CHAN CHIU LAM AND OTHERS v. YAU YEE PING

CACV 23/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 23 OF 2000

(ON APPEAL FROM HCAP 6/1991)

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J U D G M E N T

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Hon Rogers JA :

Introduction

1. This is an appeal from a judgment of Keith JA of 17 September 1999 and a cross appeal by the plaintiffs in the same action. Effectively the appeal is against that part of the order which arose from the judgment handed down on 17 September 1999 and the cross appeal arises from that part of the order which is based on the judgment dated 24 April 1998.

Background facts

2. Sung Chuen Pao, alias Robin C.P. Sung, was evidently born in China. He lived in Shanghai in the early part of the last century. On 22 September 1929, he married Chan Chiu Lam, the 1st plaintiff, in Shanghai in what is referred to as a Chinese customary marriage. Madam Chan bore no children.

3. On 1 May 1933, Mr Sung took Madam Sung So Chun as his concubine. At that time, Mr Sung still lived in Shanghai and Madam Sung bore three children by him. Two were sons. One died in 1977 and the other in 1990. The daughter was Suen Toi Lee. She is the 2nd plaintiff. The younger of the two sons, Suen Ming Sheng was also referred to in the judgments below by his nick-name Momo.

4. In December 1945, Mr Sung, who was still living in Shanghai, took a Madam Chu Lee as his second concubine. There is no dispute between the parties that when Mr Sung took Madam Sung So Chun and Madam Chu Lee as his concubines he did so with the consent of his family, and in particular his wife, and that they were accepted as part of the family.

5. In December 1947, Mr Sung and Madam Chan adopted a daughter, Suen Mei Lee. She is the 3rd plaintiff. The 3rd plaintiff was the daughter of Mr Sung's younger sister.

6. Mr Sung came to Hong Kong in 1951 and Madam Chu Lee joined him in Hong Kong in 1952. Madam Chan, his wife, and Madam Sung remained in Shanghai.

7. In 1983, Madam Sung So Chun, the first concubine, died. In 1985, Mr Sung died intestate in Hong Kong.

8. In 1987, Madam Chu was granted letters of administration in respect of Mr Sung's estate. That grant was, apparently, on the basis of a supporting affirmation which stated that Madam Chu was Mr Sung's lawful "kit fat" widow, that Mr Sung had had no wife or concubine apart from her and that Mr Sung had had no children.

9. Later that year, Madam Chu herself died intestate in Hong Kong. After her death, Madam Chu Wan Hing, Madam Chu Lee's sister, applied for letters of administration in respect of Madam Chu Lee's estate. Before any letters of administration were granted, this action was commenced. Madam Chu Wan Hing was therefore appointed to represent Madam Chu Lee's estate in this action. Madam Chu Wan Hing died in September 1995 and thereafter, her daughter Madam Yau Yee Ping was appointed to represent Madam Chu Lee's estate.

This action

10. As originally commenced, the claim in this action related to the grant of letters of administration to Madam Chu Lee in respect of Mr Sung's estate. The undisputed facts, which I have outlined above, demonstrate that the supporting affirmation lodged in respect of the application by Madam Chu Lee was ill-founded. That is conceded by the defendant. It is also conceded that the 1st and 3rd plaintiffs were entitled to an order that the grant of letters of administration of Mr Sung's estate to Madam Chu Lee should be revoked and that an account should be taken in respect of Madam Chu Lee's dealings with Mr Sung's estate.

11. The action then proceeded upon the basis that the 2nd and 3rd plaintiffs claimed that by reason of the provisions of the Intestates' Estates Ordinance, Cap. 73, they were entitled to inherit the estate of Madam Chu Lee and entitled to grant of letters of administration.

The judgments of Keith J

24 April 1998

12. Keith J handed down two judgments in this matter. The first was on 24 April 1998. The first matter dealt with by that judgment was in respect of the 3rd plaintiff's claim. This was founded upon section 2(2)(b) and (c) of the Intestates' Estates Ordinance. It was said that Suen Mei Lee, who was adopted, as I have said, in 1947, could claim to be a child or issue of Madam Chu Lee coming within either of those sub-sections. Section 2(2), insofar as is material, reads as follows :-

"References in this Ordinance to a child or issue of any person shall mean -

(b) if that person is a female, a child of a valid marriage to which her last husband and another female were parties; and

(c) a child adopted by that person."

13. Since Suen Mei Lee had been adopted prior to the date on which it was said that Madam Chu Lee became a concubine, clearly, sub-section (c) was irrelevant. The judge went on to hold that sub-section (b) could only apply to a natural child and not to an adopted child. The 3rd plaintiff's claim was thus dismissed. There has been no appeal in respect thereof.

14. In the first judgment, the judge then went on to deal with the claims of the 2nd plaintiff. In doing so, the judge made reference to claims on the part of the estate of Suen Ming Sheng. Whilst it would seem that any claim on the part of the estate of Suen Ming Sheng would stand or fall with the claim on the part of his sister Suen Toi Lee, there was in fact no claim made on the part of his estate and his estate was not represented in these proceedings.

15. The 2nd plaintiff's claim depended on whether she could bring herself within s.2(2) of the Intestates' Estates Ordinance. That, in turn, depended on whether Mr Sung had been Madam Chu's "husband", and on Mr Sung and Madam Sung having contracted a "valid marriage" within the meaning of the Ordinance. For these purposes, para. 2 of the Schedule to the Ordinance was relevant. That provides:

"(1) A child of a union of concubinage shall be regarded for the purposes of the Ordinance as the child of a valid marriage.

(2) The reference in section 2(2)(b) to 'husband' shall be construed as including a reference to the male partner of a union of concubinage."

16. In the first Judgment, Keith J considered that for a relationship between a married man and a woman other than his wife to be regarded as "a union of concubinage", it was not enough to show that the requirements listed in s.13(2) of the Ordinance, namely that the relationship was (i) entered before 7 October 1971 (ii) accepted by the man's wife and (iii) recognised by the man's family, had been fulfilled. It also had to be shown that the union was something other than a union of concubinage de facto, namely that it had to be a union de jure. The Civil Code of the Republic of China which came into effect on the 5 May 1931 made no reference to concubinage. The judge considered the omission to be deliberate and that concubinage had ceased to be recognised in China as a legal status when the Civil Code came into operation. Keith J therefore came to the conclusion that neither Madam Sung nor Madam Chu had entered unions of concubinge within the meaning of s.13(2).

17. At the end of the first hearing, the plaintiffs raised two further points. The first was that Madam Sung and Madam Chu were subsequently recognised as the concubines of Mr. Sung under Chinese law once the Civil Code had been abrogated on 29 September 1949. The second was that Madam Chu was recognised as Mr Sung's concubine under Hong Kong law after they had acquired domicile in Hong Kong prior to the coming into force of the Marriage Reform Ordinance in 1971.

18. The matter was then left to another hearing which took place in September 1999.

The September 1999 decision

19. At the beginning of that hearing, Mr Miu, Counsel for the plaintiffs said that he did not wish to pursue the argument that Mr Sung and Madam Chu had acquired Hong Kong domiciles. The judge then dealt with the issue of whether Madam Sung and Madam Chu were recognised as the concubines of Mr Sung under Chinese law once the Civil Code had been abrogated in 1949. The conclusion that he came to was that since women who had become concubines prior to 29 September 1949 were accorded the same legal rights as those enjoyed by wives in modern China in relation to divorce, matrimonial protection and inheritance and, as such, were far better off under the law than they had been prior to 29 September 1949, it meant that the unions of concubinage to which they were parties were recognised by the law of the People's Republic of China, even though the law did not go so far as to recognise the unions to be valid and lawful. That, in the circumstances, was sufficient to satisfy the provisions of s.13(2) of the Ordinance and, in those circumstances, the 2nd plaintiff (and Suen Ming Sheng) fell within s.2(2) of the Intestates' Estates Ordinance. The result to which he came in the second judgment would thus seem difficult to reconcile with the conclusion reached in the first.

This Appeal and Cross Appeal

20. On this Appeal, the defendant's main contention is that s. 13(2) of the Intestates' Estates Ordinance contemplates a union of concubinage de jure, i.e. one recognised by the applicable personal law as a union of concubinage. S.13 and the Schedule to the Intestates' Estates Ordinance contemplated concubinage as known under customary law. It had been found as a fact that concubinage, as a legal status, was abolished from 5 May 1931 under Book IV of the Civil Code. That finding had not been challenged. The entitlement to legal rights not less than those granted to a concubine under Chinese customary law did not support the existence of the status of concubine because such rights were given to Madam Sung and Madam Chu, not because they were Mr Sung's concubines, but because they were members of Mr Sung's house under Chapters V and VI of Book IV of the Civil Code before 29 September 1949 and had the same rights as wives of Mr Sung under the PRC law after the promulgation of the new law in 1950.

The questions arising on this Appeal

21. It seems to me that the resolution of the question as to whether the 2nd plaintiff is entitled to share in the intestacy of Madam Chu Lee depends on the answer to 2 questions. They arise in this way.

22. Section 4(5) of the Intestates' Estates Ordinance provides :-

"If the intestate leaves issue but no husband or wife the residuary estate of the intestate shall be held on statutory trusts for the issue of the intestate."

23. What constitutes "issue" is dealt with, so far as is relevant to these proceedings, by s.2(2)(b) of the Ordinance, which provides :-

"References in this Ordinance to a child or issue of any person shall mean -

(a) a child of a valid marriage to which that person was a party;

(b) if that person is a female, a child of a valid marriage to which her last husband and another female were parties;"

24. Thus, if the 2nd plaintiff is to lay claim to all or part of Madam Chu's estate, it must be shown that Mr Sung had been Madam Chu's "husband" and that Mr Sung and Madam Sung (the 2nd plaintiff's mother) were validly married. It is in this respect that para. 2 of the Schedule to the Ordinance becomes relevant. That provided :-

"(1) A child of a union of concubinage shall be regarded for the purposes of the Ordinance as the child of a valid marriage.

(2) The reference in section 2(2)(b) to 'husband' shall be construed as including a reference to the male partner of a union of concubinage."

25. Finally, s.13(2) of the Ordinance needs to be considered because that deals with the question of what constitutes a union of concubinage. That, at the relevant time, read as follows :-

"In this section and in the Schedule, 'union of concubinage' means a union of concubinage, entered by a male partner and a female partner before the appointed day under the Marriage Reform Ordinance, under which union the female partner has, during the lifetime of the male partner, been accepted by his wife as his concubine and recognized as such by his family generally."

26. The two questions which thus become relevant on this appeal can be stated as follows :-

(a) Was Madam Chu Lee Mr Sung's concubine within the meaning of s.13(2) at the time of his death?

(b) Was Madam Sung Mr Sung's concubine either at the time of the 2nd plaintiff's birth or at any other time such as to make the 2nd plaintiff a child of that union within the extended meaning of s.2(2)(b)?

Was Madam Chu Lee Mr Sung's concubine at the time of his death?

27. In this respect, I fully appreciate that the plaintiffs abandoned the argument in relation to Mr Sung's domicile having changed to Hong Kong. For the reasons which I will briefly set out below, it would seem that in the period up to 7 October 1971, concubinage was part of the law of Hong Kong. After 1931, concubinage was not part of the then law of law of China, although prior to 1931 it had been.

28. There is no question that in the period up to 1951 and 1952, Mr Sung and Madam Chu respectively were subject to the law of China. The question then arises as to whether in the period between 1952 and 1971 their status became governed by the law of Hong Kong notwithstanding that their domicile is to be taken for the purposes of this appeal as Shanghai.

The Law in China relating to concubinage

29. It is unnecessary to venture into a discussion as to whether the customary law of China, which permitted those who had entered a Chinese customary marriage to take a concubine, rendered the marriage potentially polygamous or permitted a single wife and the taking of concubines who had a quite different status. The former is the conventional approach. The latter is an approach adopted by some of the other authorities, for example, in In re the Estate of Ng Shum (No. 2) [1990] 1 HKLR 67.

30. There is some suggestion, in some of the authorities, that the law as to concubinage may have changed in China in 1911. That, however, does not appear to have been universally accepted and it would seem that concubinage as a status was recognised in China up until the promulgation of the Civil Code of the Republic of China on 5 May 1931. No formality was necessary in respect of the taking of a concubine. No ceremony was necessary.

31. Our attention has been drawn to various provisions in Book IV of the Civil Code but as referred to by the judge below in his first judgment, the provisions appear to be such that they can be summarised to the effect that the Civil Code provided that a man should only have one wife. There was no reference in the Civil Code to concubines. The judge below examined the evidence and the authorities and came to the conclusion that although there was provision in Article 1116 of Chapter 5 for maintenance of Members of the House, who are defined in Chapter 6, Article 1123 as including "persons who are not relatives but who lived together in one household with the object to sharing a life in common permanently ..." which would include persons who were formally concubines, concubinage was not recognised.

32. In my view, the judge below was correct in adopting the approach of the Court of Appeal in Tang Lai Sau-Kiu v. Tang Loi [1987] HKLR 85. At p.91, Sir Alan Huggins VP said :-

"Miss Leong valiantly urged upon us that Cap. V of the Civil Code (relating to maintenance) made provision for maintenance of a t'sip and that it was, therefore, clear that Chinese customary marriages continued after the coming into force of the Code. The answer to that argument is that, although Cap. V thus in effect made provision for the maintenance of a t'sip, it did not do so in her capacity as a t'sip but a 'member of [the] house'; see Article 1114(4)."

33. On 29 September 1949, the Civil Code was abrogated. It was not however until the 30 April 1950 that the new Marriage Law was promulgated. Article 2 of that banned the status of concubinage in specific terms.

34. Hence, it follows from the foregoing that in China after 5 May 1931, the legal status of concubinage could no longer be created. Hence, as regards section 13(2) of the Intestates' Estate Ordinance, no union of concubinage could have been created in respect of persons on account of their having taken or become concubines in Shanghai after 5 May 1931.

The position in Hong Kong

35. For reasons which have been referred to in many authorities, the law of Hong Kong includes the customary law of China as of 5 April 1843. The way in which this came about has been explained most recently in the judgment of Ching PJ in the case Leung Sai Lun Robert and others v. Leung May Ling and others [1999] 1 HKC 605. At p.612, Ching PJ referred to Captain Elliott's proclamation of 2 February 1941 which referred to "... the natives of Hong Kong and all natives of China thereto resorting shall be governed according to the laws and custom of China, every description of torture excepted."

36. He then referred to section 5 of the Supreme Court Ordinance 1873 which provided :-

"Such of the laws of England as existed when the Colony obtained a local legislature, that is to say, on the 5th day of April, 1843, shall be in force in the Colony, except so far as the said laws are inapplicable to the local circumstances of the Colony or of its inhabitants, and except so far as they have been modified by laws passed by the said legislature."

37. Ching PJ continued :-

"The effect of these provisions was that there applied to Hong Kong the Ordinances passed by the local legislature, the common law of England, the statutes of England as they existed on 5th April, 1843, save as modified by the local legislature or save as inapplicable to local circumstances or local inhabitants and Chinese law and custom. It is immediately apparent that the ascertainment and the applicability of Chinese law and custom would cause difficulties. So far as ascertainment was concerned the Courts perforce allowed expert evidence to be given upon it notwithstanding that that law and those customs were a part of our law."

38. The practice of Hong Kong courts of allowing the calling of expert witnesses to prove what had become part of the domestic law is upon analysis a curious feature of our legal system. It was commented upon in, amongst other places, the judgment of Macfee J in the case Lui Yuk-Ping v. Chow To [1962] HKLR 515.

39. The feature of applying the pre-existing law to inhabitants of colonies which had been newly founded was not uncommon in colonial times. It was recognised that in countries where there may be persons of different races and creeds the inhabitants may be governed by the personal laws. See, for example, Attorney-General of Ceylon v. Allen Ellington Reid [1965] AC 720.

Post-1950 developments in Hong Kong

40. It thus came about that after 1950, not only did the law of the People's Republic of China not recognise concubinage but that it was an institution, which was not allowed under the law. In contrast, however, because the customary law was part of the law of Hong Kong, concubinage was permitted in Hong Kong under Hong Kong law applying the customary law of China. Not only was it permitted under the law but it was recognised under the law.

41. There were many other aspects of the application of Chinese customary law requiring clarification with the consequence that, in October 1948, a committee was set up to consider and make recommendations :-

"as to how far Chinese law and custom as existing in 1843 -

(a) is now applicable to Chinese domiciled in Hong Kong or to other Chinese resorting here;

(b) should with or without modification be incorporated by Ordinance into the law of the Colony;

(c) should whether already incorporated or not be superseded with or without modification by the law of the Colony applicable to persons to whom such Chinese law and custom does not apply or by any other law;"

42. That Committee was chaired by the Solicitor General and its report has been known as the "Strickland Report". It was followed in 1965 by a report by the Secretary for Chinese Affairs and the Attorney General known as the "McDouall-Heenan Report".

43. The result of these reports and the deliberation in respect of them was a series of new Ordinances which came into force on 7 October 1971. Amongst those Ordinances was the Intestates' Estates Ordinance to which I have already referred, the Marriage Reform Ordinance, the Married Person's Status Ordinance, the Affiliation Proceedings Ordinance (which has since been repealed) and the Legitimacy Ordinance. They constituted a package of reforms which regularised the position in relation to marriages and concubinage. It is unnecessary to refer to those Ordinances in any great detail, save to say that after 7 October 1971, no person was permitted to take a concubine although the status of concubinage was recognised in respect of those who had lawfully become concubines prior to at date.

In respect of whom was the status of concubinage recognised in Hong Kong prior to 7 October 1971?

44. In relation to the status of Madam Chu Lee, it is important to ascertain whether she was regarded as a lawful concubine in Hong Kong prior to 7 October 1971.

45. As indicated above, the judge below resolved the question on the basis of considering that Madam Chu Lee was a de facto concubine in the People's Republic of China and, because she enjoyed rights which were equivalent to that of a wife and considerably greater than that previously enjoyed by concubines under customary law, she should have been regarded in Hong Kong law as being a lawful concubine in a union of concubinage.

46. I find difficulty in accepting this approach. In the final analysis, a de facto concubine can be no more than a mistress. The expression de facto concubine is not one which I have found in any of the authorities. If a particular status, in this instance concubinage, has been abolished by the law, it cannot, it seems to me, be revived by acts or consent of one or more parties. The fact that the law will accord to a mistress, who has been accepted into a household, albeit with the consent of the husband's wife, rights to maintenance and even inheritance cannot revive what was a previous status known only in respect of the law of China as related to a particular type of marriage, namely the customary marriage which had also been abolished.

47. In private international law, the capacity to marry is governed by the law of each party's ante-nuptial domicile. A marriage would be invalid if under the law of either party's ante-nuptial domicile, that party lacks capacity to marry. See, for example, Dicey and Morris on the Conflict of Laws, 13th Edition, rule 68. Certainly, only those who had entered a Chinese customary marriage could take a concubine. It follows, as indeed would appear from the case of Lee v. Lau [1967] P.14, that the capacity to enter a union of concubinage was probably to be equated with the capacity to contract a polygamous marriage, namely a Chinese customary marriage. In the usual private international law, the capacity to enter a polygamous marriage has been governed by the law of each party's ante-nuptial domicile as well as the law of the country in which the marriage took place. As demonstrated by the case of Parkasho v. Singh [1968] P.233 as a matter of conflict rules, a court recognised as effective legislation in a person's country of domicile which alters his capacity to contract a polygamous marriage, when, previously, he would have had, as a matter personal religious or customary law, the capacity to enter a polygamous marriage.

48. The above are what might be considered standard conflict of laws rules. The question which needs to be considered however is the manner in which Chinese customary law was applied in Hong Kong and the parties to whom it was applied. As recorded by Ching PJ in Leung Sai Lun Robert v. Leung May Ling in the passage following that quoted above, he said :-

"The applicability of that law and those customs caused difficulties of their own, for people were entitled to choose their personal law and it became problematic to decide whether and which law they chose in any given case. In the course of time the applicability of the English Acts was restricted to those expressly adopted in Hong Kong and to those listed in the Application of English Laws Ordinance, Cap. 88. So far as Chinese law and custom were concerned the Strickland Committee was appointed in 1948 to consider and to make recommendations as to how far Chinese law and custom as it existed in 1843 was or still should be applicable to Chinese domiciled here or to other Chinese resorting hereto and to other related matters."

49. Chapter 2 of the Strickland Report is headed "Extent and scope of Chinese law in Hong Kong". Paragraph 14 falls under the heading "Application of Chinese Law and Custom to the Chinese Inhabitants of the Colony". That reads :-

"14. In the following paragraphs it is proposed to examine the question whether Chinese law and custom can apply to Chinese not domiciled in the Colony and then to consider the particular spheres in which Chinese law and custom does apply.

15. It would seem that with such exceptions as are mentioned later the application of Chinese law and custom should be confined to those Chinese who are domiciled in Hong Kong. This is the ordinary rule of Private International Law as applied by British Courts. Indeed it is usually unwise to attempt to legislate in matters directly or indirectly affecting the status of persons not domiciled in the Colony as the status of such persons is normally governed by the law of their domicile and such legislation might well be disregarded by Courts established outside the Colony.

16. The main exception to the above principle is that if the intestate is Chinese, any leaseholds forming part of his estate will, it would seem, devolve in accordance with Chinese law and custom as it existed in Hong Kong in 1843. ...

17. Another exception is contained in section 2 of the Chinese Wills Validation Ordinance 1856 ..."

50. Paragraphs 20 and 21 deal with the question of devolution of an estate in a manner which makes clear that domicile is relevant.

51. And then the Report comes to paragraph 22 :-

"22. English law was inapplicable in 1843 to Chinese customary marriage, divorce according to Chinese law and custom and adoption, and accordingly Chinese law and custom on these institutions prevails subject to certain exceptions. As to the main proposition, see Appendix 1 at pp. 108, 109 and 110. See also, however, the Ordinances cited at p.99 of that Appendix and the Separation and Maintenance Orders Ordinance, 1935, which, while confirming the rights of a tsai of a Chinese marriage, in many cases deny similar rights of concubines. It should be noted, however, that the rights conferred on the wife are rights viewed in the light of English law, particularly as regards custody of the children of the marriage. Moreover, the rights of the concubine have on occasions been given effect to by the Courts and save in so far as her position has been effected by express legislation, her position is still governed by Chinese law and custom. See Appendix 3. But see also para. 17 supra.

...

24. The English rule of law that a person cannot be legitimate unless his parents are married probably applies - see Appendix 1, p.89 and pp. 117 and 121, so as to preclude the legitimation of a son born out of wedlock by mere recognition on the part of the putative father, but subject to this the Chinese law of customary marriage applies and sons born, whether to the tsai or to the concubine, are legitimate, as are also, it would seem, sons born out of wedlock whose parents subsequently marry."

52. The answer to the present question is not to be found in Appendix 1 of the Strickland Report. Appendix 1 was an opinion of the Chairman which the Committee considered was a useful guide to the legal basis for Chinese law and custom. It is headed "The True Interpretation of Section 5 of the Supreme Court Ordinance, 1873, in relation to the Survival of Chinese Law and Custom of Hong Kong". A considerable part of Appendix 1 is given over to the consideration of the case of Ho Tsz Tsun v. Ho Au Shi and Others 10 HKLR 69. That was a case in which it was held that devolution of leaseholds which had been held by the deceased were not governed by the Statutes of Distribution because the lex loci in relation to those cases was the Chinese law and custom of inheritance. Strickland went to a great deal of trouble to explain why the decision did not accord with traditional Private International Law. His conclusion was, however, that it was part of the law of Hong Kong and could only be changed by legislation. He said at p. 101 :-

"The decision has in any event been the law of Hong Kong for so long that it is doubtful whether the criticisms levelled at it would be considered sufficient by the Privy Council to upset it, and if it is not to be the law the matter must be set right by express legislation. ..."

53. At p.108 of the Report under the heading "Indirect Effect of the Hong Kong Supreme Court Decisions" at paragraph 10, Strickland said :-

"10. We have seen that the Courts in Hong Kong have not been called upon to decide directly upon the validity of Chinese marriages or concubinage or of adoption in accordance with Chinese law and custom, but that they have recognized and given effect to these institutions in dealing with applications for a grant of letters of administration or in considering devolution upon intestacy. In fact, although Ho Tsz Tsun's case must be taken to apply to the case of a Chinese not domiciled in the Colony, its ratio decidendi is based on the Statutes of Distribution being totally inapplicable to local conditions and the local inhabitants and ever since that case, if not indeed before, it has been accepted that in the case of a Chinese domiciled in Hong Kong his estate devolves on intestacy in like manner and to the like persons as it would have done had he died in 1843. In the face of this constant practice the Courts would probably also give effect for purposes other than administration or devolution of assets on intestacy to institutions such as marriage concubinage and adoption, save in so far of course as other paramount principles of English law or the enactments of the legislature require further modification of these institutions. ..."

54. After considering a large number of cases in the books, most of which were not cited in argument, I have come to the conclusion that Hong Kong courts have, when considering concubinage and marital status, not differentiated between persons of Chinese race domiciled in Hong Kong and persons of Chinese race domiciled abroad. Since concubinage, although separate from marital status is a status which was in many ways akin to a marital status, I consider the same rules applied. I would draw attention to the following cases.

55. In Wong Kam Ying & another v Man Chi Tai [1967] HKLR 201, Huggins J was deciding a case concerned with the recognition or otherwise of concubinage. In respect of concubinage, he considered that the authorities showed that the Chinese customary law applied to Chinese inhabitants of Hong Kong. Indeed, in a passage at the foot of page 209 of his judgment, he drew a distinction between Hong Kong and Malaya. There was a general rule that persons domiciled in that territory may have concurrently with the lex loci, a personal law dependent upon race or creed. In respect of Hong Kong, he said:

"...but persons of Chinese race enjoy a limited privilege by virtue of the provisions of s. 3 of the Application of English Law Ordinance 1966. Section 5 of the Supreme Court Ordinance, which that section replaces, has (rightly or wrongly) always been interpreted as preserving to the Chinese inhabitants of the Colony parts of the Chinese customary law. All the persons with whom we are concerned in this case are persons of Chinese race."

Huggins J's judgment does not give any indication that any other factor was taken into account in considering the applicability of Chinese customary law to the relevant persons i.e. those who were ethnically Chinese, other than the fact that they were inhabitants. Indeed, on the following page from the passage quoted above, Huggins J. said:

"What is important for our purposes is that in Ho Tsz-tsun's Case (1915) 10 H.K.L.R. 69 & 76. Havilland De Sausmarez, P. said: "The common law of China was secured to the Chinese inhabitants' as it had existed prior to the cession". As I remarked in Chan Wei-keung v. Reg. 6 Cr.App. No. 386 of 1965 with reference to the common law of England one of the attributes of the English Common Law is that it does not change although it may develop to meet new circumstances. That remark appears to be equally applicable to the Chinese customary law."

56. In the case of Kwan Chui Kwok Ying & Anor v Tao Wai Chun & Ors [1995] 1 HKC 374 Patrick Chan J (as he then was) had to consider the law relating to concubinage. At page 393, he said:

"Since Chinese customary law forms a part of the law in Hong Kong, Chinese residents in Hong Kong had, until 1971, been permitted to enter into marriages pursuant to Chinese customary law. Under Chinese customary law, it was permissible to take a wife and several concubines. Chinese customary marriages and unions of concubines contracted prior to 1971 had always been recognised as lawful in Hong Kong and as from 1971, are recognised under the Marriage Reform Ordinance (Cap 178)."

57. Two points emerge from that. In the first place, of course, he used the word "residents" and was not, at least on the face of the matter, concerned with domicile. In the second place, he made no reference to modern marriages in accordance with the Civil Code. Had the matter depended on domicile, the point would have arisen as to whether persons domiciled in the Mainland would be bound by the Civil Code and incapable of entering a Chinese customary marriage.

58. In the case of Chan Yeung v. Chan Shew Shi (1925) 20 HKLR 35, Sir Henry Gollan CJ referred to persons having settled in Hong Kong and made it their home, he refers to Chinese law and custom and he refers at p.49 to the case of Chung Tye Phin v. Tan Ah Loy which is a case relating to Chinese who had been settled in Penang, being governed by customary law.

59. In the case of Chan Hing-chuen and others v The Queen [1974] HKLR 196 the Full Court, Huggins, McMullin and Pickering JJ. considered the position of a concubine in relation to the question as to whether a concubine should be treated as a wife for the purposes of being competent as a witness in criminal proceedings. One of the questions which arose was as to the recognition of concubines in Hong Kong law. The judgment of the Court refers only to Chinese inhabitants. No reference was made to domicile, the determining factor being apparently residence.

60. In the case of Lui Yuk Ping v Chow To [1962] HKLR 515 Macfee J had to consider the application of Chinese customary law in relation to an appeal in respect of an order made by the magistrate in adoption proceedings. Macfee J seems to have approached the question of the applicability of Chinese customary law on the basis of race alone, although the determination was not crucial to his decision.

61. A liberal approach to the law applicable was shown in the case of In the matter of the Estate of Kishen Das 26 HKLR 42, the acting Chief Justice Wood said:

"I am satisfied that these persons intended a marriage, looking to a consortium vitae. The rule of the English Common Law is 'Every intendment shall be made in favour of a 'marriage de facto' (see Eversley 'Law of Domestic Relations' 2nd Edn. p. 6). That the same presumption will apply to Christian and non-Christian forms of marriage is clear upon the authority of judgment of the Judicial Committee of the Privy Council in 'Sastry Velaiden v. Sembecutty'.

This legal presumption requires strong and satisfactory evidence to dispute it; and no such contrary evidence appears here."

62. The acting Chief Justice then went on in the passage which followed, to say that the presumption is only a particular application of the maxim "omnia praesumuntur rite et solenniter esse acta" and that the maxim had its limitations. In general, it applied to circumstances where persons are found to have set out with the intention of complying with the law. The maxim then operates in aid of the proof that everything was in fact done in a proper manner. However, the approach which coincided with those who were ethnically Chinese being governed by Chinese customary law is perhaps demonstrated when he concluded by saying :-

"Any lawful non-Christian customary marriage must be shown to have been duly celebrated according to the personal law and religion of both the contracting parties. In the present case this has not been shown."

63. The reason that he held that it had not been shown was that customary marriages were part of the personal law of only one of the parties.

64. Some legislation, in so far as it is relevant, also seems to have been based on a test of ethnicity rather than domicile. For example, the Chinese Marriage Preservation Ordinance, which was enacted in 1912 and remained in force until the 1971 reforms, contained a definition of "Chinese married woman" which was ethnically based without any reference to domicile, namely:

"a woman married according to the laws or customs of China, and includes only the first wife (kit fat) or the second wife (tin fong) of any Chinese man."

65. Similarly, the definition section of the Separation and Maintenance Orders Ordinance, enacted in 1935, contained the following :-

"'wife' and 'married woman' mean the wife of any man by any Christian marriage or its civil equivalent recognised by the law of the Colony , and , where no such marriage subsists, include-

(a) the kit fat or tin fong spouse of any Chinese man, married to him in accordance with the laws or customs of China."

66. That definition was changed in 1971 and it now reads:

"'wife' (妻子) and 'married woman' (已婚女子) mean the wife or partner of a man by-

(a) a marriage celebrated or contracted in accordance with the provisions of the Marriage Ordinance (Cap 181);

(b) a modern marriage validated by the Marriage Reform Ordinance (Cap 178);

(c) a customary marriage declared to be valid by the Marriage Reform Ordinance (Cap 178);

(d) a union of concubinage as defined by section 14 of the Legitimacy Ordinance (Cap 184);

(e) a kim tiu marriage entered in accordance with Chinese law and custom applicable thereto in Hong Kong before the appointed day under the Marriage Reform Ordinance (Cap 178); or

(f) a marriage celebrated or contracted outside Hong Kong in accordance with the law in force at the time and in the place where the marriage was performed. (Replaced 28 of 1971 s. 19)"

The position of Madam Chu Lee and Mr Sung between 1952 and 1971

67. It is clear that at all times, Madam Chu Lee was regarded by Mr Sung as his concubine. She was accepted as that by Mr Sung's wife and his household. Admittedly by the Civil Code, she did not, as I have already held, acquire the status of a concubine. However, Madam Chu Lee came to Hong Kong to join Mr Sung and clearly was treated and treated herself as his concubine if not indeed his wife. Given the considerable immigration to Hong Kong in those years, she was no doubt not the only person coming to Hong Kong in similar circumstances. There were no doubt many people in a similar position to Mr Sung and Madam Chu Lee who may or may not have changed their domiciles to Hong Kong.

68. In view of the fact that there was no formality necessary for the taking of a concubine and no ceremony was required, I see no reason why when Madam Chu Lee joined Mr Sung in Hong Kong as a resident of Hong Kong, or in the words of the Supreme Court Ordinance 1873 as an inhabitant of Hong Kong or in the words of Captain Elliott's Declaration resorted to Hong Kong, she did not acquire the status of a concubine.

69. The Hong Kong courts have in the past considered marital status of those of Chinese ethnicity, even if not domiciled in Hong Kong, in accordance with customary law and in my view, Madam Chu Lee was entitled to be so treated. Whereas, on the facts of some of the cases, it might have been possible that the courts could have found the relevant persons to have had Hong Kong domicile, that is not what happened. The judges referred to "inhabitants" and "residents" and persons of "Chinese race". I am not prepared to ascribe to those judges a looseness of expression in this regard. Still less do I consider that they laboured under a misconception of the law to the extent of confusing residence with domicile. The applicability of traditional Chinese law and custom to Chinese inhabitants of Hong Kong was not only recognised by the courts but that recognition was reflected in statute. I have no doubt that had the first occasion on which Mr Sung had treated Madam Chu as his concubine been after 1952 when they were both in Hong Kong that status of concubinage would have been legally recognised.

70. I do not consider that simply because in the place from where Mr Sung and Madam Chu came, and may have remained domiciled, the status of concubinage was not recognised, she, and no doubt many like her, should be condemned for ever to be regarded in law as a mistress. Whereas logic and law should never be confused, it would be quite absurd if it were to be that Madam Chu's status as a concubine would be recognised if she and Mr Sung were to have expressed a desire to remain in Hong Kong forever; but that she would be condemned to being a mere mistress if they both expressed their desire to be buried with their ancestors in the Mainland.

71. Even if one regards such an approach as changing Madam Chu Lee from having no status or one as a mistress to having a status of a concubine, such a change in status is again one which, in my view, is not beyond the contemplation of the law. As Blair-Kerr J said in Yeung Yeu-Kong v. Yeung Fung Lai-mui [1971] HKLR 13 at 18 "... a potentially polygamous marriage may well become monogamous, and vice-versa."

The position of Madam Sung

72. Madam Sung never came to Hong Kong. In those circumstances, her status was at all times governed by the law of Shanghai. Since, as I have indicated above, the law of Shanghai after 5 May 1931, did not recognise the status of concubinage, her status was never recognised. It is therefore, in my view, impossible for the 2nd plaintiff to bring herself within the provisions of section 2(2)(b) because Madam Sung and Mr Sung were never validly married nor was their union ever a union of concubinage.

73. Since preparing this judgment, I have had the advantage of reading in draft the judgments of Godfrey VP and Ribeiro JA. Whilst I would differ from judgments of my brethren with hesitation, inevitably that must be so in respect of one or other of those judgments. Whilst I note the case of McCabe v. McCabe involved the position of the appellant's personal law being the law of Ghana, the relevant law of Ghana included the particular customary law. In that, I see a distinction as regards the position in the present case insofar as it relates to Madam Sung. Had it been possible for Madam Sung to keep Chinese customary law, insofar, at least, as it related to marriage and concubinage, as her personal law despite the change in law of the only country in which she had ever lived, I would have been of a different mind. The McCabe case unfortunately does not assist in establishing that proposition. For the reasons which I have endeavoured to explain already, I differ in one respect from the judgement of Ribeiro JA.

74. In the result, therefore, it inevitably follows, in my view, that the 2nd plaintiff's claim on the intestacy of Madam Chu Lee must fail. I would, for that reason, allow this appeal.

75. In my view, the appeal should be allowed and there should be an order nisi that the costs of this appeal should be to the appellant. Since the appellant only conceded the plaintiff's initial claim that the defendant was not entitled to letters of administration in respect of Mr Sung's estate when re-amendment of the defence was sought and granted on 25 March 1998, the appellant should only be entitled to the costs of the action after 25 March 1998.

Hon Ribeiro JA :

76. I have had the benefit of reading the judgments of Godfrey VP and Rogers JA in draft. With respect, I differ from the conclusion arrived at by the Learned Vice-President. While I respectfully agree with Rogers JA that the appeal must be allowed, I have reached that conclusion by a route that differs to some degree.

77. The central facts are not in dispute. Mr Sung Chuen-pao ("Mr Sung") married Madam Chan Chiu Lam ("Madam Chan"), the 1st plaintiff, in Shanghai on 22 September 1929. Thereafter, with her consent, Mr Sung took Madam Sung So-chun ("Madam Sung") as his purported concubine in Shanghai on 1 May 1933. Two sons and a daughter were born of that union. The daughter is the 2nd plaintiff, Suen Toi-lee. Mr Sung then took Madam Chu Lee ("Madam Chu") as his purported second concubine on 31 December 1945, again in Shanghai and with the consent of Madam Chan.

78. Mr Sung died intestate on 16 January 1985. Madam Chu died, also intestate, on 26 November 1987, Madam Sung having died earlier in 1983. It is with the estate of Madam Chu and the 2nd plaintiff's claim to share in it that this appeal is concerned.

The 2nd plaintiff's claim

79. The 2nd plaintiff claims that by virtue of certain provisions of the Intestates' Estates Ordinance, Cap. 73 ("the Ordinance"), she is deemed to be part of the "issue" of Madam Chu and therefore entitled to a share in her estate. It is therefore a claim made by a child of Mr Sung's first purported concubine to a share in the estate of his second purported concubine. The competing claimants are Madam Chu's siblings (claiming through Madam Chu's personal representative, the defendant) who would be entitled if the 2nd plaintiff's claim fails.

80. In a decision given in two parts (by judgments handed down on 24 April 1998 and 17 September 1999 respectively), Keith JA held in favour of the 2nd plaintiff. The defendant now appeals to this court.

The statutory provisions relied on by the 2nd plaintiff

81. For the 2nd plaintiff to succeed, she must bring herself within the entitlement conferred by section 4(5) of the Ordinance, which provides as follows :-

"If the intestate leaves issue but no husband or wife the residuary estate of the intestate shall be held on statutory trusts for the issue of the intestate."

The only candidate for "husband" in the case of Madam Chu was Mr Sung who predeceased her. Accordingly, Madam Chu "left no husband". It follows that if the 2nd plaintiff is, as she contends, part of the "issue" left by Madam Chu, she is entitled by virtue of section 4(5) to benefit from the residuary estate.

82. As I have pointed out, Madam Chu was not the 2nd plaintiff's mother. Accordingly, for the 2nd plaintiff to qualify as part of Madam Chu's "issue" she must bring herself within the provisions of section 2(2)(b) of the Ordinance which extends the concept of "issue" as follows :-

"References in this Ordinance to a child or issue of any person shall mean -

(a) ......

(b) if that person is a female, a child of a valid marriage to which her last husband and another female were parties ......"

The relevant "person" in this case is Madam Chu, who was obviously "a female". The 2nd plaintiff's case is that she qualifies since (i) Mr Sung was Madam Chu's "last husband"; (ii) Madam Sung was a party to a "valid marriage" with Mr Sung; and (iii) the 2nd plaintiff is a child of such valid marriage.

83. Since Madam Sung and Madam Chu did not purport to be wives, as opposed to concubines, of Mr Sung, the 2nd plaintiff must rely on two further deeming provisions in the Ordinance if her argument is to succeed. First, she relies on paragraph 2(2) of the Schedule to deem Mr Sung a "husband" of Madam Chu so that he qualifies as her "last husband" for section 2(2)(b) purposes. Secondly, she relies on paragraph 2(1) of the Schedule to establish a "valid marriage" between Mr Sung and Madam Sung for section 2(2)(b) purposes, on the basis that her parents were parties to a qualifying "union of concubinage". Those two deeming provisions read as follows :-

"2(1) A child of a union of concubinage shall be regarded for the purposes of the Ordinance as the child of a valid marriage.

2(2) The reference in section 2(2)(b) to 'husband' shall be construed as including a reference to the male partner of a union of concubinage."

84. The reasoning set out above rests entirely on the contention that, for the purposes of the Ordinance, the two unions, namely between Mr Sung on the one hand and Madam Sung and Madam Chu respectively on the other, were "unions of concubinage". Unless this is established in each case, the 2nd plaintiff's claim must fail.

85. Of possible relevance in this context is section 13(2) of the Ordinance which provides as follows :-

"In this section and in the Schedule, 'union of concubinage' means a union of concubinage, entered by a male partner and a female partner before the appointed day under the Marriage Reform Ordinance [i.e., 7th October 1971], under which union the female partner has, during the lifetime of the male partner, been accepted by his wife as his concubine and recognized as such by his family generally."

86. I describe section 13(2) as only of "possible" relevance because its language is such that, in my view (and as the Judge held), it provides only limited assistance in defining what a "union of concubinage" means for the purposes of the Ordinance. It does not go beyond stating that the union of concubinage which qualifies for recognition under the Ordinance must be a union of concubinage bearing the specific characteristics of wifely acceptance and familial recognition during the male partner's lifetime. In other words, it does not purport to define what a "union of concubinage" as such is, but merely stipulates certain characteristics that qualifying unions of concubinage must exhibit.

The 2nd plaintiff's claim to be a child of a union of concubinage

87. In my view, for the 2nd plaintiff to come within paragraph 2(1) of the Schedule as "a child of a union of concubinage", her parents must have been partners in a union of concubinage existing as a lawfully recognised status at the time of her birth.

88. It is common ground that Madam Sung was taken as Mr Sung's purported concubine on 1 May 1933 and that the 2nd plaintiff was born on 20 July 1940. It is also common ground that at the time of the 2nd plaintiff's birth (as well as at the time when her parents first entered into the union), all concerned were living in Shanghai and domiciled on the Mainland. Madam Sung did not leave the Mainland before her death in 1983.

89. Under Hong Kong private international law rules, capacity to contract a marriage (including a polygamous marriage) is governed by the law of each party's antenuptial domicile: Hussain v Hussain [1983] Fam 26. Those rules tend to equate a foreign law permitting the taking of concubines with laws permitting polygamous marriages: Lee v Lau [1967] P 14. Accordingly, one is referred to the law of each party's antenuptial domicile to determine whether it was legally possible for the parties to enter into a union of concubinage as a lawful status.

90. It is also clear that where, under the applicable foreign law, legislation has been passed removing the capacity to contract a polygamous marriage previously enjoyed under the personal laws of the parties, common law conflict rules recognize the efficacy of such legislation in bringing about such a change: Cheni v Cheni [1965] P 85; Parkasho v Singh [1968] P 233. In my view, the same applies in principle where there has been legislation abolishing the status of concubinage.

91. The question whether the 2nd plaintiff was the child of a legally recognised union of concubinage therefore requires reference to the law of the Republic of China, Mainland China being where Mr Sung and Madam Sung were domiciled immediately before entering into their union, to see if they had attained a legally recognized status of concubinage and had thereafter maintained such status up to the time of the 2nd plaintiff's birth.

Concubinages under Mainland law

92. On 5 May 1931, the Civil Code of the Republic of China, and in particular its Book IV ("the Civil Code"), came into force. This was two years before Mr Sung purported to take Madam Sung as his concubine and nine years before the 2nd plaintiff was born.

93. By Article 985, the Civil Code provided that a person who had a spouse could not contract another marriage, but the Code was silent as to the legal status of concubines. After hearing expert evidence on this matter, Keith JA found that the effect of the Civil Code had been to abolish the status of concubinage. That finding is not subject to challenge on this appeal, in my view, rightly so.

94. It follows that when Mr Sung purported to take Madam Sung (and subsequently Madam Chu) as his concubine, he was purporting to confer on her a status which had been abolished under the law of the Republic of China, being the applicable law of the parties' domicile.

95. Keith JA considered evidence as to rights conferred by the Civil Code on members of "the house", as defined in Art 1122, entitling them to maintenance under Art 1114. However, he held in both judgments that on the evidence "Such rights as were accorded to them were accorded to them as 'members of the house' and not as de facto concubines." As Rogers JA points out, this is in line with this court's approach in Tang Lai Sau-Kiu v Tang Loi [1987] HKLR 85 at 91, which supports the conclusion that the status of concubinage was abolished by the Civil Code as from 5 May 1931.

96. On 29 September 1949, the Civil Code was itself abrogated. After a short interval, there was promulgated on 1 May 1950 the Marriage Law of the People's Republic of China ("the 1950 Marriage Law"). Article 1 provided as follows :-

"The feudal marriage system based on arbitrary and compulsory arrangements and the supremacy of man over woman, and in disregard of the interests of the children, is abolished. The New Democratic marriage system, which is based on the free choice of partners, on monogamy, on equal rights for both sexes, and on the protection of the lawful interests of women and children, is put into effect."

Article 2 provided :-

"Bigamy, concubinage, child betrothal, interference in the re-marriage of widows, and the exaction of money or gifts in connection with marriages, are prohibited."

The 1950 Marriage law therefore not only abolished concubinage: it prohibited the status.

97. At the second hearing, the Judge found that under the law of the PRC, a woman who had been taken in concubinage prior to 29th September 1949 was treated as if she were the wife of her partner, enjoying a status equal to that of her partner's first wife. It was on this basis that he held that both Madam Sung and Madam Chu qualified as partners in respective unions of concubinage with Mr Sung so as to trigger the deeming provisions discussed above and founding his judgment in favour of the 2nd plaintiff.

98. With respect, I do not consider the Judge's conclusion justified. Indeed, it appears to me to be in conflict with his first decision in which he held (to my mind, correctly) that when the relevant provisions of the Ordinance spoke of a union of concubinage, they were referring to a union legally recognised to have such a status and not to an assemblage of facts which might attract legal benefits "as good as" or even "superior to" the rights previously enjoyed by a person with the legally recognized status of concubine.

99. The fact that after enactment of the 1950 Marriage Law the practice grew up in the PRC of according rights equivalent to the rights enjoyed by wives to persons who, under an abolished legal regime, occupied or would have occupied the status of concubine, is irrelevant. It does not justify describing such women as "concubines", much less as parties to a lawfully recognized union of concubinage.

Was the 2nd plaintiff the child of a qualifying union of concubinage?

100. In my view, the answer to the captioned question is "No". When the union between Mr Sung and Madam Sung was entered into in Shanghai in 1933, the law of their domicile did not recognize or confer on any such unions the legal status of concubinage. Accordingly, their relationship was not a "union of concubinage" within the meaning of paragraph 2(1) of the Schedule. The 2nd plaintiff therefore does not qualify as a child of such a union and the extended meaning of "issue" provided for by section 2(2)(b) of the Ordinance has no application in her case. It follows that she falls outside any entitlement conferred by section 4(5) and that her claim must fail.

The position of Madam Chu

101. Having reached my aforesaid conclusion (which is wholly in agreement with that reached by Rogers JA), the appeal must be allowed whether or not the 2nd plaintiff is able to satisfy the second requirement for bringing herself within the extended meaning of "issue", namely, the requirement of establishing that Mr Sung was Madam Chu's "last husband".

102. It is therefore strictly unnecessary to decide that question. However, as I differ in some respects with the analysis and conclusions of Godfrey VP and Rogers JA on the matter, I ought perhaps to indicate where the differences lie.

103. In the present case it is common ground that Mr Sung, Madam Sung and Madam Chu were and remained at all material times domiciled in Mainland China. It was therefore no part of the 2nd plaintiff's case that Mr Sung and Madam Chu acquired a Hong Kong domicile after moving here in 1951 and 1952 respectively. At the start of the second hearing before Keith JA, Mr Nelson Miu (who has acted throughout for the 2nd plaintiff) abandoned the argument that Madam Chu had attained recognition as a concubine under Hong Kong law after acquiring domicile here and prior to the abolition of that status by the Marriage Reform Ordinance in 1971.

104. The change of domicile point was therefore not canvassed and the facts bearing on any such change have not been investigated. The legal issues which it raises were also not discussed. Accordingly, questions such as whether a union of concubinage would have been recognized under Hong Kong law after a change in domicile; and whether paragraph 2(1) of the Schedule requires the qualifying union of concubinage to have been a lawfully recognized status from its inception, must be left open.

105. On the footing that the relevant persons were always domiciled in Mainland China, the ordinary conflict of laws rules ought in my view to apply, so that the law of that domicile determines whether a status of concubinage came into being.

106. I am unable to accept the suggestion that despite such Mainland domicile, one should recognize Madam Chu and Mr Sung as having established the status of concubinage as a matter of Hong Kong law, ignoring the abolition of such status by the law of their domicile.

107. It is argued that this unorthodox approach is justified because Hong Kong case-law indicates that when determining concubinage and marital status, the local courts have not examined the parties' domicile but have considered it sufficient to show Chinese ethnicity and residence here as the basis for applying Hong Kong law (incorporating Chinese law and custom existing as at 1843) to such persons. On this approach, it is said that pre-1971 Hong Kong law ought to be applied to Madam Chu so as to recognize her as having acquired the lawful status of concubine between 1952 and 1971 for the purposes of the Ordinance.

108. I am unable to subscribe to such approach. To my mind, none of the authorities discussed support the proposition that despite an established foreign domicile, a court may or should ignore or override the conflict rules which refer the issue of status to the law of such domicile and instead apply Hong Kong law simply because the person in question is Chinese and resident in Hong Kong.

109. The Report of the Committee Appointed by the Governor in October 1948 on Chinese Law and Custom in Hong Kong ("The Strickland Report") clearly indicated that such was not the approach adopted by the Hong Kong courts and that, on the contrary, the ordinary conflict of laws rules were applicable. Thus, at §8, it stated :-

"The Supreme Court has ruled that notwithstanding Chinese law and custom, a grant of probate or letters of administration is essential, but that distribution on intestacy of the personal estate of a Chinese is to be made in accordance with Chinese law and custom existing in 1843 in that part of China of which Hong Kong then formed part. This law applies to all the personal estate of a Chinese domiciled in Hong Kong but only, it would seem, to the leasehold property of a Chinese not so domiciled".

The importance of the private international law rules and their reference to domicile was expressly recognized in §15 as follows :-

"It would seem that with such exceptions as are mentioned later the application of Chinese law and custom should be confined to those Chinese who are domiciled in Hong Kong. This is the ordinary rule of Private International Law as applied by British Courts. Indeed it is usually unwise to attempt to legislate in matters directly or indirectly affecting the status of persons not domiciled in the Colony as the status of such persons is normally governed by the law of their domicile and such legislation might well be disregarded by Courts established outside the Colony."

At §20, the Strickland Report stated the orthodox position as follows :-

"Such movable property in the Colony of a Chinese not domiciled in the Colony as to which he is deemed to die intestate, will devolve in accordance with the law of the place where he is domiciled at the date of his death and not in accordance with Chinese law and custom".

As explained in Appendix 1 to the Report, the applicability of Hong Kong law to leasehold property in Hong Kong even in respect of a Chinese not domiciled here was the consequence of the ordinary conflicts rule applying the lex loci to immovables within the jurisdiction on an intestacy.

110. In Appendix 3 to the Report, the Opinion of the then Attorney General of Hong Kong, dated 5 June 1936, stated the orthodox position in relation to concubines' rights on an intestacy as follows :-

"The question whether she is entitled to a share of her deceased consort's estate and if so what is her portion, is governed by the principles of Private International Law affecting the distribution of intestate's estates. The rule of such law is that the distribution of movables is governed by the lex domicilii of the deceased. Assuming that this domicile is Chinese the movables would be distributed according to the current law of the Republic of China. Immovables including leasehold properties are governed by the lex loci which has been held by the Full Court (Ho Tsz Tsun's case, 1915, 10 HKLR 69) to be the Chinese law and custom of inheritance as it existed in the neighbouring districts of China in 1843."

111. In Chan Yeung v Chan Shew Shi (1925) 20 HKLR 35, the court was concerned with whether a concubine had the right to be granted letters of administration in respect of her deceased consort's estate. As with many of the cases discussed in this context, domicile appears never to have been raised as an issue. Nonetheless, in reciting the facts, the court appears to have found that the deceased and the plaintiff had in fact acquired a Hong Kong domicile, although the word "domicile" itself was not used. Gollan CJ stated :-

"After the death of his father, deceased and his mother came to Hongkong in 1883; and plaintiff joined them shortly afterwards. None of the family ever returned to China, even to worship at the ancestral tombs, according to the plaintiff; and I think that on the facts of the case deceased and plaintiff must be taken to have settled in Hongkong and made it their home."

112. Other cases where domicile was again not in issue, and where Chinese law and custom as incorporated in the law of Hong Kong was conceded by both parties or simply assumed by the court to be applicable, include Luk Yuk Ping v Chow To [1962] HKLR 515; Wong Kam Ying v Man Chi Tai [1967] HKLR 201; Chan Hing-cheung v The Queen [1974] HKLR 196; Kwan Chui Kwok Ying v Tao Wai Chun [1995] 1 HKC 374; and Leung Sai Lun Robert v Leung May Ling [1999] 1 HKC 605.

113. In such cases, the party or other relevant person is often referred to as "a Chinese inhabitant of Hong Kong" to justify making Chinese law and custom (as at the year 1843) applicable to him. However, this is done in the context of establishing that Chinese law and custom as made applicable to Chinese inhabitants by the various Supreme Court Ordinances forming part of Hong Kong law, governs in the particular case. These are not examples of Hong Kong law being somehow treated as an overriding law in the conflict of laws sense, nor of the courts seeking to replace a domiciliary requirement with a requirement of Chinese ethnicity and local residence for determining the applicable law. In the abovementioned reported cases, no question of private international law was in issue.

114. Some of the other authorities cited in this context raise issues concerning the formal validity of a marriage, e g: In the matter of the Estate of Kishen Das [1932-1933] HKLR 42; and Tang Lai Sau-Kiu v Tang Loi [1987] HKLR 85 (CA). Such cases simply apply the ordinary rule of private international law that the lex loci celebrationis determines the formal validity of marriages: Berthiaume v Dastous [1930] AC 79.

115. In my view, McCabe v McCabe [1994] 1 FLR 410, merely presents another example of the aforesaid principle being applied. It was a case involving somewhat unusual facts which may be summarised as follows.

116. The appellant was a Ghanian who had lived with an Irishman and become pregnant by him. The judge found that at the urging of her great-uncle, she and the respondent had agreed to enter into a customary marriage according to Akan customary law on her great-uncle's return to Ghana.

117. This was implemented by the parties providing her great-uncle with ￡100 in cash as "aseda" (a kind of dowry) and with a bottle of gin, which he took back to Ghana. There, a ceremony took place according to Akan custom where neither the appellant nor the respondent were present, but which was attended by about eight members of the appellant's family. The relatives were told that the couple wished to be married and that the money and gin had been sent via the great-uncle. The respondent's father and the assembled family members expressed their agreement to the marriage and some of the gin was poured into a glass as a blessing of the marriage and some drunk by those present. Part of the ￡100 was distributed to the relatives at the ceremony and a further part of the money distributed to other relatives a few days later when they were informed of the marriage by the appellant's father. The appellant then received letters from her father and great-uncle describing the ceremony which she read to the respondent, with whom she continued to cohabit, the union producing two children.

118. The appellant later petitioned for divorce. However, the judge dismissed her petition on the ground that there had been no valid marriage. The Court of Appeal re-examined the expert evidence that had been placed before the judge and held that on such evidence, the marriage had been validly celebrated so that the judge's decision was overturned and the appellant granted a decree nisi.

119. In my view, it is clear that the entire decision involved the English court deciding whether, on the evidence as to the lex loci celebrationis, namely, the law of Ghana, the marriage was valid as a matter of formal validity.

120. Butler-Sloss LJ (with whom Bracewell J agreed) explained the decision below as follows (at p 412):-

"The judge decided that in one essential respect, that is to say publicity, the formalities had not been complied with and consequently a valid marriage had not been performed."

The Judge was overturned precisely on that question, namely, one going to the formal validity of the marriage.

121. In taking evidence as to the formal requirements of an Akan customary law marriage, the English court was applying the law of Ghana as the lex loci celebrationis which, as Butler-Sloss LJ pointed out (at p 412) had, by its Courts Act 1971, s 49, r 1, recognised the personal law of a Ghanaian as the customary law of his group. The Akan group of people were the largest ethnic group in the southern half of Ghana, divided into a number of separate communities such as the Fanti or Ashanti. Butler-Sloss LJ held (ibid) that the Judge had :-

" ...... correctly directed himself that he had to apply Ghanaian law and upon the most unusual facts of this case he had to determine the decision to which a Ghanaian judge would come as to the validity of the ceremony ......"

Accordingly, the English court was applying and not departing from the usual rules of private international law. It was, with respect, not applying some personal law to the appellant by virtue of a domestic doctrine of the English forum conditioned merely on ethnicity. Akan law as the relevant personal law was applied only because it had been given force by a Ghanaian statute and so formed part of the law of the place where the marriage had been celebrated.

122. The fact that neither the appellant nor the respondent were present in Ghana for the ceremony should not be allowed to confuse the position. Common law conflicts rules have long recognized that marriages may be valid under the lex loci celebrationis where the parties were not present at the ceremony but were represented by proxies: Apt v Apt [1947] P 127; Ponticelli v Ponticelli [1958] P 204. The present case is unusual only to the extent that (as held at p 417) the evidence showed that Akan customary law, as incorporated into Ghanaian law, required neither the parties nor their proxies to be present at the ceremony.

123. Accordingly, in my view, cases dealing with the formal validity requirements of marriages offer the 2nd plaintiff no assistance. The fact that Hong Kong law (in the earlier cases, incorporating Chinese law and custom made applicable to Chinese inhabitants by the Supreme Court Ordinances) applies to determine the formal validity of marriages celebrated within the jurisdiction even as between parties domiciled elsewhere is irrelevant. This case is not concerned with any issue of formal validity. It is concerned with legal capacity to contract a union of concubinage, a question dependent on the law of the parties' ante-nuptial (or "ante-concubinage") domicile, which, as we have seen, is the law of the Mainland.

Conclusions

124. It is for the abovementioned reasons that I find myself with respect unable to agree with the conclusion reached by Godfrey VP.

125. While I entirely agree with Rogers JA as to the status of Madam Sung and accordingly as to the need to dismiss the appeal, I am respectfully unable to agree with the result he has reached in relation to Madam Chu. In my view, Madam Chu never acquired the legal status of concubine since, under applicable Mainland law, that status had been abolished ever since 1931, some 14 years before she was purportedly taken as a concubine. If it had been necessary to do so, I would also have allowed the appeal on the basis of this conclusion.

Hon Godfrey VP :

126. I have had the advantage of reading in draft the judgments prepared by Rogers JA and Ribeiro JA, concluding that this appeal should be allowed. I have the misfortune to differ from them, as each of them has mentioned.

127. I need not once again rehearse the facts; and the question for decision may be shortly stated. It is whether both of the female partners taken as concubines by Sung Chuen Pao are to be treated, for the purposes of our law relating to the distribution of intestates' estates, as having at all material times enjoyed that status.

128. I am of the opinion that the answer to that question is that both such female partners did at all material times enjoy that status. My reasons are as follows.

129. The status of concubinage is not universal, unlike the status of marriage. It is a status peculiar to persons of Chinese race under whose personal law (as it may conveniently be called) such a status is recognised. In my opinion, it has nothing to do with domicile or residence. A concubine recognised as such under Chinese customary law may find that, in different places or at different times, her status as a concubine will not be recognised as such for the purposes of the system of civil law in force at that place or at that time. For example, in England and Wales, one claiming to be a concubine would never in the past and would not now be recognised for any purpose of English civil law as having any status, or any rights, different from that of a mistress. In the system of civil law in force in China, on the other hand (at any rate before 1911), a concubine would have been recognised as enjoying a status, and rights, comparable though not by any means identical with the status, and rights, enjoyed by a wife. It may be that, after 1911, a concubine would not have been recognised by that system as enjoying the status of a concubine, although she would have been treated as enjoying the same rights as she would have had if she had been so recognised.

130. But none of this matters for our purposes. What matters for our purposes, is the status, or rights, if any, enjoyed here, in Hong Kong, by a concubine and her issue under the Intestates' Estates Ordinance, Cap. 73.

131. Support for the approach which I have adopted is I believe afforded by the case of McCabe v. McCabe [1994] 1 FLR 410. In that case, the parties to an alleged "marriage" were both members of the Akan tribe of Ghana. The "husband" was domiciled in the Republic of Ireland. The "wife" was domiciled in Ghana. They were living together in England, but their personal law was Akan customary law. They agreed to "marry" according to the tribal custom of the Akan. The "husband" provided a bottle of gin and some money (as "aseda", a sort of dowry) which were taken to Ghana, where a tribal ceremony of "marriage" was held at which neither "husband" nor "wife" (nor proxies for them) were present. The Court of Appeal nevertheless held that the "husband" and the "wife" had been validly married. It was satisfied that the ceremony constituted a valid marriage under their personal law; i.e. Arkan customary law.

132. In our case, as it seems to me, Sung Chuen Pao entered into a "union of concubinage", for the purposes of the Intestates' Estates Ordinance, Cap. 73, with Sung So Chun on 1 May 1933 and with Chu Lee in December 1945. Each was a union under which, during the lifetime of Sung Chuen Pao, the "concubine" was accepted by his wife and recognised as such by his family generally. In order to reach this conclusion, it is, as it seems to me, necessary to refer and to refer only to the personal law (Chinese customary law) of all the parties concerned, under which the status of concubinage was and indeed is at all material times permitted and recognised. References to the law of the domicile of any of the parties at any particular time is not necessary and indeed not relevant here, where the only question we have to consider is whether Sung Chuen Pao did or did not enter into these two "unions of concubinage" with Sung So Chun and Chu Lee respectively. The question admits, as I think, of only one possible and affirmative, answer. No person guiding himself by reference to the personal law of the parties could come to any other conclusion on the facts, and the application to our case of rules of private international law governing questions as to the formal or essential validity of a marriage in order to decide whether there were constituted here two "unions of concubinage" for the purposes of the Intestates' Estate Ordinance, Cap. 73 is, I believe, unwarranted.

133. It follows that I would dismiss this appeal (although for reasons which differ from those given by the judge below). But, since the majority of the court is of a different opinion, the appeal will in fact be allowed. As to costs, I agree that we should make an order as indicated in the Judgment of Rogers JA and we will accordingly make that order.