THE DISTRICT COURT OF HONG KONG
SUIT NO. 281 OF 1991
Coram: H.H. Judge de SOUZA in Chambers
Dates of Hearing: 9 and 11 August 1995
Date of Handing Down Judgment: 16 August 1995
1. This is an application for a change of surname in respect of two of the four children of the family. The background to the application can be shortly stated.
2. The applicant, having divorced the respondent, her husband on the ground of unreasonable behaviour in 1991 has since remarried a Mr. Ho on 29 January 1992. The decree absolute was handed down on 5 December 1991. Prior to the grant of the decree absolute, in November 1991 HH Judge Gould ordered that custody of CYY and CYH, both daughters currently aged 12 and 11 respectively be vested in the applicant with reasonable access to the respondent. Custody of the two younger children was granted to the respondent with a corresponding right of access to the applicant. For convenience I shall refer to the applicant and the respondent as the wife and husband respectively.
3. By summons dated 24 July 1995 the wife seeks, inter alia, an order to change the surname of the daughters in her custody from Chung to Ho. In support of her claim she has filed and served an affirmation setting out both the history of the case and the basis for the application. I shall revert to her evidence, the only evidence adduced, in due course. Suffice it to say at this point that the husband has taken no part in these proceedings and filed no evidence whatsoever despite service of the application and supporting evidence upon him.
4. Such applications for change of surnames rarely come before these courts. In consequence the issue of jurisdiction has received scant if any attention in the past. Neither counsel for the wife, Mr. Yuen nor I are aware of the existence of any definitive ruling on the point. In anticipation of the court's concern over jurisdiction, counsel has dealt at length with that issue.
5. He contends that the court is empowered to effect a change of a child's surname under section 19(1) of the Matrimonial Proceedings and Property Ordinance, Cap. 192 - "the MPPO" and alternatively pursuant to the residual jurisdiction conferred under section 10 of the Matrimonial Causes Ordinance, Cap. 179 - "the MCO", it being accepted that there is no express statutory provision that can readily be identified.
6. In respect of section 19(1) of the MPPO, the argument suggests that the court has wide powers to make any orders as it thinks fit for the custody and education of a child in proceedings for divorce, nullity or judicial separation. It is submitted that the provision and in particular the word "custody" should be liberally interpreted as the common law concept of custody conferring a bundle of rights on a custodial parent as described in Hewer v Bryant  1 QB 357 is pertinent to the exercise of the matrimonial jurisdiction. That being so and it being further contended that the rights of a custodian should include a right to name a child, it follows that the court must by necessity have the power to entertain the application under this provision. There is much force in this view beyond the initial attraction of the argument.
7. The relevant part of section 19(1) of the MPPO provides thus:
"The court may make such order as it thinks fit for the custody and education of any child of the family who is under the age of twenty-one -
||in any proceedings for divorce, nullity of marriage or judicial separation, before, by or after the final decree;
8. The jurisdiction over custody and education in the wording of the quoted passage appears to be wide-ranging. The opening words of the section permits the court to "make such order as it thinks fit for the custody and education of any child" under 21. Those words are not delimited in anyway either within the section or against the general framework of the ordinance as a whole.
9. Custody as defined in section 2 of the MPPO includes access. This is not an exhaustive definition on any view nor is it particularly helpful in practice. How then is the word "custody" to be properly construed? In my judgment, concurring with counsel as I do, I am of the view that it connotes more than the concept of physical custody or control. In this regard reference is made to Hewer v Bryant, supra. The facts of the case are not especially relevant. The English court of appeal was concerned with the words "in the custody of a parent" in the context of the Limitation Acts in a suit for damages for personal injuries suffered by a farm-hand at a time when he was aged 15 but financially independent of his parents. A discussion of the meaning of custody appears at page 373 A-C of the judgment. Sachs LJ made this most helpful observation which I propose to set out in extenso:
"In its wider meaning the word "custody" is used as if it were almost the equivalent of "guardianship" in the fullest sense - - whether the guardianship is by nature, by nurture, by testamentary disposition, or by order of a court. (I use the words "fullest sense" because guardianship may be limited to give control only over the person or only over the administration of the assets of an infant.) Adapting the convenient phraseology of counsel, such guardianship embraces a "bundle of rights," or to be more exact, a "bundle of powers," which continue until a male infant attains 21, or a female infant marries. These include power to control education, the choice of religion, and the administration of the infant's property. They include entitlement to veto the issue of a passport and to withhold consent to marriage. They include, also, both the personal power physically to control the infant until the years of discretion and the right (originally only if some property was concerned) to apply to the courts to exercise the powers of the Crown as parens patriae. It is thus clear that somewhat confusingly one of the powers conferred by custody in its wide meaning is custody in its limited meaning, namely, such personal power of physical control as a parent or guardian may have."
10. As can easily be discerned, such powers or rights of custody can readily be extended to encompass the right to name a child and for that matter to change its surname, this privilege being a necessary corollary of parenthood or guardianship. That being so, it must follow that where parents are in disagreement over a proposed change of surname either parent may have recourse to the courts. In my view, section 19(1) of the MPPO confers the requisite jurisdiction to entertain such a dispute.
11. The second and final limb of the jurisdiction argument centred on the construction of section 10 of the MCO is, however, less convincing and persuasive. The section, appearing in Part II of the ordinance, enacts:
"The jurisdiction vested in the court by this Ordinance shall so far as regards procedure, practice and powers of the court be exercised in the manner provided by this Ordinance; and where no special provision is contained in this Ordinance with reference thereto, any such jurisdiction shall be exercised in accordance with the practice, procedure and powers for the time being in force in the High Court of Justice in England with reference to matrimonial proceedings."
12. Counsel invites the court to hold that the word "jurisdiction" refers to the jurisdiction conferred by the preceding sections of that part of the legislation, that is to say, sections 3 to 6 inclusive. As has already been intimated during the course of the...