CHAN CHIU LAM AND OTHERS v. YAU YEE PING

HEADNOTE

[(1) A union of concubinage is recognised by law and comes within section 13(2) of the Intestates' Estates Ordinance (Cap. 73) if it is a union which the law recognises as one to which legal rights attach, even if the union falls short of one which the law regards as valid and lawful.

(2) Although it was not possible for a woman to acquire the legal status of a concubine in China following the promulgation of the Marriage Law of the People's Republic of China on 1st May 1950, the subsequent grant of various legal rights to women who had been de facto concubines prior to the abrogation of the Civil Code on 29th September 1949 meant that their unions were recognised by the law of the People's Republic of China.]

HCAP 6/91

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 6 OF 1991

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J U D G M E N T

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Introduction

1. Concubines are a relic of China's imperial past. Their survival well into the twentieth century is an anachronism, inconsistent with modern thinking about monogamy, female emancipation and equality of treatment for women. The legal status of concubines now comes before the court again - this time in the latest episode in the saga relating to the estate of a woman who was taken in concubinage in Nationalist China in 1945.

2. The history of the litigation is set out in the judgment given on 24th April 1998, which disposed of a number of issues which divided the parties. That judgment is reported at [1998] 1 HKLRD 716. A reading of that judgment is essential to an understanding of the issues now before the court. In a nutshell, the action concerns the estate of Madam Chu Lee (who was also known as Chu Lan Fan). She died intestate in Hong Kong in November 1987. She had been taken as a concubine by Sung Chuen Pao (who was also known as Robin Sung) in Shanghai in 1945. However, she had not been his first concubine. In 1933 in Shanghai, Mr. Sung had taken Madam Sung So Chung as his first concubine. Madam Sung bore Mr. Sung three children. She had died by the time Madam Chu died in 1987, but two of Madam Sung's children, Suen Toi Lee (P2) and Sun Ming Sheng ("Momo"), were still alive. Momo subsequently died, and in this action P2 and Momo's estate claim to be entitled to administer Madam Chu's estate and share in it.

The statutory provisions

3. It is useful to recall the relevant statutory provisions. The claim made by P2 and Momo's estate to Madam Chu's estate is based on various provisions in the Intestates' Estates Ordinance (Cap. 73) ("the Ordinance"). The Ordinance has been amended since Madam Chu's death, and all references to the Ordinance in this judgment are to the provisions of the Ordinance as it was at the time of Madam Chu's death. Section 4(5) provided:

"If the intestate leaves issue but no husband or wife the residuary estate of the intestate shall be held on the statutory trusts for the issue of the intestate."

Since Madam Chu did not have a husband at the time of her death, it is her issue who will share in her estate.

4. Whether P2 and Momo were her issue at the time of her death turns on section 2(2)(b) of the Ordinance, which provided:

"References in this Ordinance to a child or issue of any person shall mean ... if that person is a female, a child of a valid marriage to which her last husband and another female were parties; ..."

Thus, the claims of P2 and Momo's estate to Madam Chu's estate depend on Mr. Sung having been Madam Chu's "husband" and on Mr. Sung and Madam Sung having contracted a "valid marriage" within the meaning of the Ordinance. Here, P2 and Momo's estate rely on para. 2 of the Schedule to the Ordinance which provided:

"(1) A child of a union of concubinage shall be regarded for the purposes of the Ordinance as the child of a valid marriage.

(2) The reference in section 2(2)(b) to 'husband' shall be construed as including a reference to the male partner of a union of concubinage."

A "union of concubinage" was defined in section 13(2) of the Ordinance, which provided:

"In this section and in the Schedule, 'union of concubinage' means a union of concubinage, entered by a male partner and a female partner before the appointed date under the Marriage Reform Ordinance, 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."

The appointed date under the Marriage Reform Ordinance was 7th October 1971.

5. Accordingly, the crucial question is whether Mr. Sung and Madam Sung, and later Mr. Sung and Madam Chu, had entered a "union of concubinage" within this definition. If they had, it will be P2 and Momo's estate who will share in Madam Chu's estate. If they had not, and if Madam Sung and Madam Chu had simply been his mistresses with no legal rights or status, it is Madam Chu's brothers and sisters (or their respective estates) who will share in her estate pursuant to section 4(8) of the Ordinance.

The current issue

6. In the earlier judgment, I decided that the words "union of concubinage" in section 13(2) of the Ordinance relate to a union of concubinage de jure, and not a union of concubinage de facto. I shall have to return to the meaning of those phrases a little later. I also decided that the union of concubinage ceased to be recognised in China as a legitimate legal status with effect from the coming into operation on 5th May 1931 of Book IV of the Civil Code of the Republic of China (which governed family law). However, those findings did not necessarily mean that the claims of P2 and Momo's estate to a share in Madam Chu's estate had to be dismissed. Their alternative case, as outlined by their counsel, Mr. Nelson Miu, at the earlier hearing was that even if Chinese law did not continue to recognise concubinage as a legal status up to 5th May 1931,

(a) Madam Sung and Madam Chu were subsequently recognised as the concubines of Mr. Sung under Chinese law once the Civil Code had been abrogated on 29th September 1949, and

(b) Madam Chu was recognised as the concubine of Mr. Sung under Hong Kong law once they had acquired domicile in Hong Kong prior to the coming into force of the Marriage Reform Ordinance in 1971.

Mr. Miu no longer wishes to argue that Madam Chu was recognised as the concubine of Mr. Sung under Hong Kong law. Accordingly, the issue which I now have to decide is whether Madam Sung and Madam Chu were recognised as the concubines of Mr. Sung under Chinese law once the Civil Code had been abrogated.

The distinction between de jure and de facto concubinages

7. I return to the phrases "union of concubinage de jure" and "union of concubinage de facto". The phrase "union of concubinage de jure" was the phrase used in my previous judgment to describe a union of concubinage "recognised by law" (see p.721F). It was to be distinguished from a union "which, whether or not it was recognised by the law, had the attributes of a union of concubinage - the acceptance of the concubine by the male partner's wife, and the recognition of the concubine as his concubine by his family generally - i.e. a union of concubinage de facto" (see p.721G).

8. However, relationships between men and women can be recognised by the law in different ways. Thus, their relationship might be one which the law recognises as a valid and lawful relationship. Marriage is such a relationship. But other relationships between men and women can be said to be recognised by the law even if that relationship falls short of one which the law recognises as valid and lawful. Such a relationship can just as easily be described as a relationship recognised by law if it is a relationship which the law recognises as one to which certain legal rights attach. Thus, a union of concubinage comes within the meaning of section 13(2) of the Ordinance if

(a) it was entered before 7th October 1971,

(b) accepted by the man's wife, and

(c) recognised by the man's family,

and if the law accorded legal rights to one or other of the parties to it. I therefore cannot go along with the contention of Ms. Lisa Wong for the Defendant that for a union of concubinage to come within section 13(2) of the Ordinance, the union has to be recognised by the law as such, i.e. as a valid and lawful one.

9. This refinement of what constitutes a union of concubinage within the meaning of section 13(2) of the Ordinance does not affect in any way the conclusion which I reached about the legal status of concubines in Nationalist China following the coming into operation of the Civil Code. Not only were unions of concubinage not recognised in that period of Chinese history as valid and lawful unions. Women in de facto unions of concubinage were not accorded any legal rights either. Such rights as were accorded to them were accorded to them as "members of the house" and not as de facto concubines.

The position of concubines under the law of the People's Republic of China

10. Two experts on Chinese law have given evidence before me on this issue. Madam Zhang Guo Rong was a witness for the Plaintiffs, and Prof. Anthony Dicks S.C. was a witness for the Defendant. Madam Zhang is a lawyer in private practice, and her expertise on the law of the People's Republic of China is not challenged. As for Prof. Dicks, although he is an acknowledged expert on Chinese law prior to the establishment of the People's Republic of China, Mr. Miu questioned Prof. Dicks' expertise on the law of modern China. I have no doubt that Prof. Dicks has the expertise to give expert evidence on both the law of modern China in general, and the family law of the People's Republic of China in particular.

(i) From 29th September 1949 to 30th April 1950. On 29th September 1949, the entire pre-existing legal system of the Republic of China was abolished as part of the provisional constitutional arrangements for the People's Republic of China. Laws governing concubinage were not promulgated until 1st May 1950. Did that mean that the pre-existing traditional legal system, under which concubines had been recognised, was revived? Madam Zhang did not directly answer this question, but Prof. Dicks' view is that such a suggestion would be "wholly unrealistic". His opinion is that "it was plainly intended to bring about a complete break with the whole of the past in legal terms as part of a revolutionary change in society as a whole". I accept that evidence, which seems to me to accord with the views which the Central People's Government would have held on the institution of concubinage. Thus, until the enactment of laws governing concubinage, there was a legal vacuum in connection with their status and the legal rights which they enjoyed. The absence of any law governing their status or their rights meant that during that time it cannot be said that a union of concubinage was a union recognised by law.

(ii) From 1st May 1950. On 1st May 1950, the Marriage Law of the People's Republic of China was promulgated. Arts. 1 and 2 provided as follows:

"Article 1

The feudal marriage system based on arbitrary and compulsory arrangements and the supremacy of man over woman, and in disregard of the interests of the children, is abolished.

The New Democratic marriage system, which is based on the free choice of partners, on monogamy, on equal rights for both sexes, and on the protection of the lawful interests of women and children, is put into effect.

Article 2

Bigamy, concubinage, child betrothal, interference in the re-marriage of widows, and the exaction of money or gifts in connection with marriages, are prohibited."

The prohibition on concubinage in Art. 2 meant that from then on it was not possible to acquire the legal status of concubine. It was unclear from the language of the Marriage Law what effect, if any, the Marriage Law was intended to have on de facto concubinages which had come into existence before its promulgation. However, both Madam Zhang and Prof. Dicks are agreed that over the years concubines whose de facto concubinages had come into existence prior to 29th September 1949 were accorded the same legal rights as those enjoyed by wives in modern China in relation to divorce, matrimonial protection and inheritance. In those respects, such concubines were far better off under the law than they had been prior to 29th September 1949. In my judgment, the grant of these rights to women who had become concubines prior to 29th September 1949 meant that the unions of concubinage to which they were parties were recognised by the law of the People's Republic of China, even though the law did not go so far as to recognise the unions to be valid and lawful.

11. This disposes of the principal argument developed by Ms. Wong. In a submission of conspicuous clarity, she argued that the agreed facts and the evidence of Madam Zhang and Prof. Dicks show that the distinction between a wife and a concubine under traditional Chinese law had been eliminated. A woman who had been taken in concubinage prior to 29th September 1949 was subsequently treated as a wife of her partner enjoying a status equal to that of her partner's first wife. Accordingly, if the law did not distinguish between a wife and a concubine, it was meaningless to speak of concubines enjoying a status which the law recognised. The trouble with that argument is that it assumes that the only way in which a union of concubinage can be recognised by law is if the law recognises it as having a separate legal status of its own. For the reasons I have given, I do not believe that to be the case.

Conclusion

12. It is not disputed that Mr. Sung's wife accepted Madam Sung and Madam Chu as his concubines, and that Mr. Sung's family recognised them as his concubines. Since the law of the People's Republic of China accorded Madam Sung and Madam Chu legal rights by virtue of their position as his de facto concubines, I find that they had entered unions of concubinage with him within the meaning of section 13(2) of the Ordinance. It follows that Mr. Sung was Madam Chu's husband, and that Mr. Sung and Madam Sung had contracted a valid marriage, within the meaning of section 2(2)(b) of the Ordinance. That means that P2 and Momo's estate are entitled to a share in Madam Chu's estate, and I order that they be granted letters of administration in respect of her estate.

13. I turn to Mr. Sung's estate. I have already ordered that the grant to Madam Chu of letters of administration in respect of his estate be revoked. I now make the following additional orders, which are based on what the Defendant has been prepared to submit to in the past:

(i) an order that Mr. Sung's widow (P1) and P2 be granted letters of administration in respect of Mr. Sung's estate;

(ii) an order that an account to be taken of:

(a) those of Mr. Sung's assets which came into Madam Chu's hands,

(b) Madam Chu's dealings (if any) with Mr. Sung's assets,

(c) such of Mr. Sung's funeral and administration expenses, the estate duties and Mr. Sung's debts and other liabilities as were properly payable and paid by Madam Chu out of the assets of Mr. Sung,

(d) the assets of Mr. Sung already distributed by Madam Chu, and

(e) the undistributed assets of Mr. Sung now included in Madam Chu's estate; and

(iii) an order for the payment out of Madam Chu's estate to P1 and P2 of what is found to be due on the taking of the account with interest thereon.

For the reasons given in my previous judgment at p.728G, it is not now necessary for me to decide whether Madam Chu's estate should account on the footing of wilful default.

14. I should add that the conclusion which I have reached about the legal position of concubines in the People's Republic of China gives effect to what I imagine was the intention of those who drafted the Ordinance. They intended, no doubt, to put concubines on the same footing as wives when it comes to intestate succession. I would not have wanted that intention to have been unwittingly frustrated by the unexpected discovery that concubines did not enjoy a legal status equivalent to wives, even though they acquired other rights which were accorded to wives. It may seem strange that the estate of an intestate concubine with no children should go to the children of her "husband's" other concubine in preference to her brothers and sisters, but that is precisely what section 2(2)(b) of the Ordinance provides for.

15. Finally, I was told at the end of the hearing that both sides were legally aided, and that it may not be obvious what the appropriate order for costs should be. I was therefore invited not to include an order nisi for costs if I handed down my judgment, but instead simply to give the parties liberty to apply as to the costs of the proceedings if they are unable to agree the costs between themselves. I make such an order.