NG CHING MAN AND OTHERS v. NG LAI WAH AND OTHERS

[English Translation ─ 英譯本]

HCMP 2564/1994

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

__________________

BETWEEN

__________________

------------------------

JUDGMENT

------------------------

Background

1. The couple of Ng Chee Ting (伍熾亭) and Au Yan Chiu (歐恩照) have the following nine children (listed in order of seniority):

(1)     Ng Yan Kuen (daughter) 2^nd Defendant

(2)     Ng Kwok Ching (son) deceased

(3)     Ng Kwok Hing (son) deceased

(4)     Ng Yan Mei (daughter)3^rd Defendant

(5)     Ng Yuk Mui (伍玉梅) (daughter)

(6)     Ng Kwok Wai (伍國威)(son)

(7)     Ng Yan Chee (伍恩賜) (daughter)

(8)     Ng Yan Yiu (伍恩瑤) (daughter)

(9)     Ng Lai Wah (daughter) 1^st Defendant

2. Ng Chee Ting and Au Yan Chiu have passed away one after the other.

3. Ng Kwok Ching was born in 1921.  He married Madam Kwong Yuk during the Japanese occupation of Hong Kong, and it is the validity of this marriage which forms the subject of the dispute in the present case.  Ng Kwok Ching passed away on 3 November 1985.  He and Madam Kwong have the following 14 children (listed in order of seniority):

(1)    Ng Wai Mui (daughter), born on 23 January 1944     (5^th Plaintiff)

(2)    Ng Ching Man (daughter), born on 18 March 1945   (1^st Plaintiff)

(3)    Ng Mei Chu (daughter), born on 9 August 1946        (2^nd Plaintiff)

(4)    Ng Mui (daughter), born on 22 February 1948          (7^th Plaintiff)

(5)    Ng Fook Chuen (son), born on 16 April 1949           (4^th Defendant)

(6)    Ng Fook Loi (son), born on 29 October 1950          (6^th Plaintiff)

(7)    Ng Fook Yuen (son), born on 10 April 1953            (5^th Defendant)

(8)    Ng Fook Cheung (son), born on 14 November 1954 (3^rd Plaintiff)

(9)    Ng Wai Lin (daughter), born on 27 June 1956           (6^th Defendant)

(10)  Ng Fook Man (son), born on 6 March 1958             (7^th Defendant)

(11)  Ng Fook Hing (son), born on 16 June 1961              (8^th Defendant)

(12)  Ng Fook Ming (son), born on 26 August 1962         (9^th Defendant)

(13)  Ng Wai Ching (daughter), born on 8 March 1964      (4^th Plaintiff)

(14)  Ng Fook Kuen (son), born on 29 May 1967            (10^th Defendant)

4. Ng Kwok Hing, who was unmarried and childless, died intestate on 14 December 1990.  Hence, his estate has to be distributed in accordance with the Intestates’ Estates Ordinance (Cap. 73 of the Laws of Hong Kong).  The 1^st and 2^nd Defendants have previously applied to the High Court to become administratrices of Ng Kwok Hing’s estate and have been granted letters of administration.  Ng Kwok Ching’s children apply to share Ng Kwok Hing’s estate under the Intestates’ Estates Ordinance.  The 1^st and 2^nd Defendants and some other siblings of Ng Kwok Hing oppose the application, on the ground that as the marriage between Ng Kwok Ching and Madam Kwong is invalid and unlawful, their 14 children are all illegitimate and, as such, not entitled to inherit part of the estate of Ng Kwok Hing.  The said dispute forms the genesis of the present action.

The proceedings

5. The 1^st to 7^th Plaintiffs are seven of the children of Ng Kwok Ching and Madam Kwong.  The other seven children cannot become plaintiffs as they have not been granted legal aid.  They become the 4^th to 10^th Defendants instead but do not take part in the present proceedings.  The 1^st to 3^rd Defendants are three of Ng Kwok Hing’s sisters, and the other four siblings are represented by the 1^st and 2^nd Defendants upon the approval of the Registrar.  The 3^rd Defendant, taking a different stance to that of the 1^st and 2^nd Defendants, supports the Plaintiffs.

6. The Plaintiffs seek the following rulings and declarations by the court: that the 1^st to 7^th Plaintiffs and the 4^th to 10^th Defendants are all children of Ng Kwok Ching and Madam Kwong within the definition of the Intestates’ Estates Ordinance; that the marriage between Ng Kwok Ching and Madam Kwong is valid and within the definition of the Intestates’ Estates Ordinance; and that the 1^st to 7^th Plaintiffs and the 4^th to 10^th Defendants are legitimate children of Ng Kwok Ching and Madam Kwong.  The Plaintiffs further seek a declaration that the 1^st to 7^th Plaintiffs and the 4^th to 10^th Defendants are entitled to inherit part of the estate of Ng Kwok Hing, with each of them being entitled to one-fourteenth of one-eighth of the estate.  They also seek an order requiring the 1^st and 2^nd defendants to give an account of the estate in the capacity of administratrices.

7. These proceedings were commenced by an originating summons.  No pleadings have been filed, but both the Plaintiffs and the Defendants have filed affirmations.  The key affirmations filed on behalf of the Plaintiffs are made by Madam Kwong.  She has made three affirmations, the most important of which being the first one describes what happened when she married Ng Kwok Ching in 1942 or 1943.  The 1^st to 7^th Plaintiffs have each filed two affirmations, although they only touch on matters of formalities.  The 2^nd Defendant has made an affirmation rebutting the matters raised in Madam Kwong’s affirmation, whereas the 3^rd Defendant’s affirmation supports those matters.

8. Initially, the parties on both sides were legally represented.  A few months ago, the 1^st and 2^nd Defendants ceased to engage any lawyer, and therefore they appeared in person at trial.  The 3^rd Defendant, who supported the Plaintiffs, was also not legally represented.  The Registrar directed that all deponents had to attend court for cross-examination, failing which their affirmations could not be admitted as evidence.  All the witnesses called in the present case have made affirmations.  Besides Madam Kwong, the 1^st and 2^nd Plaintiffs and the 3^rd Defendant were called to give evidence for the Plaintiffs.  The 2^nd Defendant was called to give evidence for the Defendants.  The trial was conducted in the following manner: the affirmations of each witness were translated by the court interpreter to the witness for verification of contents, and then Counsel asked the witness supplementary questions.  This was followed by cross-examination and re-examination of that witness.

9. Expert opinions have also been submitted in the present case.  The Plaintiffs’ expert opinion is prepared by Mr Anthony Dicks, Q.C.  Pursuant to the Registrar’s directions, the expert opinion could be adduced as evidence without having to call Mr Dicks, unless the Defendants notified the Plaintiffs two weeks before trial of their intention to cross-examine Mr Dicks.  The Plaintiffs had not received such notification.  The Defendants obtained an expert opinion from Mr Miu Hung-chow of Counsel, but no direction had been given as to how the report was to be adduced.  The Plaintiffs had submitted a notice of admission of facts pursuant to Order 27 Rule 1(e) of the Rules of the Supreme Court, indicating that they were prepared to accept and recognise the legal provisions mentioned in paragraphs 3E, 3F and 3I of Mr Miu’s expert opinion in respect of modern marriage in China.  The Plaintiffs and the Defendants were therefore not required to call their respective expert witnesses.  The Plaintiffs have asked the Court to accept as evidence the expert opinion of Mr Dicks and paragraphs 3E, 3F and 3I of the expert opinion of Mr Miu.

The Plaintiffs’ case

10. According to Madam Kwong’s evidence, she was born in 1924 and three years younger than Ng Kwok Ching.  Between 1942 and 1943, when Hong Kong was under Japanese occupation, Madam Kwong resided with her elder sister Madam Kwong Ho (鄺好) and her husband in Hollywood Road.  Madam Kwong worked as a rice delivery worker and delivered rice to a Chinese herbs shop in Jervois Street from time to time.  The shop was run by the 2^nd Defendant and her husband, and Ng Kwok Ching worked there as a shop attendant.  Madam Kwong became acquainted with Ng Kwok Ching, and they later developed into lovers.  In the winter of 1942 or 1943, they decided to get married.  As her father had passed away a long time ago, Madam Kwong wrote to her mother in Mainland China seeking approval for the marriage with Ng Kwok Ching.  Her mother wrote back, indicating that she did not object to the marriage and requesting Madam Kwong to discuss the matter with Madam Kwong Ho in Hong Kong.  Ng Kwok Ching also obtained approval from his parents.  The wedding ceremony was held a few days after their respective parents’ approval was granted.  However, Madam Kwong says that as the ceremony took place during wartime more than five decades ago, she cannot recall the exact date of the ceremony or even the year in which it was held.

11. Madam Kwong says that most people of Hong Kong were living a hard life under Japanese occupation, and many suffered from chill and starvation.  Bodies of people who died from starvation could be seen lying in the streets, and some people even ate dead bodies in order to survive.  Under such conditions, the said wedding ceremony took a very simple form.  On the wedding day, Ng Kwok Ching went to the residence of Madam Kwong’s sister to fetch Madam Kwong, and then they rode in a rickshaw from Hollywood Road to the residence of Ng Kwok Ching’s parents at 2^nd floor, No. 123 Queen’s Road West, where the wedding ceremony was held.  Madam Kwong says that the so-called wedding ceremony was actually a banquet for guests filling two tables.  Ng Kwok Ching’s parents were present at the banquet, as were Ng Kwok Ching’s siblings.  The 2^nd Defendant and her husband also attended the banquet, but Madam Kwong’s elder sister and brother-in-law did not.  One of the tables, which was for the adults, was set on the balcony; the other table, which was for the children, was set in the living room.  As far as Madam Kwong recalls, apart from Ng Kwok Ching and herself, the only other relatives sitting at the table for the adults were Ng Kwok Ching’s parents, the 2^nd Defendant and her husband.  The table for the children was occupied by Ng Kwok Ching’s younger siblings.  They were all of tender years, with the older ones aged only 14 or 15 and the younger ones aged below 10.  The flat was in fact used by Ng Kwok Ching’s father for both commercial and residential purposes, namely a dental clinic in the daytime and a residence in the evening.  Members of the public could have access to the premises in order to seek dental treatment or gain access to the common areas.  Right outside the entrance was a half-length door similar to the swing door of the old style barber shops.  Behind the half-length door was the main wooden door with an opaque glass panel at the upper half.  The main door would remain open in the daytime when Ng Kwok Ching’s father ran his dental practice, but it would be closed in the evening.  According to Madam Kwong, during the banquet, anyone who passed by the common areas could see over the half-length door that a banquet was being held inside the premises.

12. Madam Kwong further says that at the ceremony she and Ng Kwok Ching did not observe the rites of worshipping ancestors and heaven and earth, as Ng Kwok Ching’s family were members of the Anglican Church.  No wedding ceremony was performed at the church either, as Hong Kong was then under Japanese occupation.  According to church rules, if a couple intended to hold their wedding ceremony at a church and one of them was a non-Christian, he or she must attend church congregations six weeks before the wedding.  Madam Kwong did not attend any church congregations before the wedding.  However, she served tea to Ng Kwok Ching’s parents and received “lai see” (red packets) from them.  Due to the special circumstances at that time, the bridegroom’s family did not give the bride’s family any engagement money.

13. On the wedding day, Ng Kwok Ching wore a western-style suit, and Madam Kwong wore a dress specially made for her by her elder sister.  At the banquet, the guests toasted one another with Chinese rice wine.  The guests were not treated to too much food, with only fish and meat being served, but this was more substantial than normal.  After the banquet, Madam Kwong and Ng Kwok Ching returned to their home in Sheung Wan.  The next day, the couple returned to the house of Ng Kwok Ching’s parents and served them tea.  Three days after the wedding, the couple went to the house of Madam Kwong’s elder sister in Hollywood Road for celebration, bringing with them chicken, wine and meat.

14. Madam Kwong says that owing to the circumstances during the period of Japanese occupation, she and Ng Kwok Ching could only try their best to perform the same rites that most Chinese people who got married with partners of their choice during that period would perform.

15. Three or four months after the wedding, Ng Kwok Ching and Madam Kwong moved their residence from Sheung Wan to the shop premises of Ng Kwok Ching’s elder sister (i.e. the 2^nd Defendant).  During that period, their first and second children were born.  After the war ended in 1945, they moved back to the house of Ng Kwok Ching’s parents.  They lived there for the next 20 years, during which all their other children were born.  In 1965, as their accommodation in Queen’s Road West had to be demolished, Ng Kwok Ching moved to 5/F, No. 14 Sun Chun Street, Tai Hang, taking with him his mother, Madam Kwong and their children.  Ng Kwok Ching’s father moved to the 2^nd Defendant’s house due to the cramped living conditions at the Tai Hang flat.

16. According to Madam Kwong, their marriage was accepted by Ng Kwok Ching’s family.  Ng Kwok Ching’s parents accepted her as their daughter-in-law, and Ng Kwok Ching’s siblings addressed her as their second sister-in-law and regarded her children as their nephews and nieces.  When the 1^st Plaintiff got married in 1971, all except two of Ng Kwok Ching’s siblings attended the wedding ceremony and banquet together with their spouses and children.  The Plaintiffs have produced photographs taken on the occasion, featuring the 1^st and 2^nd Defendants and their families along with the other siblings of Ng Kwok Ching.  Furthermore, as can be seen from some of the photographs produced in court, when Ng Kwok Ching’s father passed away, Madam Kwong and her children attended the funeral service wearing mourning apparel (as they were all members of the Anglican Church).  The names of Ng Kwok Ching and his siblings were carved on the gravestone of their late father, along with the names of the seven sons of Ng Kwok Ching.  The eighth son of Ng Kwok Ching was not born yet.

17. The 1^st and 2^nd Plaintiffs have also given evidence in court.  They say that Ng Kwok Ching’s parents regarded all 14 siblings of the two Plaintiffs as their grandchildren.  They had lived in their grandfather’s house for almost 20 years.  They confirm that there indeed were a half-length door and a main door at the entrance of the flat, and anyone walking by the entrance could see the living room and the balcony.  There was a staircase leading to the 3^rd floor, and one could see the interior of the flat from the staircase.  The living room and the balcony each measured approximately 120 to 150 square feet in area, and therefore could each accommodate a dining table for eight persons.  What the 1^st and the 2^nd Defendants say, namely that there was not enough space in the living room and balcony to hold a banquet for guests filling two tables, is (the Plaintiffs say) not true.

18. The 3^rd Defendant Ng Yan Mei has also testified in court.  She says that she was aged 16 and living in her father’s house when Ng Kwok Ching and Madam Kwong got married.  As she was mature enough to understand what was going on around her, and her eldest sister (i.e. the 2^nd Defendant) had already got married and moved out, her mother told her that her second elder brother Ng Kwok Ching would soon get married.  The 3^rd Defendant says that the wedding ceremony was very simple, and only meat and fish were served at the banquet, but it was already a square meal under the circumstances at that time because food was expensive and difficult to come by.  She also says that amongst the guests at the banquet was a clansman of his father named Ng Kui Wah (伍巨華).  He has passed away and was in his sixties at the time of the banquet.  The 3^rd Defendant testifies that her second elder brother and Madam Kwong did not worship heaven and earth because the Ng family was a Christian family.  However, her second sister-in-law Madam Kwong did serve Ng Kwok Ching’s parents tea both on the wedding day and in the following morning.  Furthermore, Madam Kwong and her 14 children have all along been regarded as members of the Ng family.

19. As regards proof of birth of her 14 children, Madam Kwong says that the first daughter Ng Wai Mui and the second daughter Ng Ching Man do not have birth certificates as they were born during the period of Japanese occupation.  The third daughter Ng Mei Chu was born after the war had ended, and a birth certificate was obtained for her by Ng Kwok Ching and Madam Kwong.  However, in the document submitted to the court, the child’s name does not appear, and the father’s name is recorded as Ng Ching (伍正) and the mother’s name Chan Chun (陳珍).  Madam Kwong explains that the certificate was obtained soon after the birth when the child had not yet been given a name, and that Ng Ching was in fact an alias of Ng Kwok Ching and Chan Chun was another name that Madam Kwong used.  In order to obtain more food, she held two food permits at that time, she used her real name Kwong Yuk in one of the permits and the alias Chan Chun in the other.  She also used the name Chan Chun when she was obtaining a birth certificate for Ng Mei Chu.  However, according to Madam Kwong, when Ng Mei Chu became an adult and applied for a British passport, she used the said birth certificate as a supporting document, and her explanation on the certificate was accepted by the authorities, which eventually issued a passport to her.  Apart from that, Ng Mei Chu was baptized at the Anglican Church when she was young, and her baptism certificate clearly shows that her parents are Ng Kwok Ching and Kwong Yuk and the sponsor is her grandmother Au Yan Chiu.  The fourth daughter Ng Mui was born in 1948, and no birth certificate was obtained for her.

20. Apart from the said four children, birth certificates were obtained for all the other 10 children either shortly after their birth or subsequently.  The names of their parents are expressed in all those certificates as Ng Kwok Ching and Kwong Yuk.

The Defendants’ case

21. The 2^nd Defendant Ng Yan Kuen gave evidence in court.  She is the eldest daughter of Ng Chi Ting and was born in 1918.  She ran a Chinese herbs shop in Jervois Street, Sheung Wan after getting married.  Her second younger brother Ng Kwok Ching started to work in the shop in 1940 and slept there at night.  Subsequently, the shop closed down.  The 2^nd Defendant and her husband were then living in Bonham Strand East in the vicinity of the shop.  She initially did not know Madam Kwong, but was aware that she was on friendly terms with her second younger brother.  The 2^nd Defendant denied having attended any wedding ceremony or banquet held by the couple.  As far as she recalled, her second younger brother and Madam Kwong only cohabited at the shop premises.  Her parents had never mentioned to her about any wedding ceremony or banquet.  She discussed the matter with her siblings and was told that they had never attended any such wedding ceremony or banquet.  She testified that the main door to her father’s clinic was always closed as he had few patients at that time, and hence no one walking by could possibly see what happened inside the living room.  She further testified that the living room was too small to hold a banquet for guests filling two tables.  Subsequently, she admitted under cross-examination that Madam Kwong and her children had attended the funeral services of her parents.  She also admitted that she had attended the wedding ceremony of the 1^st Plaintiff and addressed Madam Kwong as her second sister-in-law, which was how others had also addressed Madam Kwong.  However, she argued that these facts did not indicate that Madam Kwong was Ng Kwok Ching’s lawful wife.

Issues of the case

22. The first matter to be decided in the present case is the factual issue of whether Ng Kwok Ching and Madam Kwong performed any wedding ceremony during the period of Japanese occupation.  If no rite or wedding ceremony of any sort was performed, then they are merely cohabitees and do not have a legally recognized marriage relationship.

23. If they did perform some sort of wedding ceremony, the next question to be determined is whether such ceremony constituted a legally recognized marriage relationship, be it a customary marriage or a modern marriage. 

24. If the marriage between Ng Kwok Ching and Madam Kwong is valid and lawful, then their children are legitimate, subject to determination of whether the 1^st to 7^th Plaintiffs and the 4^th to 10^th Defendants are indeed the children of Ng Kwok Ching and Madam Kwong.  As to whether their children are entitled to part of the estate of their uncle Ng Kwok Hing, this has to be decided by reference to the Intestates’ Estates Ordinance.

Findings of fact

25. Having carefully considered the witnesses’ evidence, I am of the view that Madam Kwong’s evidence is more credible.  She did not exaggerate or fabricate any facts in the course of giving evidence.  She could well have concocted a story more favourable to herself had she so wished.

26. It is beyond dispute that Ng Kwok Ching and Madam Kwong first met each other between 1942 and 1943, and then became lovers and finally decided to get married.  After marrying into the Ng family, Madam Kwong resided in the house of Ng Kwok Ching’s parents for as long as 20 years and reared her children there.  She has been regarded as a family member by Ng Kwok Ching’s family, including his parents, younger brother and other siblings.  And the children that she and Ng Kwok Ching gave birth to have all along been regarded as the offspring of the Ng family.  All these are beyond doubt.  The crux of the matter is: what wedding ceremony was performed when Madam Kwong married into the Ng family?

27. I accept Madam Kwong’s evidence that before the marriage, she had sought and obtained the approval of her mother who lived on the Mainland.  Likewise, Ng Kwok Ching had obtained his parents’ approval before marrying Madam Kwong.  I accept that on the wedding day, Ng Kwok Ching went in person to Madam Kwong’s residence to fetch her, and then the couple rode in a rickshaw and returned to the house of Ng’s parents, where a banquet was held.  I accept that life was extremely hard and precarious during the period of Japanese occupation, with many people starving and living under fear.  Given such adverse conditions, a so-called banquet would have been no more than having a celebratory dinner more substantial than usual at home with all the family members, as opposed to a sumptuous banquet.  I also accept that apart from Ng Kwok Ching’s parents, his younger brother and siblings, including the 2^nd Defendant Ng Yan Kuen and her husband, were also present at the banquet.  And as the 3^rd Defendant Ng Yan Mei says, a clansman Ng Kui Wah was also present at the banquet.  As Madam Kwong had never met Ng Kui Wah prior to the wedding, she might have mistakenly said that no one else apart from the abovementioned relatives was present at the banquet.  However, it would be easier for Ng Yan Mei to remember his presence.  I also accept Madam Kwong’s evidence that she served her parents-in-law tea on the wedding day and received “lai see” from them, and then served them tea again the next morning.  Three days after the wedding, she returned to her elder sister Kwong Ho’s house, where they dined together to celebrate the marriage.  As Kwong Ho was Madam Kwong’s only relative in Hong Kong, Kwong Ho’s house served as Madam Kwong’s “maiden home”.

28. The Defendants query why Madam Kwong cannot even recall the year of the marriage, arguing that every woman should be able to recall the date of her marriage.  As it happens, the 3^rd Defendant Ng Yan Mei has also completely forgotten about the date.  The Defendants query whether Madam Kwong is telling the truth in saying that a banquet was held at home.  In my judgment, Madam Kwong has given a reasonable explanation as to why she has forgotten about the date of marriage.  Given the fact that the wedding took place during difficult times and more than five decades ago when the Japanese “Showa” calendar instead of the Gregorian calendar might have been used, there is bound to be confusion over the date.

The 1^st and 2^nd Defendants and other siblings (except the 3^rd Defendant) assert that no wedding banquet had ever been held.  In my view, the reasons for the assertion are as follows.  First, at that time, apart from the 2^nd Defendant Ng Mei Kuen who had already got married, the other siblings were still very young.  Ng Kwok Ching is the second eldest child, and Ng Kwok Hing and the 3^rd Defendant Ng Yan Mei were the third and fourth respectively.  Since Ng Yan Mei was aged only 16 at that time, the younger siblings were presumably aged below 14 or 15.  The 1^st Defendant has submitted that she was then only three or four years old.  It is therefore understandable that they did not have a clear recollection of the matter.  Second, in the special circumstances during that period of time, the celebration only took the form of a family dinner, and it may not be wrong to say that no wedding banquet was held.  I believe that the 2^nd Defendant was under the same perception when she maintained that no banquet was held.  Subsequently, when there was discord and dispute in the family, resulting in the present legal proceedings, she stood even firmer by her assertion that no banquet was held.  In my view, she did that merely to vent her spleen.  

A factual dispute arose among the parties in the course of giving evidence, namely whether the main door was open when the dinner was held on the day in question.  In my view, it is not worth delving into at all.  First, no one would open all the doors and windows in the chaos of wartime, still less would they do so during winter time when the dinner took place.  Second, even in peacetime, no one will leave the main door open whether they are having dinner at home or attending banquets in restaurants.  The most important thing is that what happens inside the premises is not hidden from view.  In my judgment, as long as the dinner at home was not something hidden, whether there was a half-length door or a main door behind it, and whether the main door could be seen through or was closed, are neither here nor there.

Customary marriage

29. A customary marriage normally refers to a marriage celebrated in Hong Kong in accordance with Chinese law and custom.  It has been recognized as a valid and lawful form of marriage by the laws of Hong Kong since 1842, and there are express provisions in that regard in section 7 of the Marriage Reform Ordinance (Cap. 178) enacted in 1971.  Section 7 reads as follows:

(1) For the purposes of this Ordinance, a marriage shall constitute a customary marriage if it was or is celebrated in Hong Kong before the appointed day in accordance with Chinese law and custom.

(2) A marriage shall be deemed to accord with Chinese law and custom if it was celebrated or is celebrated before the appointed day in Hong Kong in accordance with the traditional Chinese customs accepted at the time of the marriage as appropriate for the celebration of marriage either ―

(a) in the part of Hong Kong where the marriage took place; or

(b) in the place recognized by the family of either party to the marriage as their family place of origin.

(3) A customary marriage of persons who are subject to Chinese law and custom is hereby declared to be a valid marriage.

30. Customary marriage owes its origin to the Shang and Zhou Dynasty when the Duke of Zhou established a system of rites and composed music.  The rites developed and evolved over several thousand of years and became Chinese traditional customs.  A marriage is regarded as something not merely between a man and a woman, but also something between the two families.  The Book of Rites defines a marriage as follows:

A marriage is the harmonious alliance of two families, so that the couple can worship the ancestors and pass on the family line.  Therefore, it is valued by the men of integrity.

31. During the Warring States period, scholars collected and recorded information on the customs of marriage of different localities, and the information formed the “three letters and six etiquette”.  They have been recorded in ancient literature such as The Book of Rites, Rites and Wedding Ceremonies and Baihutong on Marriage.  The Book of Rites also says:

The following rites must be performed before the marriage: na-cai, wen-min, na-ji, na-zheng and qing-qi.  The head of the woman’s family has to give a banquet at the temple, and welcome the go-between at the door.  After making obeisance to each other, the two will go into the temple where the go-between will make the proposal.  All these rites are performed meticulously to respect marriage.

The six etiquette are:

(1)      na-cai (納采) – the man’s family instruct a go-between to bring gifts to the woman’s family to make a marriage proposal.

(2)      wen-min (問名) – the man’s family ask the woman’s family for the woman’s birth data.

(3)      na-ji (納吉) – the birth data of the man and the woman are compared to see if they match.

(4)      na-zheng (納徵) – the man’s family instruct the go-between to present betrothal gifts to the woman’s family to confirm the engagement.

(5)      qing-qi (請期) – the man’s family choose an auspicious date for the marriage and inform the woman’s family.

(6)      qin-ying (親迎) – the bridegroom goes to the bride’s house to fetch her.

Apart from the six etiquette, there are also the rites to be performed in the bridal chamber and the rite of serving tea.

32. The three letters are: the “betrothal letter” exchanged between the two families when the proposal is made (i.e. na-cai), the “gift letter” exchanged between the two families when betrothal gifts are presented (i.e. na-zheng), and the “wedding letter” given to the bride’s family when the bridegroom fetches the bride (i.e. qin-ying).

33. The “six etiquette” became “three etiquette” during the Sung Dynasty.  Na-cai and wen-min were merged and became cai-li (采禮);na-ji, na-zheng and qing-qi were merged and became na-bi (納幣); and qin-ying was preserved.  The “three letters” also gradually became obsolete; in their stead, a piece of red paper would be used to list the gifts at the stages of proposal and gift presentation.

34. It can be seen from the above that the rites of customary marriage were indeed elaborate.  They were therefore changed and simplified over time in different places and under different circumstances.  Nevertheless, generally speaking, no matter how they were changed or simplified, the rites of customary marriage, which were after all based on customs, consisted of three essential stages or steps, each of which involved certain rites, depending on the time, place and circumstances in which they were performed.  In Kwan Chui Kwok Ying & another v. Tao Wai Chun and others[1995] 1 HKC 374 at 401, I made the following observations:

In my view, whatever changes had been made to these rites, one must always bear in mind that a Chinese customary marriage was by customs and tradition still essentially an alliance of the two families. Hence, there would always be elements such as: the presence of a go-between, the presentation or exchange of gifts, the approval or agreement of the heads of the two families, the holding out to the public of the event including welcoming the bride into the bridegroom’s family. It is also clear that a customary marriage did not begin and end on the same day. It started sometime before the wedding day and finished a few days after that. So far as one can gather from these authorities, there were three essential stages where certain steps must be taken in order to constitute a valid customary marriage. The first stage would be that of proposal and betrothal. It consisted basically of a go-between bringing gifts or presents of betrothal from the family of the man to the family of the woman. It symbolised an offer on the part of the family of the man to enter into a contract of marriage with the family of the woman. The second essential stage would be that of an approval or agreement by the two families. This included the matching of the two persons’ particulars and the fixing of the wedding date. It symbolised that the marriage had the blessing of the heads of families and indicated a confirmation of the intention on the part of both families to proceed with the marriage. The last essential stage would be the welcoming of the bride by the bridegroom into his family which was done in the presence of relatives and friends. It was a symbol of acceptance in public of the bride into the bridegroom’s family. This involved all the ceremonies which were to be performed on the wedding day. The details of such ceremonies would depend on different places in different parts of China. This would involve the receiving of the bride into the groom’s family in the form of a sedan chair in the olden days or in the form of a car or other transportation, the worshipping of heaven and earth and the bridegroom’s ancestors, the serving of tea by the bride to the family elders, the introduction of the bride to the other members of the family and a banquet to celebrate the occasion.

In my opinion, if these essential stages were present, it could be said that the marriage would be considered as a validly constituted customary marriage.

35. Counsel for the Plaintiffs submits that customary law often changes with time, location and circumstances, and that it constantly develops.  He also submits that customary law would have changed under the special circumstances in Hong Kong during the period of Japanese occupation, and that the court should give a clear ruling as to what changes had been made during that period.  He adds that customary law should not lay down any bottom line for the ceremonies to be performed in customary marriage.

36. In my judgment, our customary law is living, flexible and constantly evolving, similar to the common law and customary law in other jurisdictions.  In Chan Chung Hing v. Wong Kim Wah and Others [1986] HKLR 715 at 724, Mr Justice Saied said:

All this boils down to the fact which is accepted that customary law is not static; it has been described as ‘a living and developing organ’.

37. In Wong Kam Ying and Another v. Man Chi Tai [1967] HKLR 201 at 211, Mr Justice Huggins observed that customary law was not static and ossified.  He also said:

… one merely looks to 1843 to ascertain the applicability of the customary law and the basic rules as they then existed and thereafter one applies those rules subject to such developments as may have taken place since that date.

… in many respects it will have developed and it lies within the jurisdiction of the courts in Hong Kong to decide how and to what extent it has developed and even to take a part in deciding the course of its development.

38. Although customary law is not static, I do not agree with Counsel for the Plaintiffs that there were significant developments and changes in customary law during the period of Japanese occupation.  It was only the circumstances that were changed, and such changes rendered it impossible to perform many of the rites of a customary marriage.  We cannot say that there were developments and changes in customary law during the three years and eight months between 1941 and 1945, but upon restoration of peace the law returned to its previous state.  In my view, developments and changes are gradual processes, and the law does not change abruptly and return to its original state abruptly.  There is no evidence of our customary law having developed and changed during the period of Japanese occupation.  The questions to be considered are: where some ceremonies had not been performed because the adverse conditions at that time rendered such performance impossible, should the marriage still be accepted as valid?  What were the only ceremonies of a customary marriage that could be performed during that period?  What ceremonies were not necessary? 

39. If the conditions are so adverse that not even the most basic marriage ceremonies are allowed, one can only say in despair: “Not that we don’t want to do it, it’s just that we can’t possibly do it in the circumstances.”  If a couple intend to register their marriage but there is no official marriage registry, then the marriage cannot be registered.  A couple living on their own on a desolate island cannot become lawful husband and wife, as there is no one to witness the wedding ceremony, making it impossible for their union to constitute a lawful marriage.  By the same token, if the man and woman are unable to perform the basic ceremonies required by a customary marriage, then the marriage cannot be regarded as such.

40. Mr Dicks, the expert instructed by the Plaintiffs, states in his report that, on the facts as described by Madam Kwong, the marriage constituted a customary marriage if the couple intended to get married under customary law.  He concedes that certain rites had indeed not been performed, such as ancestral worship and presentation of betrothal gifts, but opines that these omissions were inconsequential and that the failure to perform certain rites under special circumstances was insignificant.  With respect, I do not agree.

41. A customary marriage rests upon customs and rites.  It is not only a matter between two individuals, but is also an alliance of two families.  It follows that, however simple or simplified the ceremony may be, certain rites are indispensable.  In my view, even in exceptional circumstances, certain basic rites must be performed, or basic steps taken, for a marriage to constitute a customary marriage.

42. In Chan Chung Hing, Mr Justice Saied said (at 725):

I would agree that in conforming with traditions ‘inspiration’ is drawn from traditional custom, but the question surely is the manner and extent of the application of, and conformity with, such customs in the circumstances and environments of the parties concerned.

43. It is true that Ng Kwok Ching and Madam Kwong were prepared to become lawful husband and wife and also intended to perform the wedding ceremony.  The question, however, is: was what they did at the relevant time sufficient to constitute a valid and lawful customary marriage?

44. Counsel for the Plaintiffs submits that the question cannot be approached in the same way as making up a prescription, which does not allow a single ingredient to be missed.  While I agree with this, I am of the view that one should look at the matter in the round and decide whether the essential rites preserved by customary law had been performed.  In other words, one has to judge objectively whether the marriage would be accepted by ordinary people as a customary marriage under the customs and traditions at the given time and place.

45. Ng Kwok Ching and Madam Kwong started off as friends and then became lovers and eventually got married.  There was neither a matchmaker nor a go-between to make a proposal of marriage, not to mention the presentation of any betrothal gifts.  The couple did not perform any rite prior to the marriage; all they did was seek approval from their respective parents.  It therefore appears that the first and second essential steps of a customary marriage had not been taken.  All that happened was that, on the wedding day, the bride was received into the bridegroom’s family and the occasion was celebrated.  As the Ng family is a Christian family, it is understandable that the couple did not worship heaven and earth or worship their ancestors.    Nevertheless, Madam Kwong did serve Ng Kwok Ching’s parents tea.  A dinner was also held to celebrate the occasion, at which the couple drank a toast to the guests.  The dinner can therefore be regarded as a wedding banquet under the circumstances at that time.  Furthermore, Madam Kwong served Ng Kwok Ching’s parents tea on the following day and returned to her former home three days after the wedding.  The third essential step can therefore be regarded as having been taken.  The question is: was this sufficient?

46. It is true that during the period of Japanese occupation, few people would have time or be in the mood to act as matchmakers.  However, the couple could have asked a relative or friend to act as a go-between.  In Chan Chung Hing, the court accepted the legal expert’s opinion that the bridegroom was free to make all the marriage arrangements by himself if there was no elder member in his family.  At the relevant time, the only relative Madam Kwong had in Hong Kong was her elder sister.  Although she was already married, she was still able to act as Madam Kwong’s parent.  As regards betrothal gifts, given the difficult conditions at that time, gifts of any value would have been acceptable.  In ancient China, it was not the case that those living in remote and backward villages could not get married because they could not afford lavish gifts.  In the present case, in light of the financial conditions of both families at that time, the steps pertaining to a proposal of marriage and a betrothal would not have been beyond their ability.

47. In my view, no matter how customary law develops, how simplified wedding ceremonies are becoming and how adverse the circumstances are, a customary marriage is still an alliance of the couple’s families.  The making of a marriage proposal can be a simple procedure and may not require a go-between, and it is acceptable for a family member of the bridegroom to take up that role.  The betrothal gifts can be of minimal value and need not be expensive; the rites of receiving the bride into the bridegroom’s home can be simplified; the occasion can be celebrated in a most economical manner.  However, the two families must make some arrangements and take some steps so that others know that the couple are entering into an agreement of marriage and becoming husband and wife.  In the present case, ever since the couple decided to get married, they had not entered into any agreement of marriage, nor had there been any alliance or communication between the two families.  All they did was perform certain simple ceremony and have a modest celebration on the wedding day.  In my judgment, on an objective assessment, their marriage cannot constitute a valid customary marriage.

Modern marriage

48. In China, the modern marriage dates back to the Republic of China era, when free dating was prevalent and marriage was regarded as something between two individuals which did not need elaborate ceremonies.  In response to the popularity of this type of marriage, the government of the Republic of China enacted regulations to govern it.  They were set out in Chapter Two “Marriage” of Part Four “Family” of the Civil Code of the Republic of China.  From these provisions, it can be seen that the biggest difference between a modern marriage and a customary marriage was that the former was regarded as something between two individuals rather than something between two families.  Section 982 of the Civil Code provided that “[a] marriage should consist of open ceremonies and be witnessed by two or more persons.”  However, the Civil Code did not specify what ceremonies constituted a valid modern marriage.

49. In Hong Kong there were no regulations in the early days that governed this type of marriage.  A modern marriage which was held in Hong Kong was nevertheless governed by Chinese law and hence, as a matter of law, the validity and lawfulness of such marriage in Hong Kong was open to question.  Modern marriage was not formally recognized by the laws of Hong Kong.  However, since quite a number of people adopted this type of marriage, and some of these cases had been accepted by the Judicial Yuen (Court) in China, modern marriage began to gain recognition by the Hong Kong court in some cases.  (See Wong Kam Ying v. Man Chi Tai [1967] HKLR 201.)

50. In 1971, statutory provisions were formally enacted for modern marriage.  Section 8 of the Marriage Reform Ordinance provides that:

Subject to section 14, every marriage celebrated in Hong Kong before the appointed day as a modern marriage by a man and a woman each of whom, at the time of the marriage, was not less than 16 years of age and was not married to any other person shall be a valid marriage, and shall be deemed to have been valid since the time of celebration, notwithstanding ―

(a)  that the proper personal law and religion of the parties, or one of them, was Chinese law and custom, and the marriage was prohibited by or failed to comply with the requirements of Chinese law and custom; or

(b)  that the marriage was not under and in accordance with the Marriage Ordinance (Cap. 181).

(The appointed day is 7 October 1971.)

51. Although the Civil Code did not specify what ceremonies constituted a valid modern marriage, it would appear from the cases decided by the Judicial Yuen at the time of the Republic of China that a couple were free to choose their own ceremony as long as it complied with the requirement of section 982 of the Civil Code, namely, the ceremony was open and witnessed by two or more persons.  “Open” meant that the ceremony could not be held behind closed doors and should be known and seen by outsiders, so that anyone who wished to witness the ceremony could do so (see Judicial Yuen cases 859 of 1933 and 1701 of 1937).  These requirements were in fact difficult to meet in the circumstances of Hong Kong.  As to who could be witnesses, no requirements or restrictions were imposed by the law.  The Judicial Yuen held in case 1701 of 1937 that “witnesses are those who were present and saw the ceremony and can testify to that effect.”  In Liu Kit Chun v. Lui Kwok Hui Chow [1976] HKDCLR 51, Mr Justice Power (the present Acting Chief Justice) had this to say:

It is apparent from the ruling of the Judicial Yuen, cited by Dr Chiu at p.129, that a ceremony held behind closed doors or in a room so situated that only those inside can see what is going on is not an ‘open’ ceremony. One can see that difficulties might well arise in applying such rulings to Hong Kong where an ordinary public restaurant, in which marriage ceremonies are often celebrated, might be on the 20th floor of a high rise building and, of necessity by reason of fire regulations, behind a number of closed doors. Happily each case must be decided upon its own facts and it therefore falls to me here to decide whether the ceremony in the present case was an open one. I would remark here that the practice in Hong Kong, in an attempt apparently to satisfy the requirement of openness, has been to leave the door of the room in which the ceremony is performed ajar. As to witnesses, it appears that all that is required is that the person was present and witnessed the ceremony with his own eyes and is willing to testify to that effect.

52. In the present case, I accept that at the banquet held on the wedding day, a clansman Ng Kui Wah and the 2^nd Defendant’s husband were present, along with the various members of the Ng family.  Under the circumstances at that time, the Ng family did not intend to organize a grand banquet, nor could they afford to do so, and hence it was difficult to invite other guests.  Nevertheless, there were already more than two witnesses present at the banquet.  On the witnesses’ descriptions of the settings of the flat, neighbours passing through the common areas of the building or the passageway leading to the third floor could see what was happening inside the flat if they so wished.  The celebratory dinner in the present case was certainly no match for the grand banquets held in restaurants in peacetime, but it was still acceptable given the adverse conditions at that time.  Furthermore, Ng Kwok Ching did receive Madam Kwong into his family with a rickshaw, and this was done openly.  For these reasons, I hold that their wedding ceremony was performed openly in the presence of more than two witnesses.

53. On the above factual and legal bases, I hold that the marriage between Ng Kwok Ching and Madam Kwong is a modern marriage recognized by the Marriage Reform Ordinance.  Their marriage is a valid marriage as defined in section 3 of the Intestates’ Estates Ordinance, and their legitimate children also fall within the scope of that Ordinance.

Legitimacy

54. Madam Kwong says that she and Ng Kwok Ching have 14 children, namely the 1^st to 7^th Plaintiffs and the 4^th to 10^th Defendants.  Apart from the 1^st, 2^nd, 5^th and 7^th Plaintiffs, the other 10 children have all obtained birth certificates which certify that their parents are Ng Kwok Ching and Kwong Yuk.  As regards the fact that the 2^nd Plaintiff’s birth certificate shows her parents’ names as Ng Ching and Chan Chun, “Ng Ching” is in fact Ng Kwok Ching’s alias, and “Chan Chun” is the name that Madam Kwong used in a food permit in her possession, which was obtained for the purpose of getting more rice and food.  Given the fact that Madam Kwong worked as a rice delivery worker during that time, I accept her explanation as credible.  Furthermore, many years later the 2^nd Plaintiff succeeded in obtaining a passport on the strength of her birth certificate, and there is also her baptism certificate showing her parents as Ng Kwok Ching and Madam Kwong.  The absence of proof of birth for Madam Kwong’s eldest daughter (the 5^th Plaintiff), the second daughter (the 1^st Plaintiff) and the fourth daughter (the 7^th Plaintiff) is understandable as they were born either during the period of Japanese occupation or shortly afterwards.

55. Madam Kwong and her 14 children have all along been regarded by all members of the Ng family as the daughter-in-law and offspring of the family, and they all attended the funeral service of Ng Chi Ting.  Ng Kwok Ching and Madam Kwong described themselves as “son” and “daughter-in-law” respectively in their funeral wreath.  The 1^st Defendant argues that this should not be regarded as evidence favourable to the Plaintiffs because even non-relatives might well describe themselves as “sons” and “daughters”.  This argument seems to have some merit, but the more significant fact is that no one in the Ng family has objected to Madam Kwong’s being called “daughter-in-law”, and the 1^st and 2^nd Defendants have also conceded that they addressed Madam Kwong as “second sister-in-law”.  Furthermore, the names of seven of the sons of Madam Kwong and Ng Kwok Ching (the eighth son was not yet born) were carved on the gravestone of Ng Chi Ting, obviously on the instruction of Ng Kwok Ching and Madam Kwong, but no one objected to the seven boys’ being called Ng Chi Ting’s grandsons.  The 1^st and 2^nd Defendants also attended the 1^st Plaintiff’s wedding along with other siblings.  Although it is not direct proof of their relationship, it is one of the factors that the court can take into account.

56. In the present case, there is no evidential basis upon which one may question whether the 14 children were born of Ng Kwok Ching and Madam Kwong.  All the evidence, including the evidence and documents submitted by Madam Kwong, indicates that the 1^st to 7^th Plaintiffs and the 4^th to 10^th Defendants are indeed the children of Ng Kwok Ching and Madam Kwong.  This being the case, I accept and hold that they are all children of Ng Kwok Ching and Madam Kwong.  As the couple are lawful husband and wife, their 14 children are legitimate children.

57. Counsel for the Plaintiffs has suggested that even if Ng Kwok Ching and Madam Kwong are not lawful husband and wife, their 14 children may still be recognized by law as lawful or legitimate children.  Having made the above ruling, I do not propose to rule on this suggestion.  In my view, however, in light of the provisions under section 11(3), (4) and (5) of the Legitimacy Ordinance (Cap. 184), Counsel’s proposition cannot be sustained.  I also believe that section 11 of the Legitimacy Ordinance is intended to displace the traditional concept of the recognition of illegitimate children.

Distribution of the estate of an intestate

58. Ng Kwok Hing died intestate without leaving a wife or any children, and he did not have surviving parents.  It follows that his estate has to be distributed among his siblings pursuant to section 4(8) of the Intestates’ Estates Ordinance.  However, his elder brother Ng Kwok Ching died before him, and the 1^st and 2^nd Defendants challenge the right of succession of the 1^st to 7^th Plaintiffs and the 4^th to 10^th Defendants.  Pursuant to sections 5(1)(a) and 5(3) of the Intestates’ Estates Ordinance, although Ng Kwok Ching died before Ng Kwok Hing, his entitlement to one-eighth of Ng Kwok Hing’s estate is vested in his 14 children.  Accordingly, they are entitled to inherit in equal shares their father’s entitlement to the estate of their uncle Ng Kwok Hing.

Conclusion

59. For the above reasons, I hereby declare that the marriage between Ng Kwok Ching and Madam Kwong is a valid and lawful modern marriage, and that their children, namely the 1^st to 7^th Plaintiffs and the 4^th to 10^th Defendants, are legitimate children and, accordingly, are each entitled to one-fourteenth of one-eighth of Ng Kwok Hing’s estate.

60. Ng Kwok Hing’s estate is worth about $1,000,000, which means the Plaintiffs and the 4^th to 10^th Defendants will each receive less than $10,000.  This notwithstanding, they have commenced these proceedings in order to seek clarification of their legal status.  For reasons unknown to me, the siblings of Ng Kwok Ching are on bad terms with Madam Kwong and her children.  It is unfortunate for members of the same family to commence these legal proceedings due to past grudges, with the result that they have disowned and denounced one another in court, disturbed the peace of the deceased and caused anxiety to the surviving family members.  That they have chosen to resort to legal proceedings, which entail a waste of time and money and public exposure of their family affairs, is truly regrettable.  It is hoped that they can settle the disputes between them, so that their deceased relatives can rest in peace.