LUI MING LOK v. NG IM FONG LORETTA

HCAP 28/2019

[2020] HKCFI 1243

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 28 OF 2019

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D E C I S I O N

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A. Introduction

1.  This case raises an interesting question of law in relation to “void” and “voidable” marriages, under section 20 of the Matrimonial Causes Ordinance Cap 179 (“MCO”).

2.  By notice of appeal dated 17 December 2019, the defendant appeals from the order of Master KH Hui dated 11 December 2019, dismissing her summons dated 16 July 2019 seeking orders that various paragraphs and prayers of the statement of claim (“SOC”) be struck out.

3.  The appeal arises in this probate action, in which the plaintiff asks the Court to propound a Chinese Will dated 25 June 1994 (“Chinese Will”) of the late Lui Kwan Cheung (“Deceased”), of which the plaintiff is a beneficiary.  The plaintiff also seeks revocation of the probate granted to the defendant in respect of another Will made on 21 August 2010 (“2010 Will”), under which the defendant is the executrix and sole beneficiary.

4.  The action also raises the issue as to the validity of the marriage between the Deceased and the defendant on 1 August 2010 (“2010 Marriage”).  The plaintiff argues that the 2010 Marriage was void.

5.  The Deceased passed away on 31 July 2014.  It does not seem to be in dispute that the defendant in general cared for the Deceased and looked after his affairs before he passed away.

6.  At the hearing, the plaintiff was represented by Counsel, Mr Anson Wong SC leading Mr Billy NP Ma, and the defendant was represented by Counsel, Mr Robert Pang SC leading Mr Raymond Fong.

B.  Core Factual Matters

7.  For the purposes of the striking out application, the core factual matters pleaded in the SOC include:

(1) the plaintiff was the nephew of the Deceased;

(2) by the Chinese Will, the Deceased made specific bequests to various individuals, including the plaintiff;

(3) the defendant was at all material times a girlfriend or female friend of the Deceased;

(4) although the Deceased used to have regular family gatherings with family members, including the plaintiff, the family members started to lose contact with the Deceased from about late 2010, allegedly as a result of the defendant preventing that contact and communication;

(5) only in September 2018 was the plaintiff informed that (a) the Deceased had passed away on 31 July 2014, (b) that he had purportedly married the defendant on 1 August 2010, (c) that he had executed the 2010 Will on 21 August 2010, and (d) that the defendant had obtained a grant of probate in respect of the 2010 Will;

(6) but it is the defendant’s own pleaded case in her claim in another action, HCA 635/2019, that:

(a) on 2 June 2010 the Deceased was diagnosed by Dr Freddie Lau as “suffering from an advanced stage of Alzheimer’s disease and not capable of handling his daily business completely”, and

(b) the plaintiff ought to have known by mid-2009 that the Deceased suffered from dementia and his condition “had deteriorated to such an extent that [the defendant] needed to take care of and manage his daily affairs and financial matters”;

(7) on that basis, the plaintiff avers that:

(a) the 2010 Marriage was “invalid, and/or null and void” by reason of want of mental capacity; and

(b) the 2010 Will is invalid because the Deceased lacked mental capacity and did not understand its contents;

(8)  specifically in relation to the 2010 Will, the plaintiff also avers that the 2010 Will was obtained by undue influence of the defendant, essentially because the defendant was fully aware of the Deceased’s lack or insufficient mental capacity, and made use of his dependence on her to force or coerce him to make the 2010 Will against or without any proper regard to his true wishes.

8.  Hence, put into legal form, it can be seen that the plaintiff essentially advances the following four pleas:

 (1) The 2010 Marriage is invalid and/or null and void on the ground that the Deceased was mentally incapacitated at the material time.  Hence (a) the 2010 Marriage is void and (b) the 1994 Will is valid.

 (2) The Deceased lacked the mental capacity to execute the 2010 Will at the material time.  Hence, the 2010 Will is null and void and of no effect.

 (3) Further to the plea of lack of testamentary capacity, the Deceased was under the undue influence of the defendant in executing the 2010 Will.  Hence, the 2010 Will is for that reason null and void and of no effect.

 (4) The defendant acted wrongfully in reliance of the 2010 Marriage and the 2010 Will when applying for and obtaining the grant of probate.  Hence, that grant should be revoked.

C.  The Battleground

9.  This being an appeal from the Master, it is a hearing de novo.  However, Mr Pang identified that, of the six grounds relied upon by the defendant before the Master, he would only rely on two of them (although he has slightly ‘repackaged’ them).  Those two points are: (1) the plaintiff has no locus standi to challenge the 2010 Marriage; and (2) the plaintiff has not pleaded facts or particulars in support of the case that the Deceased was mentally incapacitated and/or of unsound mind at the material time.

10.  As ‘repackaged’, Mr Pang broke down the argument on those two points as follows:

 (1) No locus standi to challenge 2010 Marriage, because:

 (a) the Court has no jurisdiction to make a declaration of nullity, alternatively the Court’s jurisdiction to make a declaration is not invoked;

 (b) the Court has no jurisdiction to annul the 2010 Marriage on the ground of the Deceased’s mental incapacity, because the common law principle has not been preserved as a matter of statutory interpretation and, in any event, unsoundness of mind has never been a ground upon which a marriage may be rendered void ab initio under Hong Kong law;

 (2) the plea of testamentary undue influence discloses no reasonable cause of action, because:

 (a) it is both (i) defectively and (ii) inadequately pleaded; and

 (b) it is devoid of any particulars;

 (3) the pleas as to lack of testamentary capacity and testamentary undue influence impermissibly rest upon contradictory factual premises;

 (4) the plea of revocation of the grant of probate necessarily also falls to be struck out.

11.  Mr Wong asked me to note that many of the grounds or arguments on which the defendant now seeks to rely in support of her striking out application were not advanced before the Master, and were not even stated in her summons or affirmations.  As the defendant essentially asks the Court to strike out the SOC as one disclosing no reasonable cause of action, the defendant ought to have set out in writing her grounds at these five clear working days before the hearing.

12.  I acknowledge the point.  However, it seems to me that this is not a reason not to deal with the arguments in the context of this application, where both sides have been able to address them at some length.  I do take note that the lateness that some of the points were taken may have impacted Mr Wong’s researches, but I can take that into account in my approach.

D.  Principles on Striking Out

13.  The principles applicable on a striking out application are well-settled.  Striking out is a drastic remedy, and the court will not strike out a claim unless the court is satisfied that the legal basis of the claim is unarguable or almost incontestably bad.  Where the legal viability of the cause of action is sensitive to the facts, an order to strike out should not be made.

14.  That is because it is only in plain and obvious cases that the court should exercise its summary powers to strike out the pleading under the relevant rule RHC Order 18 rule 19.  There should be no trial upon affidavit, and disputed facts are to be taken in favour of the party sought to be struck out.  A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleading are considered.

15.  Ordinarily, the court should not decide difficult points of law in striking out proceedings.  Indeed, the court is loath to strike out a claim which involves an area of law which is in the process of development, because summary dismissal would deprive the court of hearing full argument on the subject.

16.  But there may be cases where it is possible to have had full argument, for example on a point of law, either (a) making summary disposal appropriate, or (b) making a ruling on the point which need not be revisited even if that point does not dispose of the whole action on a summary basis.  The parties were agreed that, in an appropriate case, it would be open to the court to decide a point of law invoking Order 14A.

E. Unsoundness of Mind and Marriage

E.1    The Material Statutory Provisions

17.  Much of the argument at the hearing turned on the proper interpretation of section 20 of the MCO.

18.  It is helpful first to set out the material provisions, which are to be found in Part IV of the MCO.  That Part provides as follows (emphasis added):

19. Petition for nullity

A husband or wife may present a petition to the court praying that his or her marriage may be declared null and void on any of the grounds mentioned in section 20.

20. Grounds for decree of nullity*

(1) A marriage which takes place after 30 June 1972 shall be void on any of the following grounds only—

(a) that it is not a valid marriage under section 27 of the Marriage Ordinance (Cap. 181), that is to say—

(i) the parties to the marriage are within the prohibited degrees of kindred or affinity; or

(ii) either party is under the age of 16; or

(iii) the parties have intermarried in disregard of certain requirements as to the formation of marriage;

(b) that the marriage is otherwise invalid by the law of Hong Kong;

(c) that at the time of the marriage either party was already lawfully married;

(d) that the parties are not respectively male and female.

(2) A marriage which takes place after 30 June 1972 shall, subject to subsection (3), be voidable on any of the following grounds only—

(a) that the marriage has not been consummated owing to the incapacity of either party to consummate it;

(b) that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it;

(c) that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise;

(d) that at the time of the marriage either party to the marriage, though capable of giving a valid consent, was suffering, whether continuously or intermittently, from mental disorder within the meaning of the Mental Health Ordinance (Cap. 136) of such a kind or to such extent as to be unfitted for marriage;

(e) that at the time of the marriage the respondent was suffering from venereal disease in a communicable form;

(f) that at the time of the marriage the respondent was pregnant by some person other than the petitioner.

(3) The court shall not, in proceedings instituted after 30 June 1972, grant a decree of nullity on the ground that a marriage is voidable (whether the marriage took place before or after 1 July 1972) if the respondent satisfies the court—

(a) that the petitioner, with knowledge that it was open to him to have the marriage avoided, so conducted himself in relation to the respondent as to lead the respondent reasonably to believe that he would not seek to do so; and

(b) that it would be unjust to the respondent to grant the decree.

(4) Without prejudice to subsection (3), the court shall not grant a decree of nullity on the grounds mentioned in subsection (2)(c), (d), (e) or (f) unless the court is satisfied that the proceedings were instituted within 3 years from the date of the marriage.

(5) Without prejudice to subsections (3) and (4), the court shall not grant a decree of nullity on the grounds mentioned in subsection (2)(e) or (f) unless the court is satisfied that the petitioner was at the time of the marriage ignorant of the facts alleged.

(6) Subsection (3) replaces, in relation to any decree to which it applies, any rule of law whereby a decree may be refused by reason of approbation, ratification or lack of sincerity on the part of the petitioner or on similar grounds.

20A.  Foreign marriages

(1) Where apart from this Ordinance, any matter affecting the validity of a marriage would fall to be determined (in accordance with the rules of private international law) by reference to the law of a place outside Hong Kong, nothing in section 20 shall –

(a) preclude the determination of that matter as aforesaid; or

(b) require the application to the marriage of the grounds or bars mentioned therein except so far as applicable in accordance with those rules.

(2) In the case of a marriage which has taken place outside Hong Kong and purports to be a marriage under common law, section 20(1) is without prejudice to any ground on which the marriages may be void by virtue of the rules governing the celebration of marriages outside Hong Kong under common law.

20B.  Decree of nullity in case of voidable marriage

A decree of nullity granted after 30 June 1972 on the ground that a marriage is voidable shall operate to annul the marriage only as respects any time after the decree has been made absolute, and the marriage shall, notwithstanding the decree, be treated as if it had existed up to that time.

21. Granting of decree of nullity

If the court is satisfied that the case for the petition has been proved, the court shall grant a decree of nullity.

22. Application of ss. 15(5), 16 and 17 to nullity proceedings

Sections 15(5), 16 and 17 shall apply in relation to proceedings for nullity of marriage as if for any reference in those provisions to divorce there were substituted a reference to nullity of marriage.

23. Collusion not to be bar to relief in nullity proceedings

Collusion shall not be a bar to the granting of a decree of nullity, whether the marriage took place, or the proceedings were instituted, before or after 1 July 1972.

(*The original section 20, repealed by section 12 of 33 of 1972, continues to have effect in relation to marriages which took place before 1 July 1972)

19.  It can be seen that a distinction is drawn between those marriages which are “void” and those which are merely “voidable”.  Marriages which are void are treated as never having been validly in existence.  Marriages which are voidable are only annulled with effect from the date of the decree absolute of nullity, and are treated as if they had existed up to that point in time.

20.  By section 14 of the Wills Ordinance Cap 30, and subject to certain exceptions (which are here factually irrelevant), a will shall be revoked by the testator’s marriage.  In this case, if the 2010 Marriage was a void marriage, it would not have had the effect of revoking the 1994 Will. But, if the 2010 Marriage was a voidable marriage, it would be treated as having existed until it was ended by the death of the Deceased, and it would have had the effect of revoking the 1994 Will (and there would be no point in any declaration that the marriage was voidable, when it had in any event ended on the death of the Deceased).  Hence, the plaintiff argues that the 2010 Marriage was void, and not merely voidable.

21.  As it is referenced in section 20 of the MCO, it may also be helpful to set out here the material provisions of the Marriage Ordinance Cap 181 (“MO”).  Sections 27 and 28 provide for invalid and valid marriages as follows:

27. Invalid marriages

(1) A marriage shall be null and void on the ground of kindred or affinity as provided in Schedule 5.

(2) A marriage shall be null and void—

(a) if—

(i) it is not celebrated—

(A) by the Registrar in the office of the Registrar;

(B) by a competent minister in a licensed place of worship; or

(C) by a civil celebrant in accordance with section 21(3A),

and it is not—

(D) authorized by a special licence;

(E) celebrated under paragraph (b) of the proviso to section 21(3); or

(F) celebrated under section 39;

(ii) it is celebrated under a false name; or

(iii) no certificate of the Registrar has been issued or no special licence has been granted in respect of the marriage,

and both parties knowingly and wilfully acquiesce in its celebration in such circumstances; or

(b) if at the time of its celebration any party is under 16 years of age.

(3) But no marriage shall, after celebration, be deemed invalid by reason that any provision of this Ordinance, other than the foregoing, has not been complied with.

28. Validity of marriages

All marriages celebrated under this Ordinance shall be good and valid in law to all intents and purposes.

22.  It can be seen that the factors rendering a marriage invalid under section 27 of the MO are broadly those specifically referenced in section 20(1)(a)(i)-(iii) of the MCO.  But, section 28 emphasises otherwise the validity of marriages.

23.  It may also be helpful at this stage to identify that the definition of “mental disorder” under section 2 of the Mental Health Ordinance Cap 136 is given as meaning: (a) mental illness; (b) a state of arrested or incomplete development of mind which amounts to a significant impairment of intelligence and social functioning which is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned; (c) psychopathic disorder; or (d) any other disorder or disability of mind which does not amount to mental handicap. Further, “mental incapacity” means: (a) mental disorder; or (b) mental handicap.

E.2    The Locus Standi Point

24.  Mr Pang, for the defendant, first argues that the court has no jurisdiction to make a declaration that the 2010 Marriage is void by reason of the Deceased’s mental incapacity.  He says the jurisdiction to make a declaration is provided for under the MCO, and contemplates only the making of a decree of nullity.  That, he says, is clear from the structure and language of Part IV of the MCO, including the heading to section 20 reading “Grounds for decree of nullity”.

25.  So, says Mr Pang, the grounds provided for in section 20 are only applicable, and can only be relied upon, if the relief sought is one of decree of nullity as the only permissible remedy under Part IV.  This is because, when exercising its statutory jurisdiction, the court has no separate jurisdiction to make a declaration exercisable under RHC Order 15 rule 16.  He relies on Kassim v Kassim [1962] P 224 at 233, where Ormrod J identified that the jurisdiction of the court to deal with marriages void ab initio exists independently of the RHC and unlike that jurisdiction is not a matter of discretion.  Either party is entitled ex debito justiciae to a declaration on proof of the necessary facts, and the decree is itself a declaration.  Hence, the only order to make is a decree of nullity.

26.  Indeed, it might be noted that where a marriage is void in law, the purpose of a nullity suit is to place the fact on record by a judgment equivalent to a judgment in rem.  Strictly, there is no need for such a decree.  That is why, in cases of void marriages, neither delay nor conduct constitutes a bar to a decree (and the conduct and time bar provisions relate only to marriages challenged as being voidable).

27.  Mr Pang says the approach in Kassim fits with section 19 of the MCO which permits only a husband or wife to present a petition praying that his or her marriage may be declared null and void.  But, says Mr Pang, that section is only to state the identities of the persons who may present a petition so that the court might exercise its jurisdiction under section 20 to make a decree of nullity which embodies a declaration.  It does not contain any words which confer any additional jurisdiction to the court beyond that which was contemplated in Kassim.

28.  However, I think the challenge to locus standi is misconceived.  First, it can be noted that in the Kassim case, in the same passage at 233, Ormrod J expressly envisaged that third parties having an interest in the subject-matter might have an entitlement to a declaration on proof of the necessary facts.  Indeed, in Ross Smith v Ross Smith [1963] AC 280 at 306, Lord Reid stated that in relation to a void marriage, not just a spouse but “anyone else with a proper interest” can allege and prove that fact in any court.  Similarly, in Fung Ying Cheung v Yip Woon Yung [2019] HKCFI 1818, in a probate action where the plaintiff claimed the defendant’s marriage with the deceased was null and void by reason that the deceased had already lawfully married someone else, DHCJ Patrick Fung SC accepted that fact as proved and granted a declaration that the marriage between the deceased and the defendant was void.

29.  Mr Wong has also pointed to numerous other cases where courts have accepted applications by third parties that it would be appropriate to declare a marriage void where one of the parties to the marriage lacked the requisite mental capacity.  One such case was Browning v Reane (1812) 2 Phill Ecc 69, later cited with approval in In the Estate of Park, deceased [1954] P 112, at 122.

30.  In the Browning case, a nephew of the deceased resisted the deceased’s husband’s demand for administration of the deceased’s estate on the ground that the marriage was invalid due to lack of mental capacity.  In his judgment, Sir John Nicholl identified the issue as whether at the time of the alleged marriage the deceased was incapable of legally contracting it, where the person alleging that incapacity must prove it, a marriage having in fact been solemnised.  He stated, at 69-70:

Upon the law of this case there is little question; and, without going back to ancient authorities, it may be sufficient to state what Mr Justice Blackstone says on this subject: “A fourth incapacity is, one of reason; without a competent share of which, as no others, so neither can the matrimonial contract be valid … since consent is absolutely requisite to matrimony; and neither idiots nor lunatics are capable of consenting to anything; and, therefore, the civil law judged much more sensibly, when it made such deprivations of reason a previous impediment, though not a cause of divorce if they happened after marriage. And modern resolutions have adhered to the reason of the civil law, by determining that the marriage of a lunatic, not being in a lucid interval, was absolutely void.”

Here then the law, and the good sense of the law, are clearly laid down; want of reason must, of course, invalidate a contract, and the most important contract of life, the very essence of which is consent. … If the incapacity be such, arising from either or both causes [of idiocy or lunacy], that the party is incapable of understanding the nature of the contract itself, and incapable, from mental imbecility, to take care of his or her own person and property, such an individual cannot dispose of her person and property by the matrimonial contract, any more than by any other contract.

31.  In passing, it may be noted that, in that passage, there is the important distinction drawn between (a) incapability of understanding the nature of the marriage contract itself (linked to the question of consent), and (b) incapability of taking care of one’s own person and property.

32.  Reference can also be made to the Working Paper No. 20 of The Law Commission in England (as to which, see further below) which specifically noted in §8, by reference to the provisions then in force, that any person having a sufficient interest in obtaining a declaration of nullity may petition for a decree at any time, whether during the lifetime of the spouses or after their death.

33.  Indeed, in The Law Commission’s final Report issued October 1970 (also as to which, see further below) it was specifically noted in §87 that in the case of a void marriage, in addition to the spouses themselves, anyone with a sufficient interest in obtaining a declaration of nullity may petition, and a slight pecuniary interest is sufficient, and anyone whose title to property would be affected by the natural result of the marriage has a right to contest its validity.  It specifically also noted that after the spouse’s death a relative may have the relevant interest if his right of succession is affected by the validity of the marriage. The distinction is drawn between the parties to a nullity suit in the case of a void marriage, and the parties to a nullity suit in the case of a voidable marriage.  In the latter, the grounds of nullity being matters of personal complaint, it was thought only a spouse should be able to petition to have the marriage annulled and only during the lifetime of the other (subject to the right to allow third parties to intervene or to order that children be separately represented).

34.  In any event, I think Mr Pang mistakes the link between sections 19 and 20 of the MCO.  Those provisions focus on applications being made by parties to a marriage, whose relevant remedy on satisfying the court of the necessary facts would be by way of a decree of nullity.  It is only the parties to the marriage themselves that might wish for a remedy in the form of a decree.  It is also correct that the decree encompasses, or is the form of, a declaration.  But that does not mean that a third party who might be affected by the question whether a marriage was valid or void or voidable cannot apply for appropriate relief on satisfaction of the relevant facts.  It would be nonsensical if the court were to be presented with facts which demonstrate a marriage to have been void or voidable, but have no jurisdiction to make any order flowing from such a finding simply because the person claiming relief is not one of the parties to the marriage.

35.  Also, whilst the time bar provision in section 20(4) might be applicable to applications for decrees of nullity made by either party to the marriage itself, that provision seems to me to be entirely inapposite to claims by third parties.  That must be especially so where the time bar relates only to a petition for a nullity under section 20(2) on the grounds rendering a marriage voidable (as opposed to void), which applications are understandably more related to the personal circumstances of the parties to the marriage (as opposed to more general concerns of the law and society as a whole).  As I have already mentioned, neither conduct nor delay are a bar to a decree that a marriage is void.  I, therefore, also reject Mr Pang’s submission that any jurisdiction the court might have to make a declaration that the 2010 Marriage was void would now be time-barred on the facts of this case.

E.3    Section 20(1)(b) as against Section 20(2)(c) and (d)

36.  The real nub of the argument in this appeal is whether section 20(2)(c) and (d) provide a ‘comprehensive code’ for all forms and degrees of mental issues and unsoundness of mind, such that when looking at section 20(1)(b) there is no room for considering a marriage void if one of the parties is not capable of understanding the nature of marriage itself.

37.  On behalf of the plaintiff, Mr Wong argues that notwithstanding that section 20(2)(c) and (d) have provided for various circumstances under which a marriage may be rendered voidable by reason of a party’s mental incapacity, section 20(1)(b) has the effect of preserving the common law so that a residual class of mental capacity would, if proved, still render a marriage null and void.  That residual class is where one of the parties is incapable of understanding the nature of marriage itself.  So, says Mr Wong, unless it can be shown to be plain and obvious that section 20(1)(b) of the MCO does not cover the present case, the court must refuse this ground for striking out.

38.  On behalf of the defendant, Mr Pang argues that no residual common law rule or principle has been preserved to thwart the purpose of section 20(2)(c) and (d) covering all forms and degrees of unsoundness of mind which may nullify a marriage.  Mr Pang says that is plain and obvious, and striking out therefore follows.

39.  As already mentioned above, it may first be noted that there is a distinction drawn between (a) incapability of understanding the nature of the marriage contract itself, and (b) incapability of taking care of one’s own person and property.  This is important to the arguments.  For present purposes, it can be accepted that there may be different standards – or a ‘hierarchy’ of levels – of capacity applied to different situations.  For example, in the Park case, the contract of marriage was described as the essence of simplicity, not requiring a high degree of intelligence to comprehend.  But there is a distinction between (a) the decisions a person makes regarding personal matters such as where or with whom to live and (b) decisions regarding financial matters.  Financial matters require a higher level of understanding.  Put another way, the capacity to marry is a lower threshold than the capacity to manage one’s own affairs, make a will, or instruct counsel.

40.  I think it can also be accepted that there is a usual presumption of validity of the marriage, which presumption can only be displaced by very cogent evidence.  The relevant evidence must focus on the spouses’ ability to make personal decisions about the way that person wishes to live their life, and must clearly identify features of the person’s decision making powers that would establish the person did not understand the simple promises made and given at the time.  But, the current application turns not on the particular evidence, but on the legal propositions and argument I have identified.

41.  The argument between the parties comes about in the following way, and necessitates a historical review of the development of the statutory provisions relating to the grounds for granting decrees of nullity.

42.  Mr Pang submits that certain principles relating to interpretation of statutory provisions are instructive.  One is that, in assessing whether a common law rule or principle may be preserved by a statutory provision which addresses the same subject matter, the test is whether, looked at as a whole, that rule or principle would be incompatible with the statutory scheme and therefore could not have been intended to coexist with it: see Child Poverty Action Group v Secretary of State for Work and Pensions [2011] 2 AC 15 at § 34.  Another is that in construing a statutory provision, where the literal meaning of a general enactment covers a situation for which specific provision is made by some other enactment within it, it is presumed that the situation was intended to be dealt with by the specific provision: see Pretty v Solly (1859) 26 Beav 606 at 610.

43.  Mr Wong stresses the proper approach to statutory interpretation, as discussed in HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568 at §§11-14.  The court’s task is to ascertain the intention of the legislature as expressed in the language of the statute.  This is an objective exercise.  The court is not engaged in an exercise of ascertaining the legislative intent on its own, but seeking the meaning of the words which the legislature used.  The modern approach is to adopt a purposive interpretation.  So, the statutory language is construed, having regard to its context and purpose.  Context and purpose are considered when interpreting the words used, and not only when an ambiguity may be thought to arise.  Further, the context of a statutory provision should be taken in its widest sense and certainly includes the other provisions of the statute and the existing state of the law.  Where the legislation in question implements the recommendations of the report, such as a Law Reform Commission report, the report may be referred to in order to identify the purpose of the legislation.  That purpose may similarly be ascertained from the Explanatory Memorandum to the Bill. Also, a statement made by the responsible official of the Government in relation to the Bill in the Legislative Council may also be used to this end.

44.  Mr Wong also relies on the following principles as being relevant: see Bennion on Statutory Interpretation 7^th Ed §§25.1, 25.6 and 25.9.  A statute must be read and applied in the context of the general body of law into which it is assimilated.  Although the legislature may abolish, modify or displace any existing common law rule, there remains a general presumption that the legislature does not intend to make changes to the common law.  A piece of legislation may impliedly displace the common law.  In considering whether a statute has this effect, the court will consider the extent to which the legislative purpose would be undermined by the common law continuing to operate alongside it.  Another factor in determining whether the common law is displaced is to consider whether the statute or provision is intended to form a complete code or scheme for dealing with a matter; where legislation sets out a comprehensive legislative scheme, the general law may be taken to be excluded.

45.  With those principles in mind, it can first be considered what the English position is in relation to whether unsoundness of mind may render a marriage void or voidable.  The position has developed since the Matrimonial Causes Act 1937 (“MCA 1937”).  Prior to that act, the Marriage of Lunatics Act 1811 (repealed by the Mental Health Act 1959) provided that marriage with a lunatic so found by inquisition was null and void to all intents and purposes whatsoever, even if celebrated during a lucid interval. In the case of a lunatic not so found by inquisition, the marriage would be invalidated where consent was wanting.

46.  By sections 2 and 6 of the Matrimonial Causes Act 1857 (“MCA 1857”), the jurisdiction previously exercisable by any Ecclesiastical Court in England in respect of matrimonial matters and causes, including (amongst other things) divorces and suits of nullity, was transferred from the Ecclesiastical Courts to the newly constituted Court for Divorce and Matrimonial Causes.  The transfer of divorce and matrimonial jurisdiction to the common law courts by the MCA 1857 did not provide for any statutory grounds upon which a marriage may be rendered void or voidable.

47.  However, under section 7 of the MCA 1937, additional grounds of nullity were provided for, and included where “either party to the marriage was at the time of the marriage of unsound mind or a mental defective within the meaning of the Mental Deficiency Acts 1913 to 1927 or subject to recurrent fits of insanity or epilepsy”.  That the provisions in section 7 were “additional” grounds on which a marriage might be held voidable was made clear by the introductory wording in section 7(1) which stated that the new grounds were “in addition to any other grounds on which a marriage is by law void or voidable”.  Further, section 7(3) provided that nothing in the section should be construed as validating any marriage which is by law void, but with respect to which a decree of nullity has not been granted.

48.  The provision in the MCA 1937 subsequently became section 8(1)(b) of the Matrimonial Causes Act 1950 (“MCA 1950”). The same ‘default’ wording was retained in the introduction to section 8(1), and section 8(2) replicated the old section 7(3).

49.  Section 8(1)(b) was subject to some consideration by the Royal Commission on Marriage and Divorce Report 1951-1955, dated March 1956 (“Morton Commission”).  At §275, there was the recommendation that the wording of the section should be re-drafted so as to make it clear that it refers only to a person who has gone through a ceremony of marriage with a full understanding of the nature of that ceremony and of what it imports, but who nevertheless was of unsound mind at the time.

50.  Subsequently, section 9(1)(b) of the Matrimonial Causes Act 1965 (“MCA 1965”), including its introductory words (which seemed still to preserve any prior common law rule by which a marriage might additionally be held void or voidable), provided that:

(1) In addition to any other grounds on which a marriage is by law void or voidable, a marriage shall, subject to the next following subsection, be voidable on the ground-

(b) that at the time of the marriage either party to the marriage-

(i) was of unsound mind, or

(ii) was suffering mental disorder within the meaning of the Mental Health Act 1959 of such a kind or to such an extent as to be unfitted for marriage and the procreation of children, or

(iii) was subject to recurrent attacks of insanity or epilepsy

51.  That section, and the general question of nullity of marriage, was subsequently considered by The Law Commission.  In its Published Working Paper No. 20, dated 14 June 1968, The Law Commission summarised the then existing grounds of nullity as follows (emphasis added):

6. The grounds on which a marriage is void are:

(1) invalid ceremony of marriage;

(2) non-age;

(3) prohibited degrees (i.e. consanguinity and affinity);

(4) prior existing marriage;

(5) insanity at the time of marriage;

(6) lack of consent.

Grounds (1) to (3) are governed by the Marriage Act 1949. Grounds (4) to (6) our grounds on which a marriage was void in ecclesiastical law, which became part of our matrimonial law by virtue of the Matrimonial Causes Act 1857, s.22, now replaced by the Supreme Court of Judicature (Consolidation) Act 1925, s.32.

7. The grounds on which a marriage is voidable are:

(1) impotence;

(2) wilful refusal to consummate the marriage;

(3) unsoundness of mind, mental disorder or epilepsy at the time of the marriage;

(4) venereal disease in a communicable form at the time of the marriage;

(5) pregnancy by a man other than the husband at the time of the marriage;

Ground (1) is derived from ecclesiastical law; grounds (2) to (5) are statutory and governed by the [MCA 1965], s.9.

52.  It can be noted that, of the grounds which may render a marriage void, a distinction is apparently drawn between insanity and lack of consent, but it can also be seen from the discussion that there is an overlap.  Under the heading of “Insanity”, the working paper continued (footnotes and references excluded, emphasis added):

20. Consent is an essential ingredient of a valid marriage and a marriage is void if a spouse is incapable of giving his consent because of his unsoundness of mind. A person is regarded as being capable of giving consent if he is capable of understanding the nature of marriage, which involves a mental capacity to appreciate the responsibilities normally attaching to marriage. A person of unsound mind may contract a valid marriage during a lucid interval when he understands the nature of marriage, but that marriage may be voidable in certain circumstances under the [MCA 1965], s.9.

21. We think that a test of what constitutes unsoundness of mind rendering a marriage void is satisfactory and should not be modified; any higher test might result in elderly and mentally retarded persons being incapable of contracting a valid marriage, while any lesser test might result in persons of unsound mind being capable of contracting a valid marriage.

53.  Under the heading “Lack of Consent”, the introductory paragraph states:

22. A valid marriage requires free consent (a) to marry and (b) to marry a particular person. Heads (a) and (b) present no difficulties and if a person goes through a ceremony of marriage not realising that it is such a ceremony, or if he goes through a marriage ceremony with A believing him to be B the marriage is void. As to free consent, threats or duress can engender such fear as to vitiate consent, in which case the marriage is void.

54.  The working paper then considered the various factors which do or do not vitiate consent, examining them separately broadly by reference to fear (duress), fraud, mistake and intoxication.

55.  The working paper then went on to deal with the grounds provided for under section 9(1)(b) of the MCA 1965 as follows (emphasis added):

28. The grounds under s.9(1)(b) are that at the time of the marriage either party to the marriage

(1) was of unsound mind, or

(2) was suffering from mental disorder within the meaning of the Mental Health Act 1959 of such a kind or to such an extent as to be unfitted for marriage and the procreation of children, or

(3) was subject to recurrent attacks of insanity or epilepsy.

29. Ground (1) appears at first sight to cover the same situation as does insanity as a ground for declaring a marriage void (para 20). This, however, is not so. For a marriage to be void on the grounds of insanity the spouse must be incapable of understanding the nature of marriage, whereas s.9(1)(b) is wider in its connotation. The expression “of unsound mind” appearing in s.1(1) as a ground for divorce (and the same expression in s.9(1)(b) has presumably the same meaning) has been construed to designate a person who is incapable of managing himself and his affairs including the problems of work, society and marriage judged by the ability of the reasonable person to manage his affairs. A spouse may well understand the nature of marriage at the time of its celebration, but be incapable generally of managing himself and his affairs. … We think that the recommendations of the Moreton Commission should be adopted - certainly when the law is codified, if not before.

56.  With the benefit of comments received in response to the working paper, The Law Commission’s Report on Nullity of Marriage was issued in October 1970.  Under the heading which posed the question “should lack of consent make a marriage voidable instead of void?”, The Law Commission stated, amongst other things (footnotes and references excluded, emphasis added):

14. In Working Paper No. 20 we said that, while the question whether lack of consent due to insanity at the time of marriage should render the marriage void or voidable was a difficult one, we thought on balance that when the lack of consent was due to this cause the marriage should continue to be void. Our reason for this view was that a ceremony, where one of the parties is in this mental state and does not understand what he is doing, is meaningless. However, on further consideration and taking into account the views expressed by those whom we consulted, we have come to the conclusion that this type of unsoundness of mind, like other types of mental disorder or lack of consent, should render the marriage voidable and not void. Our reasons may be summed up as follows:

(a) Marriages are voidable under the [MCA 1965] section 9, on the ground of unsoundness of mind or mental disorder and the distinction between unsoundness of mind which makes a marriage voidable and unsoundness of mind which makes a marriage void is a source of confusion. It may be difficult for a court to draw the line between unsoundness of mind depriving a person of mental capacity to understand the nature of marriage and unsoundness of mind falling within section 9; the position under the present law, which makes the marriage void if it falls into the first category and voidable if it falls into the second category, seems artificial.

(b) It also seems artificial that the marriage of a person subject to a recurrence of insanity should be absolutely void if the celebration of the marriage coincides with a period of aggravation of the illness depriving a person of the requisite degree of understanding, but be valid, though voidable, if such aggravation takes place the day after the celebration.

(c) A ground of nullity which cannot be relied upon until after a court trial … should render the marriage voidable, as in such a case the marriage is, for practical purposes, valid unless successfully challenged.

(d) There are marriages of insane persons which benefit such persons. If, for instance, a woman marries a man of unsound mind and is willing to look after him and her care and presence are beneficial to the man, we can find no good reason why the marriage should be null and void or why third party should be allowed to interfere with it by having it declared to be a nullity.

(e) Under existing law a third party can, with leave of the court, institute nullity (and divorce) proceedings on behalf of the insane person as his next friend; there is, therefore, a safeguard in the event of its being in the interest of the insane person to obtain a decree of nullity, the insane person being himself unable to take this step because of his mental condition.

15. We, therefore, recommend that absence of consent whether due to duress, mistake or unsoundness of mind at the time of the marriage should render a marriage voidable and not void.

57.  In passing, it might be noted that the current proceedings well illustrate the potential problems facing a court as identified in paragraph 14(a), in drawing the line between unsoundness of mind depriving a person of mental capacity to understand the nature of marriage, making it void, and other unsoundness of mind, making the marriage merely voidable.

58.  The Law Commission’s Report also echoed the points made in the earlier working paper about (a) the incapability of a person to give consent if he is incapable of understanding the nature of the marriage, which involves the mental capacity to appreciate the responsibilities normally attaching to marriage: see §59; and (b) that unsoundness of mind under section 9(1)(b) of the MCA 1965 was not limited to the type of unsoundness of mind vitiating consent because the spouse was incapable of understanding the nature of marriage: see §§69-70.  But it went on to state, at §71, that the ground of unsoundness of mind should be omitted since that state of mind is fully covered in the ground (within the same sub-section) referring to “mental disorder within the meaning of the Mental Health Act 1959 of such a kind or to such an extent as to be unfitted for marriage”.

59.  The Report’s summary of recommendations at §96 included, amongst others, the following recommendations:

 (1) The law relating to nullity should be incorporated in a comprehensive statute setting out the grounds on which a marriage governed by English law is (i) void, or (ii) voidable, and the bars to a petition.

 (2) A distinction should be maintained between void and voidable marriages.

 (3) Lack of consent, whether due to unsoundness of mind, duress, mistake or otherwise, should render a marriage voidable, not void.

 (4) Mental disorder, whether continuous or intermittent, within the meaning of the Mental Health Act 1959 of such a kind and to such an extent as to render a party unfitted for marriage should be the only ground on which unsoundness of mind, not vitiating consent, should render a marriage voidable and epilepsy should cease to be a ground of nullity.

60.  The draft Bill appended to the Report identified, amongst other things, how those recommendations might be brought into legal effect.  Those provisions were later enacted as the Nullity of Marriage Act 1971 (“NMA 1971”), in particular at sections 1 and 2 (providing the only grounds on which a marriage shall be void and voidable respectively).  The provisions were to provide a comprehensive system, that is to codify the law on nullity of marriage, and the introductory words to section 9(1) of the MCA 1965 – referring to “any other grounds on which a marriage is by law void or voidable” – are not found in the new law.

61.  Those provisions in the NMA 1971 were later incorporated into the Matrimonial Causes Act 1973 (“MCA 1973”).  Hence, since the NMA 1971 and MCA 1973, no form or degree of unsoundness of mind is a ground making a marriage void, and unsoundness of mind of all forms and degrees may only render a marriage voidable if it falls within section 2(c) and (d) of the former and section 12(c) and (d) of the latter.  In other words, even if the lack of consent was the result of an unsoundness of mind rendering a person incapable of understanding the nature of marriage, that would render the marriage only voidable, not void.

62.  Section 20(b)(c) and (d) of the MCO are the equivalent of section 12(c) and (d) of the MCA.  So, says Mr Pang, the position is the same in Hong Kong as it is in England.  His main point is that the MCO was copied from the MCA and the intent of the Hong Kong legislature must be that whatever was the thinking behind the English legislation should be taken into Hong Kong law.

63.  However, Mr Pang recognised – and to an extent relied upon – what he described as notable variances in the earlier Hong Kong legislation.  First, unlike the MCA 1857 (transferring the old ecclesiastical jurisdiction to the common law courts in England), the first divorce statute in Hong Kong did specify grounds upon which a marriage would be rendered null and void.  That statute was the Divorce Ordinance 1932 (“DO 1932”), the long title of which identified that it was “to confer on the Supreme Court jurisdiction in divorce and matrimonial causes”.  This was because, prior to its enactment, the courts in Hong Kong had no powers to grant divorce, and it was recognised that that was an anomaly which might cause serious hardship in individual cases.

64.  The Supreme Court of Hong Kong – referred to in the long title to the DO 1932 – was established by Ordinance No. 6 of 1845 (which statute abolished the former Court at Hong Kong).  Under that Ordinance, amongst other things:

 (1) Section 14 provided that the Supreme Court shall have the same jurisdiction in the Colony of Hong Kong and its dependencies as Her Majesty’s Courts of Queen’s Bench, Common Pleas, and Exchequer, lawfully have in England;

 (2) Section 15 provided that the Supreme Court shall be a Court of Equity, with such and the like jurisdiction as the Court of Chancery in England;

 (3) Section 16 provided that the Supreme Court shall be a Court of Ecclesiastical Jurisdiction, but apparently in relation only to matters of probate, wills and testaments which are expressly dealt with at some length, but where there is no reference to divorce or nullity or the like. (I would also note that the limitation of section 16 to probate matters seems clear from its complete repeal and replacement by Ordinance No. 8 of 1860.)

65.  The researches of Mr Pang, or his junior Mr Fong, have identified that the DO 1932 was modelled on the Straits Settlements Ordinance No. 123.  Hong Kong Hansard for 20 October 1932 recorded the Attorney General, when moving the first reading of the Bill, as stating:

In this respect [i.e. the anomaly] the Colony has lagged behind Shanghai, the Straits Settlements, and other British Jurisdictions. Inasmuch as jurisdiction with regard to divorce in general depends, according to English law, upon the domicile of the married persons, that is to say the domicile of the husband, peccant husbands domiciled in Hong Kong have found in their domicile an Alsatia which seems as hard to defend as the Alsatia which formerly obtained for debtors in Whitefriars.  The Bill follows closely the precedent of Straits Settlements Ordinance No. 123. The differences are indicated in the Table of Correspondence. They are differences which have been carefully considered, and make, it is hoped, the Bill an improvement on the model. I should point out that it is expected that, after [its approval and implementation, it] will enable the Supreme Court in Hong Kong to exercise a similar jurisdiction in cases in which the parties are British subjects domiciled in England or Scotland.

66.  Sections 12 and 13 of the DO 1932 provided as follows (emphasis added):

12. Petition for nullity of marriage.

A husband or wife may present a petition to the court praying that his or her marriage may be declared null and void.

13. Grounds of decree.

Such decree may be made on any of the following grounds-

(a) that the respondent was impotent at the time of the marriage and at the time of the institution of the suit;

(b) that the parties are within the prohibited degrees of consanguinity or affinity, whether natural or legal;

(c) that either party was a lunatic or idiot at the time of the marriage;

(d) that the former husband or wife of either party was living at the time of the marriage and the marriage with such former husband or wife was then in force;

(e) that the consent of either party to the marriage was obtained by force or fraud in any case in which the marriage might be annulled on this ground by the law of England;

(f) that the marriage is invalid by the law of the Colony.

67.  It may be noted at once that a distinction is apparently drawn between the specific grounds (a) to (e) – including ground (c), based upon unsoundness of mind – and ground (f), based upon invalidity as a result of the (then) general law.  But petitions for nullity were only in respect of marriages which were null and void (as opposed to voidable).

68.  The DO 1932 was subject to major revision in 1956.  Hong Kong Hansard for 23 May 1956 records that, when moving the Divorce (Amendment) Bill 1956, the Attorney General stated:

As instance of our laws lagging behind those of England is our law of divorce as contained in the Divorce Ordinance. That Ordinance, enacted in the Colony prior to the changes made in England by Parliament in 1937, still reflects the law on this subject as it was in England before that date. In particular the grounds upon which decrees for dissolution of marriage and for nullity of marriage may be granted are very restricted when compared with the grounds which are available in England. This Bill therefore proposes to extend the grounds upon which relief under the Divorce Ordinance may be given to include all those grounds upon which relief may now be given in England.

69.  Indeed, the Objects and Reasons for the Bill were stated to include bringing the Hong Kong law more into line with the MCA 1950, particularly with regard to the grounds on which decrees may be made.  Clause 10 of the Bill was apparently based on section 8 of the MCA 1950, and it was stated in §3 of the Objects and Reasons that:

Provisions relating to decrees of nullity of marriage and the grounds on which such decrees may be made are contained in sections 12 and 13 of the principal Ordinance [the DO 1932]. All these grounds are permitted under the English law but are not specifically mentioned in the [MCA 1950]. Clause 10 in replacing those sections specifically refers to the distinction between void and voidable marriages and adds the following grounds – non-consummation of marriage; at the time of the marriage, being of unsound mind or subject to recurrent fits of insanity or epilepsy; or suffering from venereal disease; or being pregnant by some person other than the petitioner.

70.  The DO 1932 was replaced by the Matrimonial Causes Ordinance (“MCO”) in 1966, though it kept the same chapter number of the Laws of Hong Kong, Cap 179.  However, in 1966, the MCO did not introduce any new law as regards nullity.  It comprises the old section 20 (which still applies in relation to any marriage which took place before 1 July 1972), which was based on section 8 of the MCA 1950 as became section 9 of the MCA 1965, the sections the subject of consideration by the Morton Commission and the The Law Commission (see above).

71.  It was only by the amendments made in 1973 that what is now section 20 of the MCO was added.  Hong Kong Hansard for 12 April 1972 records that, in introducing the relevant amendments, the Attorney General stated (emphasis added):

The English law on the subject of divorce was substantially changed by the Divorce Reform Act 1969 and the law governing nullity was codified by the Nullity of Marriage Act 1971. The Bill before honourable Members amends the [MCO] so as to adopt the provisions of these two English Acts, with such modifications as are necessary to meet the circumstances of Hong Kong.

…

Clause 12 replaces section 20 with a new section which sets out the grounds on which a marriage may be declared void. This section substantially reproduce [sic] the present law.

72.  The relevant Explanatory Memorandum to the amendment Bill also contained the following explanation (emphasis added):

Clause 12 replaces section 20 of the principal Ordinance with a new section 20 which sets out the grounds on which a marriage may be declared null and void. These correspond to those set out under the Nullity of Marriage Act 1971. This new section only applies to a marriage which takes place after the commencement of this Bill. The grounds set out under the repealed section 20 still apply to a marriage which took place before the commencement of this Bill.

Clause 13 introduces new sections 20A and 20B to the principal Ordinance which adopt sections 4 and five of the Nullity of Marriage Act 1971. New section 20A provides that section 20 shall not affect the determination of any matter relating to the validity of a marriage in accordance with the rules of private international law or the determination in accordance with the Foreign Marriages Acts 1892 to 1947 of the validity of a marriage which has taken place outside Hong Kong. Under new section 20B, a decree of nullity granted after the commencement of this Bill shall have effect after the decree has been made absolute and for the period before this, the marriage shall be treated as still in existence.

73.  The Attorney General’s statement and the Explanatory Memorandum appear to identify the legislative intent was to bring the provisions and effect of the English law as found in the NMA 1971 – being the codification of the law on nullity – into effect in Hong Kong law.  Albeit that was aid to be subject to “such modifications as are necessary to meet the circumstances of Hong Kong”, that simply begs the questions as to what modifications were necessary and as a result of what circumstances.  No modifications, or the local circumstances justifying them, seem to have been identified – unless it is assumed that the modifications are, for example, where internal references to other legislation should be to the relevant equivalent Hong Kong legislation.

74.  In any event, Mr Pang submits that in the light of that legislative history, and the clear statement of legislative intention in bringing the current section 20 into the MCO in 1973 so as to adopt the English codification of the law of nullity to be found in the NMA 1971, it cannot be right as a matter of statutory interpretation that section 20(1)(b) of the MCO somehow had the effect of preserving the principle that unsoundness of mind may render a marriage null and void.

75.  First, he says, it is clear that the MCA 1973 intended to make all forms and degrees of unsoundness of mind give rise to a marriage which might be voidable only.  So by enacting in Hong Kong identical provisions, as section 20(2)(c) and (d), and in the absence of any contrary intention revealed by the legislative record or the statutory text itself, there is no reason to suppose that the Hong Kong legislature intended the mere continued existence of section 20(1)(b) to have the effect of thwarting the entire legislative exercise by making unsoundness of mind (in part) are ground to render a marriage void ab initio.  I am conscious that might be thought to be a ‘bootstraps’ or circular argument, as it presupposes an interpretation of the entire legislative exercise whilst excluding one of the subsections from the process of interpretation.  It may therefore be better question to ask is what section 20(1)(b) means, if it does not mean that some element of unsoundness of mind might continue to give rise to a marriage which is void, and not merely voidable.  I can return to that question below.

76.  But secondly, Mr Pang says, it is also clear from the language and structure of section 13 of the DO 1932 and later section 20 of the MCO that the legislative scheme as adopted in Hong Kong did not intend to include the common law principle as one of the grounds upon which a marriage may be rendered a nullity.  Mr Pang says this is because:

 (1) If the principle that a marriage is void for either party’s unsoundness of mind was part of Hong Kong law prior to the enactment of the DO 1932, such principle must have been codified by section 13(c) and cannot for that reason have been preserved under section 13(f). If, on the other hand, the principal was not part of Hong Kong law, it cannot simultaneously have been introduced under both sections 13(c) and (f). The general enactment in the latter cannot be taken to affect the particular enactment in the former. 

 (2) Whilst the MCO was said to “replace” the DO 1932 in 1966, section 20(1)(b) of the MCO is nearly identical to section 13(f) of the DO 1932, save that the word “invalid” under the older section is preceded by the word “otherwise”.  As a matter of principle, when words in the replacement legislation are virtually identical with words used in the comparable section of the repealed legislation, that cannot be an accident, and it is usually assumed that the legislature must have used the same phrase in order that it shall have the same meaning.  So, says Mr Pang, despite the fact that lunacy or idiocy is no longer a ground upon which a marriage may be rendered null and void under the MCO, section 20(1)(b) of the MCO cannot be interpreted as having the effect of preserving section 13(c) of the DO 1932, which has been repealed and separately catered for under section 20(2)(c) and (d) of the MCO.

77.  I see the force of the first point.  But, I think the second point is less strong, as I do not think section 13(c) of the DO 1932 is coterminous with section 20(2)(c) and (d) of the MCO. Indeed, the significant amendments made to the previous Ordinance were expressly in recognition that the provisions of the DO 1932 were not the same as, and should be updated to reflect the position under, English law.  Both section 13(c) and section 20(2)(c) and (d) have some reference to states of unsoundness of mind, but it remains necessary to construe the latter provisions in context, including as to any overlap in or with the previous provision.

78.  But Mr Pang also submits that, in any event, section 13(f) of the DO 1932 and section 20(1)(b) of the MCO could not preserve the principle that a marriage may be rendered null and void by virtue of the mental capacity of either party, because such a principle has never been part of the law of Hong Kong.  He says the unsoundness of mind principle was not a common law principle, but rather an integral part of canon law which was, prior to 1857, administered solely by the Ecclesiastical Courts in England.  So the question to ask, he says, is whether the ecclesiastical jurisdiction which enables making a decree of nullity on the ground of unsoundness of mind ever been conferred on the courts of Hong Kong.  Mr Pang’s answer is “no”.

79.  This is because the Supreme Court of Hong Kong was only conferred with divorce and matrimonial jurisdiction upon the enactment of the DO 1932 (in contrast to the conferring of ecclesiastical jurisdiction relating to matters of probate: see above).  So, absent any specific enactment prior to 1933, the MCA 1857 could not have been part of the law of Hong Kong, because only the laws of England as existed on 5 April 1843 became the laws of Hong Kong (subject to later modification by the Hong Kong legislature): see section 7 of Ordinance No. 12 of 1873 amending the constitution of the Supreme Court in Hong Kong.  Nor, says Mr Pang, did section 3 of the DO 1932 introduce the effect of MCA 1857 into Hong Kong law.

80.  So, the argument runs, even if section 13(f) of the DO 1932 was wide enough to preserve all common law principles not enumerated under other subsections of section 13, the principle that a marriage may be void ab initio on the ground that a party is of unsound mind was not one which was capable of being preserved in the first place.

81.  Mr Wong’s response to these various points proceeds from the principles of statutory interpretation I have outlined above. Applying them, Mr Wong says that the MCO does not expressly abolish the general law on void marriage, and submits that, on the contrary, it seeks to preserve the general law relating to void marriage by section 20(1)(b).  On that basis, the question is whether section 20(2)(c) and (d) have the effect of displacing the law that a marriage is void by reason of lack of mental capacity by necessary implication.  That question requires the court to bear in mind (i) the general presumption that the legislature does not intend to make changes to the common law, and (ii) there is also the express provision in section 20(1)(b) stipulating that marriage is “void” where it is otherwise invalid under the law of Hong Kong.

82.  Mr Wong submits that, as a matter of construction, it is clear – or it is sufficiently arguable for the purpose of meeting the striking out application – that the “unsoundness of mind” and “mental disorder” contemplated under section 20(2)(c) and (d) do not cover the situation where a party lacks the requisite capacity to marry, and therefore does not displace the default position that a marriage is void for that incapacity.

83.  Mr Wong argues that the expression in section 20(2)(c) “did not validly consent” presupposes that the party has the mental capacity to understand marriage, but simply did not validly consent to it.  He says that interpretation is supported by the use of concepts such as “duress” and “mistake” in the same paragraph, as both those concepts presuppose that a party had the mental capacity to marry, but the consent was somehow vitiated at the time of marriage.

84.  Mr Wong also relies on the fact that the Law Commission Working Paper No. 20 specifically observed, at §§28-29, that the expression of “unsound mind” in section 9(1)(b) of the MCA 1965 is not the same as “insanity”.  The working paper noted that “insanity” is a word which denotes a person who is incapable of understanding the nature of marriage, whereas “unsound mind” refers to a person who may well understand the nature of marriage at the time of its celebration, but is not capable of managing himself and his affairs.

85.  As to section 20(2)(d), Mr Wong argues that the expression “though capable of giving valid consent” shows that the paragraph does not cover the situation where a party to the marriage lacks mental capacity.

86.  Mr Wong also relies on the time bar provision in section 20(4) and discretion given to the court under section 20(3). He asks the rhetorical question: if a person lacks the mental capacity to understand marriage, how could it be possible for him to know that he has ground to avoid marriage and to take out proceedings within three years?

87.  There would also be an absurd result, says Mr Wong, if the law is interpreted as the defendant suggests.  This would permit ready abuse by an unscrupulous party to revoke the will of a person by purported marriage and to seize his or her assets when that person lacked the requisite mental capacity to understand marriage, to revoke his or her own will, and/or to seek annulment of such a marriage within three years.  Mr Wong says that cannot have been the intent of the legislation.

88.  As to Mr Pang’s point that there was no common law in Hong Kong to preserve, because mental capacity was an integral part of canon law administered by the Ecclesiastical courts and never formed part of Hong Kong law, Mr Wong submits that the distinction between canon law and common law is barren: see Edes v Bishop of Oxford (1667) 124 ER 949 at 951.  Further, Prof Peter Wesley-Smith has expressed the view in his ‘The Sources of Hong Kong Law’ at 93 (footnoting the Edes case) that ecclesiastical law has always been part of English law and thus was received into Hong Kong from 1844 to 1996 (to the extent that it was not inapplicable).

89.  I tend to agree that any attempt to distinguish between canon or ecclesiastical law and common law is barren.  In any event, I think it is probably also a ‘red herring’.  As identified above, the real question posed is simply whether section 20(2)(c) and (d) provide a comprehensive code for all forms and degrees of mental issues and unsoundness of mind, such that when looking at section 20(1)(b) there is no room for considering a marriage void if one of the parties is not capable of understanding the nature of marriage itself.

90.  That simply turns on the proper statutory interpretation of the various sections, read together and read in context, adopting the relevant purposive approach.  In light of the materials identifying the intended codification underpinning sections 1 to 4 of the NMA 1971, and the Hong Kong legislative intention in following that statute when bringing in what is now sections 20 to 23 of the MCO, it may be helpful for there to be a side-by-side comparison.  This can be found in the following table, with the differences shown by use of underlining on the Hong Kong side:

91.  My own research, performed since the hearing, has turned up only one reported case in which the material approach to section 20 has been the subject some consideration.  It is the decision of HHJ Grace Chan in WN v XJX [2018] 2 HKLRD 627.  The case related to a bogus/sham marriage between WN (a Hong Kong citizen) and XJX (a Mainland Chinese national), entered into for money and in order for XJX to come to Hong Kong to work.  WN subsequently sought a decree of nullity based, amongst other things, on the suggestion that there was a lack of valid consent to the marriage within section 20(2)(c) of the MCO.  The scope of that section was not the subject of any discussion – indeed, in a case where the petitioner was represented by a solicitor advocate and the respondent acted in person and was absent.  However, the judge proceeded on the basis of what might be called the English approach, as she held (at §14) that the petitioner needed to prove under section 20(2)(c) that, at the material time, she was not capable of understanding the nature of the marriage contract, or that her mental condition was such that she was incapable of understanding.  Reference was also made (at §15) to Rayden & Jackson: Divorce and Family Matters 18^th Ed at §8.57 setting out the (English) test and burden of proof to be adopted.

92.  In the same judgment (at §§39-44), the judge also referred to section 20(1)(b) when considering whether a party who wishes to end a bogus/sham marriage should issue a petition for nullity or one for divorce.  However, the judge did not think that on the facts of the case the bogus/sham marriage would become an invalid one, as various English authorities identified that a bogus/sham marriage would not be invalidated merely by the fact that the party/parties to that marriage is/are later charged or even convicted of any offence of conspiracy to defraud which is related to the marriage.  But there was also no real discussion necessary as to the scope of or reason for section 20(1)(b).

93.  Ultimately, this being a question of statutory interpretation, I take into account that the context of a statutory provision should be taken in its widest sense and certainly includes the other provisions of the statute and the existing state of the law.  I also take into account that the changes to the MCO were not themselves directly the result of any recommendation or report in Hong Kong.  But, where the Hong Kong legislation in question was to adopt the terms and effect of the English legislation which did implement the recommendations of the Report of The Law Commission, I think that Report may be referred to in order to identify the purpose of the Hong Kong legislation.

94.  I also take into account that the purpose of the legislation may be ascertained (at least, in part) from the Explanatory Memorandum to the Bill and the statements made by the Attorney General in relation to the Bill in the Legislative Council.  It also seems to me to be obvious that the persons drafting the intended Hong Kong legislation, to bring into effect in Hong Kong law the effect of the NMA 1971, must have been aware of the Report and recommendations which were the genesis of the NMA 1971.  The fact that the NMA 1971 was to codify the law on nullity was specifically referred to by the Attorney General.  The relevant adopted recommendation was to effect changes to the legislation to ensure that questions relating to mental incapacity would render a marriage only voidable, not void.

95.  On those various bases, I think it is clear that section 20(2)(c) and (d) was intended to provide the ‘comprehensive code’ dealing with all matters where a marriage might be affected by “unsoundness of mind”.

96.  Mr Wong’s submission, that the wording in section 20(2)(c) presupposes a mental capacity to understand marriage but that the relevant person simply did not validly consent, is clever and might at first blush have some merit, but the simple fact is that the wording in that section exactly tracks the wording in the equivalent English section.  It must be presumed to be intended to have – and to have – the same meaning.  Similarly, the wording in section 20(2)(d) exactly tracks the wording in the equivalent English section, and there are linked tracking provisions in the Hong Kong section 20(3) and 20(4).

97.  That it was stated by the Attorney General that the adoption of the English statute was subject to such modifications as are necessary to meet the circumstances of Hong Kong, does not change the analysis.  The relevant modifications were simply to identify appropriate dates and other legislative provisions in the Hong Kong context.  Had there been any other intended ‘local’ modification, particularly one intended fundamentally to change the approach of codification adopted in England and apparently intended in Hong Kong, it would be expected that that would have been specifically dealt with on the introduction of the Bill, and in its Explanatory Memorandum.  It was not.

98.  The only doubt might arise because of the existence of section 20(1)(b).  Of course, the words in that part of the section must be given some meaning.  On one view, it might be thought the words are equivalent to maintaining the introductory words formerly found in, for example, section 8 of the MCO 1950 and section 9(1) of the MCO 1965. But in the above context I have described, I do not think that is correct – at least not so as to ‘preserve’ some element relating to the impact of lack of mental capacity through unsoundness of mind.  Whatever else section 20(1)(b) might mean or cover, it does not cover that.

99.  I accept “invalidity” can be equated with being “void”: see, for example, section 27 of the MO.  If a marriage is “invalid”, it is “null and void”.  The introductory words to the former English provisions, though, do not refer to “invalidity” as such, simply to “other grounds” on which a marriage is by law void or voidable.  Though there was a former distinction between “insanity” and “lack of consent”, they were clearly connected and any distinction has been bridged by the codification.  A person who is incapable of giving valid consent, because he does not understand the nature of marriage itself, is a person who does not give valid consent because of unsoundness of mind.  That was the recommendation.  The narrower point was subsumed within the wider one.

100.  Hence, the proper way to construe the phrase “though capable of giving a valid consent” in section 20(2)(d) is that it identifies the difference between a person whose unsoundness of mind prevents understanding of the nature of marriage itself and so vitiates any consent – which would be caught by section 20(2)(c) – and a person who does understand the nature of marriage itself but at the time of marriage was nevertheless suffering from a mental disorder within the meaning of the MHO rendering him unfitted for marriage.  Though the person’s consent is not vitiated or invalidated, he nevertheless suffers from a mental disorder making him unfitted for marriage.

101.  This also appropriately recognises the ‘hierarchy’ in the standards of mental acuity or capacity which I have previously identified: see above.

102.  Also, with the intended adoption of a codified approach, with specific provisions relating to unsoundness of mind, including expressly in the context of valid consent to marriage, it makes no sense for that intended codification to be prevented, undermined – or even to be ‘chipped away at’ – by somehow maintaining an incompatible coexistent element of the old common law, at least as regards any question arising from any unsoundness of mind.

103.  In my view, the words in section 20(1)(b) simply permit a marriage to be void for some other reason of non-compliance with, or more properly “invalidity” under, the law of Hong Kong.  It is unnecessary to seek to identify what those reasons might comprise, but they would be beyond matters set out in section 20(1)(a)(i)-(iii) of the MCO, based on the various matters which might render a marriage “invalid” under section 27 of the MO (but where it can be noted that amendments have been made to section 27 of the MO after the introduction of section 20 into the MCO, and other amendments might in future be made affecting questions of “invalidity”).

104.  This legal point is not fact sensitive.  It has been fully argued.  It is a point which turns on the proper construction of statutory provisions in force since 1972, that is for almost half a century. It cannot be said to arise in a developing area of law.  Therefore, I decide it now as a point of law.

105.  Nor does it seem to me that legal conclusion should be evaded simply because the whole action may not be struck out as a result.  Rather, the underlying objectives underpinning appropriate case management seem to me to point to dealing with this matter now, rather than leaving it as an issue that needs to await trial.

106.  The claim that the 2010 Marriage was “void” is plainly and obviously liable to be struck out.

E.  ‘Non-Marriage’

107.  Whilst fairly accepting that the legal concept of ‘non-marriage’ is not expressly alluded to in the SOC, Mr Wong identifies it as an alternative legal basis for the plaintiff’s claim in relation to the 2010 Marriage, and says sufficient material facts have been pleaded in the SOC to lead to that legal result.

108.  Relatively recently, the English and Hong Kong Courts have begun to recognise that there is a type of ‘non-existent marriage’ or ‘non-marriage’ which does not fall within the definition of “marriage” under the relevant legislation: see Rayden & Jackson on ‘Relationship Breakdown, Finances and Children’ (Issue 13, September 2019) at §§3.45-3.49; and Yiu Lin Tei v Liu Pui Lan (unreported, HCMP 1359/2008, 26 August 2011, DHCJ Winnie Tam SC) at §§36-37.

109.  So, says Mr Wong, an alternative way of looking at the factual scenario in the present case is that, since the Deceased’s lack of mental capacity was diagnosed by a medical doctor and known to the defendant before the 2010 Marriage, it is artificial to characterise the 2010 Marriage as a genuine marriage.  Rather, it is at least arguable that it is a ‘non-marriage’ incapable of giving rise to any legal consequences, including the consequence of revoking the 1994 Will. If there was a ‘non-marriage’, that would also render irrelevant any limitations provided for in the MCO to challenge a marriage.

110.  However, it seems to me that the concept of a ‘non-marriage’ is rather different from anything as might arise from the facts in this particular case.  As the passage in the Rayden & Jackson text makes clear, a ‘non-existent marriage’ or ‘non-marriage’ is one which does not attempt to be valid or purport to be one of the kind contemplated by the Marriage Act in England, or the MO in Hong Kong.  It has been suggested that it is neither possible nor desirable to attempt to formulate a definitive test capable of resolving in the abstract all scenarios potentially creating a ‘non-marriage’, and that the dividing line between the void marriage and the ‘non-marriage’ can, depending on the circumstances, be an especially fine one.

111.  In my view, the term ‘non-marriage’ assists in separating parties who have never married from those who did marry but whose solemnization the law strikes down as void.  A ‘non-marriage’ might be regarded as circumstances where there is a failure even to fulfil the bare minimum required of a contract behind the formation of marriage.

112.  In this case, other than the question as to the mental capacity of the Deceased at the time of the 2010 Marriage, the 2010 Marriage was in every other respect clearly one which was otherwise valid in accordance with, and precisely of the kind contemplated by, the MO.

113.  There is a Certificate of Marriage issued under the MO, identifying: (a) a marriage registration number; (b) the Deceased and the defendant were married on 1 August 2010 by a Civil Celebrant of Marriages, whose chop is applied to the certificate; (c) the marriage was conducted in accordance with the provisions of the MO; (d) the Deceased and the defendant both signed the certificate (apparently in duplicate, with one copy delivered to the Registrar of Marriages in accordance with section 21(7) of the MO); and (e) the marriage was solemnized in the presence of two witnesses who signatures and names are on the certificate.

114.  In this case, there is clearly no fine line, and I think the suggestion that the 2010 Marriage was a ‘non-marriage’ is utterly unarguable.

F.  Undue Influence and Reasonable Cause of Action

115.  As indicated above, Mr Pang submits that the plea of testamentary undue influence is both (a) defective and (b) inadequately pleaded, so as to be liable to be struck out for disclosing no reasonable cause of action.

116.  The submission relating to defectiveness is as follows.  It points to the pleading in the SOC where the plaintiff avers first that the Deceased was mentally incapacitated as a result of suffering from “an advanced stage of Alzheimer’s disease” and second that the defendant capitalised upon the Deceased’s dependence upon her “to force or coerce him to make the [2010 Will] contrary to his own wish or without any proper regard of his true wish”.  As the plea of testamentary undue influence necessarily presupposes that the testator would have had the mental capacity to make the 2010 Will, had his volition not been overborne, Mr Pang says that pleading both mental incapacity and coercion fails to make out a reasonable cause of action on testamentary undue influence.

117.  The doctrine of undue influence applicable to testamentary dispositions differs from the equitable doctrine of undue influence applicable to inter vivos transactions.  The principles are well settled.  They can be found drawn together in, for example, Schrader v Schrader [2013] EWHC 466 (Ch) at §§95-96.

118.  Whether there was testamentary undue influence is a question of fact.  The burden is on the person asserting undue influence, and it is a high burden.  There is no presumption of testamentary undue influence.  For any influence to be undue, it must be exercised by coercion or victimisation or domination, and the pressure applied must be such that it overpowers the volition and will of the testator without convincing his judgment.  The influence of affection, attachment or a desire to meet the wishes of another are not sufficient to amount to undue influence.  The inference of coercion from surrounding circumstances requires more than showing the circumstances are consistent with the will having been obtained by undue influence; there must be shown circumstances which are inconsistent with a contrary hypothesis.

119.  The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear his will.  The will of a weak and ill person may be more easily overborne than that of a hale and healthy one.  Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator’s free judgment discretion or wishes, is enough to amount to coercion in this sense.  A ‘drip drip’ approach may be highly effective in sapping the will.

120.  So, if there is evidence showing the exertion of improper influence in relation to the execution of a will, it may be easier, where the testator was enfeebled in body or mind, and easier still if enfeebled in both body and mind, to find that such influence was in all the circumstances undue and that it was by means of the exercise of that influence that the will was obtained.

121.  Importantly for present purposes, where a testator suffered from “some mental incapacity” or “mental infirmity”, a lesser degree of pressure or inducement may suffice to find that such influence was in all the circumstances undue.  But it is important to remember that no amount of evidence of bodily or mental infirmity will of itself establish undue influence in the absence of some independent evidence tending to show the exercise of an improper influence.

122.  Further, a testator must have the requisite testamentary capacity for a plea of testamentary undue influence to be made out.  That necessary capacity is sufficient soundness of mind and discretion to regulate his affairs in general.

123.  The relevant question is not whether the court considers that the testator’s testamentary disposition is fair, because (subject to any statutory powers of intervention) a testator may dispose of his estate as he wishes.  Ultimately, the question is simply whether, in making his dispositions, the testator has acted as a free agent.

124.  So, says Mr Pang, it is at the heart of testamentary undue influence that coercion has to be actually proved instead of presumed, and if the testator had no capacity to exercise the relevant testamentary volition or judgment, no overpowering of such volition or judgment could ever be proved.  The plaintiff’s express reliance on the diagnosis of advanced stage of Alzheimer’s disease means that the plaintiff could never prove any overpowering of relevant testamentary capacity.

125.  The second strand to the argument relates to the plea of testamentary undue influence being void of any particulars.  Mr Pang recognises that particulars capable of supporting a plea of testamentary undue influence might vary considerably.  But he points to various authorities which identify that allegations of fact which say little more than that the testator was reliant upon the defendant, or which are consistent only with the opportunity to influence the testator, are insufficient.  Undue influence will not be presumed.

126.  In this case, Mr Pang says, the plea of testamentary undue influence falls squarely within those situations.  There is the bare assertion of the dependence of the Deceased upon the defendant; there was at best an opportunity to coerce the Deceased; but there is simply nothing in the SOC which excludes the hypothesis that the 2010 Will was made out of affection or attachment towards the defendant.

127.  Mr Pang also says that this defect is not capable of being cured by an amendment, as by virtue of the plaintiff’s own admission on affirmation, he has no knowledge, and can obtain no better knowledge, of the circumstances surrounding and leading both to the 2010 Marriage and the 2010 Will.  Allowing time for further enquiries in the hope of being able to make good the plea with proper particulars would, therefore, be entirely fruitless.

128.  In response, Mr Wong does not really dispute the principles on the first strand of the argument.  Instead, he emphasises that whether there was undue influence is a fact sensitive question, depending on the inference that the trial judge may draw from the circumstantial evidence.  Whilst Mr Wong accepts the plaintiff’s primary pleaded case is that the Deceased lacked mental capacity, he also relies on the pleading that “the Deceased lacked the, or sufficient, mental capacity to act on his own behalf and/or by reason of the same matters was susceptible to suggestion and influence as regards his affairs and assets”.  That plea, says Mr Wong, covers the scenario that the Deceased’s will was overborne by reason of mental infirmity.

129.  But the plaintiff cannot have it both ways.  If the primary case is that the Deceased lacked the mental capacity necessary to make valid testamentary dispositions, then a claim to testamentary undue influence simply does not arise.  If, on the other hand, the plaintiff proceeds on the basis that the Deceased did have the necessary testamentary capacity, but that his will was overborne in some way, the plaintiff must plead and prove facts which are more than merely consistent with the hypothesis of undue influence.  A plea that the Deceased was “susceptible to suggestion and influence” will not suffice.

130.  It may help to set out the precise terms of the pleading in the SOC in this case, the material parts of which are to be found in §§21-27 of the SOC, as follows (emphasis in original):

The Deceased’s Mental Capacity

21. The Plaintiff avers that: -

 (a) The Defendant (in the capacity as the purported executrix of the Deceased’s estate) issued the HCA 635/2019 proceedings dated 11^th April 2019 against one Charm Investments Limited and the Plaintiff;

 (b) The Defendant (in the Statement of Claim of the HCA 635/2019 proceedings dated 11^th April 2019) states that inter alia: -

(i) “28. On or about 2^nd June 2010, Dr. Freddie Yuk Tong Lau (“Dr. Lau”) diagnosed the Deceased was suffering from an advanced stage of Alzheimer’s disease.  In his medical report dated 2^nd June 2010, Dr. Lau stated inter alia that: -

“the patient (the Deceased) is suffering an advanced stage of Alzheimer’s disease and is not capable of handling his daily business completely”.

(collectively, “Dr. Lau’s Diagnosis dated 2^nd June 2010”)

(ii) “37. In the circumstances, by the latest of mid-2009, the 2^nd Defendant knew or ought to have known that the Deceased was suffering from dementia and his conditions had deteriorated to such an extent that [the Defendant herein] needed to take care of and manage his daily affairs and financial matter”.

 (c) In short, the Defendant avers (under the HCA 635/2019 proceedings) that inter alia the Deceased was “mentally incapacitated” and had “no mental capacity” since at least on or about 2^nd June 2010.

The Invalid Marriage

22. By reason(s) of the foregoing (and without prejudice to the pleaded defence filed under the HCA 635/2019 proceedings), the Plaintiff avers that the purported marriage between the Deceased and the Defendant (which purportedly took place on 1^st August 2010) at Flat D, 17^th Floor, 5 Glee Path, Mei Foo Sun Chuen, Kowloon, Hong Kong which was the Deceased’s home) was invalid, and/or null and void in that inter alia: -

(a) Paragraph 21 above is repeated;

(b) The Deceased was mentally incapacitated at the material time (at least as of 1^st August 2010); and he was of the age of 81 years, suffering from “an advanced stage of Alzheimer’s disease” (as per Dr. Lau’s Diagnosis dated 2^nd June 2010) and having no mental capacity to enter into the said marriage on 1^st August 2010;

(c) Further or alternatively, the Deceased lacked the, or sufficient, mental capacity to act on his own behalf and/or by reason of the same matters was susceptible to suggestion and influence as regards his affairs and assets;

(d) The Defendant made use of the Deceased’s dependence upon her for the everyday necessities of life, and/or the Deceased’s mental incapacity, to force or to coerce him to enter into the alleged Marriage dated 1^st August 2010 contrary to his own wish (or without any proper regard of his true wish).

The Deceased was not of sound mind, memory and understanding

23. By reason(s) of the foregoing (and without prejudice to the pleaded defence filed under the HCA 635/2019 proceedings), the Plaintiff avers that the Deceased, at the time when the alleged Will dated 21^st August 2010 purported to have been executed, was not of sound mind, memory and understanding that inter alia: -

Particulars

 (a) Paragraph 21 to 22 above are repeated;

 (b) At the time the Deceased executed the alleged Will dated 21^st August 2010, he was of the age of 81 years, suffering from “an advanced stage of Alzheimer’s disease” (as per Dr. Lau’s Diagnosis dated 2^nd June 2010) and having no mental capacity (as contended by the Defendant);

 (c) He was at the time of the execution of the alleged Will dated 21^st August 2010 in such a condition of mind and memory (i.e. “At this moment of writing this report, [the Defendant] complained that he was given away various assets to whom he does not remember” as per Dr. Lau’s Diagnosis dated 2^nd June 2010) as to be unable to understand the nature of the act and its effects, or the extent of the property of which he was disposing, or to comprehend and appreciate the claims to which he ought to give effect.

Undue Influence

24. Further, by reason(s) of the foregoing, the Plaintiff avers that the execution of the alleged Will dated 21^st August 2010 was obtained by the undue influence of the Defendant that inter alia: -

Particulars

 (a) Paragraphs 21 to 23 above are repeated;

 (b) At the material times since in or about mid-2010, the Defendant had deliberately and consistently prevented any contact between the Deceased and his family members (despite the attempts made by the Plaintiff and LUI Siu Fong (雷小芳) to contact the Deceased and invite him to attend family gatherings);

 (c) The Defendant claimed that at the material times, she was living with the Deceased, needed to take care of and manage his daily affairs and financial matters”;

 (d) The Deceased lacked the, or sufficient, mental capacity to act on his own behalf (as per Dr. Lau’s Diagnosis dated 2^nd June 2010) and/or by reason of the same matters was susceptible to suggestion and influence as regards his affairs and assets;

 (e) The Defendant made use of the Deceased’s dependence upon her for the everyday necessities of life, and/or the Deceased’s mental incapacity, to force or to coerce him to make the alleged Will dated 21^st August 2010 contrary to his own wish or without any proper regard of his true wish.

25. In the circumstances, the Defendant at all material times well knew (or ought to have known) about the Deceased’s mental incapacity in that inter alia: -

(a) Paragraphs 21 to 24 above are repeated;

(b) The Defendant was a close girlfriend (or female friend), and she claimed that she had intimate relationship with the Deceased at the material times;

(c) The Defendant claimed that she needed to take care of and manage the Deceased’s daily affairs and financial matters due to his mental incapacity.

26. Despite the above (and well knowing about the Deceased’s lack of mental capacity (as per Dr. Lau’s Diagnosis dated 2^nd June 2010)), at all material times: -

(a) The Defendant still procured and entered into the “Marriage dated 1^st August 2010” with the Deceased;

(b) The Defendat still procured and took the Deceased to allegedly execute the “alleged Will dated 21^st August 2010” (under which the Defendant would be the “sole beneficiary” of all his estate and the sole executrix); which existed clear conflict of interest in her favour;

(c) Still more, in the last but one paragraph of Dr. Lau’s Diagnosis dated 2^nd June 2010, Dr. Lau states that “At this moment of writing this report, [the Defendant] complained that he was given away various assets to whom he does not remember”

Pending further discovery and interrogatories, the Plaintiff has good grounds to believe, and do believe that the Defendant had falsely represented to Dr. Lau that the Defendant was the wife of the Deceased at the material time (on or before 2^nd June 2010) and wrongfully induced Dr. Lau to be the witness of the alleged Will;

 (d) Worse still, acting in reliance of the said “marriage” and the said “will”, the Defendant had (wrongfully) acted as the purported “lawful wife” and the purported “named executrix” under the said will to have applied for and have obtained the Probate Grant No. HCAG016896/2015 purportedly registered on 1^st December 2015);

 (e) The Defendant wrongfully (through Messrs. Fung, Wong, Ng & Lam LLP Solicitors) issued the letter dated 20^th September 2018 (as the purported executrix of the Deceased);

 (f) The Defendant wrongfully issued the HCA 635/2019 proceedings dated 11^th April 2019 (as the purported executrix of the Deceased);

27. In the premises, the alleged “Grant of Probate” to the Defendant is liable to be revoked, and the Defendant should not be entitled to such grant.

131.  Mr Wong asks the court to take note of the pleaded facts that: (1) the Deceased made the 1994 Will to make specific requests to some of his family members; (2) during his lifetime, the Deceased told others that the defendant was only his “maid”; (3) in 2010, the Deceased reached the age of 81 and was diagnosed to have an advanced stage of Alzheimer’s disease, of which the defendant was fully aware; (4) around the same time, the defendant had deliberately and consistently prevented any contact between the Deceased and his family members; and (5) the defendant made use of the Deceased’s dependence upon her and/or his mental incapacity to force or coerce him to make the 2010 Will contrary to his own wish.

132.  This is in circumstances that it will be a common feature of undue influence cases that there is no direct evidence of the application of influence.  It is of the nature of undue influence that it goes on when no one is looking.  But that does not stop it being proved, and frequently the proof has to come, if at all, from more circumstantial evidence.

133.  So, says Mr Wong, those pleaded facts and particulars show that there was no reason why the Deceased would choose to execute the 2010 Will to give away all his assets solely to the defendant (whom he had described as a “made”) without leaving any estate to his other family members, after being diagnosed with advanced Alzheimer’s, and why the defendant would deliberately prevent the Deceased from seeing his family members.  Even assuming the pleaded facts in favour of the plaintiff, the problem with that submission is that it elides various factual matters, which are on their own consistent with the hypothesis of undue influence, with a factual matter (advanced Alzheimer’s) which is probably inconsistent with undue influence.  But I suppose it is open to the trial judge to make various different factual findings from which the appropriate inference can then be made.

134.  Mr Wong also submits that the defendant has only pleaded a bare denial of undue influence, but has not provided any explanation as to why the Deceased chose to execute the 2010 Will giving all his assets to her after being diagnosed as suffering from advanced Alzheimer’s.  On the pleaded defence, which sets out a lengthy history of the relationship between the Deceased and the defendant going back to 1972, I am not sure the criticism of the pleaded defence is sound.  But, in any event, the present focus is on the pleaded claim, not the defence.  The submission also seems to be an attempt to reverse the burden of proof, which Mr Wong necessarily accepts is borne by the plaintiff.

135.  But, Mr Wong also prays in aid a passage from Re Flynn, deceased [1982] 1 WLR 310 at 321A-D, where Slade J – in rejecting the submission that the matters pleaded in that case would not suffice to establish coercion of the testator – stated:

I think it arguable that these facts, if proved, would excite suspicion of the Court as to the righteousness of the transaction and would suffice to support a plea of undue influence, unless the third defendant succeeded in rebutting such suspicions … I am far from saying that either this argument, or indeed the third defendant’s argument relating to want of knowledge and approval, would succeed. In my judgment, however, there is at least sufficient substance and the arguments under both heads to cause the court to refrain from exercising the striking out jurisdiction, which should only be exercised in a clear case.

All the allegations of fact relating to the circumstances in which the codicil came to be prepared and executed will have to be investigated by the court at the trial …

136.  The particular facts alleged in that case, set out at 313, were pleaded in lengthy particulars.  Before the passage set out above, Slade J recognised that those particulars did not contain any explicit allegation that the defendant overbore the will of the testator.  But, on the other hand, the particulars did allege that the defendant actually took the codicil to the hospital and, in the knowledge that the testator was gravely ill and that he, the defendant, would benefit under the codicil, procured the testator to execute it.

137.  In this case, I bear in mind the plaintiff’s admission that he could not adduce any evidence or assert any facts as to the circumstances surrounding the making of the 2010 Will (beyond those pleaded).  But, there may be other witnesses whose evidence is relevant to an investigation of the circumstances, and I think the particulars pleaded in the SOC are of a similar or equivalent character to those set out in the Flynn case.

138.  Therefore, I would not strike out the challenge to the 2010 Will on a summary basis relating to the method by which that challenge has been pleaded.

G.  Contradictory Factual Premises

139.  This point leads on from the previous point.  I am not sure that it adds much to the previous point.

140.  Mr Pang submits that the plea of testamentary undue influence has also been wrongly pleaded further to, instead of alternative to, the plea of the lack of testamentary capacity.  This is because the relevant paragraph in the SOC (§24) starts “Further, by reasons of the foregoing…”.

141.  Where a party wishes to plead and verify alternative pleas, Order 18 rule 12A requires that inconsistent factual allegations in the same pleading can only be made if two conditions have been satisfied, namely (a) the party has reasonable grounds for so doing and (b) the allegations are made in the alternative.  A pleading which falls foul of that rule is liable to be struck out for being embarrassing, though it is within the court’s power to order a pleading to be amended.

142.  Mr Pang also submits that the combined effect of Order 18 rule 20A and Order 41A rule 2(2) is that “all and each and every inconsistent set of facts alleged in the pleading can be genuinely and honestly verified by one or more statement(s) of truth, which either jointly or severally together cover and verify the whole and entire pleading in question”: see Hong Kong Civil Procedure 2020 at §18/20A/2, 3.

143.  So, whilst Mr Pang does not dispute that it may be permissible for the plaintiff to make inconsistent factual allegations, he says the dual requirements under Order 18 rule 12A have not been satisfied.  As it stands, the SOC puts forward two pleas resting on different and inconsistent factual bases.  First, there is the plea of lack of testamentary capacity.  Secondly, there is the plea of testamentary undue influence, which must be understood as being factually premised upon the testamentary competence of the Deceased as testator.  But, says Mr Pang, the plaintiff has not discharged the burden on him to provide reasonable grounds for asserting the inconsistent allegations, either within the SOC or by way of affirmation.  Where that burden is on the plaintiff personally, it cannot be discharged by submission.  Next, says Mr Pang, because the plea of testamentary undue influence is pleaded further, rather than alternative, to the plea of lack of testamentary capacity, it is based on the alleged fact that the Deceased was mentally incapacitated from advanced Alzheimer’s, making it in any event impossible to have pleaded no alternative case premised upon his sanity or proper testamentary capacity.  Nor have the two inconsistent factual allegations been independently verified.

144.  In response, Mr Wong says this point has no substance.  The plaintiff’s case on mental incapacity and undue influence is based on the findings of the medical report pleaded.  Mr Wong says it is possible that at trial the judge may find the report insufficient to establish mental incapacity, but sufficient to show that the Deceased was of mental infirmity such that he was susceptible to undue influence by the defendant, and that his will was thus overborne.  The difference between mental incapacity and mental infirmity is essentially a matter of degree, to be determined by the trial judge after seeing medical records and hearing expert evidence.  They are not inconsistent as such.  Therefore, it is wrong to suggest that the plaintiff is running a case on contradictory factual premises.

145.  Mr Wong also refers to the case of Herostar Properties Ltd v Cheung Yu Ping [2018] 6 HKC 165 at §38, where DHCJ Le Pichon stated that the purpose or objective of Order 18 rule 12A is to exclude dishonest or opportunistic and speculative claims, and that it is not intended to exclude honest claims reasonably advanced on the basis of incomplete information which points to alternative sets of facts, each of which would be legally viable as part of the party’s case.  She went on to state, at §§40-41, that the authorities and rules did not prohibit the raising of factually inconsistent alternative pleas, provided both alternatives are possible on the evidence and can be verified by the party asserting those alternative pleas.

146.  So, says Mr Wong, where the plaintiff cannot possibly have complete information as to the Deceased’s mental status at this stage, his honest claims about mental incapacity and undue influence based on the medical report should not be excluded.  Mr Wong also says that the fact that the defendant gave no prior notice of this point in the summons or supporting affidavit has prevented the plaintiff from being in a position to explain why he is running cases which are now said to be inconsistent.

147.  Mr Pang does not dispute that, as a matter of fact, “mental incapacity” and “mental infirmity” are both on the spectrum of a person’s mental capacity.  But, where different points cannot in principle overlap, he asserts that is precisely why the plaintiff is precluded from relying on those pleas, unless they are pleaded as alternatives.  Further, mental incapacity, if proved, would have the effect of rendering a will void, but mental infirmity would not, without more, give rise to that consequence.

148.  In my view, Mr Pang reads too much into the word “Further”.  The relevant paragraph pleads a further ground for attacking the 2010 Will, based upon undue influence, and further to the prior pleading that the 2010 Will is open to challenge on the basis of lack of testamentary capacity.  In any event, I agree with Mr Wong that the degree of mental incapacity caused by the diagnosed Alzheimer’s may be on a sliding scale, and may even vary from time to time.  In so far as it is necessary, Mr Pang’s complaint can readily be met simply by adding the words to make it clear that the plea to undue influence is in the alternative.  I think the verification of the alternate pleas on a sliding scale basis relating to mental capacity or strength is perfectly proper and acceptable.

149.  Therefore, I would not strike out on this ground either.

H.  Plea for Revocation of Grant

150.  The parties are in agreement that this part of the striking out challenge has no independent existence.  It stands or falls with the other grounds.  I agree.

151.  In light of my conclusion on the other grounds, this plea for revocation of grant does not fall to be struck out.

I.  Result

152.  On the plaintiff’s claim as pleaded in the SOC, if the 2010 Marriage is declared void, the 1994 Will is not automatically revoked.  But it remains necessary for the plaintiff to challenge the 2010 Will, if he is to prove the 1994 Will.  Here, I would note that proving the 1994 Will may not itself be straightforward, by reason of the matters raised by the defendant’s pleaded defence, including various versions of the 1994 Will appear to have been produced.

153.  However, on my finding as to the proper construction of section 20 of the MCO, the plea that the 2010 Marriage is void falls to be struck out.  Hence, the 1994 Will must be taken to have been revoked by the 2010 Marriage.  But there remain the other challenges to the 2010 Will, which challenges I have not found liable to be struck out.

154.  By reference to the four pleas, as I described the essence of them in paragraph 8 above, I have only struck out the first one namely that the 2010 Marriage is invalid and/or null and void on the ground that the Deceased was mentally incapacitated at the material time, so that (a) the 2010 Marriage is void and (b) the 1994 Will is valid.  That plea is not open to the plaintiff as a matter of law.  But the other three pleas are not struck out.

155.  In the circumstances of these findings, I think it appropriate to allow the parties to consider their position before making submissions as to costs.  I will deal with the question of costs on paper submissions, on the following timetable: (1) the defendant shall file her costs submissions within 14 days; (2) the plaintiff shall file his costs submissions within 14 days thereafter; and (3) the defendant shall file any reply costs submissions within seven days thereafter.