C v. C

CACV 303/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 303 OF 1998

(ON APPEAL FROM FCMP 87/1998)

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J U D G M E N T

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Hon Rogers JA :

1. This is an appeal from a decision of Deputy Judge Leung given as long ago as 12 August 1998. It does not help matters in this case to analyse the reasons for the delay in this appeal coming on; one simply observes that there was a delay and that leave has been given to bring this appeal and to bring it out of time.

2. The application before the Deputy Judge was an application under section 9(3) of the Marriage Reform Ordinance, Cap. 178. That Ordinance was brought into force on 10 July 1970 and regularised the position in relation to marriages. Section 9(3) empowers the court to hear and determine an application by a person claiming to be a party to a customary marriage or a validated marriage for a declaration that the customary marriage or validated marriage, as the case may be, subsists between that person and the other party to such marriage where the other party disputes the existence of the marriage.

3. This application was made by Madam Chan Fung Mui and the respondent to the application was Mr Cheng Yan. The application was based on written evidence from the applicant. The kernel of the applicant's evidence is that in 1960, when she was 22, she became betrothed to Mr Chan. The applicant says further that in about mid-1960 she went through a ceremony of marriage at the Hong Kong (Western) Swatow Baptist Church. She says that on that day, she had arranged for some of her friends to go to a restaurant but that she met the respondent in another café where they took a small meal. Matters then became delayed and the respondent said they should go directly to the church. Her evidence is that they went to the church where there were already a number of people present and there was a religious ceremony taking place. The applicant says that a marriage ceremony then took place and she describes it in the following way. The priest, Rev. John Chan, asked the respondent and the applicant to come forward and to kneel down and he started praying for the couple. The Rev. Chan held the applicant's and the respondent's hands together and the couple then exchanged rings and the priest prayed for them again.

4. Turning to the Ordinance itself, it contains a definition of what a modern marriage is in section 2 as meaning "a marriage celebrated in Hong Kong before the appointed day by open ceremony as a modern marriage and in the presence of 2 or more witnesses". The definition is curious as has already been pointed out in at least two authorities in Hong Kong by both District Judge Power (as he then was) in the case of Liu Kit Chui v. Lui Kwok Hin Chow [1976] DCLR 51 and in an unreported decision of H.H. Judge Bokhary (as he then was) of 21 August 1982 in the case of Lai Au Yuet Mi v. Lai Ka Lam. It is unnecessary to define precisely the full parameters of what a modern marriage is. It is sufficient if I cite a passage from District Judge Power's judgment on p.53 where he says :-

"It seems clear than that the 'modern marriage' referred to in the Ordinance is a Chinese Modern Marriage, as performed in Hong Kong, based upon Article 982 of the Chinese Civil Code."

Article 982 of the Code is significantly short and that simply reads :-

"A marriage must be celebrated by open ceremony in the presence of two or more witnesses."

Reference was made in the two authorities to which I have referred to the work on the "Marriage Laws and Customs of China" by Dr Vermier Chui. It would appear that there is no settled form which a marriage ceremony must take place to constitute a valid ceremony in accordance with Article 982. At p.128 of his work, Dr Chui says :-

"By virtue of this definition all religious weddings, such as marriages in the church, temple or mosque as well as all civil weddings such as registry marriages are valid marriages."

5. On the face of the matter therefore, it would appear that there was evidence before the judge from the applicant upon which the judge could pronounce that a modern marriage had taken place. Clearly, the ceremony that was alleged by the applicant to have taken place took place as an open ceremony and there were more than two persons present. There was no direct evidence as to the ages of the applicant and the respondent in 1960. It is a requirement of section 8 of the Ordinance that the couple must be not less than 16 years of age. The applicant's identity card was shown to this court at the commencement of these proceedings. It appears that she was born in 1938. There is no reason to suppose that the respondent was less than 16 in 1960. However, I simply reiterate at this stage that there was no direct evidence as to the respondent's age in 1960.

6. Before the Deputy Judge when this application was heard, the respondent appeared and is recorded as saying :-

"We cohabited only. We never married. I am Christian and Rev. John Chan only asked her to accept the original sin. Later I was baptised but she was not."

7. On the face of the matter therefore, the respondent was not giving evidence but merely making submissions but was disputing, as a factual matter, that any ceremony of marriage in respect of which the applicant had given evidence had taken place.

8. The Deputy Judge did not then give directions as to whether the respondent should give written or oral evidence and as to how the dispute as to the applicant's evidence should be resolved. What the Deputy Judge is recorded to have said is that there was :-

"Not sufficient evidence to support a marriage ceremony of any kind. Receiving prayer blessings and kneeling before the priest and exchanging rings do not constitute a marriage ceremony. There was already a worshipping proceeding in progress in the church when the parties arrived. A marriage ceremony should be a more formal proceeding in a specific way other than that described by the Applicant and there should also be record in the church."

9. Pausing there, I have to say that on the authorities to which I have referred and, in particular, Dr Chui's work, it would appear that there is no support for what the Deputy Judge said and that he was wrong about the matter. It also appears from the record which we have of the proceedings below that the judge made no reference to the Marriage Reform Ordinance, still less did he make any reference to the authorities to which our attention has been drawn. It would appear that he did not consider what was the meaning of the words "modern marriage". The Deputy Judge went on in his judgment to say :-

"Apparently, as suggested by the Respondent, this was not a marriage ceremony and as suggested by the Applicant, Respondent wished to deceive her. Marriage depends on a formal ceremony. Living together as Husband and Wife no matter for how long does not form a marriage."

In respect of that, the same observations apply.

10. The Deputy Judge then went on to say :-

"I declare no formal marriage subsisted between the parties."

11. Our attention has been drawn to the fact that there is no specific provision in the Ordinance for making such a declaration. Section 9(3), as I have said, gives specific power to the court to make a declaration that a customary marriage or validated marriage subsists; it is unnecessary for the purposes of this case to decide whether it gives power to the court to make a declaration that a marriage does not subsist.

12. What is, perhaps of more significance is that these proceedings in the District Court appear to have taken place in chambers and it seems to me quite wrong that declarations are made in chambers and not in open court, particularly where they are important declarations as to the marital status of the parties concerned. It appears that there are no specific rules relating to applications under this Ordinance and under section 9(3), so the general rules as to evidence and as to the nature of the proceedings and the place in which they should take place and whether they should be in open court or in chambers would apply.

13. In my view, the reasons which the judge gave for dismissing the application were clearly wrong. This appeal must, as a result, be allowed. But it also seems that this court is not in a position to order the relief which the applicant requests in its place.

14. The respondent still maintains his stance that no marriage ceremony at all took place and what took place was simply that the priest asked the applicant to accept the original sin and to confess her sins. In those circumstances, it seems to me that, unfortunately, this court has no alternative but to allow the appeal and to remit the matter to the District Court for directions to be given for the resolution of the factual dispute as to whether the ceremony which the applicant has said took place in fact took place.

15. I would therefore propose that this appeal be allowed and that an order be made following the suggestion which I have made.

Hon Keith JA :

16. I agree that this appeal should be allowed and that the order proposed by Rogers JA should be made. I also agree that it is preferable not to decide the question whether a declaration that a validated marriage does not subsist is one which the court has power to make.

Hon Godfrey VP :

17. I also agree. The court will make an order accordingly in the terms suggested by Rogers JA.