of the Tests.

(6)  Both parties and/or their legal representative shall be present when the Remains are exhumed and when the DNA specimens from the Remains, the Plaintiff and the Defendant are being obtained by the Lab respectively.

(7)  The evidence of the Lab shall be in the form of a signed written report and admitted into evidence at the hearing of the Locus Issue without the need to call the maker of the report to testify unless the Court directs otherwise.

(8)  Each of the Plaintiff and the Defendant do have leave to file and serve one affirmation confined to the Locus Issue within 35 days from the date hereof.

4.  The hearing of the Locus Issue be adjourned to a directions hearing which shall take place after the completion of the filing and serving of both documents stated in paragraphs 3(7) and 3(8), with 1 hour reserved (the “Directions Hearing”).

5.  Parties do lodge the jointly proposed directions at least 3 days before the Directions Hearing.

6.  Costs of the Summons and costs of today’s hearing be in the cause of the Locus Issue.