YUEN YUK KING v. YANG XIAOLONG otherwise known as YANG XIAOLING

HCAP 12/2024

[2025] HKCFI 1752

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 12 OF 2024

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J U D G M E N T

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1.  In this case, the Plaintiff (“P”) claims that she, rather than the Defendant (“D”), is the surviving wife of the late Mr Chung Woon Tong (鍾煥棠), the Deceased. P says that since she is the surviving wife of the Deceased, she is the one entitled to the grant of the Letters of Administration of the Deceased’s estate (“the LA”), not D.

Procedural history

2.  P commenced this probate action on 2 April 2024 and claims against D for, inter alia, the following:

(1)  a declaration that P is entitled, in her capacity as the lawful widow and relict of the Deceased, to apply to the Probate Registry of the High Court for a grant of the LA;

(2)  an order that D’s application under HCAG007131/2018 for a grant of the LA be dismissed forthwith; and

(3)  an order that the LA be granted to P upon her compliance with all the usual, formal and procedural requirements of the Probate Registry of the High Court.

3.  Having considered the evidence as to service adduced by P, I am satisfied that P had duly served the Writ of Summons on D on 3 April 2024.  No acknowledgment of service was filed by D.

4.  On 6 June 2024, Master J Wong ordered that unless D do file an Acknowledgement of Service (indicating that she is contesting the proceedings herein) within 14 days from the date of the service of the order, D be debarred from defending the proceedings herein (“the Unless Order”).  The learned Master further ordered that this case be set down for trial on affidavit evidence.

5.  P has adduced evidence to show, and I accept, that a sealed copy of the Unless Order was duly served on D on 17 June 2024.  However, D has failed to comply with the Unless Order. Accordingly, the sanction in the Unless Order shall take effect.

6.  In the PTR before me on 16 January 2025, I directed that P’s 1^st and 2^nd Affirmations, both filed on 23 May 2024, be admitted as evidence in the trial.

7.  Having perused the evidence concerning service adduced by P, I am satisfied that all the papers in this case have been duly served by P on D.

The facts

8.  Based upon the evidence before me, I make the following factual findings:

(1)  P was lawfully married to the Deceased in Hong Kong on 26 March 1976.

(2)  Two sons were born out of their marriage, namely Chung Hay Ming (鍾熹明) and Chung Benjamin Pui Ming (鍾霈明) (formerly known as Chung Pui Ming (鍾霈明)) (“the Two Sons”).

(3)  In 1988, the entire family, comprising P, the Deceased, and the Two Sons, emigrated to the USA.

(4)  In or about 1991, the Deceased himself returned to Hong Kong for work.  From that time onwards, the Deceased worked in Hong Kong, but he would travel to the USA twice a year and live at the family home during such visits.

(5)  The Deceased passed away intestate, domiciled in Hong Kong, at the age of 67, about 2 to 3 days prior to the discovery of his body by police on 29 March 2018 at Flat D, 19/F, Block C, Tsuen Tak Gardens, Tsuen Wan, New Territories, Hong Kong. 

(6)  Unbeknownst to P, the Deceased filed a divorce petition against P under FCMC 10917/2006 on 1 September 2006, alleging that P had deserted him since January 2000 (“the Deceased’s Allegation”) and that their marriage had irretrievably broken down.

(7)  Based on the Deceased’s Allegation, the Family Court granted a decree nisi on 8 February 2007, and a decree absolute on 20 April 2007 (“the Purported Divorce”).

(8)  Without letting P know, on 15 June 2007, the Deceased married D in Hong Kong (“the Second Marriage”).

(9)  P only came to know the Purported Divorce and the Second Marriage in April 2018, after the Deceased’s death.

(10)  On 7 September 2018, P made an application by a summons in FCMC 10917/2006, seeking an order to set aside the Purported Divorce on the grounds that it was obtained by the Deceased through fraud, misrepresentation and material non-disclosure (“the Setting Aside Application”).

(11)  On 3 December 2020, HH Judge CK Chan handed down a judgment in which he ruled that the Deceased’s Allegation must be a false allegation and allowed the Setting Aside Application.

(12)  On 24 January 2022, P made an application to the Probate Registry under HCAG001420/22, seeking a grant of the LA based on the fact that she is the lawful widow and relict of the Deceased.

(13)  On 28 January 2022, P was informed by the Probate Registry that as there were two applications for the LA (one by P, and one by D), no grant could be issued until one of the applications was either refused or withdrawn.

(14)  Despite P’s repeated requests, D has not withdrawn her application for the LA.

Discussion

9.  In this trial, Mr Ernest Koo, together Mr Jay Cheung, represent P.  As submitted by Counsel for P, since the Purported Divorce has been set aside, the Deceased and P have been lawfully married to each other at all times since 26 March 1976.

10.  Mr Koo has drawn my attention to s.20(1)(c) of the Matrimonial Causes Ordinance (“MCO”), which is as follows:

“20. Grounds for decree of nullity

(1) A marriage which takes place after 30 June 1972 shall be void on any of the following grounds only—

……

(c) that at the time of the marriage either party was already lawfully married;

……”

11.  In my judgment, when the Second Marriage took place on 15 June 2007, the Deceased was lawfully married to P at that time.  Accordingly, by the operation of s.20(1)(c) of the MCO, the Second Marriage is clearly void.

12.  It is trite that a void marriage is a nullity.  As said by Lord Denning in Wiseman v Wiseman[1]

“If a transaction is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. A good instance is a bigamous marriage.”

13.  As a matter of law, since the Second Marriage is void, it shall be treated as never having existed.  In De Reneville v De Reneville[2], Lord Green MR said:

“…… a void marriage is one that will be regarded by every court in any case in which the existence of the marriage is in issue as never having taken place and can be so treated by both parties to it without the necessity of any decree annulling it ……”

14.  Accordingly, the surviving spouse of the Deceased is P, not D. In the circumstances, for the purpose of the Intestates’ Estates Ordinance (“IEO”), P is the surviving wife of the Deceased and has a beneficial interest in the Deceased’s estate.[3] In accordance with Rule 21(1) of the

15.  For the reasons above, I would allow P’s application herein and grant the reliefs sought by P as stated in [2] above.

Disposition

16.  I make the order as stated in [15] above.

17.  In my view, P’s application herein is necessitated by D’s unreasonable refusal to withdraw her application for the LA, notwithstanding the repeated requests made by P.  P is wholly successful in this action.  Costs of these proceedings (including costs reserved, if any) should be paid by D to P forthwith.  I so order.  For avoidance of doubt, since there is no request for a certificate for two counsel, I have not granted such a certificate.  Costs awarded to P are summarily assessed at HK$200,000.  

18.  Lastly, it remains for me to thank counsel for the helpful assistance rendered to the Court.