Wong Zhong Lan-xiang and Others v. Frank Wong and Another

HCAP900002/1995

HCAP 900002/1995

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 900002 OF 1995

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Coram: Deputy High Court Judge Andrew Cheung in Court

Date of Hearing: 18 to 22, 25 and 28 March 2002

Date of Handing Down Judgment: 18 April 2002

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J U D G M E N T

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Parties

1.This probate action concerns the intestate estate of a deceased person by the name of Wong Yee-Man (黃以文) also known as Wong Yu-Man (黃宇文). I will simply call him Wong Yee-Man. The 1st Plaintiff claims that she is the lawful widow of Wong Yee-Man, and the 2nd to 5th Plaintiffs are their children. She therefore claims a declaration that she is entitled to the grant of letters of administration of the estate of Wong Yee-Man, and the Plaintiffs claim a declaration that they are entitled to the estate of Wong Yee-Man.

2.Mr. Frank Wong is sued in two capacities in this action. He is the executor appointed under the last Will of his late mother, Madam Shee Hom Wong, whose maiden name was Tam Suey Sum ("Madam Hom Shee") and who passed away in 1992 in New York, and is sued as such in representation of the estate of Madam Hom Shee. He is also sued in his personal capacity as the son of Madam Hom Shee and a Mr. Wong Wing Song (黃榮相) (also known as Wing Song Wong or Song Wing Wong), deceased. I will refer to this gentleman as Wong Wing Song. Originally, the other children of Madam Hom Shee and Wong Wing Song were sued as co-Defendants, but by the time of trial, only Mr. Frank Wong remains as the Defendants in his two capacities. He is so sued because Madam Hom Shee before her death claimed and Mr. Frank Wong still claims that Wong Wing Song and Wong Yee-Man were in fact one and the same person; and moreover, Wong Wing Song/Wong Yee-Man married Madam Hom Shee first, and therefore Madam Hom Shee, rather than the 1st Plaintiff, was the only lawful wife of the gentleman in question prior to his death, and his lawful widow after his death. Mr. Frank Wong in his dual capacity therefore counterclaims for a declaration that he is entitled to a grant of letters of administration of the estate of Wong Yee-Man, as well as a declaration that he and Madam Hom Shee's estate are entitled to the estate of Wong Yee-Man to the exclusion of the Plaintiffs.

3.The only known asset of value of Wong Yee-Man in Hong Kong is a piece of land together with a pre-war building erected thereon known as 64 Tung Choi Street, Kowloon, Hong Kong, which is said to be worth millions of dollars now. The property is registered in the name of Wong Yee-Man. The name Wong Wing Song does not appear in the Land Registry record as forming part of the name of the registered owner of the property. According to the record, the property was purchased by Wong Yee-Man in that name in January 1937. As I shall explain later, neither the original assignment nor any copy of it can be found now.

Issues

4.The main factual issue raised in this case is therefore whether Wong Yee-Man and Wong Wing Song were in fact one and the same person as claimed by the Defendants. If the two were different persons, the Defendants' case would collapse. (In such a case, there is little dispute and indeed it is quite clear from the material available that the 1st Plaintiff would be the lawful widow of Wong Yee-Man.) On the other hand, on the assumption that they were indeed one and the same person, the parties put into issue further questions of mixed law and fact. Primarily, they are whether the alleged marriage between Madam Hom Shee and the deceased gentleman, said to have been contracted in 1921 in Taishan (台山) in the Mainland according to "the old custom", was a valid marriage according to the applicable law; and on the further assumption that it was a valid marriage, whether the alleged subsequent marriage between the gentleman and the 1st Plaintiff also in Taishan in around 1939 nonetheless conferred or had the effect of conferring, according to the applicable law, on the 1st Plaintiff the status of a wife entitling her to representation of and/or succession to (together with her children) the estate of the deceased. I shall deal with the issues in turn.

Competing evidence on the identity of the deceased

5.As I said, the Tung Choi Street property is registered in the name of Wong Yee-Man, and quite naturally it forms the focus of the competing claims. There is ample material to establish that the gentleman with whom the 1st Plaintiff got "married" was called Wong Yee-Man and he was the Wong Yee-Man who purchased the property back in Hong Kong in January 1937. Therefore the burden is really on the Defendants' side to establish that the gentleman called Wong Wing Song who "married" Madam Hom Shee in the Mainland back in 1921 was also called Wong Yee-Man; and not only that, he was indeed the Wong Yee-Man who purchased the property in January 1937. At trial, the Defendants were put to strict proof of their claim that this was the case.

6.The difficulty of the Defendants is that as I said, Madam Hom Shee has passed away for 10 years, and in fact she passed away prior to the commencement of the present action in 1995. The Defendants are therefore forced to rely on some documents made by or on behalf of Madam Hom Shee prior to her death for the purpose of applying for estate duty clearance as a prelude to applying for representation, some old copy immigration records retrieved from the U.S. National Archive Department in Seattle, as well as some other documentary and circumstantial evidence, to establish their case.

7.The Defendants' case is basically as follows. According to the national archive records, Wong Wing Song was born in the Mainland in 1904. His father was said to be an American Chinese. Because of that status, Wong Wing Song successfully applied to enter the States for education in 1923. By that time, his father had already passed away, and he came to the States alone, leaving behind his mother at home in the Mainland. Moreover, by that time, he was already a married man, having married Madam Hom Shee in the Mainland in 1921. His wife was left in the Mainland as well. After his arrival in the States, he became an American citizen and resided in the New York State. In 1931, he successfully applied for his wife, Madam Hom Shee, together with a son born previously in the Mainland, to join him in the States from the Mainland. They continued to live in the New York State. The couple had altogether nine children. One of them passed away in the Mainland when he was several months old. Two of the surviving children were also born in the Mainland, one of them immigrated to the Sates together with Madam Hom Shee in 1931, and the other one (a girl) was left behind in the Mainland. The couple had another six children who were all born in the States in 1931, 1933, 1936, 1938 (Mr. Frank Wong), 1940 and 1941. According to a complaint filed by Madam Hom Shee with the New York authority in 1946, Wong Wing Song deserted his family comprising Madam Hom Shee and six children in New York in November 1943, taking away with him one other child and all the U.S. birth certificates of his children. Madam Hom Shee suspected that Wong Wing Song planned to return to the Mainland and sell the birth certificates there to intending illegal immigrants to the States. She also suspected that he had a "wife" in the Mainland through his previous visits to Mainland from the States.

8.I should add here that according to the immigration papers, Wong Wing Song did visit the Mainland on several occasions in the 1920s and 1930s through the port of Seattle. The last departure for the Mainland was in late 1936, and he apparently returned from that trip in mid 1937. There is no record of any further trip to the Mainland or indeed any record of his departing the States from Seattle thereafter. The evidence is inconclusive as to whether the now available Seattle records are complete, and whether there were other trips to the Mainland after 1937, whether through other ports in the West Coast or by any other means. But according to the known evidence, Wong Wing Song must have spent some time in the States in late 1930s and early 1940s, because as I said, he and Madam Hom Shee had three more children in 1938, 1940 and 1941 in the States, Madam Hom Shee having never left the United States at all material times.

9.It is fair to say that in none of these immigration records, or for that matter, other contemporaneous documents, can one find any reference to Wong Wing Song having another name of Wong Yee-Man. Quite to the contrary, both Wong Wing Song and Madam Hom Shee had told the immigration authority on oath that Wong Wing Song had no other name. The nearest one can find from the old documents is a reference in a 1944 certificate issued by a school principal of a school at which one of Wong Wing Song's children had attended for a short period of time to the effect that the father of the student was "Yee Moon (Wing Shong)", and the references in a 1946 U.S. government memorandum as well as subsequent memoranda which mentioned that Wong Wing Song was "also known as Moon Wong". There is no direct evidence on the source(s) of information of these other names of Wong Wing Song.

10.Further, according to the immigration records, the mother of Wong Wing Song passed away in the Mainland in 1935, and there was no mention of his having any sister in the Mainland.

11.Amongst the copy immigration records made available to this Court, there are several (photocopied) black and white photographs of a young Wong Wing Song. He was described in the records as having "prominent, protruding front teeth".

12.In 1986, Madam Hom Shee made a declaration in the United States in respect of the estate of Wong Wing Song. In the declaration, she described the name Wong Wing Song as being another name of Wong Yee-Man by which he was also known. She described herself as the lawful widow of Wong Wing Song/Wong Yee-Man, and referred to and disputed the validity of the alleged union between the 1st Plaintiff and Wong Wing Song/Wong Yee-Man. She disputed the latter's entitlement to apply for representation of the estate of Wong Wing Song/Wong Yee-Man. There were however no details given as to why she claimed that Wong Yee-Man was in fact Wong Wing Song.

13.In an Affirmation of identity made in 1989 on behalf of the Defendants, a Madam Chin Shee Young sought to provide evidence of the identity of a deceased person described as Wong Yee-Man alias Wong Wing Song. Madam Young, then 86, affirmed that she had known and been well acquainted with the deceased person and also knew and was well acquainted with Madam Hom Shee, as well as a Mr. Choy, the attorney of Madam Hom Shee (and after her death that of Mr. Frank Wong) to apply for representation in Hong Kong. She said she had known Madam Hom Shee and Mr. Choy for over 50 years and 20 years respectively. She claimed, without providing any basis for her belief, that Madam Hom Shee was the lawful kit fat widow and relict of the deceased person. She also affirmed that to the best of her "knowledge", the year of the deceased's marriage to Madam Hom Shee in Taishan was 1920.

14.In an Oath by administrator made on 7th August 1989 by Mr. Choy, the attorney appointed by Madam Hom Shee for applying for representation of Wong Yee-Man/Wong Wing Song in Hong Kong, Mr. Choy swore that the true name of the deceased was Wong Yee-Man; and for many years, he had adopted his other name of Wong Wing Song and used the same as his name while he lived in the States. In fact, the names of Wong Yee-Man and Wong Wing Song referred to one and the same person. He also swore that Madam Hom Shee was the lawful widow of the deceased who had given birth to six surviving children out of the marriage between the two. Mr. Choy did not give details of his knowledge of the matters he deposed to, or his source of information or reason for belief. After the death of Madam Hom Shee in 1992, Mr. Frank Wong reappointed Mr. Choy as his attorney to apply for representation, and Mr. Choy remains the attorney of Mr. Wong in his dual capacity. For reasons not explained to me, Mr. Choy did not give evidence at trial.

15.There is also a notary certificate dated 9th March 1989 issued out of the Notary Certificate Public Office of Guangdong Province in the Mainland certifying that Wong Yee-Man was also known as Wong Wing Song; he was born in 1902 and passed away on 14th December 1970 in Guangzhou. The certificate sets out in both Chinese and English the two names, Wong Yee-Man and Wong Wing Song, respectively. The certificate does not say what particular records, documents or information had been relied on or referred to before it was made.

16.Of much interest if not importance are the contents of a safe deposit box maintained by a deceased person in the name of Wong Wing Song with the Hongkong Bank in Hong Kong. I shall refer to the circumstances under which the contents came to light in a moment. It suffices to say for the time being that when the box was opened by the estate duty people in 1977, it was found, amongst the contents, the birth certificates of five of the children of Madam Hom Shee, as well as the original assignment of the property in Tung Choi Street between the vendor and Wong Yee-Man as purchaser made on 29th January 1937. This is an important discovery from the point of view of the Defendants because it provides a strong link between Wong Wing Song and Wong Yee-Man. The safe deposit box, opened and kept in the name of Wong Wing Song and containing the birth certificates of Madam Hom Shee's children, suggests almost conclusively that this particular Wong Wing Song was indeed the disappeared husband of Madam Hom Shee. But not only that, on the natural assumption that the contents of the box belonged to Wong Wing Song, the fact that amongst the contents there was found the assignment of the Tung Choi Street property purchased by Wong Yee-Man in that name only without any alias suggests quite strongly that Wong Wing Song and Wong Yee-Man were in fact one and the same person. Thus the requisite link to connect Wong Wing Song of the United States and Wong Yee-Man of Hong Kong and the Mainland is found.

17.This brings me to the opening of the deposit box in 1977 by the estate duty people. Apparently this was done as a result of an application by a lady by the name of Chan Tak Fan through Messrs. Yung, Yu, Yuen & Co., a firm of solicitors, for estate duty clearance, apparently as a prelude to an application for representation of the estate of a deceased person described in the caption of the inventory prepared by the estate duty people of the contents of the safe deposit box as "Wong Yee Man alias Wong Wing Song, dec'd." Estate duty clearance paper was issued to the firm of solicitors on 10th December 1978. It is accepted by the 1st Plaintiff that Madam Chan is in fact the elder sister of her son-in-law, i.e. the husband of her eldest daughter with Wong Yee-Man. Not only did Madam Chan apply for estate duty clearance, in 1976, through the same firm of solicitors, Madam Chan entered into a sale and purchase agreement, purportedly on behalf of the 1st Plaintiff, who was described as the widow and "the intended Administratrix of the estate of Wong Yee Man alias Wong Wing Song deceased", to sell the Tung Choi Street property to a third party for $420,000, pending the successful application for representation. Although the agreement itself did not specifically say that Madam Chan signed the same as the lawful attorney of the 1st Plaintiff, the memorial of the agreement registered in the Land Registry, prepared and certified by the solicitors who acted for both the vendor and purchaser, did state that this was indeed the case. A total of $70,000 was received by Madam Chan as deposits under the agreement. But it would appear that Madam Chan did not proceed further to make any actual application for representation to the (former) Supreme Court Probate Registry.

18.The above constitutes another piece of evidence in favour of the Defendants' case that Wong Wing Song and Wong Yee-Man were indeed one and the same person, if Madam Chan was really the lawful attorney and acting on behalf of the 1st Plaintiff in the aforesaid application and transaction. Further, Madam Chan is related to the 1st Plaintiff as set out above, whereas there is nothing to link Madam Chan to the Defendants' side. Nor is there any suggestion that Madam Chan somehow represented yet another party, besides the Plaintiffs and the Defendants, who is or was interested in the estate of Wong Yee-Man. After all, she acted or purported to act on behalf of the 1st Plaintiff and not any other person. Madam Chan did not give evidence at trial. The Plaintiffs' side did not give any evidence on the whereabouts of Madam Chan. The whereabouts of the contents of the safe deposit box, including the 1937 assignment, are not known. No copy of the assignment is available from the Land Registry.

19.Standing directly in the way of the Defendants' case is the 1st Plaintiff's evidence. She said she was born in the Mainland in the year of the Chicken, i.e. 1919. She was 11 according to Chinese reckoning, i.e. 10, when she was brought to Hong Kong by her parents to work as a domestic maid. She worked here until 16 (i.e. 15, around 1934 or 1935) when through the introduction of a mutual friend she came to know Wong Yee-Man, an American Chinese. Very soon afterwards, Wong Yee-Man started dating her. Eventually Wong Yee-Man proposed to marry her, and she put forward as a condition to her agreement to the proposal that Wong Yee-Man had to buy a property for rental collection in her favour. As a result, Wong Yee-Man purchased the Tung Choi Street property; and she said in evidence she had actually visited the property and met its vendor. After the purchase, the two got married in 1939. A wedding banquet or reception was held in a hotel or restaurant in Hong Kong. The couple, together with the mother of Wong Yee-Man who had been residing in Hong Kong together with Wong Yee-Man, then returned to Nam Hong village, Taishan, the native place of Wong Yee-Man in the Mainland, where another wedding ceremony/banquet was held in accordance with the native custom.

20.The 1st Plaintiff claimed in evidence that thereafter the couple settled in Taishan and did not return to Hong Kong. Moreover, Wong Yee-Man never left the Mainland for the United States after marriage. Wong Yee-Man's mother passed away in Taishan in 1953 or 1954; and after her death, the couple moved to live in Guangzhou until 1970 when Wong Yee-Man passed away. The 1st Plaintiff continued to live in Guangzhou and is still a resident in the Mainland. The 1st Plaintiff gave birth to four children after marriage in 1949, 1950, 1954 and 1962 respectively, i.e. the 2nd to 5th Plaintiffs. She said in evidence that her husband was known as Wong Yee-Man as well as Wong Yu-Man, but not Wong Wing Song or any of its variations appearing in the U.S. documents. She said her husband had no safe deposit box in Hong Kong. She said she had never mentioned the existence of the Tung Choi Street property to her eldest daughter or her husband, or for that matter Madam Chan, whom she had only met once after the death of her husband in 1970. She said she never asked Madam Chan to sell the property in Hong Kong on her behalf.

21.It is plain that the 1st Plaintiff's evidence and story cannot stand together with the Defendants' claim that Wong Yee-Man and Wong Wing Song were one and the same person. The most obvious contradiction is the fact that between 1940 and 1941, Wong Wing Song had another two children with Madam Hom Shee in New York. But by then, Wong Yee-Man had been living as the husband of the 1st Plaintiff in the Mainland for a year or two. Further, Wong Wing Song only deserted his family in New York in November 1943.

22.Moreover, according to the 1st Plaintiff, since the two met in Hong Kong, Wong Yee-Man never left her for the States, and the two were always together up until 1970 when Wong Yee-Man passed away in the Mainland. If that is true, Madam Hom Shee's husband must have been another person. Furthermore, according to the 1st Plaintiff, Wong Yee-Man's mother was alive and well until 1953 or 1954 when she passed away in Taishan, whereas according to Wong Wing Song's sworn testimony before the U.S. immigration authority as disclosed in the national archive papers, Wong Wing Song's mother had passed away in 1935. The 1st Plaintiff said in evidence that her mother-in-law had "bound feet" according to Qing (Tsing) custom, whereas the U.S. papers suggested that Wong Wing Song's mother had "released feet". Further, according to Wong Wing Song's testimony, he only had two younger brothers in the Mainland and had no sister, whereas according to the 1st Plaintiff, Wong Yee-Man had a sister who attended the two wedding banquets in Hong Kong and in Taishan. Moreover, the description given by the 1st Plaintiff of the village and the house in the village in which Wong Yee-Man and his mother resided differed somewhat from that given in the national archive papers even though the names of the villages sound similar. The U.S. papers suggest that Wong Wing Song had an address in Hong Kong, whereas according to the testimony of the 1st Plaintiff that address had nothing to do with her late husband.

23.According to another notary certificate issued by the notary authority in the Mainland pursuant to the application of the Plaintiffs in 1993, which was no doubt based on primary records kept by the Chinese authority including the household registration record of Wong Yee-Man and the 1st Plaintiff and their family, Wong Yee-Man and the 1st Plaintiff were a lawfully married couple. The date of birth of Wong Yee-Man was 12th November 1902, which is different from the date of birth of Wong Wing Song given by him and others on oath as disclosed in the national archive papers, namely, 8th November 1904. The notary certificate does not mention that Wong Yee-Man had an alias Wong Wing Song, quite contrary to the earlier notary certificate obtained by the Defendants' side in 1989.

24.I must say that the oral evidence given by the 1st Plaintiff, now 82 or 83 in age, is far from satisfactory, due allowance having been given to her old age, her eyesight and hearing problems as well as her apparent senility. Apparently her memory is poor, but her answers would suggest that it was only selectively poor whilst in the witness box. She was very definite that she came to Hong Kong at the age of 11 and met Wong Yee-Man at the age of 16. She was very definite that after they met and particularly after their marriage Wong Yee-Man never left her for anywhere, and certainly not the States. (She said in her witness statement, however, that before marriage Wong Yee-Man travelled between Hong Kong and Taishan.) Anyway, she was certain that she had been to the Tung Choi Street property. She was definite that she never instructed Madam Chan to apply for estate duty clearance or to sell the property in Hong Kong on her behalf. She was definite that she had not received any money from Madam Chan. Yet she could not remember in Court, not even roughly, how long the courtship lasted, when the property was purchased by reference to the commencement of the courtship, or how long after the purchase of the property they got married; nor could she remember when these events took place by reference to landmark events like the Sino-Japanese war in the Mainland which started in 1937, the invasion of Hong Kong by the Japanese in 1941, the surrender of Japan in 1945, and the establishment of the People's Republic of China in 1949.

25.The 1st Plaintiff gave 1939 as the year of marriage. She said she had no time for children prior to 1949 when she gave birth to her first child in an attempt to explain why the couple had no children between 1939 and 1949, and said after 1949 she had plenty of time for children, without explaining why this was the case as she had been working as a farmer throughout. She said, despite her claim that she had resided in the home village after marriage for 14 to 15 years, she did not know a single neighbour in the small village in question as according to her everybody was busy working in the field all the time. In her oral evidence, she said Wong Yee-Man's mother lived in Hong Kong prior to her marriage and was present at the wedding ceremony held in Hong Kong. They only returned to the Mainland together on the following day after the marriage in Hong Kong. That contradicted her own witness statement which said that the mother was in the Mainland and was in fact ill and could not come to Hong Kong to attend the ceremony; that was given as a reason why the couple returned to the Mainland after marriage in Hong Kong and held another ceremony in the native village in the presence of the mother.

26.The 1st Plaintiff was sure that her late husband did not have protruding teeth when the only photograph she produced in Court (and disclosed in this action by her side) suggests otherwise. She said all other photographs had been lost (without giving any details), yet his counsel said from the bar table that there were some photographs of Wong Yee-Man taken in his later years that were not disclosed because they were thought to be irrelevant. She was definite that the Wong Wing Song depicted in the copy photographs amongst the national archive papers was not her husband. To me, the gentleman appearing in the only photograph produced by the 1st Plaintiff does bear some resemblance to at least one of the copy photographs in the national archive papers.

27.In the 1st Plaintiff's witness statements, the courtship period was described as two years. The marriage took place in 1939. (That was confirmed by oral testimony as well.) According to the land search record, the Tung Choi Street property was purchased in January 1937. This fits the chronology given by the 1st Plaintiff poorly. The claimed purpose of the purchase of the property was the fulfilment of a condition to marriage laid down by the 1st Plaintiff in response to Wong Yee-Man's marriage proposal. The marriage proposal only came after a period of courtship. According to the story given by the 1st Plaintiff during cross-examination, apparently the proposal was made very soon after the two met and then the property was purchased, yet despite the purchase of the property the two did not get married until two years later. And she could not explain why the property was not purchased in her name even though its purchase was a condition to marriage. Moreover, if one takes into account the 1st Plaintiff's year of birth, and her claimed ages when she came to Hong Kong to work and when she met Wong Yee-Man for the first time in Hong Kong, the story becomes even more confusing and difficult to reconcile. The confusion becomes intolerable if one takes seriously the 1st Plaintiff's evidence towards the end of her cross-examination that she married at the age of 16 (i.e. 1934 or 1935)!

Evaluation of the evidence on the identity of the deceased

28.The Defendants bear the burden of proof that their Wong Wing Song was one and the same person as the Wong Yee-Man who had ostensibly married the 1st Plaintiff and lived with her as man and wife for many years until his death in 1970. I have already pointed out above the various discrepancies between the Wong Wing Song depicted in the national archive papers and other relevant documents and evidence, and the Wong Yee-Man described in the oral evidence given by the 1st Plaintiff and the other evidence relied on by her such as the notary certificate. I shall not repeat myself here. As I said, one important obstacle to the Defendants' case is the 1st Plaintiff's evidence. Again I have already described in some detail the 1st Plaintiff's oral evidence in Court. I have, as I said, given due allowance to her advanced age, her physical condition and her senility (about which I have no concrete medical evidence). I have come to the conclusion that none of these can explain away the many unsatisfactory aspects of her evidence mentioned above. I find the confusion relating to her early years with her late husband the result of a deliberate attempt to hide the truth from the Court, rather than a genuine difficulty or lapse in recollection on her part. The demeanour of the 1st Plaintiff in Court did not impress me at all.

29.In particular, I do not believe her story that whether before or after marriage, her husband never left her side. As pointed out above, her own witness statement suggests that at least prior to marriage, her husband travelled between Hong Kong and the Mainland. I find her purported explanation, and the way or manner she gave her explanation in the box, of why she and her late husband only had their first child so many years after marriage, to be unconvincing. It was quite clearly a story made up by her rather casually in the witness box. Of course I appreciate that there could be many possible reasons for a couple to be childless for many years after marriage and thereafter to start having children one after another. That is quite beside the point. It was her bald assertion that she had no time for children before 1949 and much time for children thereafter, and the very casual manner she gave the answer in the box, that led me to disbelieve her evidence (on this subject) and added to my reservation about her credibility in general.

30.Further, I do not accept her evidence that she knew nothing about Madam Chan's obtaining clearance of estate duty in Hong Kong of her husband's estate and her attempt to sell the property in her name. In this regard, I bear in mind that Madam Chan is the elder sister of the husband of the 2nd Plaintiff. In other words, she is the sister-in-law of the 2nd Plaintiff. Neither the 2nd Plaintiff nor her husband, let alone Madam Chan, gave or was called to give evidence on the matter, even though the attempted sale by Madam Chan in the name of the 1st Plaintiff of the property has been known to the parties for quite some time. The 1st Plaintiff said in evidence that she never told the 2nd Plaintiff about the property in Hong Kong, and she had no idea whether and if so how the 2nd Plaintiff learned about the property in Hong Kong. I find this rather strange. According to the 1st Plaintiff, the rental income derived from the property was a major source of her family's income. It was a property purchased by the husband as a condition to marriage. I find it totally strange that none of this was ever mentioned to the children. The family resided in the Mainland at all times. Bearing in mind the general situation and political atmosphere in the Mainland at the material times, having a property in Hong Kong for rental income which supported the family in the Mainland must have been a noteworthy matter within the family, and to say that the eldest daughter of the family was not aware of it at all is unconvincing. Moreover, the children did eventually in 1986 declare in their mother's favour that they had abandoned their rights to inherit the property in Hong Kong for the purpose of enabling the mother to sell in her own name the property to a third party, a Mr. Ho, the attorney subsequently appointed by the 1st Plaintiff to apply for representation of the estate of Wong Yee-Man in Hong Kong. The 1st Plaintiff never explained how and when her children, including the 2nd Plaintiff, came to know about the Hong Kong property.

31.I find that the 1st Plaintiff did not tell the truth in relation to the 2nd Plaintiff's knowledge of the property in an attempt to distance herself from Madam Chan and her assertion in the 1976 attempted sale of the property and the estate duty clearance exercise that Wong Yee-Man had an alias Wong Wing Song. As to the reason why Madam Chan did not proceed with the application for administration after the estate duty clearance, there could be many possible reasons about which I need not speculate. This fact alone does not affect my view that what Madam Chan did was done pursuant to the knowledge and consent of the 1st and 2nd Plaintiffs.

32.In this regard, I note that the 1976 attempted sale by Madam Chan was done through solicitors acting for both sides. The solicitors must have satisfied themselves that Madam Chan was duly authorised by the 1st Plaintiff to sell the property subject to her obtaining representation on behalf of the 1st Plaintiff. In fact, as I mentioned above, the memorial referred specifically to Madam Chan as the lawful attorney of the 1st Plaintiff. The memorial was certified by a solicitor of the firm. A very substantial amount of money in those days, namely, $70,000 in total by way of deposits, was paid to Madam Chan pursuant to the agreement. I would be very surprised if the solicitors and the purchaser would have been agreeable to the payment of money to Madam Chan had they not thoroughly satisfied themselves respectively that Madam Chan had the necessary authority from the 1st Plaintiff to enter into the transaction. Mr. Chong, counsel for the Plaintiffs, queried why the power of attorney, if there was one, in favour of Madam Chan was not registered in the Land Registry. I am not sure if the power of attorney must be registered. I would have thought that if it is amongst the title documents to be given to the purchaser upon completion, that would be good enough. After all, the power of attorney is only there to prove the authority of the signatory to sign on behalf of the vendor. It does not per se affect title, although I can see the good sense of registering it in the Land Registry. Moreover, this can be done upon completion. In any event, as I said, the memorial was certified by a solicitor who stated in no uncertain terms that Madam Chan was the lawful attorney of the 1st Plaintiff. That contradicts the oral evidence of the 1st Plaintiff in Court. I do not believe the 1st Plaintiff.

33.More fundamentally, regardless of whether Madam Chan was duly authorised by the 1st Plaintiff to obtain estate duty clearance and sell the property or not, the point is that she asserted in the clearance process as well as the attempted sale that Wong Yee-Man had an alias Wong Wing Song. Now it is common ground that Madam Chan has no connection with the Defendants' side whatsoever. Any knowledge of hers relating to Wong Yee-Man must, on the balance of probabilities, have come from the Plaintiffs' side, and quite likely, the 2nd Plaintiff, and possibly others including the 1st Plaintiff. That by itself is some evidence of an admission from the Plaintiffs' camp that Wong Yee-Man and Wong Wing Song were one and the same person.

34.Mr. Chong, in his submission, suggested the theory or speculation that Madam Chan somehow knew that the assignment of the property was deposited by Wong Yee-Man in the safe deposit box of Wong Wing Song (they being according to Mr. Chong two different persons); and therefore Madam Chan who fraudulently wanted to sell the property wrongfully claimed herself to be the lawful attorney of the 1st Plaintiff, and not only that, she also invented the story that Wong Yee-Man had an alias Wong Wing Song (who must also have died by 1976 according to Mr. Chong's theory) so as to enable her to apply for estate duty clearance of Wong Wing Song's estate and open the safe deposit box of Wong Wing Song which contained Wong Yee-Man's title document to the property! I find this theory or speculation simply too much to swallow. And then how does one explain the far more superior knowledge apparently possessed by Madam Chan relating to the affairs of Wong Yee-Man and the whereabouts of his title document than the 1st Plaintiff, the wife of Wong Yee-Man for thirty-one years per her story (counting from 1939) who still claimed even up to trial that she knew nothing about the safe deposit box? If Madam Chan's information did not come from the 2nd Plaintiff, why did the 2nd Plaintiff not come forward and give evidence at trial or at the very least make a declaration to that effect if she is residing in the Mainland and cannot attend trial? (The 1st Plaintiff also resides in the Mainland but managed to come to Hong Kong three times to attend trial between 2000 and this year, there having been two adjournments of the trial until it was eventually heard by me.)

35.Mr. Mak, leading Mr. Dawes in representation of the Defendants at trial, made a good point when he asked rather rhetorically that if Wong Yee-Man and Wong Wing Song were not one and the same person, the two families, in the normal course of events, would not have crossed each other's path at all. If Madam Chan was on a frolic of her own when she attempted to sell the property in 1976 and obtained the estate duty clearance in 1978, and she invented out of her good imagination that Wong Yee-Man had an alias Wong Wing Song, how did this pure fabrication on her part come to the knowledge of the Defendants' side and eventually become their official story? After all, as I said, Madam Chan is not known to be related to the Defendants, and as far as the evidence goes, she disappeared from the scene after obtaining estate duty clearance through solicitors in 1978.

36.I have not forgotten Mr. Chong's argument that it is the burden of the Defendants to prove that the two gentlemen were in fact one and the same person, and that the Defendants have adduced no evidence to explain how they came to know or discover that Wong Yee-Man/Wong Wing Song had purchased a property in Hong Kong or learn about the existence of the Plaintiffs' family. As I said, for some unexplained reason, Mr. Choy did not give evidence at trial. But to put the matter in context, according to the national archives papers, back in 1946 when Madam Hom Shee filed a complaint with the U.S. authority about the abandonment of her and her children by Wong Wing Song who had disappeared since November 1943, she already mentioned that she had heard that Wong Wing Song had a second wife in the Mainland and was intending to return to the Mainland. Moreover, although Taishan county is a big place, on the balance of probabilities, I believe the two widows were talking about the same village in Taishan as borne out by the same or very similar names given by them of the village concerned respectively. The claim of the 1st Plaintiff that she did not know even one single neighbour in her relatively small village despite having lived there for 14 to 15 years (counting from 1939) per her story is simply incredible, and harms her credibility as a witness.

37.The above criticism of the Defendants' case by Mr. Chong can easily backfire. If one is really concerned with two different adults, with different birthdays, different parents, different names and aliases, different siblings, different physical appearances, different places of residence, different wives, and different children, I am quite sure that the fact that they are indeed two different persons should not be too difficult to establish, leaving aside the burden of proof for the time being. I am surprised that only one rather out of focus photograph of the deceased was produced by the Plaintiffs. I simply do not accept the 1st Plaintiff's evidence that all other photographs have been lost. Counsel's assertion from the bar table that there are other photographs taken in the later years, if true, would make the situation even more puzzling. Unless Wong Yee-Man had lost all his front teeth in his later years when these photographs were taken, these photographs if they exist must be helpful to the Plaintiffs in showing that Wong Yee-Man was a different person from Wong Wing Song, since, according to the 1st Plaintiff, Wong Yee-Man had no protruding front teeth, whereas according to the national archive photographs Wong Wing Song had quite prominent protruding teeth. Moreover, the dispute between the two families arose back in the 1980s. If Wong Yee-Man was not Wong Wing Song, what other easier way to disprove the false claim made by the members of Wong Wing Song's family could there be than the photographs of Wong Yee-Man? Is it being suggested that all photographs had been lost by all the Plaintiffs as well as their relatives and friends by then? What about any photographs kept by the Mainland authorities (after all they were able to issue the notary certificates)?

38.And what about the siblings of Wong Yee-Man? Besides the sister, did Wong Yee-Man have any younger brothers (like Wong Wing Song who according to the national archive papers had two younger brothers), and if yes, what were their names? Or did they have the same names as the two younger brothers of Wong Wing Song? Proving their names and their relationships to Wong Yee-Man by another notary certificate should not be a difficult matter.

39.I can go on and on for quite a while. I am of course aware, as I have said more than once in this judgment thus far, that it is for the Defendants to prove that the two gentlemen were one and the same person, and the Plaintiffs are perfectly entitled to put the Defendants to strict proof of this issue. But the point is this. Commonsense dictates that the two families would not have crossed each other's path in the way they did in this case if the two gentlemen were not one and the same person or had some other connections between them; and on the facts of this case it should be easier to prove that two gentlemen were different persons (if that really was the case) than that they were one and the same person. The fact that the Plaintiffs choose basically to put the Defendants to prove, apart from relying on the totally unsatisfactory and unreliable evidence of the 1st Plaintiff, is itself a tell-tale sign.

40.Moreover, prior to the discovery of the national archive papers by the Defendants in 2000, which disclosed for the first time certain discrepancies such as the birthday, the mother and the sister of Wong Wing Song contradicting the Defendants' claim that Wong Wing Song was Wong Yee-Man, the Plaintiffs, on a fair reading of their pleadings as well as their intended evidence and preparation for trial, did not seriously challenge the claim that Wong Wing Song was Wong Yee-Man. It was only after the discovery of the archive papers containing those discrepancies that apparently serious effort was put into fighting this issue of identity. If Wong Wing Song and Wong Yee-Man were actually two different persons, the (former) attitude of the Plaintiffs would be difficult to understand.

41.Turning to the discrepancies disclosed by the national archive papers, most if not all of them would disappear if one accepts the theory put forward by Mr. Mak in submission that Wong Yee-Man simply pretended to be the son of an American Chinese bearing the name of Wong Wing Song for the purpose of applying for immigration to the States. This would of course have involved not only the deceased but also Madam Hom Shee as well as two American sponsors (also American Chinese and friends of the late father of the real Wong Wing Song) giving false testimonies before the U.S. immigration authority. Now unlike the theory relating to Madam Chan's attempt sale of the property and estate duty clearance exercise put forward by Mr. Chong, this theory or speculation by Mr. Mak is in my view at least credible, given the history of people emigrating from the Mainland to Northern America during the late Qing (Tsing) Dynasty at the turn of the last century. Put another way, this is not something new or unheard of before.

42.And as to Mr. Chong's suggestion that the embracing of this theory would mean that those involved all gave false testimonies before the U.S. immigration authority, I would note that in fact according to the national archive papers, in late 1920s Wong Wing Song unsuccessfully applied for the immigration of one of his "younger brothers" to the States. His and his supposed brother's stories were not believed by the immigration authority, and subsequently Wong Wing Song admitted to the authority that he had given false evidence before the authority in relation to the unsuccessful application. Not only does it cast doubt on Wong Wing Song' credibility before the immigration authority and the reliability of what Wong Wing Song told them as recorded in the national archive papers, this incident also evidences that the U.S. authority did not accept that this second person, claiming to be the younger brother of Wong Wing Song and therefore the younger son of the American Chinese father of Wong Wing Song, was really their younger brother and younger son respectively. I do not find the suggestion that Wong Yee-Man impersonated himself as Wong Wing Song in order to gain entry to the States something totally incredible or unbelievable. I treat it as a possibility or possible explanation for the discrepancies disclosed by the national archive papers that I should put in the scales in deciding whether the Defendants have successfully proved that the two gentlemen were one and the same person on the totality of the evidence before me. And of course if the story of impersonation was true, that would explain away the different birthdays, the mother, the sister, the home village, and generally why Wong Wing Song became Wong Yee-Man again after he left U.S. soil for good.

43.As regards the notary certificates from both sides, I place little weight on the notary certificate produced by the Defendants as the source of information of the contents of the certificate certifying that Wong Yee-Man had an alias Wong Wing Song is quite unknown. As for the much more detailed notary certificate obtained by the Plaintiffs, its usefulness in relation to the determination of the real identity of Wong Yee-Man is limited because it is only as good as the information obtained and kept by the relevant Mainland authorities. Given that the material information relates to events that occurred prior to 1949, and in the absence of reliable evidence that the relevant authorities have had access to reliable information and data kept by their predecessors prior to 1949, the notary certificate of the Plaintiffs is as I said of limited use although I have given its contents the due weight they deserve.

44.There are some other minor side points made by both sides in relation to this issue. I do not wish to lengthen this judgment unnecessarily by dealing with them one by one here. Suffice it to say, I have taken on board all of them and given them their due weight in the matter in my deliberation. What I have done was simply to set out expressly the more important points that went through my mind during my deliberation process. They were not meant to be exhaustive. Moreover, to many if not all arguments there could be possible counter arguments. Basically everything turns on possibilities and probabilities. There is no single conclusive factor in the present issue. I also wish to say that I have throughout borne in mind the burden and standard of proof, even when I discussed as I did in some detail above what the Plaintiffs could have done in this case.

Finding on the true identity of the deceased

45.On the totality of the evidence before me, I have come to the firm conclusion, on the balance of probabilities, that Wong Yee-Man and Wong Wing Song were one and the same person. I find that the Defendants have proved their case on this issue to my satisfaction based on the civil burden of proof. I also find that the deceased - this is the way I would call the gentleman from now on in this judgment - married or more correctly purported to marry (an issue which I would deal with in the next section of this judgment) in late 1930s. The two did celebrate their union both in Hong Kong and in the Mainland. I need not make any finding on whether the purported marriage took place before or after the Tung Choi Street property was purchased and why it was purchased. But I do find that after marriage or purported marriage, the deceased did return to the States and there fathered at least two more children with Madam Hom Shee before he eventually abandoned his family there in early to mid 1940s, returned to Hong Kong or the Mainland and rejoined the 1st Plaintiff for good. The couple subsequently lived in the Mainland until the deceased passed away in 1970, there having been born four children out of this union. I do not rule out the possibility of intermittent visits by the deceased of the 1st Plaintiff in the Mainland or Hong Kong after marriage and before his eventual abandonment of the New York family; the national archive papers were quite inconclusive in this regard. But I find that the deceased only returned to stay permanently with the 1st Plaintiff after November 1943, and that should explain to some extent why the two of them only had their first child in the Mainland in 1949.

46.I further find that Madam Chan was indeed duly authorised by the 1st Plaintiff to sell the property in 1976 and apply for estate duty clearance which she successfully completed in 1978. The safe deposit box belonged to the deceased and the estate duty people came to open it pursuant to information supplied by Madam Chan who in turn obtained it directly or indirectly from the 1st Plaintiff. For some reason unknown to me but also quite irrelevant for my purpose, the intended application for representation was not proceeded with, possibly because the opening of the safe deposit box revealed quite decisively that the deceased had several other children born in the States whose birth certificates were amongst the contents of the safe deposit box opened in the presence of the estate duty people. This no doubt complicated matters in terms of obtaining representation, succession to the estate as well as disposal of the only known and valuable property, i.e. the Tung Choi Street property, from the angle of the Plaintiffs. But as I say, I need not make any definite finding on this point.

Validity of the first marriage

47.Having come to the conclusion that the two gentlemen were one and the same person, I now turn to deal with the validity of the marriage or purported marriage between the deceased and Madam Hom Shee which from any angle came first in time. 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 of the new marriage law contained in the Civil Code of the Nationalist government in 1931. Alternatively, they claim that a common law marriage existed between the couple according to New York State law then applicable after the couple both immigrated to the States and made New York State their home in the early 1930s.

48.This Court will recognise a foreign marriage, i.e. a marriage contracted out of this jurisdiction according to its own rules of conflict of laws. Essentially, there are three matters to be considered. First, (with several exceptions which do not concern us) the marriage must have been celebrated in conformity with the formal requirements of the law of the place where the marriage was celebrated (lex loci celebrationis), e.g. the requirement of registration, the holding of a ceremony etc. This is generally known as the formal validity of a marriage. Second (and again subject to some immaterial exceptions), both parties must have possessed the capacity to marry in accordance with the law of each party's antenuptial domicile, e.g. law relating to minimum age of marriage, union between the same sex, bigamous union, or prohibited degrees of consanguinity or affinity. This is generally known as the essential validity of a marriage, or the capacity of a person to marry (according to his or her personal law). Third, a foreign marriage will not be recognized by this Court if it is repugnant to the conscience of this Court, even if it is valid according to the lex loci celebrationis as well as the law of the antenuptial domicile of the parties, e.g. a blatantly incestuous union. See Cheni v Cheni [1965] P 85, 98 to 99. See generally Dicey & Morris, The Conflict of Laws (13th ed.), Vol. 2, paras. 17R-001 to 17-112; Bromley's Family Law (9th ed.) 28 to 52.

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 recognised 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 Company v 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 family within 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 1st 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 (1790) 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 other hand, 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 instance decision 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 the former Full Court, the precursor of the Court of Appeal, as binding on me: See Wesley-Smith, Recent Decisions on Precedent in Hong Kong (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 what happened on the wedding day. They both said that they had gone through with the old custom and they were lawfully married. They resided 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 (3rd ed.) 4-11; and see for e.g. Kwan Chui Kwok Ying 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 according to 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.

56.For this reason, I should only very briefly deal with the alternative submission of the Defendants. As I said, they contend that in any event a common law marriage arose after the couple had emigrated to the States according to New York State law existing at the material times which recognised a common law marriage as having the same status as a ceremonial marriage. Expert evidence was adduced to that effect. Again I am only concerned with the formal validity of the claimed marriage here. According to New York State law, the common law marriage was either contracted when the couple respectively made declarations to the immigration authority of the United States that they were lawfully married to each other when Madam Hom Shee applied for admission to the States as the wife of the deceased in 1931, or subsequently through cohabitation and holding out to the community as man and wife that was further reinforced by the birth of no less than six children in the New York State.

57.New York State law at the time is relevant here because, so the Defendants contend, by 1931 at the latest, the couple must have acquired a domicile of choice in New York State where the deceased had been residing since his arrival in the U.S. in 1923. By applying for the immigration of his wife together with their eldest twin son to the U.S., the intention of the deceased (and therefore his wife) to adopt New York State as their domicile of choice cannot be clearer. Mr. Chong, quite correctly in my judgment on the material before me, did not seriously dispute that New York State law at the material times is the relevant law.

58.On the expert evidence before me, I have no hesitation in concluding that a valid common law marriage was contracted between the couple either in 1931 or shortly thereafter, and in no case later than 29th April 1934 when common law marriage was abolished in the New York State.

59.Mr. Chong however took a pleading point. He said that the Defendants' only pleaded case is that of a marriage in the Mainland in 1921. Therefore it is not open to the Defendants to argue that the couple contracted a common law marriage in New York State in 1931 or subsequently but prior to 29th April 1934. I accept part and reject part of Mr. Chong's submission. First, on a fair reading of the pleadings, there can be no doubt that the primary case of the Defendants was a lawful marriage in the Mainland in 1921; but the alternative or the fall-back position of the Defendants is a common law marriage by cohabitation and repute: See paragraph 2 of the Amended Rejoinder and Reply to Re-amended Defence to Counterclaim by the 5th Defendant. Although the word "alternatively" is not used, the reference to the rebuttable presumption of law of a valid (common law) marriage arising from "cohabitation" and repute is in my judgment more than sufficient to inform the reader that the Defendants are running an alternative case of a common law marriage arising subsequent to the commencement and by reason of cohabitation (and repute). The Defendants cannot reasonably be taken to have been referring to the 1921 Mainland marriage itself, only following which cohabitation began, as constituting the pleaded common law marriage. They must have been referring to another marriage arising from the cohabitation and repute as a matter of law if the 1921 Mainland marriage is not valid.

60.Furthermore, the paragraph is couched in sufficiently wide language to cover the cohabitation and repute of the couple in the States. If there was any ambiguity, the Plaintiffs could have asked for particulars which was not done. In the circumstances, they must be taken to have waived the particulars. Moreover, up until the final day of the trial, no one seriously suggested that back in the 1920s and early 1930s in the Mainland there was any legal concept of common law marriage by cohabitation and repute there. No expert report to that effect has ever been disclosed or relied on by the Defendants; and the only expert report disclosed relates to how a common law marriage may have arisen in the New York State according to the law there at the time. Against that background, paragraph 2 of the pleading in question must be understood as a reference to a common law marriage arising after the couple had immigrated to the States. Put another way, the Plaintiffs could hardly say with any genuineness that they were taken by surprise by the contention of the Defendants in this regard. If there was any need to apply for amendment of pleading - in my judgment that is not necessary, I would be prepared to grant leave to amend.

61.On only one point about pleading I am with Mr. Chong. According to paragraph 2, only a common law marriage by cohabitation and repute is pleaded and relied on. There is no reference at all to a common law marriage arising from a declaration made by a couple to the immigration authority according to New York State law applicable at the time. I therefore rule that the Defendants are not entitled to rely on the couple's 1931 declarations to the immigration authority made when Madam Hom Shee applied for admission to the United States as the wife of the deceased to constitute a common law marriage between the two in the States there and then.

62.But this is not fatal to the Defendants' case in this regard at all. As I have already said, I find in favour of the Defendants in relation to the 1921 Mainland marriage as well as the pre-29th April 1934 common law marriage by cohabitation and repute in the New York State between the deceased and Madam Hom Shee.

Validity of the second marriage

63.Having thus decided the issue of validity of the marriage between the deceased and Madam Hom Shee, I now turn my attention to the marriage or purported marriage between the deceased and the 1st Plaintiff, as to which it is common ground (and as per my factual finding above) that it must have taken place subsequent to 1934. As I said, the couple, i.e. the deceased and the 1st Plaintiff, underwent two wedding ceremonies, one in Hong Kong and one in the home village in the Mainland. Mr. Chong relied on the subsequent ceremony as constituting the marriage between the two. I shall deal with both in turn.

64.In relation to the Hong Kong ceremony, there is no suggestion at all that the ceremony constituted a Chinese customary marriage. Whether it complied with the formal requirements of the Civil Code or otherwise satisfied the definition of a "modern marriage" is quite irrelevant because it can never constitute a valid modern marriage in Hong Kong under the Marriage Reform Ordinance (Cap. 178). For according to my finding above, prior to the Hong Kong ceremony, the deceased had been and was still lawfully married to Madam Hom Shee. This is fatal to the formation of a valid Chinese modern marriage in Hong Kong. Section 8 of the Ordinance reads:

"Subject to section 14, every marriage celebrated in Hong Kong before the appointed day as a modern marriage by a man and a woman each of whom, at the time of the marriage, was not less than 16 years of age and was not married to any other person shall be a valid marriage, and shall be deemed to have been valid since the time of celebration, notwithstanding -

(a) that the proper personal law and religion of the parties, or one of them, was Chinese law and custom, and the marriage was prohibited by or failed to comply with the requirements of Chinese law and custom; or

(b) that the marriage was not under and in accordance with the Marriage Ordinance (Cap 181)." (emphasis added)

So the Hong Kong ceremony is quite irrelevant. See also Halsbury's Laws of Hong Kong, para. [180.005]; Pegg at pp. 11 to 16.

65.As regards the Mainland ceremony, it is accepted that the ceremony satisfied the formal requirements under the Civil Code which constituted the governing law at the material time. However, formality is just half of the answer. The parties to the union or purported union must possess the capacity to marry as well in order to contract a valid marriage in the eyes of this Court for recognition purpose according to the basic rules of conflict of laws outlined by me above. As to that, one turns to the law of the pre-marriage domicile of each of the parties. On the evidence there is no doubt that the 1st Plaintiff, a spinster prior to the union, had the requisite capacity to marry at the time. But the problem lies with the deceased who according to my finding above was already lawfully married to Madam Hom Shee at the time of the second purported union. I have also found above that the deceased and Madam Hom Shee's domicile of choice was the New York State. And it is not disputed, nor can it be done, that the law of the New York State was and is absolutely against bigamous marriages. In other words, the deceased had no capacity to marry the 1st Plaintiff.

66.Mr. Chong argued that (according to the 1st Plaintiff's evidence) when the deceased returned to Hong Kong to marry the 1st Plaintiff, he promised her that he was staying for good and would not return to the States; that constituted a change of domicile in favour of the Mainland where the deceased intended to make his home or new home; and as a matter of fact he did live together with the 1st Plaintiff as man and wife for the rest of his life there.

67.The difficulty here is that for the various reasons I explained above, I have already found that the 1st Plaintiff was not a reliable witness, that the two of them only purported to marry each other in mid to late 1930s, and that after marriage the deceased returned to live with his (first) wife in the New York State and had at least (depending on whether the 5th Defendant was conceived before or after the second purported marriage) two more children with her. He only abandoned his family in the United States in November 1943. I do not believe that there was a definite or genuine promise made by the deceased to the 1st Plaintiff that after marriage he would live with her in the Mainland for good. That was not borne out by the actual facts as found by me. In any event, I find as a fact on the evidence before me that the deceased only changed his domicile of choice from the New York State to the Mainland when he left the United States for good and rejoined the 1st Plaintiff either in Hong Kong or in the Mainland after November 1943 and eventually settled in the Mainland for good.

68.In other words, at the time of the purported marriage between the deceased and the 1st Plaintiff, the deceased was still domiciled in the New York State, the law of which prohibited polygamous marriages. He did not have the necessary capacity to marry the 1st Plaintiff under his personal law, and their purported marriage was therefore invalid in the eyes of this Court. It is not recognised here, and it must follow that the claimed status of the 1st Plaintiff as the wife and widow of the deceased is not recognised.

69.This being my conclusion, I would only very briefly mention my view on whether the deceased would have had the capacity to marry the 1st Plaintiff if I had found that immediately prior to the purported marriage the deceased had already adopted the Mainland as his new domicile of choice. I have heard much expert evidence on whether under the Civil Code, in particular under the various articles contained in Chapter IV of the Civil Code which came into force in 1931 in the Mainland under the Nationalist government, a Chinese male had the capacity to contract a second marriage. The extent of expert evidence on the Civil Code that I have heard would seem to go beyond that which was received by the trial court in Suen Toi Lee v Yau Yee Ping [1998] 1 HKLRD 716 & [1999] 3 HKLRD 502 (Keith J.), which went all the way to the Court of Final Appeal ([2000] 3 HKLRD 443 (C.A.), FACV No. 22 of 2000 (21/12/2001) (C.F.A.)) and which concerned, amongst other things, whether the Civil Code allowed a married Chinese male domiciled in the Mainland to take a concubine there. Regardless of the position of a purported concubine, based on the expert evidence I have heard, I find that because of the way the Civil Code dealt with a second marriage, a married Chinese male could contract a second marriage with a female conferring on her the status of a wife, which status would continue for so long as no interested party successfully applied to avoid or annul this second union, notwithstanding the express prohibition against bigamy contained in article 985. That status carried with it the right to an equal share as the first wife in the estate of the husband.

70.This result was the combined effect of article 988 which dealt with void marriages and which did not include a second marriage as a void one, and article 992 which only rendered a second marriage voidable at the instance of an interested party but not void ab initio, to use legal language more familiar to this jurisdiction. To be sure, there were some initial differences in judicial interpretation by the Mainland courts at the time, for after all the above proposition is startling not only to many of us who have been under the belief that marriages under the Civil Code are monogamous in nature, but was equally startling to the judges in the Mainland at the time. But the courts eventually settled in favour of the above interpretation of the various relevant articles in the Code, although to be fair to them they also recognised that this was an anomaly unintended by the draftmen of the Civil Code: See Judicial Council Interpretation No. 1210 (1935); Supreme Court Appeal No. 1709 of the 27th year (1938); Supreme Court Appeal No. 445 of the 28th year (1939); Supreme Court Appeal No. 631 of the 28th year (1939); Judicial Council Interpretation No. 1985 (1940); Judicial Council Interpretation No. 3762 (1947); but c.f. Supreme Court Appeal No. 1819 of the 22nd year (1933); and see particularly the original Chinese texts, which would avoid the unnecessary errors and confusion encountered during the course of trial arising from the use of less than perfect translations of these judgments which were composed in slightly archaic Chinese.

71.And to complete this rather amazing story, this part of the Civil Code was eventually amended (by including a second "marriage" in contravention with article 985 as a void marriage in article 988) in Taiwan in 1985 with no retrospective effect. Before this Court, the Civil Code is of no further relevance whatsoever after 1949 when it was repealed by the new government.

72.This being the case, if I had been of the view that the deceased was domiciled in the Mainland, I would have held that the deceased had the necessary capacity to marry the 1st Plaintiff, conferring on her the status of a wife. I agree with Mr. Chong that in the present context of determining or more correctly recognising the status of the 1st Plaintiff as the wife of the deceased by this Court, one judges a person's capacity to marry by looking at the validity of the second marriage according to the law of domicile rather than any civil or criminal sanction against contracting a second marriage by the party who is already married. In other words, one looks at the product of the purported union - whether it can as a matter of law confer on the other party the status of a spouse, rather than the possible sanction against the remarrying partner to the union. And since the second marriage between the deceased and the 1st Plaintiff was never annulled by any interested party prior to the repeal of the Civil Code in 1949, and there was never any dissolution of the marriage after 1949 according to the relevant law of the People's Republic of China, if I had been of the view that the domicile of the deceased immediately prior to his second purported marriage with the 1st Plaintiff was in the Mainland, I would have found that the 1st Plaintiff was a lawful albeit second wife/widow of the deceased.

73.This would have been a very strange result, for even under Chinese customary law a man could not have two principal wives but only concubines besides his only principal wife: Re Ng Shum (No. 2) [1990] 1 HKLR 67. And according to Suen Toi Lee, under the Civil Code a married man could not take a concubine. Yet under the same Civil Code which was no doubt intended to modernise marriages in China, a man could have two wives, albeit that the status of the subsequent one was "precarious" because of the provisions in article 992 relating to annulment of her marriage on application by an interested party and her inability to petition a divorce. But that seems to be the effect of the very interesting and helpful expert evidence from experts of high eminence on both sides (one of whom was Professor Anthony Dicks S.C. who as the Court of Final Appeal put it in Suen Toi Lee, requires no introduction in the Courts of Hong Kong), which I have had the benefit of hearing at the trial of this case. The decision in Suen Toi Lee only focused on the position of a concubine or purported concubine, and more importantly was governed by the expert evidence adduced by the parties in that case. Foreign law being a question of fact to be decided according to the evidence available in a particular case, my decision on whether a married man could take a second wife under the Civil Code at the material time must be controlled by the evidence adduced before me at trial, rather than what was adduced or not adduced by way of expert evidence before the trial judge in Suen Toi Lee. (Neither side sought to rely on the decision as constituting evidence for the purpose of proving the relevant law under the Civil Code pursuant to section 59(2) of the Evidence Ordinance (Cap. 8).) See Dicey & Morris, Vol. 1, para. 9-004 and footnotes 11 and 12 thereof.

74.Since my primary finding does not require me to decide this point, I have not seen fit to go into the details of the expert evidence on the Civil Code any further than what I have already done. It only remains for me to remark that if I had concluded that the domicile of the deceased was in the Mainland immediately prior to his second purported marriage with the 1st Plaintiff, so that the 1st Plaintiff had become his second wife in the Mainland under the Civil Code, I would be prepared to recognise this second marriage and her status as a second wife in this action, as I do not find that this second union was "so objectionable to the conscience of [this Court]" that it should be refused recognition: Cheni v Cheni at pp. 98 to 99. After all, China was a polygamous society for thousands of years, and to deny recognition of marriages like that of the 1st Plaintiff with the deceased in the context of the present case would only do even greater injustice to the 1st Plaintiff as the "innocent" partner to this bigamous union, particularly bearing in mind the general cultural and social background prevailing at the time of the 1st Plaintiff's purported marriage to the deceased and the status of females in the Chinese society in general. (I say "innocent" although I make no finding on whether the 1st Plaintiff was aware that the deceased was already a married man prior to their "marriage" - quite probably she was not, for in any event given the type of societies Hong Kong and the Mainland were not that many years ago, one should be slow to apply modern or Western moral or marriage standards to these unions of our previous generations.)

75.But all this, though interesting, is quite academic, as I have come to the conclusion that the purported marriage between the deceased and the 1st Plaintiff was not valid. The 1st Plaintiff's claim as the lawful wife/widow of the deceased is rejected.

Presumption of marriage in case of competing marriages

76.During submission, it was debated whether the respective validities of the two competing marriages can and should be resolved by reference to a particular presumption of marriage (or capacity to marry), i.e. the presumption in favour of an existing union over a doubtful earlier one in the case of competing marriages based on cases like Ives v Ives [1967] HKLR 423. In that case, a woman had apparently "married" three times in India under three different forms of wedding. The first and the third weddings were both valid in form under Indian law, whereas that of the second one was doubtful. There was expert evidence to the effect that (in terms of capacity to marry) the second marriage could be a valid one notwithstanding the first one because by the time of the second marriage the husband involved in the first marriage had disappeared for over 7 years, by reason of which the wife to the first union was free to re-marry without a divorce under Indian law. However, the Full Court, following Taylor v Taylor [1967] P 25, applied a presumption in favour of the existing union, i.e. the latest marriage, against the second "marriage" which was regarded as doubtful by reason of the existence of the first marriage as well as its own formal compliance with Indian law. It therefore concluded that the third marriage (i.e. the existing marriage) was the valid one, as there was no "decisive evidence" to the contrary to rebut the presumption. See pp. 434 to 436, and 448 to 450.

77.In a nutshell, the approach of the Court in Taylor v Taylor is, in the words of Cairns J. who decided the case, thus (at p. 39A):

"The view I have taken of the law tends towards the preservation of existing unions: the opposite view would tend towards the avoiding of existing unions in favour of doubtful earlier and, to all intents and purposes, dead ones."

See also Kao v Kao [1975] HKLR 449; Pegg at pp. 22 to 23.

78.In my judgment, the presumption does not help in the present case. First, it is highly doubtful whether this Court should apply a Hong Kong presumption of marriage (relating to capacity to marry) to decide the validity of the deceased's purported marriage with the 1st Plaintiff when according to my above finding, the deceased was domiciled in New York State prior to the purported marriage, the law of which should govern the deceased's capacity to marry. In this regard, Dicey & Morris, Vol. 1, paras. 7-028 to 7-029 has this to say as to whether a presumption of marriage is substantive law or procedural law - in the former case this Court should not apply the local presumption but rather the relevant New York State law (including any presumption of marriage applicable under that law) to determine the deceased's capacity to marry and in the latter case this Court should apply its own applicable presumption of marriage:

" In order to determine whether presumptions are rules of substance or rules of procedure, it is necessary to distinguish between three kinds of presumptions: presumptions of fact, and irrebuttable and rebuttable presumptions of law ...

Examples of the second type of [rebuttable] presumptions [of law] are the presumptions of marriage, legitimacy, and death, which apply (although not always in precisely the same way) to all types of cases. It is uncertain whether such presumptions are rules of substance or rules of procedure. In cases involving presumptions of marriage the courts have applied the lex causae whenever that law was proved; and a dictim on the subject treats such a presumption as a rule of substance. But where it is sought to base a presumption on cohabitation in a number of different countries, whose laws on the subject differ, the forum may have no option but to apply its own rule. There is no direct authority on the question whether the common law presumptions of legitimacy and death are rules of substance or of procedure."

79.For my part, I would hold that a presumption of marriage of the kind in question (i.e. one relating to a person's capacity to marry) is a matter of substantive law, and this Court should not apply the local presumption but rather the law of the pre-marriage domicile of the parties to the purported union (i.e. the law of the New York State in the present case since it is the deceased's capacity to marry which is in question), including any relevant presumption of marriage applicable under that foreign law, to determine the requisite capacity to marry in question.

80.I have come to this conclusion because a person's capacity to marry is basically a question of law of his domicile. A presumption of marriage (relating to capacity), though a 'presumption" in name, is in substance more a substantive rule of law based on policy considerations regarding marriage and related problems (such as succession and legitimacy) which are almost by definition peculiar to the society in question, than a procedural or evidential rule based on commonsense, logic, inherent probabilities or other evidential considerations. Some societies, adopting a pragmatic approach, may treasure the preservation of existing as opposed to past unions, i.e. doubtful unions that are in reality if not legally dead. Some may quite legitimately come to the opposite conclusion based on other equally valid considerations. Ives v Ives and the relevant English case law on which it was based represent the considerations and conclusion of the Hong Kong and English societies. But these considerations and conclusion of our jurisdiction/society in which the essential validity of the marriage in question happens to be tried must be of quite little relevance to the parties to the marriage in question as they, by definition, were not domiciled in our jurisdiction/society at the material time but in another one. It is difficult to justify the application of our jurisdiction/society's considerations and conclusion on marriage and related problems as reflected by our presumption of marriage (relating to capacity) to the parties' purported marriage.

81.In Ives v Ives, the Full Court did not deal with this vexed question of whether it could apply a Hong Kong/English presumption in favour of the third marriage when the re-marrying woman was domiciled in India at the time of marriage, probably because this was never raised or argued before the Court. In those circumstances, Ives v Ives does not prevent me from coming to the conclusion indicated by me above. In any event, my conclusion would seem to accord more with the state of authorities summarised by Dicey & Morris in the passage cited above.

82.In other words, for my part, I would hold that the presumption of marriage (relating to capacity to marry) is a matter of substantive law. Since the deceased was never domiciled in Hong Kong, the local (and English) presumption in favour of the existing union is not applicable at all.

83.As for New York State law at the time, I have positive expert evidence that not only did New York State not have any equivalent or similar presumption in favour of the existing union, when there were two competing "marriages", the law there would actually presume against the validity of the subsequent "marriage" unless the validity of the first one could be effectively challenged - in other words, first in time prevails. Incidentally this provides a good example of my point above that different societies based on different considerations may have very different presumptions of capacity to marry. This being the case, if it had been necessary to resolve the case by a presumption relating to competing marriages, I would have found that according to the applicable New York State presumption, the purported marriage between the deceased and the 1st Plaintiff is invalid, there being less than sufficient evidence before me to challenge the validity of the prior marriage between the deceased and Madam Hom Shee.

84.Second and in any event, if I were wrong and a presumption of capacity to marry is a matter of procedural law, so that this Court should apply its own presumption to determine the validity of the competing marriages, I would still find on the evidence that the presumed validity of the purported marriage between the deceased and the 1st Plaintiff has been rebutted by "decisive evidence" to the contrary. In my view, the validity of the prior union between the deceased and Madam Hom Shee has been quite clearly established either by the customary marriage between the two in the Mainland in 1921 or alternatively by a common law marriage by cohabitation and repute in the Sates at the latest by 1934, as analysed in detail above. I shall not repeat myself here. It must be noted that in Ives v Ives, the validity of the second marriage was put in question because of the existence of the first marriage as well as its own problems in terms of formal compliance with Indian law. Therefore the second marriage was by itself insufficient to constitute the requisite "decisive evidence" to rebut the presumption of validity in favour of the third marriage/existing union.

85.In the present case, however, there was no prior marriage to cast any doubt on the validity of the marriage between the deceased and Madam Hom Shee. The question of formalities of marriage does not constitute any obstacle, something which I have dealt with in the earlier part of this judgment. The first marriage constitutes decisive evidence against the validity of the second marriage. In short, even if the local presumption were to be applied, in my judgment, Madam Hom Shee's marriage still prevails over that of the 1st Plaintiff's.

Succession to the intestate estate

86.Having thus decided the above issues, I am now in a position to determine the relief sought by the parties in this case. As regards the succession to the intestate estate of the deceased, it is trite law that succession to movables is governed by the law of domicile of the deceased person at the time of his death (lex domicilii), whereas succession to immovables by the law of the place where they are situated (lex situs): Dicey & Morris, Vol. 2, paras. 27R-010 to 27-020. In the present case, there can be no doubt that the deceased died domiciled in the Mainland in 1970. The parties have difficulties in informing the Court what law of (intestate) succession, if any, existed in the Mainland back in 1970, and are content with asking me to presume that the relevant law in the Mainland was the same as the law in Hong Kong in 1970, or more correctly, as explained by Dicey & Morris, Vol. 1, para. 9-025, to apply Hong Kong law applicable at the time of death, for the purpose of determining succession to movables. I am prepared to go along with this suggestion. A second twist in the matter is that the deceased passed away in 1970, prior to the commencement of the Intestates' Estates Ordinance (Cap. 73) on 17th October 1971. The Ordinance therefore does not apply to succession to the deceased's intestate estate: section 12 of the Ordinance. It was submitted to me and I accept that in those circumstances succession to the movables of the deceased, a Chinese by race (and treated as if he were domiciled in Hong Kong for our present purpose), is governed by Chinese customary law, which was the applicable local law prior to the commencement of the Ordinance: See Evans, Intestates' Estates (1974 ed.) 1-10; McElney, Distribution under the Intestates' Estates Ordinance 1971 (1972) 2 HKLJ 135; Ho Tsz-tsun v Ho Au-shi (1915) 10 HKLR 69. By the same token, succession to immovables, which is governed by local law in so far as they are situated in Hong Kong, must also be governed by Chinese customary law.

87.According to the expert evidence available, in the present case, all the sons of the deceased, whether legitimate or illegitimate, are entitled to equal shares of the residuary estate, subject to the widow's first claim to maintenance for life, and to the maintenance claim of the unmarried daughters as well as a claim for dowry upon the daughters' marriage. I accept the evidence.

88.Before I apply the law to the present case, I must deal with an argument advanced by Mr. Mak on behalf of the Defendants. He argued that the 2nd to 5th Plaintiffs are not entitled to claim any interest in the residuary estate because they have "abandoned" ("放棄") their right to succession in 1986 in the Mainland when their mother, the 1st Plaintiff, entered into an agreement in Chinese to sell the Tung Choi Street property to Mr. Ho, the 1st Plaintiff's lawful attorney in the present application for representation, in her capacity as the sole beneficiary of the residuary estate of the deceased (by reason of her children's abandonment of their entitlements). I reject this argument for a number of reasons, but in order not to lengthen unnecessarily this long and complicated judgment any further, I would only briefly state the shortest three of them. First, the point has never been pleaded against the 2nd to 5th Plaintiffs. It is an important point which if not pleaded would take the other side by surprise: Order 18, rule 8(1)(b), the Rules of the High Court (Cap. 4). I disallow its running before me.

89.Second, quite plainly, the children's abandonment of their rights was done in favour of their mother so as to constitute her the sole beneficiary of the residuary estate; it was done conditional upon the 1st Plaintiff's acquiring such a status. Given my finding in this case, the 1st Plaintiff was never validly married to the deceased and therefore has no share in the residuary estate. The underlying premise of the abandonment of rights in favour of the 1st Plaintiff is wholly gone. In other words, the fundamental condition to the children's giving up of rights having failed, the abandonment of rights is invalid and of no effect. To have come to any other conclusion would have been most unfair to the children and would have allowed the Defendants to take undue advantage of something that was in essence an internal family arrangement amongst mother and children.

90.Finally, by joining together as co-Plaintiffs in this action to claim an entitlement to succession, the mother and children must be taken to have cancelled the previous abandonment of rights by consent amongst themselves. Mr. Mak has not cited to me any authority on why this cannot be done. I hold that a valid cancellation has taken place.

91.In the circumstances, I find that Madam Hom Shee (whose estate is now represented by her son and executor appointed under her will, Mr. Frank Wong) was entitled to a claim for maintenance from the time of death in 1970 until her own death in 1992 out of the residuary estate of the deceased in Hong Kong. All daughters surviving and unmarried at the time of death in 1970 are entitled to a claim for maintenance until marriage and a claim for dowry upon marriage out of the same. Subject to these prior claims, all the sons of the deceased, whether given birth to by Madam Hom Shee or the 1st Plaintiff, are entitled to an equal share of the residuary estate of the deceased in Hong Kong. I make a declaration in respect of their respective entitlements accordingly.

92.As for the 1st Plaintiff, she was not lawfully married to the deceased. She cannot be regarded as the concubine of the deceased and Mr. Chong has not sought to so argue. But Mr. Chong argued that a woman co-habiting with a male (since deceased) in the same household as his partner (or one of his partners) and part of his family, particularly one who has borne him children, is entitled to a claim for maintenance. I am afraid there is absolutely no such expert evidence on Chinese customary law, or for that matter, relevant case law to that effect that I can treat as evidence in this regard, before me. I find against such a contention, and conclude, not without sympathy to the 1st Plaintiff's position, that she has no share in the residuary estate of the deceased in Hong Kong. I make a declaration accordingly.

Grant of representation

93.As for representation, the claim for representation of the 1st Plaintiff must fail as her claimed status as the or a widow of the deceased is rejected by me. The other Plaintiffs have not applied for representation.

94.As for the Defendants' camp, Madam Hom Shee has long passed away, and Mr. Frank Wong is the executor of her last will. Further, Mr. Wong is a beneficiary of the residuary estate in his own right as a son of the deceased. In the exercise of my undoubted discretion in the matter, I order that letters of administration be granted to Mr. Frank Wong or his lawful attorney subject to such conditions as the Probate Registry may see fit to impose as a matter of normal practice in the case of a foreign administrator or representation by attorney.

95.For the avoidance of doubt, even if the 2nd to 5th Plaintiffs had applied for representation as children/beneficiaries of the residuary estate of the deceased, I would have preferred Mr. Wong either as executor of the last will of Madam Hom Shee, the deceased's only lawful widow, or in his own standing as a legitimate son of the deceased, to the 2nd to 5th Plaintiffs. In my judgment, since succession is governed by Chinese customary law, although sons are not discriminated according to their legitimacy status, I would find it rather odd that a legitimate son should not have precedence over an illegitimate one in terms of representation when everything else is equal.

96.Moreover, the Defendants' camp obviously comprises more children (plus a widow) and thus beneficial shares in the residuary estate than the Plaintiffs' camp. Therefore, in the exercise of my discretion, if the 2nd to 5th Plaintiffs had applied for representation, I would still have ordered that letters of administration be granted to Mr. Wong or his attorney.

Liberty to apply for directions

97.I give general liberty to the parties to apply for further directions in respect of representation and/or entitlement to succession arising from the order and declarations I make.

Costs

98.As far as costs are concerned, I make an order nisi that the Defendants' costs of this action including the counterclaim be paid out of the estate of deceased, to be taxed on a common fund basis if not agreed. (But c.f. the position of an executor who having successfully proved a will in solemn form is entitled to take his costs out of the estate without an order for costs or taxation of costs: Tristram and Coote's Probate Practice (28th ed.) para. 39.05.)

99.As for the Plaintiffs' costs in the action and the counterclaim, I take as the starting point, on the facts of the present case, that if the Plaintiffs had restricted their case to putting the Defendants to strict proof of the true identity of Wong Wing Song, the validity of the marriage between the deceased and Madam Hom Shee and thus the legitimacy of their children, the Plaintiffs' costs should have been paid out of the estate on a common fund basis. This is because the dispute between the parties and thus this litigation may be said to have been substantially caused by the deceased's own conduct, habits or mode of life, which left his affairs in confusion: C.f. Tristram and Coote at para. 39.14; Williams, Mortimer & Sunnucks, Executors, Administrators and Probate (18th ed.) para. 40-04. After all the Plaintiffs represented the deceased's de facto family members for no less than twenty years immediately prior to the deceased's death to the exclusion of the Defendants, and it would have been most reasonable for them to put the Defendants to strict proof of their claim.

100.But the Plaintiffs' case went further than that, and the 1st Plaintiff actually gave evidence at trial on her "marital" history with the deceased and the true identity of Wong Yee-Man, which was substantively rejected by me. They should be held responsible for the costs of both sides that the position they took entailed.

101.On the other hand, the 2nd to 5th Plaintiffs are to a limited extent successful in making a beneficial claim to the estate of the deceased, which was opposed by the Defendants.

102.All this must be reflected in the order on costs. In the exercise of my discretion, I make an order nisi that the Plaintiffs be paid one-third of their costs of the action including the counterclaim out of the estate of the deceased to be taxed on a common fund basis if not agreed.

103.Unless any party applies within 14 days after this judgment is handed down to vary my above order nisi as to costs, the same shall become absolute upon the expiry of the 14-day period.

104.Lastly I would like to thank counsel for their assistance in this rather unusual case.

Representation:

Mr. K.M. Chong instructed by Messrs. H.H. Lau & Co., for the Plaintiffs.

Mr. Bernard Mak and Mr. Victor Dawes instructed by Messrs. Li, Wong & Lam, for the 1st and 5th Defendants.

Remarks:
Application for security for costs by Defendant to Court of Appeal. Appeal dismissed. Please refer to Appeal Judgment of CACV000242/2002.