SUEN TOI LEE v. YAU YEE PING

FACV No. 22 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 22 OF 2000 (CIVIL)

(ON APPEAL FROM CACV NO. 23 OF 2000)

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J U D G M E N T

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Chief Justice Li:

1. I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Bokhary PJ:

2. The legal questions in this case all go to the true construction of the word "concubine" as used in the Intestates' Estates Ordinance, Cap. 73, ("the IEO"). In order to resolve these questions and to arrive at that construction, it is necessary to appreciate the nature and legal history of concubinage of the kind which originated in traditional China.

The nature and legal history of concubinage

3. "Concubinage" is an English word. Its meaning depends on its context. In Hong Kong it means, unless the particular context otherwise requires, the institution of Chinese law and custom under which a man was able to take a principal wife (tsai) and an unlimited number of women as concubines (tsip) who would cohabit with him and bear him legitimate children.

4. Scholars are by no means unanimous in regard to the status of a concubine and therefore the nature of concubinage. Some locate a concubine's status between that of any sort of wife and that of a mere mistress. Others regard a concubine's status as that of a wife, albeit only a secondary wife. This latter view is the one on which the decisions of the Hong Kong courts have, justifiably as I see it, proceeded. The most obvious illustration of the Hong Kong courts' view that concubines have a matrimonial status is, I think, to be found in the case of R v. Chan Hing-cheung [1974] HKLR 196. There the Court of Appeal's predecessor the Full Court held that a concubine is a "wife" within the meaning of s.6 of the Evidence Ordinance, Cap. 8, and therefore not a competent or compellable witness in any criminal proceedings against a man with whom she is party to a union of concubinage.

5. Two other Hong Kong decisions are worth mentioning in the present connection. In Wong Kam Ying v. Man Chi Tai [1967] HKLR 201 Huggins J held that a subsisting monogamous marriage was a bar to the taking of a concubine. The converse is also true. In Kwan Chui Kwok v. Tao Wai Chun [1995] 1 HKC 374 Chan J held that having a concubine was a bar to entering into a monogamous marriage.

6. These cases necessarily involve regarding customary marriages as polygamous since they did not bar the taking of concubines. This brings me to my first reference to the Report on Chinese Law and Custom in Hong Kong of the Committee appointed by the Governor in October 1948 and chaired by the Solicitor General, Mr George Strickland ("the Strickland Report"). It is observed at p.22, para. 49 of the Strickland Report that Chinese people thinking along traditional lines would consider it strange that a man's ability to take a concubine meant that his marriage to his tsai was polygamous. This is understandable since concubinage did not involve more than one tsai. But the classic definition of marriage laid down in Hyde v. Hyde (1866) LR 1 P&D 130 at p.133 is "the voluntary union for life of one man and one woman, to the exclusion of all others". (Emphasis supplied) Going by that definition, I think that the potential for the inclusion of a concubine renders a marriage potentially polygamous and that the actual inclusion of a concubine would render a marriage actually polygamous.

7. Having used the expression "secondary wife", I should make it clear that this is not a term of art but merely a description. Moreover it should be pointed out that the description of a concubine as a secondary wife should not be understood to imply that the taking of concubines was confined to married men. The writings on the subject suggest that although highly unusual it was not unknown for unmarried men to take concubines. It is well established that the valid taking of a concubine depended on open acceptance by the wife and open recognition by the man's family generally. But it would appear that this meant the acceptance by the wife if any.

8. All of that said, the expression "secondary wife" is a useful one for describing a tsip. Indeed it has been so used by the Privy Council. In Khoo Hooi Leong v. Khoo Chong Yeok [1930] AC 346, an appeal from the Supreme Court of the Straits Settlements (Penang), the Privy Council used the expression "t'sip or secondary wife". It was held on the facts (as one sees at pp 352-353) that the woman in question was not a t'sip or secondary wife because, even leaving aside doubts as to whether she was "free to marry", the evidence showed that her "association" with the settlor was "merely of a temporary or casual character".

9. Concubinage in the Mainland was not brought to an end immediately upon the founding of the Republic of China in 1911. But the Republican Civil Code ("the RCC") which came into force on 5 May 1931 stated (in Book IV, art. 985) that: "A person who has a spouse may not contract another marriage." The courts below concurrently found, upon the expert evidence of Professor Anthony Dicks SC, who needs no introduction in the courts of Hong Kong, that this prohibition abolished concubinage. This finding is not challenged before us. A statutory institution called "the house" was created and provided for by various other articles of the RCC. By virtue of these other articles, a woman who cohabited on a permanent basis other than as a wife with the head of the house or any other male member of the house qualified as a "member of the house" and was as such entitled to maintenance.

10. The RCC was abrogated in 1949 upon the founding of the People's Republic of China in that year. In the following year concubinage was expressly prohibited in the Mainland by art. 2 of the Marriage Law promulgated there on 30 April 1950. The courts below concurrently found, on the expert evidence of Professor Dicks, that the abrogation of the RCC did not revive traditional concubinage for the period between such abrogation and such promulgation. This finding is not challenged before us. Before leaving the Marriage Law of 1950 for the moment, I should mention ? because it has a significance which will become apparent in due course ? that art. 1 of that Mainland statute stated in terms that monogamy was one of the bases of the new marriage system being put into effect.

11. By reason of the room which Hong Kong law leaves for the application in Hong Kong of Chinese law and custom to persons of Chinese race domiciled here, such persons were, until 7 October 1971, able lawfully to enter into unions of concubinage in Hong Kong. (I will in due course deal with why I say that Hong Kong domicile is a condition of that ability.) As for the position from 7 October 1971 onwards, s. 5 of the Marriage Reform Ordinance, Cap. 178, provides that as from that date "no man may take a concubine and no woman may acquire the status of a concubine". But that, as the section expressly provides, "shall not affect in any way ... the status or rights of a concubine lawfully taken before" 7 October 1971.

The facts of this case

12. The story of this case begins in Shanghai during the first half of the last century. There Mr Sung Chuen Pao took a wife in 1929. Then, still there, he purported to take two women as his concubines: Madam Sung So Chun in 1933 and Madam Chu Lee in 1945. This case has proceeded throughout on the footing that he purported to take these two women as his concubines and not that he took them as members of his house under the RCC. Both women were openly accepted by his wife as his concubines and openly recognised as such by his family generally. But the pivotal question now before the Court is whether they were his concubines within the meaning of the IEO.

13. In 1951 Mr Sung moved to Hong Kong. In the following year Madam Chu joined him in Hong Kong. His wife and Madam Sung remained in the Mainland where Madam Sung died in 1983 and the wife died in 2000. As for Mr Sung and Madam Chu, they both died intestate in Hong Kong: he in 1985 and she in 1987. It is common ground before us that Mr Sung, his wife, Madam Sung and Madam Chu were domiciled in the Mainland throughout.

14. Litigation ensued first over Mr Sung's estate and then over Madam Chu's estate. The appeal now before the Court is in the litigation over Madam Chu's estate. Who is entitled to her estate? One claimant is the appellant, who is Madam Sung's daughter by Mr Sung and who was born in Shanghai in 1940. Whether her claim to a share in Madam Chu's estate is good depends on whether she, as Madam Sung's daughter, is an "issue" of Madam Chu for the purpose of the IEO.

15. I pause here to explain why Madam Sung's daughter's claim is to a share in Madam Chu's estate rather than to the whole of that estate. The reasons are as follows. Mr Sung and his wife adopted a daughter in Shanghai in 1947. As for Madam Sung, she had two other children, both sons, by Mr Sung. The elder son predeceased Madam Chu. But the younger son did not die until after Madam Chu's death. If both Madam Sung and Madam Chu were Mr Sung's concubines, then Madam Chu's estate will go to Madam Sung's daughter, Madam Sung's younger son's estate and, it would appear, Mr Sung and his wife's adopted daughter. If only Madam Chu was Mr Sung's concubine, then it would appear that Madam Chu's estate will go to Mr Sung and his wife's adopted daughter. I qualify what I say about this adopted daughter's position by using the expression "it would appear" because there has been no argument before us on her position.

The Intestates' Estates Ordinance, Cap. 73

16. Section 4(5) of the IEO provides that "If the intestate leaves issue but no husband or wife the residuary estate shall be held on statutory trust for the issue of the intestate". Madam Chu left no husband. Nor did she leave any children of her own. So if neither Madam Sung nor Madam Chu were Mr Sung's concubines, Madam Chu's estate will be shared between Madam Chu's siblings or their estates, whose interests in the present appeal are being looked after by the respondent, who is Madam Chu's niece and has been appointed to represent Madam Chu's estate.

17. For the purposes of the IEO, s.2(2)(b) thereof provides, a female's issue includes "a child of a valid marriage to which her last husband and another female were parties". The terms "child of a valid marriage" and "husband" are dealt with in the Schedule to the IEO. Para. 2(1) of the Schedule provides that "the child of a union of concubinage shall be regarded for the purposes of [the IEO] as the child of a valid marriage". And para. 2(2) of the Schedule provides that "the reference in s.2(2)(b) to 'husband' shall be construed as including a reference to the male partner of a union of concubinage".

18. Section 13 of the IEO provides that "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 [7 October 1971] under which union the female partner has, during the lifetime of the male partner, been accepted by his wife as his concubine and recognised as such by his family generally". It is perfectly plain ? and should be said at once ? that this is a reference to concubinage under Chinese law and custom and not a free-standing definition of concubinage. No one suggests that Hong Kong law ever made room for the taking of a tsip by a non-Chinese man. Yet this legislation says nothing about the requirement of Chinese ethnicity. This must be because the imposition of that requirement is left to Chinese law and custom as part of Hong Kong's domestic law. Acceptance by the male partner's wife and recognition by his family generally are requirements imposed by Chinese law and custom. Taking things in context, it is plain that the references in s. 13 to such acceptance and recognition are included simply to avoid any quibble over the matter.

19. The foregoing provisions of the IEO show why the pivotal question in this appeal is whether Madam Sung and Madam Chu were Mr Sung's concubines within the meaning of the IEO. For if they were his concubines within the meaning of the IEO, then Madam Sung's daughter would be, by virtue of those provisions, an issue of Madam Chu's and entitled as such to a share in her estate. But if they were not his concubines within the meaning of the IEO, then Madam Chu's estate will be shared instead by Madam Chu's siblings or their estates.

In the courts below

20. At first instance Madam Sung's daughter succeeded in her claim to a share in Madam Chu's estate but lost by a majority in the Court of Appeal. She is now before us as the appellant while the representative of Madam Chu's estate is before us as the respondent.

21. Each of the learned judges in the courts below followed a different course of reasoning. I have given respectful consideration to what each of them has said.

22. The trial judge handed down two judgments in this case, one on 24 April 1998 and the other on 17 September 1999. In his first judgment (reported at [1998] 1 HKLRD 716) Keith J held that neither Madam Sung nor Madam Chu had entered into a union of concubinage within the meaning of the IEO because the RCC had abolished concubinage in Republican China before Mr Sung had taken or purported to take either of them as a concubine. But in his second judgment (reported at [1999] 3 HKLRD 502) Keith JA (by then a Justice of Appeal but sitting as an additional judge of the Court of First Instance of the High Court) held that both Madam Sung and Madam Chu were concubines within the meaning of the IEO because women in their position had become de facto concubines in Republican China and as such were accorded in the People's Republic of China the same legal rights in regard to divorce, matrimonial protection and inheritance as those enjoyed by wives.

23. So the trial judge's decision went ultimately in favour of Madam Sung's daughter. The representative of Madam Chu's estate appealed to the Court of Appeal, contending that the trial judge was wrong in his second judgment. In response Madam Sung's daughter contended that the trial judge was right in his second judgment (which was in her favour) and that he was wrong in his first judgment (which was against her).

24. On 4 July 2000 (in a decision reported at [2000] 3 HKLRD 443) the Court of Appeal (Rogers and Ribeiro JJA, Godfrey VP dissenting) allowed the appeal of the representative of Madam Chu's estate, and held against Madam Sung's daughter.

25. Both Rogers and Ribeiro JJA attached weight to Mr Sung, Madam Sung and Madam Chu's Mainland domicile. They were agreed that Madam Sung, who never came to Hong Kong, never acquired the status of a concubine within the meaning of the IEO. Ribeiro JA held that Madam Chu never acquired such status either. Rogers JA, on the other hand, held that Madam Chu acquired such status after she joined Mr Sung in Hong Kong in 1952. Of course that alone would not bring Madam Sung's daughter success in her claim to a share in Madam Chu's estate. As explained earlier in this judgment, such success is dependent on both Madam Sung and Madam Chu having acquired the status of a concubine within the meaning of the IEO.

26. Godfrey VP dissented in favour of Madam Sung's daughter. He did so on a basis which amounted essentially to this. Domicile, in his view, was irrelevant in this kind of situation. What mattered was that, as he saw it, Hong Kong law treated Chinese law and custom as the personal law of all concerned and both unions of concubinage were lawful under such personal law.

Madam Sung's daughter's three alternative arguments

27. Before us Mr Robert Tang SC for Madam Sung's daughter advanced three alternative arguments on her behalf. The first argument is that Godfrey VP was right in his dissenting judgment in the Court of Appeal, in other words, that domicile does not matter. The second argument is that Keith JA was right in his second judgment at first instance, in other words, that de facto concubinage arose and suffices. The third argument is that Madam Sung and Madam Chu were essentially similar to concubines and that such similarity is within the IEO.

Chinese law and custom in Hong Kong

28. By a circular dated 20 January 1841 and addressed to British subjects, Captain Charles Elliot announced the cession of Hong Kong to Britain. This announcement was followed by two proclamations. The first was dated 1 February 1841. It was made jointly by Commodore Sir J.J.G. Bremer and Captain Eilliot, and was addressed to the Chinese inhabitants of Hong Kong. The second was dated 2 February 1841. It was made by Captain Elliot alone, and was addressed to British subjects.

29. The full text of these two proclamations are to be found at pp 4-6 of Vol. 1 of "Norton-Kyshe's The History of the Laws and Courts of Hong Kong" (1898). By the Bremer-Elliot Proclamation, the Chinese inhabitants of Hong Kong were told that they were "secured in the free exercise of their religious rites, ceremonies, and social customs" and that they would "be governed, pending Her Majesty's pleasure, according to the laws, customs, and usages of the Chinese (every description of torture excepted) by the elders of the villages, subject to the control of a British magistrate". By the Elliot Proclamation, British subjects were told that "pending Her Majesty's further pleasure, the natives of the island of Hong Kong, and all natives of China thereto resorting, shall be governed according to the laws and customs of China, every description of torture excepted".

30. In Ho Tsz Tsun v. Ho Au Shi (1915) 10 HKLR 69, a decision of the Full Court, Rees-Davies CJ, cited the two 1841 Proclamations and said (at p.79) that:

"It is therefore clear that, at the cession of the island to the British Crown, express reservation was made on behalf of the Sovereign, in so far as Chinese were concerned, of the laws and customs of China; whilst extending to British subjects and foreigners security and protection according to the principles and practice of the British law: thus recognising a dual prospective system of law in the Colony."

31. That reservation was, as both 1841 proclamations stated in terms, subject to Her Majesty's pleasure, in other words, lawfully open to abrogation or modification. It has never been abrogated. But it has been modified. How it was modified by the series of Supreme Court Ordinances starting with the one of 1844 and ending with the one of 1873 is traced by Gollan CJ in In the Estate of Chak Chiu Hang (1925) 20 HKLR 1 at pp 5-9. Section 5 of the 1873 Ordinance provided that:

"Such of the laws of England as existed when the Colony obtained a local legislature, that is to say, on the 5th day of April, 1843, shall be in force in the Colony, except so far as the said laws are inapplicable to the local circumstances of the Colony or of its inhabitants, and except so far as they have been modified by laws passed by the said legislature."

32. Immediately before the People's Republic of China's resumption of the exercise of sovereignty over Hong Kong on 1 July 1997, s. 3 of the Application of English Law Ordinance, Cap. 88, provided as follows:

"(1) The common law and the rules of equity shall be in force in Hong Kong(

(a) so far as they are applicable to the circumstances of Hong Kong or its inhabitants;

(b) subject to such modifications as such circumstances may require;

(c) subject to any amendment thereof (whenever made) by(

(i) any Order in Council which applies to Hong Kong;

(ii) any Act which applies to Hong Kong; or

(iii) any Ordinance.

(2) The common law and the rules of equity shall be in force in Hong Kong as provided in subsection (1) notwithstanding any amendment thereof as part of the law of England made at any time by an Order in Council or Act which does not apply to Hong Kong."

33. The Application of English Laws Ordinance, which also stated which United Kingdom statutes applied to Hong Kong up to 30 June 1997, did not survive the 1 July 1997 handover. But Hong Kong's pre-handover legal system, including the room which it left for the application of Chinese law and custom here, is preserved by art. 8 of our constitution the Basic Law which provides that:

"The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region." (Emphasis supplied)

34. All of that goes to the direct application in Hong Kong of Chinese law and custom as domestic law rather than as foreign law applied indirectly via the rules of private international law. The practice of the Hong Kong courts to receive expert evidence on the content of Chinese law and custom, while perhaps anomalous, is pragmatic and well established.

35. It is against the background set out above that I will address the question of domicile which arises in the present case.

Domicile

36. It is said in para. 14 of the Strickland Report that it "would seem that with such exceptions as are mentioned later the application of Chinese law and custom should be confined to those Chinese who are domiciled in Hong Kong". None of the exceptions which the Strickland Report then goes on to mention are material to the present case.

37. At the time when the Chinese law and custom of traditional China applied in the Mainland, the Hong Kong courts would not have been doing anything narrow by confining direct application of such law and custom to Chinese persons domiciled in Hong Kong. In regard to Chinese persons domiciled in the Mainland, there was scope, so long as such law and custom applied in the Mainland, for the Hong Kong courts to apply such law and custom to them indirectly via the rules of private international law (even though not directly as Hong Kong domestic law). Upon the abrogation of such law and custom in the Mainland, such scope naturally disappeared. And it would be plainly wrong for a Hong Kong court to extend direct application of such law and custom to anyone domiciled in the Mainland after such law and custom had been abrogated in the Mainland.

38. I am satisfied that the general rule is, and has always been, that the application of Chinese law and custom applied directly as Hong Kong domestic law is confined to Chinese persons domiciled in Hong Kong, though the concept of domicile may have been applied somewhat loosely in some of the cases.

39. Whatever exceptions to this general rule may exist or have existed, I hold that no such exception ever existed when it came to capacity to enter into a union of concubinage. I so hold for the following reasons. As I pointed out earlier in this judgment, the Hong Kong courts have, justifiably as I see it, proceeded on the view that a concubine's status is that of a wife, albeit only a secondary wife. Her status is therefore a matrimonial one, and unions of concubinage are therefore matrimonial unions. Under the rules of private international law applicable in Hong Kong, capacity to enter into a matrimonial union and therefore to acquire a matrimonial status is determined by reference to the law of each party's place of antenuptial domicile. There was a time when Hong Kong permitted Chinese persons to enter into unions of concubinage. But it never conferred on them capacity to enter into matrimonial unions, whether of concubinage or of any other type, if they had no such capacity under the law of their place of antenuptial domicile outside Hong Kong. They had to be domiciled in Hong Kong or in some other place where the law conferred such capacity on them. The fact of their Chinese ethnicity was not enough on its own. Hong Kong law does not treat, and has never treated, Chinese law and custom as the personal law of all ethnic Chinese everywhere irrespective of domicile.

40. As for the case of McCabe v. McCabe [1994] 1 FLR 410 which Godfrey VP thought supported his approach, it only has to be pointed out that that case did not concern the essential validity of the marriage in question but only its formal validity. Essential validity involves capacity under the lex domicilii i.e. the law of the parties' place of antenuptial domicile. But formal validity involves only the formalities required by the lex loci celebrationis i.e. the law of the place where the union is entered into.

Not concubines under Chinese law and custom

41. In the light of the legal position explained above, the question of whether Madam Sung and Madam Chu were Mr Sung's concubines can be dealt with shortly as follows. None of them were ever domiciled in Hong Kong. And it is only if they had been domiciled in Hong Kong at the time when they sought to enter into unions of concubinage that Hong Kong law would have operated to give them capacity to do so under Chinese law and custom. Throughout they were domiciled in the Mainland where concubinage had been abolished by the time they purported to enter into unions of concubinage. So under their domiciliary law none of them had capacity to enter into a union of concubinage. In the eyes of Hong Kong law therefore neither Madam Sung nor Madam Chu ever became Mr Sung's concubines under Chinese law and custom.

42. For the foregoing reasons, I am unable to share Godfrey VP's view that both Madam Sung and Madam Chu became Mr Sung's concubines under Chinese law and custom in Shanghai. For the same reasons, I am unable to share Rogers VP's view that Madam Chu became Mr Sung's concubine under Chinese law and custom in Hong Kong after she joined him here. The first of Madam Sung's daughter's three alternative arguments fails.

De facto concubines?

43. I turn now to the second of her three alternative arguments. This is the argument that Keith JA was right in holding that both Madam Sung and Madam Chu were concubines within the meaning of the IEO because women in their position had become de facto concubines in Republican China and as such were accorded in the People's Republic of China the same legal rights in regard to divorce, matrimonial protection and inheritance as those enjoyed by wives.

44. The expression "de facto concubine" is a loose one. It is obvious that it was used by Professor Dicks merely as a convenient shorthand way of describing a woman who became a "member of the house" under the RCC by cohabiting on a permanent basis other than as a wife with the head of the house or any other male member of the house. There is simply no warrant for thinking that Republican China created as a matter of fact what it had abolished by law. This type of house membership, Professor Dicks had explained, was merely a means of dealing with the social problem of former concubines. Nor is there any warrant for thinking that by freeing these women from unwanted relationships and protecting them, the People's Republic of China had created as a matter of fact something which it had prohibited by law.

45. In R v. Algar [1953] 2 All ER 1381 Lord Goddard CJ, delivering the judgment of the Court of Criminal Appeal, said this at pp 1383H-1384A:

"The expressions to be found in some of the text-books and cases 'de facto marriage' or 'de facto wife' mean, in our opinion, no more than that, while the parties may have appeared to be, and even have believed that they were, husband and wife, they were not, either because there was an impediment which prevented their marriage or that the marriage was not celebrated according to law." (Emphasis supplied)

So to say that a woman is a de facto wife is to say that she is not a wife. Likewise to say that a woman is a de facto concubine is to say that she is not a concubine.

46. For the foregoing reasons, I am unable to share Keith JA's view on the question of de facto concubines. The second of Madam Sung's daughter's three alternative arguments fails.

Something essentially similar to a concubine?

47. All that remains therefore is the third and last of her three alternative arguments. This is that Madam Sung and Madam Chu were essentially similar to concubines and that such similarity is within the IEO.

48. In my view, Madam Sung and Madam Chu were not essentially similar to concubines. They were, in my view, fundamentally different from concubines for the reason given by Professor Dicks, namely that they lacked the matrimonial status which concubines had.

49. Through Professor Dicks's expert evidence, we have seen the way in which the RCC abolished concubinage. It was by providing that a person who has a spouse may not contract another marriage. Also through Professor Dicks's expert evidence, we have seen how the RCC dealt with the social problem resulting from the abolition of concubinage. This was by creating "the house" and providing that a woman who cohabited on a permanent basis other than as a wife with the head of the house or any other male member of the house qualified as a "member of the house" and was as such entitled to maintenance. Obviously a union of concubinage was seen as a marriage. Otherwise the abolition of concubinage would not have been achieved by a prohibition against another marriage. Equally obviously no type of house membership was a marriage. Otherwise the type of house membership referred to above would have become the very thing which it replaced upon that thing's abolition. It is obvious that women like Madam Sung and Madam Chu never acquired matrimonial status in Republican China. Finally through Professor Dicks's expert evidence, we have seen what happened after 1949. And it is even more obvious that such women never acquired matrimonial status in the People's Republic of China. Any suggestion that they had acquired matrimonial status would fly in the face of the 1950 Marriage Law's express insistence on monogamy in the Mainland.

50. In any event, the IEO does not say ? and I am unable to read it to mean ? that it covers not only concubines but also persons essentially similar to concubines. If the legislature had intended the IEO to cover persons other than concubines, it would doubtless have said what persons other than concubines were covered. But the IEO says nothing about any such other persons.

51. Like her other arguments, Madam Sung's daughter's third and final argument fails.

Conclusion

52. For the reasons which I have given, I hold that Madam Sung and Madam Chu were not Mr Sung's concubines within the meaning of the IEO and therefore that Madam Chu's estate goes to Madam Chu's siblings or their estates.

53. Accordingly I would dismiss this appeal with costs. Both parties being legally aided, I would order legal aid taxation of both parties' costs.

Mr Justice Chan PJ:

54. I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Litton NPJ:

55. I agree entirely with Mr Justice Bokhary PJ's judgment and have nothing to add.

Lord Millett NPJ:

Concubinage

56. Concubinage is an institution peculiar to Oriental societies. For centuries it served a valuable social function by providing women some of whom would otherwise be left destitute with a home and family, a recognised place in society, and economic security for life. But it gives women a subordinate role in the family and is out of step with modern ideas. It has been abolished in Japan. It was abolished in Mainland China in 1931. It was retained in Hong Kong for a further 40 years possibly out of deference to the principles enshrined in Captain Elliott's Proclamation of 1841. But it was finally abolished here also, though for the future only, in 1971.

57. The right of the man to take one or more concubines was an accepted part of a Chinese customary marriage. While it seems that in theory an unmarried man could take a concubine, this very rarely happened in practice. Only a man who was of Chinese ethnic origin was capable of entering into a Chinese customary marriage and taking a concubine in accordance with Chinese law and custom. As the White Paper on Chinese Marriages in Hong Kong published on 13 December 1961 was at pains to emphasise, women in Hong Kong who claimed to be concubines but were not attached to a Chinese customary marriage were mistresses only and had no legal status.

58. No particular ceremony was required to enter into a union of concubinage: see Cheang Thye Phin v. Tan Ah Loy [1920] AC 369. All that was needed was (i) that the man should intend to take the woman into his family as a member of his household as his concubine (tsip) and publicly hold her out as such; (ii) the woman's consent to become his concubine and to occupy a position inferior to that of the principal wife (tsai); and (iii) acceptance of her status as his concubine by his principal wife (if any).

59. A Chinese customary marriage was monogamous in the sense that a man could have only one principal wife at a time: a man who purported to take a second tsai during the lifetime of the first was guilty of an offence. But the existence of the institution of concubinage meant that it was not "a voluntary union for life of one man and one woman to the exclusion of all others", and hence was regarded as potentially polygamous for the purposes of English matrimonial law: see Hyde v. Hyde (1866) LR 1 P & D 130. The right to take a concubine is incompatible with Western concepts of marriage, and accordingly a man who had entered into such a marriage, whether in Hong Kong or elsewhere, could not thereafter take a concubine during the subsistence of the marriage. Conversely, a man who had taken a concubine could not validly enter into a monogamous form of marriage without first terminating the relationship with his concubine.

60. Being unknown to Western legal systems, the status of a concubine is difficult to describe with any degree of accuracy in terms of those systems. But this much can be stated. A union of concubinage was a particular matrimonial relationship recognised by law. The relationship was an open one and was not adulterous. A concubine was more than a mistress and less than a second wife. Unlike a mistress, she had a recognised legal status, though it was inferior to that of the principal wife. She was entitled to be maintained by her consort while he was alive and out of his estate after his death. Her children were legitimate and regarded as full brothers and sisters of her consort's children, whether born to the principal wife or to another concubine. It is not surprising to find that she has often been described as a secondary wife, or that the courts of Hong Kong have accorded her some of the rights and subjected her to some of the disabilities of a wife. Thus she is entitled to apply for Letters of Administration to the estate of her deceased consort, subject to the prior claim of the principal wife; and she is not a competent or compellable witness in any criminal proceedings against her consort.

Abolition of concubinage

(i) 0n the Mainland

61. According to the evidence of Professor Dicks, the legal status of concubine was abolished in Mainland China with the enactment of the Civil Code, the relevant parts of which came into force on the 5 May 1931. This is nowhere expressly stated in the Code, which contains no reference to concubinage at all. But the Introduction to Books IV and V of the Civil Code by the Hon Foo Ping-Sheung, the Chairman of the Civil Codification Commission, published in Shanghai in 1931, contained the following passage in regard to concubinage:

"The enfranchisement of the woman, who is now placed on the same footing as the man, involves the disappearance of concubinage and calls for equality with man in the matter of conjugal fidelity. Illegitimate relation of one of the spouses, with a third person, gives to the other spouse the right to apply for a judicial divorce."

62. Professor Dicks testified that the Civil Code was intended to withdraw legal recognition from the institution of concubinage, and that it was no longer possible to argue that the legal status previously accorded to the concubine in traditional Chinese law and custom continued to exist on the Mainland after Book IV the Civil Code had come into force. He supported his conclusion by reference to the instructions for the enactment of the Civil Code which were transmitted by the Central Political Council of the Kuomintang to the Legislative Council of the Republic in July 1930 and a decision of the Supreme Court of the Republic of China given in 1934 which stated that

"Concubinage is no longer legitimately recognised by our law..."

63. The Civil Code replaced the institution of concubinage by the institution of "the household". Permanent members of a household were to be entitled to be maintained by the head of the household whether they consorted with him or not. Professor Dicks explained that this was intended (inter alia) to give women who had been concubines, or who became concubines in a purely factual sense in future, financial rights which would compensate them for the loss of the right of maintenance which was an incident of the status of concubine under Chinese customary law and custom previously in force.

64. It is clear from this that the abolition of the legal institution of concubinage was not prospective only but affected existing concubines also. Professor Dicks was much pressed in cross-examination to concede that after 1931 the concubine "reappeared in the guise of a member of the household", and that while she was no longer a concubine in name nothing had changed in fact. But Professor Dicks declined to make any such concession. He agreed only that her economic position, by which he clearly meant her rights to maintenance, remained much the same as before. But he insisted that her right to this derived solely from her membership of the household, a status not restricted to concubines, and not from the fact of concubinage. While he acknowledged that the practice of taking a concubine continued to be tolerated and accepted by Chinese society for a considerable period after 1931, he said that by providing an alternative legal mechanism for the protection of women who were concubines in a factual sense after 1931 the Civil Code recognised that the former legal status of the concubine and its incidents had been abolished.

65. This evidence was accepted by both courts below, and for my part I would unhesitatingly accept it also. The Civil Code was intended to emancipate women in the eyes of the law, even if it was impossible wholly to do so in fact.

(ii) In Hong Kong

66. Concubinage as a legal institution was abolished in Hong Kong with effect from October 1971 ("the appointed day") by s.5 of the Marriage Reform Ordinance, Cap. 178. Section 5(1) provided that as from that date

"no man may take a concubine and no woman may acquire the status of a concubine."

Section 5(2) expressly preserved the legal status and rights of concubines "lawfully taken" before the appointed day and their children whenever born.

67. The Ordinance formed part of a major reform of the law of marriage in Hong Kong carried through by the Marriage Reform Ordinance, the Marriage Ordinance, Cap. 181, the Married Persons Status Ordinance, Cap. 182, the Legitimacy Ordinance, Cap. 184, and the Intestates' Estates Ordinance, Cap. 73 (which was also brought into force on the appointed day). The Marriage Reform Ordinance continued to recognise the validity of Chinese customary marriages entered into in Hong Kong, but no longer permitted the husband to take a concubine. By virtue of s.4 every marriage, including a Chinese customary marriage, entered into in Hong Kong on or after the appointed day implied the voluntary union for life of one man with one woman to the exclusion of all others. The Ordinance did not define the term "concubine", which was well understood, though "for the avoidance of doubt" it provided that the expression "parties to a customary marriage" did not include a concubine.

The Intestates' Estates Ordinance

68. Section 2(2) of the Intestates' Estates Ordinance provides that the child or issue of any person shall include not only

"(a) a child of a valid marriage to which that person was a party"

but also, if that person is a female

"(b) ...a child of a valid marriage to which her last husband and another female were parties...."

Section 2(4) provides that

"References in this Ordinance to a brother or sister of a person mean a brother or sister who is a child of the same father as that person."

69. Subsection 2(a) needs no explanation. It has the effect of confining references to children and issue to legitimate children and issue; (adopted children are dealt with by subsection (3) and illegimate and legitimated children are dealt with elsewhere). But subsection 2(b) and subsection (4) are strange to an English lawyer. Subsection 2(b) equates stepchildren with children born of the same father; while subsection (4) equates brothers and sisters of the half blood with brothers and sisters of the whole blood provided that they share the same father. These provisions are not directly concerned with the children of concubines; they apply to the legitimate children of a man's later marriage after the dissolution of an earlier marriage by death or divorce. But they do not apply where it is the woman who has married again, and this betrays their purpose. A concubine's children were to be treated as legitimate and as full brothers and sisters of the children of the principal wife and other concubines and were to be entitled to share in their father's estate along with the other children. Section 5(2) of the Marriage Reform Ordinance preserved this state of affairs for the issue of existing concubines, and the legitimate children of a second or subsequent valid marriage could not sensibly be treated less favourably than the children of a concubine.

70. The Schedule modifies the main provisions of the Ordinance to accommodate the position of a concubine and her children. Paragraph 2 provides that:

"(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."

Thus a concubine is given rights of inheritance from the estate of her consort and her children are treated as the children of a valid marriage.

71. Section 13 is in the following terms:

"(1) The provisions of the Schedule shall have effect with regard to a union of concubinage entered before the appointed day under the Marriage Reform Ordinance.

(2) 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 day 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 outcome of this appeal turns on the true interpretation of s.13.

Application of the Ordinance

72. In accordance with normal legislative practice, there are no express territorial limits to the scope of the Ordinance. Section 12 merely states:

"This Ordinance shall have effect as regards any person dying intestate after the commencement of this Ordinance."

There is nothing in the Ordinance to limit its operation to cases where the deceased died or was domiciled at the date of his death in Hong Kong or where his property is located here. Understood literally, the Ordinance appears for example to govern the rights to succeed to landed property in France belonging to a Frenchman dying intestate in France and domiciled there. But of course it does not.

73. The reason it does not is that the Ordinance forms part of the domestic law of Hong Kong, and the courts of Hong Kong do not necessarily apply that law in cases which involve a foreign element. Before applying the Ordinance in such a case the court first considers whether the domestic law of Hong Kong is the applicable law as determined by the rules of Private International Law which also form part of the law of Hong Kong.

74. By those rules succession to moveable property is governed by the law of the place where the deceased was domiciled at the date of his death; and succession to immoveable property is governed by the law of the place where the property is situate. The present case involves (directly or indirectly) the rights of succession to the estates of two deceased persons each of whom died intestate and domiciled in Mainland China. Accordingly succession to moveable property forming part of either estate is by the law of Hong Kong governed by the law of Mainland China. The present appeal, however, is concerned with immoveable property situate in Hong Kong and is governed by the domestic law of Hong Kong, and the relevant law is contained in the Ordinance. So much is not in dispute.

The meaning of "union of concubinage" in s.13 of the Ordinance

75. It is common ground that the "union of concubinage" referred to in s.13(2) of the Ordinance need not have been entered into in Hong Kong, any more than the term "marriage" in the Ordinance means a marriage entered into in Hong Kong. The respondents contend that it means a valid union of concubinage lawfully entered into, whether in Hong Kong or elsewhere, just as "marriage" means a valid and lawful marriage. The appellants point to the presence of provisions in the Ordinance which have the effect of limiting "marriage" to a valid marriage, and the absence of any corresponding words in s.13 in relation to concubinage. They contend that it means either (i) a de facto concubinage, meaning "a concubinage in a purely factual sense" (as Professor Dicks described the concept) or (ii) a relationship having the legal incidents of concubinage though not so-called.

76. Both courts below rejected the appellants' contentions in this regard, and I am in no doubt that they were right to do so. In my opinion "union of concubinage" means one which is recognised by law, and by that I mean recognised by the law of Hong Kong. (I shall explain what I mean by "the law of Hong Kong" in this connection later.)

77. My reasons are as follows:

(1) It is settled law that, in the context of succession to property and in the absence of anything to the contrary, words like "children" and "issue" mean lawful children and issue, and "marriage" means a valid marriage. Prima facie, therefore, when used in a statute concerned with succession to property, the expression "union of concubinage", which is a matrimonial relationship, means a valid union of concubinage. The absence of express provision in the Ordinance to this effect can be balanced against the fact that the position of the concubine's consort is equated to that of a husband, and "husband" is defined by reference to a valid marriage.

(2) As Ribeiro JA observed in the Court of Appeal, s.13(2) does not purport to provide a comprehensive definition of "union of concubinage". As a definition the subsection would be circular, since it defines the expression by the expression to be defined. Moreover, as Mr Justice Bokhary PJ notes, the subsection does not restrict the expression to unions of concubinage entered into between persons of Chinese ethnic origin, yet it is not suggested that persons not of Chinese origin could enter into a union of concubinage within the meaning of the Ordinance. One essential qualification is missing.

(3) Prior to the appointed day concubinage was, as I have explained, a legal relationship which conferred on the concubine a status recognised by law. The Ordinance deliberately excluded unions of concubinage entered into after the appointed day. If the expression was intended to include relationships which were unions of concubinage in fact though not in law, there was no warrant for distinguishing between such unions entered into before and those entered into after the appointed day.

(4) The provisions of the Ordinance relating to concubines and their issue where the union of concubinage was entered into before the appointed day were clearly intended to implement the saving effect of s.5(2) of the Marriage Reform Ordinance; but this preserved the legal status and rights of concubines only if they were "lawfully taken" before the appointed day.

(5) A "de facto concubine", like "a common law wife" in contemporary (but historically inaccurate) English usage, is simply a mistress with no legal status. The one is not a concubine and the other is not a wife. A "de facto union of concubinage" could be (i) a union which persons not of Chinese origin had purported to enter into before the appointed day; (ii) a union which a man of Chinese origin had purported to enter into after having contracted a monogamous marriage while that marriage was still subsisting; or (iii) a union entered into after the appointed day. The third is expressly excluded, and the appellants do not contend that the first or second is included. In a purely domestic situation, therefore, it seems to be accepted that there is no warrant for reading the expression "union of concubinage" in anything other than its ordinary meaning as a union which is recognised by law. It is impossible to find any rationale for attributing a different meaning to the expression where the union in question was entered into abroad.

78. The appellants are on stronger ground jurisprudentially when they submit that the expression "union of concubinage" covers other relationships having the same legal incidents as concubinage though not so called. Like Shakespeare's rose, concubinage by any other name would be as sweet. Unhappily for the appellants, the argument fails on the evidence, since this shows that after 1931 a purported union of concubinage on the Mainland did not possess the legal incidents of concubinage. It was no longer a matrimonial relationship or one recognised by law at all. A relationship which is not recognised by law possesses no legal incidents of any kind.

What is the applicable law?

79. For the reasons I have given, I am satisfied that "union of concubinage" in the Ordinance means one which is recognised by the law of Hong Kong. But that does not necessarily mean by the domestic law of Hong Kong. The law of Hong Kong recognises unions of concubinage validly entered into abroad just as it recognises marriages validly entered into abroad.

80. What, then, is the applicable law by which the validity of the unions of concubinage in the present case is to be ascertained? In the Court of Appeal three different answers were given. Ribeiro JA held that it was the law of the parties' domicile when the respective unions were entered into. This was the law of Mainland China, and since both unions were entered into after 1931 at a time when it was no longer possible to enter into a union of concubinage having any legal consequences, he held that it was not a union of concubinage within the meaning of the Intestates' Estates Ordinance.

81. Rogers JA held that it was the law of the place where the parties resided when they entered into the union of concubinage in question. Since no formalities were required, he was willing to infer that, by continuing their relationship after they came to Hong Kong, Mr Sung and Madam Chu Lee had entered into a fresh union of concubinage which was valid by the domestic law of Hong Kong. He was unable to adopt a similar approach to the union of concubinage between Mr Sung and Madam Sung So Chun, because Madam Sung So Chun never became resident in Hong Kong.

82. Godfrey JA adopted an entirely different approach. He dismissed all reference to the law of the domicile or residence and, indeed, all reference to the rules of Private International Law. He held that both unions of concubinage were valid by what he described as the parties' personal law, that is to say by Chinese customary law, which depended on the ethnic origin of the parties and not their domicile or residence.

83. It is convenient to consider the approach of Godfrey JA first, for if this is accepted it is unnecessary to decide whether the applicable law is the law of the parties' domicile or the law of their residence.

Personal law

84. Primitive law was tribal. As Henry Maine observed, men were regarded by primitive society, not as individuals, but always as members of a particular group: see Ancient Law p.183. A man was born into his tribe or clan and from it acquired his religious beliefs and the rules and practices by which he lived. Primitive law was also religious law and based on tradition. The boundary between religious and secular laws and practices, if it existed at all, was seldom acknowledged. The laws were found in the tribe's holy books and were expounded to the populace by the priests. If the tribe conquered or moved into new territory, it took its traditional beliefs, customs and practices with it.

85. The growth of trade led to the increasing secularisation of the law and the recognition of a distinction between commercial law, which was secular, and family law, which continued to be based on traditional customs and practices. The development of the nation state, with its exclusive law-making power within the territorial limits of its sovereignty, made it necessary to accommodate the customs and practices of different ethnic or religious communities within its territory. This was often achieved by permitting each community to retain its own laws relating to personal status, such as its rules of marriage and divorce, while subjecting them as regards other matters to the general law of the land. For centuries Jews dwelling in Christian or Moslem countries were allowed to retain their own Jewish laws of marriage and divorce and to maintain their own religious courts to deal with questions of personal status. Even today, such questions are handled by religious courts throughout the Middle East, not only in Islamic countries but also in Israel.

86. But it is important to bear in mind that this was at the will of the ruling power. If in matters of personal status the position of Jews in Israel is governed by Jewish religious law and handled by separate religious courts, and the position of Moslems in Iraq is governed by Sharia law and handled by Islamic and not by the secular courts, this is because the national laws of Israel and Iraq so provide. While there might well be great practical difficulties in changing those laws, the difficulties are of a political and not a jurisprudential nature. What the sovereign power gives, it may take away.

87. This was well explained by Chitty J in Re Tootal's Trusts (1883) 23 Ch D 532 at pp.538-9:

"....but there is no authority that I am aware of in English law that an individual can become domiciled as a member of a community which is not the community possessing the supreme or sovereign territorial power. There may be, and indeed are, numerous examples of particular sects or communities residing within a territory governed by particular laws applicable to them specially. British India affords a familiar illustration of this proposition. But the special laws applicable to sects or communities are not laws of their own enactment, they are merely parts of the law of the governing community or supreme power.

It may well be that a Hindoo or Mussulman settling in British India, and attaching himself to his own religious sect there, would acquire an Anglo-Indian domicil, and by virtue of such domicil would enjoy the civil status as to marriage, inheritance, and the like accorded by the laws of British India to Hindoos or Mussulmans, and such civil status would differ materially from that of a European settling there and attaching himself to the British community. But the civil status of the Hindoo, the Mussulman, and the European would in each case be regulated by the law of the supreme territorial power".

88. This reasoning was expressly approved by the Privy Council in an appeal from Ceylon: see Abd-Ul-Messih v. Farra (1888) 13 AC 431 at pp.440-441, where the Board held that

"there is neither principle nor authority for holding that there is such a thing as domicil arising from society, and not from connection with a locality."

In other words, an individual's personal law, based on his membership of a particular community or sect, is not accorded to him directly by virtue of his membership, but indirectly by virtue of his domicile in a place where the sovereign power accords him the privilege of being governed by the law of his community or sect.

89. The process of ascertaining an individual's personal law may, therefore, involve two steps. It is described in Dicey & Morris The Conflict of Laws (13th ed.) at p.695:

"Many Asian and African countries have a system under which each religious or ethnic community is governed by its own law in matters of personal status. In India, for example, Hindus are governed by Hindu law and Muslims by Islamic law. This means that, for a court in England, the process of ascertaining the personal law of a party to a marriage may involve two steps: first, his domicile must be determined; then, if he is domiciled in a country which adopts this system, the court must ascertain to which community he belongs."

Application to Hong Kong

90. It was a basic principle of British imperial policy to bring the benefits of English law to Britain's colonial subjects, while at the same time disturbing their traditional beliefs and practices as little as possible. This policy was not based on altruism but on practical considerations. British Governments were anxious to avoid causing unnecessary civil unrest among their subject peoples, and nothing could be more calculated to provoke unrest than interference with local customs and traditions, particularly in relation to marriage and land holding. This was the background to Captain Elliott's Proclamation.

91. Hong Kong was a colony obtained by cession from China in 1841. By a Proclamation made on 1 February 1841 and addressed to "the Chinese inhabitants of Hong Kong", they were told that they were "secured in the free exercise of their religious rites, ceremonies, and social customs", and that they would henceforth "be governed, pending Her Majesty's pleasure, according to the laws, customs, and usages of the Chinese (every description of torture excepted) by the elders of the villages, subject to the control of a British magistrate." On the following day a second Proclamation, addressed to the British subjects living in Hong Kong, announced that "pending Her Majesty's further pleasure, the natives of the island of Hong Kong, and all natives of China thereto resorting, shall be governed according to the laws and customs of China, every description of torture excepted."

92. There was some discussion whether the expression "the Chinese inhabitants of Hong Kong" in the first of the two Proclamations meant persons domiciled in Hong Kong or merely resident here. I do not think that it matters, though I am prepared to assume that it meant the latter. This derives support from the terms of the second proclamation, which refers to "the natives of the island Hong Kong and all natives of China there resorting."

93. Two points of more significance, however, should be made in relation to these Proclamations. First, they were made by the power which had assumed sovereignty over the territory of Hong Kong and were an exercise of its sovereign power to legislate for the territory. Secondly, the right of the imperial power to modify or withdraw the rights which it had conceded was expressly reserved.

94. The Proclamations thus had the effect of incorporating Chinese custom and practice into the domestic law of Hong Kong, enacted by the power exercising territorial sovereignty over the island and capable of being modified or revoked by the same power. Henceforth the domestic law of Hong Kong had a dual character, part of which applied exclusively to persons of Chinese ethnic origin.

95. But they did not affect the application of a foreign law where that was the applicable law under the rules of Hong Kong Private International Law. Before a Chinese inhabitant of Hong Kong could claim the benefit of Chinese customary law, he would have to establish that the question in issue fell to be decided in accordance with the domestic law of Hong Kong. If it fell to be decided by reference to a foreign law, the dual nature of our domestic law was irrelevant.

96. As I have already explained, the present case is concerned with succession to immovable property in Hong Kong. Under the ordinary rules of Private International Law, it falls to be decided in accordance with the domestic law of Hong Kong. That takes one to the Intestates' Estates Ordinance, and raises the question whether the two unions of concubinage were valid and lawful unions. Both were entered into abroad by persons domiciled abroad. The question, therefore, is concerned not with the validity of a domestic matrimonial relationship but with the recognition of a foreign one. As we have seen, such a question must be decided according to the law of some locality, and only

if that law adopts a plural system by the law of a religious sect or ethnic group.

97. Accordingly, I reject Godfrey JA's approach.

Domicile or residence

98. Questions of status are normally governed by the law of the domicile. The essential validity of a marriage, for example, which depends on the parties' capacity to marry, is governed by the law of their pre-nuptial domicile. There are exceptions to the rule, usually dictated by practical considerations, as for example in the recognition of foreign divorces.

99. The formal validity of a marriage is governed by the law of the place where the marriage took place. This law also dictates the incidents of the marriage, and leaves it to the lex fori to determine whether the marriage is monogamous or polygamous: see Dicey & Morris op. cit. at p.695 citing Lee v. Lau [1967] P 14; and see Baindail v. Baindail [1946] P 122 CA.

100. The character of a subsisting marriage may be altered in two ways: by a change in the law of the country where the marriage was celebrated or by a subsequent change in the husband's domicile: see R v. Sagoo [1975] QB 885. A-G of Ceylon v. Reid [1965] AC 720 Lord Upjohn "noted with interest" the observations of Sir Jocelyn Simon P in Cheni (orse Rodriguez) v. Cheni [1965] P 85 at p.90 that there were no marriages which were not potentially polygamous, in the sense that they may be rendered so by a change of domicile and religion on the part of the spouses.

101. A union of concubinage was a matrimonial relationship which affected the status of the parties themselves and others, including that of the principal wife and her children. Chaos would ensue if the essential and formal validity of such a union were governed by different laws from those which would govern the essential and formal validity of a foreign marriage. Moreover, once a marriage has become monogamous by that law, it is treated as if it were monogamous from its inception. While such a marriage may become polygamous by a change in the husband's domicile, a mere change of his residence is not enough.

102. Accordingly, I reject the approach taken by Rogers JA that Mr Sung's marriage, originally polygamous, became monogamous in 1931. He purported to enter into two unions of concubinage after 1931 while still domiciled on the Mainland of China. Neither of those unions was lawful or recognised at any time by the law of the Mainland. Mr Sung remained domiciled on the Mainland of China throughout his life, and he could not change Madam Sung's status or the monogamous character of his marriage merely by coming to reside in Hong Kong. Even if he had purported to enter into a fresh union of concubinage in Hong Kong prior to the appointed day, the law of Hong Kong would have referred the validity of that union to the law of his domicile.

Conclusion

103. I too would dismiss the appeal.

Chief Justice Li:

104. The Court unanimously dismisses this appeal with costs and orders legal aid taxation of both parties' costs.