Chan Chyung Hing v. Wong Kim Wah and Others

IN THE SUPREME COURT OF HONG KONG

PROBATE JURISDICTION

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BETWEEN

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Coram: Deputy Judge Saied in Court

Dates of Hearing: 6, 7 January 1986, 13, 14, 17 February & 22 February 1986

Date of Delivery of Judgment: 9 April 1986

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JUDGMENT

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1. This is a probate action in which each of the two women, CHAN Chung-hing (P.W.1) and WONG Kim-wah (D.W.3), claiming to be the lawful widow of SIU Chiu-yee, who died intestate on the 15th March, 1983, and entitled to a share in his estate, asks for the grant of the letters of administration of the deceased's estate to her.

2. The plaintiff was born in Chiu Chow, Mainland China, in 1928. Her father died when she was eight or nine years of age. Her mother (P.W.2), who is now aged 82, said that she came to Hong Kong with her daughter when she was thirty. On this reckoning they would have come here in about 1936. The mother did some business, selling rice in the market place. They did not own any real property in Hong Kong, and lived in rented premises in Connaught Road West where the deceased also lived in a cubicle. Later, they moved to a room in No. 8, Second Street. The deceased was unemployed and, according to the mother who called him 'SAM LAU', he had no place to dine and was invited by her to go over to dine with them. He used to sleep on a canvas bed, just outside the room which the mother and her daughter occupied. It was the plaintiff's case that the deceased had no relatives in Hong Kong but had an elder brother and their mother living in their native village in China.

3. The plaintiff maintained that she married the deceased at their premises in the Second Street in 1942 in a Ceremony which, according to Mr. Henry Hu (P.W.3) who was accepted as an expert in Chinese law and custom, was a valid Chinese customary marriage. Mr. Hu's credentials are that he obtained an L.L.B. from the University of Political Science, Chung King, in 1942 and practised law in China. In 1952 he obtained a doctorate from the University of Paris. He has practised as a barrister in Hong Kong since 1955. He has written a number of legal publications, including the book TA TSING LU LI in Chinese., He said that his opinions have been placed before the courts in England, Canada, the United States of America and Australia and has testified on the Chinese law and customs in the Courts in Hong Kong and England. Mr. Leonard Pegg (D.W.1), who gave expert evidence for the defence, disagreed and opined that it was invalid on the basis that some of the basic traditional customs had not been complied with. Mr. Pegg graduated in law at the University of Birmingham in 1967. He taught law at the Singapore University from 1967-1970 and thereafter at the Hong Kong University where he also did his masters degree. Currently he is a lecturer at this university. He said that he has made a study of the Chinese customary law and had previously given written opinion on it for proceedings. He is the author of a book on the Family Law in Hong Kong. This however was his first occasion to testify as an expert. However the couple lived together for some ten years and had seven children. It was after her marriage that the plaintiff learnt from the deceased that he was born in China and, at the end of the year when the War ended, he took her to his native village to meet his mother. The plaintiff said that when she was about thirty years of age, they had repeated arguments over the deceased's insistent demands of her to agree to his taking a concubine, including a violent incident which she reported to the then Chinese Affairs Department. Thereafter the deceased stayed away from home, except for visiting her periodically.

4. The second marriage took place in Macau on the 15th January, 1952. D.W.3 said that she was born in Hong Kong on the 26th August, 1932. Both her parents passed away when she was very young. She said that she met the deceased in Hong Kong in 1950 through the introduction of a friend. Towards the end of 1951 she returned to Macau where her family had moved to during the Second World War. The deceased visited her there and told her that he had once cohabited with a woman from whom he had a few children but had parted from her. He then proposed to her. There then followed negotiations between her elder brother WONG Yip-wan (since deceased) and the deceased as a result of which his marriage proposal was accepted and they were married at their residence during which certain traditional customs were complied with. A marriage feast was later held at a restaurant, at which a marriage document was signed by then. This document was registered at the Macau Department of Civil Administration on the 20th September, 1957 and on the following day the deceased also registered his birth in Macau which is stated to be the 4th August, 1922. She said that she stayed with deceased until his death and had five children from him. She arranged for his funeral in Hong Kong.

5. The first question which is of obvious importance is that of the birth of the deceased. It was submitted by learned Counsel for the defence, Mr. Edward CHAN, that the finding about the place of his birth will have great weight on deciding his domicile. I think that he is clearly right in this. The only evidence in the plaintiff's case on this issue is what she learnt from the deceased after their marriage. It was submitted that her evidence that he was born in China was inadmissible as being hearsay. The principal object of Part Iv of the Evidence Ordinance (Cap. 8), inter alia, is to ensure that all first hand hearsay statements are admissible, provided certain conditions are fulfilled. Where those conditions are not complied with the Court has a discretion to admit such evidence under the provisions of 0.38, r.29. Had this matter of non-compliance with the rules arisen during the course of the trial, I would have been minded in the circumstances of this case to exercise my discretion to admit this evidence which undoubtedly is in the nature of first hand hearsay. However, this was not the only evidence, there was some other supplied by the defence which may be summarised as follows :-

6. With regard to the late registration of the deceased's birth in Macau, the evidence of Mr. Lourenco (P.W.4) is pertinent. Since obtaining a law degree from the University of Lisbon in 1974 he has been practising law, in Lisbon from 1975-1982, during which time he served also as assistant professor at the Law Faculty of the same university, and since 1982 in Macau. He said under cross-examination that the birth registration certificate "suggested" that the deceased was born in Macau. He explained that in principle, the applicant must satisfy the authorities that he was in fact born in Macau, adding that it was very easy, at that time, for the Chinese living in Macau to have their birth registered. In his words, the law was "too open regarding the evidence of birth" and he mentioned generally cases of some famous Chinese businessmen "who refer proudly that they were born in China and had their births registered in Macau". He agreed with the defence suggestion that it was fair to say that there were malpractices in the registration process. This evidence however remained uncontroverted, and it seems to me that, faced with the glaring contradiction about the deceased's place of birth in the documents which were produced, learned defence Counsel was constrained to make a bold submission which, according to my notes, proceeded on these lines:

"Since this is a Hong Kong document, Court will be aware and be prepared to take judicial notice that in the making of this document no investigation was made. It may therefore very well be the case that for whatever reasons the deceased wanted to have a further travel document other than his passport, and he certainly could not obtain his Certificate of Identity if he reported to the authorities that he was a Portuguese national holding a Portuguese passport. Therefore I submit that the probative value of the statement of his place of birth on P.3 of the Certificate of Identity was very little. "

Of course courts will take judicial notice of various matters which, for example, are so notorious or clearly established or susceptible of demonstration by reference to a readily obtainable and authoritative source that evidence of their existence is unnecessary- Phipson on Evidence, 13th edn., P.26.Cross on Evidence, 6th Edn., states the following at p. 70 :-

"It has been said that the basic essential is that the fact judicially noticed should be of a class that is so generally known as to give rise to the presumption that all persons are aware of it. No doubt this is the justification for taking judicial notice in the vast majority of cases, but it is not always so."

Having lived in this territory for a little over five years, I cannot say that the matter referred to is either so notorious, or so generally known that I should take judicial notice of it. Mr. Warren CHAN (for the plaintiff) submitted that it was a matter which should be proved by evidence. I am inclined to agree. I will, however, take judicial notice of the fact that this Certificate of Identity is an official document issued by the Immigration Department, and the statement therein contained reflects the record compiled by an officer of the Immigration Department acting under a duty of his office from information supplied by the deceased who could reasonably be supposed to have had personal knowledge of the matters dealt with in that information. If the deceased deliberately misled the Immigration Officer by supplying false information, as the defence submission seems to suggest, then it would demonstrate the kind of person he was which, in the circumstances mentioned on oath by Mr. Lourenco, would point to the probability that the deceased tools advantage of the notorious malpractice prevalent in that part of the world in registering his birth in Macau in 1957. One other factor which tilts the balance more so in that direction is the sequence in which these documents were registered one after the other on consecutive days, and the evidence of D.W.3 that something was said by the deceased at the time about applying for a passport. She said that he obtained the passport after the birth of their third child which was in 1957. The weight of all this evidence indicates to me, and I so find, that the late registration of his birth and the late registration of the second marriage was for the sole purpose of obtaining a Portuguese passport. Taking this with the undisputed evidence that the deceased's mother was alive and living in China by the time of his first marriage and that he was living in Hong Kong before his marriage in 1942, I find that the preponderance of the evidence points to the probability that the deceased was born in China.

7. With regard to the domicile of the deceased, learned Counsel for the defence relies on Rule 9 in Dicey & Morris on the Conflict of Laws, 10th edn. at p. 108, which states :-

Reliance is placed on (c) which, according to the comment at p. 109, applies also to a child who is not strictly a foundling, but about the domicile of whose parents nothing is known. It is true that there is no evidence before me about his father but I know that his mother was alive and living in Chiu Chou at the time of the first marriage. There is evidence also that she visited the couple in Hong Kong and went back to China. To that extent, therefore, I think that I can safely say that his mother was domiciled in China. Having found that the deceased was born in China, I think that Rule 9(c) does not apply, and the position must be viewed in relation to Rule 10, which deals with the acquisition of a domicile by choice. It was submitted that the evidence was insufficient to show that in 1942 he was a resident of Hong Kong as opposed to being merely present. The evidence does indicate that before the first marriage he was involved in some business with his friends MAN Shek-chuen and CHENG Lo-lo. At the time of that marriage, he was unemployed and without proper lodgings. I do not think that living in condition of penury or adversity affects the issue of residence or, for that matter, the domicile of a person. It is clear from the evidence that subsequently he started working on a fishing vessel. I find that there is sufficient evidence to show that he was a resident of Hong Kong and not an itinerant visitor. This is some evidence of animus manendi. The plaintiff said that at the time of the first marriage they had no intention of leaving Hong Kong. D.W.3 said that after the second marriage she learnt that the deceased was employed in Hong Kong as a used car dealer. I take into account also the plaintiff's evidence that when the deceased moved to Macau when she was about 25, which would make it 1953, and she visited him at a time when she was expecting, he forced her to return to Hong Kong to deliver the child. I am of the opinion that all this evidence lends cogency to the quality of his residence to afford the inference that his residence in Hong Kong was with the necessary animus manendi. I find that in 1942 he had acquired domicile in Hong Kong by choice.

8. With regard to the ante-nuptial domicile of the plaintiff, it was submitted by Mr. E. CHAN that the evidence was insufficient to prove that both she and her mother had acquired domicile in Hong Kong by choice. This argument is based on the fact, which was admitted by the plaintiff, that they did not own any real property in Hong Kong and that their former family house was still standing in their native village. Domicile is a matter of intention. Just as residence is one factor, so is the acquisition of real property. With respect, I do not subscribe to the view that because someone is not blessed with the means or the' opportunity to own real property he is thereby denied domicile in the place of his choice where he has made his permanent home. Taking the evidence of their continued residence in Hong Kong during which the mother was engaged in a small business, and the plaintiff's categorical statement that at the time of the marriage in 1942 they had no intention of leaving Hong Kong, I am satisfied that her domicile by choice at the material time was here in Hong Kong, where subsequently she had seven children of the deceased.

9. Just as a marriage is formally valid when (and only when)it is celebrated in accordance with a from required or recognised as sufficient by the law of the country where it was celebrated (Dicey & Morris, Rule 32); so is the capacity to marry governed by the law of each pasty's ante-nuptial domicile (Rule 33). The plaintiff was aged about 14 at the time of the first marriage. Learned Counsel for the defence relies on s.28(2) of the Marriage Ordinance of 1875 which was applicable in 1942, and it reads:-

"28(2). A marriage shall be null and void if both parties knowingly and wilfully acquiesce in its celebration) in any place other than the office of the Registrar or a licensed place of worship (except when authorised by a special licence) or under a false name or without a certificate of notice or licence duly issued, or by a person not being a competent minister or the Registrar or his deputy, or if either party to the marriage is at the time of its celebration under the age of sixteen years. "

It was argued that that being the law at the relevant time, no law of the capacity of the parties may change it, unless it falls within the exception which, in terms of section 39(1), is that the Ordinance applied to "all marriages celebrated in the Colony except non-Christian customary marriages duly celebrated according to the personal law and religion of the parties". As Mr. Warren CHAN rightly says this exception provides a complete answer to the submission made. But learned Counsel for the defence went on to say that the ceremony of the first marriage could not be sufficient for a modern Chinese marriage in accordance with the Chinese Civil Code, this on the basis that the deceased was domiciled in China at the time. I have held his domicile by choice was in Hong Kong. Furthermore, it was never the plaintiff's case that the first marriage was anything else but a Chinese customary marriage. And it is established that the Chinese customary law, which the courts are required to apply, is part of the general law of Hong Kong. Accordingly, I reject the argument based on the Marriage Ordinance of 1875 as being irrelevant and of no substance.

10. Customary marriages are now dealt with by the Marriage Reform Ordinance, Cap. 178, which came into force or, the 7th October 1971. Learned Counsel for the defence argued at length to submit that the first marriage was not saved by this Ordinance. Mr. Warren Chan said that those arguments would be irrelevant to the issues if it were found that the plaintiff and the deceased were domiciled in Hong Kong. That I have already held to be the position but out of deference to learned Counsel I think I should state his argument on this aspect briefly. This was two pronged : the first part is based on the interpretation of the word "inhabitants" in the definition of the "Chinese law and custom" in section 2. Relying on the case of TSE Lai-chiu, deceased, (1969) H.K.L.R. 159 it was argued that the status of "inhabitant" depends on his domicile in the place. This is a common word of the English language and refers to someone who has settled or has an abode in any particular place, which does involve, animus menandi. I find that the Chinese customary law as defined in the Ordinance applied to the plaintiff and the deceased by virtue of both their race and domicile. The second part of the argument is that the word "celebrated" in section 7(1) and (2) of the Ordinance concerns only the formality of the marriage and not the capacity of the parties to marry and if they lacked capacity under the Marriage Ordinance of 1875, then the first marriage will not be saved under the Marriage Reform Ordinance. I have held that the Ordinance of 1875 did not apply to the first marriage. Furthermore I think that the interpretation which is being canvassed cannot be upheld. Celebration of a marriage is understood as the formal act by which a man and woman take each other for husband and wife according to law. It is therefore the culmination of the formalities which have to be complied with to insure their validity in law. Thus, in my view, if the formalities are in any way deficient in not satisfying the requirements of the law, the celebration will be affected to that extent also. Capacity is a legal qualification. Legal form being essential form, hence forma non observata infertur adnullatio actus. In my opinion therefore capacity being an essential ingredient of a marriage to insure the validity of its celebration, it falls squarely within the ambit of s.7. Mr. Hu said that there was no minimum age fixed for marriage in the Tsing law, and he cited as example the traditional custom of the maiden brides, known as tire TUNG YANG HSI. He was confronted with the views of Dr. CHIU in his well known book, The Marriage Laws and Customs of China, at p. 42. Mr. Hu explained that the view that the marriage in the case of the TUNG YANG HSI did not take place when the girl went to live with the boy's family was a different explanation of a sequence of events; the fact, which he emphasized, remaining that nowhere has the learned Doctor said that there is a minimum age fixed for the Chinese customary marriage. It was agreed that the first marriage was not a maiden bride marriage. Mr. Hu was not shaken on this issue and in the absence of any other acceptable evidence to the contrary. I accept his evidence that the Chinese custom does not stipulate a minimum age to contract a valid Chinese customary marriage.

11. Learned Counsel for the defence submitted that the first marriage was devoid of form, hence invalid. It was celebrated at the home of the plaintiff. The deceased also resided in the same premises. The plaintiff maintained that he had no relatives living in Hong Kong. Under cross-examination she said that the deceased had told her so, and she agreed that by the time of the ceremony, she had not met any of his relatives in Hong Kong. She was questioned about whether any effort had been made to ensure that at least some of his relatives attended the ceremony, to which she replied: "He did not have any relatives here. How could any effort be made. " Learned Counsel for the defence submitted that there was no direct evidence to show that the deceased's elder brother SIU Chiu-thing who, the plaintiff said, was in Chiu Chow at the time of the ceremony, was not in Hong Kong or that the deceased did not have an uncle living in Hong Kong. As I view this evidence, I do not think that the plaintiff's testimony was about a collateral matter so that her answers could be taken as conclusive. This was a matter or which the defence were relying to invalidate the betrothal as will be seen presently, and was a matter on which the defence were entitled to contradict her. I find nothing in the evidence to cast any doubt on her knowledge about the deceased's relatives; there was nothing to contradict her, nor was any circumstance brought out to indicate that the first hand hearsay she learnt from the deceased in that respect might have been wrong. Her evidence was thus unscathed.

12. To revert to the narrative of the first marriage, according to the plaintiff's mother, the deceased told her before the marriage that he was poor and did not have much money and she said to him that money was not what she wanted; what she wanted was a good and kind son-in-law like him. Eventually the deceased asked his friend CHENG Lo-lo to give her four silver coins (Ex. P1) of the Mainland China. On the day of the marriage, the date of which the plaintiff could not remember, the following ceremonies were observed :-

13. On the second day, she cooked some food as a matter of formality and served tea to the occupants of the premises.

14. On the third day was performed the ceremony of the bride's return to her maternal home. She said that she prepared some cakes or pudding which they took to her mother, returning with only a small portion together with the cakes which her mother gave her and these were all distributed to others.

15. Mr. Hu and Mr. Pegg are agreed that over the years since the time of  the Tsing Dynasty some of the Six Rites of a Chinese customary marriage have fallen into disuse. Whereas Mr. Hu considers the main ingredients of such a marriage to be betrothal and ceremony, both of which were sufficiently complied with in his opinion, Mr. Pegg maintains that three of the original Six Rites which are now considered as important, were all breached. The three which he mentioned are stated by Dr. CHIU in his book at p. 7 as follows :-

"In the Sung Dynasty (A.D. 960 - 1279) the Six Rites were simplified and reduced to three. That is to say, na ts'ai and wen ming were combined and the new combination was called ts'ai tse or select. Na Chi, na Cheng and Ch'ing Ch'i were amalgamated and became na pi or payment of money. Only Ch'in Ying was left intact. So, since the Sung Dynasty only three rites were observed; namely, t'sai tse, na pi and Ch' in Ying, procedures of selecting the bride, of payment of money in settlement of the marriage and of the bride being welcomed by the bridegroom at his home. In spite of these changes, all old-fashioned marriages are still called marriages by the Six Rites. "

16. I see no divergence of opinion between the experts that a Chinese customary marriage is traditionally an alliance of families and the initiation of the negotiation with the bride's family is through a go between Mr. Pegg said that the betrothal money is pre-arranged between the two male heads of the families concerned. He said that where the father or grandfather in one or both families be dead, the nearest senior male relative would undertake the task of initiating the negotiations. He emphasised the negative in that a betrothal is not an agreement between the bride and the groom and it "definitely" is not an agreement between the bridegroom and the mother of the bride. Mr. Hu agreed that, in normal circumstances, the consent of an agnatic senior of the family would be required but the Chinese customary law made some exceptions: the first being where a member of the family was engaged in business or held an official position outside. This is to be found in Book 3 of the Penal Code of the Manchu or Tsing Dynasty at p. 110. The other exception mentioned by him was where a member of the family was living outside the big family doing his own business and making his own living. He agreed that this exception is not recorded in any book, but maintained that this was a prevailing custom known to the Chinese Community and was particularly so in 1942 in Hong Kong. Mr. Pegg was not aware of such exception and thought that it was not really an exception in that it probably meant that such a man would be allowed by custom to marry under a different system of the law where he lived. He agreed with Mr. Hu that many Chinese customs are not to be found in the Tsing Penal. Code.

17. I could detect no dispute between the experts over the premise that social system changes gradually and that significant changes in the family structure occurred since the Revolution of 1911 and more recently since the May 4th movement of the twenties. It was agreed also that many Chinese have gone abroad and settled in foreign countries. Mr. Pegg was able to speak of a young man going to Malaysia, living away from his family and earning his own living, in whose case he did not consider that it would be necessary for his parents and the parents of the girl he wanted to wed to get together. He agreed that in those circumstances, it would be difficult to have a Chinese customary marriage and it would be quite rare.

18. All this boils down to the fact which is accepted that customary law is not static; it has been described as "a living and developing organ" - see the article by E.S. Haydon in (1962) 11 International and Comparative Law Quarterly 231.  Upon being reminded of his article "Chinese Marriage, Concubinage and Divorce in contemporary Hong Kong", (1975) 5 H.K.L.J. 4, Mr. Pegg said that his views have not changed since, only that now he would be able to express them differently. In that article he said :-

"Whatever divergences there may be in practice, all genuine customary marriages have at least one identifiable function in common: they must be celebrated according to the accepted rites and ceremonies of the parties' families, in conformity with traditions which go back beyond their  living memory. Inspiration is drawn from traditional customs. "

19. I would agree that in conforming with traditions 'inspiration' is dram from traditional custom, but the question surely is the manner and extent of the application of, and conformity with, such customs in the circumstances and environments of the parties concerned. I am of the view, with respect, that Mr. Pegg advocates both in his article and in the evidence that he gave a much rigid interpretation of the customary law which is unacceptable as it "precludes the possibility of recognising that even immemorial traditions can evolve in form without necessarily losing their essential character" - Hayden (supra). In WONG Kam-ying and Another v. MAN Chi-tai (1967) H.K.L.R. 201, HUGGINS, J. (as he then was) said at p. 211 :-

".......... one of the attributes of the English Common Law is that it does not change although it may develop to meet new circumstances. That remark appears to be equally applicable to the Chinese Customary Law. Thus in 1843 the marriage law, although still theoretically based on the Six Rites, was very different from what it was a thousand years earlier. Accordingly, the words 'as it existed prior to the cession' would not mean, as I think Mr. Haydon was disposed to suggest in his learned article that the courts had held, that customary law was 'ossified' as at 5th April, 1843 any more than the common law of England, in so far as it applies in Hong Kong was ossified at that date: in many respects it will have developed and it lies within the jurisdiction of the courts in Hong Kong to decide how and to what extent it has developed and even to take part in deciding the course of its development. Mr. Haydon refers to 'the living customary law' of the peoples of Africa and I find nothing in any decision which is binding on me which compels me to hold that a Chinese customary law is any different in its nature or that it has become ossified for over a century: one merely looks to 1843 to ascertain the applicability of the customary law and the basic rules as they then existed and thereafter one applies those rules subject to such developments as may have taken place since that date. "

20. I doubt very much that in a situation where ethnic communities leave the shores of their native countries and settle in foreign lands, it could ever be said that a young person, living alone without his parents or other senior male relative, would be denied the natural right of procreation through the sanctity of marriage on the argument of lack of the requisite consent to marry. Such rigidity would surely condemn such a person to the status of permanent bachelorhood or spinsterhood which cannot be in accord with the traditional customs with which we are concerned. Learned Counsel for the defence referred me to the exception to the general rule of the custom as stated in paragraph 8 of Dr. Chiu's book at p. 79, which reads :-

"A junior member of the family (i.e. son, grandson, younger brother, or nephew) who is away from home either on official duty or for purposes of trade shall be bound by the betrothal made during his absence from home by his grandparents or parents or his paternal uncle or aunt or his elder brother or elder sister notwithstanding that he may himself have contracted another betrothal. The betrothal effected by the senior member of his family shall have priority and the betrothal contracted by himself shall be dissolved. But if he has already married when abroad instead of only betrothed, such marriage shall stand good and the betrothal made by the senior member of his family shall be dissolved. The party who refuses to abide by this law shall be liable to 80 strokes. "

The phrase "purposes of trade" mist in my view be interpreted liberally to include someone who is engaged in earning his livelihood through business or through any other occupation. This provision clearly indicates the right of such a person, if his betrothal has not already been arranged by his senior relatives of the class therein mentioned, to arrange his own marriage without any reference to them. That is one indication of the flexibility inherent in the Chinese customary law, as indeed it is in any other customary law. The former is shown to be tolerant also in respect of a widow, who has re-married, to be responsible for the marriage of her daughters by her first husband - see Chiu, para. 9 at p. 80. I see no compelling reason why a widow who has not remarried should be denied the same exclusive right for the marriage of her daughter. In the case of WONG Kam-ying (supra), it was said at p. 213 :-

"Dr. Chiu says (op. cir.7) that as early as the Sung Dynasty (A.D. 960 to 1279) the Six Rites were simplified and reduced to three. I think that even greater laxity prevails today than prevailed in 1843. Counsel for the defendant point out that there was no evidence of any betrothal ceremony but I am not persuaded that that is now recognised as essential, since marriages are now usually affaires de coeur rather than contracts between the parents : op. cir. p.11. I find that it was the intention of the parties to proceed in accordance with the Chinese customary rites and I find that those rites were sufficiently performed."

21. In the present case, I find that the acceptance by the mother, having the exclusive right for the marriage of her daughter, of the four silver coins from a go between on behalf of the deceased who, being abroad from his native place and not dependent on his own family, albeit temporarily unemployed, having the capacity to marry without the consent of an agnatic senior member, was clear evidence of acceptance of the offer of marriage and a valid betrothal in accordance with the Chinese customary law. The alternative of course is to be seen in the judicial pronouncement cited above which, in the event of what I have said just now being subsequently found to be incorrect, I would have followed with the least hesitation, coming as it does from such high authority.

22. Mr. Hu said that the other ingredient was the ceremony. He said that in approaching the question of whether the ceremony was sufficient or not he would look at the evidence as a whole and, on that basis, it is not reduced to specifying any "sufficient ingredient" without which the ceremony would be rendered ineffective. He agreed with learned counsel for the defendant that there has to be some form of gesture suggesting the delivery of the bride by her family into the family home of the bridegroom, and acceptance of the bride into the family home of the bridegroom. However, he said that there were a "lot of circumstances" which may render this unnecessary and he cited the instance of the TUNG YANG HSI as an example. Mr. Pegg, on the other hand, preferred to look at each ceremony separately. Regarding the welcoming of the bride, which is the last of the Six Rites, he said that the deceased was not living with his own family and there was no involvement of his family at all, nor was there any attempt to involve his family. Concerning the worshipping of heaven and earth being equivalent to the worship of the bridegroom's family ancestors, he was of the view, looking at it very generally, that in no way did it to relate to her entrance into the husband's family. He opined that, assuming the worship of heaven and earth took place outside the husband's room, in relation to a Chinese customary marriage, it was irregular.

23. The situation here was that the deceased was living alone and in the same premises as the plaintiff and her mother. It is in those circumstances that the ceremonies which were performed are to be viewed. Mr. Hu said that some ceremonies may be short, others long which, to may mind, is a reference to the circumstances in which the event takes place. There is evidence here that the go between SZE Mo escorted the plaintiff to the room of the deceased where he received her, and later, in the presence of MAN Shek-chuen, they worshipped heaven and earth. A reference to the evidence of D.W.3 for the sake of comparison is useful. She said that as the deceased did not have his ancestors' shrine, they worshipped heaven and earth. Mr. Pegg had sought to emphasise the custom of worshipping the husband's ancestors but significantly there is nothing in his evidence to show how this could be achieved in the absence of the ancestral tablets. Here again, I should have thought that the adaptability of the custom would be allowed to play a part. There is however evidence that the deceased took the plaintiff to meet his mother and his elder brother which, according to Mr. Hu, was quite a normal thing to do. The plaintiff served them tea and she said that her mother-in-law was very happy and gave her a laisee packet. Mr. Hu was of the opinion that this signified her acceptance into the family of the deceased.

24. It was submitted by learned Counsel for the defendant that there was nothing peculiar about the place where the first marriage was celebrated. Reliance is placed on s.7(2) of the Marriage Reform Ordinance according to which a marriage shall be deemed to be in accordance with the Chinese Law and Custom if it was celebrated, before the appointed day (i.e. 7th October 1971) "in accordance with the traditional Chinese customs accepted at the time of the marriage as appropriate for the celebration of the marriage as either (a) in the part of Hong Kong where the marriage took place, or (b) in the place recognised by the family of either party to the marriage as their family place of origin". Learned Counsel said that (a) was not relevant. With respect I do not agree. There may be nothing peculiar about the Second Street premises as such, save that the marriage ceremony was held in that part of Hong Kong, and I think that effect has to be given to the words "Chinese customs accepted at the time of the marriage as appropriate" in that part. I agree that it is not a question of the residents of the area getting together and formulating their own custom when the Ordinance is about the traditional customs, nor is it in my opinion a question of ascertaining from each resident what that traditional custom may be. Looking at the words in the context of the section in particular and the scheme of the Ordinance in general, the appropriateness of the traditional Chinese customs to any area of Hong Kong must be judged by those who actually are present at the time of the celebration of the marriage. This interpretation coincides with Mr. Hu's view who said that the people concerned in that flat are the people who are competent to judge whether this was a valid marriage or not. Furthermore, I find in the evidence of the mother her awareness of the Chiu Chow customs when she mentioned the six bowls of food and four dishes from which her daughter ate as being a Chiu Chow custom.

25. Learned Counsel for the defendant was critical of the evidence of Mr. Hu. He made two comments. First, it is said that although he is accepted as an expert on Chinese customary law, he is not an expert on Chiu Chow customs. Neither is Mr. Pegg, I should think. A reference to the definition of Chinese Customary Law in section 2 is sufficient answer, and I find no merit in this submission. Secondly, it is said that his opinion concerning the validity of the first marriage was of very little value in the light of the evidence given by Mr. Pegg and Dr. CHIU's authoritative book. It was submitted that basically his evidence was to the effect that, because he gave his opinion as an expert, it must be accepted. With great respect to learned Counsel, I must disagree with this comment which I do not think is fair criticism. It must be said in defence of Mr. Hu that he expressed his views clearly and in a very forthright manner which at times was emphatic. In my view he discharged the duty of an expert on the Chinese law and customs admirably; the duty being to assist the court by calling its attention to, and by explaining, the matters the true significance of which would not be clear to persons who have received no training in the subject matter or have had no special experience, in such matters. It is trite too that the evidence of an expert is not conclusive and the final decision about the matter always rests within the domain of the court which is not bound in any way to accept such evidence.

26. In so far as the manner in which the evidence should be approached is concerned, when it is accepted that the Chinese customary law is a living thing which evolves and develops, providing it with the necessary flexibility in order to meet any situation or circumstance, in order to see whether the essence of the traditional customs has been retained and complied, with I think that it behoves the court to view the ceremonies as a whole. Looking at each ceremony as if it were a separate water-tight compartment, besides being a negation of the recognition of the inherent qualities of the customary law, would be tantamount to taking it as ossified so that only absolute compliance and nothing less would do.

27. Here there is evidence of a ceremony of marriage having been performed, followed by co-habitation of the parties and the validity of the marriage will be presumed in the absence of decisive evidence to the contrary. Looking at the evidence as a whole and bearing in mind that the plaintiff was unable to remember the exact date when the ceremonies took place, I find that it was the intention of the parties to proceed in accordance with the Chinese customary rites and I find that those rites were sufficiently performed. There being no decisive evidence to the contrary, the presumption is not rebutted and, in the event, I find that the presumed marriage is displaced by a valid Chinese customary marriage which the evidence has established.

28. Turning now to the Portuguese law, which I shall mention only briefly, in so far as the position of the deceased is concerned on the basis that he was born in Macau, it seems to me that there is no dispute among the two experts on Portuguese law, namely Mr. Lourenco (P.W. 4) and Mr. Fernandes (D.W.2) that by virtue of Article 2 of the Royal Decree of the 17th June, 1909, a marriage celebrated between Chinese parties according to the formalities of their own religion, which is understood by the courts of Macau as the Chinese customary law, achieves all the civil effects of the local laws accorded to a Cathohical or a civil marriage. The same recognition applies where the parties are ethnic Chinese and Portuguese citizens. Mr. Lourenco agreed that according to Article 11 of the Royal Decree No. 1 of the 25th December, 1910 a marriage infringing the minimum age requirement stipulated in Article 5 of Decree Law 30615 of the 25th July, 1940, i.e., 16 for the man, 14 for the girl, would be void but he maintained that Article 5 applied only to the Portuguese citizen spouse. Mr. Fernandes expressed the opinion that this Article deals with the age limit for a Civil marriage and he agreed in principle with Mr. Lourenco that it applied only to Portuguese nationals and that people of other nationalities would follow their own personal law, so that a Portuguese national could validly marry a non-Portuguese girl who is under 14 if the law applicable to the girl approved of her marrying and expressly so stated. Their views differ concerning the interpretation of Article 2 of Decree No. 36987 of the 24th July, 1948 in considering the effect of the late registration of the birth of the deceased. Mr. Lourenco took the view that it referred to the Chinese customary law as understood by the Courts of Macau.  Mr. Fernandes, however, said that the reference to the Chinese Civil laws in Article 2 was a reference to the Chinese Civil Code of 1930, so that a Chinese born in Macau but not registering his birth would fall in the category of the Chinese who are not Portuguese nationals and where such a person married a Chinese according to the Chinese Civil Laws and subsequently registered his birth, the marriage would be valid under Article 2. I am inclined to accept this interpretation in view of the clear words which refer to the Chinese Civil Laws. But Mr. Lourence referred to Article 3 which provides the exception and relates to the formalities of their own religion", which is the expression also used in the Royal Decree of the 17th June, 1909. This interpretation was not challenged by Mr. Fernandes who in the end agreed that, assuming the Chinese customary law did not stipulate any age limit for marrying and a Chinese girl under 14 validly married a Portuguese national, the Portuguese Law line doubt recognises the marriage". In view of this evidence, whatever divergence there may be in their evidence, it is clear that the first marriage in 1942 would receive the blessings of the Portuguese law and would have been recognised in Macau before the registration of the birth of the deceased and indeed after its registration under the exception Article 3 of Decree 36987.

29. Having held that the first marriage was a valid Chinese customary marriage, the onus of proving that it had come to an end lies on the person who is claiming under the second marriage, which is to say that the second marriage cannot be presumed to be valid until and unless the former marriage has come to an end. This principle is to be found also in the Portuguese law of Macau in Decree No. 1 of the 25th December, 1910 in Article 4 and 11. There is no evidence to show that the first marriage had been dissolved or had otherwise legally terminated by the time of the second marriage.

30. In my judgment, the plaintiff is entitled to the letters of administration of the estate of her deceased husband. I enter judgment for her with costs. The counterclaim of the defendant is dismissed with costs to the plaintiff.

Representation:

Mr. Warran Chan, instructed by M/S Fairbairn & Kwok for the Plaintiff.

Mr. Edward Chan, instructed by M/S Peter K.P. Cheung & Co. for the 1st to 6th Defendants.