FUNG SING WAI v. CHOW CHIU WAN AND OTHERS

CACV 245/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 245 OF 2015

(ON APPEAL FROM HCAP 17 OF 2011)

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J U D G M E N T

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Hon Yuen JA:

1.  This is an appeal from a Judgment of Chung J given on 25 September 2015 (“the Judgment”) in a probate action concerning the estate of Fung Wing Yuen (“the Deceased”) in which he ordered (amongst other things) that Letters of Administration to the Deceased’s estate which had been granted to the 1^st defendant Chow Chiu Wan (“Madam Chow”) be revoked, and that they be granted to the plaintiff who is the Deceased’s son by Madam Lee Sau Ying (“Madam Lee”).

The Parties

2.1. The Deceased and Madam Lee had four children (two sons and two daughters) viz. the plaintiff (born in 1948), the 2^nd defendant (born in 1951), the 3^rd defendant (born in 1954) and the 4^th defendant (born in 1958).

2.2. The Deceased and Madam Chow also had four children (also two sons and two daughters) viz. the 5^th defendant (born in 1953), the 6^th defendant (born in 1954), the 7^th defendant (born in 1962) and the 8^th defendant (born in 1964). 

Background

3.  The Deceased was born in China in 1927 and stayed there until 1961.  He was domiciled in China throughout this period.

4.1. In May 1931, the Civil Code of the Republic of China (“the Civil Code”) took effect.  Book IV contained provisions on Family Law.  Chapter II of that Book contained provisions on Marriage.  In that Chapter, Article 985 provided:

“a person who has a spouse may not contract another marriage”¹.

4.2. I pause here to note that in Suen Toi Lee v Yau Yee Ping (2001) 4 HKCFAR 474, where the male party entered into a marriage in 1929, and later purportedly entered into two unions of concubinage in 1933 and 1945, the CFA held (para. 9) that Article 985 had the effect of abolishing concubinage. Consequently the parties, who were all domiciled in China, had no capacity to enter into such unions.

5.1. However in the same Chapter, Article 992 provided:

“where a marriage is concluded contrary to the provision of Article 985, an interested party may apply to the Court for its annulment; but such application may not be made after the dissolution of the former marriage”².

5.2. It is notable that this Article was not referred to or discussed in the judgments at any level of court in Suen v Yau.  I will discuss this later in this Judgment³.    

6.  Also in 1931, the Chinese Soviet Republic Marriage Law⁴, which was declared by the Chinese Communist Party to take effect on 1 December 1931, provided in Article 2 that monogamy shall be implemented and that polygamy shall be prohibited.⁵  This was amended in 1934⁶ to add the prohibition of polyandry⁷.

7.  Returning to the Deceased’s personal situation, by 1947 he was aged 20 and living in Guangzhou with his mother (his father having died), his younger brother and two younger sisters, one being Fung Ngan Nui (“Madam Fung”).  The Deceased worked in the Chinese medicine business which his father had set up. 

Madam Lee

8.  In 1947, the Deceased married Madam Lee.  The plaintiff’s case was that this was a “Chinese modern marriage”⁸. The Deceased’s sister Madam Fung testified in detail about the wedding ceremony which she attended.  By the end of the trial, the validity of this marriage was no longer disputed⁹.

9.  The Deceased’s mother died soon after his marriage to Madam Lee. 

Events in China

10.  On 22 February 1949, the Central Committee of the Chinese Communist Party published a directive abrogating the Civil Code¹⁰. 

11.  On 1 October 1949, the People’s Republic of China was founded. On 15 October, Guangzhou was liberated¹¹.

Madam Chow

12.1. Madam Chow was born in 1932.  She alleged that she met the Deceased in 1949 and shortly afterwards in December she entered into a marriage with him.

12.2. It is her pleaded case that:

“the marriage the Deceased and Madam Chow entered into took place before the Marriage Law 1950 of the People’s Republic of China came into effect on 1^st May 1950. The marriage between the Deceased and Madam Chow in accordance with local custom was lawfully recognized in the Mainland China at the material time”¹². (Emphasis added).

I will discuss the meaning of this pleading later in this Judgment¹³.

12.3. Madam Chow’s case was that they held a “simple marriage ceremony” (“the alleged marriage ceremony”) at a dinner at a restaurant in Guangzhou.  Her brother Chow Pui Kwan (“Mr Chow”) and her friend Lau Yuen Fong (“Madam Lau”) said at the trial that they attended the dinner. 

12.4. The plaintiff challenged the allegation that a marriage ceremony ever took place. At that time the PRC had been established, the Communist Party had liberated Guangzhou, and the Deceased was already a married man with a son (the plaintiff).  It was common ground that neither Madam Fung nor her other siblings (who were living with the Deceased) attended the alleged dinner. Madam Fung testified that her brother the Deceased and Madam Chow were never married.  She said she first met Madam Chow only after the latter had children (ie after 1953 at the earliest)¹⁴.

12.5. Madam Chow alleged that the dinner was attended by a close friend of the Deceased’s mother and her husband (Mr and Mrs Leung) as the Deceased’s “elders”.  However Madam Lau, who said Madam Chow had invited her to a “wedding dinner” 婚宴, said that Madam Chow introduced two men to her as “elderly people” 老人家 and Madam Lau did not know if any “elders”長輩 of the Deceased were present¹⁵. That was inconsistent with the couple (Mr and Mrs Leung) being the “elders” referred to by Madam Chow.  Nor could it be said that Mr Leung and Mr Chow were the two male “elderly people”, as Mr Chow was only in his 20’s.

12.6. Further there was a remarkable absence of evidence that the Deceased and Madam Chow entered into a marital union during the dinner.  There was no evidence, for instance, that the Deceased and Madam Chow wore wedding clothes, or badges identifying them as “groom” and “bride”.  There was no evidence of the holding of a ceremony, however simple, during the dinner, such as an announcement of marriage, or the toasting of guests by the Deceased and Madam Chow.

Events after 1949

13.  It is clear however that after 1949, the Deceased sometimes stayed with Madam Lee and her children at the family residence in Guangzhou, and sometimes with Madam Chow and her children at another place in the city.  He also sometimes traveled outside the city for business. 

14.1. In a number of official documents¹⁶ in the 1950’s, the Deceased named Madam Lee as his wife but there was no similar evidence for Madam Chow.  When Madam Chow was cross-examined as to why the Deceased did not acknowledge her as his wife but had acknowledged the 6^th defendant (Madam Chow’s daughter) as his daughter in official documents, Madam Chow’s answer was that she did not know what he had wanted to do¹⁷.

14.2.           At trial Madam Chow agreed that she had not been to the Deceased’s family residence before December 1949¹⁸, nor did she see Madam Fung or other members of the Deceased’s family thereafter, even at traditional times for family gatherings such as the New Year and Mid-Autumn Festival during the 12 years between 1949 and 1961¹⁹.

15.  In 1961 the Deceased, who had been subjected to “reform through labour” by the authorities, escaped to Hong Kong.  He stayed in Hong Kong for the rest of his life.  In time, both Madam Lee and Madam Chow’s families settled in Hong Kong. At one stage, they lived under one roof with the Deceased, apparently as separate households, until Madam Lee and her children moved out in 1970.  The Deceased stayed with Madam Chow until he was moved to an old people’s home after suffering a stroke.  

16.  It is clear from the facts recounted above that as far as the Deceased’s domicile was concerned, whether or not he acquired a domicile of choice in Hong Kong after 1961, his antenuptial domicile²⁰ (whether one is considering the marriage to Madam Lee in 1947 or the alleged marriage to Madam Chow in 1949) was his domicile of origin, which was China.

17.  Madam Lee died in 1988. 

18.  The Deceased died intestate in March 2008, aged 81.

19.  I should also record that since the date of the Judgment, the 3^rd defendant and the 5^th defendant have also died.  Pursuant to summonses which were directed to be heard immediately before this appeal, we made orders under O.15 r. 15 RHC for the appeal to continue in the absence of representatives of the respective estates of the 3^rd and 5^th defendants. The 3^rd defendant’s son Fung Ka Chun was present in court and did not object to the order.  The 5^th defendant’s son Fung Ka Po was served but did not appear.    

Events leading to proceedings

20.1. The probate proceedings arose as a result of Madam Chow’s application for letters of administration for the Deceased’s estate. 

20.2. In support of her application, she made an affirmation on 30 July 2008, the material parts of which were as follows:

(1) she was the only “lawful kit-fat widow and relict” of the Deceased;

(2) the Deceased was never married to anyone other than herself;

(3) her children were the only lawful and natural children of the Deceased;

(4) her children were the only lawful and natural issue of the Deceased surviving;

(5) the Deceased had no other children or issue during the whole of his lifetime;

(6) she and her children were the only persons entitled to a share to the Deceased’s estate.

20.3. On the basis of that affirmation, Letters of Administration to the Deceased’s estate were granted to Madam Chow on 16 September 2008.

Probate action

21.1. This led ultimately to the probate action which was commenced in 2011.  The plaintiff sought revocation of the grant of Letters of Administration to Madam Chow and the grant of Letters of Administration to himself, with consequential orders. 

21.2. Madam Chow and her children counterclaimed for declarations that:

(a) the Deceased and she were lawfully married;

(b) she is the only lawful wife of the Deceased;

(ba) alternatively to (b), she is the only surviving lawful wife of the Deceased; and

(c) her children are the Deceased’s lawful children.

Trial

22.  The action was heard in September 2015.  There was a 4-day trial in which a number of witnesses (including expert witnesses on Chinese law²¹) gave evidence. 

23.  In respect of the issue of the Deceased’s marriage to Madam Lee, the lay witnesses were Madam Fung and the plaintiff, who gave evidence relating to the contracting and the continuation (until Madam Lee’s death) of the Deceased’s marriage to Madam Lee.  As mentioned earlier in this Judgment, by the end of the trial Madam Chow and her children no longer disputed the validity of the Deceased’s marriage to Madam Lee.  Consequently, the declaration set out at para. 21.2 (b) above was no longer pursued, leaving the alternative set out at para.21.2 (ba) above.

Issue

24.1. So essentially there remained only one issue for decision by the learned judge – whether there was a valid marriage between the Deceased and Madam Chow.  If there was, then she would be the only surviving wife of the Deceased, and entitled as such to the share of his estate prescribed under s.4(3) of the Intestates’ Estates Ordinance Cap.73.   

24.2. That issue involved consideration of two questions: had Madam Chow proved the

(a) formal validity and

(b) essential validity

of her alleged marriage to the Deceased?

24.3. Formal validity involves the formalities required by the lex loci celebrationis, ie the law of the place where the union was entered into, ie the PRC.²²  To prove formal validity of a foreign marriage, there must be:

(a) evidence of the acts constituting the celebration of the ceremony, and

(b) evidence that that celebration accorded with the formalities that are required (or at least recognised as sufficient) by the law of the country where the ceremony took place.

24.4. Essential validity involves capacity under the lex domicilii, ie the law of the parties’ place of antenuptial domicile, ie the PRC.²³  The pertinent question in the present case is whether the Deceased had capacity to marry Madam Chow in December 1949, given that:

- he was already married to Madam Lee,

- the Civil Code had been abrogated by the PRC which had been established, and

- the PRC Marriage Law was not implemented until May the following year.

Judgment

25.1. For reasons set out in his Judgment, the judge found:

(1) some of Madam Chow’s evidence regarding her alleged marriage to be inherently implausible²⁴, and as for the witnesses who deposed to her alleged marriage ceremony, Mr Chow had shown himself to be a highly unreliable witness such that no weight could be placed on his testimony⁵², and Madam Lau’s testimony was not reliable either²⁶;

(2) even if the testimony of Madam Chow and Madam Lau had been found to be truthful, there was insufficient evidence of what had taken place at the purported ceremony²⁷ and no satisfactory evidence that it was in accordance with “Chinese and/or local customs”²⁸;

(3) although it was unnecessary to make a finding on this aspect,

(a) the consistent approach of the Chinese Communist Party was that polygamous marriages²⁹ should not be given legal validity;

(b) after the implementation of the PRC Marriage Law in 1950, various answers and principles expressed by the Legal System Committee of the Central People’s Government and the Ministry of Justice provided directives and guidelines for implementation of that law, with a view to ameliorating its impact, but they were not intended to change it³⁰.       

25.2. In other words, the judge found at (1) and (2) above that Madam Chow had failed to prove formal validity.  Although it was not necessary to make a finding on essential validity, the view he expressed at (3) suggests that the alleged marriage would also have failed the test of essential validity.  It would appear from the lists of authorities below that neither counsel referred the judge to Suen v Yau.

Appeal

26.1. Madam Chow appealed. In para. 6 of his skeleton submissions, Mr Nelson Miu³¹ identified the crux of her case as follows:

“The crux of Ds’ case is that, notwithstanding the fact that [the Deceased] had already married Madam Lee in 1947, he was able to, and in the event did, contract a second marriage with Madam Chow in Guangzhou in December 1949. This 2^nd marriage was voidable but not void. Since neither Madam Lee nor any other interested party had applied to set aside the second marriage during the lifetime of Madam Lee, Madam Chow must be regarded as the only lawful surviving spouse of the Deceased, within the meaning of the Intestates’ Estates Ordinance Cap. 73 (‘the IEO’)”.

26.2. Mr Miu based his case on the following primary propositions.³²

(1) Up to September 1949, the Deceased had the capacity to enter into a second marriage under the Civil Code, provided he satisfied the formal requirements³³.

(2) Although there was a change of regime in October 1949, there was no evidence of the law of China regarding the effect of that change on the Deceased’s personal laws.

(3) In the absence of evidence of foreign law, Hong Kong law (including the common law) applied.

(4) Under common law, the laws of a previous regime (or at least Book IV, Chapter II of the Civil Code which dealt with Marriage) applied, until altered by new laws pronounced by the new government (ie the PRC Marriage Law which took effect in May 1950).

26.3. It is not Mr Miu’s submission³⁴ that the evidence of his client’s expert Professor Song should be preferred.

Discussion

27.  As regards the first proposition, the parties’ respective legal experts agreed that before the promulgation of the PRC Marriage Law in May 1950, a second marriage “could be cancelled” (可以取消)³⁵.  It is notable that this time frame includes not only the period of the Republic of China but also the period after the establishment of the PRC.  On this common ground that the second marriage was only voidable, it follows that it was not void ab initio for want of capacity. 

28.  Neither party sought to argue on the basis of the CFA decision in Suen v Yau that by parity of reasoning, just as none of the parties in Suen v Yau had capacity (after the Civil Code took effect in 1931) to enter into unions of concubinage in 1933 and 1945, the male party in our case similarly had no capacity to enter into the second marriage in 1949.  However as noted earlier³⁶, in none of the judgments of the three levels of court that dealt with Suen v Yau was there any reference to Article 992.

29.1. After Suen v Yau was decided, this court (Rogers VP, Le Pichon and Cheung JJA) considered a case of two marriages in Wong Zhong Lan Xiang & ors v Wong Frank [2003] 4 HKC 609.  There a man, who had lived part of his life in the USA and part in China, entered into a Chinese customary marriage in China in 1921.  He then married another woman in China in 1939 (after the Civil Code took effect).  The trial judge held that the man had no capacity to enter into the second marriage since he was domiciled in the USA.  However he held that if the man had been domiciled in China, he would have had such capacity. 

29.2. On appeal, the court found that the man was domiciled in China.  In discussing the man’s capacity to contract the second marriage in China in 1939, Cheung JA referred in para. 90 to Articles 985 and 992, and a decision of the Supreme Court of China in 1939 (Case no.1709).  It was held by the Supreme Court that in the case of a marriage in contravention of Article 982, Article 992 shall apply, and the second marriage shall only be set aside upon application to the court by an interested party.  As long as the second marriage was not set aside, the wife in the second marriage shall not be considered a concubine and her status as wife could not be denied.  Suen v Yau was not referred to in the judgment in Wong v Wong.          

30.1. In my view, although an argument might have been advanced in the present case that, by way of parity of reasoning with Suen v Yau, the Deceased had no capacity to enter into the alleged marriage with Madam Chow,

(1) that argument might have been countered by the absence of any reference to or discussion of Article 992 in Suen v Yau;

(2) although there was no discussion of Suen v Yau in Wong v Wong, it cannot be said that the judgment in the latter case was plainly wrong such that it was not binding on this court; and

(3) the joint experts’ opinion in the present case was that the second marriage was voidable and not void ab initio.

30.2. By reason of the above, I would agree that before the abrogation of the Civil Code, an earlier marriage would not have affected the capacity of a person domiciled in China to enter into a second marriage, in contravention of Article 985 of the Civil Code.

31.  The second to fourth propositions should be considered together.  Mr Miu submitted that although there was a change of regime in October 1949, there was no evidence of the law of China regarding the effect of that change on the Deceased’s personal laws.  He submitted that in the absence of evidence of such foreign law, Hong Kong law (including the common law) applied, and under common law, the laws of a previous regime (or at least Book IV, Chapter II of the Civil Code which dealt with Marriage) applied, until altered by new laws pronounced by the new government (ie the PRC Marriage Law which took effect in May 1950).    

32.  In respect of the second and third propositions, it is well established that in the absence of evidence of foreign law, the court will presume that it is the same as Hong Kong law.  This has been called “the default rule”. However in my view, the present case is not a situation where there was no evidence of foreign law; rather, there was expert evidence of foreign law, which was to the effect that there was a “legal vacuum”³⁷ in that the codified law in the form of the Civil Code had been abrogated and the PRC Marriage Law had not yet been promulgated.

33.  Pausing there, I note that Mr Miu argued that the directive abrogating the Civil Code was merely consultative and did not have the status of law.  However this argument is directly contradictory to what the joint experts agreed: that by that time, the Civil Code had been abrogated³⁸. Further, and unsurprisingly Professor Su was not cross-examined when he referred to the abrogation in his oral evidence. For both these reasons, this argument cannot be run on appeal.

34.  Returning to what Professor Su called the “legal vacuum”, he went on to say that in that situation, when parties and their families did not know the law according to which a valid marriage could be contracted, the parties had to devise a way which they considered to be valid, and then wait to see the new government’s approach to it.  He said that where the new government regarded the marital unions as concubinages or second marriages, the new government treated them as “temporarily valid” 暫時有效.³⁹ (Of course he was only dealing with essential validity).  In his report he had referred to materials showing that, even though monogamy was the guiding principle, the new government had taken a pragmatic, non-interventionist approach to such unions, which were regarded as problems left over by history, as its overarching purpose was the protection of women⁴⁰.

35.  However I do not think that gets Mr Miu home, because that merely indicates that the Deceased had capacity to enter into the alleged marriage in December 1949.  That is a matter of essential validity. 

36.  Before I consider formal validity, I would note that it was found by this court (Rogers VP, Godfrey VP and Ribeiro JA, now Ribeiro PJ) in Suen v Yau (and not challenged in the Court of Final Appeal) that the abrogation of the Civil Code did not revive traditional concubinage between such abrogation and the promulgation of the PRC Marriage Law⁴¹.  Of course that was found on the basis that unions entered into after the Civil Code were void, not voidable, and must be viewed against the matters discussed earlier⁴².  

37.  Coming back to the issue of formal validity, Madam Chow also had to prove that the alleged marriage was formally valid.  As noted earlier, her pleaded case⁴³ was that her marriage to the Deceased was “in accordance with local custom”. 

38.1. However Mr Miu submitted that “it was never Ds’ case that Madam Chow’s marriage was valid because it was a Chinese customary marriage and/or complied with traditional Chinese customs”.⁴⁴ He said the marriage was in accordance with local customs, only in the sense that there was a ceremony, “but it was not suggested that it was valid and recognized in Mainland China because it was in accordance with local customs”⁴⁵.      

38.2. With respect, I do not follow Mr Miu’s submissions.  Since it was common ground that the previously codified law in the Civil Code had been abrogated by then⁴⁶ and the PRC Marriage Law had not yet been promulgated, Madam Chow’s Defence clearly meant that she was falling back on custom.  Her pleaded case was that the marriage was celebrated “in accordance with local custom”, in other words, it was a customary marriage.  Accordingly she had to prove that the celebration accorded with the formalities that were required (or at least were recognised as sufficient) for a customary marriage.

38.3. Mr Miu acknowledged that the dinner would not have been sufficient for the formalities required for a customary marriage as understood in Hong Kong. There was no expert evidence on the formal requirements of a customary marriage in China.  In Wong v Wong the Court of Appeal accepted⁴⁷ that it may be permissible to dispense with expert evidence on the formal requirements of a customary marriage celebrated in China, but I do not need to discuss this because Mr Miu has expressly disavowed a case of customary marriage.

39.1. Mr Miu’s submission was that the alleged marriage ceremony complied with the formal requirements of a “Chinese modern marriage”. 

39.2.           First, it seems to me that this submission is not open to him on the pleadings.  The pleading (see para.12.2 above) that the alleged marriage was “in accordance with local custom” and thus was recognized by law, could not be clearer.  It was never pleaded that as an alternative to customary marriages, the formalities required for a “Chinese modern marriage” would also serve as a marriage “in accordance with local custom”.  

39.3. Further, immemoriality and continuity (amongst other factors)⁴⁸ are required for the establishment of a custom in the legal context.  The “Chinese modern marriage” was a creation of the Republican era only.  Whilst Professor Song did say in her report (dated 3 June 2013) at para.5.2(a)(iv) that a valid marriage could be found by “the simple wedding ceremony held by Madam Chow and the Deceased in accordance with the custom of the time and place, and a dinner attended by family and friends to witness it, followed by cohabitation”, no materials were cited.  This was specifically made the subject of criticism (presumably by Professor Su) in the Supplemental joint experts’ report at para.II(1)(a). In Professor Song’s response, she stated at para.3.1.1. that it had always been Chinese tradition to hold a wedding ceremony, but with respect, that begs the question what the ceremony entailed.

39.4. In any event, in cross-examination (D/552) Professor Song admitted that contracting a marriage in accordance with custom in December 1949 was incompatible with the New Democracy Policy 新民主政策 which was in force.  And as noted earlier, it forms no part of Mr Miu’s submission on appeal that the evidence of Professor Song should be preferred. 

40.  Further and in any event the judge found the testimony of Madam Chow and Madam Lau as to what had occurred at the dinner to be untruthful or unreliable.  The judge was entitled to do that for the reasons he gave, and in any event he found there was insufficient evidence of what had taken place at the dinner⁴⁹.  Even if one assumes that the formal requirements of a “Chinese modern marriage”would have been sufficient, there was a remarkable absence of evidence as to any words or actions evidencing that a ceremony of a marital union, however simple, was being held at the dinner (see paras. 12.3-12.6 above).  This was even more remarkable in light of the fact that Madam Fung had, prior to the defence case, given detailed evidence of the Chinese modern marriage which the Deceased had celebrated with Madam Lee two years previously.         

41.  Having rejected Mr Miu’s third proposition, it is not necessary to deal with the fourth proposition save to point out that even on his argument, the Civil Code could not have applied in December 1949 even in the absence of a new law altering it, as it was common ground that it had been expressly abrogated by the new government.  

Order

42.  For the reasons set out above, I would dismiss the appeal with costs.  The Plaintiff’s own costs are to be taxed in accordance with Legal Aid Regulations.

Hon Kwan JA:

43.  I agree with the judgement of Hon Yuen JA.

Hon Poon JA:

44.  I agree with the judgement of Hon Yuen JA.