Lee Lan v. Henry Ho

HCA003441/1978

Validity of an alleged marriage ceremony in 1967 considered - validity of alleged adoption considered - expert evidence on 1930 Civil Code marriage and customary marriage and on adoption - local practice of receiving expert evidence on Tsing Law followed.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 3441 OF 1978

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Coram: Mr. Commissioner LIU, Q.C. in Court

Date of Judgment: 15th March, 1980

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JUDGMENT

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1. This action was commenced by the plaintiff for herself and on behalf of her three children, Ho Ki Ying, Ho Chun Ho and Ho Yuet Chun. Her eldest daughter, Ho Ki Ying, is twenty four and was sui juris at the institution of these proceedings. By consent, Ho Ki Ying was joined as an additional plaintiff with the designation of "Daughter Plaintiff", and she embraced the pleadings filed in this action. The remaining two children of the plaintiff have not attained majority, but the plaintiff was deemed to have duly sued for her infant children in the capacity of their guardian ad litem.

2. The plaintiff's allegations are: In 1966, she made the defendant's acquaintance while she was managing the Kwai Heung Teahouse in Wanchai Road after her husband's death, in widowhood. The Teahouse premises were thereafter demolished for redevelopment, and the plaintiff was driven to serve as a cook in the Kam To Lady Barbers Saloon which catered, inter alia, for massage and haircut services for men. In 1967, professing to be unattached and without issue, the defendant proposed marriage to the plaintiff.

3. It is common ground that a flat in the Shui Heung Yuen Building at 41 Jordan Road was thereupon acquired with a sum of $32,500 wholly paid by the defendant.

4. It is further alleged that on the 3rd day of the 5th Moon in 1967, the defendant and the plaintiff went through some form of wedding ceremony. The plaintiff claimed that the parties worshipped ancestors at home in the presence of her children, aunts and sisters-in-law with the front door left wide-open but the iron grille locked. After the ancestral worship, the defendant allegedly proclaimed in the presence of the plaintiff's aunts, sisters-in-law and children: "From now on, it can be taken that Lee Lan and I have been married. I'll be responsible for her and her children's living." Thereafter, in the evening a celebration for allegedly as well the marriage as the acquisition of the new flat was held in the Pak Cheuk Restaurant or the Earl Restaurant. It was a Chinese dinner of three tables for the entertainment of the plaintiff, the defendant and the plaintiff's children, relatives and friends.

5. In cross-examination, when the plaintiff was being invited to specify the location of the ancestral tablets, she explained that they worshipped to the heaven, praying to the gods and burning jess sticks. It was not explained if the ancestors so worshipped were theirs or exclusively those in the defendant's family. The plaintiff also qualified her previous evidence as to the persons witnessing the ceremony in that those present were in fact merely a friend by the name of Wong Yuk Lan who was supposedly well versed in the ceremony, her elder sister and children.

6. After this ceremony, so it was claimed, the defendant spent four nights a week with the plaintiff for over ten years in the Shui Heung Yuen flat, and the plaintiff claimed to be unsuspicious of the defendant's remarkably monosyllabic explanation that he was otherwise preoccupied with business for the rest of the week. The documentary evidence confirmed that thereafter the defendant became the benefactor and took an interest in her children's education, applying in writing for their school and signing their reports in the name of Henry Ho. According to the plaintiff, the defendant had represented to her that his real surname was in fact "Ho" before his adoption into the "Shiu" family. The defendant readily took the helm as head of the household.

7. In April 1975, in her capacity as a mother the plaintiff caused the surname of the Daughter Plaintiff, Ho Ki Ying, to be changed from "Lui" to "Ho" by deed poll. The Daughter Plaintiff and the plaintiff's two other infant children in these proceedings are surviving natural children of the plaintiff's late husband, one Mr. Lui. As for her two infant children in this action, their surname was soon registered as "Ho" in the school records, and the formal change of their surname from "Lui" to "Ho" was implemented also by deed polls some seven months after the defendant had finally parted company with the plaintiff in July 1978. As a matter of fact, these deed polls were both executed on the 27th February 1979. The plaintiff's contention is that her three children have been adopted by the defendant.

8. The plaintiff claimed that this state of affair continued for about 10 years and that in February 1977 at the suggestion of the defendant the Shui Heung Yuen flat was disposed of for $160,000. A new flat, the present home of the plaintiff's was purchased with further fund of $100,000 from the defendant.

9. On the second day of the eleventh Moon in 1978, the Defendant entered Grantham Hospital. On medical grounds, so ran the plaintiff's evidence, it was imperative that the defendant would have to rest exclusively in his mother's premises after his discharge. On leaving hospital, the defendant returned to No. 11 on the 12th floor of Tung Ling Building, Block B, Causeway Bay which was visited by the plaintiff on a few occasions, and on one of these occasions the plaintiff had "an argument with a woman". Thereupon, the defendant stopped payment and disavowed all obligations in July 1978. The plight of the plaintiff seems to have stemmed from the abrupt cessation of financial and moral support.

10. It was further sought to be established that about two years after the ceremony in 1967, the defendant orally agreed to assign a ground floor shop unit in Queen's Road West to the plaintiff and had, during their cohabitation, constantly reiterated his intention.

11. On these allegations, in substance the plaintiff prays for a declaration that her marriage to the defendant is valid, a further declaration that the Daughter Plaintiff and the two infant children have been validly adopted by the defendant and a further declaration that the defendant has bound himself to assign to her the ground floor unit in Queen's Road West. Her prayer includes a claim for consequential orders for carrying these declaration into effect.

12. The plaintiff's infant children know of no other man than the defendant as their father. They disclosed in evidence that they have an elder brother by the name of Lui Chun Yin, aged 27, married and residing with them. The plaintiff also called two nieces, one was married allegedly according to Chinese customs and another had a registry marriage. Both nieces testified that on their respective marriage, they paid respects by pouring tea and kowtowing to the plaintiff and the defendant as man and wife.

13. The defendant called the family doctor, Dr. Leung, who was unaware of any alias of the defendant. The defendant also produced a certified copy true record from the Registration of Persons Department, Exhibit D4, in which from at least August 1961 the defendant registered himself as "Shiu Wai Wah" with no alias and Lee Chi Yuan as his wife with a son and a daughter both surnamed "Shiu" born in Hong Kong in 1947 in 1949 respectively.

14. Madam Lee Chi Yuan also gave evidence. She recounted her marriage to the defendant on the 6th June 1931 at the age of 19. The defendant was the 21. She described the ceremony as half Chinese and half Western. She stressed that the ceremony was "habitual" in her native village. There were two go-betweens, and she was taken from her home by a bridal sedan chair dispatched by her husband's family. The sedan chair was carried through the main entrance the defendant's house in the village, She paid respects by kowtowing to the defendant's mother, her mother-in-law to be, and senior members of the defendant's family. In the evening, there was a feast of ten tables with seventy to eighty guests. A marriage document was signed by herself and the defendant, but it was lost in a fire of the defendant is village home during Japanese occupation.

15. Madam Lee Chi Yuan has had six children form the defendant, two of whom died and the last two were born in Hong Kong. She came to Hong Kong for the first time in 1941, and she left but returned in 1947. Hong Kong has been her place of residence ever since.

16. Madam Lee Chi Yuan explained that during the 1967 riot, the defendant began to return home at irregular hours and subsequently stayed away for an odd night or two under the pretext that be was serving his country in a clandestine capacity. She confirmed that she had encountered the plaintiff twice in her present home which she shared with the defendant for the past 15 years. She also met the plaintiff once in hospital. On these occasions, according to Madam Lee, the plaintiff was introduced by the defendant to her as a friend or colleague. The Daughter Plaintiff also come to visit the defendant once and greeted her as either "aunt" or "Mrs. Shiu".

17. The defendant corroborated and enlarged on the evidence of Madam Lee Chi Yuan on their marriage ceremony. The two go-betweens were his elder sister and his mother's friend, one Madam Wu. He was slightly confused in the sequence but finally elaborated that gifts together with a Chinese character "Kau" meaning "proposal" were sent over to the family of Madam Lee in the village and that after all the gifts having been accepted, Chinese tea leaves, white fungi and the Chinese character "Wan" meaning "acceptance" were returned. He further confirmed that a bridal sedan chair was sent from his family to the family of Madam Lee and that he greeted it at his main door and raised the curtain to claim the bride. He did not fall in line with Madam Lee's evidence that the bridal sedan chair was carried right through the main door into his family house. They gave three bows to the ancestral tablets in the main hall, and they bowed to each other. Thereafter, they paid respects to his mother with an empty chair symbolizing the presence of his own deceased father and later to senior family members. He recalled that there were approximately 90 guests for the feast, but he made no mention of any marriage document.

18. Of the plaintiff, the defendant said that she served as a massage girl in Kam To where he patronized. The defendant took exception to the plaintiff's attempt to blacken his reputation by the revelation. He seemed to be determined by all means, fair or foul, to sever relationship and controverted every conceivable fact with marked hostility.

19. The defendant denied having gone through any ceremony of marriage with the plaintiff. He told the Court that in the morning on the 3rd day of the 5th Moon in 1967 he was not even in the Shui Heung Yuen flat. He also denied that he made any premise to assign the round floor until in Queen's Road West. The defendant maintained that he had never visited the Kwai Heung Teahouse or proposed to the plaintiff; not had he ever represented to her as being single and without issue or having the surname "Ho" or having been adopted by the "Shiu" family. The defendant's bold assertion was that no maintenance was paid on a regular basis and that only occasional loans were made for the plaintiff's support. He would have the Court believe that he merely advanced the purchase moneys for the flats, one following another, on the unmistaken understanding that the same would have to be reimbursed by the plaintiff's sons. He disclaimed knowledge of the contents of the letters signed in the name of "Henry Ho" in vague excuses that they were drafted by the Plaintiff Daughter's friend. He even pleaded ignorance in the sale of the Shui Heung Yuen flat some three years ago. The defendant displayed utter irresponsibility on oath as in his moral obligations. He charged that the plaintiff blackmailed him for $1,000,000 at a meeting in Lui Yu See Building, Macdonnell Road in the company of two lady friends of his wife. However, he conceded that he "had done wrong to his own family".

20. The plaintiff endeavoured to explain that she described herself as a widow in the assignment of the present flat in August 1978 as well as in other official documents on the advice of the defendant. I have ignored the plaintiff's reply to Dr. Chin that she went through no requisite formalities with the defendant "because he refused to go along with it".

21. The defendant cohabited with the plaintiff for over 10 years. I find that the purchased her two flats in succession and regularly maintained the plaintiff and her dependent children until the severence of tie in July 1978. I further find that the plaintiff's three children in this action had their native origin and surname changed under the auspices of the defendant who had throughout supervised their education in the name of "Henry Ho". The defendant's denial of any worshipping ceremony before their cohabitation in the Shui Heung Yuen flat and the dinner in the same evening is unconvincing. In his cross-examination, the following transpired:

But little did the defendant recollect his earlier admission that he attended a dinner party in which only the plaintiff's birthday was allegedly celebrated. To the allegation of the worshipping ceremony, the defendant gave evasive replies in his cross-examination: -

In fact, in his examination-in -chief, the plaintiff maintained that he never even visited that flat in the morning.

22. As for the plaintiff, I cannot accept her evidence that the defendant's attention was not gained in the course of her paid massage services rendered as a Lady Barbers Parlour employee. The acquisition of property coupled with cohabitation without public announcement or notification to the man's own circle of friends and relations is so typical of such amorous association. She was well aware of the defendant's surname "Shui" in the assignment and his Identity Card; yet she was content to associate exclusively with his alleged but unused surname "Ho". Whilst I accept that at one time the defendant did make misrepresentations as to his alleged surname "Ho" and his alleged adoption by a "Shiu" family, the plaintiff's readiness to be confined to the surname "Ho" and the use of the name "Henry Ho" is indicative of her consensus or acquiescence in the concealment of the defendant's extra-marital relationship. The defendant had no cause to and, I find, did not deceive the plaintiff as to his marital status and family. Free accommodation with an equal moiety in landed property to the value of $32,500 in 1967 was incentive enough for most middle age massage parlour employees. Corroboration of her willing participation is overwhelming in the plaintiff's own evidence, e.g. the worshipping ceremony and dinner were held without any of the defendant's personal friends and relatives; on the instructions of the defendant, she continued to describe her status as a widow in formal documents including her Certificate of Identity; the defendant took leave of absence three nights a week, and she was prepared to send her ailing partner allegedly back to his mother's in 1978. The defendant's present residence in Causeway Bay has been set up for some fifteen years. It is inconceivable that it could have escaped the plaintiff's earlier detection, particularly when her son had worked in the defendant's own North Point factory. However, as a matter of fact, I find that the defendant has no other surname than "Shiu" and that he was not adopted as he had misrepresented.

23. I accept the plaintiff's evidence on the ceremony and the defendant's declaration of his intention thereat. It was neither wholly public in nature nor in form with only the plaintiff's knowledgeable friend and elder sister present in addition to her three children. There was no member of the defendant's family or friends in attendance. The front iron grille was kept under lock. I find that there was no intention on part of either party to bind the other of them in matrimony and that the parties were deliberately discreet. The ceremony was intended to be a private personal acknowledgment, but nevertheless made before deity and the plaintiff's sister and children, of the defendant's assumption of the moral responsibility of a provider. The intention to inter-marry was lacking. In any event, it was not celebrated in an open ceremony as a modern marriage; nor was any of the rites of go-betweens, betrothal, bridal sedan chair, pouring tea and kew-towing in a Chinese customary marriage observed. The truth is that it was not and was never intended to be a marriage ceremony. It was to create no more than a bond of conscience.

24. The defendant's wife must have known more than she was prepared to admit. She wisely shut herself from reality perhaps to discourage any revelation thus sparing herself from being pressed to a stance of challenge or yield. Her husband's constant escapades could not have gone unnoticed, and his explanations must have sounded pre-eminently implausible. She displayed no surprise or indignation on the visits of the plaintiff and her daughter until the very end, in July 1978.

25. The status of concubinage cannot be acquired after the 7th October 1971, and that status has never been sought to be established by the plaintiff. The plaintiff has not "passed the defendant's door"; nor has she been accepted by his wife as a concubine. That no attempt was ever made to introduce concubinage reflects the plaintiff's painful realization of her insurmountable difficulties. Madam Lee's patience and fortitude have paid dividend in containing her husband's folly within the precinct of illicit cohabitation.

26. Dr. Chin has been called. For his experience and qualifications, suffice it for me to say that I accept him as an expert. According to Dr. Chin, in the Civil Code of the Republic of China promulgated in July 1930, the Fourth Book contained legislation on family law. Article 982 provided that "marriage must be celebrated by open ceremony in the presence of two or more witnesses". Dr. Chin opined that under the 1930 Civil Code, the three basic requirements were: (1) the expression of an intention to marry, (2) an open ceremony, and (3) the presence of two or more witnesses. Dr. Chin elaborated that the general terms of Article 982 had been expounded by decisions of the Chinese Supreme Court and the Judicial Yuen, and the doctor concluded that the ceremony as described by the defendant and Madam Lee constituted a valid monogamous marriage. Dr. Chin was also of the firm opinion that according to another Article, a person so married could not, during the subsidence of the marriage, contract a further marriage. In addition, Dr. Chin turned to evaluate the ceremony in terms of a customary marriage formerly comprising three books and six rites, which were modified progressively after the formation of the Republic of China in 1911, and the doctor advised the Court that the ceremony for a customary marriage must be celebrated formally, after betrothal, by the taking of the bride to the groom's home in a bridal sedan chair with the attendant formalities of tea pouring and kow-towing to the ancestors, parents and senior members of the family of the groom.

27. The practice of accepting evidence of an expert is now unquestionable. The development of that practice has followed a tortuous trail. In Lui Yuk Ping v. Chow To⁽¹⁾, on his acknowledgment of an implant of part of Tsing Law into the law of Hong Kong, Macfee J. doubted the propriety of receiving expert evidence in Chinese Law and custom. In Wong Kam Ying and another v. Man Chi Tai⁽²⁾, having traced our legislative source for the incorporation of part of Tsing Law through the former Section 5 of the Supreme Court Ordinance to the present Section 3 of the Applicant of English Law Ordinance, Huggins J., as he then was, reiterated his view, expressed some 3 years ago in 1963, on the justification for "allowing evidence of customary law in accordance with a practice which has long existed in these Courts". Finally in Tse Moon Sak v. Tse Hung and others⁽³⁾, at pages 175 and 176 Hogan C. J. observed:

"It would seem, therefore, that contrary to what the Solicitor General has suggested, Chinese law was part of the law of the land, Consequently, courts could purport to find this law in authoritative testbooks as Sir Henry Gollan did in Chak Chiu Hang case, but there has long been a practice in Hong Kong of taking evidence on such law, a practice endorsed in a number of judicial decisions, and although this practice may be regarded as a departure from the procedure normally followed in English courts, I think it must now be regarded as an established modification based on local circumstances though it should not be taken to supplant the court's rights to inform itself by other means."

At page 194 Mills - Owens J. had this to say:

"I see no reason to disagree with the long-standing practice of receiving evidence of Chinese law or custom; and I would agree that the court may also inform itself/form other sources such as textbooks and treatises, provided of course that any expert called is given the opportunity of comment thereon at the trial or hearing. (cf. Bremer v. Freeman)".

28. Such of Chinese customary law as incorporated into the law of Hong Kong has been gradually eroded by the constant changes in a living Chinese society, and "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 these rules subject to such developments as may have taken place since that date." ⁽⁴⁾ Much of its archaic manifestations has thus been whittled down.

29. For the formalities of a customary marriage and a marriage under the Civil Code of the Republic of China promulgated in 1930, one simply need refer to page 19 of the 1948 Committee Report on "Chinese Law and Custom in Hong Kong" and Chan Shiu Sui Ping v. Chan Diu Tsang⁽⁵⁾.

30. Prior to the Marriage Reform Ordinance which came into force on the 10th July 1970, there seemed to be six tolerated forms of marriages in Hong Kong.⁽⁶⁾ One of these was marriages contracted in Hong Kong in purported conformity with Articles 980-988 of the 1930 Civil Code of the Republic of China.⁽⁷⁾ In paragraphs 7 and 15 of those 1960 Joint Recommendations, irrespective of legal justification, marriages celebrated locally in accordance with either the 1930 Civil Code or Tsing Law were both accorded liberal official recognition.

31. The plaintiff seeks to establish the validity of her 1967 ceremony if marriage in Hong Kong, and the defendant his in 1931 in China. It would not be impertinent to consider the effect of both sets of ceremonies under as well Tsing Law as the 1930 Chinese Civil Code. A marriage under the 1930 Civil Code is monogamous, and a marriage under Tsing Law, though polygamous, would not permit the taking of a second Principal wife subject to the exception of "Kim T'iu" marriages in which a man may, under certain circumstances, marry into two families and thus take two principal wives of equal status.⁽⁸⁾.

32. Returning to the export evidence, Dr. Chin concluded that the ceremony described by Madam Lee and the defendant constituted a valid marriage under the Chinese Civil Code and according to Tsing customs and that it was a monogamous marriage under the former. Dr. Chin also held the view that the ceremony described by the plaintiff did not conform with the requirements either under the Chinese Civil Code or the modified Tsing customs and that in any event as a purported ceremony held during the subsistence of the defendant's marriage to Madam Lee Chi Yuan, it would have been stripped of all the attributes of a valid union, Despite his veracity or the lack of it, I accept the defendant's evidence of his 1931 ceremony as I do with that given by Madam Lee Chi Yuan. On Dr. Chin's evidence, I feel constrained to and do reach the same conclusions.

33. In the case of Wong Kam Ying⁽²⁾, at page 213, on the formality for taking a concubine (prior to the operational date of the Marriage Reform Ordinance), Huggins J., as he then was, held that "the absence of any ceremony may be indicative of the relationship but the real question is whether there was a common intention to form a permanent union as husband and concubine." Of course, Section 5 of the Marriage Reform Ordinance enacts that on or after the appointed date i.e. the 7th of October, 1971, no man may take a concubine and no woman may acquire the status of a concubine. The plaintiff's assertion is that the defendant married her as a wife in 1967. It is no part of her case that she was taken as a concubine before that appointed date. No more need be said of concubinage.

34. That "in strict Chinese law the father could not by deed or will alter the succession" was a prohibition well honoured in the past. See Wong Yiu She and another v. Wong Ying Kuen⁽⁹⁾. Adoption among persons of the Chinese race in Hong Kong has, therefore, by tradition been a step of not inconsiderable significance⁽¹⁰⁾. However, in the instant case, no real relevance nor advantage of an adopted child may be visualized in the present antagonism and in the state of law now existing in Hong Kong. Save for maintenance of minors, any adopted child may be specifically excluded by will. The alleged adoption of the plaintiff's three children was not legalized under the Adoption Ordinance, and Dr. Chin was of the opinion that no man with male issues may adopt under Tsing Law and that even without male issues it was punishable by Tsing Law to adopt a person of a different surname subject to only one exception in the case of a foundling under three years of age⁽¹¹⁾. With the infant children at 17 and almost 21, all this seems to be an unrewarding academic exercise, but the evidence binds me to hold that there was no valid adoption.

35. Dr. Chin's expert evidence is in perfect harmony with the information in authoritative materials accessible to the court.

36. In conclusion, the defendant has throughout been lawfully married to Madam Lee Yuan in a monogamous union to the exclusion of all others, and the plaintiff's cohabitation with the defendant has never trangressed beyond the bounds of an illicit relationship.

37. Lastly, I do not accept the plaintiff's allegation that the defendant has at any time agreed to assign to her the ground floor unit in Queen's Road West. The defendant is said to have so promised as from about two years after 1967. It would have been demonstrably unforgivable of the plaintiff not to press for a transfer throughout, particularly in February 1977 when an additional $100,000 was provided by the defendant for the acquisition of the plaintiff's present flat in Man Tai Mansion. Furthermore, the alleged promise has not been supported by good consideration nor evidenced by any sufficient memorandum in writing to render it legally enforceable.

38. None of the prayers in the plaintiff's Statement of Claim has been substantiated save for paragraphs 3, 4 and 6 thereof which are meaningless. No more need be said on the consequential orders sought. The plaintiff's claims in this action are therefore dismissed with costs to the defendant.

Representation:

Plaintiffs in person.

Mr. Miu instructed by Messrs. Hastings for Defendant.

(1) (1962) HKLR 515

(2) (1967) HKLR 201

(3) (1969) HKLR 159

(4) Vide judgment of Huggins J., in Wong Kam Ying case as cited with approval by Briggs J., as he then was, in Wong Ying Kuen V. Wong Yu Shi & others, (1969) HKLR 391.

(5) (1958) HKLR 283. Marriages between member of the Han race under the law of the Peoples' Republic of China promulgated in April 1950 are, though a matter of foreign law, not dissimilar, and reference may be made to Chan Lee Kuen V. Chan Sui Fai, 1966 HKLR 796 at page 797 for a comparative study.

(6) See the Joint Recommendations on "Chinese Marriages in Hong Kong" of the then Attorney General and Sexretary for Chinese Affairs on the 13th December 1960.

(7) The 1930 Civil Code is summarized in part II of Schedule A to the said Joint Recommendations.

(8) See page 201 of 1948 Committee Report on "Chinese Law and custom in Hong Kong and paragraph 34 in Appendix C to The 1965 McDonall - Heenan report.

(9) (1957) HKLR 420 pp. 439 & 440.

(10) See also pp. 1 & 2 of the Chinese Law of succession by Dr. V. Chin

(11) See also pp. 49 & 200 of the 1948 Committee Report