Fung Ying Cheung and Others v. Yip Woon Yung

HCAP 26/2014

[2019] HKCFI 1818

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 26 OF 2014

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Before: Deputy High Court Judge Patrick Fung SC in Court

Dates of Hearing: 12 – 14 and 18 March 2019

Date of Judgment: 31 July 2019

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JUDGMENT

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1.This is a probate action by the claimants against the defendant in relation to the estate of Fung Yat Wan deceased (“the Deceased”) who died intestate in Hong Kong on 13 January 2010.

FACTUAL BACKGROUND

2.The claimants are the children of the Deceased by a woman by the name of Liang Rongxiu (“Liang”) who died in Yanping City in Guangdong on the Mainland on 11 December 2007.

3.The claimants:

(i)   Fung Ying Cheung (“Ying Cheung”), a son, whose Hong Kong Identity Card states that he was born on 26 October 1958;

(ii)   Feng Shaoling (“Shaoling”), a daughter, whose Hong Kong Identity Card states that she was born on 5 August 1962 and

(iii)   Fung Yee Chun (“Yee Chun”), a daughter, whose Hong Kong Identity Card states that she was born on 5 August 1969.

4.The Deceased and the defendant went through a marriage ceremony in the Marriage Registry at the City Hall in Hong Kong on 3 May 1977.

5.The Deceased and the defendant also had three children, namely:

(i)   Fung Wai Lam (“Wai Lam”);

(ii)   Fung Kong Ling Joe (“Kong Ling”) and

(iii)   Fung Wai Tat (“Wai Tat”).

None of them has been made a party in this action.  Wai Lam appeared in court in his capacity as a witness for the defence.

THE CLAIM

6.The claimants claim that the Deceased and Liang went through a marriage “in accordance with Chinese customary rites and ceremonies in Yanping City, Guangdong Province, China” on 28 January 1950 (“the First Marriage”), which marriage was and is recognized in Hong Kong as being valid.  Hence, the marriage between the Deceased and the defendant (“the Second Marriage”) was and is not valid.

7.Consequently, in the relief in the Statement of Claim, the claimants claim that the Second Marriage should be declared null and void. They further claim that the defendant’s application no HCAG 00521/2014 for a grant of Letters of Administration of the estate of the Deceased (“the Estate”) should be dismissed and that a grant of Letters of Administration to the Estate should be made to one of themselves.

8.The claimants have made it clear that they accept that the said three children of the Second Marriage are also each entitled to a share in the Estate under the intestacy law.

THE RELEVANT LAW ON MARRIAGE AND THE EXPERT EVIDENCE

9.The relevant part of section 20 of the Matrimonial Causes Ordinance, Cap 179 (“Cap 179”) reads as follows:

“ 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—

…

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

10.Section 20A of Cap 179 provides as follows:

“ 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.

(2)   In the case of a marriage which has taken place outside Hong Kong and purports to be a marriage under common law, section 20(1) is without prejudice to any ground on which the marriages may be void by virtue of the rules governing the celebration of marriages outside Hong Kong under common law.”

11.I should note that, the First Marriage having been allegedly celebrated on the Mainland, ie, a place outside Hong Kong, the Marriage Reform Ordinance, Cap 178 which deals with, inter alia, customary marriages celebrated in Hong Kong, would have no application in the present case.

12.In the circumstances, the issue is whether the First Marriage was a lawful marriage between the Deceased and Liang in Mainland China as at the time of its alleged celebration, namely, on 28 January 1950.

13.For the purpose of proving that the First Marriage was a lawful marriage between the Deceased and Liang, the claimants called an expert on Mainland law,馮婉琼 (“Ms Feng”), to give evidence.  It is to be noted that the defendant has not adduced any expert evidence and has just relied on challenges made by her counsel, Mr Chang, in his cross-examination of Ms Feng.

14.According to Ms Feng’s first Legal Opinion, she obtained her Bachelor of Laws degree from the Chung Shan University in 2005.  In 2007, she obtained her Master of Laws degree from the London School of Economics.  Since March 2012, she has been practising as a lawyer with the “廣東東遠昊律師事務所”.  I accept that Ms Feng is qualified to give expert evidence on Mainland law.

15.The gist of Ms Feng’s evidence is as follows:

(i)   On the instruction to her that the Deceased and Liang went through a form of marriage according to the customary rites in Yanping City on 28 January 1950 and that afterwards they cohabited as husband and wife and bore three children, despitethe fact that the marriage was not officially registered, it would constitute a “de facto marriage” (「事實婚姻」).

(ii)   On 28 January 1950, there was actually a void or gap in the marriage law in Mainland China in that, as a result of the establishment of the People’s Republic of China, the previous marriage law applicable under the Nationalist government had become abrogated.  On the other hand, the first marriage law promulgated by the new government, “中華人民共和國婚姻法”, which required marriages to be registered when contracted, did not come into effect until 13 April 1950. Thus, as at the date of the alleged First Marriage, there was no statutory law on the Mainland governing marriages contracted at that time.

(iii)   Despite the above, the law on the Mainland did recognize the validity of “de facto marriages”.  In paragraphs 3 and 4 of the Supplemental Legal Opinion by Ms Feng, she stated as follows:

「 3. 中華人民共和國成立以後，1950年、1980年和2001年三部《婚姻法》對事實婚姻均未有作出明確規定，但最高人民法院一直採取實事求是的態度，多次作出司法解釋，有條件地承認事實婚姻。卓冬青、劉冰主編之《婚姻家庭法》一書中提及，國家在政策上曾經作出調整，承認事實婚姻，文件包括《政務院關於貫徹婚姻法的指示》(1953年2月1日)及《法制委員會有關婚姻問題的若干解答》 (1953年3月19日)其中有以下之原則。

“對於不履行婚姻登記手續的當事人，對事實上已結婚而欠缺結婚登記手續的，仍認為是夫妻關係，可不必補辦登記”

4.   馮一雲與梁容秀於1950年1月28日在恩平市根據當地風俗進行之婚禮，雖然未有進行婚姻登記。但其婚姻關係符合結婚實質要件可認定為事實婚姻關係，因此，可以認為自1950年1月28日起便存在事實婚姻，且一直是有效的事實婚姻。」

16.Mr Chang cross-examined Ms Feng and made various suggested possibilities relating to the invalidity of the First Marriage without the support of any expert evidence from his side.  In my view, those suggested possibilities are at most merely speculation on the part of Mr Chang.

17.There is in fact authority in the Court of Appeal in Hong Kong in support of the point made by Ms Feng as summarized in paragraph 15(ii) above.  In the case of Fung Sing Wai v Chow Chiu Wan [2017] 2 HKLRD 551 which is a case concerning the validity of a “second marriage” which had allegedly taken place in Mainland China in December 1949, the Court of Appeal recognized that after the establishment of the People’s Republic of China on 1 October 1949, the Civil Code of the Republic of China of 1931 had been abrogated and that, so far as the new marriage law applicable on the Mainland was concerned, it was not implemented until May 1950 and that, as a result, there was a “legal vacuum” in between.  In paragraph 32 of her Judgment, Yuen JA said:

“ …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’ 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.”

18.In all the circumstances, I accept the expert evidence of Ms Feng.  I find that if the Deceased and Liang did in fact go through the form of customary marriage in Yanping City on 28 January 1950 as alleged by the claimants, there was no law in existence then which would render such a form of customary marriage invalid.  The same would in effect be valid as a “de facto marriage” which was recognized as a lawful marriage under the law of the Mainland, if not at that time, then certainly subsequently.

19.I shall examine below the evidence from both sides regarding the alleged First Marriage.

WHETHER EXPERT EVIDENCE ON CUSTOMARY MARRIAGE IS NECESSARY

20.Before I go into the factual evidence adduced by the parties, I need to resolve one important issue between the parties arising out of the fact that neither side has adduced expert evidence on the question of the validity of the customary marriage alleged to have taken place between the Deceased and Liang in Yanping on 28 January 1950 (the First Marriage).

21.Mr Chang for the defendant has relied on cases such as In re TseLai Chiu, deceased [1969] HKLR 159, Ng Kuk Mui v Yu Bik Fong RebeccaHCAP 2/1997 (unreported, 29 April 2000), Wong Zhong Lan Xiang v FrankWong HCAP 900002/1995 (unreported, 18 April 2002) and Man King Chuen v Hong Lok Yuen International School Association Ltd [2018] 4 HKLRD 294 for the proposition that the general practice in the Hong Kong courts is to require expert evidence to be adduced to prove the validity of a Chinese customary marriage.  He submits that, since the claimants have the burden of proving the validity of the First Marriage and have not adduced any expert evidence for that purpose, the claimants’ case should fail.

22.Mr Chan for the claimants on the other hand has relied on authority to the effect that it is not always necessary to adduce expert evidence to prove the validity of a Chinese customary marriage.  He submits that since the customary marriage in issue is one which took place in the Guangdong Province with which kind of customary marriage the Courts in Hong Kong are familiar, there is no need to adduce expert evidence in the present case.  Mr Chan relies first also on the decision of DHCJ Andrew Cheung (as he then was) in the case of Wong Zhong Lan Xiang (supra).  In that case, the Court had to deal with a customary marriage said to have been contracted in Taishan (台山) in the Guangdong Province in 1921.  In dealing with the validity of that marriage, the learned Judge said the following in the following paragraphs of his Judgment:

“ Validity of the first marriage

47. … The Defendants contend that they got married in the Mainland in 1921 according to the then applicable Chinese customary marriage requirement, prior to the coming into force ofthe new marriage law contained in the Civil Code of the Nationalist government in 1931. …

…

49. Bearing all this in mind, I turn first to the primary contention of the Defendants. Capacity to marry is not in issue. Nor is there any question of anything contrary to the conscience of this Court. The only dispute lies with the formality requirement of marriage under the law applicable in the Mainland in 1921. In this regard, there is very little evidence of the alleged customary marriage. In the national archive papers, the marriage was said by the couple to have been contracted according to the old Chinese custom. They had a red marriage paper to prove their marriage which was left in China. The bride was carried to the husband’s home village by sedan chair and arrived at noontime. There was a go-between who arranged the marriage.Bride and bridegroom had not met each other prior to marriage. Some jewellery was given to the bride prior to the marriage or wedding. A wedding feast was held and was attended by guests. After marriage, a twin and a daughter were born to the couple before the deceased emigrated to the States. In 1931, he successfully applied for his wife and his surviving twin son to reunite with him in the States, leaving behind their daughter with his mother in the home village.

50. For a reason which I need not go into here, I have no expert evidence to assist me on whether the very limited material available to me as described above constituted a customary marriage recognized as a valid marriage in the Mainland in 1921, it being common ground that the applicable law of the Mainland in 1921 was Chinese customary law as the new marriage law under the Civil Code was still 10 years away in the future. Madam Hom Shee has passed away, and prior to her death, she had not described in any manner her claimed marriage to the deceased in the papers before me save the bare assertion that she was the lawful kit fat wife of the deceased.

51. Mr. Mak tried to overcome this difficulty by placing reliance on an old Full Court case Tai Lee Construction Companyv Tsang Ching Hing [1966] HKLR 868. In this workmen’s compensation case, at issue was whether a particular applicant for compensation was a member of the deceased workman’s family. It was claimed that he was a member because he had been adopted in accordance with Chinese custom prevailing in the part of country where the adoption took place by the deceased workman. The Full Court observed as follows at pp. 871 to 872:

‘The final ground of appeal argued was that there was not sufficient evidence to justify a finding that the son was, by reason of a valid adoption, a member of the deceased’s familywithin the meaning of s. 3 of the Ordinance. We have already mentioned that the judge expressly refrained from making a finding on this point and the existence or otherwise of sufficient evidence is not directly material. We think it was unsatisfactory to leave matters like that: the parties were entitled to a decision upon the claim of each applicant. As the matter has been argued, however, we think it right to say that in our view there was evidence upon which the judge could properly have found that the 1^st applicant was a member of the deceased’s family. It was not essential that there should be expert evidence. It was open to the judge to accept evidence that a customary adoption was recognized as valid. Although the distinction between law and custom which was drawn in Ganer v. Lanesborough (1970) 1 Peake 25 has been questioned, we see no reason to doubt the correctness of that decision. There the existence of a former marriage being in issue one of the parties to that marriage was permitted to testify that she had been divorced in Italy according to the custom of the Jewish people. That case appears to us to be directly in point. Accordingly it was competent for the natural father to describe the ceremony and then to add: ‘this method of adoption is common in my part of the country’. The evidence was sparse but in all the circumstances we think the learned judge could have been fully justified in acting upon it.’

52. Mr. Chong tried to distinguish or limit this case by saying that at issue was whether the infant applicant was ‘a member of the deceased’s family’, which need not depend on whether the applicant was validly adopted as the son of the deceased according to the relevant legislation. That was factually incorrect because the infant applicant in that case resided in the Mainland and did not live together with the deceased workman in Hong Kong, and therefore his claim could only succeed if the local Court recognized his claimed status as the adopted son of the deceased workman. This part of the decision cannot therefore be brushed aside as being obiter in nature. In fact, it is binding on this Court. On the otherhand, there are indeed authorities to the effect that expert evidence is in general required to prove foreign law, and such evidence is required to prove the validity of a foreign marriage, including a Chinese customary marriage, according to the applicable foreign law: See Dicey & Morris, Vol. 1, paras. 9-013 to 9-025 dealing generally with the proof of foreign law by expert evidence; Chung Kai Fun v Lau Wai King [1966] HKLR 881, a first instancedecision of Briggs J. (as he then was) which suggested that expert evidence is required to prove that a ceremony constituted a valid Chinese customary marriage, the earlier Full Court decision in Tai Lee Construction not having been referred to in the judgment. (Chinese customary law is traditionally treated by the local Courts as or in the same way as foreign law.)

53. As I say, I consider Tai Lee Construction, a decision of theformer Full Court, the precursor of the Court of Appeal, as bindingon me: See Wesley-Smith, Recent Decisions on Precedent in HongKong (1986) 16 HKLJ 268, and particularly the three cases referred to in footnote 5. No sensible distinction can be drawn between a Chinese customary adoption and a Chinese customary marriage. Further, if the matter had been freed from authorities (whether local or otherwise), for my part, I would be in favour of the view that so far as proving a valid Chinese customary marriage is concerned,expert evidence is not a must. For in my judgment, everything depends on the circumstances. As I said, the couple described what took place between them that led to their ‘marriage’ and whathappened on the wedding day. They both said that they had gonethrough with the old custom and they were lawfully married. Theyresided as a couple after marriage, and one child after another was born to them. On the balance of probabilities, and by the nature of things, unless there is something (and there is none) to suggest that those people in the respective home villages of the couple, including the village elders and senior people, as well as the go-between, i.e. all of them, did not know how to conduct a valid Chinese customary marriage according to rites and requirements applicable and prevailing in their home region, and got it wrong, or had missed out some essential or crucial step or procedure in the whole process, the couple must have validly married each other according to the applicable Chinese custom at the material time. This is simply a matter of inference to be drawn from the known facts, surrounding circumstances, and inherent probabilities. Put at the lowest, nothing they had described in relation to their marriage and wedding contradicts what is generally known about Chinese customary marriage by the Courts after hearing much expert evidence in relation to it and deciding many cases concerning it in the past. Mr. Chong was not able to point to any. For a general discussion of the local case law on Chinese customary marriage, see Halsbury’s Laws of Hong Kong, Vol. 12, paras. [180.002] to [180.006]; Pegg, Family Law in Hong Kong (3^rded.) 4-11; and see e.g. Kwan Chui Kwok v Tao Wai Chun [1995] 1 HKC 374 on the rites required.

54. To my mind, the question is not so much about what rites the parties or their respective families had to go through in order that a valid customary marriage could be contracted; rather the more important question is whether on a balance of probabilities,these people (including the village elders, the senior family members and the go-between) knew what the necessary and prevailing rites, according to that part of the Mainland they were living in, were, and whether, again on a balance of probabilities,the rites were observed so as to constitute the couple a validly married couple, who following the ‘marriage’ lived as man and wife together in the native village and gave birth to no less than three children there. I am not concerned with any presumption of marriage here. This is simply a question of fact, which like any other question of fact, must be resolved by reference to direct (if available), inferential and circumstantial evidence on a balance of probabilities. As I explained above, I find on the balance of probabilities that the couple contracted a valid marriage accordingto the applicable and prevailing custom in that part of the Mainland they resided in at the material time.

55. So on this ground alone, I conclude in favour of the Defendants that the deceased and Madam Hom Shee were lawfully married to each other in the Mainland in 1921.”

(emphasis added)

Two things are to be noted.  First, the learned Judge consistently referred to the requirements of a customary marriage “in the Mainland” as opposed to the much more narrow locality of Taishan or even the Guangdong Province. Secondly, he followed the decision of the Full Court in the Tai Lee case which he said was binding on him.

23.The decision of DHCJ Andrew Cheung was taken to the Courtof Appeal.  In Wong Zhong Lan Xiang v Wong Frank [2003] 4 HKC 609, theCourt of Appeal allowed the appeal in part but agreed with DHCJ Andrew Cheung’s ruling that it was not always necessary for expert evidence on Chinese customary marriage to be adduced and that he was entitled to find that the deceased and Madam Hom had contracted a valid customary marriage.  In the Judgment of Le Pichon JA, she said as follows:

“ Validity of the marriage between the deceased and Madam Hom Shee

41. The deputy judge found for the validity of the marriage: either there was a valid Chinese customary marriage, alternatively,there was a valid common law marriage according to New York law. As to the finding of a valid marriage under Chinese customary law,the plaintiff submitted that the deputy judge was wrong in holdingthat expert evidence of the customary marriage was not necessary. It was said that the observations of the court in the Tai Lee case on this issue were obiter in that there had been a finding in the hearing below that the claimant was a dependent of the deceased workman and it was thus not necessary to prove adoption.

42. I do not agree. The plaintiffs’ analysis of the Tai Lee case is incorrect. For the claim of the first applicant in that case to succeed as a ‘dependent’ for the purposes of Cap 282, he had to show not only that he was ‘dependent’ upon the deceased workman’s earnings in whole or in part, but that he was also a ‘member of the family’. Therefore, the relationship by adoption had to be proved. It was in that context that the Full Court stated that it was not essential that there should be expert evidence.

43. In dealing with the question whether there had been a valid marriage according to Chinese customary law, the deputy judge adopted a pragmatic and, if I may say so, thoroughly sensible approach: it was a question of fact to be resolved by reference to direct, inferential and circumstantial evidence on a balance of probabilities. I have already referred to the deputy judge’s findings of what happened on the wedding day as disclosed by the US records. The plaintiffs were unable to point to anything in that description of marriage and wedding which contradicts what is generally known about Chinese customary marriage. In my judgment, the deputy judge was perfectly entitled to come to the conclusion that he did.” (emphasis added)

24.It is to be noted that, in the Tse Lai Chiu case (supra) which is also a decision by the Full Court and which is relied on by Mr Chang, the Tai Lee case had not been referred to at all.  In any event, Hogan CJ said in the Tse Lai Chiu case at pages 175 – 176 as follows:

“ It would seem, therefore, that, contrary to what the Solicitor General has suggested, Chinese law was part of the law of the land. Consequently, courts could purport to find this law in authoritative textbooks as Sir Henry Gollan did in the Chak Chiu Hang case [20 H.K.L.R.1 at 21] but there has long been a practice in Hong Kong of taking evidence on such law, a practice endorsed in a number of judicial decisions, and although this practice may be regarded as a departure from the procedure normally followed in English courts, I think it must now be regarded as an established modification based on local circumstances though it should not betaken to supplant the court’s right to inform itself by other means.” (emphasis added)

Thus, the learned Chief Justice was in effect saying that the Court did have a right to inform itself about the relevant customary law by means other than from expert evidence.

25.I am content to follow the decisions by DHCJ Andrew Cheung and Le Pichon JA in the Wong Zhong Lan Xiang cases.  I hold that it is not necessary for expert evidence on Chinese customary marriage to be adduced in the present case.

26.Mr Chan for the claimants has also relied on the decision of Patrick Chan J (as he then was) in the case of Kwan Chui Kwok v Tao Wai Chun [1995] 1 HKC 374.  In that case, the learned Judge held that under Chinese customary law, marriage was ‘an alliance of families at the initiation of the negotiation with the bride’s family through a go-between’.  There were three essential stages where certain steps must be taken in order to constitute a valid customary marriage: proposal and betrothal; approval or agreement by the two families; and the welcoming of the bride by the bridegroom into his family which was done in the presence of relatives and friends.

27.At pages 401F – 402D, the learned Judge said as follows:

“ In my view, whatever changes had been made to these rites, one must always bear in mind that a Chinese customary marriage was by customs and tradition still essentially an alliance of the two families. Hence, there would always be elements such as: the presence of a go-between, the presentation or exchange of gifts, theapproval or agreement of the heads of the two families, the holdingout to the public of the event including welcoming the bride into the bridegroom’s family. It is also clear that a customary marriage did not begin and end on the same day. It started sometime beforethe wedding day and finished a few days after that. So far as onecan gather from these authorities, there were three essential stages where certain steps must be taken in order to constitute a valid customary marriage. The first stage would be that of proposal andbetrothal. It consisted basically of a go-between bringing gifts orpresents of betrothal from the family of the man to the family of thewoman. It symbolised an offer on the part of the family of the man to enter into a contract of marriage with the family of the woman. The second essential stage would be that of an approval or agreement by the two families. This included the matching of the two persons’ particulars and the fixing of the wedding date. It symbolised that the marriage had the blessing of the heads of families and indicated a confirmation of the intention on the part of both families to proceed with the marriage. The last essential stage would be the welcoming of the bride by the bridegroom intohis family which was done in the presence of relatives and friends. It was a symbol of acceptance in public of the bride into the bridegroom’s family. This involved all the ceremonies which were to be performed on the wedding day. The details of such ceremonies would depend on different places in different parts of China. This would involve the receiving of the bride into the groom’s family in the form of a sedan chair in the olden days or inthe form of a car or other transportation, the worshipping of heavenand earth and the bridegroom’s ancestors, the serving of tea by thebride to the family elders, the introduction of the bride to the other members of the family and a banquet to celebrate the occasion.

In my opinion, if these essential stages were present, it could besaid that the marriage would be considered as a validly constituted customary marriage.” (emphasis added)

28.I respectfully agree with and adopt the above description by Patrick Chan J of the three essential stages constituting a valid Chinese customary marriage.  They certainly accord with my understanding of a Chinese customary marriage, at least, in the Guangdong Province.

CAPACITY TO MARRY UNDER CHINESE CUSTOMARY LAW — THE QUESTION OF AGE

29.Another important issue which I need to resolve is the question of the capacity of the parties under Chinese customary law to enter into a Chinese customary marriage in respect their age. The issue arises in the way set out below.

30.According to Yee Chun, who was called as a witness for the claimants, the Deceased came to Hong Kong as an illegal immigrant in 1966. There has been produced a copy of the record of the Immigration Department in which the Deceased was recorded to have told the Department in 1984 that his date of birth was 1 June 1938.  The Department also put down a note that that was not verified.  The first Hong Kong Identity Card issued to him accordingly indicated that he was born on 1 June 1938.

31.On the abovementioned basis, counsel for the defendant submitted that the Deceased would have been aged only just over 11 years at the time of the alleged marriage in January 1950.  That should raise the question as to whether the Deceased had capacity under Chinese customary law to enter into a marriage at such a young age.

32.The claimants’ case is that the Deceased was actually born in 1930 and that, when he came to Hong Kong, he deliberately gave a younger age to the Immigration Department so that it would be easier for him to obtain a job.  Hence, when the Deceased married Liang, he was actually aged about 20 years.

33.According to the claimants, it was a common practice of people who came to Hong Kong from the Mainland in the earlier part of Hong Kong’s history to declare a younger age in order to be able to get work more easily.  According to Yee Chun, when she first came to Hong Kong, she did declare a younger age.  Her Hong Kong Identity Card states that she was born on 5 August 1969, but she was actually born in August 1965.  She has produced the record from the Immigration Department showing that she was issued her Hong Kong Identity Card on 24 June 1991.  She was cross-examined by Mr Chang as to what proof she had about her real year of birth.  Overnight, Yee Chun managed to locate her “待业証” (Graduation Certificate) issued by the authority in Shenzhen on 27 June 1987.  It is stated therein that she was born in August 1965.  The authenticity of this document has not been challenged by Mr Chang.  She also said that her uncle had told her that her brother, Ying Cheung, was born in 1954 and not 1958.

34.Ying Cheung also gave evidence.  He confirmed that, although his Hong Kong Identity Card showed that he was born in 1958, he was in fact born on 26 October 1954.  He had declared a younger age to the Immigration Department so that he could get a job more easily.

35.The first witness called for the claimants was Fung Ping Bun (“Ping Bun”).  He said that he was the younger brother of the Deceased and that he was born in 1932 on the 13^th day of the 11^thmoon in the Lunar calendar.  There has been produced a certificate issued by the local village committee dated 8 December 2014 (“the 1^stCertificate”) certifying that, from the village record, the Deceased and Liang were married on 28 January1950 according to the custom of their village.  It also lists the names of fourwitnesses to the marriage, including Ping Bun, with their Mainland Identity Cards.  That of Ping Bun bears a number which includes the code for his birthday: “19321113” (13 November 1932 or, possibly, the 13^thday of the 11^thmoon in 1932).

36.There is another certificate of the same date issued by the samevillage committee (“the 2^ndCertificate”) certifying that they had ascertained that the Deceased was actually born on 8 February 1930.

37.There is yet another certificate of the same date issued by the same village committee (“the 3^rdCertificate”) certifying the details of the family members of the Deceased.  In the 3^rdCertificate, it is said that Ping Bun was born on 17 November 1932 (or the 17^thday of the 11^thmoon in 1932).  There are therefore discrepancies about the date of the birth: 17^th as opposed to 13^th and whether the day and month were according to the Lunar or the Gregorian calendar.  The crux of the matter is of course the year of birth as opposed to the exact date of birth.

38.There is an earlier certificate by the same village committee dated 4 March 2010 (“the Earlier Certificate”) which says that Liang was born on 30 November 1933.

39.At this juncture, I should mention that, according to the defendant and her son, Wai Lam, both of whom gave evidence in court, after they had been made aware of the abovementioned certificates, they carried out some investigation work in relation to the information contained therein with a view to verifying such information.  It does not appear that their investigation had unearthed anything favourable to the defendant’s case.  I shall say more about this later.

40.Having considered all the abovementioned evidence, I accept the evidence of Ping Bun, Yee Chun and Ying Cheung on the question of the year of birth of the Deceased.  I find that they are straight forward and honest witnesses.  I find on the balance of probabilities that the Deceased was born in the year 1930 and that, as at the time of the alleged marriage, he was aged about 20 years.

41.Furthermore, I am not aware of any age limit set for a Chinese customary marriage.  In his evidence describing the marriage, Ping Bun never indicated that the Deceased and Liang behaved as young children.  Furthermore, Mr Chang in his cross-examination of Ping Bun never suggested that it was a case of young children getting married when he questioned Ping Bun about the details of the ceremony.

42.In all the circumstances, I find on the balance of probabilities that the Deceased and Liang had capacity to marry under Chinese customary law at the time of the alleged marriage.

THE EVIDENCE ABOUT THE ALLEGED MARRIAGE AND SUBSEQUENT EVENTS     

The alleged marriage ceremony

43.I deal first with the alleged marriage ceremony.

44.The first witness called by the claimants was Ping Bun.  He is now aged 87 years.  His witness statement filed in court reads as follows:

「 1.    本人，生於1932年，能書寫及閱讀中文。

2.    本人是馮一雲(已故) 的胞弟，在家兄弟排第二。亦即是原告人的二叔，我現作出此證人陳述書以証明長兄馮一雲與大嫂梁容秀曾進行正式婚禮儀式。

3.    本人自幼與長兄馮一雲及其他家人在中國廣東省恩平市牛江區蓮塘村居住在1985年遷至現居住地。根據當時本村的風俗習慣，新人一般進行過大禮、接新娘、拜天地、拜祖先、夫妻交拜、敬茶給長輩、擺喜酒等結婚儀式，以正式成為結髮夫婦。

4.    大約於[1949年8月]，長兄馮一雲透過媒人馮永深(梁容秀的姐夫) 作媒認識大嫂梁容秀。隨後，長兄馮一雲與大嫂梁容秀於1950年1月28日，按照本村風俗習慣，在本村進行結婚儀式包括過大禮、接新娘、拜天地、拜祖先、夫妻交拜、敬茶給長輩、擺喜酒，正式成為結髮夫婦。

5.    結婚當天，長兄馮一雲與大嫂梁容秀在蓮塘村祠堂擺了8圍結婚喜酒宴請村內叔伯兄弟前來祝賀的親朋戚友；證婚人：岑仕碧(本人母親)、馮紡軍(本人的三叔)，共同見證按照習俗進行的婚禮。本人當天參與整個婚禮全程，在此作出見證聲明。

6.    結婚後，生育一子(馮英祥) ，兩女(馮少玲及馮綺珍，別名：馮綺玲) 。長兄馮一雲與大嫂梁容秀一直在村裏居住廣東省恩平市牛江區蓮塘村六號閘，直至長兄馮一雲大槪1966年6月1日離家往香港工作，而長兄馮一雲隨後於1984年買房安排大嫂梁容秀及他們的孩子搬往深圳居住。」

45.Ping Bun first gave evidence in-chief.  He confirmed and elaborated on his witness statement.  He stated that for the “過大禮” (the sending over of the gifts), one box of cakes and a red packet were given as gifts to the bride’s family.  For the ceremony of “接新娘” (receiving of the bride), he said that Fung Wing sum, the brother-in-law of Liang, her elder sister and the Deceased went to receive the bride from her home.  When the bride reached the Deceased’s home, some yellow hair was burnt at the doorstep before the bride crossed over it.  Then firecrackers were lit.  The bride was wearing a new dress; she had combed and tied her hair with a red string.  The bride and bridegroom then worshipped the sky, the earth and the ancestors of the bridegroom. The bride and the bridegroom then bowed to each other.  They then offered tea to the mother of the Deceased.  She cried because her deceased husband was no longer with her.  Ping Bun said that his father had died on the 13^thday of the 1^stmoon in 1948.  The bride and bridegroom then offered tea to other senior members of the Deceased’s family.  A banquet followed the same evening in the ancestral hall or the village.  The bride and bridegroom then lived in the ancestral house of the family.  They would not have been allowed to live there if they were not properly married.

46.Ping Bun was then cross-examined by Mr Chang.  He was asked how he was able to remember the date of the alleged marriage.  He said that he just could remember because it was a family matter.  He also said that he was able to remember the betrothal in August 1949 because it was near the Mid-Autumn Festival.

47.I accept Ping Bun as an honest witness who was trying to remember things which occurred to the best of his ability.  He might not have been a very eloquent witness and he gave his evidence in the Yanping dialect.  In coming to my conclusion, I also bear in mind his old age.

Subsequent events

48.The second witness called for the claimants was Yee Chun.  In her 1^st witness statement filed in court, she says, inter alia, as follows:

「 6. 父親馮一雲後來於1966年偷渡來港，因此不能回鄉。期間，他一直與我們保持書信聯繫，又定時寄錢給我們作生活費。

7. 在1979年，中國開放後，父親馮一雲回鄉探望我們，當時他帶同葉煥榕隨行，並向葉煥榕介紹母親梁容秀為其妻子。

8. 自葉煥榕認識母親梁容秀後，無論在公眾場合或家庭聚會，葉煥榕一直稱呼母親梁容秀為“阿姐”、“大姐”，而葉煥榕的子女，即馮偉霖、馮港玲及馮偉達，也一直稱呼母親梁容秀為“大媽”。而我及兄姊都稱葉煥榕為“細媽”。

9. 父親馮一雲回鄉後，出資重建祖屋，轉為一棟面積大概有160平方米的三層樓房，每層各有一間睡房。父親馮一雲與母親梁容秀睡二樓睡房，而當葉煥榕到訪時，葉煥榕會睡三樓睡房。

10. 為了方便照顧母親梁容秀及考慮到我和姐姐馮少玲的發展，父親馮一雲於1984年買屋遷三母女到深圳市沙頭角海濤花園3幢二樓C室居住。該住所有兩間睡房，父親馮一雲與母親梁容秀同房睡，我和姐姐馮少玲睡另一間睡房。如果葉煥榕到訪時，我和姐姐馮少玲會在客廳睡，讓睡房給葉煥榕睡。

11. 父親馮一雲與母親梁容秀分別在哥哥馮英祥於1987年的婚宴、本人姐姐馮少玲於1989年的婚宴及本人於1991年的婚宴均以主人家身份出席。在三兄妹的婚宴內，新人均先後奉茶給父親馮一雲、母親梁容秀，最後才奉茶給葉煥榕。

12. 直至1996年，父親馮一雲隨葉煥榕及其子女移居美國。

13. 但香港回歸中國後，父親馮一雲自1998年開始不時回港及深圳與母親梁容秀及我們三兄妹團聚。

14. 期間，有次父親馮一雲與葉煥榕一同回港，由於父親馮一雲被葉煥榕虐打到沙田警署報案，並暫住我家，我才得知父親馮一雲與葉煥榕的關係轉差。

15. 由於一直被葉煥榕打罵的困擾，父親馮一雲自1991年起移居深圳及恩平與母親梁容秀同住，直至母親梁容秀過身。

16. 母親梁容秀於2007年過身時，父親馮一雲以丈夫身份替母親梁容秀進行葬禮。當時，葉煥榕並沒有出席母親梁容秀的葬禮。

17. 本人一直並不知道父親馮一雲與葉煥榕在香港註冊結婚，直至父親馮一雲於2010年過身才得知有關事項。」

49.In oral evidence, Yee Chun confirmed the truth of her witness statement.  She confirmed that the four witnesses to the marriage of the Deceased and Liang named in the 1^st Certificate were still alive.  She identified the various photographs taken at her own wedding in Shenzhen in 1991 in which her family members, including Liang and the defendant, took part.  She also confirmed that she herself went through her customary marriage in accordance with the Yanping custom which was similar to what her parents went through as described by Ping Bun.  She identified various photographs taken at the wedding of Ying Cheung in Hong Kong in 1987 including the same family members and showing the offering of tea by the bride and bridegroom to the Deceased, Liang and the defendant.  She also identified one photograph taken at the wedding of Shaoling in Shenzhen in 1989 showing the family members, including Liang and the defendant.

50.Yee Chun was cross-examined by Mr Chang.  I have already referred to the evidence about her true age above.  She said that the village committee which signed the said four Certificates would have been able to check from the “戶籍紀錄” (household record) about the particulars of the villagers.  She also referred to a very old photograph of the Deceased and Liang.  In her second supplemental witness statement which she again confirmed orally, she said that that photograph had all the time been hanging in the ancestral home in Yanping.  She said that she had been told by her mother that that was in fact the wedding photograph of the Deceased and Liang.  Her mother explained to her the customs of marriage in Yanping in the same way as related by Ping Bun in court.  The photograph was taken on the same day as when the Deceased or his family sent over the cakes to Liang’s family.

51.At this juncture, I should point out that I was a bit puzzled when Ping Bun said that the “過大禮” (the sending over of the gifts) took place on the wedding day.  This would seem to contradict the evidence of Yee Chun about what her mother had told her regarding the wedding photograph.  My understanding of the custom is that the “過大禮” (the sending over of the gifts) would normally take place sometime before the wedding day.  Since these acts took place so long ago, almost 70 years, and bearing in mind the age of Ping Bun, on the balance of probabilities, I find that Ping Bun may have remembered wrongly about the date of the “過大禮” (the sending over of the gifts).

52.The defendant gave evidence.  The gist of her evidence, so far as it relates to the marriage between the Deceased and Liang is concerned, is that she was told by the Deceased for the first time in 1980 that he had a son and two daughters by another woman.She said that the Deceased told her that he and that other woman had no formal relationship.  She also said that the Deceased’s father had passed away in 1949 and, hence, he would have been in mourning as at August 1949 and January 1950.  Since the Deceased was a very traditional Chinese, he would not have been talking about marriage at all so soon.  She further said that the Deceased was very poor in 1949 and 1950 and therefore would not have been able to afford to get married.  She further said that she had never been taken back to Yanpingby the Deceased and that she never knew who Liang was, not even her name,until she received a letter from Ying Cheung’s solicitors on 19 January 2012.  In short, she denied having ever had anything to do with Liang or Liang’s children.

53.In her supplemental witness statement and second supplementalwitness statement, which she confirmed in the witness-box, Yee Chun dealt with the allegation by the defendant that the defendant did not know until after the death of Liang who Liang was.  She reminded the Court that, according to Ping Bun’s evidence, the Deceased’s father had died in January 1949 and, hence, the Deceased was no longer in mourning in August 1949.  She further pointed out that the photographs taken at the weddings of the three claimants would be good proof that the defendant had become a member of the Deceased’s family very early on, with Liang as the primary wife and the defendant being the minor wife of the Deceased.

54.I accept the evidence of Yee Chun as corroborated by the photographs at the said weddings.  I do not accept the evidence of the defendant that, even when she was present at the said weddings in the manner shown in the photographs and as described by Yee Chun, she did not know who Liang was, not even her name.

55.Wai Lam also gave evidence and sought to corroborate his mother’s evidence.  His evidence was that after his mother’s then solicitors,Messrs Stephen Lo & P Y Tse, had received a letter dated 30 July 2012 from the then solicitors for the claimants, Messrs Joseph Chu, Lo & Au, informing them that the claimants were considering taking out a probate action against the defendant and seeking a declaration that the Second Marriage was not valid, he and his mother started wanting to check about the alleged marriage between the Deceased and Liang.  The defendant’s solicitors by a letter dated 15 August 2012 asked for supply by the claimantsof more information and documents in support.  By a reply dated 26 October 2012, the solicitors for the claimants supplied to the defendant’s solicitors certain information.

56.Wai Lam further said that he went to make inquiries at the Notary Public Office in Shenzhen to check the accuracy of the marriage certificate of the Deceased and Liang.  He was asked in cross-examination whether, after he had been supplied with the 1^st, 2^nd, 3^rd and Earlier Certificates, he had gone to the village committee of the Deceased to check the household record of the villagers.  He said he did not because he had already formed the view that such record would be false.  He was further asked as to whether he had checked about the alleged wedding with the persons whose details had been set out in the said four Certificates.  He said he did not because the village was too far away and his mother had to go in a wheelchair.  He further said that he did not want to instruct the defendant’s solicitors to go to check because they would only deal with legal matters in Hong Kong.  I find that unconvincing.  I do not accept Wai Lam as a satisfactory witness.  I find that he was afraid to make the necessary inquiries because he was afraid that the truth would be against his mother’s interest.

57.I also note that Wai Lam in his evidence has referred to Ping Bun as “second uncle” (“二叔”) and as the Deceased’s younger brother.  Since I have found that Ping Bun was born in the year 1932, this would be further evidence in support of the fact that the Deceased was born earlier in 1930.

MY FINDINGS

58.In all the circumstances, I find on the balance of probabilities as follows:

(i)   The Deceased and Liang did go through a customary marriage on 28 January 1950 in the manner described by Ping Bun.

(ii)   That marriage was in accordance with the customs of their village in Yanping.

(iii)   That marriage consisted of the three essential stages set out by Patrick Chan J in the case of Kwan Chui Kwok (supra) as quoted in paragraph 27 above.  The Deceased and Liang thereafter lived as husband and wife in the ancestral home and bore three children, the claimants.  They would not have been allowed to do so in the traditional community at that time if they had not been properly married.

(iv)   That marriage was a customary marriage recognized as being valid by the Hong Kong courts.

(v)   The claimants are the children of the Deceased and Liang by the same marriage.

59.In the above circumstances, I find that when the Deceased went through the Second Marriage with the defendant on 3 May 1977, he was already lawfully married to Liang.  Hence, the Second Marriage was and is void.

60.I also find out that Wai Lam, Kong Ling and Wai Tat are the natural children of the Deceased, which fact is not denied by the claimants.

THE GRANT OF LETTERS OF ADMINISTRATION

61.It therefore follows that the defendant has no status to be granted Letters of Administration to the Estate.

62.There are therefore six persons who are entitled to apply for Letters of Administration to the Estate, namely, the three claimants and Wai Lam, Kong Ling and Wai Tat, they being all the children of the Deceased.

63.The claimants submit that I should grant Letters of Administration to the Estate to one of them without even hearing from Wai Lam, Kong Ling and Wai Tat on the ground that those three persons would not be suitable because they would be biased.  The reason put forward by the claimants for saying that those three persons would be biased arises out of an alleged agreement signed between the Deceased and the defendant in 2003 which included a term to the effect that after the death of the Deceased, his estate would be given to Wai Lam, Kong Ling and Wai Tat.  The claimants also submit that Kong Ling and Wai Tat do not seem to be interested because they have not even appeared as witnesses for the defendant.

64.In my judgment, I simply cannot decide on who is or are suitable to be appointed as administrator(s) of the Estate without hearing all the persons entitled to a grant.  If the claimants wanted to argue on the question of suitability, they should have named those three persons as defendants.  The matter will have to be dealt with by the Probate Registry upon receipt of an application by any of the six children of the Deceased.

CONCLUSION

65.In the result, I grant the following declaration and orders:

(i)   A declaration that the marriage between the Deceased and the defendant on 3 May 1977 is void on the ground that at the time of such marriage the Deceased was already lawfully married.

(ii)   The defendant’s application no HCAG 00521/2014 for a grant of Letters of Administration of the estate of the Deceased be dismissed.

(iii)   An order nisi that the costs of this action be paid by the defendant to the claimants to be taxed if not agreed.

66.Lastly, I wish to thank counsel on both sides for their able assistance.

Mr K C Chan, instructed by Yung, Yu, Yuen & Co, for the claimants

Mr Jonathan Chang, instructed by Hampton, Winter and Glynn, for the defendant