NANYANG COMMERCIAL BANK TRUSTEE LIMITED v. LAI YUEN SING AND ANOTHER

No.94 of 1997

(Civil)

IN THE HIGH COURT OF HONG KONG

COURT OF APPEAL

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J U D G M E N T

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Keith J. (giving the first judgment at the invitation of Nazareth V.-P.):

Introduction

1. Lai Kam ("the deceased") died in Hong Kong in 1994. He died intestate. He had had 8 children, all by his first wife. She had died 9 years earlier in 1985. However, it is claimed that the deceased had married for a second time. Madam Yip King Yuet claims that she married him in China in November 1986. Whether she did so or not will determine whether she is entitled to a majority share in his estate, and whether she has priority as against the deceased's children to administer the estate.

2. The dispute as to whether the deceased married Madam Yip has given rise to the action to which this appeal relates. It is unnecessary to summarise the detailed allegations which have been pleaded. It is sufficient to say that on the pleadings, the Plaintiff's claim against the Defendants, and the Defendants' counterclaim against the Plaintiff, depended on whether the deceased had married Madam Yip. Mr. Registrar Betts gave judgment for the Plaintiff on its claim, save for that part of the claim whose quantum was disputed, and he struck out the counterclaim. An appeal from his order was dismissed by Yeung J. The Plaintiff now appeals to this Court.

The weight to be attacked to the evidence

3. In a balanced and well-structured submission, Mr. Chan Chi Hung for the Defendants contended that although the outcome of the counterclaim depended on whether the deceased married Madam Yip, the Plaintiff's claim did not depend on that. The grant of letters of administration to the Plaintiff meant that the Plaintiff's claim against the Defendants had to succeed, save only as to quantum. He contended that despite the pleadings, and despite the Plaintiff's Notice of Appeal from the order of Mr. Registrar Betts (which sought to have the Plaintiff's judgment set aside), the judgment of Yeung J. shows that he at least was aware of that. For my part, I am prepared to assume that that is correct. Accordingly, although the Plaintiff's Notice of Appeal from the order of Yeung J. also seeks to have the Plaintiff's judgment set aside, I propose to determine this appeal as if it is only the counterclaim whose outcome depends on whether the deceased married Madam Yip.

4. The relevance of all that is this. A considerable amount of evidence relating to whether the deceased did indeed marry Madam Yip was before both Mr. Registrar Betts and Yeung J. Because I am proceeding on the assumption that that issue did not arise on the Plaintiff's claim, that evidence was only relevant to the Plaintiff's summons to strike out the counterclaim. That evidence was prima facie admissible in view of the Plaintiff's contention that the counterclaim was frivolous or vexatious, and an abuse of the process of the court. However, the circumstances in which evidence is in fact admissible when an attempt is made to strike out a pleading on those grounds are limited. In Wenlock v. Moloney [1965] 1 WLR 1238, it was said (at p.1244A-B) that:

"[the] summary jurisdiction [to strike out a pleading on the ground that it was frivolous or vexatious or an abuse of the process of the court] was never intended to be exercised by a minute and protracted examination of the documents and facts of the case, in order to see whether the [Defendant] really has a [counterclaim]. To do that is to usurp the position of the trial judge, and to produce a trial of the case in chambers, on affidavits only, without discovery and without oral evidence tested by cross-examination in the ordinary way."

5. This might have enabled the Defendants to argue that the evidence should not be looked at at all. However, that was not the stance taken before Mr. Registrar Betts or before Yeung J. Nor is it the stance taken by Mr. Chan today. Accordingly, provided that we do not usurp the function of the trial judge, and provided that we do not embark on an examination of the documents in a manner which would be more appropriate at the trial of the action, it is, in my judgment, permissible for us to give such weight to the evidence as we think appropriate, for the purposes of determining whether there is a chance, even a remote one, of the Defendants establishing at the trial of the action that the deceased did not marry Madam Yip. That was the approach of Yeung J., because he concluded his judgment by saying that having looked at all the evidence, he was

"firmly of the view that there is no conceivable chance of the defendants ever establishing that the marriage ... was invalid when the burden is clearly on them to do so."

Did the deceased and Madam Yip marry?

6. It is common ground that Madam Yip came to Hong Kong to live with the deceased at least 7 years before his death. The Defendants say that the deceased never told any of his children that he had actually married her. Reliance is placed on the fact that none of the children had attended the marriage ceremony, and that the deceased was living in Hong Kong at the time of the supposed marriage. When it was known that Madam Yip was claiming that she had married the deceased, and she was asked to prove that, it is said that she made no attempt to do so for some time, and did not even produce her marriage certificate.

7. For my part, I would not have regarded those factors as particularly significant. After all, it is not disputed that the deceased asked his children to address Madam Yip as "Ah Shum", which is a term which can be used to address a "tin fong" wife, i.e. a man's second wife following the death of his first wife. Indeed, it was accepted at one stage in correspondence that Madam Yip was the "tin fong" wife of the deceased. Nor is it disputed that Madam Yip attended the deceased's funeral dressed in the traditional clothes worn by a widow without objection or subsequent comment by the deceased's children. And evidence from the Department of Immigration as to whether the deceased had travelled to China shortly before the date in November 1986 when he was alleged to have married Madam Yip was inconclusive.

8. However, the real problem which the Defendants face is the formidable body of documentary evidence which confirms that the deceased and Madam Yip did indeed marry in November 1986. Those documents consist of:

(i) a copy of the marriage application form dated 19th September 1986,

(ii) a copy of an undated application form for permission for the deceased to return to China to get married, and

(iii) two copies of the marriage certificate itself dated 19th November 1986.

There are, it is true, significant differences between the two marriage certificates, but the evidence is that those differences reflect the fact that the certificate issued to a bride always differs from the certificate issued to a bridegroom, and that a mistake relating to the age of the deceased had to be rectified. These three documents - four if one includes the two copies of the marriage certificate - have all been the subject of notarial certificates, i.e. certificates from persons who, according to Chinese law, have the authority to certify the authenticity of legal documents. Thus, there has been exhibited

(i) a notarial certificate dated 23rd January 1997 certifying that the marriage application form and the application form for permission for the deceased to return to China to get married conform with the originals kept in the local achives, and

(ii) a notarial certificate dated 18th June 1994 certifying the marriage between the deceased and Madam Yip on 19th November 1986.

It was the latter document which Yeung J. regarded as decisive. All of these documents, except one of the two marriage certificates, bore an official chop, and there was even exhibited the declaration of the local official who approved the parties' marriage application.

9. Mr. Chan took a number of points on these documents to demonstrate their falsity. In my view, only one of the points had any substance. That point related to the chops on the marriage application form and the application form for permission for the deceased to return to China to get married. That chop is in the name of Yunfu City, whereas it was only in 1992 that Yunfu ceased to be a county and became a city. In other words, although the two forms purported to have come into existence in 1986, the chops which purported to grant the permission sought could not have come into existence until 1992. However, that point is by no mean decisive. The chops were either over, or close to, the references in the forms to the age of the deceased, and it may be that the chops were not purporting to grant the permission sought, but merely to authenticate subsequent amendments to the forms made in 1994 or 1995 to correct the mistake in the deceased's age.

10. As Yeung J. noted, the notarial certificates do not identify how the certifying notaries actually ascertained the accuracy of what the certificates purported to certify. Moreover, it is said that certificates of various kinds can be purchased in China. But whether that is true or not, the nature and number of the documents which purport to evidence that the deceased had married Madam Yip are such as to justify Yeung J.'s view that their marriage is beyond doubt.

The validity of the marriage

11. Finally, Mr. Chan argued that even if the deceased and Madam Yip had purported to register their marriage in November 1986, their marriage was not in fact valid under Chinese law because the marriage certificate did not specify their dates of birth. It merely specified their respective ages. It is common ground that, in May 1986, a uniform marriage certificate was introduced in China which provided for the inclusion of the parties' dates of birth. There is evidence before us from an expert in Chinese law that the old form of marriage certificate could be used after May 1986 until stocks were used up. But whether that evidence is correct or not, the crucial point is that there is no evidence that under Chinese law the absence on the marriage certificate of the parties' dates of birth will by itself invalidate the marriage.

Conclusion

12. For these reasons, I think that Master Betts was right to conclude that the marriage between the deceased and Madam Yip was beyond argument, and that he was therefore right to strike out the counterclaim. It follows that I think that Yeung J. was right to dismiss the appeal, and that this appeal should also be dismissed.

Findlay J.:

13. I agree with the judgment of Keith J.

Nazareth V-P.:

14. I also agree.

15. In particular I agree that the items of evidence detailed by Keith J overwhelmingly establish the marriage that is in dispute. The defects mentioned simply do not begin to dent that evidence or its overwhelming effect. That conclusion is plain and it does not involve anything like minute or protracted examination of the documents and facts.

16. The appeal is accordingly dismissed.