RE SANUEL GEE YEN

M.P. No. 2383 of 1987

IN THE HIGH COURT OF JUSTICE

HONG KONG

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DECISION

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1. This case does not really call for any serious determination, but as the Probate Master is not before me, it would be in the interest of justice to have my reasons recorded.

2. The late Mr. Yen passed away on the 22nd December 1984, intestate. He left surviving him issues, a widow and a widowed concubine. One of the sons came from a lady surnamed KAM. Madam Kam was taken as a concubine, so the widow acknowledged, by the deceased sometime in August/September 1937. After her son was born she was subsequently divorced from the intestate. The divorce is said to have occurred in Shanghai in 1941 which, as a matter of common knowledge, was an era of enemy occupation.

3. After the death of the intestate, the two branches of his family were in disagreement. It was not until the 26th October 1987 that a compromise was sealed in a Deed of Family Arrangement whereby the widow and the widowed concubine both agreed to renounce their rights to apply for Letters of Administration. Pursuant to that Deed of Family Arrangement, an application was made by two sons to be appointed personal representatives of the estate of the deceased.

4. Madam Kam has renounced whatever right she has or may have to administration. She has also filed an affirmation verifying her 1941 divorce in Shanghai. The intestate's widow who acknowledged the status of Madam Kam at the material time, has also confirmed the 1941 divorce.

5. We know what Tsing Law about a concubine is. I have had cited to me elsewhere relevant provisions in the Nationalist Civil Code of 1930(1) as well as the Laws of the People's Republic of China. The Tsing customary marriage has been incorporated as part of our law.   Wong Kam Ying & Anon. v. Man Chi-Tai⁽²⁾. And the system of concubinage was" a permissible though not apparently very widely practised part of the Chinese Customary Marriage system in Hong Kong"(3). I do not believe that the provisions of the 1930 Nationalist Civil Code as well as the Laws of the People's Republic of China could readily be taken Judicial notice of without the aid of an expert, although in the absence of expert evidence, I suppose one could invoke the presumption that foreign laws run parallel to local law.

6. It would appear from paragraph 50, pages 64-65 of the 1965 McDougall-Heenan Report that the 1930 Nationalist Code made no provision for the lawful taking of a concubine. That concept simply does not exist within the context of a Modern Chinese Marriage. Although from paragraphs 59 and 60, page 72 of the same report, it would appear that Article 1123 of the 1930 Code, properly construed or by necessary implication, enjoined a husband to maintain a concubine as a member of his household. I have heard it said that the laws of People's Republic of China tolerate no concubinage, prohibit such a union and would in fact prosecute it as an offence. One must not lose sight also of the possible effect of Military Laws of the Japanese Occupational Forces on concubinage.

7. Reference is made to these provisions in the 1930 Nationalist Civil Code, the Laws of the People's Republic of China and possibly Japanese Military Laws for illustrating what could be legitimately regarded by the Probate Master as having given rise to a perplexing question in Madam Kam's divorce. However, what truly matters here is the application of Tsing Law on Chinese Customary Marriages as part of our law against a background of total silence on any foreign laws operating contrary to that Tsing Code.

8. It is not doubted that marriage or divorce could be established by viva voce evidence. The divorcing of a tsip or a concubine required virtually minimal formality. Not only is dissolution of such a union to be judged without any expert opinion as part of our law, but the simplicity of its process calls for no elaborate evidential proof. A concubine shares some of the attributes and privileges of a principal wife, such as maintenance and a priority right to administration. Madam Kam's acknowledgement of her own divorce on affirmation as confirmed by the recital in her renunciation is an admission against interest. Indeed, as Mr. Li has pointed out, in no way could it be said that the 1941 divorce of the concubine has not been satisfactorily proved.

9. The Probate Master apparently entertained some doubt as to whether best evidence of the 1941 divorce was desirable as a matter touching upon status. Pursuant to Rule 5 of the Non-Contentious Probate Rules, Requisition 16(i) was issued inviting the applicants to include Madam Kam's name as a next-of-kin of the deceased. Having received and heard representations made by Mr. Hui, solicitor for the applicants, the Probate Master decided on the 13th October 1987 that the amendment thereafter made in purported compliance with Requisition 16(i) was deficient. The Probate Master so decided by yet a further Requisition, Requisition 17. It is against these two Requisitions that the present appeal is brought.

10. On the Probate Master's doubt and suggestion, it is understandable that solicitor for the applicants felt aggrieved. By an appointment, he appeared before the Probate Master on the 9th September and the following matter was noted:

"Mr. Hui argued that Kam Chun Yuet should not be included as next of kin - see his letter. Pointed out that if there is a doubt then the affirmation relates to the possibility of her being next-of-kin and therefore she should be cited. Requisition to remain. Mr. Hui accepted this."

11. In paragraph 19 of the affidavit of Miss Chan, it is stated :

"On 9th September 1987 Geoffrey Hui appeared before Master Jones, the note Master Jones endorsed on the file as copied by my clerk is now produced and shown to me marked 'DC9'. I am informed by Geoffrey Hui and verily believe that Master Jones pointed out that if there is a doubt as to the validity of the termination of the union of concubinage between Madam Kam and the deceased, then the applicants' affirmation should relate to the possibility of Madam Kam being a next-of-kin. Geoffrey Hui accepted that the applicants' affirmation should relate to this possibility. Master Jones decided that Requisition No. 16(i) should stand."

Mr. Hui himself confirmed this paragraph 19.

12. As the Probate Master is not in attendance today and has not been consulted, and he is not otherwise represented in this appeal, matters ought, in all fairness, to be interpreted with a degree of benevolence in his favour, particularly when what transpired before today cannot now be of any real significance, though it may draw criticisms.

13. I must confess that I had perhaps read more into the notes of the Master and paragraph 19 than those passages warrant. Mr. Li directs my attention to the essence of the concession made to the Probate Master's observations. Mr. Li submits that Mr. Hui did agree to refer to the pssibility of Madam Kam being a next-of-kin but that as that possibility arose exclusively from the doubt evinced by the Probate Master, the reference agreed to be made could only be in terms of the amendment, that is to say, "The Probate Registry considers it possible that the said Kam Chung Yuet may still be a next-of-kin". As a matter of fact, it had already been so stated in the recital of Madam Kam's renunication filed on the 27th July. It is only fair to note that Mr. Hui must have known that on the 9th September the Porbate Master was not content with that pronouncement, namely "the Probate Registry in the Supreme Court of Hong Kong considers there to be a doubt as to the validity of the termination of the union of concubinage". Nevertheless, subsequent to and in purported implementation of Mr. Hui's concession, the same assertion was reiterated in the amendment in question on the 22nd September. For the Probate Master, it must have been equally trying.

14. On the face of the passages above referred to, they are susceptible of the meaning that whatever were the observations made by the Probate Master, they were duly embraced by Mr. Hui as his stance; hence there was no determination as none needed to be made. The matter was resolved by consensus reached in the exchanges between the Probate Master and solicitor for the applicants. If the matter was resolved by consent, it would be difficult to see how an appeal could lie.

15. If Mr. Li's contention is correct, that the ambit of Mr. Hui's concession was not in fact as wide as the possible meaning so ascribed to those passages, then obviously the Probate Master had ruled on Requisition 16(i).

16. Insofar as it may be taken as a decision made by the Probate Master, the result on appeal is clear insofar as it may be taken as a concession to wholly adopt the Master's views without any determination, the circumstances are proper for me to intervene.

17. Be it a misunderstanding or not, the applicants and the parties to the Deed of Family Arrangement must have been utterly confused if not frustrated. Without any unresolved questions on priority or next-of-kin, Letters of Administration must issue without further delay. Mr. Li has properly conceded that only the relief prayed for in paragraphs 3 and 4 of the summons are sought. I would be prepared to and do accede to his invitation to have those orders made in terms, although despite the able arguments advanced on behalf of the applicants, in the absence of the Probate Master, I am still being left with an impression that this matter is one of an unfortunate incident of misunderstanding. Costs of the application be, I further order, costs on an indemnity basis payable out of the estate.

18. The order that I propose to make is :

(1)    See Appendix A to the 1960 Ridehalgh - McDonall Report on "Chinese Marriages in Hong Kong".

(2)    [1967] H.K.L.R. 201 p.p. 211 - 212.

(3)    Pp. 7 and 8 of the 1960 Ridehalgh - McDonall Report, supra.