LUI MING LOK v. NG IM FONG LORETTA

CACV 418/2020, [2023] HKCA 865

On Appeal From [2020] HKCFI 1243

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 418 OF 2020

(ON APPEAL FROM HCAP NO 28 OF 2019)

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J U D G M E N T

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Hon Cheung JA:

1.  The background of the case is fully set out in the judgment of Yuen JA. I agree with her judgment and the orders she proposes to make. In deference to the submission of counsel, I would like to indicate my view on the matter.

2.  The issue in this appeal is : Does the mental incapacity of a party to the marriage render the marriage void or voidable?  In my view, the judgment below of Coleman J that such a marriage is voidable and not void is correct. 

3.  The provisions for void and voidable marriages are set out in the Matrimonial Causes Ordinance (‘MCO’) 1973.  The marriage by a person with mental incapacity does not fall into any of the grounds for a void marriage under section 20(1) which provides that :

‘ 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.’  (emphasis added)

4.  On the contrary, a marriage by a person with mental incapacity by reason of unsoundness of mind or mental disorder is expressly stated to be voidable under the MCO 1973.  The relevant parts of the voidable marriage provision are found in section 20(2)(c) and (d) :

‘ (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.’   (emphasis added)

5.  Notwithstanding the absence of provision for void marriage based on the unsoundness of mind /mental disorder ground, the plaintiff (who is not a party to the marriage) claims that the marriage between the defendant and her late husband which had lasted four years is void because of a ‘rule’ established over 200 years ago by the Ecclesiastical Courts of England (‘the rule’) and said to be preserved by the sweeping up provision in section 20(1)(b) of the MCO, namely, that ‘the marriage is otherwise invalid by the law of Hong Kong’.

6.  An explanation of the rule can be found in the case of Browning v. Reane (1812) 2 Phill Ecc 69 where Sir John Nicholl held at page 1081 :

‘ Upon the law of the 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, want of reason; without a competent share of which, as no others, so neither can the matrimonial contract be valid. It was formerly adjudged that the issue of an ideot was legitimate, and, consequently, that his marriage was valid. A strange determination! since consent is absolutely requisite to matrimony; and neither ideots, 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.  It is not material whether the want of consent arises from ideotcy or lunacy, or from both combined : nor does it seem necessary, in this case, to enter into any disquisition of what is ideotcy, and what is lunacy; complete ideotcy, total fatuity from the birth, rarely occurs; a much more common case is mental weakness and imbecillity, increased as a person grows up and advances in age, from various supervening causes, so as to produce unsoundness of mind.  Objects of this sort have occurred to the observation of most people.  If the incapacity be such, arising from either or both causes, that the party is incapable of understanding the nature of the contract itself, and incapable, from mental imbecillity, 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.  The exact line of separation between reason and incapacity may be difficult to be found and marked out in the abstract; though it may not be difficult, in most cases, to decide upon the result of the circumstances; and this appears to be a case of that description, the circumstances being such as to leave no doubt upon my mind.’   (emphasis added)

7.  Browning referred to marriage contracted by ‘idiot’ and ‘lunatic’, the use of these terms is, of course, unacceptable in the modern era but was of common usage in the 19^th century.  Other examples of this rule are Turner v. Meyers (1808) Hagg Con 414 and Re the Estate of Park, dec [1954] P 112 (CA).  See also Shelford on Lunatics, Idiots and Persons of Unsound Mind (2^nd Ed., 1847) at [2] and [4]. 

8.  The term insanity has since been used in England to describe what was previously known as the idiot and lunatic ground.  As explained by the English Law Commission Published Working Paper No. 20 of 14 June 1968 on Family Law, Nullity of Marriage (‘Working Paper No. 20’), marriage being void on the insanity ground had its origin from the ecclesiastical law :

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

(1) invalid ceremony of marriage;

(2) non-age;

(3) prohibited degree (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) are grounds on which a marriage was void in ecclesiastical law, which became a 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.’  (emphasis added)

9.  It is important to note Working Paper No. 20 explained that the rationale for treating insanity as a ground for void marriage is because of the party’s incapacity to give consent to the marriage. 

‘ Insanity

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 responsbilities 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 Matrimonial Causes Act 1965, s.9.’   

10.  Returning to Hong Kong, the MCO 1973 has gone through many forms since the first introduction of the statutory divorce law in Hong Kong in 1932. 

11.  A provision that a marriage might be declared null and void was first introduced in Hong Kong by the Divorce Ordinance (‘DO’) of 1932 (Cap. 179).  It made no distinction between void and voidable marriage.  The relevant sections are :

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

13. Such decree may be made on any of the following grounds ―

(a) [impotence]

(b) [consanguinity or affinity]

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

(d) [existing valid marriage]

(e) [consent obtained by force and fraud]

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

14. If the court finds that the petitioner’s case has been proved, it shall pronounce a decree nisi declaring the marriage to be null and void.’  (emphasis added)

12.  Section 13(c) of the DO 1932 expressly provided that a marriage contracted by a lunatic or idiot to be null and void.  Bennion on Statutory Interpretation 7^th Ed at [25.9] stated, sometimes it is difficult to ascertain whether a statute is intended to displace or modify the existing law or to sit alongside it.  But it is of note that the situation here is the introduction for the first time of a written divorce law in Hong Kong and which expressly provided that the marriage of a person with mental incapacity was void.  In the light of this clear and express legislative provision, it would be most odd that the legislature had intended for the co‑existence of the rule.  It does not make any sense that notwithstanding the express provision, the rule was somehow preserved by the rather unclear wording of section 13(f) (the equivalent of section 20(1)(b) of the MCO 1973).  In my view, section 13(f) could not have been intended to maintain the continuation of the rule.  I agree with Yuen JA that the rule was codified in Hong Kong by the DO 1932. 

13.  Amendments to the DO 1932 were made by the Divorce (Amendment) Ordinance (‘DAO’) 1956 (Cap. 179) (Ordinance No. 44 of 1956).  It introduced for the first time the two different concepts of void and voidable marriages :

‘ 13. (1) A marriage shall be void on any of the following grounds ―

(a) [consanguinity or affinity];

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

(c) [existing valid marriage];

(d) 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;

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

      (2) A marriage shall be voidable on any of the following grounds ―

(a) [impotence];

(b) [wilful refusal to consummate];

(c) that either party to the marriage was at the time of the marriage of unsound mind or subject to recurrent fits of insanity or epilepsy; or

(d) [venereal disease];

(e) [respondent pregnant by other person]’  (emphasis added)

14.  The lunatic and idiot ground was the basis for a void marriage.  The sweeping up provision of section 13(f) of DO 1932 became section 13(1)(e) in the DAO 1956.  The express provision of section 13(1)(b) in respect of the lunatic/idiot ground for void marriage further reinforces the view that the rule no longer existed in Hong Kong.  As an aside, in my view, section 13(2)(c) dealt with the situation where despite the unsound mind/insanity/epilepsy, the party understood the nature of the marriage and consented to it.  Hence, the marriage was voidable under this ordinance.

15.  Further changes were made in the Matrimonial Causes Ordinance (‘MCO’) 1967 (Cap. 179).  The grounds for void marriage remained the same except the lunatic and idiot ground was removed.  The voidable grounds were enlarged. Specifically, the voidable grounds based on mental incapacity were expanded to include a mental disorder ground.

‘ 20(2) A marriage shall, subject to subsection (3), be voidable on any of the following grounds ―

(a) [wilful refusal to consummate];

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

(i)   was of unsound mind, or

(ii)  was a mentally disordered person within the meaning of the Mental Health Ordinance 1960, 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; or

(c) [venereal disease];

(d) [respondent pregnant by other person];

(e) [impotence/incapable of consummation].’ 

(emphasis added)

16.  The removal of the lunacy and idiot ground as a basis for a void marriage and the introduction of the mental disorder ground as a basis for a voidable marriage was a significant development.  There was no indication that the rule was somehow maintained in 1967.   

17.  This remained to be the position until the amendment of the MCO 1967 by the MCO 1973.  It must be borne in mind that the enactment of MCO 1973 followed the heels of the reform package introduced in Hong Kong in the early 1970’s regarding, amongst other things, the marital status of a person.  The package included the Marriage Reform Ordinance 1970 (Cap. 178); the Married Persons Status Ordinance 1971 (Cap. 182); the Wills Ordinance 1970 (Cap. 30); the Intestates’ Estates Ordinance 1971 (Cap. 73) and the Legitimacy Ordinance 1971 (Cap. 184).

18.  It is also of note that two years earlier in 1971, the United Kingdom, following the recommendation of the Law Commission in Working Paper No. 20,introduced the Nullity of Marriage Act 1971 (‘NMA 1971’) and affirmatively put unsoundness of mind /mental disorder as grounds for a voidable marriage.  The relevant parts of the NMA 1971 are

‘ 2. A marriage which takes place after the commencement of this Act shall be voidable on the following grounds only, that is to say ―

(a) –

(b) –

(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, though capable of giving a valid consent, was suffering (whether continuously or intermittently) 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;’  (emphasis added)

19.  One can see that sub‑section 2(c) and (d) of NMA 1971 contained almost the same words as section 20 of MCO 1973 with the reference to the Mental Health Act 1959 changed to the Mental Health Ordinance in the Hong Kong legislation.  The rationale of putting the unsoundness of mind /mental disorder ground as a basis for voidable marriage was summarised by the Law Commission in its report entitled Family Law Report on Nullity of Marriage dated 13 December 1970 :

‘ 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 Matrimonial Causes Act 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 (see paragraph 12) should render the marriage voidable, as in such a case the marriage is, for practical purposes, valid unless success‑fully 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 parties 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 marriage should render a marriage voidable and not void.’

20.  The Law Commission further recommended the codification of the law on nullity :

‘ 95. One of the confusing features of the law of nullity is that the grounds on which a marriage may be annulled have never been comprehensively set out in the statute law. Whereas practitioners can see by a glance at one statute (formerly the Matrimonial Causes Act 1965 and, after 1 January 1971, the Divorce Reform Act 1969) what are the grounds of and bars to a petition for divorce or judicial separation, this is impossible in the case of nullity which, as the foregoing discussion will have shown, is based partly on provisions in the Marriage Act 1949 and the Matrimonial Causes Act 1965 and partly on judge‑made law. We accordingly recommend that as a step towards the complete codification of Family Law, which is our ultimate objective, the opportunity should be taken to state comprehensively when a nullity decree can be obtained. This is done in the Draft Bill in Appendix A.’

21.  Coming back to Hong Kong, in the Explanatory Memorandum to the proposed MCO 1973, the Attorney General stated :

‘ 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 Matrimonial Causes Ordinance so as to adopt the provisions of these two English Acts, with such modifications as are necessary to meet the circumstances of Hong Kong.’ (emphasis added)

22.  As seen earlier, the codification of the NMA 1971 involved both the statute law and judge‑made law, in my view, clearly it could not be the intention of the MCO 1973 that the rule should continue to exist separately despite the stated purpose of adopting the NMA 1971 as the Hong Kong legislation.  The statement by the Attorney General that the adoption was with modifications as were necessary to meet the local circumstances did not evince an intention that the rule is being retained under the sweeping up provision of section 20(1)(b). 

23.  Even if, for the purpose of argument, the rule continued to exist in Hong Kong despite the express provision of the DO 1932, I am of the firm view that by the time of MCO 1973, lack of consent by reason of unsoundness of mind /mental disorder can only form the basis of a voidable marriage.  It would be most strange that in order to ascertain what is a void or voidable marriage which concerns the marital status of a person, notwithstanding the existence of a modern matrimonial legislation in the form of the MCO 1973 which spells out clearly and expressly all the grounds for a void and voidable marriage, a person has to look for some old dusty rule which existed in a bygone and less enlightened era before knowing what his or her true marital status is.  It cannot be the intention of the legislature that the marital status of a person is to be determined in such a haphazard manner.  What is more important is that to continue with the rule will perpetuate the confusion that the Law Commission had recommended to be removed.  The confusion caused by the distinction of, on the one hand, a person with unsoundness of mind /mental disorder who married but did not know the nature of the marriage which would render the marriage void under the rule and, on the other hand, a person with such conditions who married but knew the nature of the marriage which will render the marriage voidable under the MCO needs only to be stated to see why the distinction should not be continued.  I can see no rationale basis for maintaining this schism.

24.  I agree with Coleman J that :

‘ 94. 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”.’

25.  As to the existence of the section 20(1)(b) sweeping up provision which is absent from the English legislations, I also agree with Coleman J that whatever else that section might mean or cover, it does not preserve some element relating to the impact of lack of mental capacity through unsoundness of mind having considered the context of the legislative history.

Hon Yuen JA:

26.  This is an appeal from the Decision dated 11 August 2020 (“the Decision”) [2020] HKCFI 1243 of Coleman J (“the Judge”) who struck out a pleading that a marriage was invalid and/or null and void in the circumstances set out below.  

27.  The matter concerns Lui Kwan Cheung (“the Deceased”) who was born in 1929 and who died on 31 July 2014, aged 85.  The plaintiff is his nephew (“the nephew”), the son of the Deceased’s elder brother, who claims that in 1994, the Deceased made a Chinese will (“the 1994 Will”) in which he and other members of the Lui family (as well as Madam Ng, see below) were beneficiaries.  The defendant (“Madam Ng”) claims to be the Deceased’s widow who married him (then aged 81) at his home on 1 August 2010 (“the August 2010 Marriage”).   She also claims that the Deceased had made a will on 21 August 2010 (“the August 2010 Will”), 20 days after the Marriage, in which she was appointed sole executrix and beneficiary.  She was granted probate of the August 2010 Will on 1 December 2015. 

28.  The nephew claims that the Deceased had never married and had no children.  He alleges that as far as the Lui family was concerned, the Deceased had never acknowledged Madam Ng as his wife.  His father (the Deceased’s elder brother) died in May 2010, and since late 2010, the Lui family had started to lose contact with the Deceased.  He claims that it was only in 2018 that Madam Ng informed him of the August 2010 Marriage, the August 2010 Will, the Deceased’s death some 4 years earlier, and the grant of probate to her. 

29.  Importantly, the nephew claims that the Deceased (a) did not have the mental capacity to enter into the August 2010 Marriage, which he claims was thus void (and not just voidable); and (b) did not have the mental capacity to make the August 2010 Will, which he claims was thus void, and/or that the Deceased had been unduly influenced by Madam Ng in making it.  In respect of (b), it is notable that if the August 2010 Marriage was valid, it would revoke the 1994 Will under s.14 of the Wills Ordinance, Cap. 30 in any event.   

30.  In 2019, the nephew commenced proceedings against Madam Ng.  Among other things, he alleged in the Statement of Claim (“SOC”) that in a pleading in another action in 2019 (HCA635/2019), Madam Ng had stated that in June 2010 (ie before the date of the August 2010 Marriage and August 2010 Will), Dr F Y T Lau had (a) diagnosed the Deceased as suffering from “an advanced stage of Alzheimer’s disease and is not capable of handling his daily business completely”, and (b) said in his report that the Deceased had told him he has “given away various assets to whom he did not remember”.  The nephew sought (among other things) declarations referred to in paragraph 29 above.    

31.  On 16 July 2019, Madam Ng issued a summons for an order that the SOC be struck out in whole, alternatively, in part, on all or any of the grounds in Order 18 rule 19 of the Rules of the High Court and/or the inherent jurisdiction of the court, on the grounds that: (a) annulment of the August 2010 Marriage is barred under s.20(4) Matrimonial Causes Ordinance Cap. 179 (“MCO”) and/or upon the death of the Deceased; (b) the nephew lacked locus standi; and (c) the nephew’s claim was barred by res judicata and/or in its wider sense.  Section 20(4) MCO provides that the court shall not grant a decree of nullity on the ground that the marriage was voidable on the grounds of (among other things) unsoundness of mind or mental disorder, unless the court is satisfied that the proceedings were instituted within 3 years from the date of the marriage. As mentioned above, the nephew’s case was that the marriage was void, not just voidable.         

32.  On 11 December 2019, Master Hui dismissed Madam Ng’s summons.  On her appeal, as mentioned earlier, the Judge struck out those parts of the SOC in which the nephew claims the August 2010 Marriage was void. 

33.  This is the nephew’s appeal.  Madam Ng filed a Respondent’s Notice on 17 February 2021 to affirm the Decision on an additional or an alternative ground.       

34.  This Judgment is concerned only with the issue whether it is arguable (for the purpose of a strike-out application) that the August 2010 Marriage was void.

35.  The crux of the appeal lies in the construction of s.20 MCO.  In the present case, the marriage took place after 1 July 1972. For marriages which took place before that date, the original s.20 (“the original s.20”) applies.  As a matter of completeness, the material differences between the original s.20 and the current s.20 are that:

(1) the original s.20(1)(d) provides that a marriage shall be void on the ground that “the marriage is invalid by the law of the Colony”, whereas the current s.20(1)(b) provides that a marriage shall be void on the ground that “the marriage is otherwise invalid by the law of Hong Kong”;

(2) the original s.20(2)(b) provides that a marriage shall be voidable on the ground that at the time of the marriage, a party “(i) was of unsound mind, or (ii) was a mentally disordered person within the meaning of the Mental Health Ordinance (Cap. 136) 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”, whereas the current s.20(2)(c) (set out in paragraph 36 below) has reformulated the ground relating to unsoundness of mind; the current s.20(2)(d) (see paragraph 36 below) has reformulated the ground relating to mental disorder; and there is no ground relating to insanity;

(3) the original s.20(3)(b) provides that proceedings for annulment under the above grounds must be instituted within 1 year from the date of the marriage, whereas the current s.20(4) has extended this period to 3 years.             

The statutory provisions

36.  For ease of reading, the material parts of s.19 and the current s.20 MCO are repeated here:

“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) [non-consummation due to incapacity];

(b) [wilful refusal to consummate];

(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) [venereal disease];

(f) [pregnancy by another person].

(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.

…

(Emphasis Added)

37.  Section 20B of the MCO further provides:

“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.”

The Decision

38.  The Judge conducted a historical review of the statutory provisions relating to nullity of marriage in England and in Hong Kong.  In essence, the Judge held that:

(1)  Section 20(1) MCO set out grounds rendering marriages void, none of which applies to the present case.  Sections 20(2)(c) and (d) MCO set out grounds rendering marriages voidable only (as opposed to void) and are intended to provide a comprehensive code dealing with all matters where a marriage might be affected by “unsoundness of mind” (Decision §95).

(2)  The legislative purpose of the MCO, enacted in 1973, was to bring into Hong Kong law the effect of the Nullity of Marriage Act 1971 (“NMA 1971”).  The intention of the NMA 1971 was to codify the law on nullity.  It made no sense for the intended codification to be undermined by maintaining an incompatible coexistent element of the old common law, ie. the lack of mental capacity of a party to the marriage rendering the marriage void (as opposed to voidable) (Decision §§94 and 102).

39.  The Judge concluded that on a proper construction of s.20 MCO, the plea that the August 2010 Marriage was void was not open to the nephew as a matter of law (Decision §§153-154).

Grounds of Appeal

40.  In this appeal, Mr Paul Shieh SC, leading counsel for the nephew (leading Mr Anson Wong SC and Mr Billy NP Ma) submitted as follows:

(1)  The references to “unsound mind”, “mental disorder” or “insanity” (under the original s.20(2)(b), see paragraph 35 above) as grounds for rendering a marriage voidable do not have the effect of displacing the general law that a marriage is void where one party lacks mental capacity to understand the nature of marriage.[1]

(2)  The situation in England is different from that in Hong Kong.  The general law was displaced in England as there was no “preserving” provision as in s.20(1)(b) MCO, i.e.that “the marriage is otherwise invalid by the law of Hong Kong”.[2] The Judge’s construction does not give any meaningful effect to s.20(1)(b).[3]

(3)  In reaching his conclusion on the legislative intent of the MCO, the Judge overlooked the statements in the legislative materials that the successive Hong Kong ordinances were not intended to make new law.[4]

(4)  The Judge’s construction would lead to an absurd result and permit ready abuse by unscrupulous persons who marry seriously mentally incapacitated person with a view to revoking their pre-existing wills.[5]

Discussion

The relevant statutory provisions

41.  The statutory provisions in s.20(1) and s.20(2) MCO make a clear distinction between grounds for a “void” marriage and grounds for a “voidable” marriage.  Section 20B provides that in the case of a voidable marriage, the marriage is treated as if it had existed up to the time a decree of nullity is granted.

42.  As can be seen from s.20(1) MCO, the grounds on which a marriage shall be “void” are specified in the 4 sub-paragraphs (a) to (d).  None expressly refers to mental incapacity.  On the other hand, expressions relating to mental incapacity, such as “unsoundness of mind” (s.20(2)(c)) and “suffering … from mental disorder” (s.20(2)(d)), can be found in s.20(2) setting out the grounds on which a marriage is voidable.

43.  Mr Shieh relied heavily on s.20(1)(b) MCO, ie. the ground that “the marriage is otherwise invalid by the law of Hong Kong”.  He submitted that:

(1)  there exists a common law rule that a marriage is void where one of the parties lacked the mental capacity to understand the nature of marriage at the time of its celebration (“the Common Law Rule”); and

(2)  the Common Law Rule has always been part of Hong Kong law, and has been preserved by s.20(1)(b) MCO.

44.  In light of the way in which these submissions have been advanced, it is necessary to consider the historical context in which the Common Law Rule originated and developed, and the successive legislation in England, before addressing the position in Hong Kong and its successive legislation.

The Common Law Rule and the position in England

The Common Law Rule

45.  The Common Law Rule originated from a doctrine of canon law which was adopted by ecclesiastical law: The Law Commission’s Report on Nullity of Marriage (1970) (“1970 LC Report”), §11.  An exposition of the Common Law Rule can be found in the early English authorities of Turner v Meyers, falsely calling herself Turner and Browning v Reane.

46.  In Turner v Meyers, the husband, after recovering from insanity, brought proceedings to annul a marriage on the ground of his insanity at the time of the marriage.  The court pronounced the marriage null and void (at 423).  Sir William Scott held that “a party may come forward to maintain his own past incapacity” and that “a defect of incapacity invalidates the contract of marriage” for “want of consent” (at 415-417).    

47.  In Browning v Reane, the husband sought administration of the effects of his wife who died intestate.  The wife’s nephew alleged that at the time of the marriage, the deceased was incapable of contracting a marriage due to her mental deficiency.  The court held that the marriage was null and void.  I would focus on the italicised passages in the judgment of Sir John Nicholl (at 69-70), who notably referred to the two specific causes of mental incapacity, ie. idiocy and lunacy:

“Upon the law of the 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, want of reason; without a competent share of which, as no others, so neither can the matrimonial contract be valid. It was formerly adjudged that the issue of an ideot was legitimate, and, consequently, that his marriage was valid. A strange determination! since consent is absolutely requisite to matrimony; and neither ideots, 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. It is not material whether the want of consent arises from ideotcy or lunacy, or from both combined: nor does it seem necessary, in this case, to enter into any disquisition of what is ideotcy, and what is lunacy; complete ideotcy, total fatuity from the birth, rarely occurs; a much more common case is mental weakness and imbecillity, increased as a person grows up and advances in age, from various supervening causes, so as to produce unsoundness of mind. Objects of this sort have occurred to the observation of most people. If the incapacity be such, arising from either or both causes, that the party is incapable of understanding the nature of the contract itself, and incapable, from mental imbecillity, 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. The exact line of separation between reason and incapacity may be difficult to be found and marked out in the abstract; though it may not be difficult, in most cases, to decide upon the result of the circumstances; and this appears to be a case of that description, the circumstances being such as to leave no doubt upon my mind.” (Emphasis added)

48.  The above judgment was based on the Common Law as derived from ecclesiastical law.  Separately however, there was legislation dealing with marriages of lunatics found by inquisition.  The Marriage of Lunatics Act 1811 provided that if any person who has been found lunatic by any inquisition marries before he or she is declared sane by the Lord Chancellor, such marriage shall be null and void.  This Act, however, only applied to lunatics found by inquisition, and it has been said that lunatics were “rarely so found by inquisition”: Halsbury’s Statutes of England, Vol 1 (1930), at p.15.  This Act was repealed by the Mental Health Act 1959: 1970 LC Report, at p.26 (footnote 3). 

49.  In 1857, the jurisdiction which the ecclesiastical courts had previously exercised in relation to nullity proceedings was transferred to the common law courts under s.2 Matrimonial Causes Act 1857 (“MCA 1857”): Ross Smith v Ross Smith [1963] AC 280 at 313-314.  The MCA 1857 itself did not specify any statutory grounds upon which a marriage may be rendered void or voidable.

Statutory grounds of voidability

50.  It was not until 1937 that s.7 Matrimonial Causes Act 1937 (“MCA 1937”) provided, for the first time, statutory grounds on which a marriage shall be voidable.  Section 7(1)(b) MCA 1937 provided that “in addition” to any other grounds (which would include grounds under the Common Law) on which a marriage is by law “void or voidable” (“the introductory words”), a marriage shall be voidable on the ground that 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”.  According to the commentary in Halsbury’s Statutes of England, Vol 30 (1937) at p.340, the “old rule of mental capacity” was not revoked, and marriages of persons who were incapable by reason of mental illness of understanding the nature of the obligation they undertook were still “absolutely void”.

51.  Section 7(1)(b) MCA 1937 subsequently became s.8(b) Matrimonial Causes Act 1950 (“MCA 1950”).  In the commentary on this provision in Halsbury’s Statutes of England, Vol 43 (1950) at p.398, it was stated that the marriage of a person who was “insane or of weak intellect” was void by reason of absence of consent, whereas s.8(b) MCA 1950, which renders a marriage voidable, applies to cases where a person was “adjudged to have been capable of giving consent though mentally unsound”. This again indicates that the Common Law Rule remained in co-existence, as acknowledged in s.7(1)(b) MCA 1937 (see paragraph 50 above).

52.  Indeed, in Re the Estate of Park, deceased, the defendant argued in a probate action that the deceased’s marriage to the plaintiff was null and void as the deceased was mentally incapable of appreciating the nature of the marriage contract at the time of the marriage (at 113-114).  Although the defendant’s argument was not made out on the evidence, the English Court of Appeal referred to the line of cases on the Common Law Rule (including Browning v Reane) at 122, thus showing that the Common Law Rule continued to exist and apply to situations of mental incapacity rendering the marriage void.

53.  Section 8(b) MCA 1950 later became s.9 Matrimonial Causes Act 1965 (“MCA 1965”).

The Law Commission 

54.  In 1968, the Law Commission in England (“the LC”) published Working Paper No. 20 on Family Law Nullity of Marriage (“the 1968 LC Working Paper”).  In the section headed “Insanity”, it was stated at §20 that “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” (emphasis added).  It went on to set out tests for capability of giving consent.  In the section headed “Should insanity and lack of consent make a marriage voidable instead of void?”, the LC said at §46 that “On balance we think that insanity at the time of marriage – that is, absence of mental capacity to understand the nature of marriage (see para.20) – shall continue to render a marriage void”.

55.  It is notable however, that when the LC published the 1970 LC Report, there was a sea change in its position.  Departing from its recommendation in §46 of the Working Paper, the LC reported at §§14 and 15 of the 1970 LC Report:

“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 Matrimonial Causes Act 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 (see paragraph 12) 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 parties 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 marriage should render a marriage voidable and not void.” (Emphasis added)

56.  In §95 of the 1970 LC Report, the LC recommended a comprehensive codification of the law on nullity as follows:

“One of the confusing features of the law of nullity is that the grounds on which a marriage may be annulled have never been comprehensively set out in the statute law. Whereas practitioners can see by a glance at one statute (formerly the Matrimonial Causes Act 1965 and, after 1 January 1971, the Divorce Reform Act 1969) what are the grounds of and bars to a petition for divorce or judicial separation, this is impossible in the case of nullity which, as the foregoing discussion will have shown, is based partly on provisions in the Marriage Act 1949 and the Matrimonial Causes Act 1965 and partly on judge-made law. We accordingly recommend that as a step towards the complete codification of Family Law, which is our ultimate objective, the opportunity should be taken to state comprehensively when a nullity decree can be obtained. This is done in the Draft Bill in Appendix A.” (emphasis added)

57.  In §96 of the 1970 LC Report, the LC summarised its recommendations thus:

(a) that 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 …”  referencing a draft Bill in Appendix A of the Report; and

(c) that lack of consent, “whether due to unsoundness of mind, … or otherwise, should render a marriage voidable, not void”, referencing clause 2(1)(c) of the draft Bill, which provided that a marriage shall be voidable if “either party to the marriage did not validly consent to it, whether in consequence of … unsoundness of mind or otherwise”.  It is stated in the explanatory notes to clause 2(1)(c) that “Ground (c) is at present probably a ground on which the marriage is void. … As a result of this section, it becomes a ground on which the marriage is voidable …”.  The LC’s recommendation that the Common Law Rule on this aspect should be changed is thus crystal clear.

Nullity of Marriage Act 1971 (“NMA 1971”)   

58.  The recommendations in the 1970 LC Report led to the enactment of the NMA 1971.  The long title provides that the Act was to “restate, with certain alterations, the grounds on which a marriage is void or voidable …” (emphasis added).  Section 1 sets out expressly that a marriage shall be void on the following grounds “only” ie. the grounds in (a) to (c).  There is no ground relating to any form of mental incapacity.  Further, it is notable that the introductory words “in addition to any other grounds on which a marriage is by law void or voidable” (eg s.7(1)(b) MCA 1937, by which the Common Law Rule was “preserved”, see para. 50 above) have been deleted.  Section 2 then provides that a marriage shall be voidable on the grounds: (c) “that either party to the marriage did not validly consent to it, whether in consequence of … unsoundness of mind or otherwise”; or (d) “that at the time of the marriage either party, though capable of giving a valid consent, was suffering (whether continuously or intermittently) 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”.   

59.  Section 2(c) of the NMA 1971 eventually became s.12(c) Matrimonial Causes Act 1973 (“MCA 1973”).

60.  It is clear from the above review of the English position that after the enactment of the NMA 1971, the Common Law Rule for annulment of marriage due to mental incapacity no longer co-exists with the statutory provisions.

The position in Hong Kong

Divorce Ordinance 1932 (“DO 1932”)

61.  The starting point for the analysis of the position in Hong Kong is the first statute providing for divorce, ie. the Divorce Ordinance 1932 (“DO 1932”).  As stated in its long title, the purpose of DO 1932 was to confer on the Supreme Court jurisdiction in divorce and matrimonial causes.  Section 3 provided that “subject to the provisions in this Ordinance”, the court shall in all suits and proceedings hereunder act and give relief on principles which in the opinion of the court are, as nearly as may be, conformable to the principles on which the High Court of Justice in England for the time being acts and gives relief in matrimonial proceedings.

62.  The DO 1932 pre-dated the MCA 1937 in England. The legislative materials suggest that the DO 1932 “[followed] closely the precedent of Straits Settlements Ordinance No. 123” (“SSO No.123”): Hong Kong Hansard (20 October 1932), at p.211 (see paragraph 67 below). 

63.  In DO 1932, the court was given jurisdiction to declare a marriage void (as opposed to voidable).  Sections 12 and 13 DO 1932 provide that:

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

13. 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.” (Emphasis added)

64.  Importantly, the express references to “lunacy” and “idiocy” in s.13(c) DO 1932 (which followed the language of s.13 (c) SSO No.123) catered for the two causes of mental incapacity rendering a marriage void under the Common Law Rule, as referred to by Sir John Nicholl in Browning v Reane (quoted in para 47 above).[6]  Whilst the terms “lunatic” and “idiot” themselves were not defined in the DO 1932, they have been used for some time in England: the term “lunatic” signifies one “who has had understanding, but, by disease, grief, or other accident, hath lost the use of his reason”, whereas the term “idiot” signifies a person who “has been without understanding from his nativity, and whom the law therefore presumes never likely to attain any”: Shelford on Lunatics, Idiots and Persons of Unsound Mind (2^nd Ed, 1847), at pp.2 and 4.  Be that as it may, it is clear from Sir John Nicholl’s references to these two specific terms in Browning v Reane that at Common Law, these were regarded as the two causes of mental incapacity rendering a marriage void, and it was precisely these two terms that were referred to in s.13(c) SSO No.123 and s.13(c) DO. It may thus be concluded that the legislature in enacting s.13(c) DO 1932 had thereby codified the Common Law Rule that lack of mental incapacity rendered a marriage void. 

65.  Mr Shieh submitted that there is a general presumption that the legislature does not intend to make changes to the common law, and that there is nothing to suggest that s.13(c) DO 1932 expressly or impliedly displaced the Common Law Rule.[7]  In my view however, it is clear from the “lunatic or idiot” ground, incorporated in light of the Common Law Rule discussed in Browning v Reane, that the legislature did indeed intend to codify the Common Law Rule in the form of s.13(c).

66.  Mr Shieh also contended that s.13(f) DO 1932 (“the marriage is invalid by the law of the Colony”) preserved the Common Law Rule, notwithstanding s.13 (c) DO 1932.  However, it is a well-established principle of statutory construction that where the literal meaning of a general enactment covers a situation for which specific provision is made by some other enactment within the legislation, it is presumed that the situation was intended to be dealt with by the specific provision: Bennion, Bailey and Norbury on Statutory Interpretation (8^th Ed), at §21.4.  In other words, since the Common Law Rule was codified in the specific provision in s.13(c) DO 1932, the same could not have been preserved simultaneously under the general provision in s.13(f).  Therefore, I do not accept the argument that the Common Law Rule co-existed (via s.13(f)) with s.13(c), and continued to be “preserved” through the successive re-enactment of s.13(f) in various forms in the subsequent statutes.

67.  Mr Shieh submitted that s.13(f) DO 1932 (“the marriage is invalid by the law of the Colony”) would otherwise have no meaning.  It seems to me that it is for Mr Shieh and his team to persuade the court that that subsection was intended to preserve the Common Law Rule, notwithstanding s.13(c) DO 1932 and the discussion in the preceding paragraph. He has not referred to any legislative materials to that effect.

68.  The Attorney General in moving the first reading of the bill, did not refer to the nullity provisions.  Certainly, he did not say that the purpose of s.13(f) DO 1932 was to “preserve” the Common Law Rule, notwithstanding s.13(c) DO 1932. 

69.  While it is not necessary in this appeal for the court to suggest a purpose for s.13(f) DO 1932, it would be noted that the corresponding provision is s.13(f) SSO No.123.  This provides that a marriage may be declared null and void on the ground “that the marriage is invalid by the law of the place in which it was celebrated”.            

70.  The Hong Kong version of s.13(f) (ie. DO 1932) refers to “the marriage is invalid by the law of the Colony”.  But whether the SSO No.123 version or the DO 1932 version of s.13(f) is considered, what is striking is that while the other grounds in s.13 deal with the personal aspects of the parties (impotence, consanguinity, mental incapacity, adultery, fraudulent conduct), s.13(f) focuses on the validity of the marriage itself (e.g. a marriage is void if it was not legally celebrated, now by the Registrar, a minister or a civil celebrant: s.27 (2) Marriage Ordinance Cap.181).  

71.  Finally, I do not accept the nephew’s alternative argument that the Common Law Rule was incorporated as part of Hong Kong law by `virtue of s.3 DO 1932 (see paragraph 61 above).[8] Such an argument is inconsistent with the opening words of the provisions, ie. “[subject] to the provisions contained in this Ordinance”, and as discussed above, s.13(c) had already given effect to the Common Law Rule.

Divorce Amendment Ordinance (“DAO 1956”)

72.  Sections 12 and 13 DO 1932 were repealed by the Divorce (Amendment) Ordinance 1956 (“DAO 1956”).  The replacement sections provided, for the first time in Hong Kong, the two different concepts of void and voidable marriages.  The new sections 12 and 13 provided that:

“12. 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 13.

13. (1) A marriage shall be void on any of the following grounds-

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

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

(c) 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;

(d) 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;

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

(2) A marriage shall be voidable on any of the following grounds-

…

(c) that either party to the marriage was at the time of the marriage of unsound mind or subject to recurrent fits of insanity or epilepsy;

…” (emphasis added)

73.  The additional ground in s.13(2)(c) is modelled on part of s.8(b) of the MCA 1950 (“either party to the marriage was at the time of the marriage of unsound mind …”).  This is supported by the following legislative materials:

(1)  In moving the Divorce (Amendment) Bill 1956 (“DA Bill 1956”), the Attorney General stated that the Bill “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” (emphasis added): Hong Kong Hansard (23 May 1956), at p.243.

(2)  In §1 of the Objects and Reasons for the DA Bill 1956, it is stated that the object of the amendment was to bring the provisions in Hong Kong “more in line with the [MCA 1950], particularly with regard to the grounds on which decrees may be made”: Hong Kong Hansard (23 May 1956), at p.244.

(3)  Further, it was stated in §3 of the Objects and Reasons (Hong Kong Hansard (23 May 1956), at p.246) that:

“3. Provisions relating to decrees for nullity of marriage and the grounds on which such decrees may be made are contained in sections 12 and 13 of the principal Ordinance. All these grounds are permitted under the English law but are not specifically mentioned in the Matrimonial Causes Act, 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.” (emphasis added)

74.  In DAO 1956, s.13(c) and s.13(f) DO 1932 were repealed and replaced by the new s.13(1)(b) DAO 1956 (a marriage is void if either party was a lunatic or idiot) and s.13(1)(e) DAO 1956 (the marriage is void if invalid by the law of the Colony) respectively.  The new s.13(2)(c) DAO 1956 added a ground of voidability if either party was at the time of the marriage of unsound mind, or subject to recurrent fits of insanity.

Matrimonial Causes Ordinance 1967 (“MCO 1967”) 

75.  The DO 1932 (as amended by the DAO 1956) was replaced by the Matrimonial Causes Ordinance 1967 (“MCO 1967”).  Part IV dealt with nullity.  Section 20(1) set out 4 grounds on which a marriage shall be void, which did not include the “lunatic or idiot” ground, although the “invalid by the law of the Colony” ground remained as s.20(1)(d) MCO 1967.   Section 20(2) set out the grounds on which a marriage shall be voidable, and the “unsound mind” ground introduced by the DAO 1956 was expanded to include a “mentally disordered person” within the meaning of the Mental Health Ordinance 1960.

76.  The legislative materials did not explain why the “lunatic or “idiot” ground, which was the Hong Kong statutory codification of the Common Law Rule, then still co-existing in England, was removed.  The materials in the Hansard did not suggest whether the legislature intended either to remove, alternatively to restore, the Common Law Rule, having codified it for the past 4 decades.  Part IV only merited one sentence in the statement of Objects and Reasons (“Part IV (nullity) introduces no new law”).  The Attorney General, moving the first reading, said that “English law on matrimonial causes was consolidated in the [MCA 1965] which is followed closely by the Bill”, which was said to “introduce little new matters”: Hong Kong Hansard (21 December 1966), at p.447. 

77.  As noted earlier, the legislative materials are silent as to the removal of the “lunatic or idiot” ground in the MCO 1967.  There are two competing views regarding the effect of such removal on the applicability of the Common Law Rule in Hong Kong.

(1)  The first view is that the legislature in Hong Kong removed the Common Law Rule as previously codified in s.13(c) DO 1932 and s.13(1)(c) DAO 1956.  Accordingly, the Common Law Rule no longer had any application in Hong Kong, whether in statutory form or otherwise.

(2)  The second view is that the Hong Kong legislature wanted to follow the position in England, which at the time was that the Common Law Rule remained co-existent alongside the MCA 1965.  In other words, even though Hong Kong had for many decades codified the Common Law Rule by way of the “lunatic or idiot” ground in s.13(c) DO 1932, the legislature decided to do away with the codified provision and to restore the Common Law Rule to follow the position in England.

78.  In my view, the first view represents the correct position.

79.  As pointed out by Mr Robert Pang SC leading counsel for Madam Ng (leading Mr Jeff TF Yau),[9] s.55 MCO 1967 provided that DO 1932 was repealed in its entirety, including s.13(c) (the lunatic or idiot ground).  It would be circuitous for that express ground to be repealed, only to be impliedly and silently re-introduced by the re-application of the Common Law Rule, without any discussion in the legislature.

80.  More importantly, the co-existence of the Common Law Rule in England had always been acknowledged in the introductory words “[in] addition to any other grounds on which a marriage is by law void or voidable” in s.9(1) MCA 1965.  However, these introductory words are absent from the MCO 1967.  If it were to be said that the legislature wished to re-introduce the Common Law Rule by following the MCA, one would have expected to see these words, but they have been omitted from the MCO.

81.  Further, as discussed in paragraphs 66-70 above, the ground of “invalid by the law of Hong Kong” is not a substitute for those introductory words as that ground had always co-existed with the express “lunatic or idiot” ground since DO 1932.

82.  Mr Shieh relied on the one sentence in the Objects and Reasons that Part IV “introduces no new law”.[10]  Whilst I understand the sentiment that the Attorney General might have been expected to draw the attention of the legislature to the effect of the repeal of s.13(c) DO 1932, the point remains that the court should ascertain the legislative intent from the clear content of the legislation.

83.  Accordingly, I am of the view that with the passing of the MCO 1967, the “lunatic or idiot” ground in s.13(c) DO 1932 (amended as s.13(1)(b) DAO) was repealed, and the Common Law Rule was not revived or restored.

MCO 1967 (amended in 1972)

84.  After the enactment of NMA 1971 in England, parts of MCO 1967 were amended by the Matrimonial Causes (Amendment) (No 2) Bill 1972 (“MCA 1972 Bill”).  The amendment was to adopt the law governing nullity as codified by NMA 1971.  As stated by the Attorney General (Hong Kong Hansard (12 April 1972), at pp.655 and 657):

“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 Matrimonial Causes Ordinance so as to adopt the provisions of these two English Acts, with such modifications as are necessary to meet the circumstances of Hong Kong” (Emphasis added).

85.  The relevant Explanatory Memorandum to the 1972 Bill also provides that:

“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.” (Emphasis added)

86.  Given the clear intention of the Hong Kong legislature to adopt the provisions of the NMA 1971 as codified in England, there is no room for the contention that the Common Law Rule has still been preserved as part of Hong Kong law.

87.  As mentioned above, the NMA 1971 was the statute implementing the recommendations in the 1970 LC Report.  It was also the statute upon which the 1972 Bill in Hong Kong was modelled.  The purpose of the enactment of the NMA 1971 was to provide a comprehensive codification of the law on nullity of marriage and to set out exclusively the grounds rendering a marriage void or voidable on a statutory basis.  As the LC noted in the 1970 LC Report, this codification exercise was intended to address the confusion arising from the pre-existing state of the law, which involved looking at both statute law and judge-made law in order to ascertain the grounds for nullity of marriage.    

88.  Mr Shieh contends that the absence of the Common Law Rule would lead to loopholes and absurd results.  He argues that it would not be possible for a mentally incapacitated person to seek an annulment of marriage on the “voidable” grounds under ss.20(2)(c) and (d) MCO, for which there is a 3-year limitation under s.20(4) MCO.

89.  However, the LC had considered the very issue and addressed it in §§14(e) and 85 of the 1970 LC Report.  The LC pointed out that “there would be no serious risk of hardship since proceedings could be taken on the patient’s behalf within three years”.  See also the Decision at paragraphs 34-35. 

90.  In summary, it is clear that:

(1)  the Common Law Rule was a judge-made rule with its origin in canon law and ecclesiastical law in England;

(2)  the Common Law Rule was codified in s.13(c) DO 1932 in Hong Kong, though not in England where it co-existed with statutory provisions until NMA 1971;

(3)  the Common Law Rule ceased to exist in Hong Kong with the enactment of MCO 1967 when s.13(c) of the DO 1932 was repealed;

(4)  in any event, by the time of the passing of the 1972 amendment to the MCO 1967, the Common Law Rule must have ceased to exist in Hong Kong, when the Hong Kong legislature adopted the provisions in NMA 1971 which act was intended to provide a comprehensive statutory code setting out the grounds on which a marriage shall be void.

91.  The Judge was therefore with respect correct to strike out the parts of the SOC which sought to plead that the August 2010 Marriage was null and void on the ground that the Deceased had no mental capacity at the time of the marriage. 

Supplemental submissions

92.  After the hearing of this appeal, the parties filed supplemental submissions on §1A of the Re-Amended Notice of Appeal pursuant to the directions of the court.  The additional ground raised by Mr Shieh is also premised upon the applicability of the Common Law Rule.  In light of the conclusion above, it is unnecessary to deal with the supplemental submissions or the Respondent’s Notice.

Order

93.  For the above reasons, the appeal should be dismissed with an order nisi that the costs of the appeal be paid by the Plaintiff to the Defendant, to be taxed if not agreed, with certificate for two counsel.

Hon Chow JA:

94.  I agree with the judgments of Cheung JA and Yuen JA.