LCN v. CYK

FCMP 101 / 2022

[2024] HKFC 42

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT MISCELLANEOUS PROCEEDINGS

NO. 101 OF 2022

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________________________

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DECISION
(Carry on Order,
Declaration of Marriage)

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1.  The question before this court is whether CWY, a daughter of the Applicant (“Daughter”)  should be appointed to represent the estate of the Applicant (“Estate”)  for the purposes of carrying on these proceedings under Order 15 rule 7 and/or rule 15 of the Rules of District Court (“RDC”).

A.  Background

2.  By an originating summons issued on 6 July 2022 (“Originating Summons”), the Applicant (“Deceased”)  applied for a declaration that the marriage celebrated by her and the Respondent in Hong Kong in 1965[1] as a modern marriage shall be deemed to have been valid pursuant to Section 8 of the Marriage Reform Ordinance (“MRO”).

3.  It is common ground that the Deceased and the Respondent knew each other in about 1962. They had lived together and have 4 children. The birth certificates of the 4 children showed that the Respondent is their father and the Deceased is their mother.

4.  The Deceased’s case is that a banquet was held in 1965 to celebrate their marriage. The Respondent denied.

5.  In 2007, the Respondent registered a marriage with Madam Y in the Mainland.

6.  The trial of the Originating Summons was set down for January 2024.  Sadly, the Applicant passed away before the trial. No grant of probate or letter of administration has been made.

7.  On 30 November 2023, the Daughter took out a Summons (“Summons”)  for a carry on order.  This application was supported by her 3 siblings. It was stated in the marginal note of the Summons that she relied on Order 15 rule 7 and rule 15 of RDC.

B.  Issues

8.  The issues in this application are as follows:

(1)  Was the action abated on the death of the Deceased? On this arises the question whether the cause of action of the proceedings survives her death?

(2)  A declaratory relief is being sought. Will the declaration serve some useful purposes?

(3)  Should an order be made under Order 15 rule 7 and/or rule 15?

C.  Was the action abated on death of the Deceased

9.  If the death of a party terminates the cause of action or the interest of the party, the action is at an end.  An action may not be abated on death of a party if the cause of action survives his death.

10.  Section 20 of Law Amendment and Reform (Consolidation)  Ordinance (“LARCO”)  provides that save for some exceptions (which are not applicable to the present case), all causes of action subsisting against or vested in a deceased shall survive against or for the benefit of his estate.  Section 20 of LARCO reads:

“20. (1)  Subject to the provisions of this section, on the death of any person after 26 October 1951, all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate: Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims for damages on the ground of adultery.”

11.  Order 15 rule 7 of the RDC deals with the situation on change of parties by reason of death.  Rule 7(1)  provides that an action shall not be abated by reason of death of a party if the cause of action survives the death. 

D.  Whether the cause of action survives the Deceased’s death

D1.  Applicable legal principles

12.  The Court of Appeal has summarized various dicta on the definition of a “cause of action” in Shenzhen Futaihong Precision Industry Co v Byd Company Limited [2]:

“81. For the definition of a “cause of action”, one has regard to various dicta in the following cases:

“A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.”

(Letang v Cooper [1965] 1 QB 232 at 242 to 243)

“A cause of action is that combination of facts which gives rise to a legal right.”

(Berezovsky v Abramovich [2011] 1 WLR 2290 at §59)

“ “Cause of action” has been held from the earliest time to mean every fact which is material to be proved to entitle the plaintiff to succeed, every fact which the defendant would have a right to traverse.”

(Cooke v Gill (1873)  LR 8 CP 107 at 116)

“Every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.”

(Read v Brown (1888)  22 QBD 128 at 131)

“The language I used obviously means this: the plaintiff in order to make out a cause of action must assert certain facts which, if traversed, he would be put to prove. … In former times, if he failed to assert any of those facts, his declaration was demurrable as shewing no cause of action.”

(Coburn v Colledge [1897] 1 QB 702 at 706 to 707)

  82. One should bear in mind that a cause of action in this context is “not so much the label attaching to a claimant’s claim (for example ‘breach of statutory duty’ or ‘money paid under a mistake of law’)”, but it is the set of facts which entitles the plaintiff to relief (Hoescht UK Ltd v Inland Revenue Commissioners [2004] STC 1486 at §24; Sorata Ltd v Gardex Ltd [1984] RPC 317 at 326). “The assessment is objective and the consideration must be of the substance of what is pleaded, rather than the form.” (ISP Consulting Engineers Ltd v Body Corporate 89408 [2017] NZCA 160 at §22)”

13.  In Re Estate of Lam Kam Wai[3], the Court of Appeal held that the answer to the question whether a cause of action survives the death of a party depends on the true construction of the relevant statutory provisions. 

“36. The answer to the question whether a cause of action survived the death of Madam Chan depends on the true construction of the relevant provisions in the Inheritance Ordinance. There is no dispute that for there to be a cause of action vested in her at the time of her death within the meaning of s20(1)  of LARCO, her claim for financial provisions must be an enforceable right, not “mere hope or contingencies” (Sugden v Sugden, supra, 135), or that the whole question if she was entitled to anything out of the deceased’s estate was still “in the melting pot” (Re Ferrar’s Application [1966] P 126, 140D”

14.  The issue in Sugden v Sugden[4] is whether the estate of the husband is liable to pay maintenance for the children after the death of the husband. It was held that:

“… “Cause of action” in the section means, I think, rights which can be enforced – or liabilities which can be redressed – by legal proceedings in the Queen’s courts. These now survive against the estate of the deceased person. “Cause of action” are not, however, confined to rights enforceable by action, strictly so called – that is, by action at law or in equity. They extend also to rights enforceable by proceedings in the Divorce Court, provided that they really are rights and not mere hopes or contingencies. …

It must be noticed, however, that the section only applies to cause of action “subsisting against” the deceased on his death. This means that the right or liabilities must have accrued due at the time of his death.”

15.  The applicable legal principles can be summarized as follows:

(1)  A “cause of action” is the set of facts that gives rise to a legal right or that entitles the claimant to a relief.  The assessment is objective with regard to the substance of the facts pleaded, but not the form or the label attached to a claim: Shenzhen Futaihong Precision Industry Co v Byd Company Limited.

(2)  A “cause of action” extends to rights enforceable by proceedings in the Family Court: Sugden v Sugden.

(3)  Whether a cause of action in a statutory claim survives the death of a party depends on the true construction of the relevant provisions of the statute: Re Estate of Lam Kam Wai.

(4)  The claim must be an enforceable right accrued at the time of the death of the party, but not a “mere hope or contingencies”: Sugden v Sugden, Re Ferrar’s Application, Re Estate of Lam Kam Wai.

D2.  Construction of MRO

16.  The promulgation of the Marriage Ordinance unified a single legal form of marriage in Hong Kong.  Prior to the Marriage Ordinance came into effect, there were two forms of marriage existing, viz. customary marriage and modern marriage.

17.  The MRO contains provisions validating these two forms of marriage that were traditionally entered into prior to the “appointed day” (7 October 1971). Section 8 of the MRO deals with the validation of a “modern marriage”, defined to mean “a marriage celebrated in Hong Kong before the appointed day by open ceremony as a modern marriage and in the presence of 2 or more witnesses”[5].

18.  By operation of Section 8 of the MRO, a modern marriage was deemed to have been valid since the time of celebration. The term “validated marriage” is defined in the MRO to mean a modern marriage made valid by Section 8.

19.  A system of voluntary registration of modern marriages before the appointed day was set up (Section 9 of the MRO).  The validity of the modern marriage will not be affected by reason of non-registration.

20.  Section 9(3)  of the MRO provides that the District Court has the jurisdiction to hear and determine an application for a declaration of validated marriage on certain situations:

“9.(3)  The District Court shall have jurisdiction to hear and determine an application by a person claiming to be a party to a customary marriage or a validated marriage for a declaration that a customary marriage or validated marriage, as the case may be, subsists between that person and the other party to such marriage where—

(a)  the other party disputes the existence of the marriage;

(b)  the other party is unwilling to join in the application for the registration of the marriage under this section; or

(c)  the whereabouts of the other party cannot after careful and reasonable inquiry be ascertained or it is for any other reason impracticable for such other party to be apprised of the application for the registration of the marriage under this section.”

21.  Ms Wong for the Respondent initially accepted that the cause of action of the proceedings survives the death of the Deceased. But she later raised a doubt on this proposition after reading the official record of the Legislative Council’s proceedings on the Marriage Reform Bill[6] where the mechanism for dissolution by consent was mentioned.

22.  She contended that if the court makes the declaration after the death of the Deceased, the Respondent cannot dissolve the marriage by the recognized routes for dissolution under the MRO (i.e. by mutual consent or by petition under the Matrimonial Causes Ordinance)  so as to “legalise” his marriage with Madam Y. She argued that this creates absurdity and is prejudicial against the Respondent. Thus, she argued that the purpose of the MRO is to provide the right to seek a declaration under Section 8 only when both parties to the marriage are alive.

23.  These arguments are, in my view, misplaced. 

24.  The court’s jurisdiction to make Section 8 declaration is not limited to cases where both parties are available to give consent to dissolve the marriage. Under Section 9(3)(c), the court has the jurisdiction to declare a validated marriage when the whereabouts of one of the parties cannot be ascertained or it is impracticable for such party to be apprised of the application for registration of the marriage under Section 9.

25.  To interpret the MRO as permitting a Section 8 declaration to be made after death of a party does not create absurdity nor real prejudice against the surviving party. 

26.  The modern marriage was deemed valid by operation of Section 8.  Its validity is not dependent on a court declaration. The party could dissolve the marriage by mutual consent before the appointed day under Section 14 of the MRO. Where a validated marriage was subsisting on the appointed day and registered in accordance with Part IV of MRO, the dissolution mechanism under Sections 15 to 20 are available.

27.  In response to Ms Wong’s complaint of unfairness, Ms Ho for the Deceased and the Daughter referred to the case Li Mengzhi v Commissioner of Registration[7]. This is a judicial review case. 

28.  The applicant was issued with a one-way permit by the Mainland authority based on her marriage in 2003 with a Mr Chan in Hong Kong. She arrived in Hong Kong in 2008 on the strength of the one-way permit and was permitted to stay in Hong Kong. She has lived and worked in Hong Kong for more than 7 years, almost single-handedly raised her daughter and has paid Hong Kong taxes. She was granted a permanent identity card in 2020 and a HKSAR passport. 

29.  Prior to that, she had petitioned for divorce from Mr Chan in the Mainland. During the divorce proceedings, it was discovered that, unbeknownst to the applicant, Mr Chan had previously married, and that marriage had not been dissolved. The marriage between the applicant and Mr Chan was therefore declared by the Mainland court as a nullity because Mr Chan had a subsisting marriage at that time. The applicant’s permission to enter and stay in Hong Kong granted on the basis of the one-way permit had been vitiated, and the applicant is to be regarded as having entered or remained in Hong Kong without the permission of an immigration officer.

30.  It was decided by the Commissioner of Registration that the applicant’s permanent identity card was invalid, and she does not have the right of abode in Hong Kong.  Coleman J dismissed the applicant’s appeal against the above decision. In the ruling, Coleman J acknowledged that the result seems manifestly unfair and apparently unjust to the applicant who is an innocent victim, but the result can nevertheless be right.

31.  The Respondent is not an innocent victim.  The Deceased’s application is based on the simple fact that they have celebrated their marriage as a modern marriage by open ceremony in Hong Kong in the presence of 2 or more witnesses. If this underlying fact is proved to be correct, the Respondent ought to have known that he should dissolve the marriage with the Deceased before he could legally marry Madam Y. 

32.  Even if the Deceased were still alive, the Respondent could not legalise the marriage in 2007 by seeking the Deceased’s consent to dissolve the validated marriage after the court declaration.  This is because the validated marriage would be considered to have been valid at the date of celebration in 1965.  Any dissolution of a validated marriage would only come into effect on the date of written consent or registration of the dissolution.

33.  Section 8 declaration is a declaration with respect to the legal status of two persons having regard to the facts happened prior to the death of the Deceased. The declaration serves as a proof or a court’s confirmation of a pre-existing state of affairs. The cause of action of the proceedings has been accrued prior to the death of the Deceased. It is not a “mere hope or contingencies”.

34.  There are authorities of the court making declaration on the validity of modern marriage or customary marriage after the death of one or both of the parties to the marriage.

35.  In Ma Siu Siu Vivian v Tam Wai Mun Alice, the question whether the Intestate Estate Ordinance applied arose.  For this purpose, the court heard evidence and held that there was a validated marriage between the applicant’s deceased parents under Section 8 of the MRO.

36.  Fung Ying Cheung v Yip Woon Yung[8] is a probate action in which the court found that the deceased has a customary marriage subsisting at the time of his marriage with the defendant. The marriage between the deceased and the defendant was therefore declared void.

E.  Useful purposes of the declaration

37.  The court will not make a declaration if such declaration will not serve some useful purposes. 

38.  It has held by the Court of Appeal in Cheung Man Wai v Director of Social Welfare[9]that:

“… The Court, even in public law proceedings, is loathe to make any declaration in the nature of an advisory opinion as to the true construction or effect of legislation. It is equally loathe to make a declaration in a situation which can be described as academic or hypothetical, because such a declaration would not be grounded on any factual basis. And the Court will certainly not make a declaration unless it satisfied that the making of that declaration will serve some useful purpose.”

39.  A Section 8 declaration is a pronouncement on the marital status of two persons. This is a solemn declaration and precludes all persons from saying that the status is not such as declared.  As held by the Privy Council in Pattni v Ali [10], this kind of declaration is in effect a judgment in rem:

“A judgment in rem is an adjudication pronounced upon the status of some particular subject matter by a tribunal having competent authority for that purpose. Such an adjudication being a solemn declaration from the proper and accredited quarter that the status of the thing adjudicated upon is declared, it precludes all persons from saying that the status of the thing or person adjudicated upon was not such as declared by the adjudication … So a declaration of legitimacy is in effect a judgment in rem.”

40.  The Section 8 declaration will serve some useful purposes.  It will provide certainty to the marital status of the Deceased and the Respondent, and hence certainty on their children’s status of legitimacy.  It will also clarify the validity of the Respondent’s marriage with Madam Y in 2007.  I do not agree with Ms Wong’s view that the issue of legitimacy is only a matter of emotional value.

F.  Order 15 rule 7 or rule 15

41.  The next issue is whether Order 15 rule 7 and/or rule 15 applies.

42.  Order 15 Rule 7(2)  provides that:

“7.(2)  Where at any stage of the proceedings in any cause or matter the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may, if it thinks it necessary in order to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, order that other person to be made a party to the cause or matter and the proceedings to be carried on as if he had been substituted for the first mentioned party.”

43.  The Daughter has not brought herself to become “that other person” to whom the court may make her a party under rule 7(2)  because the Deceased’s interest in the cause has not been assigned or transmitted to or devolved upon the Daughter.  A person who is simply interested in the outcome of proceedings does not come within the ambit of rule 7(2)  for an order to be substituted as the party in place of the Deceased: Lau Cho Kwan, Leo v Lau Siu Fan Elaine[11].

44.  The cases that may come under Order 15 rule 15 are broader. Rule 15 deals with situation where the deceased had an interest in the matter in question in the proceedings but has no personal representative:

“15.(1)  Where in any proceedings it appears to the court that a deceased person was interested in the matter in question in the proceedings and that he has no personal representative, the Court may, on the application of any party to the proceedings, proceed in the absence of a person representing the estate of the deceased person or may by order appoint a person to represent that estate for the purposes of the proceedings; and any such order … shall bind the estate of a deceased person to the same extent as it would have been bound had a personal representative of that person been a party to the proceedings.

(2)  Before making an order under this rule, the court may require notice of the application for the order to be given to such (if any)  of the persons having an interest in the estate as it thinks fit.”

45.  Rule 15 applies to any proceedings and is not confined to representation of the estate of a party to the litigation: Hong Kong Civil Procedure 2024 Vol. 1 [15/15/1].

46.  The Deceased was interested in the matter in the proceedings. She has no personal representative. The Daughter has an interest in the outcome of the proceedings. It is appropriate to appoint the Daughter to represent the Estate for the purpose of the proceedings. 

47.  Under rule 15(2), the court may require notice of the application to be given to the persons having interest in the estate.  The Daughter has obtained the consent of the other siblings. I was informed that notice of this application has been sent to all persons whom to the knowledge of the Daughter have interest in the Estate.

G.  Order

48.  By reasons of the above, I order that:

(1)  the Daughter be appointed to represent the Estate for the purposes of the proceedings;

(2)  the Applicant in the title of the proceedings be amended to: “LCN (CWY, appointed by the order dated 8 March 2024 to represent the estate of LCN)”.

49.  The parties have confirmed their readiness to continue with the trial after the determination of this application. Due to the old age of the witnesses involved, I am inclined to find an early date for the trial. I direct the parties to lodge a joint proposed directions for trial within 14 days.

50.  On a nisi basis to be made absolute within 14 days, I order that the costs of the Summons be in the cause of the Originating Summons.

51.  I thank counsel for their assistance.