LEUNG KAT v. LEE CHIN TOOY YOOK

IN THE COURT OF APPEAL

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JUDGMENT

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Silke, J. A. :

1. Madam Leung Foon Mee - "the deceased" - died intestate on the 20th February 1977.  She left surviving her, of the blood, a brother Leung Kat - "the plaintiff".

2. He obtained a grant of Letters of Administration to her estate. Madam Lee Chin Tooy Yook - "the defendant" - entered a caveat.

3. The plaintiff instituted proceedings claiming a grant to him of Letters of Administration.

4. The defendant, by Counterclaim, sought a declaration that she "should be treated as the lawful 'daughter of the deceased" - the wording has significance - and that she was the only person beneficially entitled under section 4(5) of the Intestates Estates Ordinance Cap. 73 - "the Ordinance" - and that she be granted letters.

5. Her claim is based on the interpretation she seeks to place do various sections of the Ordinance and its Schedule and it comes about in this way.

6. There was, she says, a valid marriage entered into between Chin Tai wah, her father, and Lee Ching Tai, her mother, in 1918 in Toi Shan. Of that lawful union there were two issue of which she is one: the other, though still alive, has given up to the defendant all her rights.

7. Her father entered into a union of concubinage with the deceased. All this long before the coming into force, in 1971, of the Marriage Reform Ordinance which abolished concubinage.

8. Section 2 of the Ordinance defines "husband" as meaning a husband by a valid marriage.

9. Subsection (2) of section 2 states that reference in the Ordinance to "a child or issue of any person" means

and, important for our purpose,

10. The word "husband" in this subsection has an added meaning special to it given by paragraph 2 sub-paragraph (2) of the schedule to the Ordinance and it extends that contained in the definition section.

11. Section 13(1) of the Ordinance gives to the Schedule effect with regard to unions of concubinage entered into before October of 1971.

12. Paragraph 2 of the schedule in its sub-paragraph (1) relates to the child of such a union and, for the purpose of the Ordinance, treats such child as if it were the child of a valid marriage; thus giving effect to Chinese Customary Law and its provisions as to the rights of inheritance of such a child.

13. Sub-paragraph (2) of paragraph 2 provides for the special meaning of husband to which I have earlier referred. It is:

"The reference in Section 2(2)(b) to 'husband' shall be construed as including a reference to the male partner of a union of concubinage."

14. So here, it is the defendant's case that her father, Chin Tai Wah, was the male partner of such a union and that the deceased was the female: that she is the lawful daughter of a valid marriage between Chin Tai Wah and Lee Ching Tai; that the issue of the female deceased includes a  child such as herself.

15. It was accepted in the Court below, and before us, that the burden of proof lay upon the defendant and that she had to prove the following:

16. The trial judge found against her on the first and third issue. Of the middle issue he said:

"I think it would be wholly unfair to me to say that the answer must be in the negative, since the fact that marriage is not strictly proved does not mean that the Defendant is not a child of the marriage - there is a presumption of legitimacy, and failure strictly to prove a marriage for other purposes namely the purpose of this rather esoteric branch of the law does not rebut that."

17. I interpret that to mean a finding in favour of the defendant, at least to the extent that she was the issue of the relationship, to use a neutral word, between Chin Tai Wah and Lee Ching Tai.

18. The defendant now appeals. Her grounds fall into three main heads:

On the two last heads, the basis of the appeal is that the trial judge erred in placing undue significance on certain pieces of evidence: failed to give sufficient weight to others: failed to draw inferences from the evidence which he should have drawn: and drew inferences which he should. not have drawn. In particular, that he failed to consider. the issue of "repute" relevant to status and pedigree.

19. On the first, it is argued that the trial judge placed too heavy a burden upon the defendant when he held p.48 that the proof of marriage was a "matter of strict proof". He said:

"It is not a subsidiary issue, such as where a witness describes himself as married and his testimony to that effect is sufficient for most purposes; here as in proof of a foreign marriage it is a central cardinal issue, and must be proved strictly (Bater v. Bater [1950] 2 A.E.R. p.458), not to-the-criminal standard, but also not as the proof of negligence, merely on balance of probabilities; inasmuch as adultery, requires proof approaching the criminal standard, so does the proof of, (sic) a marriage where its validity is in issue."

He applied the same criterion to the proof of the union of concubinage.

20. In taking this view he was, in my judgment, paraphrasing and following the dicta of Denning L.J. (as he then was) at page 459 in Bater v. Bater⁽¹⁾:

"It is true that by our law there is a higher standard of proof in criminal cases than in civil cases, but this is subject to the qualification that there is no absolute standard in either case. In criminal cases the charge must be proved beyond reasonable doubt, but there may be degrees of proof within that standard. Many great judges have said that, in proportion as the crime is enormous, so ought the proof to be clear. So also in civil cases. The case may be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject matter."

21. Here the serious matters of status and pedigree were for decision. They required a "degree of probability, commensurate with the occasion" and I think that to be all that the judge was saying. He was not wrong.

22. The judge was aware of the necessity for expert evidence to prove Chinese law and custom applicable to a valid marriage ceremony in 1918. He considered, rightly, a similar necessity as to proof of concubinage. He had assistance from experts, Mr. Anthony Dicks for the defendant and Dr. Henry Hu for the plaintiff. I shall come to their evidence later.

23. The factual background was provided by three main witnesses: Madam Chan Yu Ngan, who stated herself to be present at the events which took place in 1918, a Madam so and the defendant.

24. Madam Chan said that she was born in Toi Shan, in Sau Tuen Village, where she also married. She had known Lee Ching Tai who was originally from another village but who, after her marriage, lived close to Madam Chan in Sau Tuen. She was present, aged probably about 10 years old, when Chin Tai Wah and Lee Ching Tai married. She was a clansman of Mr. Chin and was one of the brides party, acting as bridesmaid having been asked to do so by the groom's mother. She says that, while she attended other weddings in the course of her life, this was the only one at which she was a bridesmaid. Madam Chan described the bride as coming by sedan chair, a green one - this colour became a major factor in the Court below - wearing a red robe with a theatrical like head dress and with her face covered in cloth. The bride was carried into the groom's house on the back of a matchmaker, he having travelled with her. The groom bowed to her. A noisy crowd was watching. The groom wore a long gown which was made for him for the occasion. The bride changed her clothes and came out to worship the ancestors and make "Kow Tow", as did the groom. Then the bride took the "Bun Lo" and gave it to various family members including the parents of the groom. There was a banquet for the family and friends at the village temple.

25. Madam so, aged about 84, said that she lived in Sau Tuen Village, at one period, for some ten years. There she knew Lee Ching Tai for whom she did some sewing. She knew her to be married and to have two daughters. She also knew Chin Tai Wah as the husband and she knew of the marriage of Lee Ching Tai's elder daughter and of the distribunion of red eggs on the one month feast of the younger daughter - the defendant. That last would have been in 1933.

26. She also knew the deceased when she first became the concubine of Chin Tai Wah. The wife, the husband, the concubine and the children lived together. She became a friend of the deceased and knew that the children called the deceased "elder sister" a form of address also used by the deceased for Lee Ching Tai. She was not clear as to the form of address used by the wife for the deceased.

27. Years later in Hong Kong Madam So met Lee Ching Tai. Later still she visited the place where Madam Lee lived and found also living there the deceased and Chin Tai Wah. She moved into the same premises after the deceased moved out. She was unclear when this was. The wife continued to live there. This may have been in 1950 for, in that year, the deceased and Chin Tai Wah went through a form of marriage in the Registry Office in Hong Kong and they then both left for the United States not returning until the late sixties. I shall refer to this later both in connection with the defendant's evidence and the matters set out in the Respondent's Notice.

28. Of her general recollection she said, of the time fifty years ago, that, "I can remember. some and I can't remember some".

29. A further witness Madam Lau Siu Fong gave evidence. She also lived in Sau Tuen Village and knew Lee Ching Tai and the deceased. She knew the latter by the name "Sai Yun" and the wife as "Dai Yun". She ended her evidence by saying:

"I know Leung Foon Mee was a concubine - everyone knows."

30. The defendant's evidence generally supported her case. She was born on the 11th June 1933 in Sau Tuen Village in Toi Shan and lived there with her parents, her elder sister and the deceased, though her father left the village for America before she was born and did not return for some 18 years. The women came to Hong Kong in about 1949 or 1950 and were joined thereby Chin Tai Wah. Then came the registry office marriage of the deceased and Chin Tai Wah. Of this, she said, her mother was fully aware and approved. The purpose was for the deceased to go with Chin Tai Wah to the United States. It is probable that in those days, the American authorities would not have accepted, as Chin Tai Wah's lawful wife, one whose relationship with him was that of concubine, although that status would have been recognised both in China and in Hong Kong.

31. She produced a photograph and in it she identified Lee Ching Tai as being in the senior position, her father Chin Tai Wah, the deceased and a serving boy or girl. The baby on the lap of Chin Tai Wah was her elder sister.

32. She was not, of course, in a position to describe the ceremonies gone through by her mother and her father but she gave general descriptions of weddings which had taken place within the community.

33. Both experts were of the view that to constitute a valid customary marriage certain ceremonies had to take place and that an essential part was the betrothal. There was no evidence at trial, for or against, the existence of a betrothal. Mr. Dicks was of the view, as was Dr. Hu, that the ceremonies as described by Madam Chan did give rise to the inference of a marriage having taken place - Mr, Dicks thinking the inference to be "irresistible" and Dr. Hu being of the opinion that, had there been a betrothal before the marriage that was described to him, it would have been a valid marriage. Generally, Dr. Hu was of the further view that the ceremonies by themselves could be equally consistent with a marriage or with the taking of a concubine. Dr. Hu thought that the reference to the sedan chair as being green, they were, he said, always red, threw doubt on the validity of the ceremony as being one of marriage, green not being a propitious colour.

34. The trial judge was aware that he was dealing with witnesses of a considerable age and reminded himself, in respect of Madam Chan Yu Ngan, that he was hearing testimony given by her sixty-six years after the event at which time she was ten years old. He felt he had to regard her evidence with considerable reserve. He placed stress on her evidence as to the colour of the sedan chair being green and he thought this to throw doubt upon the sharpness of Madam Chan's memory. I note that green sedan chairs could be used by matchmakers. It was equally possible that she was remembering precisely what did take place and was not, as the judge found, simply giving evidence generally of marriage ceremonies and applying that evidence to the particular ceremony here.

35. He was under the misapprehension that Madam Chan had stated herself to come from another village. It is, however, clear from the transcript that she was a clansman of the groom and had lived in the village in which the ceremony took place. She would have been in the position to know, because it was more than likely a topic of gossip in the village, that the groom wore a gown specially made for him for the occasion. This is not, as the trial judge thought, a factor going to the unreliability of Madam Chan's memory.

36. On the concubinage issue, he accepted that there was ample evidence of cohabitation. But he found no evidence of a formal ceremony accepting the deceased into the family as a concubine. That there was no direct evidence is true. But there are two aspects to this. First, the definition of a union of concubinage contained in section 13(2) of the Ordinance, that is where the concubine was accepted by the wife and recognised as such by the rest of the family. And second the issue of repute which, with respect, the trial judge failed to take into account on either issue.

37. While evidence of repute is hearsay, it is nevertheless an exception to the Hearsay Rule and made so by section 54 of the Evidence. Ordinance in respect of matters such as this.

38. There was clear evidence from Madam So, Madam Chan, Madam Lau and from the defendant as to the reputed concubinage of the deceased with Chin Tai Wah. This coupled with the evidence of cohabitation and of the "acceptance" and "recognition" evidence, was sufficient even on the strict burden to give rise to the inference that the union of concubinage claimed did exist.

39. Equally the evidence relating to the ceremonies which took place in 1918 in Sau Tuen Village, in particular of the presence of the matchmaker, coming from one who was, for the only time in her life, a bridesmaid when fortified by the evidence of both Mr. Dicks and of Dr. Hu and by the evidence of repute was, in my judgment, of sufficient strength to give rise to the inference that a betrothal had taken place and that the ceremony constituted a valid marriage. The judge fell into error in drawing the adverse inferences he did and in not giving weight to the evidence of repute which lay before him.

40. While the respondent's notice asked us to presume that the registry marriage in 1950 in Hong Kong of the deceased and Chin Tai Wah ousted any presumption which there might be relating to the validity of the ceremony in 1918,I am not prepared to do so. I have no doubt that the 1950 ceremony was one of convenience and was not intended by the parties to derogate in anyway from the 1918 marriage, merely to give colour to a status quo which would not be recognised outside China or Hong Kong.

41. In the light of that which I have found, it is unnecessary to consider the Amended Grounds of Appeal, the proposed Amended Defence or whether the finding of a union of concubinage between Chin Tai Wah and Lee Ching Tai would result in the daughter of that relationship taking from a fellow concubine.

42. I would allow the appeal, set aside the judgment in favour of the plaintiff and grant the declaration sought by the defendant.

(1) [1950] 2 A.E.R. p.458

Cons, V.-P.:

43. I agree with my Lord and add a few words only because we are disagreeing with the careful judgment given by the judge below. With every respect to him I feel that by concentrating on the details of the ceremony in 1918 and on the absence of factual evidence as to a betrothal he overlooked the importance of the reputation that Chin Tai Wah and Lee Ching Tai carried as man and wife and of the acknowledgment of that situation by Chin Tai Wah in the letter he wrote 10 years later. The judge was perhaps also misled in his assessment of Chan Yu Ngan by his belief that she came from a neighbouring village. Her evidence makes it clear that in fact she was from the same village as Chin Tai Wah and was indeed his clansman.

44. Then again I feel the judge placed too much weight on Lee Ching Tai's "acceptance" of the 1950 "marriage". I think with respect he failed to appreciate the approach that would be adopted by such a family towards foreign immigration requirements.

45. Once it is accepted that Chin Tai Wah was. Married to Lee Ching Tai the evidence of the established menage a trois leads naturally to the inference that Leung Foon Mee was his concubine. It is of course possible that she was no more than a permanent mistress, but as with relation to monogamous societies the law inclines towards marriage, so it seems to me shat it should incline towards the more legitimate relationship where there is a choice in societies which acknowledge wider relationships between man and woman.

46. As my Lord has observed it is then not necessary to consider the point raised by the amended Defence and the amended Notice of Appeal, except perhaps to comment that it does seem appear to require reading into the legislation words that are not there.

Kempster, J. A.:

47. For the reasons outlined by my Lords I agree with the order proposed.