LEUNG SAI LUN ROBERT AND OTHERS v. LEUNG MAY LING AND OTHERS

FACV No. 5 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 5 OF 1998 (CIVIL)

(ON APPEAL FROM CACV No. 119 OF 1997)

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J U D G M E N T

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Chief Justice Li :

1. The essential question in this appeal is the proper construction of section 13(1) of the Wills Ordinance, Cap. 30. I have read the judgment of Mr Justice Ching PJ. I agree with his judgment on this question of statutory construction and I would dismiss this appeal with costs.

Mr Justice Litton PJ :

2. The facts relevant to this appeal are these:

(1) Madam Leung May Ling (1st respondent) and her deceased husband went through a Chinese customary marriage on 28 February 1966.

(2) On 27 July 1967 the deceased executed a will.

(3) On 18 June 1985 Madam Leung and the deceased were married again at the marriage registry under the provisions of the Marriage Ordinance, Cap. 181.

(4) The deceased died on 21 March 1996 without executing another will.

3. The issue quite simply is whether the marriage contracted in June 1985 at the marriage registry has the effect in law of revoking the will made in July 1967. This depends upon two statutory provisions:

* Section 13(1) of the Wills Ordinance, Cap. 30, which, at the relevant time, provided

"A will shall be revoked by the subsequent marriage of the testator except a will expressed to be made in contemplation of that marriage".

* Section 38 of the Marriage Ordinance, Cap. 181, which provided at the relevant time (and still provides) as follows:

"38. Marriage under Ordinance of persons customarily married

The parties to any non-Christian customary marriage duly celebrated according to the personal law and religion of the parties before the appointed day under the Marriage Reform Ordinance (Cap. 178) may, unless the husband has any other wife, contract with each other a marriage under this Ordinance; and such a marriage shall not invalidate the previous customary marriage."

4. It is common ground that the customary marriage celebrated in February 1966 was "according to the personal law and religion of the parties" and that this took place before the "appointed day under the Marriage Reform Ordinance" (7 October 1971). It follows that unless the expression "subsequent marriage" in s.13(1) of the Wills Ordinance excludes a marriage made permissible under s.38, the will made in July 1967 was revoked by operation of law.

5. In argument before us, the registry marriage contracted in June 1985 was referred to by counsel as "the s.38 marriage". That is a convenient shorthand, but should not disguise the fact that it was contracted in accordance with the formalities in the Marriage Ordinance. The ceremony took place before the Registrar in accordance with the procedures laid down in s.21. It is a "monogamous marriage" within the meaning of that expression in s.2 of the Matrimonial Causes Ordinance, Cap. 179, and can only be dissolved on the grounds set out in s.11 of that Ordinance. Contrast this with a customary marriage which, though validated pursuant to s.7(3) of the Marriage Reform Ordinance, Cap. 178, can nevertheless be dissolved by mutual consent in accordance with Part V of that Ordinance.

6. Sophisticated arguments were deployed in the courts below, and before us, to the effect that the word "marriage" in s.13(1) of the Wills Ordinance can be used in two senses: the ceremony, or the contract between the parties resulting in a new status. Counsel for the appellants argues that, purposively construed, the word "marriage" in s.13(1) means marriage in the sense of a change in the parties' status, and since persons contracting a "s.38 marriage" are already married according to Chinese law and custom, there is no change in status after such a marriage; hence it does not come within the expression subsequent marriage in s.13(1) of the Wills Ordinance. Counsel bolsters up this argument by reference to s.38(2) of the Marriage Ordinance which provides that a marriage made permissible under that section "shall not invalidate" the previous customary marriage, thus emphasising, as counsel submits, that there is no change in status after such marriage. This argument failed to convince the judges in the courts below. Rightly so. It introduces a gloss on s.13(1) of the Wills Ordinance which is not warranted. As can be seen from the section, it already contains one exception: counsel's interpretation means, in effect, that it contains another by implication, exempting from the scope of s.13(1) subsequent marriages contracted under the Marriage Ordinance and made permissible by s.38. Nothing within the scheme of the Wills Ordinance supports this view. And if regard be had to other statutes where the word "marriage" is used, one sees that it is used in its widest possible sense. Thus in the Married Persons Status Ordinance, Cap. 182, marriage means (see s.2):

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

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

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

(d) a marriage celebrated or contracted outside Hong Kong in accordance with the law in force at the time and in the place where the marriage was performed.

The same definition appears in the Legitimacy Ordinance, Cap. 184.

7. It would be absurd to construe the word marriage in these two Ordinances as if a "s.38 marriage" were by implication excluded, when such a marriage is clearly "contracted in accordance with the provisions of the Marriage Ordinance".

8. As mentioned earlier, what has to be construed, for the purposes of this case, is s.13(1) of the Wills Ordinance as it stood in June 1985 when the parties were married again in the marriage registry. That Ordinance was amended in 1995. Section 13(1) was repealed and replaced by s.14(1). Section 14(5) says:

"In this section, 'marriage' has the same meaning as in section 2 of the Married Persons Status Ordinance."

9. It follows that, as things stand today, a "s.38 marriage" subsequent to a testator's will would unquestionably revoke that will. It would be an odd thing if "marriage" in 1985 meant something different from "marriage" in 1995 when the amending Ordinance was passed.

10. Reverting to counsel's argument, seeking to draw a distinction between ceremony and status, s. 38 in terms allows the parties to a customary marriage to contract with each other a marriage under that Ordinance. The Ordinance draws no distinction between a "s.38 marriage" and any other contracted before the Registrar under s.21. The requirement of giving prior notice, for example, is the same: see s.6. The expression a "s.38 marriage" is simply forensic shorthand used by counsel. It does not invest such a marriage with any special quality. Plainly, it is more than a mere ceremony. Once contracted, a "s.38 marriage" carries with it all the legal incidents attaching to a marriage: Having been contracted before the Registrar under s.21 it is the "civil equivalent of a Christian marriage": see s.40(1). Section 38 may be compared with s.39 of the same Ordinance dealing with persons living in "unlawful concubinage" one of whom is dying: If a marriage between such persons is celebrated under s.39, subsection (2) expressly provides that such marriage shall not revoke any will previously made. It follows that, but for subsection (2), a s.39 marriage would revoke a previous will. It would be odd if a "s.38 marriage" did not have the same effect in law.

11. In my judgment the courts below undoubtedly came to the right conclusion with regard to the effect of the June 1985 marriage on the 1967 will. I would dismiss this appeal with costs.

Mr Justice Ching PJ :

12. On 1st May, 1951, the deceased, Leung Wai Kit, married his first wife at the Marriage Registry in Hong Kong. She died on 31st August, 1963, having borne him four children who are the Defendants in this action. On 28th February, 1966, he married the 1st Plaintiff in Hong Kong in a ceremony in accordance with Chinese law and custom, a marriage usually referred to as a customary marriage. It produced three children who, together with their mother, are the Plaintiffs. The first of them was born on 10th April, 1967. On 27th July, 1967, just over three months after that birth and almost exactly 17 months after the customary marriage he executed a Will in which he left his entire estate to the Defendants. On 19th June, 1985, he went through another ceremony of marriage with the 1st Plaintiff, this time at the Marriage Registry in Hong Kong (the Registry marriage). He died on 21st March, 1996, having executed or acknowledged no other testamentary writing. For the purposes of this action the Will is accepted as having been validly executed.

13. No doubt has been thrown upon the validity of the customary marriage. It follows that at the time when the deceased and the 1st Plaintiff entered into the Registry marriage they were already in a married state. Indeed, in the column headed 'Condition' in the Certificate of Marriage issued by the Registrar on that occasion it is stated,

"Same parties previously married to each other according to Chinese customary rites and ceremonies on 28th February, 1966 in Hong Kong."

They were enabled to marry in this way by section 38 of the Marriage Ordinance, Cap. 181, which provides that

"The parties to any non-Christian customary marriage duly celebrated according to the personal law and religion of the parties before the appointed day under the Marriage Reform Ordinance (Cap. 178) may, unless the husband has any other wife, contract with each other a marriage under this Ordinance; and such a marriage shall not invalidate the previous customary marriage."

The 'appointed day' was 7th October, 1971, well before the Registry marriage which did not invalidate the customary marriage. Section 13(1) of the Wills Ordinance, Cap. 30, provided at the relevant time that

"A will shall be revoked by the subsequent marriage of the testator except a will expressed to be made in contemplation of that marriage."

The Will was not in contemplation of any marriage. The Court of First Instance held that the Will was revoked by the Registry marriage and that decision was upheld in the Court of Appeal. The Defendants now appeal to this Court. Put as simply as possible, the basis of the case for the Defendants is that the words 'the subsequent marriage' in section 13(1) of the Wills Ordinance does not include a marriage provided for by section 38 of the Marriage Ordinance.

14. When a man and a woman undergo a valid ceremony of marriage with each other they change their status. They become husband and wife with all the incidents concomitant of that state. It is a status that endures unless and until the marriage is dissolved by the death of either party, a decree absolute of divorce or, from the date of a decree, a decree of nullity. In logic it is anomalous that parties to a valid marriage, including a customary marriage, should be able to go through a second Registry marriage when the first is still extant. The question has come before the Courts in England a number of times, usually upon the question of the jurisdiction of the divorce courts when parties to a polygamous marriage have subsequently entered into a monogamous one with each other. The Courts there have resolved the difficulty by holding, in effect, that for the purposes of the jurisdiction of the Divorce Courts a polygamous marriage is not recognised by English law and that a subsequent monogamous marriage between the same parties is a valid marriage which subsumes the previous union. However, England has never had legislation to the effect of section 38 of the Marriage Ordinance so that the decisions there have no direct relevance to the questions in the present appeal. There is one similar reported case in Hong Kong, namely Yeung Yeu-Kong vs. Yeung Fung Lai-mui [1971] H.K.L.R. 13 where the Full Court after a useful review of the English decisions held that the divorce courts in Hong Kong had jurisdiction to dissolve the subsequent monogamous marriage and, thereby, the entire married status.

15. Chinese law and custom as it existed when Hong Kong was settled as a British Crown Colony has been and is a part of our law. The fifth paragraph of Captain Elliot's Proclamation of 2nd February, 1841, stated,

"... and I do hereby declare and proclaim that, pending Her Majesty's further pleasure, the natives of Hong Kong and all natives of China thereto resorting shall be governed according to the laws and custom of China, every description of torture excepted."

Clearly, the right was reserved to amend the application of these laws and customs in Hong Kong. At the same time, the laws of England applied and section 5 of the Supreme Court Ordinance, 1873, provided that,

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

The effect of these provisions was that there applied to Hong Kong the Ordinances passed by the local legislature, the common law of England, the statutes of England as they existed on 5th April, 1843, save as modified by the local legislature or save as inapplicable to local circumstances or local inhabitants and Chinese law and custom. It is immediately apparent that the ascertainment and the applicability of Chinese law and custom would cause difficulties. So far as ascertainment was concerned the Courts perforce allowed expert evidence to be given upon it notwithstanding that that law and those customs were a part of our law. The applicability of that law and those customs caused difficulties of their own, for people were entitled to choose their personal law and it became problematic to decide whether and which law they chose in any given case. In the course of time the applicability of the English Acts was restricted to those expressly adopted in Hong Kong and to those listed in the Application of English Laws Ordinance, Cap. 88. So far as Chinese law and custom were concerned the Strickland Committee was appointed in 1948 to consider and to make recommendations as to how far Chinese law and custom as it existed in 1843 was or still should be applicable to Chinese domiciled here or to other Chinese resorting hereto and to other related matters. The Report, the Strickland Report on Chinese Law and Custom in Hong Kong was published some four or five years later and caused intensive public debate. The difficulties continued and in 1969, in relation to a dispute as to the estate of a Chinese man, Mills-Owens, J., in In re Tse Lai Chiu [1969] H.K.L.R. 159 at 197 was moved to say,

"It is a matter which calls for remedial legislation, which, happily, I understand is now contemplated, as the only possible solution."

It was not, however, until 1971 that substantial legislation was brought in.

16. It is popularly believed that a customary marriage is potentially polygamous because of the ability of a man to take a concubine (t'sip). A concubine was given many of the rights and privileges of a wife (t'sai orkit fat) but she was not in fact a wife. Concubinage allowed, amongst other things, the man to have sexual relations with his concubine without being found to have committed adultery which was otherwise severely punished. There could only be one kit fat, see for instance In re Wong Choi-ho [1969] H.K.L.R. 391 and Jamieson's Chinese Family and Commercial Law at page 35, except in the circumstances of a kim tiu marriage. At page 9 of his judgment in the present case, Chief Judge Chan has stated that, marriage. At page 9 of his judgment in the present case, Chief Judge Chan has stated that,

"There is also the possibility of a kim tiu wife (the wife of the deceased's brother who is taken after the death of the brother)."

With respect, this cannot be allowed to go uncorrected. The taking of the wife of a deceased brother was a serious offence. So Staunton's Ta Tsing Leu Lee at page 116 states the law as being that

"Whoever marries his brother's widow shall be strangled."

A kim tiu marriage could occur when there were two brothers one of whom had a son (and no more) while the other had none. The brother who had no son was able to adopt his nephew, notwithstanding that he was already married, for the purposes of propagating his own branch of the family. The son then took another wife and kept two families to propagate the lines of both his natural and adoptive father. See the Strickland Report (op. Cit.) at page 201 and Liu, J., in Yau Tin Sung vs. Yau Wan-loi [1984] H.K.L.R. 15 at 21/22. There was no evidence that the deceased could have entered into a kim tiu marriage. However that may be, the parties to the present appeal have been content to proceed on the basis that the customary marriage was indeed potentially polygamous.

17. For whatever reason, an examination of the law in Hong Kong as it has developed shows more than a hint of a process moving towards providing remedies to what was perceived as injustices in Chinese law and custom as well moving towards minimising the problems caused by a multi-legal system. So, for instance, section 38 of the Marriage Ordinance, Cap. 181, first appeared as section 2 of the Marriage Amendment Ordinance, No. 20 of 1910, although in different wording. Again, there was originally doubt as to whether a Chinese man in Hong Kong could dispose of assets by way of a Will. The concept of an undivided family provided that no individual member of the family was the owner of any property brought into the family and the laws of succession were strictly applied. As early as section 2 of Ordinance No. 1 of 1856, subsequently section 3 of the Wills Ordinance, Cap. 30, it was provided that,

"Any written Will or testamentary writing made or acknowledged by a Chinese testator (whether a native of or domiciled in the Colony or China) shall, if the same is proved to have been made or acknowledged according to the Chinese laws or usages, so as to be effectual for the transmission of property according to such laws or usages, be deemed and taken to be lawfully made and acknowledged, and to have the same virtue and effect as if the same had been made and acknowledged according to the laws in force in this Colony, notwithstanding certain formalities prescribed by such laws in force in the Colony touching the signing, acknowledgement and attestation of written wills or testamentary writings."

For many years Chinese people in Hong Kong had in fact been executing Wills and in In re Tse Lai-chiu (Supra) it was held that the section implicitly recognised the testamentary capacity of Chinese persons in accordance with English laws. The equivalent section, section 3, now simply reads,

"A person may by will, executed in accordance with this Ordinance, dispose of all property to which he was beneficially entitled at the time of his death and which on his death devolves on his personal representatives."

The process continued in 1971.

18. There is some dispute in the books on Chinese law and custom as to whether a man needed the consent of his wife to take a concubine. However that may be, at least as a practical concern, the wife was at risk of having a concubine brought into the family and, however rare it may have been, of her husband taking a kim tiu wife. Neither union is now possible. Section 4 of the Marriage Reform Ordinance, Cap. 178, as amended in 1979 provides that marriages entered into in Hong Kong after 7th October, 1971, implies the voluntary union for life of one man with one woman to the exclusion of all others and may be contracted only in accordance with the Marriage Ordinance, Cap. 181. Section 5 preserves the rights and status of concubines lawfully taken before that date but forbids the taking of a concubine thereafter. Section 6 preserves the rights and status of a kim tiu wife lawfully taken before that date but forbids such marriages thereafter. By section 40 of the Marriage Ordinance every marriage under the Ordinance shall be a Christian marriage or its civil equivalent which implies a formal ceremony recognised by law as involving the voluntary union for life of one man and one woman to the exclusion of all others.

19. A customary marriage could be brought to an end by mutual consent. Broadly speaking, the marriage could only otherwise be brought to an end at the behest of the husband on the grounds of what is quaintly called one of the seven 'ousts' in the Strickland Report, namely (1) failure to bear a son, (2) lascivious conduct including lazieness, (3) failure to serve the parents-in-law, (4) loquacity including mischief making and quarrelsome conduct, (5) larceny, (6) jealousy and (7) incurable disease. In three circumstances the husband could not divorce his wife, namely (a) during the three year period of mourning, (b) where the husband's family was poor before the marriage but had become rich thereafter and (c) where after a divorce the wife would have no home to which to go. Clearly, the position, especially for the wife, was very different from that in a monogamous marriage. Nor could the parties avail themselves of orders from the divorce court whose jurisdiction was limited to monogamous marriages. It will be noticed from the preceding paragraph that customary marriages had become effectively monogamous on 7th October, 1971, save for those in which a concubine (insofar as concubinage amounted to polygamy) or a kim tiu wife had already been validly taken before that date. The Marriage Reform Ordinance was passed on 10th July, 1970, and section 2 included definitions of 'customary marriage' and 'parties to a customary marriage'. The first was defined as

"... a marriage celebrated in Hong Kong in accordance with section 7."

Section 7 defined a customary marriage as being one celebrated in Hong Kong before the appointed day in accordance with Chinese law and custom. Such a marriage was declared to be valid. The second was defined as

"... the husband and the principal wife (t'sai) whether such wife is a kit fat or a tin fong wife; and, for the avoidance of doubt, 'party to a customary marriage' does not include a concubine (tsip)."

A tin fong wife is one taken after the first marriage of a man has been put to an end. Part IV of that Ordinance provided for the registration of customary marriages and Part V provided for their dissolution when so registered. Dissolution could then be under the Matrimonial Causes Ordinance, Cap. 179, or under the provisions of that Part by a designated officer. Section 9 of the Matrimonial Causes Ordinance as amended in 1979 provides that

"Nothing in this Ordinance shall authorise the court to pronounce a decree of divorce, nullity, judicial separation or presumption of death and dissolution of marriage or to make any other order unless the marriage to or in respect of which the decree or order relates was a customary marriage celebrated in accordance with section 7 of the Marriage Reform Ordinance (Cap. 178) and registered in accordance with Part IV of that Ordinance or was a monogamous marriage."

Not only, therefore, did customary marriages become effectively monogamous but the parties thereto were enabled to take their grievances to the divorce courts. That includes not only proceedings to dissolve a marriage but financial proceedings and matters relating to children of the family.

20. When the husband in a customary marriage died the estate was distributed per stirpes. The daughters took no part of it and were entitled only to maintenance, provision being made for their dowries if they were unmarried. The widow also took no part of it. She was entitled to maintenance and she was entitled to delay distribution. On 7th October, 1971, the Intestates' Estates Ordinance, Cap. 73, came into effect. Section 3 defined a valid marriage as including a customary marriage declared to be valid by the Marriage Reform Ordinance. Section 2 defined a husband and a wife as being the husband or the wife by a valid marriage. The Ordinance then makes provision as to the distribution of the estate similar to those made in the Intestates' Estates Act in England.

21. Another Ordinance that came into effect on 7th October, 1971, was the Married Persons Status Ordinance, Cap. 182, which declared married women, including a wife in a customary marriage, to be capable of owning property which a wife in a customary marriage was generally not. There were other Ordinances which affected the position of wives and families of a customary marriage and the applicability of Chinese law and custom generally, but enough has been said to show that by the 1970's, particularly by 1971, the position of a wife in and the children of a customary marriage had been largely if not wholly assimilated to those in and of a monogamous marriage. Enough has also been said to show that much of the law of Hong Kong was borrowed or adopted from the English law. It remains now to interpret section 13(1) of the Wills Ordinance in the light of Hong Kong circumstances.

22. Decided authorities suggest a reason why the rule that marriage would revoke a Will unless made in contemplation of that marriage came into being. It appears that it was thought that a man might inadvertently forget, after marriage, to make provision for his wife and the family which he presumably intended to beget. Many years ago in England the rule was that the Will was not revoked unless the parties had a child within a year of the marriage. That version of the rule has passed away long ago and the rule in England now is as it is in Hong Kong. Section 13(1) of the Wills Ordinance has already been set out above. Section 14(5) of that Ordinance now contains a definition of marriage as having

"... the same meaning as in section 2 of the Married Persons Status Ordinance (Cap. 182)."

The section 2 referred to defines marriage as including a marriage celebrated or contracted in accordance with the Marriage Ordinance and a customary marriage declared to be valid by the Marriage Reform Ordinance. It therefore appears odd that section 13(1) of the Wills Ordinance should revoke a Will made after a customary marriage but before a subsequent Registry Marriage between the same parties. After all, the man was already married to his wife. In the present case he had also started his second family before he executed his Will. As has been seen, the legislation in the 1970's had already largely assimilated the position of a wife in and the children of a customary marriage to that in a monogamous marriage.

23. Mr. Denis Chang, S.C., who appeared for the Defendants argued for a purposive interpretation of section 13(1) of the Wills Ordinance so that the subsequent marriage referred to in section 13(1) of the Wills Ordinance does not include a Registry marriage made possible by section 38 of the Marriage Ordinance. Attractive though the argument is, however, it faces a number of insuperable difficulties. The first is that the reason behind the rule that a subsequent marriage revokes a Will is not at all clear while on the other hand there appears to have been a desire to impose a law as uniform amongst the people of Hong Kong as possible. The second is that section 13(1) is stated in bald terms, referring to revocation by 'the subsequent marriage'. If it had been intended that the section should not include section 38 marriages it would have been easy enough to say so. Nor would it have been difficult to introduce such a provision in section 38 itself. Section 13(1) of the Wills Ordinance with which we are concerned is the version before amendment of the Ordinance in 1995. Section 15 at that time provided that no Will shall be revoked otherwise than by four events of which the first is,

"(a) by marriage as provided by section 13."

None of the other revoking events has occurred. In the 1995 amendment, mutatis mutandis the section numbers, the provisions remained basically the same. Again, no attempt was made to introduce an exception to the word 'marriage'. Mr. Denis Chang argued that the article 'the' rather than the article 'a' in section 13(1) indicated that the legislation had in mind a subsequent marriage of a person who was not previously married and certainly not a subsequent marriage to a person to whom he was already married. With respect, the use of the article 'the' is syntactically correct and is far too slender a basis upon which to ground a meaning other than that which is clear in ordinary language.

24. Thirdly, the Registry marriage was certainly a valid marriage, celebrated under the Marriage Ordinance Section 28 of which provides that

"All marriages celebrated under this Ordinance shall be good and valid to all intents and purposes."

Again it would have been easy enough to exempt marriages under section 38 from this provision. That was not done. In the circumstances it is not possible to imply any such words. Mr. Chang argued that the words

"and such a marriage shall not, invalidate the precious customary marriage"

indicates that the customary marriage and the Registry marriage could co-exist. That is a startling proposition. The words clearly mean that the effectiveness of the customary marriage during its existence should not be affected.

25. Fourthly, there is the slew of Ordinances relating, inter alia, to customary marriage and its incidents which came into effect mostly on 7th October, 1971. Mr Chang suggests that the legislature may have overlooked the interplay between section 13(1) and section 38. It is not possible to believe that such major changes should have been brought in after a process that started so many years before without that interplay being considered. It is far more likely that the legislature did consider it but decided that it would be better to have the one system of law which applied to all cases.

26. For these reasons this appeal is dismissed with an order nisi that the costs here and in both courts below should be paid by the Defendants.

Mr Justice Bokhary PJ :

27. I agree that this appeal should be dismissed with costs.

28. The question before the Court is one of statutory interpretation, involving a choice between two rival constructions. Whichever one is chosen, it will apply across the board and not just to the present case. It is in the nature of things that there will be cases in which one construction would lead to a fairer result. Likewise there will be cases in which the other construction would lead to a fairer result. Which construction would lead to a fairer result in the present case is unknown to the Court. We do not know, for example, what dispositions (if any) the deceased made in favour of the respondents (or any of them) during his lifetime. The question is a pure question of law. And to be realistic, it happens to be one in respect of which the only attainable objective is a rule which promotes certainty and avoids disputes.

29. As to why the respondents' construction is correct, all that I would add to what my brethren have said are the following words of my own explaining why I consider that construction to be a purposive one.

30. For the appellants, Mr Denis Chang SC said that the Legislature is hardly likely to have intended the revocation of wills to no useful purpose. That is true as far as it goes. Mr Chang then said that, in so far it can be discerned, the original rationale for treating a testator's will as revoked by a subsequent marriage is that entry into a married state involves a total change of circumstances calling for a clean testamentary slate. That is not wholly free from doubt. But I am inclined to think that it is probably also true as far as it goes. If it were not, then Mr Chang's argument would break down even sooner than I think it does.

31. Continuing, Mr Chang pointed out that no such change occurs when the parties who are already husband and wife by virtue of a marriage validly contracted under Chinese law and custom, and whose customary marriage is subsisting and monogamous both in law and in fact, get married to each other at the marriage registry. I agree that no such change occurs. But I do not accept that no change at all occurs. By reason of the change which I find does occur, I feel unable to accept that the construction attacked by Mr Chang involves the revocation of wills to no useful purpose. Let me explain this a little further.

32. When he was pressed as to whether any useful purpose is served by the law which permits the parties to a subsisting customary marriage to marry each other at the registry, Mr Chang answered in the affirmative. Such parties may, he rightly recognized, consider the validity of their customary marriage open to question, and therefore wish to contract a registry marriage in order to put their status as husband and wife beyond doubt.

33. The statutory provision to be construed in the present case is s.13(1) of the Wills Ordinance, Cap.30, as it read at the material time, which is as follows:

"A will shall be revoked by the subsequent marriage of the testator except for a will expressed to be made in contemplation of that marriage."

Mr Chang contends that upon the true construction of this provision, the words "the subsequent marriage of the testator" are confined to marriages which bring about the total change of circumstances which occurs when parties who were not husband and wife become husband and wife. Those words do not, Mr Chang contends, cover the testator's registry marriage to someone to whom he or she was already married under a subsisting customary marriage. If that contention be correct, then the registry marriage would not revoke a will which the testator had made after the customary wedding but before the registry wedding.

34. Now if that were the law, what would anyone minded to challenge such a will be likely to do? The obvious answer is that he would probably make the very challenge which the parties to the customary marriage feared and which the law permitted them to marry at the registry so as to avoid. In other words, he would challenge the validity of the customary marriage. For if the customary marriage fell then so would the will. That is because the registry marriage would then not have been between parties who were already married under a subsisting customary marriage. And the registry marriage would then have revoked the will even on the construction for which Mr Chang contends.

35. If it were to be suggested that the parties to a customary marriage would cease to care whether that marriage is valid once they had gotten married at the registry, then the answer is that such a suggestion ignores human nature. No couple who had lived as husband and wife in the belief that they were married under Chinese law and custom would like it to turn out that they had not really been married at all until, at some later stage, they got married at the registry. This would be especially so if they had children prior to the registry marriage. In any event, the concern is not just for people's feelings. It is also to avoid difficult and costly investigations into the validity of customary marriages.

36. Like all my brethren on this Court, I support the construction which found favour with all the learned judges in the courts below. Upon an ordinary reading of s.13(1), that construction is sound in terms of linguistic considerations. And for the reasons which I have given, I consider it to be purposive as well: making things simpler and less likely to result in litigation where litigation is prone to be particularly bitter.

Sir Anthony Mason NPJ :

37. I would dismiss this appeal for the reasons given by Mr Justice Ching subject to the reservation that I do not find it necessary to reach any conclusions as to the state of Chinese law and custom in Hong Kong. In order to make my position clear, I shall state, if only briefly, my conclusions on the points which have been argued.

38. The argument that the expression "the subsequent marriage" in s. 13(1) of the Wills Ordinance (Cap. 30) does not include a marriage provided for by s. 38 of the Marriage Ordinance (Cap. 181) rests on the submission that "marriage" in s. 13(1) connotes a marriage which effects an alteration in the status of the parties. A marriage pursuant to s. 38 effects no relevant alteration in status, so the argument runs, because ex hypothesi the parties have celebrated a previous customary marriage which, in any event, is not invalidated by s. 38.

39. The submission draws in aid the proposition that the object of s. 13(1) and its English counterpart, s. 18 of the Wills Act 1837 as qualified by s. 177 of the Law of Property Act 1925, is to protect the wife and the children of the subsequent marriage against the accidental survival of a will made before that subsequent marriage. See J. Gareth Miller, The Machinery of Succession, Professional Books Ltd, 1977, page 177. In other words, the statutory revocation has as its object the protection of the new family from inadvertence on the part of the testator in failing to revoke an earlier will, if it is not expressed to be made in contemplation of the subsequent marriage. This object is achieved in the case of a first marriage and even in the case of a second marriage to a different party, though, in the case of such a second marriage, other complications may affect the equity of the outcome. But in the event of a second marriage between the same parties the statutory revocation may operate to frustrate the interests of the very class of persons sought to be protected, there being no alteration in the membership of the testator's family.

40. It is, however, by no means clear that the statutory object can be confined in this way. As the Report of the Law Reform Committee on "The Making and Revocation of Wills", May 1980 (Cmnd. 7902) notes (paras. 3.2 to 3.7), the reasons for the adoption of the rule by the English Parliament in 1837 have not been established and it may be that the rule was seen as serving other purposes as well. One such purpose is that, as marriage represents a fundamental change in a person's life whereby new responsibilities are undertaken, it is appropriate to start with a clean slate. See para. 3.2, supra.

41. That purpose may have been seen as having a limited operation when the parties to a customary marriage contracted a different form of marriage pursuant to s. 38. Moreover, it may have been thought that the general rule, which is of long-standing and is well-known, should apply to such a case, notwithstanding that it might bring about untoward results in some situations. Uniformity in the application of the general rule conforms to the pattern of the past and has its own advantages, perhaps not least in Hong Kong.

42. These considerations all support the literal interpretation given by the Court of Appeal to the unqualified language of s. 13(1). They are at odds with the notion that there is necessarily to be implied an exception to the general rule in the case of a marriage pursuant to s. 38 between parties who at the time are parties to a customary marriage.

Chief Justice Li :

43. The Court being unanimous, this appeal is dismissed with costs.

Representation: