RE TSE CHU

HCAG 11051/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO. 11051 OF 2011

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J U D G M E N T

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The Application for letters of administration

1.  The Deceased who died intestate in 2011 was described in the affirmation (“the Oath”) in support of the application for letters of administration by one of her “lawful and natural” sons as a widow.  

2.  In the Oath, it was stated that the Deceased’s predeceased husband (“Husband”) “had other wives”.  However, no further particulars were provided regarding the “other wives”.

3.  Upon queries raised by the Probate Registry, solicitors for the Plaintiff replied by letter that the Husband in fact had three wives by asserting that the Husband married a woman surnamed ‘POON’ and subsequently a woman surnamed ‘CHAN’ in Qingyuan, Mainland China, respectively in 1925 and 1932.  The Deceased was the Husband’s third wife whom he had married in 1945 in Hong Kong.  All of these purported marriages were allegedly conducted and celebrated in accordance with Chinese laws and customs.

4.  In the further answer to the requisition regarding the respective statuses of these women with whom the Husband had alleged married, the solicitors stated that they had the statuses of  “equal wives” (平妻).

5.  Since the answers do not clarify the statuses of the “wives”, I directed the handling solicitor to attend a hearing before me for the purpose of clarifying the answers to the requisitions.

The Appointment Hearing

6.  At the appointment hearing, Miss So, solicitor for the Applicant, submitted that her client was in fact unclear as to who the lawful kit-fat wife of the Husband should be.  The reason why these women had been regarded as “equal wives” because the Husband had so told her client.  Miss So further explained that since her client was a lay person, he would not have understood the meaning of “equal wives”.

7.  Miss So further informed the court at the hearing that although she had previously in her answers by correspondence that all the “marriages” were Chinese customary marriages, her client could not however be sure whether that was indeed the case.

8.  The court was further informed that out of the Husband’s union with POON, there were two sons; and that with Chan, a son and a daughter.  None of these children however have been disclosed in the Oath.

9.  Miss So has indicated that her client would be willing to file further evidence to clarify the situation.

Discussion

Whether POON, CHAN and the Deceased were “equal wives”?

10.  On the evidence, there is very scanty information as to how the relationships the Husband had formed with Poon, Chan and the Deceased.  It is however important to bear in mind that the concept of “equal wives” or “ping chai”, according to Tsing law, was a peculiar status that is used to describe women married to the same man under a kim tiu (兼挑) marriage.

11.  Kim tiu marriage could only 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 ones of both his natural and adoptive fathers (see Leung Sai Lun & Ors. v Leung May Ling & Ors. [1999] 1 HKC 605 at 613H-I, CFA).

12.  Thus, “ping chai”, wives of “kim tiu” son under Tsing law, all enjoy equal standing.  (See Ng Yeung Lai Lin & Ano. v Fung Shui Kwan & Ano.; Ng Shum (No. 2) [1990] 1 HKLR 67, Liu J).  The number of wives a kim tiu is entitled to marry depends on the number of the branches of the family he represents.  The minimum is two[1].

13.  On the evidence available, there is no suggestion of any kim tiu marriages, I cannot accept Miss So’s submission that all the three women are “equal wives”.

Whether CHAN and the Deceased were concubines?

14.  According to Miss So’s answers to the requisitions, the Husband married POON and CHAN respectively in 1925 and 1932 and with the Deceased in Hong Kong in 1945.  Assuming that the parties had all gone through Chinese customary marriages, it would appear that POON, being the first wife, might have been the principal wife, CHAN and the Deceased might have been concubines.  These women however definitely could not be equal wives as kim tiu marriages had not arisen on the evidence.

15.  If however, there were no valid marriage ceremonies, the relationship should no more than mere co-habition, and these women would not have enjoyed any rights accorded to a wife or concubine.

16.  The issue of whether the unions were in fact valid Chinese customary marriages conferring POON the status of a principal wife, and those of CHAN and the Deceased concubines would involve a consideration of the lex loci celebrationis, i.e. the law of the place where the union is entered into[2].

(a)  CHAN’s union with the Husband

17.  Since the purported union took place in Mainland China in 1932, the law of China prevailing in 1932 should apply. The prevailing law at the time would be the law of Republic of China. What is the position of concubinage in that Republic of China at that time? I cannot do better than quoting below a passage in Suen Toi Lee v Yau Yee Ping [2001] 4 HKCFAR 474 at 481I-482A per Bokhary PJ:

“Concubinage in the Mainland was not brought to an end immediately upon the founding of the Republic of China in 1911.  But the Republican Civil Code (the RCC) which came into force on 5 May 1931 stated (in Book IV, art.985) that “A person who has a spouse may not contract another marriage.”  The courts below concurrently found, upon the expert evidence of Professor Antony Dicks SC, who needs no introduction in the courts of Hong Kong, that this prohibition abolished concubinage.  This finding is not challenged before us.  A statutory institution called “the house” was created and provided for by various other articles of the RCC.  By virtue of these other articles, a woman who cohabited on a permanent basis other than as a wife with the head of the house or any other male member of the house qualified as a “member of the house” and was as such entitled to maintenance.”

18.  According to the passage above, it would appear that CHAN could not be a concubine as the purported marriage or union took place after 5 May 1931, the commencement of the Republican Civil Code that prohibited a union of concubinage.  She however might be, according to the same Code, entitled to maintenance out of the Husband’s estate.

19.  The issue regarding CHAN however still does not end here.  According to a subsequent decision of Wong Zhong Lan-Xiang & Anor. v Frank Wong [2002] HKCU 461 (Deputy High Court Judge A. Cheung as he then was), the second marriage may not be void.

“69. ……I have heard much expert evidence on whether under the Civil Code, in particular under the various articles contained in Chapter IV of the Civil Code which came into force in 1931 in the Mainland under the Nationalist government, a Chinese male had the capacity to contract a second marriage. The extent of expert evidence on the Civil Code that I have heard would seem to go beyond that which was received by the trial court in Suen Toi Lee v Yau Yee Ping [1998] 1 HKLRD 716 & [1999] 3 HKLRD 502 (Keith J.), which went all the way to the Court of Final Appeal ([2000] 3 HKLRD 443 (C.A.), FACV No. 22 of 2000 (21/12/2001) (C.F.A.)) and which concerned, amongst other things, whether the Civil Code allowed a married Chinese male domiciled in the Mainland to take a concubine there. Regardless of the position of a purported concubine, based on the expert evidence I have heard, I find that because of the way the Civil Code dealt with a second marriage, a married Chinese male could contract a second marriage with a female conferring on her the status of a wife, which status would continue for so long as no interested party successfully applied to avoid or annul this second union, notwithstanding the express prohibition against bigamy contained in article 985. That status carried with it the right to an equal share as the first wife in the estate of the husband.

70. This result was the combined effect of article 988 which dealt with void marriages and which did not include 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 ab initio, to use legal language more familiar to this jurisdiction.  To be sure, there were some initial differences in judicial interpretation by the Mainland courts at the time, for after all the above proposition is startling not only to many of us who have been under the belief that marriages under the Civil Code are monogamous in nature, but was equally startling to the judges in the Mainland at the time.  But the courts eventually settled in favour of the above interpretation of the various relevant articles in the Code, although to be fair to them they also recognised that this was an anomaly unintended by the draftmen of the Civil Code: See Judicial Council Interpretation No. 1210 (1935); Supreme Court Appeal No. 1709 of the 27th year (1938); Supreme Court Appeal No. 445 of the 28th year (1939); Supreme Court Appeal No. 631 of the 28th year (1939); Judicial Council Interpretation No. 1985 (1940); Judicial Council Interpretation No. 3762 (1947); but c.f. Supreme Court Appeal No. 1819 of the 22nd year (1933); and see particularly the original Chinese texts, which would avoid the unnecessary errors and confusion encountered during the course of trial arising from the use of less than perfect translations of these judgments which were composed in slightly archaic Chinese.”

20.  The Court of Appeal has confirmed the finding of the learned Judge:

“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 art 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 ie 1939. This can be seen from the publication entitled ‘The Complete Text of the Six Laws, with commentaries (Latest Ed)’. (最新綜合六法全書)

91. At p 256, the commentary on art 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

Δ 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）民一０五二(1)；（重婚罪）刑二三七、二三八。

Δ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份而指為妾。（二七上一七０九）

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

(See Wong Zhong Lan-Xiang & Anor. v Frank Wong [2003] HKEC 421).

21.  It is abundantly clear from the passages quoted above that the status of CHAN would require a careful consideration of the prevailing law of the Republic of China, in particular the effect of the abolition of concubinage under the Republican Civil Code of 1931.

(b)  Deceased’s union with the Husband

22.  The purported marriage between the Deceased and the Husband was said to be contracted in 1945 in Hong Kong.  Assuming the parties were both domiciled in Hong Kong, the validity of the purported marriage would be governed by the prevailing law of Hong Kong in 1945.

23.  Before 7 October 1971, the coming into effect of the Marriage Reform Ordinance (Cap, 178), a Chinese man who entered a Chinese customary marriage domiciled in Hong Kong could enter into a concubinage union.

24.  To be a valid union, no formalities or any particular form of ceremony is required.  A common intention among the parties to form the concubinage is necessary (See Wong Kam Ying & Anor. v Man Chi Tai [1967] HKLR 201 followed by Chan Chiu Lam & Ors. v Yau Yee Ping [2000] 3 HKLRD 443 at  454A & 462F (CA)).  A valid concubinage union depends on an open acceptance by the wife and open recognition by the man’s family generally (See Suen Toi Lee, supra [2001] 4 HKCFAR 474 at 481F).

25.  In order to establish a valid union of concubinage, the applicant in this case would need to adduce evidence as espoused in the cases cited above.

The status of the children of POON and CHAN

26.  In the event that CHAN and the Deceased are in fact concubines, the children of POON and CHAN should be entitled to the intestate estate of the Deceased.

27.  Paragraph 2 of Schedule 1 of the IEO places children of a concubine on the same standing as children of the principal wife, and they can all inherit the estate of the principal wife as well as that of the “tsip(s)” (See Ling Yee Kui v The Secretary For Justice [2011] HKCU 975, §14, Lam J).

28.  Paragraph 2(2) (b), Schedule 1 of the IEO, also allows children of a principal wife to be regarded as children of a concubine.  Hence, a child of a principal wife and the “tsip(s)” are all regarded as whole blood siblings for the purpose of the IEO because of the provision of Paragraph 2(3) of Schedule 1.

Directions

29.  The discussion above shows that the issue regarding the statuses of POON, CHAN and the Deceased is by no means simple.  The solicitor has a duty to take proper instructions from her client, and then identify the correct legal status with reference to law.  It is, in my view, inexcusable for the solicitor to give a lay man’s view (as she had done in this case) as if her client were not legally represented.

30.  Further, it is unacceptable for a solicitor to have completely ignored the importance of setting out necessary information in the Oath when its content clearly requires such particulars to be provided when the assertion of the Husband having had “other wives” was made in the Oath.

31.  The lack of care and attention on the part of the solicitor in taking proper instructions from her client and drafting of the Oath has unfortunately led to delay as a result of the requisitions the court needs to raise in exercise of its inquisitorial jurisdiction under Rule 5(1), the Non-Contentious Probate Rules (Cap. 10A).

32.  In the circumstances, I direct the solicitor to within 3 weeks of this direction make good of the issues that I have discussed above by filing further affirmation evidence and, if necessary, expert evidence on the validity of the different marriages, failing which, the application be rejected without prejudice to the filing of a fresh application for letters of administration in respect of the Deceased’s estate.

33.  Miss So has consented to the publication of this judgment, and I so direct. It is hoped that this judgment would serve as a reminder to probate practitioners the importance of exercising due diligence and care in the making of an affirmation in support of his or her application for a grant (See Yip Yuen Kam, Re (Yeh Lien Teh, Re) [2008] HKCU 1610, Lam J at §7). In a complicated application such as this case (which requires a careful analysis of the prevailing law of the Republic of China and Tsing law), the court would further expect practitioners to consider all the relevant legal issues before filing an application for a grant so as to avoid any delay occasioned by the inquiries the court raises as a result.