RE CHAN CHO CHAK

HCAG 3695/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO. 3695 OF 2004

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D E C I S I O N

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Application

1. This is the first application on the newly established Non-Contentious Probate List.  In my view, it perfectly demonstrates how an application for grant can be processed expeditiously.

Background

2. The Deceased died intestate in Hong Kong on 20 September 2002.  His lawful kit-fat wife passed away before him in 1995 and his “concubine”, after him in 2003.  There were 11 children borne by the parties.  The applicant is the eldest son begotten by the Deceased and the concubine.

3. On 30 April 2004, the application for grant was filed.  The matter was processed in its usual way.  Sometime in July 2005, requisition no. 6 was raised to pursue the proof of the concubinage.

“6. Neither (6) nor (7) can be accepted as evidence to prove the union of concubinage of the deceased with Fung Shok Ying since both the witnesses were not present and had no personal knowledge of the ceremony of concubinage.  Please file fresh affidavit evidence from the siblings or relatives of the deceased, of his kit fat wife or Fung Shok Ying to comply with req. no. 5.”

4. To comply with the requisition, on 1 November 2005, an affirmation from the niece of the Deceased was filed to confirm that the Deceased did take the concubine and the parties’ relationship was accepted and recognized by the wife and the family generally.

5. On 17 November 2005, Mr. Registrar Chan issued a letter informing the profession of the establishment of the Non-Contentious Probate List and invited them to make use of it.  Messrs. John Ho & Tsui, solicitors acting for the applicant, filed a notice of appointment accordingly with the High Court Registry.  On 2 December 2005, Mr. T. Chan appeared before me.  He kindly prepared a succinct skeleton to assist me.  He also diligently conducted research on the law relating to concubinage.  He finally invited the applicant to attend the appointment as well.

The Law

6. I have no hesitation to accept the research done by Mr. Chan.  To summarize:

(a)  A ceremony, though usual, is not essential to establish concubinage.  In Cheang Thye Phin v. Tan Ah Loy [1920] AC 369, the Privy Council said at pages 374 and 375 that:

“It is clear that a ceremony of marriage is necessary to constitute the relation of principal wife or “t’sai,” and the ceremony is one in which both the bridegroom and the bride must take part.  By Chinese law a man may have secondary wives or “t’sips,” as they are sometimes called.  The position of a secondary wife is superior to that of a mere concubine, though this term is sometimes applied to a “t’sip.”  It is usual that there should be some sort of ceremony when a “t’sip” is taken, but it is not a ceremony of marriage; indeed, the man is not usually present when it does take place.  The “ceremony” varies in its details, but the principal features of it are the doing of obeisance to the “t’sai” by the prospective secondary wife, and the offering of tea by the latter to the “t’sai” and the relations.”

(b)  A common intention among the parties to form the concubinage is necessary.  Huggins J. commented in Wong Kam Ying v Man Chi Tai [1967] HKLR 201 that:

“The taking of a concubine is not really a marriage at all: it is, to use the words of Lord Phillimore in Khoo Hooi-leong v. Khoo Hean-kwee [(1926) A.C. 529, 543] “a special kind of union”.  Dr. Chiu in his “Marriage Law and Customs of China” at p. 23 states that “Concubinage resulted from ‘pen’ or running away from the Six Rites”.  He makes it clear that a woman may become a concubine to a man who has no previous connubial union with a woman at all and that the man may subsequently take a t’sai: op.cit.p.24.  It is unnecessary to consider all the circumstances in which a woman becomes a t’sip, but it may be noted that there is no particular form of ceremony required: Cheang Thye-phin v. Tan Ah-loy [ibid].  The absence of any ceremony may be indicative of the absence of the relationship (as in Ng Ying-ho v. Tam Suen-yu [(1963) HKLR 923, 925] but the real question is whether there was a common intention to form a permanent union as husband and concubine: Re Lee Gee-chong, deceased [(1965) 1 MLJ 102].  In the present case I have not the slightest doubt that there was such an intention.  Not only did the deceased himself for many years treat her as a concubine but she was accepted as such by Wong Kam-ying: she had “passed the deceased’s door”.”

7. Acceptance of the concubine by the wife and recognition of the relationship by the family generally are required.  Section 13 of the Intestates’ Estates Ordinance (Cap. 73) (“IEO”) also provides a reference that:

“(2)  ……, ‘union of concubinage’ (夫妾關係) means a union of concubinage, entered into by a male partner and a female partner before 7 October 1971, under which union the female partner has, during the lifetime of the male partner, been accepted by his wife as his concubine and recognized as such by his family generally.”

8. Further, I also referred Mr. Chan to the authority of Suen Toi Lee v Yau Yee Ping (FACV No. 22 of 2000) whereby it was held that the question of domicile was essential to determine the parties’ legal right to form concubinage.  In that case, no concubinage was formed because:

“41.  ……  None of them were ever domiciled in Hong Kong.  And it is only if they had been domiciled in Hong Kong at the time when they sought to enter into unions of concubinage that Hong Kong law would have operated to give them capacity to do so under Chinese law and custom.  Throughout they were domiciled in the Mainland where concubinage had been abolished by the time they purported to enter into unions of concubinage.  So under their domiciliary law none of them had capacity to enter into a union of concubinage.  In the eyes of Hong Kong law therefore neither Madam Sung nor Madam Chu ever became of Mr. Sung’s concubines under Chinese law and custom.”

The Evidence

9. To apply the above principles to the facts of the present case, I am satisfied that the Deceased did intend to take the concubine.  It was accepted by the wife.  It was also generally recognized by the family.  Though the deponents could not say anything on the ceremony (probably because they were not attending it personally), it is not a necessary ingredient and as such, need not be pursued further.

Assistance from the applicant

10. It appears that so far so good.  However, what about the question of domicile?  It has not been dealt with.  When I discussed it with Mr. Chan, he asked me to stand down the matter for him to take instructions.  Eventually, with the kind permission from Mr. Chan, I talked directly to the applicant who sincerely told me that his father was born in China in about 1898.  The Deceased came to Hong Kong in 1917 due to personal reasons and thereafter established his family and business here.

11. The applicant went on to spell out quite some further details.  I then asked him to concentrate on the court’s concern, i.e. when the Deceased took the concubine in about June 1936, were they domiciled in Hong Kong?  The answer was affirmative.  I pursued the matter by asking if he could produce some documents of proof to assist me further.  He replied that he probably could find some old documents showing the establishment of the Deceased’s residence and business in Hong Kong in or about 1936.

12. By now, I must agree that requisition no. 6 has been cleared and requisition “no. 7” to be raised has also been dealt with in some depth.  Instead of waiting to be communicated through letters, by phones and/or meetings, which may take months, the applicant has been made known what exactly this court is asking for.

Decision and direction

13. In the circumstances, I hereby do tick off requisition no. 6 and direct the applicant to file a supplemental affirmation dealing with the question of domicile as aforesaid, within say 28 days from today.

14. I have nothing further to add apart from expressing my gratitude towards Mr. Chan for his assistance in the matter.