Lee Hoi-pang v. Chan Shuen Alias Chan Sin

DCCJ001181/1979

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT TSUEN WAN

CIVIL JURISDICTION

ACTION NO. 1181 OF 1979

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Coram: His Honour Judge Downey

Date of Judgment:

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JUDGMENT

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1. The plaintiff, who came to Hong Kong from China, works in a textile factory and lives in Tsing Chau Resite Area. He gave his evidence in Cantonese. The defendant is a Thai lady who also lives in Tsing Chau Resite Area. She speaks and understands some Cantonese, but she gave her evidence in the Thai language, which was interpreted by a Cantonese-speaking interpreter conversant with that language, whose interpretation was then translated into English by my interpreter. I mention these problems of language because I consider that they may explain some of the contradictions or discrepancies in the evidence - the nuances of which may have got lost in the aforesaid process - and may have an important bearing on the task of ascertaining the precise or real nature of the transaction in respect of which these proceedings have been brought.

2. The plaintiff seeks to recover the sum of $12,000, which he paid to the defendant on or about the 30th November, 1978, as consideration for being introduced to another Thai lady, who has been referred to throughout the trial as "Ah Pon". His claim to recover this sum is based on an allegation that the transaction between him and the defendant amounted to a marriage brokerage contract, and on the further contention that, contrary to the general rule prohibiting the recovery of money or property transferred under an illegal contract, he is entitled to recover this sum notwithstanding substantial performance of such contract. In particular, Mr. Wong, who appeared on behalf of the plaintiff, relied on the decision of the English Court of Appeal in Hermann v. Charlesworth [1905] 2 KB 123, which appears to be the most recent authority in this area of our law.

3. By her defence, filed on the 10th May 1980 and apparently prepared by a person familiar with the language of pleading who prefers to remain anonymous, the defendant denies being a party to a marriage brokerage contract, and alleges that she received the money in question as agent for other persons, to whom it was paid shortly after the transaction in question. Even if the transaction was a marriage brokerage contract, in the alternative, she seeks to set up an express agreement that $6,000.00 was to be repaid to the plaintiff if he did not wish to marry Ah Pon. She further alleged that the failure of the intended or contemplated outcome of this transaction was due to the plaintiff's own act of driving Ah Pon from his house and into the power or authority of the police and officials of the Immigration Department, who together "repartriated" Ah Pon to her homeland. It is not disputed that at the material time Ah Pon was 22 years of age and had been in Hong Kong for one week.

4. I should add that, by paragraph 1 of his Particulars of Claim the plaintiff alleged that the "brokerage fees" of $12,000.00 were paid:

"upon the expressed condition that the said sum be repaid to the plaintiff in the ovent of the said [Ah Pon] leaving the plaintiff within three months without his consent or undergoing civil ceremonies with him as man and wife within that period."

I can only surmise that a negative has been accidentally omitted in this formulation of the second, or alternative, condition, because paragraph 2 goes on to allege that on the 30th January 1979 Ah Pon:

"left the plaintiff without giving any prior notice nor has she undergone any form of wedding ceremony with him and has not resumed cohabitation with him since that date."

To complete the plaintiff's case, as pleaded by his solicitors, paragraph 3 reads:

"In reliance upon the oral agreement as pleaded in Paragraph 1 herein, the plaintiff repeatedly requested the defendant to return the said sum of $12,000.00 which the defendant refused."

Paragraph 4 reads:

"By reason aforesaid, the plaintiff claims:-

5. I have adverted to the pleadings in this case in some detail for various reasons. The evidence actually adduced on behalf of the plaintiff and the defendant differs in certain material respects from their pleaded cases. This, of course, is not uncommon, but I consider that it is of some significance in this particular case. Apart from being a relevant consideration on matters affecting credit, it may indicate that the real and true nature of the transaction has not been fully disclosed to the Court, because it is, or may be, one of the kind which the Court would be bound to regard as illegal and unenforceable. It is well established that, where the Court is in possession of all the material facts, and they point to an illegal and unenforceable transaction, the Court is in no way bound by the pleadings of the parties, or the relief they seek from the Court. Furthermore, although Mr. Wong, when opening the plaintiff's case, was anxious to disclaim any reliance on the actual terms of the bargain struck with the defendant, the case as pleaded is essentially one to enforce the express terms of the contract. The references to marriage and marriage broker and "unjust enrichment" are the only indications of a different basis for the relief sought. Nevertheless, I conceive that my primary task is to ascertain the precise nature of the transaction or relationship between the plaintiff and the defendant on the basis of the evidence actually adduced.

6. The suggestion (in paragraph 3 of the defence) that the defendant received the $12,000.00 as agent for, inter alia, the parents of Ah Pon and Madam Chan Man Nei, can be disposed of without any difficulty. Madam Chan Man Nei (or Lei) gave evidence. She is also a Thai lady, but she appeared to be more fluent in Cantonese than the defendant. Although the plaintiff first approached Madam Chan Man Lei with a view to being introduced to a Thai girl, and Madam Chan arranged a meeting in a restaurant on the 30th November 1978, where and when the crucial transaction was concluded in the presence of the defendant, Ah Pon and others, it is, in my view, clear from the evidence that Madam Chan was no more than an intermediary - cum - interpreter for the defendant. More to the point, it is abundantly clear from the defendant's evidence, and that of the plaintiff and Madam Chan, that the fact (if it be so) that the defendant was acting as an agent for others was never disclosed to the plaintiff. Nor was he informed of the intended distribution of the $12,000.00 which he paid to the defendant. Quite apart from the fact that the evidence is insufficient to enable me to reach any finding on the amount, if any, remitted to Ah Pon's parents, or paid to Madam Chan or Ah Pon, this line of defence is without any merit, as a matter of law and on the evidence.

7. Although the plaintiff testified that Ah Pon was introduced to him as his "wife", and that he later went to the Marriage Registry to make arrangements for a civil ceremony, I am not satisfied, on the balance of probabilities, that a marriage between the plaintiff and Ah Pon was the sole or primary purpose of the plaintiff's agreement with the defendant, or the reason for his willingness to pay the sum of $12,000.00 to the defendant at their first meeting in the restaurant. He did not question the amount asked of him for the introduction. He did not stipulate for any period of time in which he might assess the sincerity or suitability of Ah Pon as a lawful wife. He merely went to his bank, after the brief meeting in the restaurant, and withdrew $12,000.00 which he paid to the defendant later on the same day. In return, he immediately took Ah Pon to his home, and thereafter, for some 2 months or 70 days, they cohabited there. The fact that the plaintiff thought Ah Pon might eventually marry him lawfully, or even, that the defendant thought this might result from her introduction, does not persuade me that the real and substantial purpose of the introduction was a marriage between Ah Pon and the plaintiff. If marriage had been the real or substantial purpose of the introduction, it is more likely, in my view, that the parties would have agreed that payment of the defendant's brokerage fee or commission should be deferred, wholly or in part, until the happening of that event. Furthermore, one would expect their discussion of the circumstances in which the agreed fee (or some part thereof) should be repaid to concentrate on a marriage not taking place. Instead, the evidence of the principal parties is unanimous in one respect - some money was to be repaid to the plaintiff if Ah Pon left him later on; not, it is to be noticed, if Ah Pon failed or refused to marry him later on. The plaintiff said that the whole of the $12,000.00 was to be repaid if Ah Pon left him. He did not specify any period. The defendant and her witness, Madam Chan, said that $6,000.00 or one-half, was to be repaid if Ah Pon left the plaintiff. The defendant said in evidence that this portion was to be repaid if Ah Pon did not live with the plaintiff for six months, but having regard to the evidence, and obvious language problems, I do not think that this time-limitation was ever made known to the plaintiff. In any event, Ah Pon did not live with the plaintiff for 6 months. For the reasons indicated, I conclude that the defendant's introduction of Ah Pon to the plaintiff, and the latter's payment of $12,000.00, was for a bedding rather than a wedding.

8. The agreement between the plaintiff and the defendant, being, as I find, one which was designed to promote future illicit sexual intercourse between Ah Pon and the plaintiff, falls into that category of contracts which the common law treats as illegal and unenforceable, because they are contrary to public policy. Cf. Upfill v. Wright [1911] 1 KB 506. Ideas about sexual behaviour change with a rapidity which may result in the law being dangerously out of touch with current realities and tolerated, if not wholly accepted, norms of conduct. The position was most pithily and wittily expressed by Stable J in Andrews v. Parker [1973] Qd. R 93, when he said (at 104):

"The social judgments of today upon matters of 'immorality' are as different from these of the last century as is the bikini from a bustle."

It may, therefore, be questioned whether the Courts should adopt, in 1980, the same attitude to agreements involving extra-marital cohabitation as their predecessors did 70 years ago, or earlier. There are, already, some signs that the English Courts are prepared to by-pass or overlook the more stringent aspects of this area of the common law, when called upon to adjudicate upon various transactions entered into by parties to such relationships. See Eves v. Eves [1975] 1 WLR 1338; Tanner v. Tanner [1975] 1 WLR 1346; Paul v. Constance [1977] 1 WLR 527; Chandler v. Kerley [1978] 1 WLR 693. But, these cases involved what may be described as stable extra-marital relationships. There is no clear indication that the same attitude would be extended to temporary or experimental relationships, such as the one with which I am concerned. Indeed, it may be that the English Courts would continue to treat such agreements with abhorrence because they may encourage the introducer to engage in conduct which might amount to the Criminal offence of detaining a woman, against her will, for the purpose of having sexual intercourse with any other person, contrary to section 17 of the Sexual Offences Act 1956. No precisely similar offence appears to exist in Hong Kong. Section 130 of the Crimes Ordinance requires detention for the purpose of sexual intercourse with more than one man.

9. Even if this difference between the criminal law of England and Hong Kong is sufficient to justify a different attitude towards agreements made in Hong Kong involving extra-marital cohabitation, I consider that any change should more properly emanate from an appellate court than from a judge at first instance, especially when he has not had the benefit of full argument from both sides. Dismounting from an unruly horse can be just as hazardous as getting astride, unless the rider possesses some of the experience or dexterity of well-known judicial equestrians. Notwithstanding the apparent changes in judicial attitudes towards certain kinds of illicit relationships, as revealed in the authorities I have cited above, I cannot disregard other developments in recent times, especially those which take the form of reforming Legislation (e.g., the Marriage Reform Ordinance (Cap. 178), which are apparently aimed at improving the status of women generally. To give effect to the agreement, which I find was reached between the plaintiff and the defendant in this case, would not, in my view, be consistent with those general aims. Accordingly, I dismiss the plaintiff's claim and enter judgment in favour of the defendant.

10. In case I have fallen into error, either by raising the question of illegality on the facts before me, or drawing incorrect inferences as to the main or substantial purpose of the agreement between the parties, and in deference to Mr. Wong's very helpful and succinct submissions, I feel that I should indicate what my decision would have been if I had found that the agreement in question was one of marriage brokage (or brocage), as such contracts are apparently described "in our books".

11. Although the decision in Hermann v Charlesworth [1905] 2 KB 123 is not strictly binding on me, I consider that I ought to follow it unless I think that it is wrong or clearly distinguishable. I must confess that in so far as the eminent judges in that case based their decision on authorities dealing with the recovery of property deposited with stakeholders to abide a particular event, I regard the decision as somewhat unhelpful. In the case before me, there is absolutely no suggestion that the defendant was to hold or retain the sum of $12,000, paid to her by the plaintiff, as a kind of agent, trustee or stakeholder until the marriage of the plaintiff and Ah Pon. She was free to use that money, in any way she might choose, as soon as it was paid to her.

12. In my view, the ture ratio decidendi of that case is that any sum of money, or other property, paid or transferred in pursuance of a marriage brokage contract, is recoverable in full, even if the object has been achieved. The Court's acceptance of a much broader application of the locus poenitentiae doctrine may have been due to a belief that marriage brokage contracts were merely "void" rather than "illegal". (of Mathew L.J. at p. 136). But, on closer analysis of the judgments, it seems clear that the Court of Appeal relied upon a line of precedents, between 1619 and 1810, where Courts of equity had set aside bonds given to secure the payment of money promised for effecting a marriage.

13. My own meagre research into these ancient authorities has revealed only one case where the Court went beyond merely relieving the party from his or her executory promise contained in the bond and ordered repayment of money paid to the other party. That is Smith v Bruning (1700) 2 Vern 392. The reasons for granting this restitutionary relief are not stated in the brief report; and, although Cozens - Hardy L.J. in Hermann v Charlesworth (supra at 138) had inspected the record of the case, his judgment does not reveal the basis on which the gratuity of 50 guineas was ordered to be refunded. As a matter of pure law, as distinct from considerations of public policy, I consider that the validity of the decision in Hermann v. Charlesworth, as a precedent, turns upon the question whether the Court correctly ascertained and applied the principles enunciated in the ancient authorities in question.

14. Having consulted the available reports of the various authorities, it seems to me that the Courts of equity intervened in this area of the law, i.e. the enforceability of bonds, on two grounds. Firstly, they were not prepared to countenance any contract made with executors, trustees, guardians, or servants, especially servants, in respect of marriages of persons over whom they had any control or influence. (cf. Hall v Potter (1695) Show P C 98; Cole v Gibson (1750) 1 Ves Sen 503, 506). Secondly, their dislike of marriage brokage contracts appears to have been based on the view that marriages should be procured by the mediation of friends, and not of hirelings (Hall v Potter, supra), or be made "on a proper foundation" (Cole v Gibson, supra), or on the principle that Courts of equity abhorred "all underhand agreements in cases of marriage" (Roberts v Roberts (1730) 3 P Wms 66). The first ground is consistent with the well-known doctrine of undue influence, I doubt whether the second ground was ever regarded by the Courts of equity as a prohibitory rule based on considerations of public policy. It is, in my view, more likely that it was no more than a first step to invoking the jurisdiction of the Courts of equity at a time when the common law courts did not permit illegality to be pleaded as a defence to an action upon a bond. (The position of a person sued on a bond at common law was not ameliorated until the decision in Collins v Blantern (1767) 2 Wilson 347. Cf. Holdsworth: History of English Law Vol. V1. p.647)

15. The view that the Courts of equity did not regard marriage brokage contracts as "void" or "illegal" on grounds of public policy is, to some extent, supported by the fact that even the great Lord Hardwicke, in the leading case of Cole v Gibson, supra, recognised that a party could release or compromise his remedy in equity, if he did so "with his eyes open, and knowing the circumstances ......." This passage (at p 508) of Lord Hardwicke's judgment was not referred to in the report of Hermann v Charlesworth. A similar view had been expressed in Drury v Hooke (1686) 1 Vern 412, where Jeffreys L.C. appeared to recognise that there was a material difference between agreements made by parties who were subject to the influence or control of others and those made by "parties who were at their own dispose ...... " In the case of agreements made by persons not subject to the influence of servants and others, it seems that equity only intervened where there was fraud, either by deceiving the other party to the marriage as to the extent of the property settled (Gale v Lindo (1687) 1 Vern. 475) or by trying to get control of settled property contrary to the settlement (Peyton v Roberts (1684) 1 Vern 240.).

16. None of these specific grounds for setting aside marriage brokage contracts exists in the present case. Even if it is not necessary for the plaintiff to establish one of these grounds, and such agreements are truly contrary to public policy, it seems to me that the plaintiff must still show that he has genuinely repudiated the illegal agreement. I do not consider that a repudiation which is manifested after, and in consequence of, frustration brought about by strangers to the contract (i.e. by Ah Pon and/or the authorities, in this case) is sufficient to entitle the plaintiff to relief. Cf. Biges v Bousted [1951] 1 All ER 92. Had I been persuaded that the agreement between the plaintiff and the defendant was a marriage brokage contract, for the reasons I have given, I would still have dismissed the plaintiff's claim.

17. Although I have found in favour of the defendant, I do not consider that she should enjoy all the benefits of the same without contributing something towards the plaintiff's costs. The evidence adduced in this case could have been heard in the one day allocated for the hearing of this case. An adjournment was necessitated solely by the defendant's failure to arrange for the attendance of Madam Chan Man Nei on that day. In the exercise of my discretion, I order that the defendant to pay the costs incurred by or on behalf of the plaintiff as a result of his, and his solicitor's, attendance at the adjourned hearing.

Representation:

Mr. Wong of M. Cheuk & Co. for the plaintiff.

Defendant in person.