MA SIU SIU VIVIAN v. TAM WAI MUN ALICE AND ANOTHER

HCAP 13/2011

[2019] HKCFI 2886

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 13 OF 2011

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JUDGMENT

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1.  The plaintiff Ms Ma Siu Siu, also known as Ms Ma Siu Siu Vivian (“Vivian”), claims the grant of letters of administration to the estate of Mr Ma Jir-bo also known as Ma Ho (“Mr Ma”). Vivian entered a caveat in the Probate Registry on 6 October 2010 and has renewed it subsequently.

THE DISPUTES ON THE PLEADINGS

The plaintiff’s claim of marriage between Mr Ma and Madam Wong

2.  Mr Ma was a painter and teacher of painting.  Vivian claims that her mother, Madam Wong Yuet Seung also known as Madam Wong Kiu (“Madam Wong”) married Mr Ma in about late 1961. The marriage was celebrated openly and publicly at a dinner reception held in a Chinese restaurant called 同和酒家(Tung Wo Restaurant) at Diamond Hill, Hong Kong which was attended and witnessed by Mr Ma’s mother (“Grandma”) and his three students Wong Cheng Tung, Chan Dat Wing and Mui Kwok King. 

3.  Vivian was born in the relationship of Mr Ma and Madam Wong earlier on 9 November 1958. 

4.  Nevertheless, the 1^st defendant, Madam Alice Tam (“Madam Tam”) and Mr Ma married on 28 April 1970 according to the provisions of the Marriage Ordinance, Cap 181 at the Registrar’s office and the marriage was certified by a Certificate of Marriage issued by the Registrar General’s Department of Hong Kong.

5.  The 2^nd defendant, Mr Lawrence Ma (“Lawrence”) was born in this wedlock on 1 February 1971.

6.  Madam Wong passed away on 15 August 1982 and Mr Ma passed away intestate on 8 December 1985 in Hong Kong.

7.  Vivian’s case is that the marriage of Madam Wong and Mr Ma was a modern marriage within the meaning of section 8 of the Marriage Reform Ordinance, Cap 178 (“the Reform Ordinance”).

8.  In the alternative, Vivian pleaded that Madam Wong and Mr Ma had, since their marriage, cohabited together and held themselves out to the world as husband and wife.  Their relationship was known to all their relatives including Grandma, Mr Ma’s friends, students and neighbours.  Madam Wong was addressed by others as Mr Ma’s wife.  They thus had a reputed marriage.

9.  Vivian pleaded a further alternative that the marriage of Madam Wong and Mr Ma was a non-Christian customary marriage duly celebrated according to the personal law and religion of the parties within the meaning of section 37 of the then Marriage Ordinance.

The defendants’ case

10.  The defendants disputed the father and daughter relationship between Mr Ma and Vivian, but that challenge is no longer pursued.  They now accept Vivian as the daughter of Mr Ma and Madam Wong.

11.  The defendants also dispute Vivian’s allegation that Madam Wong and Mr Ma had contracted a modern marriage.  They pleaded that the alleged marriage was not celebrated “openly and publicly”. 

12.  They further pleaded that Madam Tam and Mr Ma had lawfully married on 28 April 1970 according to the then Marriage Ordinance, but the Reform Ordinance only came into force on 7 October 1971.  The Reform Ordinance therefore could not have retrospectively validated the purported marriage of Madam Wong and Mr Ma that took place in 1961 into a modern marriage as stated in section 8 of this ordinance as to do so would retrospectively invalidate on 7 October 1971 the lawful marriage of Madam Tam and Mr Ma contracted on 28 April 1970.  Hence, the marriage of Madam Wong and Mr Ma in 1961 was not validated by the Reform Ordinance.

13.  The defendants further pleaded that a modern marriage referred to in section 8 of the Reform Ordinance does not constitute a customary marriage within the meaning of section 37 of the Marriage Ordinance or a marriage duly celebrated according to the personal law and religion of Madam Wong and Mr Ma.

14.  The defendants also pleaded an alternative that if the purported marriage between Madam Wong and Mr Ma had been validated by the Reform Ordinance, the marriage between Madam Tam and Mr Ma contracted on 28 April 1970 according to the Marriage Ordinance remained valid as it was not invalidated on 7 October 1971 by the retrospectively validated modern marriage of Madam Wong and Mr Ma. The effect of this plea is that if the marriage between Madam Wong and Mr Ma was only validated by the Reform Ordinance on 7 October 1971, then Mr Ma became lawfully bigamous from that date onwards as both his marriage with Madam Wong and with Madam Tam were valid.

15.  The defendants pleaded a further alternative in relation to the succession entitlement of Lawrence that even if the marriage between Madam Tam and Mr Ma had been invalidated, it was the reasonable belief of Madam Tam and/or Mr Ma when they married or at the conception of Lawrence that their marriage was valid and that Mr Ma was domiciled in or had a substantial connection with Hong Kong when Lawrence was born. Hence, according to section 11 of the then Legitimacy Ordinance, Cap 184,Lawrence is to be treated as a legitimate child of his parents and entitled to share in Mr Ma’s estate under the Intestates’ Estates Ordinance, Cap 73.

The plaintiff’s reply to the defendants’ case

16.  Vivian in her reply pleaded that Mr Ma did not have the legal capacity to marry Madam Tam on 28 April 1970 as he was then already married validly to Madam Wong. 

17.  Furthermore, Madam Wong at that time was the living former wife of Mr Ma under the then section 20 of the Matrimonial Causes Ordinance, Cap 179.  Hence, the marriage between Madam Tam and Mr Ma was bigamous and void.  The validity of the marriage of Madam Wong and Mr Ma in this plea does not depend on the effect of the Reform Ordinance as it was effective on 28 April 1970 and before the Reform Ordinance had come into effect.

18.  Vivian also denies that Madam Tam and/or Mr Ma either at the time of their marriage or at the time of the conception of Lawrence had a reasonable belief that their marriage was valid as they both knew that Madam Wong was then married validly to Mr Ma.  If they or either of them should have believed that their marriage was valid, they were labouring under a mistake of law as to the validity of the marriage of Madam Wong and Mr Ma.

THE EVIDENCE

Birth of Vivian

19.  Vivian was born on 9 November 1958 out of the relationship between Mr Ma and Madam Wong.  The nature of their relationship at this time or thereafter up to the dinner celebration in 1961 at Tung Wo Restaurant at Diamond Hill was not alluded to in the pleadings.  There is however evidence from PW1 Mr Wong Cheng Tung (“Mr CT Wong”) and PW2 Mr Chan Dat Wing (“Mr DW Chan”) in their witness statements and Mr CT Wong in cross-examination that after Vivian’s birth, Mr Ma, Madam Wong and Vivian were living together in a stone house in Diamond Hill.  Madam Wong was also known to Mr Ma’s pupils as “四姑” (“Fourth Aunt”) as she was the fourth child in her family.

The celebration dinner on a Sunday in 1961 at同和酒家 (Tung Wo Restaurant) at Diamond Hill in 1961

20.  Mr CT Wong, Mr DW Chan one Mr Miu Kwok King were the students of Mr Ma and they had learnt the art of painting from Mr Ma before Vivian’s birth.  Mr CT Wong and Mr DW Chan have made affirmations and witness statements for Vivian in this action. 

21.  Mr CT Wong described the dinner in his Chinese affirmation made on 1 February 2011 as follows:

「......約於1961年底的一個星期日，亞Sim (馬的母親) 請我們學生三人(即我，陳及繆) 到鑽石山『同和酒家』吃晚飯，慶祝四姑正式“入門”馬家，所有人皆舉杯慶賀他們成婚。當晚點的菜餚比平常豐富。在座有亞Sim、馬、四姑、繆、陳、我和蕭蕭。在座有亞Sim舉杯慶祝四姑正式為馬家新抱，確認馬和四姑的夫妻關係。因習慣了，我們學生三人日後仍叫師母做四姑。」

22.  Mr CT Wong also referred to the dinner in his witness statement dated 28 October 2011 as follows:

「大概1961年底某一個星期日，老師的母親請我們學生三人(即我，陳及繆) 到同和酒家吃晚飯。在座有老師的母親、老師、四姑、繆、陳、我和蕭蕭。老師的母親表示當天的晚飯是為了慶祝四姑正式‘入門’馬家，所有人皆舉杯慶賀他們成婚。當晚的菜餚比平常豐富，有雞有酒，包括老師尤愛的玉冰燒和五加皮。老師母親當晚非常高興，主動舉杯慶祝四姑正式成為她馬家新抱，並確認老師和四姑的夫妻關係。但基於習慣，我們學生三人日後仍稱呼師母做四姑。」

“On a certain Sunday in about the end of 1961, our teacher’s mother (‘Grandma’) invited us the three pupils (who were I myself, Chan and Miu) to dinner at Tung Wo Restaurant. Grandma, our teacher (ie Mr Ma), Fourth Aunt (ie Madam Wong), Miu, Chan, I myself and Siu Siu (Vivian) were present. Grandma expressed that the dinner on that day was for celebrating the formal admission of Fourth Aunt into the Ma Family. All persons raised their glasses to congratulate their marriage. The dishes in that evening were more sumptuous than usual, with chicken and spirits, including our teacher’s favourites of Jade Ice Spirits and Acanthopanax Bark Sprits. In that night Grandma was exceedingly happy. She took the initiative of raising her glass to celebrate Fourth Aunt’s becoming formally the daughter-in-law of the Ma Family. She also confirmed the husband and wife relationship between our teacher and Fourth Aunt. However, owing to habits, the three of us continued to address our teacher’s wife as Fourth Aunt.” (free translation)

23.  This description of the dinner in his witness statement is more or less the same as that in his affirmation except that the order of words is different.  

24.  Mr DW Chan in his English affirmation (with verbal translation to him) made on 1 February 2011 referred to the dinner in these terms.  He said:

“On a Sunday in around late 1961, Ah Sim (Grandma), invited me, Mui (should be ‘Miu’) and Wong to have dinner at a Chinese restaurant in Diamond Hill namely, 同和酒家 to celebrate ‘四姑’ (Fourth Aunt) to become the wife of Ma. Ah Sim, Ma, ‘四姑’, Miu, Wong, Siu Siu (Vivian) and I were in the said celebration dinner. Ah Sim announced to welcome ‘四姑’ to become the wife of Ma and a member of Ma’s family. All persons had a toast. On that night, we had more dishes than usual.”

25.  Mr DW Chan also referred to the dinner in his Chinese witness statement.  His description of the dinner was word for word the same as that in Mr CT Wong’s witness statement except that he did not name Mr Ma’s favourite spirits.

26.  Mr Mok, leading counsel for Madam Tam and Lawrence, cross- examined Mr CT Wong at some length on his witness statement.  However,he did not do the same for Mr DW Chan as Mr DW Chan was ill and his evidence was taken in the old people’s home where he was residing.  Mr DW Chan confirmed the truthfulness and correctness of his witness statement and affirmation.

27.  Mr Mok and Mr Eric Leung, counsel for the defendants, submitted one set of opening submissions and two sets of closing submissions.  They did not in their submissions make a serious attempt to discredit either Mr CT Wong or Mr DW Chan.  They just took the point that both of them described the dinner in their statements in the same terms.  Mr Mok, when cross-examining Mr CT Wong, also made the point that Mr CT Wong had told Lawrence more than once that he could not remember the details of the dinner, but was able to give some details of it to Vivian’s lawyer.

28.  Mr CT Wong was in his 80s when he gave evidence.  He had no interest in the outcome of this action.  He maintained in cross-examination that the dinner was not a usual family dinner.  It was a special one.  Chicken was ordered and more spirits than usual were consumed.  Grandma welcomed formally Madam Wong to be her daughter-in-law.  Grandma also confirmed at least twice that Mr Ma and Madam Wong were husband and wife.  There were many other diners around them.

29.  Mr CT Wong knew that it was Mr Ma’s wish to donate his paintings to the country and for them to be exhibited in a memorial museum. Mr CT Wong was in favour of fulling Mr Ma’s wish.  He had in October 2010 rendered help to Madam Tam and Lawrence in organizing a posthumous exhibition of Mr Ma’s paintings.  He also knew that Vivian was desirous of fulling Mr Ma’s wish.  However, Lawrence did not consider it feasible to build a museum as the government of the Mainland was not going to build it.  Since both Mr CT Wong and Vivian were desirous of fulfilling Mr Ma’s dying wish, Mr CT Wong might have been more cooperative with Vivian and told her lawyers what happened in the 1961 dinner.  However, that does not mean that he would have lied about what happened in the dinner in his evidence.  He was firm in his evidence when cross-examined.  His answers were straightforward.  He was a faithful pupil of Mr Ma.  I do not feel that he would have lied in his evidence about what Mr Ma did in his lifetime or anything relating to Mr Ma.

30.  Mr DW Chan was also in his 80s when he gave evidence.  He also had no interest in the outcome of this action.  He said he could not recall many things after he had fallen ill.  His cross-examination was brief. He was also a faithful pupil of Mr Ma and I do not feel that he would have lied in his evidence about what Mr Ma did or anything relating to Mr Ma.

31.  Regarding their descriptions of the dinner in their witness statements being the same, it is obviously the result of the copy and paste function of a word processor.  If they should have provided similar verbal descriptions of the dinner to the solicitor who was to prepare the drafts of their witness statements, then the drafter might just copy the description in one draft and paste it in the other.  In fact, there are some other paragraphs in their witness statements that are word for word the same. 

32.  For the above reasons, I accept the evidence of Mr CT Wong and Mr DW Chan in their affirmations, witness statements and oral evidence.  I find such evidence truthful and correct.

The relationship between Mr Ma and Madam Wong after the 同和酒家(Tung Wo Restaurant) dinner

33.  Mr CT Wong said after Madam Wong had married Mr Ma, the three of them (including Mr DW Chan and Mr Miu) continued to address Madam Wong as Fourth Aunt owing to their habit. The family of Mr Ma,Madam Wong and Vivian moved to the Cheung Chau island in 1962. 

34.  Later, a manager of Bangkok Bank one Mr Chung got acquainted with Mr Ma and bought some paintings from him.  The finance of Mr Ma’s family improved. Mr Ma then set up a studio in Mongkok.  He worked in the studio in the daytime and returned to Cheung Chau after his teaching in the evening as Madam Wong and Vivian were staying in Cheung Chau.  During the holidays, Mr CT Wong and his fellow pupils went with Mr Ma to other places to do sketching from nature. When they returned to the studio, Madam Wong would prepare dinner for them.

35.  Since the 1970s, Mr CT Wong seldom went to the studio because of work.  He only visited Mr Ma during the Chinese New Year period.  He learnt that Mr Ma and Madam Tam had moved to North Point together with Grandma and Lawrence whilst Madam Wong and Vivian remained in Cheung Chau.  Mr Ma was hospitalized in 1985.  Mr CT Wong visited him at the hospital in 1985 and attended his funeral later that year. 

36.  Another witness PW3 Mr Chan Yan Fu (“Mr YF Chan”) also gave evidence as to what happened in the 1960s to 1970s in relation to Mr Ma.  Mr YF Chan only became Mr Ma’s pupil in about 1965 and did not take part in the 1961 Tung Wo Restaurant dinner.  He attended two evening lessons per week given by Mr Ma.  He also joined the Sunday sketching from nature. He attended Mr Ma’s lessons until 1974 when Mr Ma held an exhibition of paintings.

37.  When Mr YF Chan was studying under Mr Ma, he often came across Grandma, Vivian and Madam Wong.  Grandma introduced Madam Wong to him as the mother of Siu Siu.  Hence, he addressed Madam Wong as “師母” or “teacher’s wife”.  His fellow pupils did the same.

38.  He was usually the first to arrive at the studio for the lessons. He would see Vivian, Madam Wong and Grandma making preparations. Madam Wong told him how she had travelled from Cheung Chau to the studio. There was an occasion when they went to Cheung Chau to do sketching from nature. They went past a small wooden hut.  A fellow pupil Mr Wong Wan Shan (“Mr WS Wong”) told him that Mr Ma had once resided therein. 

39.  When Mr YF Chan was studying under Mr Ma at the Mongkok studio, he saw a wooden plaque hanging on the outside of the door of the studio.  There were some Chinese characters written on the plaque which read:「家寶畫室」and「六亗馬蕭蕭」.  The English translation means “Jir-bo Studio” “Inscribed by Ma Siu Siu of six years old”.  A copy of this plaque is at p 508 of the exhibits. These characters cannot be said to be written in any artistic style.  The size of the Chinese characters is not uniform.  Mr YF Chan enquired from others who was Siu Siu and was told that she was Mr Ma’s daughter.

40.  I accept the evidence of Mr CT Wong for the reasons given above.  I also accept the evidence of Mr YF Chan because his evidence is reasonable.  Mr Mok did not cross-examine him and what he said was unchallenged.

Madam Tam’s knowledge of the relationship between Mr Ma and Madam Wong

41.  Mr YF Chan remembered that Madam Tam joined Mr Ma as his pupil in about 1966 to 1967.  (Madam Tam said she joined in 1968.)  He saw Mr Ma and Madam Tam often appearing together.  Madam Tam also joined the pupils to do sketching from nature though he never saw her sketching anything.  After Madam Tam had joined the studio, the senior pupils like Mr CT Wong, Mr DW Chan and Mr Miu gradually dropped out. 

42.  There was an occasion when Mr Ma and his pupils were returning from a sketching from nature exercise and were on the way to the Mongkok studio.  Mr Ma and Madam Tam were walking in front and Mr YF Chan and Mr WS Wong followed behind.  Mr YF Chan then saw Madam Wong waiting at a corner.  When Madam Wong saw the party,she dashed forward and scolded Madam Tam: 「你個狐狸精，搞我老公」(“You woman of easy virtue, you seduced my husband!” (free translation))  Then Madam Wong scolded Mr Ma for indulging in unfaithful conduct whilst she was left alone in Cheung Chau.  Then Madam Wong grabbed Mr YF Chan’s shirt and asked him to stop learning painting from Mr Ma. Mr YF Chan was very frightened.  He and Mr WS Wong quickly returned to the studio and then left.

43.  Afterwards, Mr YF Chan often saw Grandma crying after she had spoken to Madam Wong on the phone.  The mood of the studio had become very bad.  Mr YF Chan was very unhappy.  He and Mr WS Wong thought that Mr Ma had conducted himself very wrongly.  Grandma would also cry whenever Madam Tam was mentioned.  Grandma said she was happier in the past. 

44.  Mr Ma held an exhibition in 1974.  Mr YF Chan also participated in it.  After the exhibition, he decided not to study from Mr Ma anymore.  He also threw away the painter’s paraphernalia and seldom communicated with his fellow pupils.

45.  Mr Mok did not cross-examine Mr YF Chan despite some difference between his evidence and Madam Tam’s on the encounter with Madam Wong in the street.  Mr YF Chan’s evidence thus stands unchallenged.    

46.  Madam Tam made two witness statements dated 24 January 2013 and 22 April 2013.  She said in her first witness statement that she learnt painting from Mr Ma at his Jir-bo Studio in 1968.  She confirmed in cross- examination that it was early 1968.  She had never met Madam Wong.  She married Mr Ma on 28 April 1970 and held a banquet in the same evening. She gave birth to Lawrence in December 1970. 

47.  She also said that on a day in 1972 to 1973 when she was crossing the road on her way to her parents’ home in Fa Yuen Street, an unknown woman with a girl of 10 odd years old approached her and asked her for the return of all the paintings.  She ignored the woman and went on her own way.  After returning home, she enquired with Mr Ma and Grandma, but both gave her no answer.  Since she had married Mr Ma at the Marriage Registry, had given birth to a son, and had immense faith in Mr Ma, she therefore did not persist on her enquiry. 

48.  She however gave a different version of the same story in her supplemental witness statement.  She said in about 1972 to 1973, she accompanied Mr Ma and his pupils to do sketching from nature.  On the way back, a woman dashed towards her and scolded her.  Upon return to the studio, she questioned Mr Ma who the woman was.  Mr Ma did not reply.  She enquired with Grandma but Grandma likewise gave no answer.  She then asked Mr Ma again on whether he had married the woman.  He said he had not.  Grandma was there but did not say a word.  She persisted with her questioning.  Then Mr WS Wong and Mr YF Chan returned but left in a short while.  Mr Ma and Grandma did not make any utterance.  The mood was tense.  She felt that she was cheated and she nursed a grievance.  She left the studio in a fury. 

49.  She confirmed in examination-in-chief that both versions were about the same incident, but the version in the supplemental witness statement was true.  She also denied that she had heard the woman saying to her「你個狐狸精，搞我老公」.  She maintained that the woman only asked her to return the paintings.

50.  Madam Tam agreed that she had seen the wooden plaque bearing the Chinese characters: 「家寶畫室」and「六亗馬蕭蕭」.  She thought at that time that it was written by a little girl who had learnt Chinese calligraphy from Mr Ma. She was not alerted to the fact that Ma Siu Siu could be Mr Ma’s daughter.  The plaque was lost later, but she did not know how.

51.  She said in cross-examination that she had not asked anyone about the wooden plaque and nobody mentioned it.  She just thought that Ma Siu Siu was a name. 

52.  I do not believe in Madam Tam’s evidence on her encounter with Madam Wong.  I find Mr YF Chan’s evidence credible as his oral evidence was clear, straightforward and unchallenged.  I also find Madam Tam’s evidence on this incident incredible and unbelievable.  She did not explain why her first version was so different from her second version.  If there is no explanation on why she would have given two vastly different versions within a span of some three months, then I cannot tell which version is truthful. 

53.  I also disbelieve her denial that Madam Wong had scolded her with the words:「你個狐狸精，搞我老公」.  These are the very words that one would expect to hear in such kind of encounter.  Indeed, her allegation that Madam Wong had asked her for the return of the paintings is baffling. Nobody suggests that the conflict between Madam Wong and Madam Tam had anything to do with Mr Ma’s paintings.  Mr Ma’s wish was to donate all of them to the state.  He did not give them to Madam Tam, at least not at that time. 

54.  Regarding her evidence about the wooden plaque, I again prefer the evidence of Mr YF Chan although Mr Chan did not directly contradict Madam Tam on this point.  Mr YF Chan’s evidence shows that it was not a secret but a commonly known fact amongst Mr Ma’s pupil that Siu Siu was Mr Ma’s daughter.  If Madam Tam was initially not aware of this,she would have enquired about it with Mr Ma or with her fellow pupils. Her assumption that the plaque was inscribed by a little girl who had learnt Chinese calligraphy from Mr Ma is difficult to believe.  Mr Ma indeed had many pupils, but all of them were known to be pupils of painting rather than Chinese calligraphy.  They were also mature adults and none of them was a child of tender years.  If Madam Tam should have thought that the plaque was inscribed by a little pupil of Mr Ma, she would have naturally enquired about the little girl and the plaque. 

55.  For the above reasons, I accept Mr YF Chan’s evidence and reject Madam Tam’s evidence.  I find that Madam Tam knew that Siu Siu was Mr Ma’s daughter shortly after she had joined Mr Ma as his pupil in 1968 as she would have learnt about this upon seeing the wooden plaque hung on the outside of the door of the studio.  Logically, upon discovering Mr Ma’s daughter was Siu Siu, she would also have learnt that Mr Ma had purportedly married Madam Wong in 1961 before her own marriage with Mr Ma.  

ANALYSIS AND DECISIONS

Whether the 1961 同和酒家(Tung Wo Restaurant) dinner constituted a Chinese Modern marriage ceremony

56.  Section 2 of the Marriage Reform Ordinance (Cap 178) (“MRO”)defines “modern marriage” (新式婚姻) as “a marriage celebrated in Hong Kong before the appointed day by open ceremony as a modern marriage and in the presence of 2 or more witnesses”. 

57.  Section 8 of the MRO validates modern marriages as follows:

“Subject to section 14, every marriage celebrated in Hong Kong before the appointed day as a modern marriage by a man and a woman each of whom, at the time of the marriage, was not less than 16 years of age and was not married to any other person shall be a valid marriage, and shall be deemed to have been valid since the time of celebration, notwithstanding—

(a) that the proper personal law and religion of the parties, or one of them, was Chinese law and custom, and the marriage was prohibited by or failed to comply with the requirements of Chinese law and custom; or

(b) that the marriage was not under and in accordance with the Marriage Ordinance (Cap. 181).”

58.  The two requirements for contracting a modern marriage are that it must be celebrated by open ceremony as a modern marriage and in the presence of 2 or more witnesses.  Since the dinner at Tung Wo Restaurant was attended to by Mr CT Wong, Mr DW Chan and Mr Miu, there is no question of sufficiency of witnesses.  The defendants however say that there was no valid open ceremony celebrated and hence the marriage was invalid. 

59.  The concept of modern marriage is derived from Article 982 of the Civil Code of the Republic of China which came into force on 5 May 1931.  Counsel for the defendants in their submissions pointed out that there is no definition in Article 982 or the MRO on what is necessary to make a ceremony “open”.  They referred in their submissions to the learned text Marriage laws and customs of China by Dr Vermier Y Chiu (趙冰), which cited some decisions of the Judicial Yuan (or Dali Yuan prior to 1928) of the Republic of China, for the meaning and requirements of open ceremony. The Judicial Yuan in decision Yuan No 859 of the year 1933 defined open ceremony as:

“ Open ceremony is ceremony so held that it is known and can be seen by all those who are not particularly invited to participate.”

60.  Other cases and commentaries referred to by counsel for the defendants in their submissions show that the ceremony must not be carried out in enclosed or locked premises.  Hence, even where the ceremony can be seen from the outside of the premises, it is still not an open ceremony if the premises are enclosed or the access to the premises is locked.   

61.  Counsel for the defendants in their opening submissions argued that even if the whole description of the dinner is accepted, there is still lacking any sort of marriage ceremony or the open celebration of the ceremony.  Dealing with the argument of the openness of the celebration, they submitted that there was no formal or prior invitation sent to Wong, Chan or Miu, the non-attendance of relatives from both sides, no public notice such as scrolls placed within or outside the restaurant to notify the general public that there was a wedding celebration taking place, the couple were not wearing any special clothes to mark the occasion and for the public to know that they were getting married, and what was purportedly said by Grandma was unlikely to be heard by anyone other than those at the table.  They submitted that there was simply no act or indication to the public to signify a marriage ceremony was taking place.

62.  I reiterate that there is no definition in Article 982 or the MRO of what amounts to an open ceremony.  There is no requirement that there should be prior invitation to the guests.  In fact, such invitation alone cannot make a ceremony open.  There is also no need for relatives to attend or to be invited to attend.  What is necessary is the presence of at least two witnesses. If Mr Ma should have arranged for the dinner to be in a private room in a restaurant, then it may be useful to hang a scroll outside the room to tell the guests where to go for the dinner.  This certainly happens frequently here.  But it is not something that alone would make the ceremony open.  Regarding special clothes, I do not quite understand what counsel are referring to.  If they are referring to the traditional long gown and mandarin jacket with a red sash for the groom and the traditional Chinese-style unlined gown for the bride, then I can tell that even in the 1960s, few marrying couple would wear them.  If counsel are just referring to new clothes, then poor peasants in the countryside may or may not have the luxury of wearing them even on their wedding day.  One must not forget that modern marriage was promulgated in 1931 which also applied to many areas in China where many people including ethnic minorities were struggling at the subsistence level.

63.  Regarding Grandma’s conduct, Mr CT Wong and Mr DW Chan said that Grandma made an announcement to welcome Madam Wong to become the wife of Mr Ma.  She took the initiative of raising her glass to celebrate Madam Wong’s “becoming formally” the daughter-in-law of the Ma Family.  She also made a confirmation of the husband and wife relationship between Mr Ma and Madam Wong.  Mr CT Wong also said in cross-examination that the dinner was held in the restaurant with many other diners around them.  It cannot be suggested that Grandma made these announcement, confirmation and the toast of celebration in a subdued,hushed or muted manner.  She was acting in the open and in all probability in an open manner. There was no need for her to make the announcement,confirmation and toast with a loudhailer or that nearby strangers should have heard and understood what she said.  If the other people at the other tables were absorbed in their own business or eating and drinking and did not pay attention and did not hear what she said, it did not thereby make the ceremony not open.

64.  In the light of the above, if what happened at the dinner could constitute a ceremony, I hold that it was an open ceremony.

65.  The next question is whether the dinner at the restaurant in 1961 can be regarded as a ceremony for the purpose of the MRO.  Just like the absence of any definition on what amounts to “open”, Article 982 or the MRO also has no definition for what amounts to a “ceremony”. 

66.  Counsel for the defendants submitted that there was no declaration by Mr Ma or Madam Wong that they take each other as husband and wife or that he would from then on take her as his wife.  There was no kowtowing to the ancestors of Mr Ma and/or Madam Wong.  There was not even a ceremony in which Mr Ma and Madam Wong offered tea to Mr Ma’s mother.  There was no exchange of wedding rings or some symbolic ornament such as a jade bracelet etc to express the solemnity of the act of marriage.  There was no exchange of wedding gifts between Mr Ma and Madam Wong or any wedding gifts from family or friends such as “lai see” etc.  There was no wedding photos taken to mark the momentous occasion especially when Mr Ma had done so before on other important occasions like the birth of Vivian and of he himself and his students.  Numerous photos were taken of the wedding of Mr Ma and Madam Tam.

67.  Marriage declaration is a must for a Christian marriage.  However, such is seldom done in Chinese customary marriages.  Kowtowing to ancestors is often done in Chinese customary marriages but not often for Christian marriages.  Offer of tea by Mr Ma and Madam Wong to Mr Ma’s mother is not a must.  The people present at the dinner instead had a toast to celebrate the marriage.  There is no evidence on what exact blessings were bestowed on Mr Ma and Madam Wong, but Chinese blessings for marriage occasions are usually linked to marriage and the happiness of the marrying couple.  Such toasts are invariably a clear signification of marriage.  Common toasts used by guests at marriage dinners are 百年好合，永結同心 (wish the bride and groom to have a harmonious union lasting a hundred years and to be of one mind forever) and 白頭偕老 (wish the bride and groom grow old together) or similar blessings. 

68.  Exchange of wedding rings or some symbolic ornament like jade bracelet or other gifts to express the solemnity or the handing out of “lai see” (lucky money) is common, but such may depend on the affordability of poor people.  The ethnic minorities of China may not have such practice. Taking photos is also common at weddings nowadays. But it might not have been so common in the 1930s.  In any event, none of these is a must for there to be a ceremony.

69.  The absence of any specification for a ceremony in Article 982 or the MRO means that the ceremony can be as simple and unsophisticated as the marrying couple may wish it to be.  This can certainly benefit the underprivileged like the poor peasants in the countryside or the ethnic minorities.  They can contract a modern marriage by going through the simplest of ceremonies. A ceremony can also be conducted in a cheerful manner.  It need not be solemn or courtly.  People can also eat and drink at or in the course of the ceremony.  What has to be considered is what actually happened or was done in the so- called ceremony.  It is a matter of the intention of the parties concerned. 

70.  Back in 1961, Mr Ma was very poor.  From the evidence of Mr CT Wong and Mr DW Chan, he had to be supported by Madam Wong and Grandma.  There was no reason for him to be lavish in celebrating the marriage.  But the situation was quite different when he and Madam Tam got married in 1970.  Madam Tam was working to support herself only and could have some luxuries in life like a second hand motor car.  That was back in 1970.  Her evidence showed that she had a fairly comfortable life.

71.  This dinner was also not held before or around Vivian’s birth,but over two years later.  The evidence says that Grandma was very happy. She certainly took the matter seriously. She said Madam Wong “formally”joined the family.  She said so obviously because despite the birth of Vivian over two years ago, Madam Wong was hitherto not yet a formal member of the family.  She therefore announced that she had become a “formal” member. She also made a “confirmation” of the husband and wife relationship between Mr Ma and Madam Wong.  Though Mr Ma and Madam Wong had not made their marriage declarations, they acknowledged Grandma’s announcement and confirmation by acquiescence and participated in the toast of celebration. The fact that chicken was ordered and more spirits were consumed also showed that this was a dinner gathering of significance and importance. 

72.  The defendants’ counsel also referred to Mr Ma’s different modes of address in his letters to Madam Wong and Madam Tam to argue that Mr Ma did not treat Madam Wong as his wife.  I think that is reading too much in trivial matters. 

73.  They also misunderstood the mode of address of “師母” used by Mr YF Chan to address Madam Wong.  They say that this is his address to Vivian’s mother.  There is a Chinese saying 「一日為師，終身為父。」  It is from《鳴沙石室佚書―太公家教》.  It means “[h]e who teaches me for one day is my father for life.”  This shows how Chinese people revere the teacher.  Chinese people also revere the teacher’s wife.  “師母” means literally “teacher mother”.  The teacher’s wife is always addressed as “師母” even when the teacher and his wife have no children.  It is not an address to the mother of the teacher’s children.  It is an address by a pupil to the teacher’s wife.  Mr YF Chan’s evidence is that when Madam Wong was introduced by Grandma to him as Siu Siu’s mother, he addressed her as “師母”. The reason being that he knew Siu Siu was Mr Ma’s daughter. Hence, he knew that Madam Wong was Mr Ma’s wife and addressed her as teacher mother.

74.  Based on the above analysis, I find that in the circumstances there was a simply but valid open modern marriage ceremony in accordance with Article 982 and the MRO.  

Section 37 of the Marriage Ordinance and was modern marriage valid from 1961 to 28 April 1970

75.  Vivian has pleaded in §4E of her re-amended statement of claim that:

“Still further and in the alternative, the marriage or the Modern Marriage was a non-Christian customary marriage duly celebrated according to the personal law and religion of the parties within the meaning of section 37 of the then Marriage Ordinance.”

76.  Mr Chain also submitted that the marriage contracted by Mr Ma and Madam Wong in 1961 was valid from the date of the marriage dinner to 28 April 1970 when Mr Ma and Madam Tam got married.

77.  Section 37 of the 1932 version of the Marriage Ordinance (now section 38 of the MO) provided:

“  37. — (1) This Ordinance shall apply to all marriages celebrated in the Colony except non-Christian customary marriages duly celebrated according to the personal law and religion of the parties.

      (2)      The parties to any such 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 the marriage under this Ordinance shall not be deemed to prejudice the previous customary marriage.”

78.  The marriage ceremony performed by Grandma for Mr Ma and Madam Wong was without doubt not according to Chinese customary law. It was a ceremony that fitted into modern marriage as I have held above. Mr Chain submitted that this marriage was a “non-Christian customary marriage duly celebrated according to the personal law and religion of the parties”.  Hence, it was recognised as valid under Hong Kong law by the exclusion in section 37 of the Marriage Ordinance from the application of that ordinance prior to the validation of modern marriages by the MRO in 1971.

79.  Prior to 1932, the word “customary” was not present in section 37(1) of the Marriage Ordinance.  This word was added to the section by an amendment made in 1932.  Mr Chain submitted that this amendment added nothing to the meaning of section 37.  I disagree.  I do not think the legislature would have added just one word to a section of the ordinance for no purpose.  I think the addition of “customary” was to narrow the scope of exclusion of marriages from “marriages duly celebrated according to the personal law and religion of the parties” to “‘customary’ marriages duly celebrated according to the personal law and religion of the parties”. Therefore in applying section 37, I must give meaning to the word “customary”.   I agree with Mr Chain that the customary marriages should include those practised by the Hindus, Muslims and other ethnic minorities in Hong Kong.

80.  “Custom” as defined in the New Shorter Oxford Dictionary means “Law.  An established usage which by long continuance has acquired the force of a law or right.”  All the evidence says that modern marriage was a popular form of marriage in and before 1961.  But what is popular is not necessarily customary.  There is nothing to suggest that modern marriage,which was promulgated in 1931 in the Republic of China, had by 1961 become part of the custom in Hong Kong. 

81.  The legislature also did not regard it as a legal form of marriage.  Hence, it was validated retrospectively on 7 October 1971.  Chinese customary marriage as defined in section 7 of the MRO (or other kinds of customary marriage within the meaning of section 37 of the Marriage Ordinance) was recognized as valid in law and did not have to be validated.  Both the recognized Chinese customary marriages and validated modern marriages were allowed to be registered by section 9 of the MRO. 

82.  In the premises, I hold that the marriage contracted by Mr Ma and Madam Wong in the 1961 dinner at Tung Wo Restaurant was not a non-Christian customary marriage within the meaning of section 37 of the then Marriage Ordinance.  It was not a legally recognized marriage until its validation by section 8 of the MRO on 7 October 1971.

Presumption of marriage

83.  Mr Chain, counsel for Vivian, submitted that the court can presume that Mr Ma and Madam Wong had contracted a valid marriage because they had gone through a well-established ceremony with the intention to get marry.  He further submitted in §70 of his final submissions that the court need only find that there was a valid marriage and need not identify a marriage format.  The court can presume that the marriage was either a registry marriage according to the Marriage Ordinance or a Chinese customary marriage which was also recognized by law (footnote 9).  He further submitted in the alternative that the court should find that Mr Ma and Madam Wong had contracted a modern marriage (§71). 

84.  I have held above that modern marriage was not recognized by law prior to 7 October 1971.  It was only validated by the MRO on that date. 

85.  Chinese customary did not require validation as it was always recognized as valid since 1932 by exclusion from the application of the Marriage Ordinance.  

86.  I do not think I can declare that Mr Ma and Madam Wong had contracted either a valid registry marriage according to the Marriage Ordinance or a valid Chinese customary marriage as the ceremony that they had gone through was for neither but was for a modern marriage.  Modern marriage was however not recognized by the law of Hong Kong in 1961 when they went through the ceremony.  I cannot presume something had taken place (a ceremony for registry marriage or a Chinese customary marriage) when in fact it is known that something else had taken place (a modern marriage). I cannot make a presumption that is contrary to known historical fact. 

Invalidation of the registry marriage by the validated modern marriage or the modern marriage not validated by the MRO

87.  Mr Chain has submitted that the validation of the modern marriage of Mr Ma and Madam Wong on 7 October 1971 had thereby invalidated the registry marriage contracted by Mr Ma and Madam Wong on 28 April 1970 as the continual validity of the second marriage would render Mr Ma bigamous.  Mr Chain referred to the academic discussions and conclusion of Mr L Pegg, formerly a lecturer in law at the University of Hong Kong.  

88.  The problem of validating a modern marriage when there is in existence a valid registry marriage between one of the couple and a third party was known to the government prior to the enactment of the 1971 marriage reform legislations.  There was a recommendation in the White Paper on Chinese Marriages in Hong Kong (May, 1967) to deal with this problem as follows (at pp 28 – 29):

“ Recommendation 2:

Legislation to be enacted whereby marriages contracted in Hong Kong, elsewhere than in a licensed place of worship or a marriage registry and prior to a date to be appointed, shall be retrospectively recognized as valid if they were between two persons over the age of 16 and celebrated in a public place before at least two witnesses,provided that—

(1)   at the time of such marriage neither spouse was lawfully married to anyone else;

(2)   where either of the parties to such a marriage has subsequently married someone else, the earlier marriage shall be recognized in law only for such period as it subsisted”

(emphasis added)

89.  This recommendation was however not accepted.  I guess that it could be because the implementation of the recommendation would validate the prior marriage and divorced it at the date of the second marriage.  Since there was this recommendation though not accepted, I cannot assume that the problem, which was created by the validation of modern marriages, came about by accident.  It was something left there by the legislature deliberately.

90.  Though the legislature did not take up the recommendation made in the 1967 White Paper, it also did not provide for the invalidation of the subsequent valid marriage by the validation of a prior invalid modern marriage. I would also not treat it as an accidental omission by the legislature.  I take it to be a deliberate act.

91.  Mr Chain submitted that the court can declare whether the subsequent valid marriage has been invalidated by the validation of an earlier modern marriage by considering the circumstances and reasonableness of the couple in contracting the subsequent valid marriage.  I do not think I can do so as the law has not conferred the court with such authority and provided the criteria for exercising the authority.

92.  Despite the eminence of Mr Pegg’s works, I cannot agree with him.  I cannot hold that the validation of a modern marriage would invalidate the subsequent valid registry marriage.  Apart from the lack of statutory provision for the invalidation, I also do not see any proper reason to do so.  If the subsequent marriage should be invalidated automatically, the interest of the other party to the valid subsequent marriage and the children of that marriage may be prejudiced.  This can produce unfairness to many people.

93.  However, can the problem be solved by declaring that the modern marriage was not validated as submitted by counsel for the defendants? I do not think I can so declare as there is the clear wording of the statute which I cannot ignore or go against.  I think the simple reason for the lack of statutory provision to deal with this problem is because the legislature did not want to be exposed to the embarrassment of legislating for bigamy if the law should say that the validation of the modern marriage would not affect the validity of the subsequent valid marriage.  However, even if there is no express provision to deal with this problem, the logical conclusion is that both marriages will continue to be valid from the validation of the modern marriage onwards.  I so hold.

Knowledge of Mr Ma and/or Madam Tam of marriage of Mr Ma and Madam Wong

94.  Mr Ma of course knew that he had contracted a modern marriage with Madam Wong at all times since the dinner in 1961 at Tung Wo Restaurant.

95.  Regarding Madam Tam, I have already held above that Madam Tam knew that Siu Siu was Mr Ma’s daughter and Madam Wong his wife shortly after she had joined Mr Ma as his pupil in 1968.  However, I have also held that the registry marriage between Mr Ma and Madam Wong was valid, their knowledge of the modern marriage between Mr Ma and Madam Wong is of no consequence.

Decision

96.  I have held that there was a validated marriage between Mr Ma and Madam Wong under section 8 of the MRO which did not invalidate the Registry Marriage between Mr Ma and Madam Tam.  Therefore, Vivian, Madam Tam and Lawrence all stand to benefit from Mr Ma’s estate in accordance with the provisions of the Intestates’ Estate Ordinance, Cap 481 (“IEO”).

97.  Under section 4 of the IEO, Madam Tam is entitled to the payment of a net sum of HK$50,000, free of death duties and costs, with interest from the date of the death at the rate of HK$5 per centum per annum until paid and the same to be charged on the residuary estate of Mr Ma. Subject to providing for the said sum and interest, the residuary estate shall be held:

(a)  as to one half, in trust for Madam Tam (as the surviving wife) absolutely; and

(b)  as to the other half, on the statutory trusts for Vivian and Lawrence as the issues of Mr Ma.

98.  Regarding costs, I note that the defendants have all along kept Mr Ma’s paintings to the exclusion of Vivian save nine paintings which have been given by Madam Tam to Vivian.  If Vivian did not commence this action, I do not think she would have been able to lay her hands on any more of the paintings that are in the defendants’ custody.  I also note that both sides have succeeded partially in their claim and counterclaim and their respective arguments.  This action has also been useful for sorting the validity of the two marriages for the benefit of all concerned.  Looking at the matter in the round, I would make a costs order nisi that there be no order as to costs.