Lee Cheuk v. Siu Wai Kin

CACV000021/1971

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO.21 OF 1971

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Coram: Full Court (Blair-Kerr, Acting C.J., Huggins and McMullin JJ.)

Date of Judgment: 28 June 1971

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JUDGMENT

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Blair-Kerr, Acting C.J.:

1. I agree. Foreign law is a question of fact in these courts. Before the District Judge, the respondent called no evidence to support the suggestion now made by her counsel in this court that the Chinese Civil Code was repealed and replaced by a statute introduced by the People's Republic of China and that since 1950 divorce in Kwantung involves some sort of Governmental and judicial intervention. That may well be so; but matters of this sort should be established by evidence before the court of trial. In this case, the District Judge was quite entitled to say in effect: "I shall assume that the law in Kwantung in 1954 was as set out in Mr. Henry Hu's affidavit until I have some evidence to the contrary."

2. The finding of duress was, to say the least of it, a startling one; but I agree that this court should not reverse it based, as it was, on the impression of the parties formed by the District Judge after he had seen and heard them testify.

3. On the other hand, the District Judge did not fully consider the legal effect of such duress. Clearly, it did not render the agreement a nullity. As Mr. Corbally (on behalf of the Queen's Proctor) said, on the District Judge's finding the agreement may well contain the seeds of its own destruction. It may well be voidable. But it remains a valid agreement until it has been avoided. The respondent has not chosen to institute proceedings for rescission in the Supreme Court. She has done nothing for 16 years; and it is now far too late for her to think of instituting proceedings for rescission.

4. I agree that the marriage was dissolved by the 1954 agreement, and that the appeal must be allowed on that ground. I also agree with the order as to costs proposed by my Brother, Mr. Justice Huggins.

5. As I said during the appeal, this is the second occasion this year in which questions pertaining to marriage or divorce have been referred to the Queen's Proctor; and on each occasion he has very kindly seen fit to instruct counsel to assist the court. This court has been greatly assisted by counsel for the Proctor's most helpful submissions.

Representation:

Peter Chan (Thomas Wang & Co.) for Appellant.

H.C. Miu (P.H. Sin & Co.) for Respondent.

E.W.L.M. Corbally, A.P.C.C. as Amicus Curiae.

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. 21 OF 1971

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Coram: Full Court (Blair-Kerr, Acting C.J., Huggins and McMullin, JJ.)

Date of Judgment:

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JUDGMENT

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6. Huggins, J.: This is an appeal against a judgment of a District Judge under the Separation and Maintenance Ordinance whereby he ordered that the respondent wife be no longer bound to co-habit with the appellant husband and that the Appellant pay a sum of $100 a month towards the maintenance of the Respondent. The basis of the judgment was that the Appellant had wilfully neglected to provide reasonable maintenance for the Respondent since 1954 and had been guilty of persistent cruelty.

7. The judge found that the parties were married in Canton in 1948 according to customary rites. Originally the Appellant denied the marriage but at the trial he did not press the point and made his first line of defence an allegation that there was a divorce in 1954. It was common ground that in that year, while the parties were living in Hong Kong, they executed an Agreement of divorce, but the Respondent contended that it was void because she had executed under duress. The learned judge believed that she had executed under duress and held that the parties remained married.

8. Leave to appeal out of time was granted by another division of this court because during the 16 years between the divorce Agreement and the filing of the application for maintenance the Appellant had married another woman and had had five children by her: it was clear that this woman and the children might be prejudiced by the decision that the marriage between the Appellant and the Respondent was still subsisting. Notice of the proceedings was given to the Queen's Proctor and we have been greatly assisted by counsel appearing on his behalf.

9. The grounds of appeal as set out in the Notice of Motion, so far as they are comprehensible at all, appear to be that there was no evidence to support the findings of the learned judge and, in the alternative, that his findings were against the weight of the evidence. What particular findings were to be attacked did not appear from the Notice of Appeal but in the event counsel for the Appellant confined himself to attacking the finding that the Respondent executed the Agreement under duress. However, the wife filed a Respondent's Notice and contended that in any event the divorce Agreement did not have the effect of dissolving the marriage.

10. I share with the other members of the Court doubt as to the correctness of the finding of duress but the learned judge expressly based himself upon the impression made upon him by the two parties to the action and had no hesitation in saying that he found the Respondent a more convincing witness than the Appellant. The evidence given by the Respondent was about as thin as it could be but it might have been difficult for this Court to say that the learned judge was not entitled to come to the decision which he did. In the event it is unnecessary to say anything further on this aspect of the case.

11. This is not because I think the point raised by the Respondent's Notice is correct. That point was that the marriage was what has been described as "the civil equivalent of a Christian marriage" (which sacrament is apparently thought by the draftsman of the Notice to have no incidents other than monogamy) and that a monogamous marriage could not in law be dissolved by an agreement in writing executed in Hong Kong. I need not give my reasons at length, but I think that that is wrong. The learned judge found, and this finding is not challenged, that the parties were domiciled in Kwang Tung both at the time of the marriage and at the time of the alleged divorce. Oral evidence was given by an expert in Chinese law and in this Court it has also been agreed that an affidavit sworn by him prior to the trial should be treated as evidence in the case, although there is no record in the note of the learned judge of any agreement that affidavit evidence should be admitted at the trial. The opinion expressed was that the Agreement, having been in writing and signed by two witnesses, "is therefore a valid divorce in the eyes of Chinese Civil Code". There was no expert evidence to the contrary, although it has been suggested before us that the Chinese Civil Code to which reference was made was repealed and replaced by a statute introduced by the People's Republic of China. The learned judge was entitled to find that under the law of China the Agreement would be recognised as a valid divorce by the courts in Kwang Tung and we cannot say he was wrong to do so.

12. On behalf of the Queen's Proctor it has been argued that although the judgment was clearly a judgment in personam, so that it could not adversely affect the Appellant's second wife and her children, the learned judge was wrong in holding that the Agreement was void for duress. Counsel felt bound to accept, though with obvious misgivings, the finding that the Agreement was executed under duress but submitted that the effect of duress would be to render the Agreement not void but voidable. On this point the evidence of the expert was silent: he merely said that under Chinese law duress would have negatived consent under the general principles of the law of contract. In the absence of evidence to the contrary we must presume that the foreign law on that subject is the same as the Hong Kong law: see, for example, per Atkin L.J. in The Colorado⁽¹⁾. Counsel submitted that the Hong Kong law was to be found in the speech of Lord Blanesburgh in McPherson v. McPherson ⁽²⁾ where the Privy Council had to consider the effect of a decree of divorce granted in camera. At p.203 the learned judge said:

That passage seems to me directly in point. The Respondent delayed for 16 years before instituting these proceedings and in the mean time the Appellant has remarried and reared a large family. Had the Respondent within a reasonable time brought an action for rescission of the Agreement in the Supreme Court (such an action would not have been within the equitable jurisdiction of the District Court) and had she succeeded I think the marriage would not have been dissolved. As it is, the marriage was dissolved and it is far too late to seek rescission.

13. On this ground I would allow the appeal. As neither party has succeeded upon the grounds advanced by them I think the proper order is that both parties should pay their own costs both here and in the court below. The Queen's Proctor has very properly not asked for costs.

Representation:

(1) 1923 P.102, 111

(2) 1936 A.C. 177

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CIVIL APPEAL NO.21 OF 1971

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Coram: Blair-Kerr, Acting C.J., Huggins and McMullin, JJ.

Date of Judgment:

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JUDGMENT

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14. McMullin J.: I agree. The point made by Mr. Mui concerning the change in the law of the parties' domicile following upon the setting up of the Peoples Republic of China is ingenious and perhaps of substance. It cannot be taken now however. In effect he would have us decide the appeal upon a document which is not in evidence before us and was not in evidence in the Court below. There has been no application to adduce fresh evidence on appeal. Even if there were, it would no doubt be met by the formidable objection that such evidence was available at the time of trial and that it was for the respondent then to show that the divorce was invalid on that ground alternatively or in addition to the ground of duress.

15. Although the evidence was not of the strongest the District Judge relied expressly upon the impression made upon him by the parties in coming to his finding of duress and was at pains to particularize his reasons for the estimate he made. Although I might have hesitated to come to the same conclusion without further amplification of the particulars of the alleged duress I would certainly not be prepared to say that there was not sufficient evidence to justify his conclusions. He did not however consider, and was not asked to consider, the legal implications of his finding. Clearly the divorce agreement was, at most, voidable at the suit of the respondent. I am satisfied, on the authorities cited by Mr. Corbally, and in particular McPherson v. McPherson 1936 A.C. 177 and F. v. F. 1970 1 All E.R. 200, that she was effectively precluded from obtaining the relief which she sought by virtue of her own delay, since the grant of that relief necessarily, although as a side issue, required the District Judge to pronounce upon the validity of the marriage between the appellant and the woman who became his second wife. Effectively, and notwithstanding that he purported to make an order in personam only relating to maintenance of the respondent, he was compelled to make an order which treated the divorce agreement as rescinded. This appears to me to be wrong firstly because, on the principles stated in the cases referred to above, it was already too late for the respondent to seek roscission of that agreement once an innocent third party had acquired a new status and new rights in reliance on the validity of the agreement, and secondly because it does not appear that the District Court has power, even by virtue of the equitable jurisdiction conferred upon it by section 8 of the District Court (Civil Jurisdiction & Procedure) Ordinance to make, even per indirectum, an order granting rescission of such an agreement.

16. I agree with order for costs proposed by my Lord.

Representation: