A boy in Hong Kong ended up with three parental figures. Top brains in the legal sector tried to unravel the legal issues this raised—but initial success was overturned by an unexpected judgment. This is the second section of a two-part report by top legal mind Henry Litton.
Click this line to read part one.
THE CASE:
K (by his next friend R) v Secretary for Justice & B (1st Interested Party) & The Chief Executive of the HKSAR (2nd Interested Party) [HCAL2063/2023, judgment 9/9/2025, Coleman J]
THE STORY (PART TWO – PART ONE IS HERE)
IN WHAT MUST RANK as one of the oddest and most futile applications for relief in the lamentable history of judicial review in Hong Kong, an application in K’s name (supported by Legal Aid) was lodged to “challenge” the “constitutionality” of section 6 and Part V of the PCO, and Form 1 in Schedule 2 of the BDRO (the statutory form for registering births and deaths).
The matter was heard over two days in June 2025, resulting in a massive judgment handed down in September 2025 where the judge was unable to make any order at the end: so in paragraph 256 he “invited” the parties to agree a timetable to address the question of relief.
If he did not know what order he should make, what was the point of the arguments and counter-arguments he entertained, and the ruminations he articulated in his judgment: arguments with no end in mind?
THE FUTILITY
Between paras 72 and 131 the judge put Au-Yeung J’s judgment under the microscope, belittling her declaration as “something of a consolation prize” [para 88] and ended up by saying [para 130]: “ ….with some diffidence to an experienced family law judge, I respectfully disagree with Au-Yeung J in so far as she appears to have looked at [the matter] from the angle of the person rather than the rights ……in short, it is my view that the declaration granted in the HCMP judgment was certainly to no practical effect (for any legal purpose), and was as a result probably wrong”.
This is breathtaking.
Was Coleman J constituting himself a one-man court of appeal? He would deny this, of course. The purpose of his laborious critique of Au-Yeung J’s judgment was, in some mysterious way, because it had an impact on the “constitutionality” issues which he then went on to discuss: how this was so is impossible to say.
THE “CONSTITUTIONALITY CHALLENGES” TO THE PCO AND FORM 1 IN THE BDRO
It is not possible to match reason to unreason.
The two statutes in question, the PCO and the BDRO, have been in the statute book for some time, particularly the latter. Millions of birth certificates have been issued in compliance with the statutory form. And it continues to do so on a daily basis. As to the PCO, it dealt with surrogacy in a heterosexual setting: far removed from RIVF in a lesbian relationship setting.
Perfectly lawful and “constitutional” as the PCO and Form 1 in the BDRO stood in the statute book: until issues (real or concocted) concerning parentage in a RIVF setting involving lesbian couples came along and they, somehow, then became “unconstitutional”.
Where is the common sense in all this?
The argument is not that the provisions as they exist in those statutes offend some fundamental rights of the applicant K: the argument is that, with RIVF a reality now, the legislature ( “the government” or the Chief Executive ) has a “positive duty” now to make provisions in those statutes to accommodate recognition of the “parentage” existing between K and his biological mother. How that “duty” might be accommodated in legislation Coleman J himself could not say.
Constitutional challenge is serious business. It is not a plaything for lawyers.
How on earth were fundamental rights of the child K engaged in this case?
THE CONSTITUTIONAL RIGHTS SAID TO BE ENGAGED
In para 138 the judge sets out the provisions of the Hong Kong Bill of Rights (BOR) and of the Basic Law (BL) which counsel for K claimed to be engaged: BOR 14 and BOR 19 (“Privacy/Family rights”), BOR 20(2) (“Children’s rights) and BL 25 (“Equality rights”).
Take, for instance, Article 20 of the Hong Kong Bill of Rights which (where relevant) says:
“(1) Every child shall have …..the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.
“(2) Every child shall be registered immediately after birth and shall have a name”.
Counsel for K relied in particular on subsection (2). But K was registered, and he had a name. So how on earth was the “right” engaged?
If anything, the other “constitutional rights” are even more remote than BOR 20(2). It is pointless to go through them.
THE CHIEF EXECUTIVE
The Chief Executive (CE) is cited in this application for judicial review as the 2nd Interested Party.
Judicial review, as a legal process, is ultimately for the good governance of the HKSAR. Hence, relief is always discretionary.
What seems to be claimed in this case is that the CE is wanting in his governance of Hong Kong: he had failed in his “positive duty” in regard to the legislative scheme now in place to have K’s true parentage recognized and registered.
This is grotesque.
Apart from the CE’s positive duty to report to the Central Government for his governance, is he also answerable in that regard to a local High Court judge?
CONCLUSION
The case fits neatly into Shakespeare’s catchy phrase: Much Ado About Nothing. If discipline of law were observed, leave to start proceedings for judicial review would not have been given.
The Honorable Henry Litton was Permanent Judge of the Court of Final Appeal in Hong Kong from 1997 to 2000.
He has written a number of articles reviewing legal themes in Hong Kong law. To see all of them, click here.