XCHRX IN RE WONG WONG

HCAG 1797/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE JURISDICTION NO.1797 OF 1998

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J U D G M E N T

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1. This is a non-contentious application for Letters of Administration by Madam Au and Madam Lee in respect of their husband (the deceased) Mr Wong. Mr Wong and Madam Au married in Mainland China in 1944. This marriage was solemnized and registered under the Laws of the Republic of China. Thus it was monogamous.

2. Thereafter, they came to and resided in Hong Kong. They have acquired Hong Kong as their domicile of choice. In 1958, Mr Wong entered into a concubinage union with Madam Lee. Madam Lee was accepted by Madam Au as a concubine of the family.

3. The deceased died domiciled in Hong Kong in 1988.

4. The Probate Registry queried how the deceased could enter into the union of concubinage after his marriage in 1944 in Mainland China in accordance with the then Marriage Law of China which was monogamous.

5. Solicitors for the Applicants accepted that the marriage in China was monogamous. They, however, submitted that :

" As a result of the change of the domicile, it might bring about a change of capacity and his customary law capacity to take concubines would be revived after his acquiring a domicile in Hong Kong."

6. They relied on p.28 of Family Law in Hong Kong (Second Edition) by Leonard Pegg which contended that :

" An interesting question arises concerning the capacity of a Chinese man who married in China after 1930, and before 1971, and who afterwards acquired a domicile in Hong Kong in that period. His first marriage being a Chinese modern marriage under the Civil Code or a marriage under the Marriage Law of the People's Republic would be monogamous. However, it seems that a change of domicile might bring about a change of capacity and it is arguable that his customary law capacity to take concubines would be revived by acquiring a domicile in Hong Kong; that is, until it is again abrogated by the Marriage Reform Ordinance. This view is given support by Ali v Ali, where it was held that a change of domicile by the husband from India to England resulted in him losing his capacity to contract further marriages during the subsistence of the first one. The converse of this situation would be that a monogamous marriage could become potentially polygamous and concubines could be added. Simon P in Cheni v Cheni foresaw this possibility when he said albeit obiter : 'There are no marriages which are not potentially polygamous, in the sense that they may be rendered so by a change of domicile and religion on the part of the spouses', although it was more reasonable, he said, to presume that a polygamous union could be converted into mongamous than vice versa."

7. The aforesaid view was said to be supported by the case of Ali v. Ali [1966] 1 All ER 664. In my view, on a closer scrutiny of this case Ali v. Ali decided quite differently.

8. The facts of that case are as follows :

(1) In 1954, the husband went to England to study.

(2) He got a job in 1955.

(3) In 1957, he wished to get marriage and asked his father in accordance with customs of the society in which he had been brought up, i.e. India, to find him a wife.

(4) In 1958, he returned to India and was married to the wife. A few days later, he left again for England and resumed his employment there.

(5) In later 1958, his wife went to live with him in England.

(6) In 1959, the husband applied for British nationality and the child of the marriage was born in the same month.

(7) Later in June 1959, the wife left the matrimonial home taking the child to her. She returned to India and remained there.

(8) In April 1960, the husband obtained the British passport and since then had stayed in England. There was no communication between the parties after the wife's departure, until June 1961, when the husband sent a purely tactical letter inviting her to consider returning to him.

(9) In January 1964, he met an Italian woman and in March 1964, he committed adultery with her for the first time and in following months, she was pregnant. They began to cohabit as man and wife thereafter and in December 1964, the child was born.

(10) The petition for divorce by the husband was dated 17th May 1963. The husband alleged desertion. The wife cross-petitioned for divorce on the ground of cruelty. At the trial, the wife amended her pleadings by alleging adultery as a ground for divorce.

9. The trial Judge Cumming-Bruce, J. found that :

(1) At the date of the marriage, the husband's domicile was Indian;

(2) He obtained domicile of choice in England by the middle of 1961 and not before.

10. Thus the court held :

"(i) The court was precluded from exercising jurisdiction over the matrimonial offences of desertion (alleged by the husband) and of cruelty (alleged by the wife) because, if they were committed, they took place at a time when the marriage cerebrated in 1958 was continuing as a potentially polygamous union of a kind over which the matrimonial courts of England did not exercise jurisdiction.

(ii) By acquiring an English domicile of choice in 1961 during the continuance of his potentially polygamous marriage, the husband precluded himself from conferring subsequently the status of wife on another woman by a polygamous marriage, although he had not changed his religion; accordingly the husband's acquisition of an English domicile of choice in 1961 converted his potentially polygamous marriage into a monogamous union, and the wife was entitled to a decree nisi of divorce on the ground of the husband's subsequent adultery."

11. Cumming-Bruce J. said at p.668 that :

"..... all the evidence points to a present intention to continue residence in England in the house which he and his Italian mistress have jointly purchased. While he is thus domiciled and intends so to reside, he, being the husband of the wife, cannot by marriage confer the status of wife on any other woman. He has, by operation of the personal law which he has made his own, precluded himself from polygamous marriage to a second wife, although he has not changed his religion. If he purported to marry a second wife in England, or on a second temporary visit to India for that purpose, that marriage would not be recognised by English law as valid for any purpose whatsoever. This is because English law recognises the validity of his potentially polygamous marriage to the wife and denies him as a domiciled Englishman intending to reside in England the capacity to confer the status of wife on anyone else."

The operation of the personal law which he has made his own was the law of England.

12. The question before me is why the reverse cannot be true as raised by solicitors for the two Applicants. In other words, why the change of domicile of the deceased cannot confer upon him the rights to take a concubine according to the then existing law in Hong Kong. In short, why the monogamous marriage cannot be converted to a polygamous one.

13. The answer to that question is the vice versa situation is not a truly reverse situation. Even the law of Hong Kong in 1954 would not allow a person of Chinese origin who had entered into a monogamous marriage, whether in Hong Kong or anywhere else in the world, to take a concubine. The right to take a concubine would only exist when the first marriage was a polygamous one according to the Chinese customary law. Accordingly, the personal law in Hong Kong was not available to the deceased to enable him to enter into a concubinage union when his original marriage was a monogamous one.

14. Solicitors for the Applicants then relied on the case of Wong Kam Ying v. Man Chi Tai [1967] HKLR 201. This is a case of claim for damages under the Fatal Accidents Ordinance,Cap.22. It was made on behalf of the widow, 4 children of the marriage and 4 children of the concubine. The deceased was of Chinese race. He had married in a Registrar's Office in Hong Kong and subsequently taken the concubine to live in the marital home.

15. There the court decided that a child born of a Chinese customary marriage, whether to a wife or to a concubine, is the lawful child of his parents under Chinese customary law and accordingly under the law of Hong Kong. This applies even where, as in this case, a man contracts a monogamous marriage and thereafter during the lifetime of his wife enters into a Chinese customary marriage to another woman, the second "marriage" being bigamous and void according to the law of Hong Kong but not amounting to an offence under Chinese customary law. The 4 children of the concubine were therefore entitled to benefit under Cap.22.

16. In other words, in the case of Wong Kam Ying, it was decided that the marriage to the second woman is still bigamous and void according to the Hong Kong law. Huggins J. said at p.218 that :

"It cannot have been within the contemplation of the legislature to countenance such conduct and I hold that the marriage to Ho Po-chun [i.e. the concubine] was bigamous and void."

17. However, in considering the status of the children Huggins J. said :

"... Although the intercourse between the deceased & Ho Po-chun constituted adultery which would (but for the bar arising from connivance) have entitled Wong Kam-ying to a divorce, it was not intercourse which constituted an offence under the customary law. The Federal Court in Re Ding Do Ca, Dec'd. was in no doubt that Chinese customary law would recognise the children as being the children of the deceased and it is not without significance that one of the members of the court was himself a member of the Chinese race. What we are concerned with is the personal law of the children and not with that of the mother. Extraordinary as it may seem to Western eyes, therefore, the true position appears to be that the issue of a bigamous marriage may nonetheless be the lawful children of its parents and I hold that all 8 children in this case are according to Chinese customary law, the children of the deceased. The recognition of the children offends neither legal principle nor morality indeed many might say it best accords with modern notions of morality, since the children are innocent of any offence."

18. In short, the case of Wong Kam Ying only decided that the status of the children came within Cap. 22, whereas the concubinage union was bigamous and void. The monogamous marriage which took place at the Registry could not be converted into a polygamous one, just because of the personal law of Chinese race in Hong Kong under Chinese customary law.

19. In Pegg's Family Law in Hong Kong he further contended that :

" However, as Hong Kong, prior to 7 October 1971, provided in its laws for both monogamous and polygamous marriages to be celebrated in the territory, it is submitted that the marriage in China would be treated by the courts in Hong Kong as monogamous for all purposes and be incapable of being turned into a polygamous union by a change of domicile."

I accept that that is a correct statement of the legal position.

20. In conclusion, the authorities cannot support the contention that a monogamous marriage can be, by the change of domicile, converted into a polygamous one. In other words in this case I would not accept that a monogamous marriage in China would be converted into a polygamous one when a person of the Chinese race, changed his domicile of choice to Hong Kong prior to the statutory date 7 October 1971. Accordingly, the application of Madam Lee for the Letters of Administration must be refused.

(D. Yam)

Judge of the Court of First Instance
High Court