HO WAI YIN AND OTHERS v. CHENG SUET YEE

HO WAI YIN AND OTHERS v. CHENG SUET YEE

The court held that for the purposes of Order 29 r.3 and s42 High Court Ordinance the word 'property' can be given a wide construction to include the remains and ashes of deceased persons; on balancing relevant factors (necessity for evidence, feasibility, social mores, potential prejudice) the court exercised its discretion to authorise Plaintiffs to obtain sufficient samples from the remains and ashes of Cheng Fong and Yuen Wong for DNA comparison with the Defendant's samples and to conduct the test; costs awarded to Plaintiffs with specified exception.

Citation
HO WAI YIN AND OTHERS v. CHENG SUET YEE
Parties
Applicants: 1st to 3rd Plaintiffs; Respondent: Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 December 2004
Case Number
HCAP18/2003
Procedural Posture
Probate / Interlocutory Application Under Order 29 R.3 for DNA Sampling of Remains
Outcome
Application granted; Plaintiffs authorised to obtain samples and conduct DNA comparison; costs awarded to Plaintiffs with exceptions
Legal Topics
DNA Sampling, Orders for Inspection and Sampling, Remains of Deceased, Construction of 'property', Judicial Discretion, Costs
Source Language
EN
Probate Civil Procedure Evidence Statutory Interpretation DNA Sampling Orders for Inspection and Sampling Remains of Deceased Construction of 'property' +2 more

Case Brief

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Parties

1st to 3rd Plaintiffs

Applicants

Defendant

Respondent

Procedural Posture

Probate / Interlocutory Application Under Order 29 R.3 for DNA Sampling of Remains

Legal Issues

  1. 1 Whether remains or ashes of deceased qualify as 'property' under Order 29 r.3 and s42 High Court Ordinance
  2. 2 Whether O.29 r.3 applies where question may arise as to ashes or remains
  3. 3 Whether court should exercise its discretion to authorise taking samples notwithstanding social mores and practical difficulties of DNA extraction

Ratio Decidendi

The court held that for the purposes of Order 29 r.3 and s42 High Court Ordinance the word 'property' can be given a wide construction to include the remains and ashes of deceased persons; on balancing relevant factors (necessity for evidence, feasibility, social mores, potential prejudice) the court exercised its discretion to authorise Plaintiffs to obtain sufficient samples from the remains and ashes of Cheng Fong and Yuen Wong for DNA comparison with the Defendant's samples and to conduct the test; costs awarded to Plaintiffs with specified exception.

Court Disposition

Application granted; Plaintiffs authorised to obtain samples and conduct DNA comparison; costs awarded to Plaintiffs with exceptions

Orders

  • Plaintiffs authorised to obtain sufficient samples from the bone ashes and remains of Cheng Fong and of Yuen Wong for the purposes of obtaining DNA samples and to carry out a DNA comparison test with the Defendant's samples
  • Plaintiffs given liberty to serve a copy of the sealed Order on the relevant Government department with which the bone ashes and remains are for the time being kept