YE JINXIANG v. KAM PING KWONG

HCAP 25/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 25 OF 2012

____________

____________

_____________

D E C I S I O N

_____________

1. In question is the estate of Kan Hak Ming, deceased (“Madam Kan”). The plaintiff (“Ye”) is the son born out of the marriage between Yip Ching Bong (“the Father”) and Wong Fuk (“the Mother”) in the Mainland, now both deceased. Madam Kan is said to be the concubine of the Father contracted in 1968 in Hong Kong. She passed away in 2005. Ye claims to be the son of the common family of Madam Kan and the Father; and is entitled to share in her estate.

2. The defendant (“Kam”) denies the alleged concubinage.  Claiming to be the younger brother of Madam Kan, Kam claims to be entitled to share in the estate of Madam Kan and grant of administration.  Contrary to that, Ye says Kam is not the brother of Madam Kan but a mere impersonator.

3. Kam took out a summons for summary determination pursuant to O.14A of the Rules of the High Court, Cap.4.  Ye responded by a summons for striking out Kam’s case pursuant to O.18, r.19.

BACKGROUND

4. The Father was born in the Mainland in 1913.  In 1927 and at the age of 14, he came to reside and work in Hong Kong.  5 years later, the Father went back to the Mainland to marry the Mother.  The marriage took place on 5 September 1932.  Ye and his 2 siblings were later born out of such marriage.  In 1951, the Father came to Hong Kong again, this time bringing with him Ye’s eldest brother (now deceased).  They stayed here thereafter whereas Ye and his younger sister remained in the Mainland.  The Father passed away in Hong Kong in 1992.  The Mother passed away in the Mainland in 1999.

5. According to Ye, the Father took Madam Kan as concubine on 13 August 1968 in Hong Kong at the suggestion of his grandmother (the Father’s mother) and with the acceptance by the Mother and their children including Ye[1]. The Father and Madam Kan had since continued to live in Hong Kong.  The relationship between Madam Kan and the rest of the Father’s family is said to have been close and intimate throughout the years.  Details of that are particularised in the pleading.  Among other things, the Father named Madam Kan as one of the beneficiaries in her capacity as concubine in his will.  In her own will, Madam Kan also made specific bequest in favour of Ye as her son.  As mentioned, Madam Kan passed away in 2005.

6. Apparently in May 2010, Kam filed an application for grant in respect of Madam Kan’s estate (HCAG 4883/2010).  Ye then entered a caveat (HCCA 2188/2010), claiming to be the de facto and therefore de jure child of Madam Kan as his stepmother.  Such caveat was eventually withdrawn by consent in the same year.

7. By mid-2012, Kam had yet to obtain the grant. In July 2012, Ye again entered a caveat (HCCA 2837/2012), this time claiming to be the lawful son of the common family of the Father, the Mother and Madam Kan since 1968.  Ye took out an application for various relief, including one for the outstanding grant.  Not surprisingly, the court dismissed such an application with directions for the commencement of a probate action to resolve the dispute.  Hence the present action.

8. Ye’s case[2] is this:

(1)  By reason of the concubinage between the Father and Madam Kan, Ye became the lawful son of the common family and one of those entitled to share in the estate of Madam Kan.

(2)  Ye is a child or issue of Madam Kan within the definition and paragraph 2 of Schedule 1 of the Intestates’ Estates Ordinance, Cap 73 (“IEO”)[3] and is entitled to share in the estate of Madam Kan.

(3)  Kam impersonates as Kan’s brother.  Alternatively, even assuming Kam is the brother of Madam Kan, he has no right to share in the estate of Madam Kam by reason of the fact that Madam Kan leaves issues pursuant to sections 2, 4(5) and paragraph 2 of Schedule 1 of the IEO.

9. In defence, Kam essentially denies the alleged concubinage and Ye’s above case.

10. On 6 June 2013, Kam took out the O.14A summons, setting out the following question for determination:

“whether the alleged union of concubinage between the late Yip Ching Bong (葉鎮邦) and Kan Hak Ming (甘克明), the Deceased, entered in 1968 during the subsistence of the marriage between the former and the late Madam Wong Fuk Miu (王服妹) also known as Wong Fuk (王復), which was entered in 1932 and governed by the law of the People’s Republic of China, is void and unlawful.”

11. If the answer to the question is in the affirmative, Kam asks for the dismissal of the present action.

12. On 29 July 2013, Ye took out his summons seeking to strike out Kam’s defence and counterclaim on the ground that it is a sham; tends to embarrass a fair trial; or amounts to an abuse of process of the court.

KAM’S SUMMONS

13. O.14A, r.1 provides that the court may upon application or of its own motion determine any question of law or construction of document arising in any cause or matter where it appears that such question is suitable for determination without a full trial (r.1(1)(a)); and such determination will finally determine the entire cause or matter or any claim or issue therein (r.1(1)(b)).

14. What Kam seeks to argue is that even assuming that the concubinage was contracted in Hong Kong 1968 (which is disputed), it was nevertheless void and unlawful at the time because of the applicable Mainland law.  In such event, Ye would have no locus as a party to the present action to challenge Kam’s case.

15. Ye questions the appropriateness of invoking O.14A in the circumstances of the present case.

16. The question posed for determination strictly is not based on Kam’s pleaded case.  Ye’s pleaded case is summarised above, which Kam denies[4]. Kam avers that Madam Kan was never married nor had ever been a concubine to any person in her natural life.  Madam Kan had no children in her lifetime and left no issue on her death[5]. There is no alternative case on the validity of the concubinage, if in fact contracted in 1968 in Hong Kong as alleged.

17. The lack of such alternative plea is material. The validity of the concubinage, if in fact contracted, is a question of mixed law and fact.  That the validity of the concubinage, according to Kam, hinges upon the applicability and application of the Mainland marriage law to the Father in 1968 when the concubinage was contracted adds another dimension to the dispute.  Such foreign law must be properly pleaded with necessary particulars.  Strictly the question now posed for determination is formulated outside Kam’s pleading.

18. Pleading aside, issues of foreign law, as those of fact, even if pleaded, are inappropriate for determination under O.14A: see Nativitat v Nativitat [2012] 3 HKLRD 747. The applicability and application of the Mainland law in the determination of the validity of the alleged concubinage in 1968 is very much in dispute.  Simply by considering the opinion of the Mainland law experts engaged by the parties, one would be able to see their difference in emphasis.

19. It has also been held that this is not merely a question of satisfaction of the requirements under O.14A, r.1(1)(a) and (b) mentioned above.  Rather, the court must have all the necessary facts and matters before it in order to determine the question of law: see Rockwin Enterprises Ltd v Shui Ye Ltd & Ors [2003] 3 HKLRD 174 (at §20).  One needs no reminder that most of the material factual allegations of Ye are denied by Kam.  Kam poses the question for determination on the basis of assumed facts.

20. The tactic behind Kam’s application is that if Ye’s entitlement could be rejected summarily as a matter of law, even assuming there was in fact a concubinage between the Father and Madam Kan, Ye would lack the locus to remain as a party in this action.  As such, whether and how Kam proceed to establish his entitlement in his capacity as the natural brother of Kan would be something that Ye would not be in a position to challenge.

21. I doubt if this is the right approach of a party in utilising the O.14A procedure in the circumstances of a case like the present one.  Here the court is not considering Ye’s case on the court’s own motion but upon Kam’s application on the basis of his contentions and, more importantly, his evidence, including expert evidence, when the identity and thus locus of Kam to challenge his case is equally in serious dispute.

22. It should be noted that Kam does not say that the answer to the question posed, one way or the other, would determine the outcome of the case.  It just could; and for Kam’s purpose, this happens only if the answer is that the concubinage was void and unlawful.  If Kam fails on the O.14A application, he would certainly revert to his pleaded case, namely that Ye is put to strict proof of the concubinage, which is merely an assumed fact for the purpose of his application.

23. This, I think, highlights the significance of first, the necessary common factual basis for the question(s) to be determined under O.14A; and second, the residual discretion of the court to decide whether it is appropriate to embark on determination of the question(s) in the circumstances of the case: see Rockwin Enterprises Ltd (at §§20-23). Where the issues of fact are interwoven with the legal issues raised, it will be undesirable for the court to split the legal and factual determination: see Shell Hong Kong Ltd v Yung Wai Man Kiu Yip Co Ltd (2003) HKCFAR 222.

24. Considering the arguments presented with reference to the expert evidence and the case law, one would see that the path to an answer to the question posed for determination is not straightforward either.  To expedite the analysis, I propose to proceed on the following assumed basis, which is advocated by Kam:

(1)  After the introduction of the Civil Code of the Republic of China in force in 1932, marriage in the Mainland should be monogamous[6].

(2)  The marriage between the Father and the Mother in 1932 in the Mainland, according to the Civil Code, was monogamous[7].

(3)  That the marriage was monogamous did not change after marriage law of the People’s Republic of China[8] came into force in 1953.

25. The Father and Madam Kan entered into the concubinage union in Hong Kong in 1968 prior to the abolition of concubinage in October 1971.  The validity of the concubinage depends on whether the Father had the capacity to enter into the union, in light of the abovementioned background.  This is the major dispute.

26. Ye’s position is that the Hong Kong court will look at the law of the ante-nuptial domicile of the parties to the union, which determines their personal law in the determination of the capacity of the parties to the union and the validity of the union.  Ye argues that by adopting Hong Kong as his domicile, where concubinage was recognised prior to October 1971, the Father in 1968 had the capacity to enter into the concubinage union with Madam Kan in Hong Kong, notwithstanding the monogamous marriage in the Mainland in 1932.  Authoritative support of that comes from the Court of Final Appeal’s judgment in Suen Toi Lee v Yau Yee Ping (2001) 4 HKCFAR 474. 

27. Kam disagrees.  Among the cases he cited in support, the one closest to the present case in terms of facts is In the estate of Wong Wong, HCAG 1797/1998 (24 July 1998, per Yam J), which Kam also heavily relies on.  It was an ex parte non-contentious application for grant of letters of administration.  There the marriage between the husband (deceased) and wife was solemnised and registered under the laws of the Republic of China in 1944.  They then came to Hong Kong and acquired Hong Kong as their domicile of choice.  In 1958, the husband entered into a concubinage union with another woman in Hong Kong, who was accepted by the wife and the family.

28. In Wong Wong, it was accepted that the marriage in the Mainland in 1944 was monogamous.  But it was argued that as a result of the change in domicile, it brought about change of capacity; and the husband’s customary law capacity to take concubines was revived after his acquiring a domicile in Hong Kong.  Similar argument was proposed in Leonard Pegg, Family Law in Hong Kong (2^nd ed) at p.28, citing Ali v Ali[9] and Cheni v Cheni[10].  In Cheni, Sir Jocelyn Simon P said (obiter) 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.

29. Yam J rejected the argument.  His lordship held that even the law of Hong Kong in 1954 would not allow a person of Chinese origin who had entered into a monogamous marriage, whether in Hong Kong or elsewhere, to take a concubine.  The right to take a concubine would only exist when the first marriage was a polygamous one according to Chinese customary law; and the personal law in Hong Kong was not available to the husband to enable him to enter into a concubinage union when his original marriage was a monogamous one.  His lordship then referred to Wong Kam Ying v Man Chi Tai [1967] HKLR 201, where the court held that the husband’s union of concubinage in Hong Kong 1957 subsequent to the first marriage held at a Registrar’s Office in Hong Kong (which was monogamous) was bigamous and void under the Hong Kong law.

30. The decision of the court in Wong Kam Ying, in my view, should not be surprising.  That was a situation of a registered marriage and a subsequent concubinage both in Hong Kong, which did not seem to involve the issue of domicile of the parties at different relevant times, let alone change.  The scenario materially differed from that of Wong Wong and the present case.

31. In Wong Wong, Yam J cited Pegg (above) where the author contended that as Hong Kong provided in its laws for both monogamous and polygamous marriages to be celebrated in the territory prior to 7 October 1971, the marriage in the Mainland would be treated by the courts in Hong Kong as monogamous for all purposes and be incapable of being turned into a polygamous union by a change of domicile.  His lordship accepted that as a correct statement of the legal position.  Does that therefore provide the answer to the question in hands in the present case?

32. That brings us back to the more recent judgment of Bokhary PJ (as he then was)[11] and Lord Millett NPJ in Suen Toi Lee (above).  In that case, the husband married his wife in the Mainland in 1929.  Expert evidence was accepted during trial that as a result of the operation of the Civil Code in 1932, the originally potentially polygamous marriage became monogamous.  The husband purported to take 2 concubines in the Mainland in 1933 and 1945 respectively.  He came to Hong Kong with one of the purported concubines in 1952.  It was in such factual circumstances that his lordships had the following to say about the capacity of the parties to enter into such concubinage union.

33. After holding that the essential validity of the marriage depends on the capacity under the law of the parties’ pre-nuptial domicile (as mentioned above), Bokhary PJ continued (at §41) to hold that it is only if the parties 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.  However, throughout the parties in that case were domiciled in the Mainland where concubinage had been abolished by the time when 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 became the husband’s concubines under Chinese law and custom.

34. Lord Millett NPJ (at §§98-99) stated the same principle that the essential validity of a marriage, which depends on the parties’ capacity to marry, is governed by the law of their pre-nuptial domicile.  His lordship continued (at §100) to hold that 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.  His lordship specifically referred to AG of Ceylon v Reid [1965] AC 720 where Lord Upjoin noted with interest the obiter of Sir Jocelyn Simon P in Cheni mentioned above.  His lordship continued (at §§101-102) to say[12] that mere change of residence is insufficient; and therefore even if the husband had purported to enter into a fresh union of concubinage in Hong Kong prior to 1971, the law of Hong Kong would have referred the validity of that union to the law of his domicile.

35. In Suen Toi Lee, the fact was that the concubinage union took place well before the husband came to acquire domicile in Hong Kong.  There was therefore no factual issue of change of capacity to take concubine as a result of change of domicile to Hong Kong.  Nevertheless, that did not prevent the members of the Court of Final Appeal from stating the legal position as they did.  They were also aware of a subsisting monogamous marriage in the Mainland at the time of the concubinage unions, when they nevertheless considered that had the husband and concubines been domiciled in Hong Kong when they entered into their unions, the law here would have operated to give them capacity to do so according to Chinese law and custom.  In the premises, whether this is the correct legal position as opposed to that expressed in Wong Wong is clearly arguable.

36. It should be noted that neither expert engaged by the parties respectively has expressed any views on this, presumably because they are supposed to give evidence on the Mainland law, and hence how the Mainland court views such a matter concerning its subjects within its territorial jurisdiction.  This however does not answer the question which concerns the Father and Madam Kan, both domiciled in Hong Kong at the time of the concubinage union, and which is very much a question for the court here according to the law of their domicile.

37. As mentioned, the above is merely an expedited analysis of a major argument on the basis of the assumed facts advocated by Kam.  The other arguments advanced on behalf of Ye[13] and their being interwoven with the facts, which are in serious dispute, constitute additional dimensions to the consideration; and cause me to conclude that the present case is inappropriate for summary disposal under O.14A.

YE’S SUMMONS

38. As mentioned, the ground for striking out Kam’s defence and counterclaim is a sham and that it causes embarrassment to the fair trial of the action and/or is an abuse of process of the court.  For the same reason, Kam has no locus standi and interest in the estate of Kan.

39. It is trite that striking out will be ordered only in a clear and obvious case.  For all the grounds under O.18, r.19 of the RHC relied on, Ye essentially has one contention, namely, Kam is an impersonator as the brother of Madam Kan.  Indeed by way of affidavit, Ye set out various features of the evidence adduced by Kam that are said to be incredible and incoherent.

40. Highlighting the factual dispute and incredibility of Kam’s evidence do not suffice, as this is not supposed to be a trial of the factual dispute on affidavits.  The striking out application, particularly in view of the serious nature of Ye’s contention against Kam, is inappropriate.  Accordingly the summons must be dismissed.

ORDER

41. Both summonses are dismissed.

42. Ye should have his costs of and occasioned by Kam’s summons; while Kam should have his costs of and occasioned by Ye’s summons (which does not include costs of the hearing[14]).  All costs shall be taxed, if not agreed, with certificate for counsel.  Kam’s own costs shall be taxed in accordance with legal aid regulations.  The costs order is nisi; and shall become absolute in the absence of application in 14 days for variation.

[1] Who then was in his early teen age.

[2] §§8-11 of the amended statement of claim.

[3] §2 of Schedule 1 of the IEO provides that (i) a child of a union of concubinage shall be regard for the purposes of the Ordinance as the child of a valid marriage; and (ii) “husband” shall be construed as including a reference to the male partner of a union of concubinage.  Section 13 defines a union of concubinage as one 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 recognized as such by his family generally.

[4] §§9-12 of the amended defence and counterclaim.

[5] §5(2) of the amended dfence and counterclaim.

[6] Though in reality, concubinage continued to exist; and, Ye argues, marriage continued to be potentially polygamous.

[7] Though the ceremony was said to follow potentially polygamous customary rites.  It should be noted that contrary to Kam’s suggestion, what Ye stated in his further and better particulars of paragraph 3 of the amended statement of claim (13 March 2013) is arguably not an unequivocal, if at all, admission that the 1932 marriage was a registered marriage under the Civil Code.

[8] Though the law did not penalize concubinage.  Again what Ye stated in his further and better particulars of paragraph 3 of the amended statement of claim (13 March 2013)  is arguably a mere contention that the requirements of a valid marriage were complied with in 1932, which was duly recorded and recognized under the marriage law of the People’s Republic of China since 1953.

[9] (1968) P 564, where it was held that a change of domicile by the husband in India to England resulted in him losing his capacity to contract further marriages during the subsistence of the first one.

[10] (1951) P 124.

[11] With whom Li CJ (as he then was), Chan PJ (as he then was) and Litton NPJ agreed.

[12] In rejecting the approach taken by Rogers JA (as then was) in the Court of Appeal decision of that case, namely, in deciding the parties’ capacity by reference to the law of their place of residence (instead of domicile).

[13] As set out in counsel’s skeleton argument.

[14] Notwithstanding the substantial written submissions, no time was actually spent during the hearing on arguing Ye’s summons.