WANG ZI HAO also known as WONG CHI HO v. CHIU LUNG HWA LORRAINE

HCAP 11/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 11 OF 2013

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R E A S O N S   F O R   D E C I S I O N

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Introduction

1.  In the present action, the plaintiff (“P”) sought among other things that he be granted the letters of administration of his deceased mother’s estate and a declaration that he, the defendant (“D”) and their father Mr Wang Tieh Min also known as Wang Tit Man (“Mr Wang”) be declared to be the sole beneficiaries of his mother’s estate.

2.  D had issued a caveat under HCCA 1869/2002 against the estate.

3.  At the hearing on 14 March 2017, Mr Kerby Lau appeared on behalf of P, and D appeared in person.  D did not really oppose the orders sought by P, and this court had accordingly made those orders.   These are the reasons.

Background

4.  P’s mother Madam Yeung Wai Him, also known as Jean Young (“Madam Young”) was born in February 1932.  P’s father, Mr Wang was born in November 1923. 

5.  Madam Young and Mr Wang underwent a marriage ceremony at the Peninsula Hotel in Hong Kong on 14 April 1950 (“1^st Marriage Ceremony”).   They then registered their marriage about a year later, at the Marriage Registry in Hong Kong on 16 April 1951 (“2^nd Marriage Ceremony”).

6.  P was born in June 1952 and was the only child born out of the marriage between Mr Wang and Madam Young.

7.  The marriage between Madam Young and Mr Wang broke down and on 11 April 1958 they signed a divorce agreement in Chinese (“Chinese Divorce Agreement”), and thereafter they separated and led their own ives.

8.  On 3 July 1958, Madam Young purportedly married Mr Chiu Kung Huan, John (“Mr Chiu”) in Macau and P had produced a copy of an invitation to that marriage stated to be on 3 July 1958 although there seemed to be no public record found at the Macau Civil Registry of marriages.   D was born in November 1974 and she was legally adopted by Madam Young and Mr Chiu as their daughter on 19 June 1979 under the Hong Kong Adoption Ordinance Cap 290.

9.  As for Mr Wang, after he and Madam Young signed the Chinese Divorce Agreement, in September 1969, he married Madam Kwek Hiok Hung (“Madam Kwek”) in Singapore.  

10.  On 15 April 2003, Madam Young died intestate in Shanghai aged 71, and at the date of her death, she was a Hong Kong permanent resident.

11.  Mr Wang died intestate in Singapore on 21 September 2006, and at date of his death, his domicile of choice was Singapore.

12.  Mr Chiu then died in Shanghai on 7 December 2011 and at the date of his death, he was a Hong Kong permanent resident.

13.  Madam Kwek also passed away on 12 September 2012 and a grant of probate was obtained on 19 June 2014 by her sister Rosalind Quek Hiok Kheng (“Rosalind”).

14.  P issued a summons in October 2013 for the claim to proceed to trial on written evidence, which came before this court in November 2013.  The court then raised certain issues including :

(i) Whether the 1^st Marriage Ceremony was a valid marriage ceremony, namely whether it was a Chinese customary marriage or a Chinese modern marriage;

(ii) If so, Madam Young and Mr Wang would have acquired marital status under the 1^st Marriage Ceremony, and what would be the effect of the 2^nd Marriage Ceremony;

(iii) Whether the Chinese Divorce Agreement validly dissolved the marital status between Madam Young and Mr Wang, under the laws of Hong Kong then subsisting in 1958;

(iv) If not, the validity of the marriage between Madam Young and Mr Chiu, and between Mr Wang and Madam Kwek.

15.  In light of the above issues, this court indicated that an expert opinion should be sought on the validity of the Chinese Divorce Agreement.  Further, as the validity of the Chinese Divorce Agreement may affect the subsequent respective marriages of Madam Young and Mr Wang, this court directed that Madam Kwek (as at that hearing there was no information as to whether Madam Kwek was still living) or her estate should be served with the writ and statement of claim in these proceedings.

16.  Subsequent thereto, P obtained expert opinion on the validity of Madam Young’s marriage with Mr Wang and the Chinese Divorce Agreement, and also expert opinion from a Macau lawyer on the marriage between Madam Young and Mr Chiu in Macau, and also an expert opinion from a Singapore lawyer on the marriage between Mr Wang and Madam Kwek in Singapore.

The nature of the 1^st and 2^nd Marriage Ceremony

17.  P had produced two opinions, one of which was from Professor Hugh Baker.  Professor Baker is well known in the field of Chinese customary laws.  He has written a number of books and in particular two in relation to Chinese custom, and his expert evidence has previously been accepted by Hong Kong Courts in many cases and suffice to say, I accepted his expert opinion in the present case at set out below.

18.  Professor Baker has set out the ceremonies which would constitute a Chinese customary marriage (“Customary Marriage”) and which would constitute a Chinese modern marriage (“Modern Marriage”) at the time of the 1^st Marriage Ceremony between Madam Young and Mr Wang. He has explained that he had no instructions as to the form of the Chinese marriage entered into by Madam Young and Mr Wang at the time and that as it could not have been a Registry Office wedding, it must have been either a Customary Marriage or a Modern Marriage.  Although he was of the view that the likelihood was that it was the latter, the possibility of it being a Customary Marriage could not be ruled out.

19.  As for the 2^nd Marriage Ceremony, Professor Baker said it was quite in order for the couple to contract a marriage under the Marriage Ordinance after they had already been married under the Customary Marriage or under the Modern Marriage, the de facto existence of which could presumably not at that time be formally acknowledged but which was only subsequently legitimized by s 8 of the Marriage Reform Ordinance.

The validity of the Chinese Divorce Agreement

20.  Professor Baker had said that the copy of the Chinese Divorce Agreement provided to him concluded with spaces for the signatures of the parties to the divorce and the witnesses, but it was not clear whether it was only signed by Mr Wang, since the space for Madam Young and for the one named witness was left blank, or it was signed by all three, with Mr Wang signing in Roman script as well as in Chinese.

21.  Professor Baker was of the view that, as it stood, the Chinese Divorce Agreement was a flawed document, as it did not conform to the divorce documents appropriate to either a Customary Marriage or a Modern Marriage, namely it was drafted as a witnessed document made by the husband and wife jointly, which would not have been the case if it had been a divorce document for a Customary Marriage, and on the other hand it was not designed to bear the two witness signatures required by the Civil Code Article 1050 for a divorce document applying to a Modern Marriage.

Whether Madam Young and Mr Wang were validly divorced

22.  Professor Baker pointed out that the status of marriage was presumed to have been conferred on Madam Young and Mr Wang by the 1^st Marriage Ceremony in 1950 and indeed the Chinese Divorce Agreement made no mention of their 2^nd Marriage Ceremony in 1951.  However, although the subsequent marriages involving Madam Young in Macau and Mr Wang in Singapore was a strong indication that both considered themselves free to remarry after the Chinese Divorce Agreement, the Chinese Divorce Agreement was in fact defective for want of a second witness, and possibly for want of the signature of Madam Young as well.

23.  Anyway, when Madam Young and Mr Wang entered into the 2^nd Marriage Ceremony, “they changed their personal law” in that the presumed earlier marriage was superseded by the latter, which meant that even if they had wished to, they were no longer free to add a concubine to the marriage, and it followed reasonably that they were not free to seek a divorce by any means other than that prescribed by the law for marriages contracted under the Marriage Ordinance.

24.  As Professor Baker had said had a successful attempt been made, it would have terminated both the 1^st Marriage Ceremony and the 2^nd Marriage Ceremony.  On the other hand, if the Chinese Divorce Agreement had been made when the Marriage Reform Ordinance came into force in 1971, and if it had been validly realized, it seemed possible that a divorce could have been granted under s 15 (2) of that Ordinance.

25.  In any event, Professor Baker concluded that Madam Young and Mr Wang were not validly divorced under the Chinese Divorce Agreement and were not eligible to enter into subsequent marriage with another person.

Validity of Madam Young’s Marriage to Mr Chiu in Macau

26.  Mr Jose Espirito Santo Leitao, a lawyer practicing in Macau for 7 years and familiar with the matrimonial law in Macau gave evidence on behalf of P on purported marriage between Madam Young and Mr Chiu in Macau on 3 July 1958.  I accepted his evidence as set out below.

27.  Mr Leitao was of the view that the marriage between Madam Young and Mr Wang contracted in Hong Kong was recognized in Macau.

28.  Under Macau law, a marriage conducted in accordance with Chinese customs after 1 May 1987 and if not registered, it would be invalid under the Macau law.  If such a marriage was concluded before 1 May 1987, even if not registered, it would still be valid.

29.  Further, Mr Leitao pointed out, according to the Portuguese Civil Code of 1867 which was in force in Macau in 1958, a person who was still legally married to another may not enter into a marriage with another person other than his or her spouse in Macau, and the latter marriage would be null for all purposes.

30.  Mr Leitao was of the view that in accordance with the Macau conflict of law rules and under the assumption that Madam Young was a Chinese national, the applicable law to determine the validity of her marriage and Mr Chiu would be the Chinese law.  Further based on the opinion of the Supreme People’s Court in Mainland China (which was requested by the Last Instance Court of Macau to express its opinion in Proceedings no 36/2004), under the Chinese law, since the first marriage between Madam Young and Mr Wang had not been dissolved, the second marriage of Madam Young and Mr Chiu would be invalid.  Thus, the purported marriage between Madam Young and Mr Chiu was not valid.

Validity of Mr Wang’s Singapore marriage with Madam Kwek

31.  Mr Akramjeet Singh Khaira has been practicing in matrimonial probate and estate administration law in Singapore for 18 years. He had filed an affirmation in relation to the marriage between Mr Wang and Madam Kwek.  I accepted Mr Khaira’s evidence.

32.  Mr Wang married Madam Kwek after the Women’s Charter came into force in Singapore, and thus the validity of that marriage would be governed under the Women’s Charter.  Bigamy has been made illegal in Singapore under the Women’s Charter since 15 September 1961.

33.  Mr Khaira was of the view that assuming Madam Young’s marriage to Mr Wang was valid and the Chinese Divorce Agreement did not have the legal effect of putting an end to that marriage and there was no known valid court order or decree of divorce, legal separation or annulment of the marriage  made by the courts of Hong Kong or any other country, Mr Wang would have been regarded as still being lawfully married to Madam Young as at 3 September 1969 and thus his attempted marriage to Madam Kwek was void being in contravention of the Women’s Charter.

Madam Young’s domicile at the time of her death

34.  The evidence indicated that Mr Wang moved to Singapore in 1954 and that in April 1958 he only returned to Hong Kong to sign the Chinese Divorce Agreement with Madam Young, and then he went back to Singapore to purportedly marry Madam Kwek.   I accept that Singapore became Mr Wang’s domicile of choice since as early as 1954 when he moved there, or in any event no later than his purported marriage with Madam Kwek.  By 1969, Mr Wang already had a National Registration Identity Card of Singapore, and he lived and died in Singapore in 2006.  I accept that Mr Wang’s domicile was Singapore since at least 1958 until he died in 2006.

35.  Mr Khaira was of the view that as Madam Young was still married to Mr Wang then under the laws of Hong Kong at the time of Madam Young’s death in 2003, if the domicile of Madam Young was to follow that of her lawful husband, namely Mr Wang, then it would have been Singapore.

36.  Mr Lau referred this court to Y v W, FCMC 1847 of 2011, unreported judgment dated 11.08.2011.  As stated therein, the domicile of dependency of married women was only formally abolished as from 1 March 2009 with the coming into effect of the Domicile Ordinance.

37.  Having considered the above, I accepted that at the date of her death, Madam Young was domiciled in Singapore and that Singapore law on succession and intestacy should apply to the estate of Madam Young.  The beneficiaries of Madam Young’s estate under the Singapore Law on succession of an intestate’s estate are as follows:

(i) Mr Wang, being the only lawful spouse of Madam Young at the time of her death, by virtue of the 1^st Marriage Ceremony and the fact it was never terminated;

(ii) P, being Madam Young’s lawful and natural son;

(iii) D, being lawfully and validly adopted under the laws of Hong Kong by Madam Young and Mr Chiu and whose adoption is recognized under the laws of Singapore.

38.  Under the Singapore law on succession, the respective entitlements of the beneficiaries are as follows:

(i) Mr Wang’s estate is entitled to ½ of Madam Young’s estate;

(ii) P and D are entitled to equal portions of the other ½ of Madam Young’s estate.

39.  The position under the Hong Kong law is similar save that under s 4(3) of the Intestates’ Estates Ordinance Cap 73, Mr Wang’s estate may be entitled to the personal chattels of Madam Young and a net sum (currently HK$500,000) free of death duties with interest from the date of death until payment.

40.  In any event, I understood at the hearing that P accepted the provisions under the Singapore law in relation to the respective entitlements of the beneficiaries.  D also had no objection thereto.

Grant of letters of administration of the estate

41.  Mr Khaira stated that P would be entitled to the grant of letters of administration of Madam Young’s estate under the laws of Singapore, taking into account all the relevant circumstances, and the grounds provided briefly are as follows:

(i) Under the relevant statutory provision, the Court has discretion as to who the grant of letters of administration of an intestate’s estate ought to be given to.  The priority of grant will be determined according to priority of beneficial entitlements to the deceased’s estate under the laws of intestate succession.

(ii) The beneficiaries with the greatest entitlement to the deceased’s estate would naturally be the person most interested in the deceased’s estate.

(iii) Under the laws of Singapore, Mr Wang died intestate and domiciled in Singapore.  P would be solely entitled to the residuary estate of Mr Wang, and would be the sole beneficiary of Mr Wang’s entitlement in Madam Young’s estate.  As a result, P would be entitled to 3/4 of Madam Young’s estate.

(iv) Given that P would be entitled to majority of Madam Young’s estate, under the laws of Singapore, P would have priority over D to obtain grant of the letters of administration of Madam Young’s estate.

(v) Furthermore, on the evidence, there was no other reasonable alternative candidate to be appointed as administrator and grant of administration to P would be in the best interests of Madam Young’s estate:

a. Rosalind, the executor of Madam Kwek’s estate, had waived and renounced any entitlement which Madam Kwek’s estate had in Madam Young’s estate, so no prejudice would be caused, although bearing in mind that under the laws of Singapore Madam Kwek’s estate would not appear to be entitled to the estate of Mr Wang in the first place.

b. D had not indicated that she would be willing to accept appointment as administrator of Madam Young’s estate. No application for grant of letters of administration had been made by D.  In any event, she would only have a minority share in the estate.

c. Madam Young’s estatewas not particularly large, and consisted solely of movables held in bank accounts and safety deposit boxes, and it would be unnecessary, and disproportionate, to appoint an independent professional administrator.

42.  P now resides in the United States. To facilitate matters, P intends to arrange for his lawful attorney in Hong Kong to obtain the grant.

43.  Rule 30 of the Non Contentious Probate Rules provides as follows:

“Where a person entitled to a grant resides outside Hong Kong, administration may be granted to his lawfully constituted attorney for his use and benefit, limited until such person shall obtain a grant or in such other way as the Registrar may direct:

  Provided that where the person so entitled is an executor, administration shall not be granted to his attorney without notice to the other executors, if any, unless such notice is dispensed with by the Registrar.”

44.  Having regard to all the above, I accepted Mr Lau’s submissions and ordered grant of letters of administration of Madam Young’s estate be to P or his lawfully constituted attorney pursuant to Rule 30.

Conclusion

45.  P undertook at the hearing to lodge the original or a certified true copy of the Chinese Divorce Agreement within one month after the grant of letters of administration of Madam Young’s estate.

46.  To summarise and for avoidance of doubt, upon the above undertaking, I formally declared at the hearing that the Chinese Divorce Agreement was invalid and of no effect, and at the date of Madam Young’s death, she remained legally married to Mr Wang.  I further declared that Mr Wang’s estate, P and D were the only beneficiaries in Madam Young’s estate and that grant of letters of administration be made to P or his lawfully constituted attorney. 

47.  As for costs, I ordered all P’s costs and D’s costs be paid from Madam Young’s estate.