Tang Lai Sau Kiu v. Tang Loi (or Loy) Alias Tang Tin Loi

CACV000046/1986

BETWEEN

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Coram: Sir Alan Huggins, V.-P. Silke & Clough, JJ.A.

Date of Hearing: 7th & 8th October 1986

Date of Judgment: 21st October 1986

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. The appellant Wife applied for an order for periodical payments for maintenance for herself under s.8 of the Matrimonial Proceedings and Property Ordinance. The application was dismissed and she now appeals. The question we have to decide is whether the nature of the marriage was such as to entitle her to an order under that section.

2. The Wife alleged that on 24th day of the Ninth Moon 1940 (which we are told was in September or October) the parties were married in the Canton Province of China according to customary rites. The Respondent denied that any such ceremony took place and alleged that, even if it did, the marriage was void because he was already married to someone else. Suffice it to say that the judge disbelieved the Respondent on both those defences and found that a valid marriage was concluded between the parties to the present proceedings. No issue arises on the appeal as to these matters. It should, however, be mentioned that at the time the expert witness gave his evidence as to the relevant Chinese law the existence of the prior marriage was very much in issue. Deputy Judge Van de Eb was persuaded that the claim failed because the marriage between the parties was not a monogamous marriage within the meaning of s.2 of the Matrimonial Causes Ordinance, as (1) it was not a "voluntary union" and (2) it was not a "union for life of one man and one woman to the exclusion of all others".

3. The definition in the Matrimonial Causes Ordinance is relevant because s.8(2) of the Matrimonial Proceedings and Property Ordinance provides.

"The court shall not entertain an application under this section unless it would have jurisdiction to entertain proceedings by the applicant for judicial separation."

and the combined effect of ss.5 and 9 of the Matrimonial Causes Ordinance is, in the present case, that there would be no jurisdiction to entertain the application unless the marriage between the parties was a monogamous marriage within the definition. That part of the definition which is material reads:

4. The only evidence as to the nature of the marriage was given by Dr. Henry Hu of counsel, and, as the substance of the argument for the Appellant is that the judge misunderstood his evidence, it is particularly unfortunate that we have not been supplied with a transcript of his oral evidence and have to rely upon the (admittedly extensive) summary which appears in the Judgment. We do, however, have a copy of an affidavit which was (improperly) filed as an exhibit to an affidavit of the Wife. In the event it is not always immediately clear what his opinion was upon the various aspects of the case, but the judge understood him to say that, if one of the parties had deserted the other and there was no possibility of a resumption of co-habitation, the other was at liberty to marry again even though there had been no divorce: accordingly the marriage was potentially polygamous. Again, the judge understood Dr. Hu to have said that 'it was not necessary for the bride herself to consent" to the marriage and held in effect that there could be no "voluntary union" in the absence of "some free act of will on the part of the bride whereby she voluntarily chooses to go through the relevant ceremony of marriage".

5. Logically, I think, the issue of consent falls to be considered first. The relevant passages summarising Dr. Hu's evidence are:

It is, perhaps, desirable that I should cite the judge's observation on the issue of consent in full. Her initial approach was as follows:

"

I turn now to the difficult question of consent. Certain facts are clear. The Applicant herself did not consent nor did she object. She felt herself bound and indeed was bound to follow her family's wishes. There is no doubt, however, that her family consented on her behalf. This I am told, and I believe, was the normal pattern of marriage in that part of China at that time. In my judgment there was a sufficient consent by the Applicant's family according to local law and custom to constitute a valid marriage according to the local law despite the fact there there was no act of will by her. I therefore hold that according to that law there was a valid marriage and that this marriage has never been dissolved. I shall, however, have to consider the question of consent in a different context later in this judgment."

At the end of her judgment she said.

6. Miss Eu contends that the judge was in error in introducing degrees of consent for the purposes of a marriage: a party either consents or does not consent. On the other hand, Miss Leung contends that the judge was right to look for a positive expression of consent by the parties.

7. Whilst many forms of marriage ceremony incorporate a public expression of each party's will, that is not essential. The so-called "arranged marriage" has been out of favour in England for several centuries, but there is no doubt that the mere fact that a marriage has been arranged for the parties does not negative consent: Singh v Singh 1971 P. 226. If they play their appropriate roles in the ceremony, their consent is to be inferred: Cooper (falsely called Crane) v Crane 1981 P. 369. It is not that the consent of the parents is to be treated as the consent of the party herself, because evidence of duress (which must do something more than establish a feeling of obligation to the parents or to the custom of religion) will negative the parties' consent. I have not the slightest doubt that this union was voluntary on the part of the Wife and am satisfied that that accords with the opinion of Dr. Hu. I should add that no point is now taken as to the age of the wife and her capacity to consent.

8. As to the nature of the marriage Dr. Hu said in his Affidavit:

It is questionable whether the last sentence in the third passage ought to have been included, since it related to a question of Hong Kong law (which was for the judge to decide) - but no point has been taken as to that. On the contrary, much argument has been based upon that sentence, because the use of the word "therefore" appears to introduce an obvious illogicality into that paragraph, since the marriage in question was celebrated before 1st May 1950.

9. There was further difficulty in relation to the doctor's oral evidence. The judge cited some of his ipsissima verba:

As to that the judge added:

"

I cannot now recall the precise circumstances and questions which led to this piece of evidence…… Possibly, even probably, it was elicited by Mrs. Lau because of the alleged first marriage of the Respondent followed by his alleged wife's desertion."

Then the judge said:

"

.... Mr. Hu said was that if one spouse deserted another then the marriage was finished. Another marriage could be contracted. This was the custom. Mr. Hu did not say there had to be an application to the Court before a further marriage could be contracted but he did say that the provisions for divorce under the Code were not exclusive and the local customs still continued. He also said most people would not resort to the Court and that Guandong Province was strong in local customs. As I understood his evidence, Mr. Hu was saying that desertion, lapse of time and the fact that there was no possibility of a resumption of cohabitation was of itself enough to enable a deserted spouse to marry again. This, without a divorce, is sufficient to make the marriage polygamous."

10. I have already indicated the Judge's understanding of this last passage, and Miss Eu submits that the fact that the judge has miscontrued the evidence is manifest from her use of the phrase "without a divorce", a phrase which is vital to her reasoning. Miss Eu further emphasizes that one must be careful to distinguish between a "Chinese customary marriage" (which may carry with it various customary incidents) and a "marriage in accordance with Chinese custom" (which is merely a marriage conducted in a customary form, that marriage being attended by incidents which may be prescribed by statute and not by custom). She submitted that in the first passage recited above from the judgment Dr. Hu had failed to maintain this vital distinction and that when he said "Chinese customary marriages continued after the Code but Chinese marriages were also monogamous and the Code did not recognize concubines" he meant "Chinese marriage ceremonies continued after the Code came into force but all Chinese marriages were monogamous and the Code did not recognize concubines".

11. It is common ground that prior to 1931 there were no statutory provisions governing marriages in China. The vast majority of marriages were doubtless Chinese customary marriages. The relevant book of the Chinese Civil Code came into force on 5th May 1931 and this marriage was celebrated during the currency of that Code. Miss Leong's submission is that Dr. Hu's evidence was to the effect that Chinese customary marriages continued side by side with "marriages under the Code", along with all their customary incidents, and that one of those customary incidents was that upon desertion with no hope of resumption of cohabitation the innocent party could contract a second marriage, although there had been no divorce. Miss Eu contends that that argument contains a double fallacy: first she said that Dr. Hu never said there could in such circumstances be a Chinese customary marriage after the coming into force of the code - only a marriage in accordance with Chinese customs or other form of marriage which satisfied the requirements of the Code.

12. The phrase "without a divorce" was the judge's phrase, but fortunately on this point we do have Dr. Hu's own words, and he said that in the event of desertion without hope of the deserting spouse's return the marriage was "finished". That was another way of saying that Chinese custom would recognize desertion in such circumstances as constituting a divorce: the first marriage would no longer be in existence and would no longer constitute a bar to a further marriage. Thus, even if Chinese customary marriages did continue after 1931 and if this was a Chinese customary marriage, Dr. Hu mentioned no ground which would have justified his concluding that the marriage was potentially polygamous even if he had come to that conclusion. Whilst that is true as far as it goes, I think it is common ground that a Chinese customary marriage did entitle a husband, with the consent of the wife, to take one or more t'sips or concubines, and it would for that reason not be a monogamous marriage: a monogamous marriage would necessarily exclude a union with any other woman, whether a spouse or t'sip or neither.

13. The case must ultimately turn, therefore, upon Miss Eu's second contention, that this was not a Chinese customary marriage at all. In the second passage cited above from Dr. Hu's affidavit it will be seen that he thought this was a valid marriage "according to Chinese law and custom". There he was referring to the form of the marriage and not to its incidents. Equally, I think, he was referring in the third passage cited from the affidavit to the form of the marriage. Indeed, in the first sentence of the paragraph he uses the word "form". The difficulty raised by the second sentence would disappear if one were to treat that sentence as a separate paragraph, for the word "therefore" would then relate back to all that had been said earlier in the Affidavit, and I think that is what was intended. This conclusion would then accord with the first passage cited from the Affidavit, which again was concerned with the form of the marriage.

14. If one looks at the provisions of the Code to which Dr. Hu referred in his affidavit, there is clear support for that view. Article 982 was directed to the form of the marriage and provides:

"A marriage must be celebrated by open ceremony and in the presence of two or more witnesses."

That was all that was required and a "marriage in accordance with Chinese custom" would have satisfied the requirement. Article 985 prohibited a second marriage, and Article 237 of the Chinese Criminal Code made bigamy a criminal offence Moreover, Dr. Hu points out that Article 239 of the Criminal Code made adultery a criminal offence also, although he did not indicate how adultery was defined. However, Article 1052(2) of the Civil Code permitted divorce where the other spouse had sexual intercourse "with another person", which phrase would necessarily include a t'sip.

15. Miss Leong valiantly urged upon us that Chapter V of the Civil Code (relating to maintenance) made provision for maintenance of a t'sip and that it was, therefore, clear that Chinese customary marriages continued after the coming into force of the Code. The answer to that argument is that, although Chapter V thus in effect made provision for the maintenance of a t'sip, it did not do so in her capacity as a t'sip but as a "member of [the] house": see Article 1114(4). Indeed, it is to be observed that Dr. Hu said "there was no legal obligation on the head of the family to accept or maintain concubines'', a view which could only be tenable if one read this as meaning that there was no obligation to maintain her qua concubine.

16. Miss Leong also referred to Dr. Hu's opinion that "the provisions for divorce under the Code were not exclusive and the local customs still continue". Miss Eu acknowledged that she was bound by the judge's apparent acceptance of all Dr. Hu's evidence, but she submitted that the continuance of the local customs relating to divorce did not necessarily indicate a continuance of local customary marriages, especially in the face of Dr. Hu's statement that, after the Code came into effect, Chinese marriages were monogamous and that the Code did not recognize concubines.

17. We were referred to CHAN SHIU Sui-ping v CHAN Din-tsang 1958 H.K.L.R. 283, where it was held on the evidence adduced that a Chinese marriage in 1939 in the Toi Shan District was a monogamous marriage. The report is extremely brief and does not even summarize the expert evidence. The respondent had not been represented. It was a decision which is of passing interest only and not authoritative for the purpose of the present case.

18. I have come to the conclusion that the judge did misunderstand the evidence on the one point upon which she expressly based her decision that this marriage was polygamous, and I am satisfied that on the whole of the evidence the only reasonable conclusion was that it was a monogamous marriage. I would therefore allow the appeal and remit the case to the District Court to assess the amount of maintenance which ought to be paid to the Wife by the Husband.

Silke, J.A.:

19. My Lord Vice-President's conclusion are also mine. His reasoning so accords with mine that, even though we, with respect, differ from the trial judge, it would be repetitious to add to that which has been said.

20. I too would allow the appeal and I agree with the order my Lord proposes.

Clough, J.A :

21. I entirely agree with the reasons of the Vice-President and with his conclusion.

21st October 1986

Representation:

A. Eu for Applicant.

J. Leong for Respondent.