Lai Au Yuet Mi v. Lai Ka Lam

DCMP000315/1981

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

MISCELLANEOUS PROCEEDINGS

ACTION NO. 315 OF 1981

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Coram: H.H. Judge Bokhary in Court

Date of Judgment: 21 August, 1981

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JUDGMENT

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1. This is an application under section 9(3)(b) of the Marriage Reform Ordinance, Cap.178 for a declaration that a validated marriage subsists between the parties. It came before me in chambers this morning; but as it involves certain points of some importance, I decided to give judgment in open Court this afternoon. The facts, as I find them on the evidence adduced by the applicant and accepted by the respondent (although he was unwilling to join in an application for registration), are as follows.

2. The ceremony here in question took place on December 15,1970, when the applicant was a spinster aged 17, and the respondent was a bachelor in his twenties. She was then living with her parents in Central. He lived in a village on Lantau Island.

3. About one month before the ceremony, his family sent her family a gift of cakes and sea-food.

4. On the morning of the ceremony, he went to her parents' home to collect her as his bride. There they worshipped her ancestral tablets, and he 'kow-towed' to her parents by ceremonially pouring tea for them. All the while she was dressed in traditional Chinese wedding dress. Her mother had made the dress for her.

5. Then he brought her to his village on Lantau Island. Accompanied by some 8 or 9 bridesmaids, they went to his family's home. There they worshipped his ancestral tablets, and she 'kow-towed' to his father and other members of his family (his mother being deceased) by pouring tea for them.

6. That evening, a wedding feast was held at his family's home. About 30 tables of guests, including the bridesmaids, attended. The guests signed a red cloth. The front door was left wide open throughout. Everybody in the vicinity knew and could see that a wedding feast was being held. The applicant and the respondent went from table to table toasting the guests.

7. Some 3 days later, there was a second wedding feast. This time it was given by her family, and it was held in a well-known restaurant in Central. It proceeded much as the other wedding feast had. A decorated banner announcing that a wedding feast was being held within hung outside the restaurant.

8. Two children were born of this union: both boys, one now almost 10 and the other now almost 5.

9. Section 2 of the Marriage Reform Ordinance, Cap.178 defines a 'validated marriage' as 'a modern marriage made valid by section 8'. Before turning to section 8, one looks for the definition of a 'modern marriage'. This is also given in section 2; and it is this: 'a marriage celebrated in Hong Kong before the appointed day by open ceremony as a modern marriage and in the presence of two or more witnesses'. (The appointed day is October 7, 1971: L.N. 187/70).

10. At first blush, this definition is a rather peculiar one. One does not except the body of the statutory definition of a term to include the very term itself. To understand this definition one must look at it together with the rest of the Ordinance and in its historical setting. When this is done, the definition makes perpectly good sense. It is, of course, correct to construe a statute as a whole (see Turquand v. Board of Trade (1886) 11 App. Cas.286) and in its historical setting (see Henrietta Muir Edwards v. Att.-Gen. for Canada [1930] A.C. 124)

11. I will deal with the historical setting first. As explained by the late Prof. Vermier Y. Chiu in his book 'Marriage Laws and Customs of China' at p.11, modern marriages are those celebrated under Chinese law and custom but not by the Six Rites as what have come to be called old-fashion marriages were. Prof. Chiu also points out (ibid. at p.125) that neither Ch'ing Law nor the Nationalist Civil Code prescribes any form or procedure to be followed in marriages.

12. This brings us to the famous article 982 of the Nationalist Civil Code. This article has been proved in the Courts of Hong Kong: see Chan Shiu Sui Ping v. Chan Bin Tsang [1958] H.K.L.R. 283 (where the Code is referred to as the Chinese Civil Code, as it often is). Even if evidence of the terms of this article was necessary in that case, evidence is not necessary for present purposes. Its terms are well-known. It reads: 'A marriage must be celebrated by open ceremony and in the presence of two or more witnesses.'

13. In the appeal the reference to the record whereof is No.452 of 1931, the Supreme Court of China held that although the performance of a marriage ceremony is an essential element of a valid marriage, the kind of marriage ceremony to be performed is of no consequence.

14. Therefore, to constitute a valid marriage an intention to marry must be accompanied by some form of marriage ceremony, which may be in any form provided that it is open and witnessed by two of more persons.

15. This is as much of the historical setting as has to be looked at for present purposes.

16. Now I will turn to the other past of the Ordinance which it is most important to look at in order to understand the definition in question. This is section 8, which reads as follows:-

(Section 14 merely deals with the dissolution of validated marriages before the appointed day by consent).

17. This explains why the term 'modern marriage' appears in the body of its own definition under section 2. The key words therein are 'celebrated ... as a modern marriage'. Mark the word 'as'. The Legislature intended, as section 8 makes plain, to validate a marriage which the parties intended to celebrate as a modern marriage even though under strict Chinese law and custom it would not constitute such a marriage. I feel bound in fairness to observe that the decisions of the Supreme Court of China and the rulings of the Judicial Yuan (which august body was empowered by article 78 of the Constitution of the Republic of China to 'unify the interpretation of laws and decrees') indicate a highly admirable degree of flexibility in Chinese law and custom. Nevertheless, the Hong Kong Legislature obviously (and, if I may say so, sensibly) wished to avoid the danger, however remote, of a marriage being struck down by some rule of Chinese law and custom which may not command itself to present-day thinking. Quite apart from this, the Legislature probably wished to avoid two other things: (i) the difficulties of proof which insistence on compliance with Chinese law and custom might possibly present and (ii) the anxiety which the need for such compliance might create in the minds of the many persons (lawyers among them) who believe Chinese law and custom to be something other than the flexible body of rules it in fact is.

18. A 'marriage celebrated as a modern marriage' is, I think, rather like an elephant - difficult to describe but easy to recognise. The reasonable man held sway in the Judicial Yuan even as he always has in Courts of Common Law. In Yuan No.1701 of 1937, the Judicial Yuan held that whether a formal marriage had taken place depended on whether a reasonable man would think one had taken place.

19. On the facts of the present case, I have not the slightest doubt that a resonable man would think that there had been a marriage celebrated as a modern marriage. I have no difficulty recognising what I see in this case as such a marriage.

20. As to the other conditions which have to be fulfilled: both parties had attained the minimum age laid down in section8; the celebration was before the appointed day as it has to be under that section; there were clearly more than the minimum of two witnesses as required by section 2; and the ceremony was, in my judgment, 'open' as it has to be under that section. In Yuan No.1701 of 1937, the Judicial Yuan also held that whether or not a marriage ceremony was open depended on whether or not persons other than than the two witnesses and the invited guests could see such ceremony performed. I would leave open until it is necessary to decide it the question of whether the opportunity for such 'outsiders' to see the ceremony performed is necessary to render it open for the purposes of section 2. On the facts of the present case such outsiders clearly had such opportunity. All the neighbours if not the whole village could (and probably did) see the ceremony in the village, where the door were wide open. I am sure that unreasonable man would not think that this was anything other than a marriage celebrated as a modern marriage even if the second wedding feast did not take place. In any event, that feast was, in my judgment, equally open - taking place in a public restaurant outside which hung a banner proclaiming a marriage feast within.

21. I am satisfied that a validated marriage subsists between the parties; and I now formally make this declaration: a validated marriage subsists between the applicant, LAI AU Yuet-mi and the respondent, LAI Ka-lam

22. The wife (as I will now call the applicant) asks for costs. The husband (as I will now call the respondent) does not resist them. I awarded the wife costs to be taxed on the upper scale and under the Legal Aid Regulations.

Representation:

Miss M.J. Fowler of the Legal Aid Department for the applicant wife.

The respondent husband in person.