LEUNG MAY LING AND OTHERS v. LEUNG SAI LUN ROBERT AND OTHERS

1996, No. P 18

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PROBATE JURISDICTION

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D E C I S I O N

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1. This is an application by the plaintiff under O.14A, r.1 of the Rules of Supreme Court for a determination of a question of law and under O.14, r.1 for summary judgment.

2. The parties have indicated to me that it is likely that they would agree to the appointment of joint administrators under s.36 of the Probate and Administration Ordinance, Cap.10. In view of this, it is agreed that if I rule in favour of the plaintiffs on the O.14A issue, it would not be necessary to proceed with the O.14 application and that in the event I rule against the plaintiffs, the defendants should be given unconditional leave to defend. I think that is a very sensible approach.

The Facts

3. For the purpose of the O.14A application, certain facts have to be presumed and/or accepted. The facts in this case are in fact relatively straightforward.

4. The deceased Mr Roger Leung was married in 1951. His wife passed away in 1963. The deceased went through a Chinese customary marriage with the 1st plaintiff on 28th February 1966. In June 1985, the deceased and the 1st plaintiff contracted a marriage under s.38 of the Marriage Ordinance, Cap.181. The deceased died on 21st March 1996.

5. The first wife had four children by the deceased. They are the 1st to 4th defendants in this case. The 1st plaintiff has 3 children by the deceased. They are the 2nd to 4th plaintiff. The defendants produce a will which they say was executed by the deceased on 27th July 1967. Under this will, the defendants are the named executors and the only beneficiaries of the estate. There is no other testamentary document. For the purpose of O.14A, r.1, the parties are prepared to accept the will as authentic.

6. The only other factual dispute on this issue is the intention of the deceased in going through the 1985 marriage. The 1st plaintiff says she was assured by the deceased that he wanted to give her security by going through that marriage. On the other hand, the defendants say that the registration of the marriage under the Marriage Ordinance was for the purpose of emigration to Canada.

The question of law for determination

7. The question of law to be determined is whether the 1985 marriage had the effect of revoking the 1967 will, assuming it to be authentic. This question turns on two issues : first, whether the 1985 marriage was valid and second, if it was valid, whether it had the effect of revoking the 1967 will. If the 1985 marriage was not valid, that would be the end of the matter. The 1967 will could not have been revoked.

First issue : whether the 1985 marriage valid

8. Leading counsel for the plaintiffs submits that the parties to a Chinese customary marriage can go through a marriage pursuant to s.38 of the Marriage Ordinance. The 1985 marriage between the deceased and 1st plaintiff was celebrated pursuant to that section. It was therefore a good and valid marriage to all intents and purposes by virtue of s.28. Counsel submits that on the authority of Yeung Yeu-kong v. Yeung Fung Lai-mui [1971] HKLR 15, the status of the parties to a customary marriage who went through another marriage under the Marriage Ordinance had been subsumed by the status conferred on them by the registry marriage.

9. On the other hand, leading Counsel for the defendants submits that the Marriage Reform Ordinance has reformed the law of marriage in Hong Kong. It provides a comprehensive code for customary marriages : it declares a customary marriage complying with the provisions of that section to be a valid marriage and provides for the registration and dissolution of such a marriage. It is argued that a customary marriage registered under the provisions of the Marriage Reform Ordinance can be dissolved either in accordance with the Matrimonial Causes Ordinance or in accordance with s.5 of the Marriage Reform Ordinance. Hence, counsel submits, one only needs to look at the provisions of that Ordinance for the law governing a customary marriage and not at any other ordinance.

10. Counsel submits that prior to the appointed day, i.e., 7th October 1971, s.38 enabled parties to a customary marriage to go through a registry marriage. Since the enactment of the Marriage Reform Ordinance, as from that date, the parties to a customary marriage are governed by that Ordinance and can no longer invoke s.38 of the Marriage Ordinance and go through a registry marriage. Further, if a man already had a concubine or some other spouse on the appointed day, he and his spouse could not go through a s.38 marriage any way. If he did not have a concubine or other spouse on the appointed day, he and his spouse could not marry again because under Hong Kong law, two persons who are already validly married to one another are not free to marry again. It is submitted that even if the parties to a customary marriage go through a s.38 marriage after the appointed day, such marriage would not be valid. That section together with the consequences explored by the Full Court in Yeung v. Yeung are of no relevance in the present case. It is contended that that section can only benefit parties to other non-Christian customary marriages, such as Muslim customary marriages. Since a modern marriage is excluded from s.38 of the Marriage Ordinance, and there is no reason why a Chinese customary marriage should be included. Counsel therefore argues that the 1985 marriage was not a valid marriage which would revoke the 1967 will under the previous s.13 of the Wills Ordinance, Cap 10.

Effect of the Marriage Reform Ordinance

11. The main submission of the defendants is based on the effect of the Marriage Reform Ordinance on Chinese customary marriages and the application of s. 38 of the Marriage Ordinance on such marriages. It is therefore necessary to examine the Marriage Reform Ordinance.

12. Prior to the enactment of that Ordinance, there were several types of valid marriage : marriage under the Marriage Ordinance, Chinese customary marriage, modern marriage and foreign marriage. A marriage under the MarriageOrdinance is the civil equivalent of a Christian marriage, i.e. a monogamous marriage. It is valid as a marriage celebrated or contracted under the provisions of that Ordinance. This has always been the case. A Chinese customary marriage was then considered a valid marriage because Chinese customary law was regarded as part of the law of Hong Kong and any marriage which was valid under the customary law would be valid under Hong Kong law. A customary marriage is polygamous in nature. The status of a modern marriage was rather dubious. It was a marriage which was contracted or celebrated in accordance with the Chinese Civil Code. However, that has never been part of Hong Kong law. Hence, it was not formally recognized as a valid marriage here. Nor could it be recognised as a foreign marriage if it was contracted in Hong Kong. I need not deal with foreign marriages for the present purpose.

13. Then came the Marriage Reform Ordinance which has the following effect. First, as from 7 October 1971, all future marriages in Hong Kong can only be contracted or celebrated in accordance with the provisions of the Marriage Ordinance and they are to be monogamous. No concubinage will be allowed. Second, all Chinese customary marriages within the definition of s.7 of the Marriage Reform Ordinance are declared valid. All existing unions of concubinage are recognized and/or accepted. Modern marriages falling within s. 8 are also validated. It follows that all the children born of an existing customary marriage or a union of concubinage or a modern marriage are regarded as legitimate children. Third, it provides for registration of existing customary marriages and validated modern marriages. Parties to such marriages would have to go through certain formalities before the Registrar of Marriages. This procedure provides for the formal approval of such marriages. Fourth, it also provides a procedure for the dissolution of customary marriages and modern marraiges. Before the appointed day, there was no formal way to dissolve a customary marriage except in accordance with the ways provided by the customary law. Since the status of a modern marriage was not formally recognized, it was doubtful whether there was, prior to the appointed day, any means of dissolution. Part V of the Marriage Reform Ordinance when it became operative in 1971 provides the procedure by which a customary marriage and a modern marriage can be dissolved. The parties can do so by mutual consent after their marriage was registered pursuant to that Ordinance. The purpose of registration and/or dissolution pursuant to the Marriage Reform Ordinance is also to enable the parties to such marriages to avail themselves of the provisions of the Matrimonial Properties and Proceedings Ordinance, Cap 192 and to apply for ancillary relief.

14. Sections 9(3) and 15 of the Marriage Reform Ordinance were amended in 1979. Prior to that, the parties to a Chinese customary marriage or a modern marriage could not avail themselves of the provisions of the Matrimonial Causes Ordinance to get a divorce. Dissolution by mutual consent under Part V of the Marriage Reform Ordinance was the only way to dissolve a customary marriage or a modern marriage. Even after registration in accordance with Part IV of the Marriage Reform Ordinance, they were still regarded as marriages not within the jurisdiction of the Family Court in which the provisions of the Matrimonial Causes Ordinance could be invoked. That Ordinance is intended to deal with marriages which are monogamous in nature. The parties to a customary marriage or a modern marriage who are contemplating a dissolution of the marriage have to get together to have their marriage registered under Part IV first before getting a dissolution under Part V. This may be difficult to achieve if one party does not agree to a dissolution. The dissenting party is unlikely to be willing to go through registration simply for the purpose of enabling the other party to get a consensual dissolution after registration.

15. Hence, the Marriage Reform Ordinance was amended in 1979 to enable a party to seek a declaration of validity of a customary marriage in the District Court (s.9(3)) and after such declaration, to invoke the provisions of the Matrimonial Causes Ordinance to petition for a divorce (s.15).

16. It can be seen that while it can be said that the Marriage Reform Ordinance provides a comprehensive code for Chinese customary marriages, it does not mean that one cannot look at any other law and/or ordinances in considering the various incidents of such marriages. Besides, whether the parties to a Chinese customary marriage can go through a marriage under s.38 of the Marriage Ordinance depends on the scope of that particular section rather than the Marriage Reform Ordinance.

Section 38 of Marriage Ordinance

17. The present s.38 originally came from the former s.39(2).

The former section 39(2)

"The parties to any customary marriage may, however, if they so desire and provided they have not living any other undivorced spouse, contract with each other a marriage under this Ordinance. In such cases, their marriage under this Ordinance shall not be deemed to prejudice the previous customary marriage."

The present section 38 :

"The parties to any non-Christian customary marriage duly celebrated according to the personal law and religion of the parties before the appointed day under the Marriage Reform Ordinance (Cap.178) may, unless the husband has any other wife, contract with each other a marriage under this Ordinance; and such a marriage shall not invalidate the previous customary marriage."

18. It is clear that prior to the appointed day in 1971, the parties to a Chinese customary marriage could invoke s.38 of the Marriage Ordinance by voluntarily going through a registry marriage. By doing so, their stauts under the Chinese customary marriage was subsumed in the registry marriage which is monogamous in nature. (See Yeung v. Yeung, supra.) In other words, there was an express statutory provision allowing the parties to an already valid marriage, (i.e. a Chinese customary marriage) to marry again. Whatever the original reason was for this section, it is clear that it has always applied only to customary marriages. It has never applied to modern marriages or indeed any other types of marriages. So the argument that if s.38 does not apply to modern marraiges, why should it apply to Chinese customary marriages cannot, in my view, be sustained.

19. The question is : is s.38 still available to the parties to Chinese customary marriages after the enactment of the Marriage Reform Ordinance ?

20. It can be seen that the former s.39(2) referred to "no other undivorced spouse", but after it was amended and renumbered, s.38 refers to "any other wife". This means that while s.39(2) required that both the male and female parties to a customary marriage should not be married to another person, s.38 now makes it clear it only requires that the man does not have any other wife.

21. Counsel for the defendants argues that s.38 does not cover a Chinese customary marriage since a concubine is not a wife. There seems to be some force in this argument. But I do not think that is a sufficient indication that the section is not applicable to a Chinese customary marriage. Under Chinese customary law, while there can only be one principal wife, there may strictly speaking be other secondary wives. A concubine may take over the position of the principal wife as a tin fong. There is also the possibility of a kim tiu wife (the wife of the deceased's brother who is taken after the death of the brother).

22. In my view, the purpose for having the requirement that there must not be another "undivorced spouse" or "any other wife" is to ensure that any s.38 marriage will also be a civil equivalent of a Christian marriage, i.e. a voluntary union for life of a man and a woman to the exclusion of all others. If there is a concubine, the parties to the customary marriage cannot go through a s.38 marriage. This is not because a concubine may or may not be regarded as "any other wife", but because if the concubine is still living, the man and woman who are parties to the customary marriage cannot say that their registry marriage under s.38 is a union for life between a man and a woman to the exclusion of all others. It is only a de facto monogamous status which can be subsumed in the monogamous status conferred under the registry marriage (see Yeung v. Yeung).

23. After the appointed day, the male partner to a Chinese customary marriage can no longer take a concubine. Hence the marriage has become de facto monogamous. So, it may be thought that after 1971, s.38 serves no useful purpose for Chinese customary marriages. However, I think there may still be some purposes in going through a s.38 marriage. At least, by doing so, they can bring their marriage within the jurisdiction of the Matrimonial Causes Ordinance. This was not possible until the 1979 amendment to the Marriage Reform Ordinance. In some cases, it may be difficult, because of lack of evidence, to prove to the satisfaction of the Registrar (or the District Court if the matter goes to the court for a declaration) that all the necessary customary ceremonial rites had been followed and the parties may have some doubts about their marriage being recognised by the proper authorities in Hong Kong as well as overseas. Hence, they may want to put all matters beyond doubt by going through a s.38 marriage.

24. In my view, s.38 requires the following conditions to be satisfied before the parties can invoke that section :

(1) their previous marriage must be a non-Christian marriage;

(2) it must be a customary marriage;

(3) the marriage must have been celebrated in accordance with the customary law and religion of the parties;

(4) it must have been celebrated or contracted before the appointed day;

(5) the husband had no other wife; and

(6) the marriage must already be a valid one.

Condition (6) is consistent with the last part of s.38, i.e., a s.38 registry marriage shall not invalidate the previous customary marriage.

25. In my view, it is the intention of legislation that s.38 of the Marriage Ordinance would continue to apply to Chinese customary marriages after the enactment of the Marriage Reform Ordinance. First, it does not expressly exclude a Chinese customary marriage. It would be easy for the legislature to do so clearly. This was not done. Second, and more importantly, s.38 was expressly amended by the Marriage Reform Ordinance (Ordinance No.68 of the 1970). However, not only did it not expressly exclude Chinese customary marriages from the operation of s.38, the amendment includes a specific reference to the Marriage Reform Ordinance and to the appointed day. The Marriage Reform Ordinance expressly affects Chinese customary marriages but does not even mention any other types of customary marriage. The appointed day only affects parties to Chinese customary marriages but not other types of customary marriages. If it had been intended that after the coming into operation of the Marriage Reform Ordinance, Chinese customary marriages would be excluded from s.38, there would be no purpose in referring to that Ordinance. There is also no point in referring to the cut-off date. They are simply irrelevant to other types of customary marriages.

26. The example given by counsel is a Muslim marriage. With respect, I am not sure whether such a marriage can be regarded as a non-Christian customary marriage in the first place. Assuming that it can be, if it was celebrated outside Hong Kong according to the personal law and custom of the parties, it would come within the definition of the Foreign Marriages Ordinance. If it was celebrated in Hong Kong, it was not regarded as a valid marriage any way. In neither case, the appointed day does not have any effect on it. Hence, if it had been the intention of the legislation to cater for non-Chinese customary marriages such as Muslim marriages, there is no point to refer to the Marriage Reform Ordinance or the appointed day in s.38 of the Marriage Ordinance. I do not accept Counsel's argument that s.7 which declares Chinese customary marriages to be valid can make any diference to the application of s.38 of the Marriage Ordinance. The validity of a Chinese customary marriage has not been changed by the Marriage Reform Ordinance : it has always been regarded as valid under the laws of Hong Kong.

27. In my view, the only inference one can draw from the way s.38 was amended by the Marriage Reform Ordinance is that it is intended that s.38 will continue to apply to Chinese customary marriages after the appointed day. The parties to a Chinese customary marriage have two options after that day : they can prove their marriage before the Registrar (or the District Court) and have it registered (or decalred valid) under Part IV of the Marriage Reform Ordinance or they can simply marry again under s.38 of the Marriage Ordinance.

Validity of the 1985 marriage

28. It appears that the deceased and the 1st plaintiff had gone through a valid customary marriage in 1966. They satisfied all the conditions of s.38 of the Marriage Ordinance. I see no reason why they could not invoke that section in 1985 to enter into a registry marriage again. When they did so, they clearly had the intention to go through a valid marriage again pursuant to the law. According to the plaintiffs, it was the deceased's declared intention that having gone through a s.38 marriage, his marriage with the 1st plaintiff was not only in reality but also in law a truly monogamous marriage. That clearly made sense. On the other hand, according to the defendants, it was done for the purpose of getting a certificate to convince the Canadian Immigration Authority that they were husband and wife. Again, that was a very good reason as well. I do not rule out both of these as some of the reasons for the deceased and the 1st plaintiffs in going through a s.38 marriage in 1985. Whichever was the genuine intention, this exercise was a conscientious step taken by the deceased and the 1st plaintiff and was intended to serve and did serve a particular purpose. They could of course go through the procedure of registration under Part IV of the Marriage Reform Ordinance. But in my view, they were also free to take the option of going through s.38 of the Marriage Ordinance. This they did in 1985. Effect must be given to their intention and this marriage which is expressly permitted by the law.

29. For these reasons, I am of the opinion that the s.38 marriage between the deceased and the 1st plaintiff was a valid marriage.

Second issue : whether the 1985 marriage revoked by the 1967 will

30. Counsel for the plaintiffs argues that such a marriage was a marriage which would revoke a will by the operation of the former (pre-1995) s.13 of the Wills Ordinance (similar to s.18 of the Wills Act 1937) which was the relevant statutory provision at the time of the 1985 marriage and which was not significantly different from the present s.14. He submits that the relevant provision is plain and should be given the ordinary and natural meaning. He relies on Craies on Statute Law, 7th Edition, which says at pages 64 to 65:

"The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the law giver."

31. Counsel contends that a lawful and valid marriage automatically revokes any will made by either party before that marriage and that it was immaterial whether the party had intended the will to be revoked.

32. Leading counsel for the defendants submits that even if the 1985 marriage was permissible by s.38 of the Marriage Ordinance, it does not constitute a subsequent marriage in effect. It is argued that the 1985 marriage pursuant to s.38 was a subsequent marriage in time. This is because in fact the deceased and the 1st plaintiff were already married to one another. The second ceremony in 1985 did not have anything to do with their legal relationship. Hence, he argues that the s.38 marriage in 1985 was not an effective subsequent marriage for the purpose of s.13 of the Wills Ordinance. It is submitted that it would be a grotesque result if a man who makes a will after having married, must be presumed by law to have revoked it because he marries the same person again. Finally, counsel contends that the defendants' interpretation would give to that section a fair, large and liberal construction and interpretation as required by s. 19 of the Interpretation and General Cause Ordinance, Cap.1.

33. For the present case, it is the previous s.13 of the Wills Ordinance and not the present s.14 which I have to look at. Section 13 (1) provided as follows :

"A will shall be revoked by the subsequent marriage of the testator except a will expressed to be made in contemplation of that marriage."

34. Section 13 of the Wills Ordinance refers to a subsequent marriage. In my view, to come within this section, there must be a lawful marriage and it must be a marriage which is subsequent to the will. The defendants draw a distinction between a subsequent marriage in time and a subsequent marriage in effect. With respect, I do not think one should draw such a distinction. That subtle distinction is not made in that section. The wording is quite clear.

35. As I said, there must be a purpose in having s.38 and a marriage under this section must have an effect. One cannot assume that the legislature would enact an ordinance or amend a section without any effect. It must be the intention of s.38 that the parties of a Chinese customary marriage having gone through the ceremony under that section became parties to a marriage which is to all intents and purposes a valid and lawful marriage, like any marriage lawfully contracted or celebrated under the provisions of the Marriage Ordinance.

36. I do not think it is necessary to rely on s.28. I believe that it makes no difference whether s.28 refers to a marriage celebrated and not a marriage contracted under the Ordinance. In any event, it does appear that the Ordinance refers to celebration of a marriage when it is a marriage celebrated pursuant to religious rights and to the contracting of a marriage when it is a marriage under the Ordinance other than in accordance with religious ceremony. If it is necessary, I would hold that a s.38 marriage is covered by s.28 of the Marriage Ordinance.

37. For the reasons which I have given above, I hold that the 1985 marriage between the deceased and the 1st plaintiff could have the effect of revoking the will which was dated 1967.

Conclusion

38. In the circumstances, I hold that the question of law is determined in favour of the plaintiffs. I declare that the 1967 will had been revoked by the deceased 1985 marriage. I would give liberty to apply to the parties with regard to the question of costs or other directions if necessary.