WONG KWOK HO v. WONG PUI LING

HCAP 1/1991

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 1 OF 1991

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D E C I S I O N

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1. The plaintiff seeks an extension of 7 days in which to file and serve a “notice of intention to adduce evidence of finding on a question of foreign law” out of time. The question of foreign law is in fact law on Chinese customary marriage contained in a High Court decision.

The background

2. This application is taken out pursuant to section 59 of the Evidence Ordinance, Cap 8 which provides as follows:

“(2) Where any question as to the law of any country or territory outside Hong Kong with respect to any matter has been determined (whether before or after the commencement of this Part) in any such proceedings as are mentioned in subsection (4), then in any civil proceedings (not being proceedings before a court which can take judicial notice of the law of that country or territory with respect to that matter)-

(a) any finding made or decision given on that question in the first-mentioned proceedings shall, if reported or recorded in citable form, be admissible in evidence for the purpose of proving the law of that country or territory with respect to that matter; and

(b) if that finding or decision, as so reported or recorded, is adduced for that purpose, the law of that country or territory with respect to that matter shall be taken to be in accordance with that finding or decision unless the contrary is proved:

Provided that paragraph (b) shall not apply in the case of a finding or decision which conflicts with another finding or decision on the same question adduced by virtue of this subsection in the same proceedings.

(3) Except with the leave of the court, a party to any civil proceedings shall not be permitted to adduce any such finding or decision as is mentioned in subsection (2) by virtue of that subsection unless he has in accordance with rules given to every other party to the proceedings notice that he intends to do so.

(4) The proceedings referred to in subsection (2) are the following, whether civil or criminal, namely-

(a) proceedings at first instance in the High Court or in the Supreme Court of England as constituted by section 1 of the Courts Act 1971;

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(5) For the purposes of this section a finding or decision on any such question as is mentioned in subsection (2) shall be taken to be reported or recorded in citable form if, but only if, it is reported or recorded in writing in a report, transcript or other document which, if that question had been a question as to the law of Hong Kong, could be cited as an authority in legal proceedings in Hong Kong.”

3. The plaintiff’s case is that Madam Law was the lawful kit-fat widow of one Mr Wong Shui Foo, deceased (“the deceased”).  It is not in dispute that Madam Ho (represented by the defendant) was the concubine of the deceased.  Each of the estates of the 2 ladies claims to be entitled to an interest in the deceased’s estate.

4. One of the issues is whether or not Madam Law was allegedly married to the deceased in 1918 in the Fo Shan District in Guangdong in accordance with Chinese customs and rites.  The plaintiff’s side wants to rely on the decision of Mr Justice Patrick Chan (as he then was) in Kwan Chui Kwok & another v Tao Wai Chun & ors [1995] 1 HKC 398C to 402D as to the requirements for a marriage celebrated in Mainland China (“the Decision”).

5. It has previously been decided that, merely relying on Kwan Chui Kwok’s case without adducing expert evidence is not recommended:  Ng Kuk Mui v Yu Bik Fong Rebecca HCAP 2/1997, 29.4.2000, Deputy Judge Chu (as she then was):

“The present plaintiff evidently bears the burden of proving the existence of a valid marriage between her and the deceased. Apart from proving that she and the deceased had undergone certain ceremony, she also has to establish that the alleged ceremony constituted a valid marriage according to Chinese customary law. In this respect, the general rule is for expert evidence to be adduced, either by way of testimony or, with leave of the court, by affidavit Indeed, in both the authorities cited by the plaintiff's counsel, experts had been called to testify. While the court may derive assistance from decided cases as to the essential requirements for a Chinese customary marriage, it has to be borne in mind that no two cases have the same identical facts. It is also to be noted that customary law is not static, a proposition readily accepted by counsel. Accordingly, the kind of marriage rites that is required for a valid Chinese customary marriage may differ from one part of China to another and depend also on the time of the marriage and the social conditions prevailing at the time. It cannot be safely assumed that the form of ceremony accepted as sufficient to constitute a valid customary marriage in one case will necessarily support a finding of a valid marriage in another case. In my view, the course adopted by the plaintiff is not to be recommended.”

6. However, in the present case, for what it is worth, the plaintiff has already adduced an expert report prepared by Mr Henry Hu in 1991, with leave of the court.  The Decision is relevant.  The defendant has not put forth any grounds in opposition to the plaintiff’s reliance on it. Mr Kwok, solicitor for the defendant simply says that he was bound by instructions not to consent.  I fail to see the basis for those “instructions” when this application only involves principles of law.

Time extension

7. Order 38, rule 7 provides as follows:

“(1) A party to any cause or matter who intends to adduce in evidence a finding or decision on a question of foreign law by virtue of section 59 of the Evidence Ordinance (Cap 8) shall-

(a) in the case of an action to which Order 25, rule 1, applies within 28 days after the pleadings in the action are deemed to be closed, and

(b) in the case of any other cause or matter, within 21 days after the date on which an appointment for the first hearing of the cause or matter is obtained,

or in either case, within such other period as the Court may specify, serve notice of his intention on every other party to the proceedings.

(2) The notice shall specify the question on which the finding or decision was given or made and specify the document in which it is reported or recorded in citable form.

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8. Although the plaintiff is way out of time, the defendant has not asserted any prejudice.  In fact, the defendant has never adduced any expert report despite being given leave to do so.  The trial will only be held on 7 January 2014.  I cannot see why the plaintiff should be barred from making this application.

Order

9. I grant the plaintiff’s application.  The contents of the notice shall be in terms of the draft in tab 22 of the hearing bundle.

Costs

10. The plaintiff has, in December 2012, already explained to the defendant why this application was needed.  Till the hearing, the defendant has not raised any valid ground in opposition.  Prima facie, the costs of the application should be to the plaintiff.  The hearing, however, was lengthened as counsel for the plaintiff has not put in the necessary authorities for the court to read ahead and requisitions had to be raised afterwards.  Taking all circumstances into account, I order, on a nisi basis, that costs should be to the plaintiff provided that the hearing time shall be limited to 15 minutes. Costs arising out of the requisition on 8 May 2013 shall be disallowed.  Summary assessment is to be held on 27 May 2013 at 3 pm on the papers without attendance.  The plaintiff shall file and serve his statement of costs by 21 May 2013.  The defendant shall file and serve her grounds in opposition by 24 May 2013.