WONG ZHONG LAN-XIANG AND OTHERS v. FRANK WONG AND ANOTHER

CACV 242/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 242 OF 2002

(ON APPEAL FROM HCAP NO. 900002 OF 1995)

____________________

____________________

Date of Handing Down Judgment: 4 April 2003

____________________

J U D G M E N T

____________________

Hon Rogers VP:

1. I agree with the judgment of Le Pichon JA.

Hon Le Pichon JA:

2. This is an appeal in a probate action concerning the estate of a deceased by the name of Wong Yee Man (黃以文) also known as Wong Yu-Man (黃宇文) who died intestate on 14 December 1970 ("the deceased"). The 1st plaintiff claimed to be the widow of Wong Yee Man and the 2nd to 5th plaintiffs their lawful children. The 1st plaintiff sought a declaration that she was entitled to a grant of letters of administration to the estate of Wong Yee Man and that she and her four children are together beneficially entitled to the deceased's estate.

3. Prior to her death in 1992, Madam Hom Shee had claimed that Wong Yee Man and Wong Wing Song were one and the same person, that he had married Madam Hom Shee first and that therefore Madam Hom Shee and her children rather than the plaintiffs are entitled to his estate which, for practical purposes, consists of a piece of land and the building thereon known as 64 Tong Choi Street in Mongkok ("the property"). The property is registered in the name of Wong Yee Man and according to the land records, it was assigned to him in January 1937.

4. Madam Hom Shee died in New York in 1992, having by her Will appointed two of her sons as her executors. Letters testamentary were granted to one of her sons, namely, Frank Wong otherwise known as Kai Kock Wong. Frank Wong is sued in two capacities: as executor of the last Will of Madam Hom Shee (as the 1st defendant) and in his personal capacity (as the 5th defendant), being one of the children of Wong Wing Song and Madam Hom Shee. Originally, four other siblings of Frank Wong had been joined as the 2nd, 3rd, 4th and 6th defendants but the action against them was discontinued with the leave of the Court in November 1998 prior to the service of the proceedings on them. These other defendants were believed to live in the United States but their whereabouts were not known to the plaintiffs.

The proceedings below

5. Quite simply, the 1st plaintiff's case is that she was married to the Wong Yee Man who had purchased the property in January 1937. The deputy judge found that there was ample material to establish that fact. Therefore the issue before the deputy judge was one of identity: whether the defendants were able to establish that Wong Wing Song whom Madam Hom Shee had married in Taishan in 1921 and Wong Yee Man who had purchased the property in 1937 were one and the same person. The defendants were put to strict proof. However, the identity issue did not crystallise as the real issue between the parties for some time after the commencement of the action as appears from the history of the litigation which is outlined below.

6. The action first came on for trial in July 2000. On the first day of the trial, the plaintiffs were given copies of documents obtained from the immigration files of the US National Archives ("the US records") running to well over 100 pages. The first trial was aborted and the case adjourned to a date to be fixed. In October 2001, the plaintiffs amended their Reply and Defence to the Re-Amended Counterclaim of the 1st defendant. By paragraph 1A, the plaintiffs expressly denied that Wong Wing Song was the deceased or that Wong Wing Song was the alias of the deceased. This caused the defendants to apply to adjourn the second trial date which had been re-fixed to commence on 3 December 2001. The amendment and the filing by the 1st plaintiff of an affirmation stating that Wong Wing Song, the person described in the US records, was not her husband Wong Yee Man made the identity issue become a live issue for the first time, although the US records had been supplied to the plaintiffs some fifteen months earlier and documents filed in the litigation which had commenced in 1995 had stated that Wong Yee Man was also known as Wong Wing Song. The second trial date was adjourned and the trial did not commence until 18 March 2002.

7. It is relevant to note that two days prior to the third trial date, the defendants produced an inventory of the contents of a safe deposit box ("the inventory") which had been opened in the name of Wong Wing Song at the Hongkong & Shanghai Banking Corporation ("the Bank"). On the first day of the trial, they also produced certain correspondence with the Estate Duty Office which, after argument, was admitted by way of hearsay.

The evidence

8. As noted above, Madam Hom Shee died in 1992, several years prior to the commencement of the probate action. The defendants did not call any oral evidence and relied exclusively on documentary evidence to prove their case. Broadly speaking, this comprised (i) the US records consisting of three separate files with overlapping material, relating to Wong Wing Song, Madam Hom Shee and Wong Kock Ning their eldest son respectively; and (ii) what, for convenience, may be called "the Chan Tak Fan papers" consisting of a sale and purchase agreement of the property entered into in 1976 and certain related conveyancing documents and the inventory taken in 1977 for estate duty purposes.

The US records

9. The facts as disclosed by the US records may be summarised as follows. Wong Wing Song was born on 8 November 1904, the eldest son of Wong Hung Kay, a US citizen who died in Jamestown, New York in 1918. Wong Wing Song had two brothers and no sister. He first arrived in the US in 1923, having married Madam Hom Shee in Taishan in 1921. When Wong Wing Song first arrived in the US, his witnesses were Ng Fook, a friend of his late father's and Wong Sing from whom he had bought a plot of land in his native village prior to his marriage with money that he had been left by his late father. Wong Wing Song was admitted to the US as the son of Wong Hung Kay.

10. In 1926, he visited China, returning to the US in 1927. The next visit to China was in 1930. He returned in 1931 together with his wife Madam Hom Shee and a son, Wong Kock Ning, then aged three. The records showed that he made another visit to China in October 1937, returning in June 1938.

11. Madam Hom Shee and Wong Wing Song had 9 children. The eldest, a daughter, was born and remained in China: she was never taken to the States. Kock Ning's twin brother died in infancy in China. Thereafter, there were six children born in the US. The names and dates of birth gleaned from the transcript of Madam Hom Shee's testimony when she first entered the United States in 1931 and a report dated March 18, 1946 of an interview conducted with Madam Hom Shee by the immigration authorities upon her complaint of desertion are as follows:

Name	Sex	Date of birth
Wong Shu Ho	F	(before 1928)
Wong Kock Ning	M	6.1.1928
Wong Kock Hong	M	6.1.1928 (died in infancy)
Wong Kock On	M	27.8.1931
Wong Chau Fung	F	15.2.1933
Wong Kock Fung	M	9.2.1936
Wong Kai Kock (Frank Wong)	M	17.7.1938
Wong Chau Kim	F	11.3.1940
Wong Chau Chee	F	12.5.1941

12. Shortly before 24 January 1946, Madam Hom Shee's attorney filed a complaint to the effect that Wong Wing Song had abandoned his wife Madam Hom Shee and their children in November 1943. It was alleged that Wong Wing Song had taken the second son, Wong Kock On (born in 1931) with him, planning to return to China, that Wong Wing Song had also taken the birth certificates of the six children born in the US with the intention of selling them in China. There is no record in the US records of Wong Wing Song and Kock On leaving the US although there is a suggestion that the immigration files between 1937 and 1946 may be incomplete due to a warehouse fire. Nevertheless, investigations conducted by the US immigration authorities to locate Wong Wing Song and Kock On, specifically in New York and Seattle, in 1946 to early 1948 following Madam Hom Shee's complaint, yielded no results.

13. The US records included transcripts of the oral examinations of Wong Wing Song by the US immigration authorities on various occasions between 1923 and 1936, the oral examination of his witnesses in 1923 and the oral examination of Madam Hom Shee when she applied to be admitted to the US in 1931. They all gave sworn evidence to the effect that Wong Wing Song had no other name and had not adopted a different marriage name.

14. Mention must be made of two other documents in the US records. The first is in the file relating to Wong Kock Ning. It is a letter dated 21 June 1944 from the principal of Public School No. 23 in the Borough of Manhattan certifying that according to the records of the school, Kock Ning's father's name was "Yee Moon (Wing Shong)". How that certification came to be given is not known. It is apparent from the certification that Kock Ning had attended that school between February and November 1939. The relevant school records must therefore date from 1939 although their exact nature is not known. However, in the file relating to Wong Wing Song, there is another certificate relating to Kock Ning and his attendance at that school between February and November 1939 issued by the same school in February 1946. His father's name was stated to be "Wong Wing Shong". There was no reference in that letter to Yee Moon or any other name. How this certification came to be issued and on what records it was based are again unknown. The second document is an office memorandum dated 18 March 1946 of the US Government where there is a reference to Wong Wing Song being also known as "Moon Wong". But, as the judge below noted, there was no direct evidence of the source(s) of information of the other names of Wong Wing Song.

The Chan Tak Fan papers

15. There is a sale and purchase agreement dated 16 September 1976, expressed to be made between Chung Lan Heung (being the Cantonese rendition of the name of the 1st plaintiff), "the intended administratrix of the estate of Wong Yee Man alias Wong Wing Song deceased" as vendor of the property and Chan Yue Chung as purchaser ("the 1976 agreement") for the sum of $420,000.00. The 1976 agreement referred to the vendor being in the course of making an application for a grant. Clause 14 proceeded on the basis that a grant would be obtained by the first anniversary of the agreement. There was, in addition, a provision to the effect that if the vendor should fail to obtain a grant of letters of administration within a year from the date of the agreement, the purchaser would have the option of either extending the time for a further period of six months after one year to enable the vendor to obtain the grant by serving a notice in writing to that effect or cancelling the agreement at the expiration of the one year. The agreement was drafted for execution by the 1st plaintiff herself rather than by her attorney. But the signatory was not the 1st plaintiff. Rather, it was one Chan Tak Fan ("Madam Chan"), the elder sister of the 1st plaintiff's son-in-law, (i.e. the husband of her eldest daughter), as if she were the vendor.

16. The memorial, however, contained the following statement:

"Witness to the signature of the Vendor by her lawful Attorney Chan Tak Fun". (emphasis added)

The memorial was certified by a solicitor of Messrs Yung, Yu, Yuen & Co. There was no evidence of any power of attorney ever having been executed by the 1st plaintiff in favour of Madam Chan. The purchaser under the 1976 agreement ("the confirmor") entered into a contemporaneous sub-sale agreement as confirmor which made the sub-sale subject to the terms and conditions contained in the 1976 agreement. A deposit and part payment in the sum of $30,000.00 was paid under the sub-sale agreement. The sub-sale agreement was subsequently cancelled by a cancellation agreement dated 26 August 1980 made between the parties to the sub-sale in consideration of the payment of $120,000.00 by the confirmor to the sub-purchasers. That amount was apparently a refund of monies paid by the sub-purchasers to the confirmor under the sub-sale. The 'refund' by the confirmor is not readily explicable since under the sub-sale, no more than $30,000.00 had been paid to the confirmor.

17. It is to be noted that letters of administration were never granted either to the 1st plaintiff or to Madam Chan within the period envisaged by the 1976 agreement and completion of that sale never took place.

The inventory

18. It would appear that an application for estate duty clearance had been made by the date of the 1976 agreement by Madam Chan through her solicitors Messrs Yung, Yu, Yuen & Co. as a prelude to an application for representation of the estate of "Wong Yee Man alias Wong Wing Song, dec'd". A safe deposit box had apparently been opened in the name of Wong Wing Song at the head office of the Bank. On 15 April 1977, in the presence of representatives from the estate duty office, a tax inspector, Madam Chan and her solicitors, the box was opened and an inventory of its contents made. The inventory listed 14 items including a key deposit receipt for the box for HK$20.00 in the name of Wong Wing Song, an assignment of the property to Wong Yee Man registered at the Land Office on 29 January 1937, the US birth certificates of the children of Wong Wing Song born in the US other than that of Kock On and share certificates dated 17 October 1921 in, and a dividend booklet of, the Honour Manufacturing Co. Ltd in the name of Wong Yuen Yin. What has become of the contents remains a mystery. Be that as it may, on 10 December 1978, estate duty clearance was obtained by Messrs Yung, Yu, Yuen & Co. It should be mentioned that inquiries were made of the Bank by the defendants' solicitors as to, inter alia, when the box was opened and who the holder was. It would appear that the Bank had no information. In any event, no subpoena was issued at the trial to any officer of the Bank. There was no evidence as to who actually 'maintained' the box, in particular, during the period of 6 to 7 years after Wong Yee Man's death.

19. Madam Chan was obviously the person best able to explain how she came to know (1) that Wong Yee Man had an alias of Wong Wing Song and (2) of the existence of the safe deposit box. What emerged from the correspondence between the defendants' solicitors and the estate duty office is that the inventory was supplied to the defendants in March 1990. Madam Chan was a Hong Kong resident. It is unclear what (if any) efforts were made by the defendants to locate her whereabouts. In any event, she was not called as a witness for the defendants at trial. Pausing here, the deputy judge commented adversely on the plaintiffs' failure to call either Madam Chan and/or the 2nd plaintiff and/or her husband as witnesses. But so far as the plaintiffs are concerned, they were put in an impossible position inasmuch as the inventory was only disclosed two days before the third trial date. That did not leave them adequate time to take instructions, much less locate Madam Chan. Whilst the 1976 agreement had been disclosed much earlier, the 1st plaintiff's position was that she knew nothing about it and had never authorised Madam Chan to act as her attorney. The need for Madam Chan's evidence only emerged through the disclosure of the inventory but, as noted above, the plaintiffs were disadvantaged by the late disclosure which not only made it impossible for them to locate Madam Chan but also to make the necessary arrangements to call the 2nd plaintiff and/or her husband (having regard to their relationship to Madam Chan) who lived on the Mainland.

Other documentary evidence

20. Before turning to the plaintiff's evidence, for chronological purposes, it would be convenient to refer to certain documents relating to the property or the deceased's estate involving Madam Hom Shee or the defendants. According to Madam Hom Shee, Wong Wing Song deserted her in November 1943. 37 years later, Madam Hom Shee entered into a sale and purchase agreement dated 6 November 1980 ("the 1980 agreement") as vendor, describing herself as the "kit-fat widow of Wong Yee Man (黃以文), also known as Wong Wing Song (黃榮相) late of Hoi Chun District, city of Kwangchow, China". Prior to that date, there had been no reference by Madam Hom Shee to anyone by the name of Wong Yee Man, much less that it was her late husband's name. The purchaser was one Choy Wai Bor ("Mr Choy") of Hong Kong. Madam Hom Shee as vendor agreed to sell the property registered in the name of Wong Yee Man to Mr Choy for $1.5 million upon issuance of letters of administration to the "estate of WONG YEE MAN, also known as WONG WING SONG". In addition to the purchase price, Mr Choy also agreed to pay all attorney's fees in connection with the agreement, all probate and administration proceedings, estate taxes in excess of $40,000.00 and fees for conveyancing documents whilst Madam Hom Shee agreed "to cooperate in obtaining proof of death of her late husband Wong Yee Man also known Wong Wing Song". This agreement was registered at the Land Registry some five years later, in October 1985.

21. The 1980 agreement contained a number of factual assertions, namely, that:

* Madam Hom Shee was the kit-fat widow of Wong Yee Man;

* Wong Yee Man was also known as Wong Wing Song;

* Wong Yee Man was "late of Hoi Chun District, city of Kwangchow";

* Wong Yee Man was the registered owner of the property;

* Wong Yee Man passed away on 14 December 1970.

Quite how 37 years after her 'desertion' by Wong Wing Song Madam Hom Shee came to know these 'facts' cried out for an explanation but none was forthcoming. The defendants chose not to call any oral evidence when both Mr Frank Wong and Mr Choy would have been in a position to shed at least some light on these assertions and/or the source(s) of information on which they were based.

22. Resuming the chronology from the defendants' documents, the next event was the filing of an estate duty affidavit by Mr Choy pursuant to section 3 of Cap. 111 in September 1986, as attorney for the person entitled to administration, for letters of administration to the "estate of Wong Yee Man also known as Wong Wing Song of Hoi Chu District, city of Kwangchow". The affidavit disclosed only one asset, namely, the property. Statement "X" listed the persons entitled under the intestacy as Madam Hom Shee and six children, including the 5th defendant. Neither the eldest daughter who had been left behind in China nor Kock On whom Wong Wing Song had apparently taken with him in 1943 was mentioned. Statement "Y" stated that Wong Yee Man was the name "given by parent for all purposes" and Wong Wing Song as the name "adopted by [the deceased] for social purposes". The affidavit also stated that the deceased died on or about 14 September 1970 in China.

23. There followed correspondence with the Estate Duty Office. The solicitors from Mr Choy were advised that clearance papers for estate duty had been issued to Yung, Yu, Yuen & Co., solicitors for the applicant Chan Tak Fan on 10 December 1978. Estate duty assessed on the value of the property was settled by Mr Choy some time after the end of February 1988. In May 1989, Mr Choy was asked to file and lodge a corrective affidavit relating to the key deposit of a safe deposit box with the Bank and the value of contents of the box at HK1,575.25. This was duly complied with and additional duty paid. In October 1989, Mr Choy's solicitors asked for a copy of the inventory listing the contents of the safe deposit box. This was eventually provided to Mr Choy's solicitors in March 1990.

24. Madam Hom Shee passed away in April 1992 and probate of her Will was granted to the 5th defendant, one of the two executors named in her Will. In November 1992, the 5th defendant appointed Mr Choy as his attorney to apply for letters of administration in respect of the deceased's and Madam Hom Shee's estate. On 29 July 1994, Mr Choy applied for a letters of administration to the estate of Wong Yee Man alias Wong Wing Song. The affirmation stated that the deceased left surviving him Madam Hom Shee as his lawful kit-fat widow and six children only. No mention was made either of the daughter left in China or of Kock On who 'disappeared' together with the deceased in November 1943. It further asserted that the deceased had no other issue or issues whether male or female and whether predeceasing or surviving him save for the six named children. Those statements are in direct conflict with the information contained in the US records.

The plaintiffs' evidence

25. The 1st plaintiff, who was over 80 years of age at the date of the trial, gave evidence on behalf of the plaintiffs. She was born in the year of the rooster which the deputy judge took to be 1919. When she was eleven according to Chinese reckoning, she was brought to Hong Kong by her parents to work as a maid. When she was 16, she met an American Chinese by the name of Wong Yee Man. They started dating and Wong Yee Man proposed to her. She accepted his proposal provided that a property was bought for rental collection in her favour. As a result, the property was acquired. According to the 1st plaintiff, her marriage to Wong Yee Man took place in 1939 in Hong Kong. A banquet or reception was held in a hotel attended by 7 or 8 guests including Wong Yee Man's mother. After the wedding, the 1st plaintiff, Wong Yee Man and Wong Yee Man's mother returned to live in Nam Hong Village, Taishan, the native place of Wong Yee Man. Upon their return, another wedding ceremony or banquet was held in China.

26. The 1st plaintiff's evidence was that Wong Yee Man never left her after the two met and certainly never left her after their wedding day. It was her evidence that after they had settled in Taishan, they never returned to Hong Kong. They lived in Taishan until 1953 or 1954 when Wong Yee Man's mother died. The couple then moved to Kwangchow. There were four children of the marriage, born in 1949, 1950, 1954 and 1962 respectively. The 1st plaintiff stated in evidence that her husband was also known as Wong Yu Man but not as Wong Wing Song or Shong or Moon Wong or Wong Yee Moon mentioned in the US records. It was also her evidence that the rental income from the property had been collected by one Mr Lau on behalf of the deceased in Hong Kong and remitted to China until the deceased's death in 1970. Thereafter, only one further payment had been received. Mr Lau is believed to have emigrated to the US after that.

27. The plaintiff stated in evidence that she knew nothing about the safe deposit box. She had only met Madam Chan once, after her husband's death and thought her arrogant. She denied ever having authorised Madam Chan as her attorney to apply for letters of administration or to sell the property or ever having told her eldest daughter ( i.e. the 2nd plaintiff) about the property.

28. On 11 September 1986, the 1st plaintiff entered into an agreement in Chinese to sell the property to Ho Yin Man for $900,000.00. The agreement recited that her children had renounced their right of inheritance in her favour. Despite a 30 month period for completing all the formalities, completion has never taken place. Then in July 1993, the 1st plaintiff appointed one Ho Yin Wing as her attorney to apply for letters of administration to the deceased's estate.

29. As the deputy judge noted, the 1st plaintiff's evidence directly contradicted the defendants' case that Wong Yee Man and Wong Wing Song were one and the same person.

The judgment below

The identity issue

30. The deputy judge came to the conclusion that Wong Yee Man and Wong Wing Song were one and the same person. He did so mainly because

(i) he found the 1st plaintiff's evidence unsatisfactory in many respects even after making due allowance for her advanced age, her physical condition and her senility. In particular, he rejected her evidence that whether before or after marriage, her husband never left her side; that she knew nothing about Madam Chan's obtaining clearance of her estate duty and Madam Chan's attempt to sell the property in the plaintiff's name; that she had never told the 2nd plaintiff about the property in Hong Kong. The deputy judge commented adversely on the fact that neither the 2nd plaintiff nor her husband nor Madam Chan was called to give evidence;

(ii) Madam Chan had asserted in the clearance process as well as in the attempted sale in 1976 that Wong Yee Man had an alias Wong Wing Song and as Madam Chan had no connection with the defendants, her knowledge relating to Wong Yee Man must, on the balance of probabilities, have come from the plaintiffs;

(iii) he inferred from the evidence that Madam Chan was the 1st plaintiff's attorney in obtaining estate duty clearance and in attempting to sell the property in 1976;

(iv) the safe deposit box was opened in the name of Wong Wing Song and it contained the US birth certificates of five of Madam Hom Shee's children as well as the assignment of the property to Wong Yee Man in 1937 which was "the requisite link to connect Wong Wing Song of the United States and Wong Yee-man of Hong Kong and the Mainland."

31. The deputy judge appreciated that there were many discrepancies between the family particulars of Wong Wing Song as disclosed by the US records and those gleaned from the certificate issued by the notarial office of Kwangdong Province in 1993 and the 1st plaintiff's oral evidence. In submission, counsel for the defendants proferred the 'theory' that Wong Yee Man simply pretended to be the son of an American Chinese bearing the name of Wong Wing Song for the purpose of applying for immigration to the States. The deputy judge accepted this 'theory' which he considered would resolve most, if not all, of the discrepancies mentioned earlier although a consequence of accepting the theory was that not only the deceased but also Madam Hom Shee as well as the two American witnesses gave false testimony before the US immigration authorities. He considered the 'theory or speculation' at least credible and went on to say this (at paragraph 42):

" ... I do not find the suggestion that Wong Yee-Man impersonated himself as Wong Wing Song in order to gain entry to the States something totally incredible or unbelievable. I treat it as a possibility or possible explanation for the discrepancies disclosed by the national archive papers that I should put in the scales in deciding whether the Defendants have successfully proved that the two gentlemen were one and the same person on the totality of the evidence before me. And of course if the story of impersonation was true, that would explain away the different birthdays, the mother, the sister, the home village, and generally why Wong Wing Song became Wong Yee-Man again after he left U.S. soil for good."

Validity of Madam Hom Shee's marriage to the deceased

32. As to the validity of the marriage between the deceased and Madam Hom Shee, it was common ground that the applicable law of the Mainland in 1921 was Chinese customary law. What was not common ground was whether there had to be expert evidence to prove at the Chinese customary marriage. The deputy judge summarised what little evidence there was of the customary marriage (in para. 49 of the judgment) as follows:

"In the national archive papers, the marriage was said by the couple to have been contracted according to the old Chinese custom. They had a red marriage paper to prove their marriage which was left in China. The bride was carried to the husband's home village by sedan chair and arrived at noontime. There was a go-between who arranged the marriage. Bride and bridegroom had not met each other prior to marriage. Some jewellery was given to the bride prior to the marriage or wedding. A wedding feast was held and was attended by guests. After marriage, a twin and a daughter were born to the couple before the deceased emigrated to the States. In 1931, he successfully applied for his wife and his surviving twin son to reunite with him in the States, leaving behind their daughter with his mother in the home village."

He referred to the fact that there was no expert evidence as to whether what was described constituted a customary marriage. The deputy judge considered that the Full Court in Tai Lee Construction Company v Tsang Ching Hing [1966] HKLR 868 decided that expert evidence was not essential. If the matter had been free from authority, he would have come to the view that expert evidence was not indispensable so far as proving a valid Chinese customary marriage was concerned. It all depended on the circumstances. He found on the balance of probabilities that Madam Hom Shee and the deceased had contracted a valid marriage according to the applicable prevailing custom in that part of the Mainland where they resided at the material time.

33. The deputy judge also accepted the defendants' alternative submission that in any event a common law marriage arose after the couple emigrated to the States. He found that the deceased and Madam Hom Shee had acquired a domicile of choice in New York at the latest by 1931. Expert evidence was adduced to the effect that common law marriages were not abolished in New York until 29 April 1933 and common law marriages were generally recognised as valid if entered into New York State prior to that date. Common law marriage is any mutual agreement between the parties to be husband and wife in praesenti. For a common law marriage, no formal ceremony was essential: it is sufficient if the evidence establishes that legally competent parties in praesenti intended to become husband and wife and thereafter lived and cohabited as husband and wife. The defendants' expert opined that the relationship between the deceased and Madam Hom Shee met the statutory and case law requirements for a valid common law marriage in the State of New York, that the marriage was a valid legal marriage with the same force and effect as a ceremonial marriage in the State of New York and that it could only be determined by the death of one of the parties or a valid legal decree of divorce issued by a court of appropriate jurisdiction. The deputy judge accepted the expert's evidence and concluded that a valid common law marriage was contracted either in 1931 or shortly thereafter and in any event no later than 29 April 1933. (Although the date mentioned in paragraph 58 of the judgment is 1934, that was clearly a mistake for 1933 having regard to the expert evidence that was accepted.)

Validity of the 1st plaintiff's marriage with the deceased

34. The deputy judge went on to consider the capacity of the deceased to contract a valid marriage with the 1st plaintiff at a time when he was already married to Madam Hom Shee. That question turned on the deceased's domicile at the date of his marriage to the 1st plaintiff. The deputy judge concluded that he had a domicile of choice in New York at the time and therefore lacked the capacity to marry the 1st plaintiff. But the deputy judge went on to observe that had the deceased been domiciled in China at the time, he would have had the necessary capacity to contract a valid marriage with the 1st plaintiff, conferring on her the status of a wife.

Succession to the deceased's estate

35. The deceased died intestate in 1970 in China. The deputy judge accepted the expert evidence adduced that succession to his estate whether of movable or immovable property is governed by Chinese customary law. Accordingly, all the sons of the deceased, whether legitimate or legitimate, are entitled to the residuary estate in equal shares, subject to the widow(s) first claim to maintenance for life from the time of the deceased's death in 1970. All daughters surviving and unmarried at the time of the deceased's death in 1970 are entitled to a claim for maintenance until marriage and a claim for dowry on marriage out of the same.

Grant of representation

36. In the exercise of his discretion, the deputy judge ordered that letters of administration be granted to the 5th defendant or his lawful attorney subject to such conditions and as the Probate Registry may see fit to impose as a matter of normal practice in a case of a foreign administrator or representation by attorney.

This appeal

37. At the commencement of the appeal hearing, the court remarked that one way of establishing that Wong Yee Man and Wong Wing Song were one and the same person would be to have a DNA test conducted on the known descendants. At the conclusion of the appeal hearing, counsel for the 5th defendant advised the court that his client was willing to undergo such a test. By letter dated 24 December 2002, the court inquired of the plaintiffs' solicitors what the stance was of their clients other than the 1st plaintiff relating to the taking of a DNA test. The plaintiffs' solicitors replied on 31 December 2002 indicating that their clients were willing to undergo the test. The parties were able to agree the necessary procedures for the DNA test. Each side nominated a laboratory and both laboratories were appointed to carry out a siblingship test between the 2nd to 5th plaintiffs and the 5th defendant.

The identity issue

38. In view of that development, it is unnecessary to deal with the plaintiffs' challenge to the deputy judge's findings, in particular the consequences of the deputy judge proceeding on the erroneous assumption that the year of the rooster was 1919 when in fact it was 1921. The deputy judge's disbelief or rejection of the 1st plaintiff's evidence had much to do with the timing of various events emerging from her evidence which, if her year of birth was 1921 rather than 1919, would all fit in save for the fact that the acquisition of the property was made earlier on during the courtship rather than shortly prior to the marriage. Equally, it is unnecessary for the court to consider the 'theory' advanced by the respondent's counsel which the deputy judge embraced. Suffice to say that there were serious difficulties of logic with it.

39. Given the results of the DNA test, the identity issue has been conclusively resolved. The reports from the laboratories are exhibited to affirmations dated 25 March 2003 and 31 March 2003, made by Cheung Chi Yu and Ho Yin Wing respectively which, by consent, have been admitted into evidence. Both laboratories have reached similar conclusions, namely that the 5th defendant is a sibling of the 2nd to 5th plaintiffs and that the Y-chromosome analysis shows that the 5th defendant and the 2nd and 5th plaintiffs share a common male lineage.

40. The deceased had 6 sons who survived him, 4 with Madam Hom Shee and 2 with the 1st plaintiff. Although Kock Ning, Kock On and Kock Fung (the elder brothers of Mr Frank Wong) have not taken the DNA test, I do not consider that, on the facts, it is necessary for them to do so as a prerequisite to taking on the deceased's intestacy since they were born well before the 1st plaintiff met the deceased. The 6 sons thus stand to take the residuary estate in equal shares subject to (1) the claims of Madam Hom and the 1st plaintiff (if any) and (2) the claims of daughters who were unmarried at the date of his death. These claims are considered below.

Validity of the marriage between the deceased and Madam Hom Shee

41. The deputy judge found for the validity of the marriage: either there was a valid Chinese customary marriage, alternatively, there was a valid common law marriage according to New York law. As to the finding of a valid marriage under Chinese customary law, the plaintiff submitted that the deputy judge was wrong in holding that expert evidence of the customary marriage was not necessary. It was said that the observations of the court in the Tai Lee case on this issue were obiter in that there had been a finding in the hearing below that the claimant was a dependent of the deceased workman and it was thus not necessary to prove adoption.

42. I do not agree. The plaintiffs' analysis of the Tai Lee case is incorrect. For the claim of the 1st applicant in that case to succeed as a "dependent" for the purposes of Cap. 282, he had to show not only that he was "dependent" upon the deceased workman's earnings in whole or in part, but that he was also a "member of the family". Therefore, the relationship by adoption had to be proved. It was in that context that the Full Court stated that it was not essential that there should be expert evidence.

43. In dealing with the question whether there had been a valid marriage according to Chinese customary law, the deputy judge adopted a pragmatic and, if I may say so, thoroughly sensible approach: it was a question of fact to be resolved by reference to direct, inferential and circumstantial evidence on a balance of probabilities. I have already referred to the deputy judge's findings of what happened on the wedding day as disclosed by the US records. The plaintiffs were unable to point to anything in that description of marriage and wedding which contradicts what is generally known about Chinese customary marriage. In my judgment, the deputy judge was perfectly entitled to come to the conclusion that he did.

44. In any event, the deputy judge also found that there had been a common law marriage according to New York law. (It should be noted that that finding was in no way dependant on the acquisition of a domicile of choice in New York by the deceased.) The attack here made by the plaintiffs is no more than that the defendants were not entitled to rely on such a marriage because the pleading did not specifically refer to the law of New York, such that the inference must be that the pleading related to the lex fori, i.e. Hong Kong law. The point taken is nothing but a technical pleading point and wholly unmeritorious. The thrust of the argument was that somehow the plaintiffs had not appreciated that what was on the "agenda" was common law marriage under New York law. In other words, that they were taken by surprise and disadvantaged. It is difficult to take such a submission seriously since the report of the defendants' expert on common law marriage under New York law was filed in September 1999, nine months before the first trial date and some two and a half years before the actual trial below. The deputy judge's finding that the deceased and Madam Hom Shee had contracted a valid marriage either under Chinese customary law by virtue of a common law marriage according to New York law is plainly sustainable.

Validity of the marriage between the 1st plaintiff and the deceased

45. The correctness of the deputy judge's conclusion hinges on the correctness of his finding that at the time of the marriage to the 1st plaintiff, the deceased was domiciled in the State of New York, having acquired a domicile of choice there in 1931 at the latest. It is therefore necessary to examine the correctness of that finding.

46. The deputy judge found that by 1931 at the latest, the deceased and Madam Hom Shee must have acquired a domicile of choice in New York State where the deceased had been residing since his arrival in the US in 1923. He considered that by applying for the immigration of his wife and his eldest son to the US, the deceased had manifested a clear intention to adopt New York State as their domicile of choice.

47. Implicit in the deputy judge's finding is that the deceased's domicile of origin was China. That would appear to be correct. A person's domicile of origin is acquired at birth. In the case of a legitimate person, his domicile of origin is the domicile of his father at the time of his birth. To this I now turn. As noted above, Wong Hung Kay was born in San Francisco and died in Jamestown. In determining Wong Hung Kay's domicile of origin, it is necessary to consider the domicile of the deceased's grandfather Wong Gen Gar when Wong Hung Kay was born.

48. The US records disclosed the following facts pertaining to Wong Wing Song's predecessors. His grandfather was Wong Gen Gar who was a US citizen whose wife had died in San Francisco. Wong Wing Song's father, Wong Hung Kay was born in San Francisco in the early 1870's. In 1903, Wong Hung Kay left the United States for China for the first time accompanied by his father Wong Gen Gar. It is unclear whether Wong Gen Gar returned to the US after that trip but in any event, he returned to live in China and died there. He was buried near his native village. So, although Wong Gen Gar worked and lived in the United States and his only son was born there, nevertheless, he returned to his native village where he died and was buried. It is not known whether Wong Gen Gar was himself born in the US or whether he had emigrated there. In any event, although his only son was working in the US, he chose to return to China. Wong Gen Gar clearly died domiciled in China and in view of the fact that he did return to China to live, it is most improbable that he ever acquired a domicile of choice in the United States at the time Wong Hung Kay was born. In my view, Wong Hung Kay though born in San Francisco had a domicile of origin in China.

49. So far as Wong Hung Kay is concerned, after leaving the United States for China on 3 December 1903 when he was about thirty, Wong Hung Kay returned to the United States in August 1906. On his return, he was not asked questions concerning his family. Those questions were asked when he returned from another trip to China in July 1912. Wong Hung Kay gave the name of his eldest son as Wong Wing Song, born on 8 November 1904. He had two other sons. He died in Jamestown in 1918 at the age of 45 or 46. At the date of his death, he left surviving him a widow and three sons all of whom were living in China. Whilst he did marry and have children, his wife never left China and his three children were born there where they remained during his lifetime. Although he died in Jamestown, his death occurred at a relatively young age when he was in his mid-40s. In his case, I also reach the view that he had retained his domicile of origin throughout and never acquired a domicile of choice in the United States. It would thus follow that the deceased's domicile of origin was in China.

50. In coming to the conclusion that the deceased and Madam Hom Shee had by 1931 acquired a domicile of choice in New York State by applying for the immigration of his wife and eldest son, the deputy judge appeared to have taken a 'snapshot' approach and disregarded subsequent events. When there is available the full history of a person's life, it would be wrong to view various stages in his life in isolation. This is because events subsequent to a particular date during a person's lifetime inevitably throw light on that person's intention at the particular time. When one considers the history of this particular family and the indisputably strong ties to the native village, emigration itself would not suffice to support the necessary inference of the acquisition of a domicile of choice.

51. In my view, the deputy judge's approach was wrong. In coming to a conclusion as to the acquisition of a domicile of choice he failed to consider the entire picture available to him. On the facts, there is no sufficient evidence to support the view that the deceased had ever abandoned his domicile of origin. Therefore my conclusion is that at the date of his marriage to the 1st plaintiff, the deceased was domiciled in China. It would therefore follow that the 1st plaintiff was a widow of his and as such is entitled to maintenance out of the estate from the date of death of the deceased.

The daughters' claims

52. I have already alluded to the entitlement of the daughters of the deceased (see para. 35 above). The claim only arises if the two younger daughters of Madam Hom Shee were unmarried at the date of the deceased's death in December 1970. Should such a claim arise, given that they were born in 1940 and 1941 respectively and therefore at a time after the deceased's marriage to the 1st plaintiff, a claim should only be entertained after a DNA test of the relevant claimant establishing siblingship.

Grant of representation

53. The deputy judge rejected the 1st plaintiff's claim to representation because he rejected her status as a widow of the deceased. Although I have come to a different conclusion as to the 1st plaintiff's status, given the age of the 1st plaintiff and the fact that she is elderly, frail and bed-ridden, in the circumstances, it would not be desirable to issue a grant of representation to her.

54. The deputy judge ordered that letters of administration be granted to Mr Frank Wong or his lawful attorney. Regardless of the statutory order of entitlement to a grant, in my judgment, Mr Frank Wong should be passed over for the following reasons. In these proceedings, these two 'families' of the deceased have been on opposing sides. The litigation has been protracted and bitter and, understandably, considerable mistrust exists. There is also the fact that Mr Frank Wong is resident abroad and normally such persons would be passed over. But, more importantly, I note that Mr Choy has been acting as the lawful attorney of, inter alia, Mr Frank Wong in these proceedings. This is the same Mr Choy who, on 29 July 1994, had filed an affirmation in support for his application for a grant of administration to the deceased's estate. In paragraph 1(b) to (g) he set out the names of 6 children of Madam Hom Shee and the deceased. In paragraph 4, he stated that save and except the six children "the said deceased had no other issue or issues whether male or female and whether predeceased (sic) or surviving him." That statement is palpably untrue given that Madam Hom Shee and the deceased had nine children as stated in paragraph 11 above.

55. In my view, administration should be granted to some independent third party such as a trust corporation. The parties should endeavour to achieve this by mutual agreement, failing which the matter should be restored to the deputy judge for directions.

Order

56. I would allow the appeal in part, declaring that the 1st plaintiff is a widow of the deceased and that the 2nd to 5th plaintiffs are his lawful children and dismissing the counterclaim of the defendants. Agreed minutes of order should be submitted for approval. I would also make an order nisi that there be no order as to costs both here and below.

Hon Cheung JA:

57. The DNA evidence showed that Frank Wong and the children of the 1st plaintiff had a common father. This must be conclusive evidence that Wong Wing Song and Wong Yee Man were the same person. But even without this evidence, I would be prepared to reach the same finding on the facts of the case.

The key to solve the mystery

58. In my view the key to solve the mystery of whether Wong Wing Song and Wong Yee Man were the same person lies in the contemporaneous records of Wong Wing Song kept in the National Archive of the U.S.A. Due to the earlier immigration policy, a US citizen of the Chinese race was subject to stringent control and scrutiny of his entry and departure from the U.S.A. From these records, there were two very important pieces of evidence which provide the link connecting Wong Wing Song and Wong Yee Man. For the sake of completeness, I will outline the history of Wong Wing Song while he was in U.S.A. from the available record and also highlight the relevant evidence.

The early history of Wong Wing Song

59. On 4 May 1923, Wong Wing Song arrived in the U.S.A. from Toishan, China as the son of a US citizen. After inquiry, he was duly admitted to live in the U.S.A. He left behind in China his wife Hom Shee. A daughter was born in China after he left for the U.S.A.

60. He went back to China on 18 November 1926 and returned to the U.S.A. on 1 August 1927. A son Wong Gok Nging (Kock Ning) was born in China after he returned to the U.S.A.

61. On 23 August 1930, he went back to China again and returned on 9 June 1931. He was accompanied on this trip by his wife Hom Shee and their son Wong Kock Ning. After inquiry Shee Hom and Wong Kock Ning were duly admitted to live in the U.S.A.

62. On 30 October 1936, Wong Wing Song again left the U.S.A. for China. He traveled on the "SS Princess Marguerite". This is the first significant evidence. He returned to U.S.A. on 19 June 1937. After 1937, no record was available on the movement of Wong Wing Song.

63. While Wong Wing Song was living in the U.S.A., his wife gave birth to five children. They are Kock On Wong born on 27 August 1931, Florence Wong aka Chau Fong Wong born on 15 February 1933, Kock Fung Wong born on 9 February 1936, Frank Wong aka Kai Kock Wong born on 17 July 1938, Chau Kim Wong born on 9 March 1940 and Jean Wong aka Chau Chee Wong born on 10 May 1941.

64. According to the record of the public school which the first son Wong Kock Ning attended between 21 February 1939 and 6 November 1939, his father's name was "Yee Moon (Wing Shong)". Further according to a document issued by the US Government dated 5 September 1946, Wong Wing Song was also known as "Moon Wong".

65. In 1946, Hom Shee complained to the authority in the U.S.A. that her husband had abandoned her and the children since November 1943. It was alleged that Wong Wing Song took the son Kock On Wong with him. They went to California and planned to return to China. He also took away the birth certificates of the six children born in the U.S.A. with the intention of selling them in China so as to permit the buyers to enter the U.S.A. illegally. The allegation that Wong Wing Song had taken away the birth certificates of the children is another significant evidence.

66. In June 1947 further information was provided to the US authority that Wong Wing Song and the son were seen in China. The authority was unable to locate Wong Wing Song and Kock On Wong.

Events in Hong Kong

67. If we now turn our attention to Hong Kong in 1937, the first event that took place which was relevant to this case was the purchase of the property in Tung Choi Street on 23 January 1937 by Wong Yee Man. This was done at a time after Wong Wing Song had left the U.S.A. on 30 October 1936. Hong Kong was obviously a place known to Wong Wing Song. His wife and eldest son's application to the U.S.A. was processed in Hong Kong. In 1930 when he applied for a citizen's return certificate, he gave his mailing address in China as "A Lung Chung Store, 17 Des Voeux Road, W. Hong Kong. P.O. Box 1126".

68. The 1st plaintiff who was born in 1921 said that when she was 16 years old, she first met Wong Yee Man. That year would be 1937 i.e. 1921 plus 16. Wong Yee Man was described by her as someone who "dropped in Hong Kong on his way to China from the United States of America". What she had said was first disclosed in her witness statement of 2 September 1999. This was even before the records of the US National Archive were disclosed in July 2000. Again this meeting took place after Wong Wing Song had left the U.S.A.

69. When viewed together with the other evidence in this case, it would be too much of a coincidence that in that particular year the person who came from the U.S.A. and courted the 1st plaintiff was a different person from Wong Wing Song who happened to travel more or less on the same path at the same time.

70. The 1st plaintiff and Wong Yee Man courted for two years before they got married. Although she said that her husband had never gone back to the U.S.A. after they had met, she further said that during 1937 and 1939 her husband was not in Hong Kong all the time. He was said to be in China and Hong Kong. This absence from Hong Kong is consistent with Wong Wing Song having returned to the U.S.A. in the middle of 1937.

The move to China

71. After the 1st plaintiff and Wong Yee Man married in Hong Kong at the end of 1939, they went to live in Toishan until 1954 when they moved to live in Guangzhou. Their first child, however, was only born on 11 January 1949.

The safe deposit box

72. On 14 December 1970, Wong Yee Man died in Guangzhou. On 15 April 1977, the Estate Duty Office of the Hong Kong Government took the inventory of a safe deposit box in the Hong Kong & Shanghai Banking Corporation, Head Office. The heading of the inventory stated that it was a "Safe Deposit Box No. 5253 held by Wong Yee Man alias Wong Wing Song deceased". Among the items in the box were:

(1) A key deposit receipt of that box in the name of Wong Wing Song.

(2) The birth certificates of five of the children of Wong Wing Song and Shee Hom. The birth certificate of Kock On Wong was not there.

(3) The Assignment registered in the name of Wong Yee Man of the Tung Choi Street Property ("the Assignment").

73. The person who arranged for the box to be opened was Chan Tak Fun, who was the sister of the husband of one of the 1st plaintiff's daughters.

74. In my view, the Assignment found in the box which was registered in the name of Wong Wing Song is significant. Together with the presence of the five birth certificates of the children of Wong Wing Song in the same box, they were further evidence upon which the court can infer that Wong Wing Song and Wong Yee Man were the same person. It is too much of a co-incidence, as submitted by Mr. Mak, counsel for the 1st and 5th defendants, that there was another Hong Kong person with the name of Wong Wing Song who opened a safe deposit box in Hong Kong, and he somehow managed to obtain the birth certificates from an American citizen also called Wong Wing Song who was said to have abandoned his family in the U.S.A. and returned to China with his children's birth certificates and kept them in the box. Equally unlikely was that he also managed to obtain the Assignment from a person called Wong Yee Man and kept it in the box. The inherent improbability is glaring. On the other hand, Wong Wing Song and Wong Yee Man being the same person would provide a far more simple and probable answer. Very often in life the simplest answer to a problem is the correct one.

75. The learned judge accepted the theory that Wong Yee Man had impersonated Wong Wing Song and used that name to enter the U.S.A. In my view it is not necessary to rely on such a theory. There was simply no evidence to support this theory, although one could not rule out that this might have happened when people tried to emigrate to a new country particularly in the older days. Equally probably, in my view, is that Wong Wing Song had an other alias. This is shown by the records in the National Archive.

76. This is no evidence adduced on how the safe deposit box was discovered. It was suggested that since there was a Mr. Lau who collected the rent from Tung Choi Street, he may well have knowledge of the box. However, there is no escape from the fact that Chan Tak Fun was close to the 1st plaintiff in terms of relationship. It was Chan Tak Fun who was present when the safe box was opened in the presence of the Estate Duty Office. Clearly the learned judge was entitled to infer that the 1st plaintiff had provided the information about the safe deposit which enabled Chan Tak Fun to arrange for the box to be opened.

77. The 1st plaintiff and Wong Yee Man were married for 30 years. If Wong Yee Man had kept a safe deposit box in Hong Kong, is it likely that he would not have disclosed it to a woman whom he had chosen to marry?

The finding by the judge

78. The learned judge had accepted some of the evidence of the 1st plaintiff and rejected others. For example he accepted that the 1st plaintiff was married in late 1939. He disbelieved that Wong Wing Song whom he found to be the same person as Wong Yee Man had not returned to U.S.A. after they had met in Hong Kong. The birth of their children in 1949 was evidence that Wong Wing Song duly returned to the 1st plaintiff after many years in the U.S.A. The birth of Wong Wing Song's last two children in the U.S.A. in 1940 and 1941 respectively also lent support to the finding that Wong Wing Song had left for the U.S.A. before his eventual return to China.

79. The learned judge was mistaken about the year of birth of 1st plaintiff. He said it was 1919 instead of 1921. Counsel had not corrected it when it was first raised in the trial. From this, the learned judge said the evidence of the 1st appellant just did not fit with the sequence of events.

80. In my view, the mistake, although serious, is not so fatal as to vitiate the finding of facts because there were records of contemporaneous events and facts which I have outlined which would enable the learned judge to come to his finding. These matters were not dependent solely on the oral testimony of a witness.

81. There were no doubt some unexplained matters such as why Mr. Choi, the attorney of Hom Shee stated in the application for the letters of administration that Wong Yee Man was the name given to him by his parents and Wong Wing Song was his adopted name. At the end of the day, however, there were enough evidence which showed that these two names indeed belonged to the same person.

82. All in all, I am satisfied that the finding by the learned judge was correct, namely Wong Wing Song and Wong Yee Man were the same person who purchased the Tung Choi Street and had two families, one in the U.S.A. and one in China.

The marriage of Wong Wing Song and Shee Hom

83. I am equally satisfied that Wong Wing Song and Shee Hom were validly married according to Chinese customary law and also under New York law. They had lived as husband and wife since Hom Shee went to the U.S.A. in 1931 and were known as such in the contemporaneous records. They had a valid common law marriage in New York even though there was insufficient evidence on the type of marriage they had gone through earlier in China in 1921. There was expert evidence called by the respondent on New York law. Although there was no express pleading on New York law, the respondent had pleaded that there was a valid common law marriage. The New York law expert's report was filed as early as 13 October 1999. This must be for the purpose of raising an issue in the trial.

Capacity to enter into a second marriage

84. The learned judge found that because Wong Wing Song was validly married, he could not contract another marriage with the 1st appellant in China. He said Wong Wing Song's domicile was in the U.S.A. As such he had no capacity to contract another marriage. The New York law prohibited a polygamous marriage.

85. The expert had not addressed the court on private international law in U.S.A, specifically on the situation of someone who entered into a second marriage in China. The parties had not addressed this Court in detail on the issue of "Renvoi" and I shall refrain from doing so.

86. In the absence of evidence on New York law on this aspect, I will apply the Hong Kong law on conflict. As a general rule, capacity to marry is governed by the law of each party's ante-nuptial domicile : see Dicey & Morris, The Conflict of Laws 13th Ed. Para. 17R-054.

Domicile

87. The following is the classic statement on domicile stated by Scarman J in In the Estate of Fuld, deceased (No. 3) [1968] P 675 at page 682 :

'Domicile is "that legal relationship between a person ... and a territory subject to a distinctive legal system which invokes the system as [his] personal law ...": see Henderson v. Henderson. It is a combination of residence and intention. It takes two forms - domicile of origin and domicile of choice. A classic description of the concept is to be found in Lord Westbury's speech in Udny v. Udny. Two features of his description are of particular importance in the present case. First, that the domicile of origin prevails in the absence of a domicile of choice, i.e., if a domicile of choice has never been acquired or, if once acquired, has been abandoned. Secondly, that a domicile of choice is acquired when a man fixes voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time.'

At page 684, he further stated that,

'In the light of these cases, the law, so far as relevant to my task, may be stated as follows: (1) The domicile of origin adheres - unless displaced by satisfactory evidence of the acquisition and continuance of a domicile of choice; (2) a domicile of choice is acquired only if it be affirmatively shown that the propositus is resident within a territory subject to a distinctive legal system with the intention, formed independently or external pressures, of residing there indefinitely. If a man intends to return to the land of his birth upon a clearly foreseen and reasonably anticipated contingency, e.g. the end of his job, the intention required by law is lacking; but, if he has in mind only a vague possibility, such as making a fortune (a modern example might be winning a football pool), or some sentiment about dying in the land of his fathers, such a state of mind is consistent with the intention required by law. But no clear line can be drawn: the ultimate decision in each case is one of fact - of the weight to be attached to the various factors and future contingencies in the contemplation of the propositus, their importance to him, and the probability, in his assessment, of the contingencies he has in contemplation being transformed into actualities. (3) It follows that, though a man has left the territory of his domicile of origin with intention of never returning, though he be resident in a new territory, yet if his mind be not made up or evidence be lacking or unsatisfactory as to what is his state of mind, his domicile of origin adheres. And, if he has acquired but abandoned a domicile of choice either because he no longer resides in the territory or because he no longer intends to reside there indefinitely, the domicile of origin revives until such time as by a combination of residence and intention he acquires a new domicile of choice.'

Wong Wing Song's domicile of origin

88. In the present case, Wong Wing Song was born in China in 1904. He only went to U.S.A. at the age of 20. His grandfather had lived in the U.S.A. but later returned in 1903 to live in China and subsequently died there. His father was born in the U.S.A. He went to China in 1903 and returned to the U.S.A. in 1906. He died in the U.S.A. in 1918.

89. From the facts, the domicile of origin of Wong Wing Song must be China. He lived there for 20 years until he emigrated to the U.S.A. For the next 20 odd years, he lived in the U.S.A. with his family. No doubt this is an indication that he had acquired a domicile of choice there. An immigrant can acquire a domicile immediately upon his arrival in the country in which he intends to settle: Dicey & Morris para. 6-036. However, one is clearly entitled to look at the whole life history of a person to determine his domicile. While he was in the U.S.A., he returned to China at regular intervals. The first trip was seven years after his first arrival in the U.S.A. The second one was six years after the first trip. He chose to marry again in China in 1939 and by 1948 at the latest (his first child with the 1st appellant was born in January 1949) he had returned to live in China where he died in 1970. Looking at his life in perspective, my view is that he retained his domicile of origin in China. Even if he had acquired a domicile of choice in U.S.A., he ultimately abandoned it when he left his family in the U.S.A. and lived with a new family in China.

Capacity to contract second marriage

90. If his domicile was in China he had the capacity to contract a second marriage in China in 1939 under the then existing Civil Code of the Republic of China which came into force in 1931. Although under Article 985, a married man cannot marry again, only an interested party can apply to set aside the marriage. Until the second marriage is set aside, the status of the second wife cannot be denied and she is not a 'tsip'. This is the result of the decision of the Supreme Court of China in Case No. 1709 of the 27th Year of the Republic i.e. 1939. This can be seen from the publication entitled "The Complete Text of the Six Laws, with commentaries, Latest Edition". (最新綜合六法全書 )

91. At page 256, the commentary on Article 985 is as follows :

"Article 985 (essential requirements in law to contract a marriage (5) must be non-bigamous) a spouse in a subsisting marriage is not allowed to contract a second marriage.

* Effect of contravention of this article : Civil Code Articles 992,998,999

Grounds for divorce : Civil Code Article 1052(1)

Crime of Bigamy : Criminal Law Article 237,238

▲ A spouse in a subsisting marriage is not allowed to contract another marriage because this is expressly provided in Article 985 of the Civil Code. However, in case of marriage in contravention to such provision, Article 992 of the Civil Code shall apply, the second marriage shall only be set aside upon application to the court by an interested party, and shall not be dealt with as one of the void marriages set out in Article 988 of the Civil Code. Thus if a married man contracted a second marriage, the wife in such a second marriage shall not be considered as concubine "tsip" and her status as wife cannot be denied as long as this second marriage is not set aside. (Decision No. 1709 of the 27th year of the Republic.)"

92. The original text is as follows :

"第九百八十五條 （結婚之實質要件（五）--須非重婚）有配偶者不得重婚。

* （違反本條之效果）民九九二、九九八、九九九；（離婚之原因）民一Ο五二①；（重婚罪）刑二三七、二三八。

▲ 有配偶者不得重婚，因為民法第九百八十五條之所明定，惟結婚違反此項規定者，依民法第九百九十二條之規定，僅得由利害關係人請求法院撤銷，不在民法第九百八十八條所謂結婚無效之列，故有妻者重婚時，在其重婚未撤銷前，不得否認其後妻之身分而指為妾。(二七上一七Ο九)"

93. The above passage clearly supports the finding of the learned judge that the result was the combined effect of article 988 which dealt with void marriages and did not regard a second marriage as a void one, and article 992 which only rendered a second marriage voidable at the instance of an interested party but not void at the beginning.

94. This part of the Civil Code was eventually amended (by including a second "marriage" in contravention of article 985 as a void marriage in article 988) in Taiwan in 1985 with no retrospective effect. The Civil Code was repealed by the new government of the People's Republic of China in 1949.

The result

95. The end result is that Wong Wing Song had two validly married wives. The 1st plaintiff who is the surviving wife and the respective children of the two marriages are entitled to a grant of representation of his estate. The 1st plaintiff is further entitled to maintenance out of his estate.

96. I agree with Le Pichon JA's observation on the daughters' claims and grant of representation.

97. Accordingly I agree that the appeal should be allowed in terms of the orders made by Le Pichon JA.

Hon Rogers VP:

98. There will therefore be an order as proposed in paragraph 56.