Ng Yeung Lai Lin and Another v. Fung Shui Kwan and Another
Read the full judgment text of on BabelCite..
1. As long ago as 1915, President Havilland de Sausmarez of our Full Court of Appeal said of marriages in China in these terms :
|
HCAP000001A/1987 1987, No. P1 IN THE SUPREME COURT OF HONG KONG HIGH COURT PROBATE JURISDICTION -------------------
BETWEEN
Coram: Hon Liu J. in Court Dates of hearing: 12th-14th, 18th-22nd & 25th-27th, September 1989 Date of delivery of judgment: 10th October 1989 ----------------------- J U D G M E N T ----------------------- 1. As long ago as 1915, President Havilland de Sausmarez of our Full Court of Appeal said of marriages in China in these terms :
2. Rees-Davies, C.J. expressed a different view on status in the same case at p.p. 79 & 80 :
3. These judges rejected a more realistic approach of Mr Dyer Ball that Chinese in 1843 were monogamous with concubinage accepted as "a recognised institution". See p.129, Appendix 2 to the 1950 Report of a Committee appointed by the Governor in October 1948 on "Chinese law and Custom in Hong Kong". I shall call it the 1950 Strickland Committee Report. In Hong Kong, a drift towards Mr Dyer Ball's concept developed as can be detected in the Attorney General, Mr C.G. Alabaster's opinion given in 1936 :
4. It remains very much a vexed question today as to whether a Hong Kong. Chinese might before the 7th October 1971, lawfully contract t a further customary marriage when his wife was living and undivorced. This Probate Action is brought to resolve the status claimed to have been acquired by such a subsequent marriage. 5. The deceased, Ng Wai Sum alias Ng Sum, died on the 15th July 1983 domiciled in Hong Kong. He was of the Chinese race and left no will. The deceased's lawful "Kit Fat" wife died in 1941. In 1942, the deceased took the 1st plaintiff as his "Tin Fong" wife. It is admitted that the 1st plaintiff was the lawful "Tin Fong" widow of the deceased and that as such, her status is that of a wife within the meaning of "wife" under the Intestates' Estates Ordinance for the purpose of intestate succession. At the time of the death of the deceased, this Ordinance as well as the Marriage Reform Ordinance had come into operation, both as from the 7th October 1971. 6. In 1944, the 1st defendant went through the same form of marriage with the deceased. Underlying the dispute as to who is/are wife within the meaning of that word in the Intestates' Estates Ordinance is the practical issue of entitlement to intestate distribution. 7. In essence, two broad questions were posed for the determination of this Court, namely (1) whether the Intestates' Estates Ordinance admits of only one wife, and (2) who may come in as "wife" under that Ordinance. 8. For the first question, Mr Fung, counsel for the plaintiffs, called in aid the terms in which some provisions of the Intestates' Estates Ordinance are couched. Subsections (6) and (7) of section 4 speak of "both parents" and "one parent" respectively. Subsections (2), (3), (4) and (12) of section 4, section 6, subsections (1), (6), (7), (8) and (9) of section 7 and section 8(1)(a) refer to "a wife" or "a surviving wife". It was submitted that these subsections, when contrasted, are sufficient to reflect the legislative intent to use the expression "a wife" or "a surviving wife" only in the singular. Mr Fung argued that on the defendnats' admissions of the 1st plaintiff as being "the lawful wife" of the deceased and entitled, in that capacity, to distribution of his estate, the one-wife category was filled and that no one else including the 1st defendant would be eligible. 9. It is reasonably clear that the admissions in the defendants' pleading were not made on the premise that the Intestates' Estates Ordinance would admit of only one wife-claimant to distribution. No concession has been made to such interpretation. The admissions in the Defence cannot have, in my view, the far-reaching effect canvassed by counsel for the plaintiffs. Moreover, on her 1944 marriage, the 1st defendant claims herself to be an equal wife. The defendants do not concede that the 1st plaintiff enjoys any priority in the distribution of the deceased's estate under the Intestates' Estates Ordinance. If the defendants' admissions on the pleading could have the effect of conceding the exclusion of all but one wife from statutory distribution, it had still to be ascertained which lady, "the wife" or "the equal wife", would qualify for that privilege. Thus the first question could not, in any case, wholly resolve the parties' dispute which must inevitably fall to be decided on the 1st defendnat's priority based on her claimed status from the alleged 1944 marriage by custom. Ultimately, the Court must address itself to the core issue of validity of the 1st defendant's marriage and the relationship or priority be these two ladies. It would be futile to pursue question one as an academic exercise. 10. The remaining question is, therefore, the crucial one. It is : who may come in as "wife" under the Intestates' Estates Ordinance? 11. The word "wife" in the Intestates' Estates Ordinance means a wife by a valid marriage. Insofar as it is relevant, a "valid marriage" means a customary marriage declared to be valid by the Marriage Reform Ordinance. See sections 2 & 3 of the Intestates' Estates Ordinance. 12. How does it come about for a marriage to be so declared valid under the Marriage Reform Ordinance? For the purpose of that Ordinance, a "customary marriage" means a marriage celebrated: in Hong Kong in accordance with its section 7. Section 7 reads as follows :
13. The 1st defendant is a native from the Tai Leung Village of the Shun Tak County of Kwangtung Province. The 1st defendant claims to have become an equal wife or "Ping Tsai" after her marriage to the deceased in accordance with the traditional Chinese customs accepted at the time of her marriage as appropriate for its celebration in Tai Leung. When such an accepted form of ceremony is established by the traditional Chinese customs, section 7(2) of the Marriage Reform Ordinance raises a presumption that her marriage was celebrated in accordance with "Chinese law and custom", i.e. such laws and customs of China as existed immediately before the 5th April 1843, applicable to the then Hong Kong Chinese inhabitants. See definition of "Chinese law and custom" in section 2. Under section 7(1) of the same Ordinance, if the marriage had been so celebrated before the appointed date, i.e.. in accordance with "Chinese law and custom" before the 7th October 1971, it "shall constitute a customary marriage". A customary marriage between Chinese persons domiciled in Hong Kong, such as the deceased and the 1st defendant who were subject to Chinese law and custom, shall thereupon be declared a valid marriage. See section 7(3) of the Marriage Reform Ordinance. The Court is called upon to determine not merely whether the 1st defendant's marriage was sanctioned by the traditional Chinese customs but whether her marriage, in conformity with the traditional Chinese customs, was in fact celebrated according to "Chinese law and custom" (not, be it noted, merely customs but also laws of China). 14. Hence, it is for the defendants to establish first what form of ceremony had actually been followed on the 1st defendant's wedding day and then whether the form of ceremony so performed was in conformity with the current practice accepted by the traditional Chinese customs for the celebration of a marriage in Tai Leung. If the defendants should succeed in proving such an accepted form of ceremony by custom, her marriage would be deemed to be a marriage celebrated in accordance with "Chinese law and custom". If the presumption were not rebutted, then the marriage so presumed to have been celebrated in accordance with "Chinese law and custom" would be regarded by section 7(1) of the Marriage Reform Ordinance as constituting a customary marriage. Since the deceased and the 1st defendant were persons subject to "Chinese law and custom", that customary marriage based on the statutory presumption would thereupon be declared to be a valid marriage under section 7(3). The 1st defendant would thus be brought within the meaning of a "wife" by a "valid marriage" to the deceased in the Intestates' Estates Ordinance so as to admit her to distribution. But then, priority, if any, between she and the senior wife would still have to be settled. 15. If a statutory presumption has arisen to elevate the 1st defendant's marriage to one "deemed to accord with Chinese law and custom", the same, so Mr Fung contended, is liable to be rebutted by proof that in truth neither the laws nor the customs of China immediately before the 5th April 1843 would recognise such a celebrated marriage. 16. By our geographical proximity to the Kwangtung Province, the majority, if not almost all, of the Chinese inhabitants of the ceded territory as at 5th April 1843 were natives of coastal regions of this southern province. Both Mr H.D.E. Greenfield and Mr E.S. Haydon have served in Hong Kong. In 1958, Mr Greenfield wrote :
17. Mr Haydon made a similar observation in 1962 :
18. Those are the customs we are mostly concerned with and the law is the Tsing Imperial Code, the "Ta Tsing Lut Li". 19. Mr Lai, counsel for the defendants, favoured an irrebuttable statutory presumption and submitted that since the 1st defendant's form of marriage entered into here was in accordance with the traditional Chinese customs accepted in 1944 as appropriate for its celebration in her native Tai Leung, the marriage on celebrated was deemed conclusively to be a union solemnized in accordance with "Chinese law and custom" by virtue of section 7(2) of the Marriage Reform Ordinance. Therefore, so counsel urged, it constituted a customary marriage under section 7(l) so as to activate section 7(3), as regards these partners who were subject to"Chinese law and custom", to declare their l944 marriage as a valid marriage. In consequence, by the time of the deceased's death the 1st defendant had become "a wife" of "a valid marriage" for distribution under the provisions of the Intestates' Estates Ordinance. 20. The phrase "shall be deemed" is also used in section 19 of the Interpretation & General Clauses Ordinance. It is evident that section 19 of the Interpretation & General Clauses Ordinance introduces a rebuttable presumption. But it most be accepted that the same expression could be susceptible of a different meaning in the context of a different Ordinance, such as the Marriage Reform Ordinance. 21. That legislative history, including the Bill of an Ordinance may be examined "as an aid to identify the mischief which the legislation is intended to remedy; but not for the purpose of construing the enacting words in such a way as to conform with recommendations made" is now settled law. Per Lord Diplock in Davis v. Johnson [1979] A.C. 264 at p. 329. Davis v. Johnson was followed in our Court of Appeal in Cheng Chung-wai v. R., [1980] H.K.L.R. 593. This rule of interpretation has secured a role of its own to play in almost every case via our emphatic section 19 of the Interpretation & General Clauses Ordinance, which reads :
22. It is within this narrow ambit, believed to be somewhat extended locally by section 19, that reference is made to the Marriage Reform Bill and its legislative recommendations. In paragraph 5 of the Explanatory Memorandum to the Marriage Reform Bill, the present section 7 was said to have been devised to give effect to a Recommendation of the 1965 McDouall-Heenan Report that the requirements of customary marriages should relate to the traditional Chinese customs in that part of Hong Kong where the marriage took place or the place of origin of the family of either party. 23. The 1965 McDouall-Heenan Report made recommendations to assuage the widespread painful experiences felt in the 1960 White Paper as the "Capital difficulty" in establishing what were currently supposed to have been the appropriate requirements in 1843 for a customary marriage. Customs must always be subject to modifications substantially as that existed in 1843. Modifications must fall short of a re-constitution or substitution. The appropriate requirements in such modified custom are and were by then in 1960 beyond living memory. It was envisaged by the 1960 White Paper that in addition, there possibly existed an untold number of unexplored variations of customary marriages in pockets of China, surviving at least up to 1843, such as marriage by capture or by sale, etc. See p.2 of the 1965 McDouall-Heenan Report and p.34 of its Appendix C. 24. The 1965 McDouall-Heenan Report recommended the introduction of a statutory definition of custom "based not on any alleged forms or practices in 1843 but on what at the material time may be determined as being the current traditional practice in the appropriate part of Hong Kong or in the place of origin or either party." (Underlining mine). See p.8 of the 1965 Report. 25. In my view, section 7 (2) of the Marriage Reform Ordinance dispenses with proof of actual 1843 practices. It enables appropriate current practices to raise, once proven, a presumption that the marriage had been celebrated according to such permissible forms and practices as prevailing in 1843. Hence, section 7(2) deals exclusively with practices or requirements, or the form in which the marriage was celebrated. But what in fact constitutes a customary marriage is one celebrated before the 7th October 1971 in accordance with "Chinese law and custom", i.e. laws and customs of China applicable to Chinese inhabitants of the colony immediately before the 5th April 1843. See section 7(l) and the relevant definition in section 2 of the Marriage Reform Ordinance. A presumed customary marriage on the force of the traditional Chinese customs in any locality may or may not also conform with "Chinese law and custom". With the sole purpose of alleviating the immense difficulty of proof as to the proper requirements, section 7(2) was clearly not intended by the legislature to alter the existing law by allowing new categories to be added to customary marriages as existed in 1843. In other words, if a marriage deemed to have been a Tsing customary marriage by reason of proof of compliance with appropriate current traditional requirements is shown to have in fact contravened the requirements of Tsing customary marriages, the new form of marriage will not be sanctioned and the presumption is rebutted. So construed, the phrase "shall be deemed" in section 7(2) of the Marriage Reform Ordinance would, in my opinion, "best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit." 26. Indeed, independently of the principles enunciated in Davis v. Johnson, supra., it has been held in Canada that the Court should strive to construe the word "deemed", when deciding whether a conclusive or a rebuttable presumption has arisen, in the proper context of a statute "having regard to the purpose to be served by the statute and the necessity of ensuring that it will be served." See Consolidated School District of St. Leon v. Ronceray 23 B.L.R. (2d) 32 at p.37 per Schultz J.A. in the Manitoba Court of Appeal. 27. Section 7 of the Marriage Reform Ordinance was not, as I have endeavoured to explain, intended to validate new forms of customary marriages. The whole aim and purport of the section was to accord recognition to customary marriages as existed in 1843 with modifications in the passing years and to facilitate proof of the requirements for such 1843 customary marriages by a deeming sub-section. It is abundantly clear, therefore, that a presumed customary marriage cannot survive when it is shown to have actually departed from the form of a Tsing customary marriage or contravened the Tsing Imperial Code - in another words, contrary to "Chinese law and custom". I should stress once again that it is not only the custom but also the law which must be compiled with. 28. Indeed, as observed by Cartwright, J. in another Canadian case, Gray v. Kerslake, 11 D.L.R. (2d) 225, in order to impute to the Legislature the intention of a conclusive presumption by the use of the word "deemed", the Court must be satisfied, inter alia, that the provision enjoins the judge to hold, as a fact, "something directly contrary to the true fact". See p.p. 239 - 240. In this case, it was not the intention of the Legislature to permit any new departure from Tsing customs or laws in marriages or to require the Courts to hold, contrary to the truth, a marriage shown not to be a lawful Tsing marriage as a lawful Tsing marriage. 29. In conclusion, there seems to be no substance in Mr Lai's submission that once a local form of marriage acceptable at the time of the 1st defendant's marriage as appropriate for its celebration in Tai Leung is established, it shall be deemed conclusively to be a customary marriage so as to lead up to a declared valid marriage under section 7(3) of the Marriage Reform Ordinance. 30. Having disposed of the legal contentions, I pass then to consider the facts in conjunction with the Chinese experts' assistance which I gladly welcome, following a long standing practice, from the two gentlemen who are conceded to be experts. 31. To recapitulate : the deceased married Madam Wu as his "Kit Fat" wife, who died in 1941. In 1942, the deceased took the 1st plaintiff as a "Tin Fong" wife or "Kai Sut". Then less than two years later in 1944, the deceased married the 1st defendant. The 1st plaintiff's version is that on her suspicion of a liaison between the deceased and the 1st defendant, she was distressed. When the deceased allegedly sought her permission to marry the 1st defendant, a compromise was reached after much altercation on an assurance extracted from the deceased that the 1st defendant was only to be admitted as a "Tsip". On the wedding day, the 1st plaintiff was said to be seated in a row with her father-in-law and the 1st defendant allegedly offered her tea and bowed to her. Thereupon, so the 1st plaintiff claimed, she named the 1st defendant "Ah Sai", meaning "the junior". The 1st plaintiff further maintained that for almost 25 years after the 1st defendant's marriage from 1944 to 1969, on every Chinese New Year day, the 1st defendant offered her tea but that the practice ceased after the marriage of the 1st defendant's son in 1969. The 2nd plaintiff supported his natural mother's account of these Chinese New Year Day events. The plaintiffs also sought to make capital of a marriage certificate of the 1st defendant, which only came to their notice after the death of the deceased. The marriage certificate designated the 1st defendant as "Fu Kai Sut" meaning "Vice Tin Fong". That is in the deceased's handwriting. 32. The 1st defendant is a native of Tai Leung Village, Shun Tak County. At a very tender age, she had heard of the expression "Ping Tsai" meaning an equal wife in her village. In fact, when she was about 12, 13, a stranger to her living at the front end of her street took a "Ping Tsai" who arrived in a red sedan chair. Her grandfather ran a tea-leaf shop, a rice shop and a wine shop. Her father was a manufacturer of "peis", double-edged fine-toothed combs in Tai Leung. After Tai Leung had come under the Japanese occupation, she joined her aunt in Hong Kong. Hong Kong soon also fell to the Japanese Forces, and she worked as a tram conductress. Her destiny had been foretold by a village fortune-teller that she should decline to be a "Kit Fat" wife of any man in order to ward off tragedies. She came to know the deceased through the introduction of a friend of her aunt. The deceased allegedly confided to her that he had also been forewarned by a fortune-teller of the need to take more than one wife to avert untowards consequences and that he had impressed upon the 1st plaintiff with this need before their marriage. 33. The 1st plaintiff denied that she had ever been briefed by the deceased on this alleged advice from the fortune-teller. In fact, the 1st plaintiff testified that the deceased would take little notice of fortune-telling. The 1st plaintiff is probably more accurate. I find it difficult to accept, as the 1st plaintiff explained, that a man would be so naive as to divulge such objectionable advice before or upon his marriage. I prefer the 1st plaintiff's version, but I must accept the possibility that both could be telling the truth. 34. According to the 1st defendant, she expressly demanded of the deceased the status of an equal wife with the right to wear a red wedding gown, receive a marriage certificate and enjoy equal treatment with the senior "Tin Fong" wife. She allegedly also insisted on the condition that she would not offer tea or kow-tow to the senior "Tin Fong" wife on all of these, the deceased's agreement was said to have been secured. Subsequent to the introduction and on such agreed terms, the 1st defendant consulted her father in Tai Leung, who gave her blessing by leaving the final decision in her own hands. There was passing of "Big Gift". She worn a red wedding gown on her wedding day. She arrived in a horse-drawn carriage as there was no vehicle for hire during enemy occupation. It was not suggested that the journey was taken with less pomp and ceremony than the vehicular transport in the 1st plaintiff's marriage. The Same rites were conducted by, in fact, the same man, an old friend of the deceased, Mr Lai Chow-kwong. The deceased and the 1st defendant worshiped ancestors and the gods. Tea was offered to the father-in-law to whom the 1st defendant also kow-towed. Tea was offered to the 5th aunt of the deceased. The uncle and aunt of the 1st defendant were present representing her father. After the formal ceremony, the 1st defendant gave tea to all present, including the 1st plaintiff as a matter of courtesy on a first meeting. Much was sought to be made by the 1st defendant on the significant difference between offering tea and giving tea. When she noticed her description on the marriage certificate as "Fu Kai Sut", she allegedly enquired from the deceased who was said to give an elucidation in terms of a vice chairman in a company. The 1st defendant categorically denied ever offering tea or kow-towing to the 1st plaintiff as a sign of obeisance either on her marriage day or on any Chinese New Year day. 35. It is common ground that the 1st defendant kept rank with the deceased and the 1st plaintiff on all formal or propitious family occasions such as Chinese New Year days and family weddings. Both the 1st defendant and the 1st plaintiff together accompanied the deceased to social functions. They were both addressed as and/or wore badges of "Mrs Ng Wai Sum" without distinction. However, the 1st plaintiff always had the more senior seat position. They were identically attired on many occasions, formal or informal. They received gifts of jewellery of similar value as well as fur. They shared the vacationing time of the deceased together. They were each given a half share of the same flat in Ngau Tau Kok. Both worked in the family business "Pak Chun". Both started to draw the same salary since 1976. They were called by all the children as principle aunt and aunt respectively. They were greeted alike by the father-in-law, by the servants and their employees of Pak Chun. They bore the same title in the death notice or obituary. Their same title was caused to be inscribed on the deceased's tomb stone with the 1st plaintiff assuming the senior position. 36. The relationship was amicable and there had been no friction in the family, never as regard status. It is inconceivable that the deceased would have allowed any public display of obeisance by one of his wives to the other. I do not accept as probable that the 1st defendant offered tea and bowed to the 1st plaintiff on her marriage day or that the 1st defendant was named "Ah Sai". I also do not accept as probable that the 1st defendant offered the 1st plaintiff tea on any Chinese New Year day. These alleged activities would, more likely than not, have displeased the deceased who had apparently succeeded in nurturing delicate tranquillity. The deceased made it a point to introduce the 1st plaintiff as his wife and the 1st defendant as : "This is also my wife". I prefer the version of the 1st defendant as to what transpired on her wedding day and on Chinese New Year days. 37. Harmony in the family continued after the death of the deceased. They joined force in the exclusion of the deceased's mistress Madam Chu and her children from the funeral, the death notice and inscription on the tomb stone. Conflict flared up after the 2nd plaintiff's repeated demands for an intestate distribution according to the Laws of Hong Kong. But hostility was well suppressed until the receipt of a letter dated the 4th December 1984 from the solicitors. Solicitors requested that the 1st defendant was to assume a concubine status in the application for Letters of Administration. Open conflict set in after the approach of the 1st plaintiff and the 1st defendant to Mr Lai Chow-kwong for filing an affirmation to the same effect. 38. Mr Lai was an old friend of the deceased. He was born in 1906 and he is therefore a gentleman of 83. He was, for almost 10 years between 1930 - 1940, the editor of a local newspapers, the Kung Sheung Daily News. He conducted the wedding ceremony for the 1st plaintiff and the 1st defendant. He confirmed that on both occasions, the same rites were followed. He had otherwise a vague recollection of these events, but he did not recall hearing the 1st plaintiff giving the name of "Ah Sai" to the 1st defendant or seeing the 1st defendant offering tea and bowing to the 1st plaintiff. What he did not see or hear in his vague recollection can be of little assistance to the Court. Apparently, Mr Lai was also inaccurate in describing the 1st plaintiff as standing when tea was being served. Mr Lar refused to sign any affirmation describing the 1st defendant as a concubine. Mr Lai was adamant that his old friend, the deceased, always regarded both as equal wives. There is no evidence that to Mr Lai, the concept of equal wives was repugnant, unacceptable, or contrary to law. He himself is a Christian. As a former newspapers' editor, he cannot be said to be a man without workable experience or knowledge in worldly and public affairs. He would not likely have formed or adhered to his strong conviction if he had felt that his friend's recognition of both as equal wives was tainted with any degree of impropriety. To Mr Lai, the status of these two ladies should not be disturbed. I find him an impressive witness. 39. Evidence was led from the 1st defendant's sister who claims herself to be also a "Ping Tsai" of one Mr Kwok. Her husband died leaving two wives surviving him. At page 16 of Bundle C is a photograph of the tomb stone of the late Mr Kwok, deceased husband of Fung Chi Ching, sister of the 1st defendant. Needless for me to say that Madam Fung Chi Ching comes also from Tai Leung. A Photograph of one Mr Cheung's tomb stone in Macau at page 18 in Bundle C also shows that he left surviving him two equal wives. The place of marriage or family origin of the late Mr Cheung or any of his two wives is not known. Other photographs of tomb stones in Macau were also produced showing the distinction clearly made of the wives and concubines of deceased persons. 40. Page 20 of the 1950 Strickland Committee Report sets out the requirements of a Tsing customary marriage as recorded by Mr Jamieson, namely : betrothal, acceptance by the bride's family of presents as an alternative to betrothal, and the handing over of the woman as a wife. The introduction, the consent of the parents, the passing of the "Big Gift" and the marriage ceremony as described in this case followed d fairly closely these essentials described by Mr Jamieson. The 1st plaintiff herself went through the same wedding ceremony as that of the 1st defendant, which was in fact also conducted by Mr Lai. In form, the marriage ceremony of the last defendant could hardly be assailed. 41. Dr Baker, expert of the plaintiffs, was of the view that the wearing of a red wedding gown or the marriage ceremony same as that of the 1st plaintiff are not matters decisive of the status of the 1st defendant. In addition to general reference material, further support comes from Archdeacon Gray's Book on "China", 1st Vol. page 214 where he said :
42. Dr Baker referred also to an opinion of Mr Daniel Kulp, an anthropologist in the 1920's :
43. At page 20 of the Strickland Committee Report, the following passage appears
44. Others like Staunton and Hare took a different view on the ceremony. 45. Mr Dyer Ball in "Things Chinese" first published in 1891 suggested that only the legal principal wife could ride in a bridal chair. See p.128 of the 1950 Strickland Committee Report, Appendix 2. 46. The 1st defendant's marriage certificate put her down as "Fu Kai Sut" meaning vice or deputy "Tin Fong". Dr Barker's advice is that being the second or secondary wife, she can only be a Tsip. Dr Baker told the court that he had never come across any rule for not giving a marriage certificate to a concubine. What Mr Hare was supposed to have noted seems to suggest the giving of a marriage document in the acquisition of a tsip. See page 131, Appendix 2 to the 1950 Strickland Committee Report:
47. Mr P.L. Lam, a recognised expert in Chinese law and custom, made some mention of the giving of "Lai Sze", a red packet, on taking a concubine. See p.152 & p.155, Appendix 5 to the 1950 Strickland Committee Report. 48. On the other hand, Dr Hu was emphatic that the expressions 'Kai Sut' or "Tin Fong" and "Tsip" are mutually exclusive and that a "Tin Fong" can never be a "Tsip", be she a principal "Tin Fong" or a vice "Tin Fong". That is a matter of semantics which does not seem to enjoy general support. After all, a secondary wife, called a wife is only a tsip. Why should not a vice "Tin Fong" be also a tsip? 49. In his translation of the "Ta Tsing Lut Li", Mr Staunton considered that women brought into a man's household "in addition to his wife (t'sai)" "occupied the position not of concubines but of inferior wives ..... A Chinese may afterwards lawfully espouse other wives agreeable to his own choice and with few ceremonies as well as without any regard to equality in point of family and connexions. These wives are all subordinate to the first wife but equal in rank among themselves". See p.127, Appendix 2 to the 1950 Strickland Committee Report. 50. Mr Hare observed at p.7 of his said treatise that "a Chinese has but one wife or t'sai, secondary wives or t'sip (concubines) have a legal status too, but it is different from that of the first wife". See p.p.127-8, Appendix 2 to the 1950 Strickland Committee Report. 51. Mr Dyer Ball continued in his "Things Chinese" :
52. The intention of the deceased and the equal treatment throughout are admittedly factors to be taken into consideration. 53. Dr Baker was prepared to concede that "as far as the customary legal system was concerned, however, the concept of 'equal wives' thus appears to exist and is referred to in various sources". However, Dr Baker concluded that "Ping Tsai" would not arise except in circumstances where it was found necessary to inflate the empty ego of a woman and/or her family, entering a household after a Tsai. He cited an extract from Mr Edward Parker's "Comparative Chinese Family Law" (1879) :
54. But the case for the defendants is not that the 1st defendant was taken as Tsip and only given the misleading title of "Ping Tsai". The stance taken by the defendants is that the 1st defendant was intended to be married and was in fact accepted by all as an equal wife, a "Ping Tsai". It is a case of either there being a custom for "Ping Tsai" or there being no such custom at all. That is the real issue. What is more important is that Dr Baker can refer to no source material explicitly disallowing the custom of taking an equal wife. What Dr Baker testified to, when analysed, is that whilst he could not categorically rule out all possibility of a custom for entering into an equal-wife marriage, there existed one local custom for giving a concubine daughter from a respectable family the false title of "Ping Tsai". That is not strictly relevant. It could fairly be argued, of course, that if there had existed a custom for the taking of a "Ping Tsai" as alleged, it would have been expected to find its way into some source material. 55. In a topic devoid of direct reference, Dr Baker sought to draw an analogy from the cases of "Kim Tiu" marriages in which two wives were permitted by law to be taken for two separate branches (fongs) of the family and yet the one later in time was to be regarded only as a tsip. "Kim Tiu" marriages contracted before the 7th October 1971 were specifically recognised in the negative sense by section 6 of our Marriage Reform Ordinance. There is all the more reason, so Dr Baker suggested, for treating all subsequent equal wives as tsips in a system of dubious legality such as that of "Ping Tsai". Nevertheless, it must not be forgotten that none of these references is directly in point. 56. Of course, Dr Baker also maintained that the Imperial Code prohibited the taking of more than one wife. Discussion is presently focused on customs. I shall return to that contention on Chinese laws later in my judgment. 57. There is a further reason why no true analogy may be drawn from "Kim Tiu" marriages. In all these "Kim Tiu" cases, it was the intervention of Chinese laws, which brought about the abrupt disruption of the system of equal wives by custom. They are not strictly cases of customs. In fact, in its intervention the Imperial Authority took steps to ameliorate the full rigour of the law and extend partial recognition to the system of equal wives by arbitrarily conferring an inferior status of tsip on the equal wife taken later in time. 58. Dr. Vermier Chiu, in Appendix 9 to the 1950 Strickland Committee Report at page 201 seemed to have accepted a customary marriage for "Ping Tsai":
59. In the 1965 McDouall-Heenan Report, page 52, a submission received from one of the responsible sources was :
60. Even the supreme court of the Republic took cognizance of the custom of taking equal wives :
61. The three cases on "Kim Tiu" marriages referred to by Dr Baker with a commentary in "The Chinese. Law and Chinese Society" by Chu Tung Tsu, page 132, in particular Footnote 5, provide interesting reading. In Footnote 5, we find a striking contrast made between social habits and law. Footnote 5 seems to acknowledge the acceptability extended by customs to a system of equal wives unless otherwise interevened by the law. The translations of the relevant portions and Footnote 5 read as follows :
62. Therefore, on all the matters I have referred to, such as the deceased's conduct and intention, the horse-drawn carriage, the ceremony, the marriage certificate, the marriage portrait, the belief of the 1st defendant and her sister in the legality of "Ping Tsai", the equal treatment and recognition by all, the evidence of the sister, the tomb stones, Mr Lai's conviction and refusal etc., the 1st defendant's marriage as a "Ping Tsai" has been sufficiently proved to have been celebrated in accordance with the traditional Chinese customs accepted at the time of her marriage as appropriate for its celebration in Tai Leung. The features before, at and after the marriage are all indicia of the taking of a wife. There was nothing to even remotely suggest a union with a tsip. Section 7(2) of the Marriage Reform Ordinance thus leaps into operation, giving rise to a presumption that the 1st defendant's marriage is deemed to accord with Chinese law and custom. In this presumption that has arisen, custom as a component part does not seem to have been rebutted by any satisfactory evidence. In the main, only analogous deductions and a custom documented for inaptly calling a tsip a "Ping Tsai" were submitted for my assistance. Source material to the contrary is not altogether lacking. However, it cannot be said with any degree of certainty that there was, indeed, a pre-1843 custom for a "Ping Tsai" in an equal-wife marriage. But the law provides a presumption in favour of the 1st defendant. The law presumes her marriage as one celebrated in accordance with Chinese law and custom. For customs of China, in my view, Dr. Baker's postulation founded on, inter alia, the analogy of Kim Tiu marriages, the face-saving device of addressing a tsip as a wife, and the lack of positive proof of its subsistence is not factual or weighty enough to rebut the marital status of "Ping Tsai" so presumed under the Marriage Reform Ordinance. In my opinion, it has not been shown to my satisfaction that the 1st defendant's marriage could not be in conformity with customs of China. The component part of custom in the presumption is not, I hold, rebutted. 63. Whilst customs probably allowed equal wives, can the presumption of a customary. Marriage then be rebutted by Tsing law in the Imperial Code, the "Ta Tsing Lut Li"? It must not be overlooked that the presumption here is one that the 1st defendant's marriage was celebrated in accordance with both laws and customs of China immdiately before 5th April 1843, i.e. "Chinese law and custom". I have held that the plaintiffs have failed to rebut the presumption by inferences of customs. The presumption in favour of the 1st defendant under section 7(2) of the Marriage Reform Ordinance would thus constitute her marriage a customary marriage under section 7(1) unless the presumption can be rebutted by proof that it in fact contravened the laws of China in the Tsing Imperial Code. 64. Dr Baker attached great importance to a translated rule in the Ta Tsing Lut Li by Staunton :
65. Dr Baker also relied on other source material in support of his view that the Imperial Tsing Code permitted only one living wife. In particular, he directed my attention to a publication, better translated as "Chinese Law and Chinese Society" by Mr Chu Tung Tsu, a well respected research scholar on Tsing law and customs in Mainland China, Mr Dyer Ball's 1st edn. of "Things Chinese" 1891, "Family Law of the Chinese" by Dr. Vermier Chiu, etc. The relevant passages have been set out earlier in this judgment. 66. On those source material, Dr Baker readily conceded that the Imperial Authority had not, at times, carried into execution the whole penal sanction in the prohibitory provision of the Tsing Imperial Code by ousting the secondary wife. It elected instead to permit her to remain in the family as a Tsip. 67. Dr Hu maintained, as I understood him, that the Imperial Authority would be reluctant or would even refuse to interfere with a marriage by custom. Dr Hu sought to derive support from Footnote 5 to "Chinese Law and Chinese Society" by Chu Tung Tsu at page 132. Evidently, Footnote 5 is no authority for Dr Hu's sweeping proposition. As a commentary, Footnote 5 merely endeavours to illustrate what would have been the internal marital relationship within the family if the law had had no occasion to interfere. Each decision in the "Kim Tiu" marriages is more of an example of the law, tampered with mercy, upholding the sanctity of the concept of one living wife without wholly undoing what had been done by allowing the secondary wife to stay on as a tsip. 68. Dr Hu urged that the severity of the Tsing Imperial Code must be mitigated and that the same mitigation should be exercised in the instant case. In this direction, like sentiments are expressed at pages 13 and 14 of 1950 Strickland Committee Report :
69. I have earlier set out these rulings of the Republic Supreme Court. 70. Mr Lai, counsel for the defendants, referred me to the judgment of Briggs, J. as he then was, in In re Wong Choi Ho and Another, [1969] H.K.L.R. 391. Counsel invited me to regard the observations of the former Chief Justice on "Tin Fong", power to disinherit under the Tsing Imperial Code and the question of dowry to daughters at pages 396, 402 and 404 respectively as such manifestations of judicial tendency in our Courts to soothe the harsh penal provisions in the Tsing Imperial Code. But in fact, "Tin Fong" and disinheritance were disposed of on the ground of non-applicability of the Tsing Imperial Code and the daughters' dowry was decided on a custom not strictly prohibited by Tsing law. There was no room for suggesting any sign of judicial abhorence. 71. Dr Hu's reliance on Captain Elliot's Proclamations is liable to draw the same criticism as that given at p.p. 96 and 121 of the 1950 Strickland Committee Report that the customs of China do not truly survive "by virtue of the Proclamations, but by virtue of specific legislation" and that "those persons ..... that attribute the survival of Chinese law and custom to the Proclamations are building their castles upon sand". 72. I agree with Dr Baker that the provision in the Tsing Imperial Code against the taking of another wife during lifetime of the principal life, is a firm rule, the breach of which has never been known to have been condoned. In conclusion, I take the view that the the Tsing Imperial Code allowed one single living wife to the exclusion of all others. 73. The form of marriage celebrated between the 1st defendant and the deceased deemed to be in accordance with Chinese law and custom was in fact celebrated in clear breach of this unwavering prohibition in the Tsing Imperial Code against the taking of two or more living wives. The presumption of the 1st defendnat's marriage to have been in accordance with Chinese law and custom under section 7(2) has been, therefore, rebutted by this proven immutable law in the Tsing Imperial Code. In conclusion, the marriage of the 1st defendant was contrary to law and, therefore, was not in fact a customary marriage. The presumption of a marriage celebrated in accordance with laws of China is thus successfully overturned. Hence, there is nothing to be declared a valid marriage under section 7(3) of the Marriage Reform: Ordinance. In sum, this is a case where the law has prevailed over custom. 74. There are charges of manipulations in the Pak Chun family business account and business registration. The Standard Chartered Bank Hong Kong Trustee (Limited) was appointed pendente lite in September 1987, and no specific acts of impropriety have been noted by the Bank trustee. The partied and members of the family have been increasingly antagonistic, and it is hoped that the resolution of the issues in these proceedings will pave the way for a return to normalcy. 75. Since the Standard Chartered Bank (Hong Kong) Trsutee Limited is, by consent, to apply for Letters of Administration, prayer (3) to the same effect in the Amended Statement of Claim need simply be granted by consent. The alternative prayer (4) is redundant. The plaintiffs are not pressing for the declaration in terms of prayer (2). It remains for me to grant the declaration as prayed for in prayer (1) that the 1st plaintiff is the wife of the deceased for the purpose of distribution of his estate in accordance with the Intestates' Estates Ordinance, Chapter 73. 76. The presumption has not been successfully rebutted by evidence of customs of China immediately before the 5th April 1843. The plaintiffs succeed in rebutting the presumption as a whole only by virtue of the prohibitory provision in the Tsing Imperial Code, i. e. laws of China. I would be tempted to conclude that the 1st defendant has been established as the deceased's "Ping Tsai" according to the customs of China, but not a "wife" for statutory distribution. Her marriage, for the reasons I have given, cannot constitute a customary marriage to be declared a valid marriage under the Marriage Reform Ordinance so as to bring her within the meaning of a wife in the Intestates' Estates Ordinance. This delicate area was not ventilated before me, and no such limited relief is claimed. The 1st defendant counterclaims a declaration that she is "a wife of the deceased under Chinese custom". She in fact seeks to have her status pronounced as that of a "wife" within the provisions of the Intestates' Estates Ordinance by customs of China alone. I have reached a decision adverse to her claim. She prays for a further declaration that she is entitled to share in distribution on a par and equal in status with the 1st plaintiff. Her counterclaim must, therefore, be dismissed. However, I derive much comfort from the thought that there can be little doubt of the 1st defendant continuing to be respected by members of her family and in society as the widowed "Ping Tsai" of the deceased. That is the understanding of Mr Lai Chow Kwong, the elderly scholar, and there is every reason to believe that no right-thinking members of our community would wish to take issue with that common-sense notion. 77. Costs of these proceedings including the Counterclaim be, subject to what counsel have to say, costs against the defendants in favour of the plaintiffs.
Representation: Mr P. Fung instructed by M/s Deacons for the 1st & 2nd plaintiffs. Mr T. Lai instructed by M/s J.S.M. for the 1st & 2nd defendants. |