J, Ss also known as Ssj Formerly Known As Ssn v. Sja
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FCMC 12024 /2023 [2026] HKFC 133 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 12024 OF 2023 ------------------------------
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-------------------- RULING -------------------- Introduction 1.This Ruling deals with the issue of whether the court has jurisdiction to deal with the divorce in the present proceedings pursuant to section 9 (“Section 9”) of the Matrimonial Causes Ordinance, Cap 179, (“MCO”); specifically, the jurisdictional point hinges on if the marriage between the parties, celebrated in Pakistan, was a monogamous marriage or not. 2.Section 9 provides that,
Background 3.In this case, the petitioner is the wife and the respondent is the husband. For the ease of reference, I shall refer to the petitioner as “W” and the respondent as “H”. 4.Ms Chow and Ms Cheng (now Ms Cheng, SC) of counsel act for W and H respectively. They both appeared on the instructions of the Director of Legal Aid. 5.The following facts are not in dispute. 6.Both parties are of Pakistani origin. H was born and raised in Hong Kong. At all material times, he was and is domiciled in Hong Kong. 7.On 1 January 2008, the parties married in Pakistan. It is stated on the Marriage Certificate that the marriage was celebrated at the Government of Punjab. The marriage was contracted pursuant to the Muslim Family Ordinance 1961 (“Pakistani Ordinance”). Section 6 (Polygamy) of the Pakistani Ordinance sets out a mechanism for a man to contract another marriage with the permission of an Arbitration Council. 8.At the time of marriage, W was living in Pakistan and hence, domiciled in Pakistan. She moved to join H in Hong Kong in around September 2008 and has since settled here. 9.They have 4 children, aged 17, 15, 10 and 7 years old respectively. 10.On 24 October 2023, W petitioned for divorce on the ground of 2 years’ separation. It is common ground that at the time of the petition both parties were domiciled in Hong Kong. 11.The unusual fact this case, ie the marriage was apparently polygamous, caught the attention of this court by reason of the restriction under Section 9. I therefore decided that this jurisdictional point is to be determined as a preliminary issue. H has also taken out a summons on 26 June 2025 for a declaration or determination that, by virtue of Section 9, the court has no jurisdiction over him in respect of the subject-matter of the claim or the relief sought by W. 12.It has to be pointed out that this case is the first of about 13 cases in line with similar factual background – in all these cases both or either one of the parties were of Pakistani origin and had their marriage celebrated in Pakistan in accordance with the Pakistani law. All these cases have been adjourned pending the resolution of the jurisdictional point. Parties’ Case 13.Counsel agree the issue turns on the proper construction and interpretation of the statutes. They further agree that the jurisdiction to grant matrimonial relief is conferred exclusively by statue, ie MCO and that Section 9 imposes limits on such jurisdiction. 14.“Monogamous marriage” is defined in section 2 (“Section 2”), MCO. Section 2 states,
15.On a plain reading of Section 2, it seems the language is adequately clear as to what a “monogamous marriage” is. In the context of the present case, whether the parties’ marriage was monogamous or not is to be determined according to the law of Pakistan at the time of the marriage. W conceded that at the time of the marriage, the Pakistani law allowed H to take another wife if permission was given by the Arbitration Council. It was at the very least potentially polygamous at the time of the marriage. In this regard, Ms Cheng pointed out that a marriage is regarded as polygamous if either party to it is entitled to have another spouse, even if it is de facto monogamous, quoting Rule 77 of Dicey, Morris & Collins (16th Ed, 2023). 16.Ms Chow therefore has an uphill battle to persuade the court that this marriage also falls within the definition of “monogamous marriage” under Section 2. 17.I shall refer to Sections 2 and 9 collectively as “Sections 2 and 9”. The Wife’s Grounds 18.Ms Chow advances two main grounds. 19.The first is H was and is at all times domiciled in Hong Kong. A Hong Kong domiciled person has no capacity, in the eyes of a Hong Kong court, to contract a polygamous marriage anywhere in the world: which does not allow polygamous marriage. By reason of his domicile, the husband had no capacity to contract a polygamous marriage at any time, not even a potentially polygamous one. It is a legal impossibility. Hence, H’s marriage with the wife was a monogamous one. It follows that Pakistani law is not engaged. In any event, H did not have any other wife, nor did he secure the permission of the Arbitration Council to contract another marriage. It is a de facto monogamous marriage. 20.The second ground is that the jurisdictional point is to be considered at the time of the divorce when both parties were domiciled in Hong Kong. 21.Ms Chow relied upon the following canons of construction in submitting that Section 9 admits the above-stated understanding of “monogamous marriage” as per the common law at the time when MCO was considered by the legislature in 1966 (“1966 MC Bill”) and subsequently came into force on 20 January 1967:
22.Ms Cheng’s response, briefly stated, is that W’s position is contrary to the plain and unambiguous wording of the statute and unsupported by the principles of interpretation. 23.At this juncture, it is interesting to note if the court is with W that it has jurisdiction over her petition for the reason that H simply did not have the capacity to contract a polygamous marriage under his personal law, Pakistani law is simply not engaged and hence, relevant expert legal opinion on is not necessary. 24.To the contrary, if the court is with H, given his personal circumstances (for instance, by virtue of the fact that H was domiciled in Hong Kong at the time of marriage and hence, this disentitled him to seek permission from the Arbitration Council under the Pakistani law), an expert legal opinion would be required so as to ascertain if his marriage with W at the time of the marriage was polygamous. 25.Counsel therefore agreed that, for the purposes of saving time and costs, the court should deal with the interpretation issue first. Depending on the outcome, parties would then consider if an expert legal opinion is necessary. 26.I now turn to Ms Chow’s four cannons of construction. 1. Whatever definition is given to a term, the natural meaning of the term, or the legal meaning of that concept at common law, may colour its meaning; 27.Ms Chow referred to Bennion, Bailey and Norbury on Statutory Interpretation (8th Ed) where the learned authors said at [18.6] that, “Where the defined term is a legal concept the definition may be coloured by the legal meaning of that concept as opposed to the meaning that term has in ordinary discourse.” She submitted this is consistent with section 10C(1) of the Interpretation and General Clauses Ordinance, Cap 1, which provides that:
28.The learned counsel then developed her arguments by submitting that, by parity of reasoning, in construing the definition of “monogamous marriage” under Section 9, the court should not confine itself to the bare statutory wording as defined in Section 2, but must also take account of the common law understanding of that concept – ie, a potentially polygamous marriage may lose its polygamous character and acquire a monogamous character upon change of domicile. 29.To begin with, Ms Chow conceded the traditional view taken by the English courts was that expressed in Hyde v Hyde [1866] LR 130 where the English Courts of Probate and Divorce held that marriage as understood in the Christendom is the voluntary union for life of one man and one woman, to the exclusion of all others. A marriage contracted in a country where polygamy is lawful, between a man and a woman who profess a faith which allows polygamy, is not a marriage as understood in Christendom. The English courts would not recognise it as a valid marriage in a suit for the purpose of enforcing matrimonial duties, or obtaining relief. 30.Ms Chow then conducted a review on the development of the English common law before and up to the 1966 MC Bill to make the point that the rule in Hyde v Hyde had been relaxed. In brief, the English courts had propounded the principle that a potentially polygamous marriage may lose its polygamous character and acquire a monogamous character, such as upon a change of domicile by the party who could have potentially taken another spouse to one which does not permit polygamy. The English courts have jurisdiction to entertain a divorce suit and grant matrimonial relief in such circumstances. 31.It has to be pointed out that counsel have no dispute over the development of the English common law in this area. Despite this agreement, it is worth summarizing some of these cases for the purposes of discussion. Cheni v Cheni 32.In Cheni v Cheni [1965] P 85, the parties were uncle and niece and married in Cairo in accordance with Jewish rites, which according to Jewish and Egyptian law was potentially polygamous at its inception and became irrevocably monogamous on the birth of a child. The parties then settled in England where they became domiciled. Those with an English domicile have no personal capacity to contract any marriage other than a monogamous one. 33.The wife filed a nullity petition praying that the marriage be declared null and void on the ground of consanguinity. It was held, per Sir Jocelyn Simon P, that although the marriage was at its inception potentially polygamous, the English court had jurisdiction to adjudicate on a marriage which although potentially polygamous at its inception, had become monogamous at the date of the commencement of the proceedings. Ms Chow emphasized it is important to appreciate the English court’s recognition that the nature of a polygamous union can be changed or converted into monogamous unions, the relevant date for such consideration being at the time of the divorce petition. This supports her contention that the relevant point in considering the jurisdictional point should be at the time of the petition but not at the time of the marriage. Ali v Ali 34.In Ali v Ali [1966] 2 WLR 620, the English court applied Cheni and further relaxed the rule in Hyde v Hyde. Cumming-Bruce J held that the marriage, which was potentially polygamous at its inception but had remained de facto monogamous, was converted into a de jure monogamous union when the husband acquired a domicile in England. Mirza v Mirza 35.Mirza v Mirza (The Times 23 July 1966) was a case where Stirling J applied Cheni and Ali and granted a divorce decree nisi to a husband having acquired a domicile of choice in England thereby converting his potentially polygamous marriage contracted in Calcutta as Muslims into a monogamous one. 36.Ms Chow submitted that upon the proper construction and interpretation of MCO, when it was enacted, the legislature had incorporated this development in the English common law. Principles of statutory interpretation 37.In the Court of Final Appeal judgment of HKSAR v Chen Keen (alias Jack Chen) (2023) 26 HKCFAR 157, Mr Chief Justice Cheung summarized the governing principles of statutory interpretation at [10] –[12]:
Discussion Hansard 38.Ms Chow cited the Attorney General’s speech as reported in Hansard when the 1966 MC Bill was introduced to make good her point. This is accepted to be permissible as an aid to interpretation. As a matter of fact, both Ms Chow and Ms Cheng relied upon the same speech, each took what one needed. For convenience, the parts that Ms Chow relied on are bolded and the parts that Ms Cheng relied on are underlined below. 39.At page 445 of the Hansard dated 21 December 1966, the Attorney General said:
40.Ms Chow placed much emphasis on the part of the speech where the Attorney General said “with new provisions which follow closely the existing English law on the subject and incorporate the various changes which have taken place in the past 10 years in England”. She submitted this showed the legislature must be taken to have incorporated such development in the common law, and accorded Hong Kong courts the jurisdiction under section 9 to grant matrimonial relief for marriages which would have taken on the character of a “monogamous marriage” by the time of the proceedings, whether by effect of domiciliary law or others. 41.It appears that these few sentences form the bedrock of Ms Chow’s argument that “monogamous marriage” under MCO should be interpreted in accordance with the English common law position up to 1966. With respect, I am not sure if Ms Chow was reading too much into these words for the reason that, if one reads further, what the Attorney General cited was the English Matrimonial Causes Act 1965 and he made no mention of the English common law. 42.Further, it is important to note that in the same speech the Attorney General made it clear that “by clause 9 (ie Section 9) no relief of any kind may be granted by the court under this Bill unless the marriage concerned is a monogamous marriage. This is defined in clause 2 as meaning a marriage which is celebrated under the Marriage Ordinance in Hong Kong (that is to say, in a church or registry office) or, if entered outside Hong Kong, is recognized as a monogamous marriage by the law of the place where it occurred”. He also stressed customary marriages and what are sometimes called Chinese modern marriages, which took place in Hong Kong, did not fall within the jurisdiction of courts at all. 43.In respect of clause 2 (ie Section 2), I must say I agree with Ms Cheng that by the use of the words “means”, clause 2 provides an exhaustive, as opposed to an inclusive definition (as in some definition clauses where the word “includes” is used): see Bennion, Bailey and Norbury on Statutory Interpretation (8th ed, 2023) at [18.2]. It would appear it is intended to describe comprehensively the meaning of a “monogamous marriage”. It admits of no expansion of the defined term by reading into it consideration of any other law as Ms Chow emphatically suggested viz the personal law of the parties at their place of domicile, whether at the time of celebration or subsequently at the time of petition. To do so would disregard or distort the plain meaning of the text, which is impermissible. If the legislative intention was that the parties’ personal law is also relevant, one would expect the legislature to have spelt this out and, importantly, to provide for which law should prevail if there is conflict. 44.Further, in my view, the English common law in this area cannot be accepted without question. Common law is not developed in vacuum. I think I am entitled to take judicial notice that there were significant differences in terms of the social, cultural and ethnicity makeups of the two jurisdictions which might have shaped how the common law in this area had developed. Another factor that might have affected the development is the underpinning legislations. 45.It is therefore necessary to turn to the historical background against which MCO was enacted and came into force on 20 January 1967. Historical Background 46.Before MCO was enacted, there were the following relevant legislations.
The MO 47.The MO came into effect on 1 March 1879 and was heavily updated in 1960. This piece of legislation provided for (1) the celebration of Christian marriages or the civil equivalents and (2) the establishment of a general register of marriages. 48.Section 40, inserted in 1932, provided that,
49.It should be noted that “Christian marriage” is not a religious notion; it was the monogamous concept of marriage that mattered: see Rayden & Jackson’s Law and Practice in Divorce and Family Matters (1997) at [4.4]. Christian marriage and its civil equivalent are commonly known as “Registry Marriages”. The DO 50.The DO was enacted on 1 November 1933. Section 2 of the Ordinance stated,
51.Section 4 of DO stated,
52.Pausing here, comparing these two provisions with Sections 2 and 9, it can be seen that they are essentially the same - the court would only have jurisdiction to deal with monogamous marriages recognized by the law of the place where the union was contracted. 53.Chan Lee Kuen v Chan Sui Fai [1966] HKLR 796 was a judgment shortly before the enactment of MCO. It was opined by the court that by reason of section 4(1)(a) of the DO, read in conjunction with the definition of “a Christian marriage or its civil equivalent” contained in section 2, it would not open to a court in Hong Kong to entertain divorce jurisdiction where the marriage was, in its form, a polygamous marriage. 54.Looking at these statutes, one would have the impression that marriages contracted in Hong Kong were either Christian marriages or its civil equivalents and were monogamous, as they are today. However, the real situation back then was quite different. 55.Upon Hong Kong becoming a British Colony, the laws of China (the Qing law) as in force at that time remained operative, except such laws as were contrary to the fundamental principles of English law. English law was therefore inapplicable to Chinese customary marriages, divorce according to Chinese law and custom and adoptions and accordingly, Chinese laws and customs in respect of these institutions prevailed subject to certain exceptions.[1] 56.According to Leonard Pegg’s Family Law in Hong Kong (Butterworths) (1981), back then people were married in one of the following ways:[2] (1) Chinese customary marriages 57.First, Chinese inhabitants married in accordance with Chinese custom. These marriages, referred to as Chinese customary marriages, were potentially polygamous in nature at their inception. Chinese law and custom was part of the domestic law of Hong Kong; the same was not foreign law applied indirectly via the rule of private international law: see Suen Toi Lee v Yau Yee Ping (2001) 4 HKCFAR 474, at [34]. (2) Chinese Modern Marriages 58.Secondly, Chinese modern marriages: these were marriages contracted in Hong Kong purporting to conform with the Chinese Civil Code of 1930. It was monogamous. Though this form of marriage was not the civil equivalent under MO, it was widely adopted in Hong Kong. (3) Marriages Contracted Abroad 59.Thirdly, marriages contracted abroad under a foreign system of law, including marriages contracted and registered in China under the Marriage Law of the People’s Republic of China, 1950 and also Chinese modern marriages contracted in China before 1 May 1950, or in Taiwan after that date, under the Chinese Civil Code 1930. These marriages were monogamous. (4) Registry Marriages 60.Fourthly and finally, by Registry Marriages under MO. 61.It was reported that Chinese modern marriages celebrated since 1930 had out-numbered all other formally celebrated marriages; and before 1971, about one-third of marriages in Hong Kong were either Chinese modern marriages or Chinese customary marriages. The remaining two-thirds of marriages in Hong Kong were Registry Marriages.[3] 62.At this juncture, two points could be noted.
The Marriage Reform Ordinance 63.The Marriage Reform Ordinance (“MRO”), Cap 178, was therefore enacted and came into effect on 7 October 1971. I only need to refer briefly to the relevant provisions. 64.First, MRO abolished Chinese customary marriages; marriages entered into in Hong Kong on or after 7 October 1971 (“the Appointed Date”) are monogamous only and may be contracted only in accordance with MO: sections 4 and 5. 65.Secondly, Chinese customary marriages and Chinese modern marriages celebrated in Hong before the Appointed Date were declared valid or validated respectively; and these validated marriages could be registered with the Registrar of Marriages: see sections 2, 7, 8 and 9. After registration, the dissolution of these marriages could be dealt with in accordance with MCO. 66.Corresponding amendments were made to Sections 2 and 9, MCO. Section 2 (definition of “monogamous marriage”) was amended to include a modern marriage validated by and registered under MRO and Section 9 was amended giving the court jurisdiction to deal with Chinese customary marriage registered under MRO. These amended versions remain to be the current versions. 67.In short, the effect of MRO is that on or after the Appointed Date marriages in Hong Kong may be contracted only in accordance with MO, ie Registry Marriages, and are monogamous. 68.Leung Lai Fong v Ho Sin Ying (2009) 12 HKCFAR 581 is a case concerning the meaning of “mother” under the Intestates’ Estates Ordinance (“IEO”), Cap 73, for the purposes of grant of administration. The deceased had two “mothers” because his father had two “wives” under Chinese customary law. In its judgment, the Court of Final Appeal gave a succinct summary on the legislative exercise on reforming family law undertaken at the relevant time at [21] to [24]. Though paragraph 24 is not within the scope of the present discussion, it is included for the sake of completeness.
Yeung Yeu-Kong v Yeung Fung Lai Mui 69.Much reliance was placed by Ms Chow on the Court of Appeal case of Yeung Yeu-Kong v Yeung Fung Lai Mui [1971] HKLR 15 in advocating that a polygamous marriage would have changed to a de facto monogamous marriage by a change of parties’ personal law. 70.The facts of Yeung Yeu-kong are significant. In 1960 the parties married in Hong Kong according to Chinese rites and ceremonies. In 1961, the parties were married before the Registrar in accordance with section 38(2) of the Marriage Ordinance (Cap 181). The then section 38(2) stated,
71.The Judge at the first instance declined jurisdiction to grant any relief when the petitioner-husband sought a decree for dissolution of the marriage, opining that there can only be one marriage between the two, ie. the customary marriage which is potentially polygamous and not falling within the meaning of “monogamous marriage” for purposes of MCO. In 1961, when they were “married” in the Registry Office, as they had already married, their status did not alter. The Registry “marriage” was therefore no marriage. 72.The Court of Appeal unanimously overturned the Judge’s decision and held that where the status of the parties to a customary marriage had been “superseded”, “converted” and/or “absorbed” into a monogamous union under MO, Hong Kong Court has jurisdiction to entertain the petition under MCO. 73.Ms Chow stressed it is of special importance to note that Blair-Kerr J stated at page 18 that,
74.Ms Chow then said the learned Judge went on to cite Aliand Cheniwith approval, and concluded at page 25 that,
75.On that basis, Ms Chow said this is the authority in support of the contention that a potentially polygamous marriage may well become monogamous and the jurisdictional point is to be determined at the time of the petition. 76.With respect, I do not see how this case may assist W. It is important not to ignore the nuances of the facts of this case:
77.It should not be forgotten that at all times parties’ domicile remained to be that of Hong Kong, whether before or after the registration in 1961. There was not a change in the domicile as in Cheni, Ali or Mirza. The significance of this case is that the marriage was “converted” from potentially polygamous to monogamous by way of a legislative mechanism, ie registration. That was why Blair-Kerr J said “when parties invoke the provisions of the Marriage Ordinance (ie section 38(2), to that extent they change their personal law” and hence, the learned judge’s opinion must be understood in that context. Underpinning Legislations in England 78.This conveniently brings us to take an overview of the underpinning legislations in England. 79.At the relevant times, the English legislations were the Matrimonial Causes Act 1950, followed by the Matrimonial Causes Act 1965 which, in turn, was replaced by the Matrimonial Causes Act 1973. It is significant to note that there was no reference to polygamous or monogamous marriages, nor were there any provisions similar to our Sections 2 and 9 that the English courts’ jurisdiction was restricted to the voluntary union for life of one man and one woman, to the exclusion of all others as understood in Christendom. That explained why Cheni, Ali and Mirza made no reference to any statutory provisions: see [32] to [35] above. In other words, as far as jurisdiction of the English courts were concerned, there was no statutory provision which limited the court’s jurisdiction over foreign polygamous marriages and dictated that the nature of the marriage must be determined in accordance with the law of the place of its celebration at the inception of the marriage. Indeed, a significant development was that the English Matrimonial Proceedings (Polygamous Marriages) Act 1972 was enacted empowering the English courts to grant matrimonial relief for polygamous marriages. This Act was repealed and re-enacted as Section 47 of the Matrimonial Causes Act 1973. That being the case, it is not difficult to understand why the English courts found their own path to solve the issue, viz by way of a development in the common law 80.The reason why Hong Kong and England parted their ways was explained by Leonard Pegg as early as in 1975. In her article, Chinese Marriage, Concubinage and Divorce in Contemporary Hong Kong (1975) 5 HKLJ 4, she said at page 7:
81.For the above reasons, it is clear to me that the path taken by Hong Kong to resolve our unique problem was by way of legislative intervention viz by validation and registration and was not by a change of personal law. If the English common law had found its way to Hong Kong, there was no need for this legislative conversion exercise. 82.I believe this is the reason why, as conceded by Ms Chow, there is no direct authority on how the principle of “monogamisation” of foreign polygamous marriage is to be applied on the construction of “monogamous marriage” which took place outside Hong Kong. There was none because that was not the path taken. The intention of the legislature is clear, the courts would only have jurisdiction to deal with marriages that were monogamous at the time of contract. 83.It may be argued that the above legislative exercise concerned with marriages contracted in Hong Kong only, they did not deal with the situation of the present case where the marriage was contracted outside Hong Kong. 84.In my view, the entire Section 2 must be read together. When Section 2 is read as a whole, it is clear that it was intended to apply the rule in Hyde v Hyde to marriages contracted in Hong Kong and those outside Hong Kong. It is inconceivable that the legislature had not expressly spelt it out if it was intended to keep the rule in Hyde v Hyde in respect of marriages taken place in Hong Kong and apply another test in respect of marriages contracted outside Hong Kong. 85.Ms Chow also relied upon section 10, MCO which provides that,
86.Again, with respect, I must say this does not assist W. This provision deals only with the procedure, practice and powers of the court in exercise of its jurisdiction which has already been specified under Section 9. 2. The presumption against absurdity 87.Ms Chow submitted there is a presumption against absurdity. She cited Bennion, Bailey and Norbury on Statutory Interpretation (8th edn) where at pages 488-489 the learned authors said of avoiding an anomalous or illogical result:
88.Ms Chow argued it followed that the statutory remedy or benefit conferred by MCO in respect of “monogamous marriage” must operate uniformly across all marriages that fall within the common law understanding of that concept. To construe the provision narrowly so as to exclude marriages which have acquired a monogamous character (though potentially polygamous at inception) would create unjustifiable inconsistency between cases of the same kind. 89.Ms Cheng responded by referring to T v Commissioner of Police (2014) 17 HKCFAR 593 where Lord Neuberger cautioned, at [278], that while the statutory language must be interpreted in the light of its context and purpose, this “should not be seen as a judicial licence to ignore or refuse to give effect to the words which the legislature has chosen to use: when construing an Ordinance, the court is an interpreter not a legislator”. His Lordship cited the opinion of Lord Millett NPJ in China Field Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12 HKCFAR 342 at [36] as a salutary reminder:
90.Ms Cheng went on to submit that consistent with the above, it is explained in Craies on Legislation (13th ed, 2025) at [20-027] that where the meaning of the language of legislation is clear, effect is to be given to that meaning, without it being necessary or proper to consider further the desirability of the result or the application of any other rule of construction. 91.Where there is unintended consequence of clear language, the learned author of Craies on Legislation said at [17-004],
Discussion 92.It has to be borne in mind that MCO was enacted nearly 60 years ago. This piece of legislation, together with the family law reform in 70s of the last century, were to address the social issues unique to our community at that time. On that view, I must say I agree with Ms Cheng that there is no absurdity or illogicality in H’s interpretation of Sections 2 and 9, which promotes clarity, certainty, consistency and pertinently the statutory object that no matrimonial relief should be granted unless a marriage entered outside Hong Kong is recognized as a monogamous marriage by the law of the place where it occurred: see Attorney General’s speech at [39] above. Allowing for one moment that even if it is accepted that our community is now being presented with a new situation or issue (that was not so argued by counsel), a change in the law is a matter for the legislature and for not the courts. Any perceived absurdity or illogicality is no warrant for departing from the clear statutory language. 3. Religious freedom of a person should not be interfered with 93.Ms Chow again relied on Bennion, Bailey and Norbury on Statutory Interpretation (8th Ed) where, at [27.9], the learned authors commented that, “it is a principle of legal policy that by exercise of state power the religious freedom of a person should not be interfered with”. Further, it is enshrined in Article 32 of the Hong Kong Basic Law that “Hong Kong residents shall have freedom of conscience. Hong Kong residents shall have freedom of religious belief…”. It would be wrong, she contended, to adopt a construction which would have the effect of denying individuals domiciled in Hong Kong from accessing the matrimonial relief jurisdiction simply because they entered into Muslim marriagesbut which are de facto monogamous. 94.With respect, I do not understand why religious freedom is engaged. Section 2 applies to all foreign marriages and does not target any particular religion, or specifically Islam. 4. The Proviso 95.Ms Chow’s final ground is it is important to note that the definition in Section 2 is preceded by the Proviso (“In this Ordinance, unless the context otherwise requires,”). Hong Kong courts have recognized that the Proviso may be engaged where the substantive context requires a departure from the definition in order to give effect to legislative intent. 96.Ms Chow cited R v Lam Chee Shing [1960] HKDCLR 73 where the court held that the expression “export” in the Dangerous Drugs Ordinance (Cap 134), is to be read as defined in section 2 of that Ordinance, viz to take out of Hong Kong otherwise than in transit, but if the context otherwise requires, it is to be read as including the taking out of Hong Kong a dangerous drug in transit. By parity of reasoning, so submitted by Ms Chow, the court should recognize that the Proviso permits departure from the rigid definitional wording where the substantive context demands it. To exclude marriages that are potentially polygamous in form but monogamous in fact, particularly where the parties are domiciled in Hong Kong and lack the capacity to contract polygamous unions, would frustrate the legislative purpose of conferring on the court the jurisdiction to grant matrimonial relief over monogamous marriages. 97.The flaw in this ground is that Ms Chow did not identify where in MCO provides “the substantive context” which she says “requires a departure from the definition in order to give effect to the legislative intent”. The Proviso is simply not engaged. 98.In any event, it is now recognized that the Proviso is unhelpful. As explained in Bennion, Bailey and Norbury on Statutory Interpretation (8th Ed) at [18.8]:
99.Speaking of “unless the context otherwise requires” in the context of definition of “wages” under section 2(1) of the Employment Ordinance, Cap 57, Bokhary PJ said in Lisbeth Enterprises Ltd v Mandy Luk (2006) 9 HKCFAR 131, at [16] that,
100.It is pertinent to add that for the same reason the Department of Justice has discontinued the practice of using this Proviso in drafting because it is considered unnecessary and unhelpful to the reader. It is unnecessary because words and expressions are understood in their context even without this express qualification. It is unhelpful because it does not tell the reader in which provisions there is a contrary intention and also can create uncertainty about the meaning of the defined term. See: Drafting Legislation in Hong Kong – A Guide to Styles and Practices (Law Drafting Division of the Department of Justice) (2012) at [5.2.6]. Conclusion 101.On the above analysis, despite Ms Chow’s meticulous research and usual eloquence I am not drawn to her grounds. Ms Chow is in effect asking the court to read “monogamous marriage” as “de facto monogamous marriage” which, if accepted, would render “in accordance with the law in force at the time and in the place where the marriage was performed and recognized by such law” superfluous. I find that Sections 2 and 9 simply mean what they say. In the context of the present case, whether the marriage between the parties is monogamous or not must be considered in accordance with the Pakistani law at the time of the marriage. Case Management Directions 102.The next question is if an expert legal opinion is to be obtained. Counsel indicated that they would try to come up with some agreed directions for court’s approval after having read this Ruling. Case management directions in this regard shall be issued to the parties separately. Costs 103.As the preliminary issue has not been finally disposed of, I make an order nisi that costs are reserved, with counsel certificate. The petitioner and the respondent’s own costs are to be taxed in accordance with Legal Aid Regulations. 104.Finally, I thank counsel for their assistance.
Mr Theresa L CHOW, instructed by Tang, Wong & Cheung Solicitors, assigned by the Director of Legal Aid, appeared for the Petitioner Ms Bonnie YK CHENG, instructed by Ho & Ip Solicitors, assigned by the Director of Legal Aid, appeared for the Respondent [1] Halsbury’s Laws of Hong Kong, at [180.001] Applicability of English law [2] See Chapter 1 [3] see Leonard Pegg’s Family Law in Hong Kong (Butterworths) (1981) at pages 6 & 11 | ||||||||||||||||||||
Cases cited in this judgment