FUNG SING WAI v. CHOW CHIU WAN AND OTHERS

HCAP 17/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 17 OF 2011

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JUDGMENT
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INTRODUCTION

1. The plaintiff commenced this action in July 2011 against 8 defendants.  The prayers for relief are directed principally against the 1^st defendant (“Mdm Chow”).  In gist, the prayers for relief seek:

(a) to revoke the letters of administration granted to Mdm Chow in September 2008 (“the 2008 grant”);

(b) letters of administration to be granted to the plaintiff or to other suitable person(s);

(c) Mdm Chow to return, or to account for, assets allegedly disposed of by reason of her mal-administration.

2. The claim is denied by Mdm Chow and her 4 children (that is, the 5^th to 8^th defendants) (collectively “Mdm Chow’s children”).  Mdm Chow contends (among other things) she was entitled to the 2008 grant on the ground she was the lawful (alternatively, only surviving lawful) spouse.  The prayers for relief of her counterclaim seek declarations to the effect that she enjoyed such marital status (and the consequential declaration that Mdm Chow’s children were the lawful children).

3. For completeness, it should be mentioned that the 2^nd to 4^th defendants are the plaintiff’s siblings (all 4 are collectively “Mdm Lee’s children”).

BACKGROUND

4. Save where otherwise expressly so stated, the following background is in gist undisputed.

5. The natural father of Mdm Lee’s children and Mdm Chow’s children was one Fung Wing Yuen (also known as Fung Yat Wah and Fung Shek Yuen in the Mainland) (“Fung senior”).  Two ladies are said to be his spouse: Mdm Lee’s children contend that a Mdm Lee (“Mdm Lee”) was the spouse whereas Mdm Chow contends that she was (this contention naturally is echoed by Mdm Chow’s children).

6. So far as are relevant to this action, the following events took place (in chronological order):

(1) Mdm Lee (allegedly) was married to Fung senior in 1947 in the Mainland;

(2) Mdm Chow (allegedly) was married to Fung senior in 1949 in the Mainland;

(3) the plaintiff heard from Mdm Lee in the late 1950s Fung senior had an affair with another lady (who he later discovered was Mdm Chow);

(4) Fung senior left the Mainland and began living in Hong Kong in June 1961;

(5) in 1962, Mdm Lee and some of her children also began to live in Hong Kong together with Fung senior;

(6) by 1963, when the plaintiff and the other of Mdm Lee’s children began to live in Hong Kong with Fung senior, Mdm Chow and some of her children were already there (there is documentary evidence she arrived in Hong Kong in December 1961);

(7) the two ladies and their respective children began to live separately in 1970 (Mdm Lee and her children left Fung senior and Mdm Chow to leave elsewhere);

(8) Mdm Lee passed away in Hong Kong in June 1988;

(9) Fung senior passed away in Hong Kong in March 2008 (without a will).

THE PARTIES’ PLEADED CASE

7. In summary, the statement of claim puts forth the following main contentions:

(a) Fung senior and Mdm Lee entered into a Chinese modern marriage in 1947 (before the establishment of the People’s Republic of China (“PRC”)) and Mdm Lee was Fung senior’s only lawful spouse;

(b) Mdm Chow was never a spouse of Fung senior, despite her claim that the two entered into a Chinese customary marriage in December 1949;

(c) Mdm Chow has misrepresented in an affirmation various matters including her marital status and the beneficiaries to Fung senior’s intestate estate when she applied for the 2008 grant (“Mdm Chow’s affirmation”).

Consequently, the plaintiff seeks the 2008 grant to be revoked, and that he be granted representation of Fung senior’s estate instead.  There are also the ancillary claims for properties allegedly misappropriated by Mdm Chow earlier.

8. On the other hand, the main contentions put forth in the amended defence and counterclaim are:

(1) the marriage mentioned in para 7(a) above (and/or its validity) is denied;

(2) Mdm Chow and Fung senior were lawfully married in China in December 1949 (before PRC’s Marriage Law 1950 came into effect).  Alternatively, they have lived together, and held themselves out to others, as husband and wife since December 1949 to March 2008 (when Fung senior passed away);

(3) at least since Mdm Lee’s death, Mdm Chow has been Fung senior’s only lawful spouse;

(4) it was within Mdm Chow’s right and power as the administratrix to deal with properties belonging to Fung senior’s estate.

The counterclaim therefore seeks declarations to the effect (i) Mdm Chow was Fung senior’s only lawful spouse, and (ii) Mdm Chow’s children were Fung senior’s lawful children.

9. In relation to para 7(a) above (and despite para 8(1) above), the defence written closing submissions state:

“[The defence] will not make any submissions in respect of the celebration of the marriage [between Fung senior and Mdm Lee] or its validity” (para 1 thereof).

The said submissions go on to say in effect that the defendants’ approach is based on Fung senior’s marriage with Mdm Lee having preceded that with Mdm Chow.  It is also noteworthy the defence does not seek the counterclaim’s relief:

“a Declaration that [Mdm Chow] is the only lawful wife of [Fung senior]” (para (b) thereof),

but only the relief:

“… a Declaration that [Mdm Chow] is the only surviving lawful wife of [Fung senior]” (emphasis supplied) (para (ba) thereof).

10. Further, in relation to the blood relationship between Fung senior and (i) Mdm Lee’s children and (ii) Mdm Chow’s children, the defence written closing submissions are:

“[The defence] will not challenge the accuracy of the DNA results” (para 1 thereof).

I pause here to note that this matter is, however, not relevant to either party’s case summarized in para 7(a) to (c) and 8(1) to (4) above.

WITNESSES’ CREDIBILITY AND FINDINGS OF FACT

11. The disputes below are factual in nature:

(a) whether there has been marriage ceremony between Fung senior and Mdm Lee and Mdm Chow respectively;

(b) if so, whether the marriage(s) was/were in accordance with the then governing law;

(c) whether Mdm Chow has made misrepresentation(s) in Mdm Chow’s affirmation.

12. A proper determination of the above disputes will require (among other things) an assessment of the testimony of the parties’ respective witnesses.  Both credibility and reliability will have to be considered (reliability here refers to a witness’s ability to observe, recall and recount the relevant factual events accurately).

13. The approach I adopted in earlier decisions when assessing the credibility is repeated:

“The assessment of a witness’s credibility and/or reliability is a task frequently undertaken by the court in litigation (in fact, very often an essential task). I consider the following to be the appropriate test to adopt:-

‘There are two objective tests for assessing a witness’s credibility regarding a matter to which he has testified:-

(a) whether that part of his testimony is inherently plausible or implausible;

(b) whether that part of his testimony is, in a material way, contradicted by other evidence which is undisputed or indisputable (an example often given of such evidence is contemporaneous documents).

Further, where it is shown that a witness has been discredited over one or more matters to which he has testified (using the above tests), this fact is relevant to the assessment of his overall credibility. Likewise, regard may be had to a witness’s motive for deliberately not giving truthful testimony. For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest’.

(See, for example, the decisions in Chiu Chi Tong v. Lau Chong Sai & Another, HCA 765/2002 (para. 28) and Yu Ming Investment Ltd. v. Peng Ru Chuan, Richard, HCA 814/2002 (para. 13))”

(Star Glory Investment Ltd v Kai Tuo (HK) Technology Co Ltd and Others, HCA 3523/2002 (13 August 2005), para 12).  The same approach will be adopted in this action.

14. I have also borne in mind the approach disapproved by the decision in The Popi M [1985] 1 WLR 948 (see also Ide v ATB Sales Ltd [2008] EWCA Civ 424 (28 April 2008)), para 1 to 6; Datec Electronic Holdings Ltd and Others v UPS Ltd [2007] 1 WLR 1325, para 46 to 50).  The impermissible approach was described in the ATB Sales judgment as follows:

“ … a trial judge was not compelled to choose between two theories, where the evidence was unsatisfactory … it was not possible to proceed on the basis of eliminating the impossible and deciding that the remaining explanation, however improbable, must be the cause … the concept of proof on a balance of probabilities had to be applied with common sense … ” (para 3 thereof).

15. The following witnesses testified at trial:

(1) the plaintiff;

(2) Mdm Fung, Fung senior’s sister (“Mdm Fung”);

(3) Mdm Chow;

(4) Chow Pui Kwun, Mdm Chow’s brother (“Mr Chow”);

(5) the 6^th defendant (“D6”);

(6) the 7^th defendant (“D7”);

(7) Professor Su, the plaintiff’s Mainland law expert (“Prof Su”);

(8) Professor Song, the defence Mainland law expert (“Prof Song”);

(9) Mdm Lau, Mdm Chow’s childhood friend (“Mdm Lau”).

The witnesses at sub-para (1), (2) and (7) above testified for the plaintiff whereas those at sub-para (3) to (6) and (8) to (9) above testified for the defence.  The testimony of the experts will be discussed under a separate heading below.

(a)  Plaintiff’s witnesses

16. Despite a relatively extensive cross-examination of the plaintiff and Mdm Fung, nothing has been said regarding their credibility or reliability in the defence written closing submissions.  I am satisfied that, in relation to the important facts of Mdm Lee’s marriage, and the subsequent marriage relationship up to the death of Mdm Lee, both have given truthful and reliable testimony.

17. It should also be noted that, in addition to their testimony, another of Fung senior’s sister has given a witness statement.  Unfortunately she passed away before trial, and the plaintiff adduces her witness statement as part of the evidence.  Similarly, nothing against this has been said by the defendants.  I am also satisfied that she has given truthful and reliable evidence in relation to the matters mentioned in para 16 above.

18. The important parts of their testimony are:

(a) the marriage ceremony was held in about 1947 at the residence of the Fung family (of which Fung senior and Mdm Fung were part) in Guangzhou;

(b) the marriage was an “open” ceremony in the sense that (i) wedding red banners were hung at the entrance of the residence, (ii) the residence entrance was kept open to let in relatives and friends, (iii) firecrackers were lit, and (iv) members of the Fung family were present;

(c) Fung senior’s mother officiated the wedding ceremony; Fung senior and Mdm Lee offered tea to her and other elders of the Fung family;

(d) a wedding feast was held to entertain relatives, friends and neighbours.

(b)  Defence witnesses

19. On the contrary, for the reasons given below, I find the defence witnesses to be untruthful or unreliable or both.

20. Mdm Chow obviously would have a financial motive to bolster her claim to be Fung senior’s spouse.  A wife has a 50% share in a deceased’s estate on intestacy: s 4(3)(a), Intestates’ Estates Ordinance (Cap 73).

21. Some of her answers given during cross-examination show her claim to be inherently implausible:

(1) before the “marriage” she never visited the family residence of Fung senior, someone who was about to become her husband;

(2) whether before or after the “marriage”, she never met Fung senior’s siblings who, like her, were living in Guangzhou at the time;

(3) she has not been able to produce any record or document (including photographs) to support her claim of a “marriage” (such as “household registration”, employment or schooling records);

(4) even according to Mdm Chow, Fung senior’s siblings did not attend the “marriage” ceremony;

(5) the persons earlier asserted to be Fung senior’s relatives were later accepted to be the husband of a maid of Fung senior’s mother.

22. Mr Chow has shown himself to be a highly unreliable witness:

(a) he encountered unusual difficulties when he took the oath even with the judicial clerk’s assistance;

(b) he admitted during cross-examination he had only skeletal memories of a few events in the late 1940’s;

(c) he appeared not to realize his cross-examination was replayed in court, and gave purported answers to the replayed questions of the cross-examiner when the recording was played.

Consequently, no weight will be placed on his testimony.

23. D6 and D7 were born after 1949 and thus cannot give any useful testimony as regards the “marriage” between Fung senior and Mdm Chow.

24. Finally, I also do not consider Mdm Lau’s testimony to be reliable either.  Her account of the 1949 “marriage” is at variance with that given by the others.  In particular, Mdm Lau claims that the older generation relatives (two males) of both Fung senior and Mdm Chow (“他倆的長輩”) attended the wedding feast as witnesses:

(1) it is common ground Fung senior’s parents already passed away in 1949;

(2) according to Mdm Chow, the relatives present were Mr Chow, Fung senior’s uncle and aunt (the uncle was accepted to be the husband of a maid of Fung senior’s mother (para 21(5) above)). 

Mr Chow was born in 1928 whereas Mdm Lau was born in 1933.  There were only a few years’ difference in their age, and so Mr Chow could not be the “older generation relatives” she claims to be present at the time.

25. But even if the testimony of Mdm Chow and Mdm Lau should be found to be truthful as regards the 1949 “marriage”, I agree with the plaintiff the account given by them is too brief:

(a) according to Mdm Chow, it was a wedding of simplicity, attended by relatives and very close friends.  No other details have been given as to the identity or number of relatives and friends, or the actual wedding ceremony itself;

(b) according to Mdm Lau, there was a wedding feast (“婚宴”), which was also attended by the couple’s older generation relatives.  Similarly, only scant details as to the feast have been given.

26. In relation to the part of the plaintiff’s case concerning Mdm Chow’s knowledge of the family relationships of Fung senior (especially the marital relationship between Fung senior and Mdm Lee, and Mdm Lee’s children being blood related to Fung senior), there is ample evidence to show that Mdm Chow was well aware of the same; for example:

(1) both ladies and their children have met, and become acquainted, since the 1960’s (there was also a relatively long period when they lived under the same roof);

(2) both ladies and their children have attended (apparently as family members) various wedding ceremonies of some of Mdm Lee’s children.

(c)  Findings of fact

27. It is common ground whether there has been a valid marriage depends on whether the marriage:

“[was] celebrated or contracted outside Hong Kong in accordance with the law in force at the time and in the place where the marriage was performed” (emphasis supplied) (s 3(d), Cap 73)

(the marriages contended for by the plaintiff and the defence were marriages which took place in the Mainland).  In relation to the marriage between Fung senior and:

(a) Mdm Lee in 1947, it was a “Chinese modern marriage” within the meaning of the Chinese Civil Code 1930 (para 1, statement of claim; see also para 3.1, joint expert report dated 14 January 2014);

(b) Mdm Chow in 1949, it accorded with local customs (para 5B, amended defence; see also para 3.1(a), supplemental joint expert report dated 28 March 2014).

28. Based on the above findings on credibility and reliability, I am satisfied that Fung senior and Mdm Lee have gone through the requisition wedding ceremony as to constitute a valid Chinese modern marriage.

29. Conversely, there is no satisfactory evidence that Fung senior and Mdm Chow were married in accordance with Chinese and/or local customs.  Accordingly, there is no satisfactory evidence that Mdm Chow was validly married to Fung senior.

30. Prior to, and at the time of, Mdm Chow’s affirmation, Mdm Chow was well aware of Mdm Lee’s marital relationship with Fung senior, and that Mdm Lee’s children were blood related to Fung senior.  Consequently, there was no valid ground for her to believe (or depose) that:

(a) Mdm Chow was Fung senior’s lawful kit-fat widow;

(b) Fung senior was never married to any person other than Mdm Chow;

(c) the only persons entitled to share in Fung senior’s estate were Mdm Chow and Mdm Chow’s children;

(d) Fung senior had no other children or issue during the whole of his lifetime (other than Mdm Chow’s children).

EXPERT EVIDENCE

(a)  DNA

31. As stated above, the DNA expert report is undisputed.  The results provide valid basis for concluding that Mdm Lee’s children and Mdm Chow’s children were blood related to Fung senior.

32. The contemporaneous documents were consistent with the above conclusion:

(1) the employment records of Fung senior, where he reported Mdm Lee and Mdm Lee’s children to be his wife and children respectively;

(2) the household registration records of Fung senior to similar effect;

(3) the birth certificate of the plaintiff;

(4) the capacity in which Fung senior signed the marriage certificates as a witness.

(b)  Mainland Marriage Law

33. Because of the above findings of fact (especially the lack of satisfactory evidence to establish the 1949 marriage between Fung senior and Mdm Chow), it is strictly unnecessary to consider this aspect.  I shall do so briefly for completeness.

34. In short, I prefer the opinions of Prof Su to those of Prof Song:

(a) even though the Marriage Law of 1950 was not applicable to the 1949 marriage, it evidences the consistent approach of the Chinese Communist Party to polygamous marriage and concubinage (they were considered as offending against the “one-husband-one-wife” principle and should not be given legal validity).  The said approach is evidenced by:

(1) PRC’s “New Democracy Policy” (“新民主主義政策”);

(2) the various marriage laws promulgated by the former Chinese Soviet Republic (中華蘇維埃共和國);

(b) the various “Questions-and-Answers” and “Handling Principles” issued by the Central People’s Government Legal System Committee and Ministry of Justice (in the early 1950’s) were only directives and guidelines concerning the implementation of the Marriage Law of 1950 with a view to ameliorating the drastic impact the new law might have on the polygamous and concubinage relationships then commonly found in the Mainland, and not intended to (or should they be able to) change the legal provisions of the Marriage Law of 1950.  Though strictly not necessary for the purpose of this action, I believe these might have been intended to be “transitional” arrangements.

CONCLUSION

35. There will be an order in terms of the relief sought by the statement of claim.

36. The 2008 grant is revoked both because of Mdm Chow’s failure to establish herself to be Fung senior’s wife for the purpose of Cap 73, and because of the misrepresentations made in Mdm Chow’s affirmation.  As between her and the plaintiff, the plaintiff should be the more appropriate person to administer Fung senior’s estate.

37. The counterclaim is dismissed (save that an order will be made in terms of para (c) thereof (concerning the legitimacy of Mdm Chow’s children)).

OTHER MATTERS

38. The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the judgment and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

COSTS ORDER

39. The parties agree that costs should follow the event.  There will accordingly be a costs order that the costs of this action between the plaintiff and the defendants (other than the 2^nd to 4^th defendants) be paid by the defendants (other than the 2^nd to 4^th defendants) to the plaintiff to be taxed if not agreed.  The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations (Cap 91A).

40. The parties also agree that the costs of the 2^nd to 4^th defendants be paid out of Fung senior’s estate to be taxed if not agreed.