CHAN CHUNG HING v. WONG KIN WAH AND OTHERS

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J U D G M E N T

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Cons, V.-P. delivered the judgment of the Court:

1. Siu Chiu Yee died intestate on the 15th March 1983.  It would seem that an application for letters of administration to his estate was taken out by Wong Kin Wah, who alleged herself to be his widow by reason of a marriage in Macau on the 15th January 1952.  It would seen that a caveat was entered by Chan Chung Hing, who also claimed to be his widow, by a prior marriage in Hong Kong in 1942.

2. On the 14th October 1984, Chan Chung Wing commenced a probate action. The issue for the Court was the validity of Her marriage in 1942.  The Defendants to the action were Wong Kim Wah and those claiming to be her children by the deceased.  There was a counterclaim seeking Letters of Administration for herself or them.

3. The action came on for trial before Judge Saied, sitting as a Deputy Judge of ^-lie High Court; in January and February of 1986. It lasted some D days. On the 9th April of that yea, after a long and very careful judgment in which the validity of Chan Chung Hing's marriage was fully discussed, together with questions as to the domicile and place of birth of the deceased, the judge awarded Letters of Administration to the Plaintiff. He was satisfied her marriage had been Valid, while that Of Wong Kim Wah subsequently in Macau, was necessarily not. He dismissed the counterclaim.

4. Notice of Appeal was served on he 19th Hay. It set out. fear grounds of appeal, the last t of which was that the judge should have found that the Macau marriage was valid. A Respondent's Notice dated the 6th August turned on the domicile of the deceased in 1942 and questioned the formal validity of the Macau marriage.

5. The appeal first came to his Court on the 28th November 1986. There was an immediate application on behalf of Wong Kim Wah to adduce evidence in the form of an affirmation by one Cheng Ching Gan which indicated the possibility of a divorce between Chan Chung Hing and the deceased, followed by her remarriage to one Ng Tak Leung. After hearing argument, we admitted the affirmation into evidence and then; at the request of the Chan Chung Hing, adjourned the appeal sine die, giving her liberty to file affirmations if she so desired.

6. The appeal was resumed on the 16th April 1987. In the meantime Chan Chung Hing and her mother had filed affirmations, and we gave leave to file a further affirmation of Cheng Ching Gan in reply.

7. At that stage Wong Rim Wah applied for a retrial on the ground that the new affirmations raised questions of the credibility of Chan Chung Hing. We declined to make that order, but allowed the case to stand down for discussion between the parties.  Later the Court was informed that the parties had come to some agreement, but desired a direction from the Court.  I read now from the note I made at the time and which was expressly confirmed as correct. by counsel on both sides.

    "It is agreed between counsel that upon the Appellant's abandoning grounds 1, 2 and 3 of their Notice of Appeal, the appeal should be adjourned, sine die with liberty to restore and that in the meantime this Court should direct the trial in the court below of either" - then followed two alternative issues between which we were asked to decide.  We unanimously opted for the second, which reads in effect "an issue as to whether the 1942 marriage was terminated prior to the ceremony of marriage in Macau in 1952".  We made an order accordingly, with a further order as to costs which is not material today.

8. The issue as so framed was tried before Nazareth J. over a period of 19 days in October 1987. He delivered judgment on the 6th November. He concluded chat the 1942 marriage had indeed been terminated by divorce, but not until after the ceremony of marriage in Macau. He added, although it was not part of the issue, that the divorce probably took place later the same year or at the latest in 1953.

9. The appeal came back to this Court on the 5th May this year. Lie adjourned until today for two reasons. Firstly, the Director of Legal hid had only recently withdrawn his support for Chan Chung Hing; and secondly, having only just been discharged from hospital she was not even physically capable of dealing with the matter on her own. In any event she desired to take advice as to her situation and as to three applications which by then Wong Kim Wah had submitted.

10. The first was to add seven further grounds to the Notice of Appeal The second was for leave to amend the Defence and the Counterclaim filed in the court below; and the third was an application to adduce by way of further evidence in the appeal an affirmation signed by Dr. Hu, an expert in Chinese law and customary marriage.

11. When vie first sat this morning, we explained the present position to Chan Chung Hing, stressing that in view of the conclusion of Nazareth J., against which there had been no appeal on her part, it was inevitable that 'U the Letters of Administration granted to her must be set aside and that the appeal would be allowed to chat extent.  We explained that as far as the rest of the proceedings were concerned, although she was entitled to stay and tale part if she wished, there seemed little point in so doing, as nothing could come out of them to her advantage.  We adjourned for a short while to enable her to consider what she wished to do, and on our return she applied for leave to withdraw, which was duly granted.

12. Mr. Bernacchi, who has appeared for Wong Kim Wah throughout, then began to address us in support of his applications, in particular that to add further grounds of appeal.  The first of those sought to reverse the finding of Nazareth J. as to the dace of the divorce, that is, to place it before the Macau marriage.  I should say at this stage that Mr.   Bernacchi had prepared a very full skeleton argument in support and delivered it to this Court in ample time for us all to have studied it carefully in advance of the hearing.   Taking advantage of that he enquired early on whether we were minded to give an indication of our views on the first ground, which would be, of course, decisive in his favour should we uphold it. He had no further argument to put forward, beyond that which was set out in his skeleton.

13. We indicated that we could see no reason for interfering with the judgment of Nazareth J. and added that, apart from the question of costs, the other suggested grounds of appeal put forward completely new bases upon which Letters of Administration might be granted to he:self or her children; that in the normal course of events an application for a grant would be made in the first instance to the Registrar of the Probate Registry, who might if he thought fit refer it to the Probate Judge, both being men of wide experience in this branch of law and practice; that although this Court undoubtedly had jurisdiction, the jurisdiction was usually only invoked when there was dissatisfaction with decisions made below, and this Court would then have the advantage of those decisions, which if it allowed the present applications it would not; and that, although this appeal had followed an unusual course as the result of the evidence discovered by Wong Kim Wah subsequent to the first trial, it might be better if the proceedings; being put now on a fresh base, followed the normal course; we could see no difficulty in the Registrar's considering the new grounds under Section 6(I) (a) of the Ordinance for the two contentions that had been raised, namely the validity of the 1942 marriage and its termination or not before the 1952 marriage, had now been disposed of.

14. Mr. Bernacchi asked for time to consider our remarks and if necessary to take instructions.  He now withdraws the three applications and wishes to add nothing on the appeal itself.

15. As we indicated earlier to Chan Chung Hing, it is inevitable in the light of the decision of Nazareth J. that the appeal must be allowed to the extent of setting aside the Letters of Administration granted to her. We also set aside the dismissal of the counterclaim so that application on the new grounds may be made to the Registrar to whom we remit these matters as, at the moment, non contentious business. If it' be necessary. we make an order to vacate the caveat entered by Chan Chung Hing

16. All that remains is the question of costs.  Wong Kim Wah is to have her costs before Deputy Judge Sated and the costs of the appeal. We do not propose to disturb the order of costs made by Nazarech J., or his refusal of a certificate for two counsel.

17. Mr. Bernacchi asks for an order that the Appellants' costs should come out of the estate.

18. As we understand the law, if Wong Kim Wah or any of her children do eventually obtain Letters of Administration to the estate they will be entitled to so recoup themselves.  But we are asked to say they may do so in any event on the ground that whoever may obtain Letters of Administration in this instance, the action of the Appellants has preserved for the benefit of the beneficiaries that share of the estate which would otherwise have gone to Chan Chung Hing.

19. We accept the force of this argument and therefore make an order that all the costs awarded to wong Kim Wah and the other Defendants should in the first instance be paid out of the estate, and to be taxed for that purpose on a common fund basis.  Whoever obtains the grant will, of course, be under a duty to recover those costs as far as he is able.