FAN KAM CHING v. YAU SHIU HING

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

MISCELLANEOUS PROCEEDINGS

NO. 423 of 1985

_____________

        _________________

--------------------

JUDGMENT

--------------------

1. This is an application by a wife for a declaration that a marriage ceremony undergone by her and her husband in Hong Kong in 1958 constitutes a valid and subsisting Chinese customary marriage in accordance with Section 9 of the Marriage Reform Ordinance.

2. By Section 7(1) of the Ordinance a customary marriage is defined as one celebrated in Hong Kong before the appointed day in accordance with Chinese law and custom. Subsection (2) provides that:

3. The only evidence adduced by the applicant consisted of a short affirmation filed on the 22nd July 1985. In paragraph 2 of that affirmation the Applicant states that the parties "decided to marry in accordance with the customary Chinese rites." In paragraph 5 she sets out what she presumably relies upon as constituting the ceremony of a Chinese customary marriage, namely:-

4. There was no evidence available as to the requisite elements of a Chinese customary marriage from an expert, nor did the applicant's solicitor refer me to any definition of what constitutes a customary Chinese marriage either from authorities or texts.

5. There was also no evidence as to whether the ceremonies undergone amounted to or were capable of amounting to a customary Chinese marriage.

6. It gives some cause for concern that no expert evidence was adduced to assist the Court.   As a result I have had to seek guidance from the authorities and texts as to what constitutes a customary Chinese marriage and whether there are any and if so what matters of which judicial notice can be taken.

7. I shall deal first with the source from which the Court is to deduce whether there has been a customary Chinese marriage. It would have been preferable, and in a case such as this proper, for expert evidence to have been adduced.

8. In Lui Yuk Ping v. Chow To (1962 HKLR 515) at page 530 Macfee J. said:-

"If Chinese law and custom is to be so accepted then surely its existence is a matter of which judicial notice is to be taken, and if the court should require any assistance on points of this, or any other law of this Colony, then surely the proper procedure is to consult written authorities on the subject, if necessary with the assistance of learned counsel and translators?

Yet the procedure which seems to be firmly established in the courts of this Colony is to hear oral evidence on matters of Chinese law, given by a witness on oath and subject to cross-examination and re-examination in the usual manner. This seems to me to be tantamount to treating Chinese law not as a part of the law of Hong Kong but as foreign law i.e. as fact, of which the courts may not take judicial notice.

Those of us in the judiciary who have served in other British territories, or former British territories overseas, will no doubt have had experience of the application of other "local" laws, and of the method of establishing the application of such law in judicial proceedings. At present I call to mind certain cases in Palestine in which Ottoman law applied for limited purposes, but I do not recollect any case in which the relevant provisions of Ottoman law were, proved by "expert" oral evidence of a Turkish lawyer. My own recollection, which may be at fault in this respect though I do not think it is, is that such law was proved by written authorities (or English or French translations of them) submitted to the court, and this I venture to think was the right and proper procedure, despite the possibility that there was, at the period I have in mind, still living in or near Palestine a number of lawyers, who had qualified in Ottoman law in the days when Palestine was under Turkish rule, and who could have given first hand "expert" oral evidence of Ottoman law as applied to that territory immediately before the Leaque of Nations Mandate in favour of Great Britain and subsequent Orders in Council."

9. That Judgment accepts that expert evidence is relevant and should be adduced, although not necessarily by oral evidence.

10. That expert evidence given viva voce with the opportunity for further inquiry by cross-examination etc. may not only be helpful but essential where the law or the facts are hazy is stated in Ng Ying Ho v. Tam Suen Yu (1963 HKLR 923) at page 925 when Huggins J. said:-

"Here it is necessary for me to observe that I have allowed expert evidence of Chinese law to be given to me. I have the advantage of having heard Mr. P.C. Woo, a solicitor of the Supreme Court, who I am satisfied is well-qualified to speak as to the Chinese law. My attention was drawn to a decision of Macfee J. (Lui Yuk Ping v. Chow To above) to the effect that is is unnecessary to adduce evidence of the Chinese law do Hong Kong. While I would not wish in any way to disagree with what the learned judge there said, it seems to me that there may well be occasions when a judge must have evidence of Chinese law, if for no other reason than that there are no books of Chinese law to which he may refer, and such authorities as there are are in conflict."

11. In a later case, Wong Kam Ying v. Man Chi Tai (1967 HKLR 201) the same judge said at page 211 after referring to the decision of Macfee J. above:-

"Perhaps it was in the light of these decisions that no evidence was tendered before me upon the very difficult questions involved in this case, although as I indicated in Ng Ying Ho v. Tam Suen Yu (above) I think there may be some justification for allowing evidence of customary law in accordance with a practice which has long existed in these courts. In the result I have had to rely for guidance upon such writings as are available."

12. The matter was finally clarified in the Full Court decision of In re Tse Lai Chiu deceased (1969 HKLR 159) where Hogan C.J. said at page 175:-

"It would seem, therefore, that, contrary to what the solicitor General has suggested, Chinese law was part of the law of the land. Consequently, courts could purport to find this law in authoritative textbooks as Sir Henry Gollan did in the Chak Chiu Hang case but there has long been a practice in Hong Kong of taking evidence on such law, a practice endorsed in a number of judicial decisions, and although this practice may be regarded as a departure from the procedure normally followed in English courts, I think it must now be regarded as an established modification based on local circumstances though it should not be taken to supplant the court's right to inform itself by other means."

13. In the event, the applicant has chosen not to adduce expert evidence in any form. It has not been suggested by the applicant that the form of customary Chinese marriages is so settled that the Court can take judicial notice of it.

14. The Court is therefore left to work out for itself, first what are the elements and constituents of a customary Chinese marriage, and secondly whether the elements in this case are sufficient to amount to such a marriage.

15. Section 7(2) provides that the ceremony must be "in accordance with the traditional Chinese customs accepted at the time of the marriage" but no evidence has been adduced by the applicant of what that would have been in 1958 when the marriage was celebrated.

16. In an article entitled "Chinese Marriage and Divorce" (1975 HKLJ 17) Leonard Pegg says: -

"It may not be concluded, however, that a Chinese customary marriage is an unidentifiable and meaningless concept. Whatever divergences there may be in practice, all genuine customary marriages have at least one identifiable function in common: they must be celebrated according to the accepted rites and ceremonies of the parties' families, in conformity with traditions which go back beyond their living memory."

The article then continues at page 19:-

"The section obviously directs attention to contemporary marriage practice. It is also designed to reduce the scope for dispute over the validity of the marriage. It is presumed therefore that the words "in accordance with traditional Chinese customs accepted at the time of the marriage" mean accepted by the parties and by their respective families, and not necessarily accepted by the inhabitants of the area in question. The latter interpretation may cause difficulty in gathering sufficient indisputable evidence of the validity of the ceremony and the purpose of the section would be defeated. On the other hand, the court would still have to be certain that the ceremony would be capable of creating a valid marriage under Chinese customary law, and it may still therefore be necessary to resort to expert witnesses."

17. The same author in his book "Family Law in Hong Kong " attempts to define the essential elements of such a marriage at page 4:-

18. The applicant's affirmation in relation to the ceremony makes no reference to any betrothal, makes no reference to any knowledge of or participation in the ceremony by the husband's parents or their representatives, gives insufficent information about the worshipping of ancestors to determine if this was properly complied with, and gives insufficient particulars about the banquet to determine if it was indeed a wedding banquet. All these are matters that should have been dealt with in the applicant's affirmation but have been ignored or skimmed over. They are also matters which could and should have been examined by an expert to see if the elements of a customary Chinese marriage were present. There is no explanation available as to deficiencies in the applicant's case. An indication of the extent of particulars necessary to prove a, customary Chinese marriage is shown in Chong Chui Yuk Ching v. Chong Pui Cheong (1983 DCLR 1).

19. There is also one fundamental area of evidence missing from the applicant's case. She does not provide any evidence of where the marriage took place, and certainly there is no evidence that it was celebrated in Hong Kong. That single factor in itself is fatal to the application since by Sections 2 and 7(1) of the marriage must have been celebrated in Hong Kong.

20. In the absence of definitive expert evidence of what constitutes a customary Chinese marriage I have had to rely on the text of articles indicated above and on the cases set out above for assistance.

21. On the basis of that information I am not satisfied that the matters set out in the wife's affirmation are sufficient to prove a valid customary Chinese marriage. In particular that:-

22. It may well be that what the parties underwent might constitute a modern marriage. However the application is brought only on the basis of a customary marriage and accordingly no ther form of status can be considered for the purposes of this application.

23. In the premises I decline to make a declaration in accordance with Section 9 of the Ordinance. The application therefore fails.

                Finally I feel that I must make some comment on the way in which this application has been presented. First, the application is not in the correct form and does not comply with the provisions of Rule 4 of the District Court Civil Procedure (Forms) Rules, Form 21 in the Second Schedule thereof being the obligatory form for an application of this nature. Secondly, the parties are entitled the "Petitioner" and "Respondent" when they should obviously be the "Applicant" and the "Respondent". Thirdly, in paragraph 8 of the applicant's affirmation reference is made to Section 9 of the Marriage Ordinance when the appropriate ordinance is of course the Marriage Reform Ordinance. I appreciate that in the District Court informality of form and proceedings is acceptable to an extent and that in the family jurisdiction a liberal berth is given to ensure that justice is done. However the foregoing take the matter too far and it is to be hoped that care and caution will be exercised in future.