Wn v. Xjx

FCMC 15944/2015

[2018] HKFC 39

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 15944 OF 2015

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JUDGMENT
(Nullity & bogus/sham marriage)

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The facts & issue

1.At the material time, the petitioner wife was (and still is) a Hong Kong citizen while the respondent husband was a Chinese national from China.

2.The ultimate question to be determined by the court in this trial is this: whether the bogus/sham marriage between the parties of this case should be annulled pursuant to section 20 of the Matrimonial Causes Ordinance, Cap 179 (“MCO”).

3.The facts of this case as revealed from the amended petition for nullity filed on 15 December 2015 and amended on 5 January 2016, as well as from the petitioner’s affirmation dated 5 February 2016 are relatively straightforward and appear as below.

4.In September 2005, the petitioner entered into an agreement with an agent who arranged for bogus/sham marriages. As a result of the agreement, the petitioner went to the marriage registry of the people’s administration department (民政局) in Fuzhou City, China on 8 October 2005 to enter into a marriage with the respondent for a consideration of $11,000. The marriage was in fact a bogus/sham marriage and the parties have never met each other again, nor have they ever consummated after the marriage.   

5.In July 2012, the petitioner surrendered herself to the Immigration Department for entering into a bogus/sham marriage with the respondent. She was charged with and convicted for the offence of conspiracy to defraud on 7 December 2012. She was sentenced to imprisonment until 6 April 2013.

6.On 15 December 2015, she filed her petition for nullity of the marriage, which was amended on 5 January 2016.  Service of the amended petition on the respondent was done through the Judicial Authority in China in/about June 2016. The respondent chooses not to attend this trial. I see no reason why I should not proceed with the trial in his absence. 

Basis of nullity

7.By her amended petition, the petitioner seeks to annul her marriage with the respondent on the following basis:

(1)   That she had entered into the bogus/sham marriage with the respondent for money, and thus she cannot be regarded to have validly consented to the marriage;[1]

(2)   That there was no consummation between them and thus there was no marital relation between them. [2]

8.By the further oral submission of her solicitors, Mr S K Tam, the petitioner purports to add a 3^rd ground for her nullity application and it is this: that the marriage shall be void on the ground that “the parties have intermarried in disregards of certain requirements as to the formation of marriage” (See: section 20(1)(a)(iii) of MCO).

9.Upon hearing the oral evidence, Mr Tam asks for time to file his written closing submission, to which this court sets the deadline to 26 March 2018.  However, by a letter of 22 March 2018 (“Letter”), Mr Tam seeks to obtain further directions from this court as to whether expert opinion from a Chinese legal expert is required. His rationale/argument will be further elaborated below. Suffice it is for me at this stage to say that during the hearing which was resumed at 4 pm of 26 March 2018, Mr Tam, upon taking further instructions from the petitioner, decides to withdraw his request for further direction of a Chinese legal opinion and confirms that he shall treat the Letter as his closing submission.

Applicable law

10.The petition for nullity is taken out by the petitioner pursuant to section 20 of MCO, which provides that:

“20. Grounds for decree of nullity

(1) A marriage which takes place after 30 June 1972 shall be void on any of the following grounds only --

(a) that it is not a valid marriage under section 27 of the Marriage Ordinance (Cap 181), that is to say-

(i) the parties to the marriage are within the prohibited degrees of kindred or affinity; or

(ii) either party is under the age of 16; or

(iii) the parties have intermarried in disregard of certain requirements as to the formation of marriage;

(b) that the marriage is otherwise invalid by the law of Hong Kong;

(c) that at the time of the marriage either party was already lawfully married;

(d) that the parties are not respectively male and female.

(2)  A marriage which takes place after 30 June 1972 shall, subject to subsection (3), be voidable on any of the following grounds only—

(a) that the marriage has not been consummated owing to the incapacity of either party to consummate it;

(b) that the marriage has not been consummated owing to the wilful refusal of the respondent to consummate it;

(c) that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise;

(d) that at the time of the marriage either party to the marriage, though capable of giving a valid consent, was suffering, whether continuously or intermittently, from mental disorder within the meaning of the Mental Health Ordinance (Cap. 136) of such a kind or to such extent as to be unfitted for marriage;

(e) that at the time of the marriage the respondent was suffering from venereal disease in a communicable form;

(f) that at the time of the marriage the respondent was pregnant by some person other than the petitioner.”

11.If a marriage is found to be void under section 20(1) above, it is as though it never existed. They are void ipso jure, the decree being merely a declaration.  On the other hand, a decree of nullity on the ground that the marriage is voidable, pursuant to section 20(2) above, shall operate as to annul the marriage only after the decree has been made absolute, and the marriage shall, notwithstanding the decree, be treated as if it had existed up to that time. Therefore, it is a valid marriage until decree nisi when it is declared null and void and when that decree has been made absolute (See: Family Law and Practice in Hong Kong (2^nd ed) at §1.099 & §1.101).

12.Having set out the above applicable law, I shall now start to analyse the basis of the petitioner’s nullity application.

No valid consent

13.One of the basis that the petitioner relies on is that there lacks a valid consent on her part to the marriage, pursuant to section 20(2)(c) of MCO.

14.It is trite law to say that voluntary consent of both parties is necessary for a valid marriage. Here, the petitioner claims that she did not validly consent to the marriage. However, in order to rely on this ground, she must prove that at the material time, she was not capable of understanding the nature of the marriage contract, or that her mental condition was such that she was incapable of understanding it. The burden of proof lies squarely on her.

15.In Rayden & Jackson: Divorce and Family Matters (18^th ed), the learnt authors make the following explanation on the test and burden of proof to be adopted at §8.57, namely:

“The test to be applied is whether the person in question was capable of understanding the nature of the contract into which he was entering, or whether his mental condition was such that he was incapable of understanding it: in order to ascertain the nature of the contract of marriage a person must be mentally capable of appreciating that it involves the responsibilities normally attaching to marriage. There is a strong prima facie presumption that such consent has been given: the contract of marriage is a very simple one which does not require a high degree of intelligence to comprehend. The burden of proof on a party attempting to impeach a marriage on the ground of want of consent is heavier than in the case of impeaching a commercial contract.”

16.The petitioner has not pleaded about her mental capability (or incapacity) in the amended petition, nor has she provided any evidence on this point in her affirmation. Simply put, there is no evidence that she can refer to in this trial in order to substantiate this ground. She has failed to discharge the burden of proof imposed on her.

17.More importantly, since the proceedings were instituted more than 3 years from the date of marriage (ie 8 October 2005), the court shall not grant a decree of nullity on this ground. I urge the petitioner to read Section 20(4) of MCO with great care:

“(4) Without prejudice to subsection (3), the court shall not grant a decree of nullity on the grounds mentioned in subsection 2(c), (d), (e) or (f) unless the court is satisfied that the proceedings were instituted within 3 years from the date of the marriage.” (emphasis added)

No consummation

18.The other basis for nullity that the petitioner relies on is that there was no consummation between the parties.  I have no issue with her claim that she has not consummated with the respondent. However, the lack of consummation by itself does not necessarily mean that the marriage in question can be annulled.

19.Section 20(2) of MCO sets out 2 scenarios where a marriage can be annulled on the ground relating to the lack of consummation, namely:

(1) incapacity of either party to consummate the marriage;

(2) wilful refusal of the respondent to consummate the marriage.

20.The petitioner has not pleaded in her amended petition which of the above 2 grounds that she seeks to rely on. 

21.Pertinently, she has not claimed that she is incapable to consummate the marriage. On the other hand, it is quite impossible for her to aver that the respondent is incapable to consummate, because it is her case that since she formalised her marriage with him in China in 2005, they have not seen and met each other again.

22.Can she then rely on the ground of wilful refusal of the respondent to consummate? My short answer is that she cannot. In order for a petitioner to rely on this ground, there must be an intention on his/her part to consummate the marriage with the respondent. It is obvious to me that the petitioner here does not possess any such intention to consummate with the respondent at the material time.

23.Again, in Rayden (18^th ed), the learnt authors explain the meaning of “wilful refusal” at §8.55 as follows:

“A marriage is voidable at the suit of a spouse if it has not been consummated owing to the wilful refusal of the other spouse to consummate it. The consummation must be proposed to the refusing party with such tact, persuasion and encouragement as an ordinary spouse would use in such circumstances, and the refusal connotes a settled and definite decision arrived at without just excuse. Wilful refusal must have persisted up to the date of the presentation of the petition. Mere neglect to comply with a request is not necessarily the same as a refusal…” (emphasis added)

24.The above authority shows that in order to rely on the ground of “wilful refusal”, the petitioner must have proposed the consummation to the respondent with such tact, persuasion and encouragement as an ordinary spouse would use in the circumstances.  Such evidence is totally lacking in this case.

25.In view of the above analysis, I am unable to see that the petitioner has satisfied this ground of nullity.  I hold the further view that in the case of a bogus/sham marriage where an intention to consummate the marriage is obviously lacking, a petitioner should not pursue his/her nullity claim on the ground of lack of consummation. 

Want of form of marriage

26.I shall, first of all, point out that it is never the pleaded case of the petitioner that the parties have intermarried in disregard of certain requirements as to the formation of marriage (See: section 20(1)(a)(iii) of MCO).  Mr Tam has not sought to re-amend the amended petition to plead this ground.

27.Be that as it may, Mr Tam seeks to argue that since the marriage between the petitioner and the respondent were celebrated in China, the validity of their marriage should be determined by the Chinese law rather than Hong Kong law. His argument runs like these:

(1)   The parties of this case had entered into a foreign marriage which took place in China. Therefore, pursuant to section 20A of MCO, the validity of their marriage would fall to be determined in accordance with the rules of private international law “by reference to the law of a place outside Hong Kong”;

(2)   The applicable rule of private international law is rule 85 (2) providing that:[3]

“In the proceedings in England for a decree of nullity of marriage, the question whether a marriage is invalid for want of form will (in general) be determined by the law of the place of celebration in accordance with Rule 73 and the question whether a marriage is invalid for want of capacity or of consent of either party will be determined by the law of his or her antenuptial domicile in accordance with Rules 74 and 75.” (emphasis added)

(3)   Due to the effect of section 20A of MCO and the aforesaid rule 85(2), the applicable law in determining the validity of the marriage of this case is the law of China where the marriage was formalised;

[4] Under Articles 146 of the General Principles of Civil Law of China, any civil legal act performed with a false intention is invalid. [5] Under Article 154 of the General Principles of Civil Law of China, any civil legal act which contravenes the law is invalid.[6]

(5)   By relying on the above Chinese law, Mr Tam suggests that since the parties had entered into the marriage with a “false intention” or as a result of trading in a marriage, their marriage is thus an invalid one which should be annulled.

28.I shall approach the above argument of Mr Tam in 2 ways.

29.To begin with, even though the marriage of this case was concluded in China, I do not agree that Hong Kong law does not apply.  Section 20A of MCO should be read with some care:

“20A. Foreign marriages

(1) Where apart from this Ordinance, any matter affecting the validity of a marriage would fall to be determined (in accordance with the rules of private international law) by reference to the law of a place outside Hong Kong, nothing in section 20 shall—

(a) preclude the determination of that matter as aforesaid; or

(b) require the application to the marriage of the grounds or bars mentioned therein except so far as applicable in accordance with those rules.” (emphasis added)

30.Properly read, section 20A covers any matter, apart from MCO, that would affect the validity of a foreign marriage, under which situation the validity of such a foreign marriage would be determined in accordance with the rules of the private international law by reference to the law outside Hong Kong. The section should not be read to mean that the rules of private international law or foreign law (of where the marriage in question is celebrated) would automatically apply in determining the validity of that foreign marriage. In my view, the section may, take for an example, apply to adoption or immigration cases where the validity of a foreign marriage is in issue.

31.In the hearing, I have referred Mr Tam to section 8 of MCO which in my view should be the more applicable section in determining the law to be applied and the issue(s) of this trial. Section 8 clearly states that where the court has jurisdiction under the MCO, the issues shall be decided in accordance with Hong Kong law. The section reads like this:

“8. Law of Hong Kong applicable

In any proceedings in which the court has jurisdiction under this Ordinance, the issues shall be determined in accordance with the law which would be applicable thereto if both parties were domiciled in Hong Kong at the time of the proceedings.”

32.During the hearing or in his submission, Mr Tam has not suggested that the marriage of this case has failed to meet the form recognised by the law of Hong Kong.

33.On the other hand, if I was wrong in my above conclusion and just assuming that the validity of the marriage of this case should be determined by the Chinese law (ie the law of the place where the marriage was celebrated) pursuant to section 20A of MCO, I would say that even on the petitioner’s own case, there is no want of form of her marriage. The oral and documentary evidence relied on by her can be summarised below.

34.It is her oral evidence that she met the agent and the respondent on 8 October 2005 and formalised the marriage with the respondent at the marriage registry of Fuzhou City. She was aware at that material time that the purpose was to enable the respondent to come over to Hong Kong for work after the marriage. After the marriage procedures, the agent took away the marriage certificate and told her that all she needed to do was to keep contact with the respondent for 2 to 3 years.  It is also her evidence that according to her understanding and knowledge, she had performed all those acts that were required to do in order for formalise the marriage in China.

35.Since the original marriage certificate issued by the Chinese authority was taken away by the agent, the petitioner provided only a notarial certificate issued by the notary office of the Fuzhou City when she filed her petition for nullity with the Family Court. Attached to this notarial certificate are copies of the following 2 documents:

(1)   Copy review form of marriage registration (結婚登記審查處理表) issued by the people’s administration department (民政局) of Fuzhou City. Under the item of “review opinion” (審查意見), it is stated that the criteria of marriage are met and the registration of marriage is permitted (符合結婚條件, 准予登記);

(2)   Copy of the declaration for application to marry (申請結婚登記聲明書)，in which the petitioner had apprehended her signature to declare that she voluntarily married to the respondent as husband and wife (自願結爲夫婦).

36.Clearly, both the oral and documentary evidence of the petitioner shows that she has complied with the form of marriage required by the relevant marriage registry of China, ie the place where this marriage was celebrated.

37.Mr Tam purports to rely on the Marriage Law and the General Principles of Civil Law of China, in particularly Article 146 of the General Principles of Civil Law of China.[7]  To this line of submission, I have the following observation/comment:

(1)   Despite the marriage of this case is a bogus one, I hold the view that on the facts of this case, the petitioner did have the intention to form a valid marriage with the respondent to perpetuate the fraud so that the latter could come to work in Hong Kong;

(2)   Mr Tam has withdrawn his oral request for expert direction on the Chinese law opinion, but it seems to me that the General Principles of Civil Law of China, by its own title, is more of a nature of private law, whereas the Marriage Law of China is more in the nature of public law. I thus doubt whether the principles in general private law can be applicable or even take precedence over public law in China;

(3)   Notably, there is a specific section in the Marriage Law of China (ie Article 10) which governs nullity of a marriage in China.[8]   The petitioner’s case does not fall within any situation specified in the relevant article.

38.Due to the matters aforesaid, I cannot see how Mr Tam’s argument on the Chinese law can stand. His purported reliance on the lack of form of marriage under section 20(1)(a)(iii) of MCO is rejected by this court.

Bogus/sham marriage: nullity or divorce?

39.The Family Court handles petitions for nullity in respect of bogus/sham marriages from time to time.  However, due to the matters set out below, I am of the view that a petition for divorce, rather than a petition for nullity, should be filed by a petitioner who wants to end a bogus/sham marriage.

40.Many of the petitions for nullity in respect of bogus/sham marriages purport to rely on the grounds that have been dealt with in the above parts of this judgment, in particularly on the ground of “wilful refusal to consummate”, which in my view and due to the matters set out above, cannot sustain.  

41.Other petitions for nullity purport to rely on the ground that the marriage is invalid by the law of Hong Kong (See: section 20(1)(b) of MCO). The argument would usually run like this: the petitioner entered into a bogus/sham marriage for monetary returns with the respondent, as a result of which the petitioner was charged, convicted and sentenced for conspiracy to defraud, just like the petitioner of this case. However, I do not accept that in such circumstances, the bogus/sham marriage would become an invalid one.

42.In the judgment of the English House of Lords in R (Baiai) v Home Secretary (Nos 1 and 2) [2008] 3 WLR 549, Baroness Hale gave her view on the status of “sham” marriages at p563B-G that they are still valid marriages in law:

“34. A ‘sham’ marriage is still a valid marriage in English law…

35. This means that the authorities are not free simply to disregard those marriages which they believe have been entered into purely in order to gain some perceived immigration advantage. No doubt such marriages do take place. No doubt also they are difficult to detect, not least because of the difficulty of unpicking the variety of reasons why two people might choose to marry one another. There are many perfectly genuine marriages which may bring some immigration advantage to one or both of the parties depending on where for the time being they wish to make their home. That does not make them ‘sham’ marriages.

36. It is not disputed that the Government would be free to deny any immigration advantage to a party to a marriage which had been entered into solely for the purpose of obtaining that advantage.” (emphasis added)

43.In Chong Shue Weng Derek & Another v HKSAR (2010) 13 HKCFAR 441, the defendants there were charged with the offence of conspiracy to defraud. The facts show that defendants conspired together with a Ms Tam and a Mr Shum to defraud the immigration department for the purpose of obtaining a dependant visa for the 1^st defendant by dishonestly arranging a bogus/sham marriage between Ms Tam and the 1^st defendant.  In return, Ms Tam and Mr Shum each received a reward of $20,000 and $25,000 respectively. In his written determination on the leave to appeal to the Court of Final Appeal, Bokhary PJ (as he then was) commented that the bogus/sham marriage between Ms Tam and the 1^st defendant was still a marriage in the eyes of the law,

“1. The marriage concerned was a marriage in the eyes of the law.  That was so even though the woman was paid to enter into it, even though no affection was involved and even though the parties had not the slightest intention of living together or behaving in any way like a married couple.  Although the marriage was described in the charge as a “bogus/sham marriage”, what was bogus/sham was the application to the Immigration Department for the purposes of which the marriage was entered into.”

44.In view of the above authorities, it is clear that a bogus/sham marriage would not be invalidated merely by the fact that the party or parties to that marriage is/are later charged or even convicted for any offence of conspiracy to defraud which is related to the marriage. In such circumstances, I cannot see how a petitioner can rely on section 20(1)(b) of MCO as the ground for petition for nullity.

Conclusion

45.Due to the matters set out above, I shall dismiss the petition for nullity, with no order as to costs (including any costs order reserved). For avoidance of doubt, this judgment will not affect her right to file a proper petition for divorce to end her marriage with the respondent.

Mr S K Tam of Raymond Lam & Associates for the petitioner (wife)

The respondent (husband) acting in person and absent

[1] Para 8 (i) of the Amended petition: 呈請人同意及前往了中國福建省福州市民政局與首次見面的答辯人結婚以獲得金錢作爲報酬。如此， 呈請人並非有效地同意與答辯人結婚。

[2] Para 8 (ii) of the Amended petition: 呈請人和答辯人未曾共同居住亦沒有圓房以致未有完婚， 如此，呈請人和答辯人的結合沒有顧及達成婚姻關係。

[3] Dicey, Morris and Collins on The Conflict of Laws (15^th ed), Vol 2, §18R-032 at p1008.

[4] 《中華人民共和國婚姻法》第三條： 禁止包办、买卖婚姻和其他干涉婚姻自由的行为。禁止借婚姻索取财物。

[5] 《中華人民共和國民法總則》第146條： 行爲人與相對人以虛假的意思表示實施的民事法律行爲無效。

[6] 《中華人民共和國民法總則》第153條：違反法律、行政法規的强制性規定的民事法律行爲無效。

[7] See §[27(4)] and footnote [5].

[8] 《中華人民共和國婚姻法》第十條： 有下列情形之一， 婚姻無效：（一）重婚的； (二) 有禁止結婚的親屬關係的; （三）婚前患有醫學上認爲不應當結婚的疾病， 婚後尚未治愈的； (四) 未到法定婚齡的。