LEUNG MAY LING AND OTHERS v. LEUNG SAI LUN ROBERT AND OTHERS

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 119
(Civil)

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J U D G M E N T

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Nazareth, V.-P.:

Introduction and facts

1. This appeal concerns the answer to a single question of law which was submitted to the court below for determination under O14A of the Rules of the Supreme Court, as then titled. The question was whether a will was revoked by a subsequent marriage in the following circumstances.

2. The testator, who has been referred to and to whom I shall continue to refer as "the deceased", was married in 1951. By that marriage before his wife died in 1963, he had four children. They are the four defendants/respondents in these proceedings. After the first wife's death the deceased contracted a Chinese customary marriage with the 1st plaintiff/respondent on 28 February 1966 ("the customary marriage"). In June 1985, some 19 years later, the deceased and the 1st plaintiff contracted a second marriage under s.38 of the Marriage Ordinance Cap. 181 ("the registry marriage"). The 2nd, 3rd and 4th plaintiffs/appellants are the children of that marriage.

3. The deceased died on 21 March 1996. Sometime later, the defendants produced the will that is the subject of these proceedings, which they say was executed by the deceased on 27 July 1967. Under the will, the defendants are named executors and are the only beneficiaries of the estate. There is no other testamentary document. For the purpose of the determination of the question under O14A r1, the parties accept the will as authentic.

The question of law for determination

4. The question of law for determination was whether the registry marriage had the effect of revoking the will.

The decision below

5. Two main submissions were made to Chan CJHC before whom the matter came for determination. The first was that the registry marriage was not a valid marriage primarily because the Marriage Reform Ordinance Cap. 178 provided a comprehensive code for customary marriages after it came into operation in 1971, and precluded parties to a customary marriage from contracting marriages under s. 38 of the Marriage Ordinance Cap. 181. This was very much the primary submission which was developed in great detail by leading counsel who appeared below, and involved a detailed exposition of relevant provisions of the Marriage Ordinance and related marriage legislation and their chronology.

6. The second and very much the subordinate submission, made in the alternative, was that the registry marriage was not a subsequent marriage within the meaning of s. 13 of the Wills Ordinance, the revocation provision. Although it was a "subsequent marriage" in time, it was submitted that it was not a "subsequent marriage" in effect.

7. Following a very careful examination of the relevant matrimonial legislation and the principal authority relied on, Chan CJHC rejected the first submission. He also rejected the second submission giving his reasons.

The appellant's case and grounds of appeal

8. In their notice of appeal the appellants relied upon several grounds of appeal but these can all be seen as aspects of the two submissions made below, in particular the subordinate, alternative submission.

9. Mr Dennis Chang SC, who with Ms Cissy Lam appeared for the appellants, but did not appear below, only made submissions pursuing the alternative submission below. While not abandoning the primary submission below, he made no submissions upon it and simply adopted the written submissions of leading counsel below in the alternative if his own submissions were not accepted. The essence of his submissions, which contended for a purposive construction of s.13(1) of the Wills Ordinance was as follows. Marriage has at least two ordinary meanings, i.e. primarily the relationship or status of marriage, and second the ceremony of marriage. This ambiguity had to be resolved by reference to its statutory context and the statute's apparent purpose. The purpose of s. 13 of the Wills Ordinance must be to revoke a will upon the subsequent marriage of a testator because of the fundamentally changed new relationship which requires new obligations and liabilities to be catered for. Thus, it was status that the word "marriage" in s. 13 must have been intended to refer, and not the ceremony. The law and circumstances here show that there was no change of relationship or status on the contraction of the registry marriage. The status and relationship of the parties immediately before that marriage was one of a monogamous marriage in fact and de jure and it remained a monogamous marriage in fact and de jure after that ceremony. Moreover the purposive construction he contended for was required by s. 19 of the Interpretation and General Clauses Ordinance (Cap. 1).

Section 13(1) of the Wills Ordinance

10. This, at the time of the registry marriage, provided as follows:

"A will shall be revoked by the subsequent marriage of the testator except a will expressed to be made in contemplation of that marriage."

Meaning of "marriage" - the ambiguity

11. Mr Chang contends that "marriage" has two meanings, i.e. the status or relationship between husband and wife, which he contends is the primary meaning, and the ceremony of marriage by which that status or relationship is created. I doubt whether authority is needed for the proposition that "marriage" has those two meanings. However, I will record that Mr Chang relies first upon Harvey v. Farnie (1881) 6PD 35 CA, in which Cotton LJ said at p. 47:

"I think a great deal of the difficulty in this case has arisen from the ambiguous use of the word 'English marriage' ... The fallacy lies in this: the word 'marriage' is used in two senses. It may mean the solemnity by which two persons are joined together in wedlock, or it may mean their status when they are so joined. ..." (emphasis supplied)

Mr Chang points also to the following definition in the Oxford English Dictionary:

"The condition of being a husband or wife; the relation between married persons; spousehood, wedlock." (emphasis supplied)

and in the same dictionary following upon the foregoing:

"Entrance into wedlock; the action, or an act, of marrying; the ceremony or procedure by which two persons are made husband and wife." (emphasis supplied)

He contends that because the former appears first, it is the primary meaning. He points also to s. 57 of the Offences Against The Persons Act 1861 of England which defines bigamy in the following way:

"Whosoever, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England or Ireland or elsewhere." (emphasis supplied)

Here he submits that being married refers to the relationship and not a ceremony, and the words "shall marry" and "second marriage" as being references to a marriage ceremony, moreover one which is unlawful and cannot bring into existence a new status. The last, he suggests, may be a third meaning.

12. He points out that it is usually unnecessary to make a choice under s. 13 between the two meanings because both produce the same answer, and that therefore the ambiguity does not usually have to be resolved. In the present case, however, the ambiguity has to be resolved; and it must be resolved by its statutory context and apparent purpose.

13. Mr Robert Tang SC, who with Mr Nelson Miu, appears for the plaintiffs/respondents, having also appeared for them below, does not oppose the contention that "marriage" has two meanings. In fact, he says, there might be four, pointing to marriages by repute.

14. Given, as appears to be the case, that s. 13 is ambiguous, the legal meaning as stated by Bennion (section 152, p. 323 Statutory Interpretation, 2nd Edn), is the one to which on balance the factors arising from the relevant interpretative criteria accord the greater weight. A significant factor in the circumstances must be the purpose of s. 13. Until that is identified, it is necessary therefore to defer the resolution of the ambiguity.

Interpretation of section 13 of Wills Ordinance

15. It is well to recall that what falls to be interpreted are the words emphasised in the following part of s. 13:

"A will shall be revoked by the subsequent marriage of the testator."

On the face of those words, it has to be said that they are quite clear and there is no ambiguity. As Mr Chang himself put it, the respondents' argument can be put very simply:

(1) The registry marriage in 1985 was a "marriage".

(2) That "marriage" was subsequent to the 1967 will.

(3) It therefore revoked the will.

He concedes that it has the merit of simplicity but submits this is at the expense of logic and over-simplifies the matter, adopting a mechanistic, illogical and unnecessary interpretation of s. 13. He submits that what triggers revocation is the beginning of a new "marriage", with a new and changed relationship between, and new status for, the parties to the new "marriage". If s. 13 were construed as revoking a will where the trigger for revocation was a marriage ceremony which does not have those effects, i.e. is not the beginning of a new marriage nor the initiator of a new and changed relationship between, and new status for, the parties, this would be contrary to any apparent or rational purpose that could be attributed to the provision for revocation in s. 13.

16. The word "marriage" in s. 13, he submits, cannot, sensibly or consistently with the apparent purpose of the provision, be interpreted as referring simply and narrowly to a marriage ceremony whether or not it is the beginning of a new marriage relationship and a new status for the parties. Implicit in that submission is that there must be such a new relationship or status. It matters not, he submits, that the new marital relationship and new status involved a total or fundamental change, or a minor change, or even virtually no change. What s. 13 requires is a new marriage relationship and a new status. In the context of the ambiguity he relies upon, Mr Chang is entitled to make that submission, notwithstanding that, as will be seen, what he submits primarily in the context of his contention for a purposive construction, is that the purpose of s. 13 is related exclusively to the first of the foregoing three options, i.e. a fundamental change in a person's life or a total change in the situation of the testator's family. While that is an independent submission, Mr Chang also relies upon a purposive construction in the present context of the ambiguity in the meaning of marriage. The purpose identified is significantly narrower than the meanings of the word "marriage", as will be seen; nevertheless it could be said that it lends some support to Mr Chang's contention that marriage must mean the ceremony as opposed to status. On the other hand, such support cannot be significant, given that the purpose could be achieved almost wholly by reference to a valid or legally recognised ceremony.

17. However all these matters may be, the answer to Mr Chang's submission upon the ambiguity in the meaning of marriage must lie in the following considerations.

18. That "marriage" might have several meanings does not mean that only one of them must apply. The context may point to all, some or indeed one as the proper meaning. Here, it seems to me that the context does not demand or even point exclusively to the meaning contended for. Why should a valid marriage ceremony be thought not to be the trigger intended by the legislature? That is in any case a plain meaning of the words of s. 13, even if it may possibly not provide for some of one relatively very minor group of marriages, i.e. under s. 38(2). It is well to note that this is just one such case and yet the feature thrown up, which has precipitated the present proceedings, must be an unusual one. This is that the will was made after the customary marriage, and presumably was made for the purpose of providing for the effects of the marriage. It was this very same customary marriage that was "solemnised" by the s. 38(2) marriage. Yet, it is that solemnisation that the customary marriage family rely upon to effect the revocation of the will and so secure to them a major part of the estate. The opposite scenario might be thought to be more or just as likely in reality.

19. It may also be thought that if a resulting relationship or status of the requisite nature had to be established in every case of a marriage contracted subsequent to the making of a will, that would hardly have been regarded as an acceptable remedy or purpose.

20. I do not find it necessary to canvass the consideration further. Suffice it to say that I do not find them anywhere near strong enough to exclude a valid marriage ceremony from a clear ordinary meaning of the word "marriage". I do not find it necessary to exclude the alternative meaning of a relationship or status if the context may so require. Perhaps a marriage by repute, if established, may have to be addressed in that way. I am content to conclude that the ambiguity relied upon does not require the adoption of a meaning that embraces a relationship or status to the exclusion of a valid marriage ceremony itself and that upon that basis, a valid marriage ceremony is included within the meaning of "marriage" in s. 13.

21. In any case, reverting to the main thrust of Mr Chang's submission, it cannot be accepted that because the customary marriage was, immediately before the registry marriage, de facto or de jure a monogamous marriage, it did not create a new status. It was demonstrated before us that there were changes in status that, in my view, have to be accepted as substantial. Before a registry marriage a customary marriage wife could only obtain a divorce by mutual consent, i.e. she was at the mercy of her husband's whim, whereas after a registry marriage, dissolution would have to be effected in accordance with the Matrimonial Clauses Ordinance. On the husband's death, on the footing of a customary marriage she would only be given maintenance from the ancestral property, maintenance that could not be enforced as it can under a registry marriage. I am therefore not persuaded that Mr Chang's submissions founded upon the ambiguity of the word "marriage" avail the appellant.

A purposive construction

22. This is the final step in Mr Chang's submissions in which he brings together the several other components of his submission.

23. It is not in dispute that a purposive construction is a legitimate means of interpreting statutory provisions. Although there appears to have been a swing in favour of purposive construction in modern times, at any rate, by reference to that designation, it goes back some considerable way to Heydon's Case (1584) 3 Co Rep 7(a), and beyond, although then more commonly referred to as the mischief rule, the purpose being identified by reference to the mischief and the remedy. That common law position can be said to have been taken further in Hong Kong by s.19 of the Interpretation and General Clauses Ordinance (Cap. 1) which, by its terms requires a purposive approach to be adopted:

"19. General principles of interpretation

An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit."

That would be subject to the general saving in s. 2(1) of Cap 1, i.e. to any contrary intention that appears from Cap 1 or from the context of the Wills Ordinance or any other Ordinance. However, it has to be said that it is by no means apparent that s. 19 has produced in Hong Kong any greater emphasis upon purposive construction than adopted in other common law jurisdictions that do not appear to have such a provision.

24. Mr Tang for his part submitted that the application of a purposive construction would require three conditions to be fulfilled. Those conditions are set out in the following passage, upon which he relies, in Lord Diplock's judgment in Jones v. Wrotham Park Settled Estates (H.L.(E)) [1980] AC 74; 105E-106A:

"My Lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. [1971] A.C. 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts."

As will be seen, it is not necessary to consider whether or not Lord Diplock intended the foregoing to apply to all instances of purposive construction or only those involving the reading into a statute of words which are not expressly included in it. However that may be, it is necessary at this point to turn to the purpose of s. 13.

The purpose

25. Counsel have not found it possible to identify this from the text of the legislation, its long title, the relevant bills, or the official record of the proceedings of the Legislative Council. It is however plain that the provision was derived from the Wills Act 1837 of England. Upon that basis Mr Chang relies first upon the English Law Reform Committee's Twenty-Second Report (The Making and Revocation of Wills) Cmnd. 7902, May 1980), Part III, paragraph 3.2:

"3.2 Although we have not been able to discover as much as we would have liked about the reasons which appealed to Parliament when it introduced the general rule that a marriage revokes a will, we think that the reasons to justify the retention of the present rule may be summarised as follows:

(a) Marriage represents a fundamental change in a person's life and with it he or she requires new personal and financial responsibilities. It is, therefore, a time for starting with a clean slate.

(b) A spouse and children should not inadvertently be deprived of the rights which they would have upon the intestacy of the other spouse and parent. In so far as people fail to make fresh wills after marriage, or at least fail to revoke a pre-marriage will, this is normally the result of inadvertence and most persons marrying would wish their spouse and children to benefit from their estate: the deceased's intentions are, therefore, more likely to be achieved by the statutory imposition of an intestacy than by preservation of his earlier will. This may, indeed, prevent hardship to the family.

(c) The present rule is well known and accords with the intentions and expectations of the great majority of those who marry."

Mr Chang relies also upon Marston v. Roe (1839) ER 742, Exch Ch where, Tyndal CJ giving the judgment of the court stated their agreement with Lord Kenyon in Doe dem Lancashire v. Lancashire (5 TR 58 , 59), that the foundation of the doctrine of implied revocation of a will by a subsequent marriage was -

"a tacit condition annexed to the will itself when made, that it should not take effect if there should be a total change in the situation of the testator's family; and this foundation of the rule is confirmed by the judgment of Lord Ellenborough in the case above referred to (2 East, 541), where he says this ground is to be preferred to 'any presumed alteration of intention';"

The latter suggests that s. 13 has common law origins of some age, although on the basis of a tacit condition annexed to the will itself, and notwithstanding that the Law Reform Committee put it on a somewhat different basis, while acknowledging the rule to be well known. It may be doubted, as Mr Tang contends, whether the rule is anything as well known in Hong Kong. However, there is the common element of a total or fundamental change. One might, therefore, assume that the generally similar nature and common element of the foregoing statements provide a general formulation of sorts of the purpose, sufficient at any rate to be tested in terms of Lord Diplock's dictum.

Whether there was a change of status or relationship

26. The customary marriage was originally a potentially polygamous marriage. It also was and remained a monogamous marriage in fact in the sense that the deceased did not already have a wife and did not after the customary marriage take another wife until after the death of the first wife. However with the coming into operation in 1971 of the Marriage Reform Ordinance, which prohibited the taking of a second wife or concubine, the marriage was thereby converted from a potentially polygamous to a monogamous marriage. Mr Chang contends that it was therefore a de jure monogamous marriage. It may be open to argument given the indirect way that resulted whether the marriage would ordinarily be classified as a de jure monogamous marriage. However there is no question about it not being thereafter monogamous, so that at the time the registry marriage was contracted, there was already the monogamous marital relationship in existence. I pause to say that it is not in dispute that it is the time immediately before the registry marriage by which the question to be determined has to be addressed. At that time, submits Mr Chang, the deceased had the status of husband and the 1st plaintiff the status of wife. That relationship continued unchanged by the registry marriage. How then, he asks, can it be said that the deceased's will made in 1967 could have been revoked by the registry marriage which so conspicuously failed to change their relationship or status.

27. Since it has been conceded by Mr Chang that the registry marriage is a valid marriage, it is not necessary for me to canvass the provisions which clearly establish that conclusion. Ordinarily, of course, persons who are already married to each other cannot contract a new marriage between them. However the Law of Hong Kong has long had express provision for a registry marriage between spouses who remain married under an earlier customary marriage. This was introduced by s. 38(2) of the Marriage Ordinance (Cap. 181) in 1932 which provided that the parties to a customary marriage might:

"... if they so desire and provided they have not living any other undivorced spouse, contract with each other a marriage under this Ordinance. In such cases the marriage under this Ordinance shall not be deemed to prejudice the previous customary marriage." (emphasis provided)

By the Marriage Reform Ordinance 1970, that wording was amended to say that the parties to such a customary marriage -

"duly celebrated ... may, unless the husband has any other wife, contract with each other a marriage under this Ordinance; and such marriage shall not invalidate the previous customary marriage."

I pause here to observe that the latter formula "shall not invalidate" supports the common stance that the customary marriage was a valid marriage. That brings me to the decision of this Court in Yeung Yue Kwong v Yeung Fung Lai Mui [1971] HKLR 13, which has been referred to both sides for the light it sheds on the effect and scope of s.38(2), before its amendment by the Marriage Reform Ordinance 1970. Blair-Kerr J said at p. 25:

"The monogamous marriage supersedes the customary marriage. Such marital status as was conferred by customary law is (so far this is possible) absorbed in the new monogamous status."

He also said at p. 22:

"The status of a man and woman married monogamously does not change if they go through a second monogamous marriage ceremony."

The former passage does not apply to the registry marriage since the customary marriage here was converted to a monogamous marriage well before the registry marriage was contracted. It is upon that basis that Mr Chang relies upon the latter passage in support of his submission that the registry marriage did not change the deceased's and the 1st plaintiff's existing marital status. Apart from that matter, Yeung v. Yeung is of little relevance to this appeal notwithstanding the light it sheds upon the effect of s. 38(2) and the support it provides for the enduring albeit modified nature of a customary marriage so superseded.

Application of a purposive construction

28. The purpose by reference to which a purposive construction is contended for, is, as seen, that a will should be revoked by the subsequent inception of a marital relationship or status that represents a fundamental change in the testator's life or a total change in the situation of his family. The additional elements emphasised are no part of the several meanings of "marriage". So that to provide these, clearly additional words would have to be read into s. 13 to qualify such marital relationship along the following lines, that the will shall be revoked by a subsequent marriage [relationship] that makes a fundamental change in testator's life or a total change in the situation of the testator's family. The unusually clear necessity to write in additional words that are not in s. 13 reinforce the applicability of Lord Diplock's dictum in Jones v. Wrotham Park Settled Estates. Addressing the three conditions he specified, as to the first, it is not possible from a consideration of the provisions of the Wills Ordinance read as a whole to identify what mischief it was that was the purpose of the Ordinance to remedy. Indeed, even from the other material put before us, it does not seem to me that the purpose can be identified with sufficient precision. Second, it is far from apparent that the draftsman and the legislature had by inadvertence overlooked and so omitted to deal with an eventuality that may be required to be dealt with if the purpose of the Ordinance is to be achieved. Third, it is plainly not possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by the legislature had their attention been drawn to the omission before the bill passed into law.

29. Quite apart from the foregoing three conditions, even if the broad somewhat imprecise purposes contended for were indeed the purpose the draftsman and legislature had in mind, it must be questionable whether they would have adopted the precise form of the remedy implicit in the appellant's contentions, i.e. that the revocation would be triggered by the commencement of a new marital relationship that makes the fundamental or total change mentioned. In normal circumstances, all valid marriages do produce or can be assumed to produce such a change. It must therefore be doubted whether the legislature would adopt an uncertain and potentially complicated formula when it could achieve its object almost totally by adoption of a simple and straightforward trigger and one that was easily understood and applied, i.e. a valid marriage ceremony. Moreover, if the draftsman and legislature had applied their minds to revocation of the will in the context of s. 38 marriages superseding earlier customary marriages, it seems to me they would have been at least as likely as not to have concluded that wills made after customary marriages would not have failed to address the obligations and liabilities under those customary marriages, and that accordingly such wills did not require automatic revocation. These considerations, it seems to me, strongly reinforce the rejection of Mr Chang's submissions required by the conditions in Lord Diplock's dictum.

30. There remains to be addressed the alternative and subordinate submission, mentioned early in this judgment. The written submission of leading counsel at the trial below, with which and no more Mr Chang was content to leave us, may have been a full submission there. But here, on appeal, it is a matter of the appellant persuading us that the judge was wrong in some respect or there is other good reason why the judgment is flawed in some material way. The submission below is simply not directed to that end. I do not apprehend the task of this Court to be a retrial of the issue concerned.

31. However that may be, I have read the submission and again the carefully reasoned and very comprehensive judgment of Chan CJHC on the issue. I cannot say that I found any material error or flaw.

32. Therefore, although I have not found the question easy to determine, indeed being initially attracted to the submissions on behalf of the appellant, for the reasons I have given, I would dismiss the appeal. As to costs, I do not see any reason why the usual rule should not be applied and would give the successful respondents their costs of the appeal.

Liu, J.A.:

33. I gladly adopt the material facts set out in the judgment of the Vice-President. Suffice it to say that the deceased married his Kit Fat wife in 1951. After her death, the deceased took a Tin Fong wife in 1966. That marriage was a customary marriage celebrated in Hong Kong before 7 October 1991 in accordance with Chinese law and customs. The 1966 marriage was one within the meaning of a customary marriage in the Marriage Reform Ordinance, Cap. 178 and that of a non-Christian customary marriage in the Marriage Ordinance Cap. 181. The next year, 1967, the deceased made a Will. Eighteen years later, in 1985 the deceased and his Tin Fong wife as parties to a "non-Christian customary marriage" contracted a marriage under s. 38 of the Marriage Ordinance, Cap. 181. The deceased died last year in 1996. The question for our consideration is whether the 1967 Will was revoked by the deceased's 1985 marriage under the then s. 13 of the Wills Ordinance, Cap. 30.

34. What need to be also borne in mind are : the 1985 marriage (Registry Marriage) did not invalidate the previous customary marriage (vide s. 38 Marriage Ordinance); all marriages celebrated or contracted under the Marriage Ordinance including the Registry Marriage, shall be "good and valid in law to all intents and purposes" (vide s.28 of the Marriage Ordinance); the then s. 13 of the Wills Ordinance provided : "A will shall be revoked by the subsequent marriage of the testator"; the 1966 customary marriage of the deceased to his Tin Fong wife may now be dissolved either in accordance with the Matrimonial Causes Ordinance Cap. 179 or by mutual consent under their customary marriage which has been expressly kept alive by s. 38 of the Marriage Ordinance.

35. It was sought to be argued below that the Registry Marriage was not a valid marriage. That contention was rejected by Chief Judge Chan. No submission is advanced to us today save for a bald reference made to the skeleton submissions placed before the Chief Judge. It is for the appellants to demonstrate that the decision of the Chief Judge can be flawed. The bald reference is unhelpful. The appellants have, in my view, failed to discharge this burden.

36. It is agreed on all hands that for our present purposes the Registry Marriage is a marriage within the meaning of the word "marriage" in the Marriage Ordinance, but it is submitted on behalf of the appellants that upon true construction of the then s. 13 of the Wills Ordinance, the deceased's Will was not revoked by the Registry Marriage. It is not disputed that s. 28 of the Marriage Ordinance renders all marriages celebrated or contracted under that Ordinance "good and valid in law to all intents and purposes". The customary marriage of the deceased and his Tin Fong wife was not sought to be registered pursuant to s. 9 of the Marriage Reform Ordinance. Under s. 38 of the Marriage Ordinance, their customary marriage was not to be invalidated by a registry marriage. The parties chose to contract their Registry Marriage under s. 38 of the Marriage Ordinance in the full awareness of the continued subsistence of their customary marriage.

37. The submission of leading counsel for the appellants, Mr. Chang, is primarily founded on logic and common sense. Counsel relies on first that the later Registry Marriage was contracted between identical parties and secondly that by 1985 an assimilated marital status, at least in terms of a monogamous union, had been enjoyed by them in their customary marriage as in their Registry Marriage. That is because at the time of contracting the Registry Marriage, the deceased could no longer take a concubine (tsip) lawfully. Hence their almost indifferent marital status called for no revocation of the deceased's Will to enable him to start with a clean slate, and there was no necessity for his testamentary dispositions to be adjusted. The bald newly contracted marriage, so counsel argues, had truly little more to offer. Thus, there was no warrant for the Registry Marriage to engage s. 13.

38. A Registry Marriage is universally understood to be of the nature of a monogamous marriage in the Christian world, which entails, in its essence,, " the voluntary union for life of one man and one woman to the exclusion of all others". See In Re. Bethell. Bethell v. Hildyard, (1888) 28 Ch.D. 220 at p.234. In the middle of the last century, it was pronounced (Hyde v. Hyde and Woodman, (1866) L.R. 1 P& D 130 at pp. 134 and 135) : "But marriage is one and the same thing substantially all the Christian world over." "It is obvious that the Matrimonial Law of [England] is adapted to the Christian marriage and it is wholly inapplicable to polygamy". In Sowa v. Sowa, [1961] p.70, at p.85 Holroyd Pearce LJ held that, "a polygamous marriage did not come within the word "marriage', nor did the parties to it come within the word 'wife' ..... or 'husband'."

39. The 1966 customary marriage was celebrated as a polygamous union. The subsequent prohibition of the taking of a tsip by law could not have the effect of obliterating the inherent polygamaous nature of a Chinese customary marriage. The monogamous marriage recognised by the Christian world is diagonally opposite to a customary marriage. Also there is a world of cultural differences. To begin with, in a Chinese customary marriage, the spouses are to show mutual respect, one to the other. At Common law, a husband had the right "to beat [his wife] moderately as a matter of correction." "For that is a pyont of an honest man, For to bete his wife well nowe and than" Johan v. Johan (one of Heywood's Comedies, circa 1533). Winfield and Jolowicz on Tort, 11th edn. p.654 and footnote 65. Indeed, customary marriages and Registry Marriages are decidedly different concepts, evolved from cultures poles apart. The mere inclusion of non-Christian customary marriages by the Marriage Ordinance without more is no statutory abrogation of so fundamental a bifurcation, derived from the almost mutually exclusive civilizations. Moreover, appreciable dissimilarities still remain upon contracting a marriage under s. 38 of the Marriage Ordinance. After the 1985 Registry Marriage, the deceased and his Tin Fong wife retained the right of divorce by mutual consent in their customary marriage. The Tin Fong wife's entitlement to a widow's maintenance from the ancestral property would seem to be also preserved because the Registry Marriage, so the law says, shall not invalidate the customary marriage. On the other hand the Tin Fong wife acquired additional benefits such as custodial rights, matrimonial maintenance and other relief as well as a right to share in the deceased's estate on his intestacy. The 1967 Will, if unrevoked, would deprive the deceased's tsai of her potential right to come in to share on a possible intestacy after having contracted the Registry Marriage and the deceased husband of an opportunity of properly gauging the amount of his tsai's legacy by reference to what she would have become entitled on a possible intestacy under the Registry Marriage. What the Tin Fong wife gained in the Registry Marriage was the deceased's loss. In sum, the Registry Marriage and the customary marriage largely retained their own characteristics and fundamental attributes, with the former expressly declared to be good and valid in law to all intents and purposes. The traditional concept and retained differences will be superimposed upon by a new relationship when the same parties contract a subsequent registry marriage which, being neither wholly western nor oriental, introduces some changes but does not bring about integration. Old and new entitlements become intertwined. The entering into such a new relationship under s. 38 of the Marriage Ordinance rightly leaves with each of the spouses to the prior customary union a relatively free hand to re-adjust his/her affairs. In that s. 13 of the Wills Ordinance has an important role to play. I am also not persuaded that the two features of identity and matrimonial fidelity alone would lead to a frustration of the purpose of s. 13 of the Wills Ordinance in the context of the other ordinances. There are other considerations.

40. The real answer lies in the sweeping s. 13 of the Wills Ordinance. Its plain language admits of no exception unless a contrary intention is elsewhere expressed, and the parallel marital relationship is not such a contrary intention. Put another way, unless additional words are read into s. 13, it does not exempt a registry marriage which is not to be lightly eliminated from the purview of that section except by clear words. No restrictive words can be found in the Ordinances under consideration, which would subjugate or otherwise undermine the general application of s. 13. If it had been intended so to exclude a registry marriage between the very same two parties to a customary marriage, it could have been so easily stated in s. 13 by the legislature, but it was not. Further, the appellants' proposed interpretation would inevitably lead to uncertainty in the application of s. 13, and that could hardly have been intended by our legislature. Mr Tang, leading counsel for the respondents, leans heavily on Craies on Statute Law 7th ed., page 64 :

"The cardinal rule for the construction of the Acts of parliament is that they should be construed according to the intention expressed in the Acts themselves. If the words of the statute are unambiguous, then no more can be necessary than to expound those words in the ordinary and natural sense. The words themselves alone do in such a case best declare the intention of the law maker".

41. S. 38 and s. 28 of the Marriage Ordinance suffer from no obscurity and effect should be given to the plain meaning of their language.

42. If this court could be properly tempted by a purposive construction, for the language of the provisions under consideration, in respect to which the observation of Lord Diplock made in Jones v. Wrotham Park Estates, [1980] A.C. 70 at pp 105 & p106 would seem to be apposite, none of his three conditions can be said to have been satisfied :

" My Lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressively included in it. Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. [1971] A.C. 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts."

43. The Registry Marriage is conceded to be a marriage within the meaning of s.38 of the Marriage Ordinance . Its effect is perfectly clear under s. 28 which makes the Registry Marriage "good and valid in law to all intents and purposes". These words alone "best declare the intention of the law maker". In my view, the Registry Marriage revoked the Will of the testator made in 1967. I would dismiss this appeal with an order nisi for costs against the appellants.

Keith, J.:

44. I agree that this appeal must be dismissed. Prior to the enactment of the Wills (Amendment) Ordinance 1995 (Ord. 56 of 1995), section 13(1) of the Wills Ordinance (Cap. 30) provided:

" A will shall be revoked by the subsequent marriage of the testator except a will expressed to be made in contemplation of that marriage."

The issue in this case is whether the marriage which the deceased and his second wife contracted in 1985 under the Marriage Ordinance (Cap. 181) is a marriage to which section 13(1) of the Wills Ordinance applies. If the marriage is not a marriage to which section 13(1) applies, the deceased's will was not revoked, and his considerable estate will go to his four children by his first wife. If the marriage is a marriage to which section 13(1) applies, the deceased's will was revoked, and in that event his second wife and his three children by her will have a share in his estate because he will be regarded as having died intestate.

45. The argument of Mr. Denis Chang S. C. for the Defendants is relatively simple. His primary argument is that section 13(1) does not apply to a marriage contracted under the Marriage Ordinance where the parties to that marriage were already married to each other, and had been married to each other at the time the will was made. His secondary argument is that even if section 13(1) applies to a marriage contracted under the Marriage Ordinance where the parties to that marriage were already married to each other, it can only apply in such a case where the new marriage effects a change in status. In this case, the new marriage did not effect a change in status, because by 1985 the customary Chinese marriage which the parties had gone through in 1966 had ceased to be potentially polygamous, but had become monogamous - both in fact, and in law by virtue of section 5(1) of the Marriage Reform Ordinance (Cap. 178).

46. These arguments involve reading words of limitation into section 13(1) which are not there. They are based on the proposition that what triggers the revocation of the will under section 13(1) is a "new" marriage - either a new marriage between persons who were not married to each other before, or a new marriage which changes the parties' relationship to each other. Only in "new' marriages of these kinds will there be a need to consider whether the fact of the new marriage would have had an effect on a person's testamentary intentions. That accords with both the common law (Marston v. Roe (1839) 8 AD. & E. 14 at p.58), and what appears to be the thinking behind section 18 of the Wills Act 1837, on which section 13(1) was based: see the Law Reform Committee's Report on the Making and Revocation of Wills (Cmnd. 7902, May 1980), para. 3.2.

47. Like Nazareth V.-P. (whose judgment I have read in draft), I was initially attracted by this argument, but in the end I have been persuaded that the law in England is not a reliable guide as to what the purpose of section 13(1) was, in view of the existence in Hong Kong of Chinese customary marriages, which (by virtue of section 38(2) of the Marriage Ordinance as amended) are not invalidated by a subsequent registry marriage. In these circumstances, I do not think that the first two conditions identified by Lord Diplock in Jones v. Wrotham Park Settled Estates [1980] A.C. 74 for reading words of limitation into section 13(1) have been satisfied.

48. But even if they had been, I do not think that it would have been possible to state with certainty what additional words of limitation would have been used to give effect to the idea that the word "marriage" in section 13(1) should be limited to a marriage between persons who were not already married to each other as a result of a ceremony recognised by the law to be valid, or to a marriage which changed the parties' relationship to each other. Accordingly, Lord Diplock's third condition would not have been satisfied either.

Nazareth, V.-P.:

49. The appeal is accordingly dismissed. There will be an order nisi that the respondents are to have their costs of the appeal.