MA SIU SIU VIVIAN v. TAM WAI MUN ALICE AND ANOTHER

HCAP 13/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 13 OF 2011

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D E C I S I O N

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1.  The plaintiff has pleaded in paragraph 3 of her amended statement of claim that her mother, Madam Wong and her father, Mr Ma, had contracted a Chinese modern marriage in 1961, as referred to in section 8 of the Marriage Reform Ordinance; Cap. 178 (“the MRO”).

2.  Though this marriage was purportedly validated by section 8 of the MRO on 7 October 1971, the plaintiff says that this Chinese modern marriage was valid and legally effective when contracted.  This is a dispute between the parties that needs resolution at the end. 

3.  The plaintiff now wants to further plead in her amended statement of claim a proposed paragraph 4E that this Chinese modern marriage, as referred to in section 8 of the MRO, was also a non-Christian customary marriage duly celebrated according to the personal law and religion of the parties within the meaning of section 37 of the then Marriage Ordinance, Cap 181 (“the MO”). 

4.  Mr Chain, counsel for the plaintiff, says that this is just a further legal argument based on the evidence already before the court.  He is relying on three government reports made and published in 1960, 1965 and 1967 to show that Chinese modern marriage as referred to in section 8 of the MRO was the most popular mode of marriage adopted by the people in Hong Kong. 

5.  Mr Mok, SC opposed the proposed re-amendment. He first argued that the Chinese modern marriage under the Chinese Civil Code had more requirements than those in section 8 of the MRO.  He needs time to consult an expert and to consider those requirements.  The giving of time to him will jeopardise the milestone date, hence the re-amendment should not be allowed. 

6.  However, the Chinese modern marriage that the plaintiff wants to establish in the proposed paragraph 4E is the same Chinese modern marriage that she has pleaded right from the start.  If the defendants should have the need to consider the requirements of Chinese modern marriage in the Chinese Civil Code, the need was there since the start of the action.  I do not think such need is being brought about by the proposed re-amendment.  I do not regard this objection as valid.

7.  Mr Mok’s second point is that if the plaintiff is not relying on the Chinese Civil Code, but an established custom derived from the Code, then the defendants are entitled to investigate in what way the custom has departed from or accorded with the code, and in what way it has become a custom in Hong Kong such that the court has recognised it as a custom.

8.  Again, I think the plaintiff is trying to establish, as a matter of law, is that the Chinese modern marriage pleaded in paragraph 3 of the statement of claim by reference to section 8 of MRO was also, as a matter of law, a non-Christian customary marriage.  I cannot see the relevance of an investigation on how the Chinese modern marriage in the Chinese Civil Code has become a custom in Hong Kong or how the custom has accorded with or deviated from the Code.  This argument is also not valid.

9.  Mr Mok then argued that he needed to know what customs the plaintiff is relying on and to what extent was the custom the same or different from the Chinese modern marriage under the code.  I again do not see the relevance of an investigation of what custom the plaintiff is relying on.  The plaintiff is not referring to any particular custom.  She is merely saying that a Chinese customary marriage pleaded in paragraph 3 of the statement of claim was so popular in and before 1960 so that it was already a customary marriage.  This is a submission on law that the plaintiff may or may not succeed.

10.  Mr Mok also said that he needed time to consult and adduce expert evidence on the custom, and the court would normally allow such evidence in disputes of Chinese customary law.  Mr Chain for the plaintiff however rightly pointed out that he was simply arguing on the meaning of the then section 37 of the MO, and see if the meaning would cover the Chinese modern marriage that he has pleaded in paragraph 3 of the statement of claim. The defendants are therefore not entitled to adduce expert evidence on the meaning of the local law.  The court allows expert evidence in disputes on Chinese customary law because such law is regarded analogously as foreign law. That does not extend to a local statute as the MO.

11.  Finally, Mr Mok says that he needs to investigate the personal law and religion of Madam Wong and Mr Ma.  But that issue was raised at the start of the case, and such matters are also referred to in section 8 of the MRO.  Since Mr Chain is merely putting in a legal submission on the evidence already before the court, I would allow his re-amendment in the form of the proposed paragraph 4E.  I direct that a fresh re-amended statement of claim be filed and served within three days.