Erminda Constantino Ong v. Chau Shui Hing

1988, M.P. No. 1895

HEADNOTE

Private International Law.  Validity of marriages registered in the People's Republic of China where one of the parties has not attained the, minimum age laid down in Article 4 of The 1950 Marriage Law.

Held

Such marriages become valid marriages where all other requirements are adhered to and neither party seeks to avoid it before the minimum age is reached or the woman has become pregnant.

1988 M.P. No. 1895

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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BETWEEN

Coram: The Hon. Mr. Justice Mayo in Court

Date of Hearing: 17th-20th, 23rd-24th January, 1989

Date of Delivery of Judgment: 13th February, 1989

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J U D G M E N T

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1. The heading in this action is slightly misleading.  The application which I am considering in this judgment forms part of wardship proceedings which are also before me.  After hearing submissions from the parties I was satisfied that it was right that I should hear the Plaintiff's application for a Declaration immediately prior to the wardship hearing.

2. This is a most extraordinary and difficult case.  I will begin by making a very short summary of the main facts of the case.

3. It is the Defendant's case that she went through a ceremony of marriage with Choy Cheung Wo on the 24th of December 1964 in Nan An County in China.

4. Following the Marriage her husband spent time living in Hong Kong and going back to her village in China where she continued to live. In 1977 her husband brought her and their 2 sons to Hong Kong.  He then went to live in the Philippines.

5. It is the Plaintiff's case that she went through ceremony of marriage with a man called Rogerio Ong on the 28th of September 1979.  Shortly after this she gave birth to a daughter Julie Ong who is the ward in the wardship proceedings.

6. There is no doubt, whatever that Choy Cheung Wo and Rogerio Ong are one and the same person.

7. In may 1985 Mr. Choy alias Mr. Ong (who I will refer to as Mr. Ong) left the Plaintiff in the Philippines and came to Hong Kong bringing Julie with him.  Apparently he took Julie to Hong Kong without informing the Plaintiff of this.

8. Mr. Ong was involved in an industrial accident on the 8th of October 1986 and he died from the injuries he sustained on the 19th of October.

9. The Plaintiff is seeking a Declaration that her marriage to Mr. Ong was a lawful marriage.

10. Needless to say marriages in the Philippines are monogamous marriages and before I am able to make any such Declaration I must be satisfied that Mr. Ong was not lawfully married to the Defendnat in the People's Republic of China.

11. Miss Eu was representing the Plaintiff.  Her main line of attack against the People's Republic of China marriage was that the minimum age for a man to get married in China is 20.  She accepted that the evidence relating to Mr. Ong's and place of birth was inconclusive.  She claimed however that on the evidence which was available it was more likely that he was born in 1946 than in 1944.

12. To summarise the position all of the documentary evidence eminating from the People's Republic of China seemed to indicate that Mr. Ong was born on the 11th day of the 11th moon of 1946.

13. All of the Philippine documents suggested that he was born on the 8th of December 1944.  There was however some confusion over the evidence presented in this connection.  There were conflicts as to which records had been destroyed or were missing in the Philippines.

14. After reviewing all of the evidence carefully I am satisfied that it is impossible to ascertain with any acceptable degree of certainty what was the date of Mr. Ong's birth.  For reasons which will be clear later on I have decided to proceed on the assumption that the Chinese documents more accurately reflect the position and that Mr. Ong had not reached the age of 20 when he went through the ceremony of marriage with the Defendant.

15. This being the case there does appear to be a problem concerning the Chinese marriage.  Article 4 of the 1950 Marriage Law reads:

"A marriage can be contracted only after the man has reached the age of 20, and the woman 18 years of age."

16. I accept the submission made by Miss Mok on behalf of the ward that it is a basic principal of Private International Law that the Law relating to the formal procedures of the marriage is the law of the place where the ceremony is performed.  The capacity of the parties of marry as governed by the law of the place of the ante nuptial domicile with the parties.  See Chapter 17 of the 11th Edition of Dicey & Morris.

17. Mr. Ong's age or lack of it is clearly a question relating to his capacity.  Accordingly it will be necessary to determine what Mr. Ong's domicile was in 1964 when he went through this ceremony.

18. Unfortunately this is another matter which is by no means clear.

19. Both ladies gave evidence in the matter.  What struck me as being most remarkable was that both these ladies who I accept as being basically truthful and reliable witnesses were referring to evidence concerning the same man.  In each case it could be said that their evidence was in water-tight compartments.  I believe that neither of them, when referring to evidence of the relevant times, had any idea of the existence of the other lady.  It is truly a tragic case and both ladies have my deepest sympathy.

20. The Defendant gave evidence concerning the early part of her life.  She was a village girl and had very little or no proper education.

21. She did not know much about the background of her husband.  She knew of his family.  They were an overseas Chinese family and as such were accorded a certain amount of status in the village.

22. An Approach was first made by a match-maker and her parents were happy to receive the attentions from Mr. Ong's, family.  The only problem which was raised was the question of his age.  It was noted that he was younger than her.  I find that this evidence was of some importance in persuading me that Mr. Ong was born in 1946 rather than 1944.  The Defendant was born in 1942 and it seems to me to be improbable that any objection would have been raised concerning age if the age gap between the prospective bride and bridegroom was only 2 years.

23. Be that as it may the marriage plans went forward.  The Defendant gave evidence that the rather elaborate local customs were adhered to such as the husband's family giving presents to the bride's.  There were also 2 wedding parties when members of each of the families and villagers all attended.  Indeed it seems that by the standards of the village it was a rather grand affair.  Also the marriage was registered at the local registry office.

24. After the marriage they lived together for a short time.  Mr. Ong then went to Hong Kong and returned to China whenever he could.  He sent remittances to her to support her and the children who were subsequently born.  In 1977 Mr. Ong brought the whole family which then consisted of herself and her 2 sons to Hong Kong.

25. Shortly after this Mr. Ong went to the Philippines so as to get a better job.  While he was there they kept in touch by telephone about 5 or 6 times a year.  He always telephoned her In addition to this her husband also sent remittances to her to support the family.

26. The Plaintiff gave evidence concerning her life She came from a fairly humble family.  At a very young age she met a man and had a son by him called Orlando.  Her family disapproved of Orlando's father and he then left her.  She had to look after Orlando herself with no help from the father

27. Shortly after he left the Plaintiff met Mr. Ong.  She knew that he had various relatives in the Philippines including a step father but it was rather my impression that the Plaintiff did not wish to probe too deeply into his background.  She did however form the view that he came from a good family.

28. They decided to cohabit and they only got married when she was 6 months pregnant with Julie.

29. They complied with all the procedural requirements of a legal marriage according to Filipino Law.  I am satisfied of this by the expert evidence to this effect.

30. The Plaintiff claimed that they lived happily together until May 1985 when Mr. Ong suddenly left taking Julie with him.

31. From the totality of the evidence there is nothing conclusive to establish where Mr. Ong was born.  I am inclined to think that it is more likely that he was born in China than he was in the Philippines.  Certainly I consider there is much more evidence to show that his roots were in China.  I have attached quite a lot of weight to the families insistence that local Chinese customs and practices relating to the Chinese marriage had to be adhered to.  I also got the general feel from the evidence that the man whose life was being scrutinised was a Chinese man rather than a Filipino.

32. Doing the best I can with the limited evidence available I have come to the conclusion that Mr. Ong was domiciled in the People's Republic of China when he got married in 1964.

33. Having come to this conclusion I am satisfied that the only system of law which I have to consider is the Law of the People's Republic of China.

34. The next matter I have to consider is where does the burden of proof lie.

35. I accept the submissions which were made by Mr. Waley for the Defendant that the burden rests upon the Plaintiff to demonstrate that the Chinese marriage was invalid.

36. Assistance on this aspect of the matter can be found from the Judgment of Trainor J. in Kao v. Kao 1975 H.K.L.R. 449 at p.457:

"I was referred to the case of Chung Kai Fun v. Lau wai King (1966) H.K.L.R. 881 in which Briggs, J., as he then was, said at p.883:-

'In order to prove a marriage in a foreign country it is necessary to prove (1) of what the ceremony consisted and (2) that that ceremony was a valid marriage according to the place where it was celebrated. '

In the instant case, she said, the evidence was that no ceremony was ever held, that the laws of China required the registration of a marriage which had not been done, therefore there was no marriage.  However, taking the evidence of Mr. Dicks at its strongest it only showed the possibility of a marriage and she would rely on the case of Ives v. Ives (1967) H.K.L.R. 423 a decision of Full Court – where according to the headnote it was held, inter alia, that:-

'Where there is evidence of a marriage ceremony followed by cohabitation, a presumption of the validity of the marriage arises in the absence of decisive evidence to the contrary.  There was authority for saying that the existence of an earlier marriage of doubtful validity was not sufficient to displace this presumption.'

That, she would maintain, is the position here.  She cited from the judgment of Hogan, C,J., at p. 427 where he said:-

"I think these circumstances do emerge with sufficient clarity from the evidence and proceedings in the court below to set up the presumption mentioned by Cairns, J. in Taylor v. Taylor (1957) P.25 at 37, when he quoted the principle enunciated by Barnard, J. in Russel v. Attorney General (1949) P.391 at 394 and founded on many earlier decisions, that.

'Where there is evidence of a ceremony of marriage having been performed, followed by cohabitation of the parties the validity of the marriage will be presumed, in the absence of decisive evidence to the contrary. '"

In a later part of the judgment of the learned Chief Justice again repeats that last sentence just quoted and continues:-

'That reasoning must be applied to the facts of the present case.'

That was at p.449.  Again, in that page he says:-

'The Ives marriage (which was a second marriage therefore is presumed to be valid in the words of Barnard J. 'in the absence of decisive evidence to the contrary.'  There is no direct evidence that the Hussain marriage was valid (that is the former marriage).  The assumption of the parties that the Hussain marriage was valid must be set beside the fact that there was insufficient proof that the marriage was recognised to be a valid marriage by the law of India.  The validity of the marriage is uncertain.  This uncertainty is insufficient to displace the presumption in favour of the later valid marriage, the Ives marriage.  Therefore it is not necessary for the Respondent to show that the Hussain marriage was void or had been dissolved, before she can rely upon that presumption'.

In the present case I have before me evidence in the form of the marriage certificate issued by the registrar in Victoria of a valid marriage and I am constrained to accept as a valid marriage until there is decisive evidence to the contrary."

37. Miss Eu argued that as her client held a valid Filipino marriage certificate it was for the Defendant to show that the marriage was invalid.  Indeed the circumstances of Kao v. Kao supported her contention rather than Mr. Waley's.  With respect I disagree.  The vital difference between that case and the present one is that the Defendant does hold a People's Republic of China marriage certificate whereas this was not the case in Kao v. Kao.

38. I will now turn to consider whether the Plaintiff is able to show that there is decisive evidence that the Defendant's marriage was invalid.

39. Two experts on People's Republic of China Law were called as witnesses.  The Plaintiff called Mr. Hwang and the Defendant called Dr. H.L.Hu.

40. I regret that I did not find Mr. Hwang's evidence very helpful.  On his own admission his studies of People's Republic of China Law have been very limited.  He has never attended a formal course of studies on the subject nor has he passed any Examinations.  He holds no degrees or diplomas nor has he held any relevant academic posts.  On top of this he has never practised or lived for any significant Periods in China after 1949.  He claimed to have read some articles on the subject but I obtained the distinct impression that he does not possess a deep knowledge of the subject.

41. It was his evidence that the Chinese Marriage Law of 1950 had to be strictly interpreted at its face value.  Mr. Hwang was unable to put forward any convincing or cogent arguments why this should be the case.  Quite simply I reject this evidence.

42. Dr. Hu was definitely much more convincing as a witness.  I accept that like Mr. Hwang he does not possess any formal qualifications on the subject.  Nor has he practised in China after 1949.  However he seemed to be much more familiar with articles which have been written by Scholars who hold or have held academic positions in the People's Republic of China.

43. It was Dr. Hu's evidence that it was incorrect to approach the 1950 Marriage Law in the same way as one would interpret a Westminster Statute.  It would be much nearer to the truth to regard the laws in the same way as one would propaganda disseminated by the Authorities or to treat it as being advisory or of educative value.

44. He also drew a distinction between the wording adopted in Article 4 and Article 5 which proscribes marriages in other situations.  He said that in the case of Article 5 there was a definite prohibition whereas this is not the case for Article 4.

45. I am not wholly convinced by this distinction.  What I think is much more compelling is the informal way in which the law is couched.

46. No attempt is made to repeal the previous law of marriage.  Also no transitional provisions are included in the law to provide for existing marriages.

47. Over and above this it must be the case that there are large areas of rural China where there would be no facilities for formal registration as is required under the Law.

48. All of this persuades me, that Dr. Hu's expert opinion is more accurate than Mr. Hwang's.

49. Some of the difficulties I have outlined have been dealt with in various articles on the marriage laws.  One example of this can be seen from an extract from 'Marriage Law and Policy in the Chinese People's Republic' by M.J. Meijer Hong Kong University Press 1971.  At p.180 Dr. Meijer says:

"'Though the intention of the regime is obviously that everyone should register and that marriage should be in accordance with the new system free from "feudal" and bourgeois traces, based on love, common labour, "and struggle for the happiness of the family and the building of the new society" yet the legislator carefully refrains from saying what the consequences are if registration is omitted.  Even the commentary does not enlighten us in this respect.  In an earlier chapter the attitude of the Government of the Chin-Ch'a-Chi Border Area was discussed, and it was shown that either registration or a public ceremony were required to make marriage valid in the eyes of the Government.  In the Period after 1950, however, one finds conflicting statements.  The requirement of a public ceremony and witnesses having been dropped completely by the law, registration would seem to be the only necessary formality.  But in 1951 the People's Court of Southern Anhwei ruled as follows: When a man and a woman have in fact concluded marriage but failed to register in accordance with Article 6, and when there are no legal impediments as mentioned in the Articles 3-5, we can only order them to register post facto.  To deny marital relations on the ground of this failure in procedure would mean the denial of the fact of marriage which is not satisfactory (pu t'o-tang).  In general the relations between husband and wife cannot be decided according to the rigid standard of having registered and received a marriage certificate.  In this particular case, where the woman married after the promulgation of the Marriage Law but failed to register her marriage, and now requests divorce we must still handle the matter to the provisions of the Marriage Law concerning divorce.  This was not only the opinion of a  provincial court -it was confirmed by the Supreme Court's Branch Court for Eastern China.  The latter, however did not commit itself so completely as the lower court did but stated that as at that time the work of registration, propaganda and education of the masses had not yet been carried out thoroughly and universally, marital relations stemming from unregistered marriages should be considered legally valid. "

50. From this I think that it can fairly be concluded that valid marriages can exist notwithstanding the failure to strictly comply with all the provisions of the marriage laws.

51. One thing can be said with certainty in the present case.  It is undoubtedly the case that a marriage was registered and a marriage certificate was issued.  The main question we are concerned with is the legal effect of the marriage where there has not been strict compliance with Article 4.

52. Dr. Hu was able to give me some assistance on the consequences of non-compliance.  He referred me to a commentary on the 1980 Marriage Laws by professor Yang Tai MAN entitled 'manuscript of marriage law'.  In his commentary on Article 4 he states:

"Translation of (III) 2 on page 135

2 Marriage is void for (people get married) before reaching the legal marriage age

It is an illegal act for one party or both parties to get married before reaching the legal marriage age.  In principle, such marriage should be regarded as void.  (When one) has not yet reached the legal marriage age, but already be got child/children or the female party been pregnant, it should be aimed at the protection of women and welfare of children.  It is inappropriate to simply deny the legal validity of the marriage.  It should be pointed out that by efflux of time, notwithstanding one party or both parties did not reach the legal marriage age at the time of marriage, from the time when both parties have all reached the legal marriage age, the past illegal act should not be taken as current basis to confirm the invalidity of the marriage.  Under these circumstances, it should be regarded that the voidable cause of the marriage has already dissipated.  That is certainly not the affirmation and protection of the illegal act of the parties concerned, but it is a need to stabilize the marriage relationship.  The illegal act in the past should certainly be criticized and (people) be edcuated, it is invariably superfluous to reconfirm its invalidity."

53. According to Dr. Hu this approach was in conformity with the law laid down in the Chinese Civil rather than a literal interpretation of the Articles of the Law.

54. Adopting this approach I am satisfied that the Defendant's marriage became a valid marriage notwithstanding the fact that Article 4 had not been strictly complied with.

55. The only other criticism made by Mr. Hwang of the marriage was the fact that at the time of the marriage the Defendant changed her name.

56. The reason the Defendant gave for this was that a close relative in her husband's family had the same given name as hers.  As his family did not think this was very desirable she had agreed to change her name as requested.  Dr. Hu gave evidence that this was not at all uncommon and I accept his evidence.  This other criticism therefore is overcome.

57. For the reasons I have given I am prepared to make the Declaration sought in the Defendant's counterclaim that her 1964 marriage was a lawful marriage and that she is the lawful widow and relict of the deceased.  I regret that I must decline to make the Declarations sought by the Plaintiff.

58. I advised the parties of my decision at the conclusion of the hearing in the hope that it may be of Code of the Nationalist Government.  Article 989 provides:

"Article 989 - Where a marriage is concluded contrary to the provision of Article 980, the party concerned or his statutory agent may apply to the Court for its annulment; but such application may not be made, where the party concerned has attained the age specified in the said article or where the woman has become pregnant."

Article 980 states:

"Article 980 - A man who has not completed his eighteenth year of age and a woman her sixteenth may not conclude marriage."

59. While I realise that Professor Yang is commentating on the 1981 Law I see no reason to believe why the observations made should not have equal application to the 1950 Marriage Law.  Indeed I am satisfied that this is the correct approach to adopt.

60. On the evidence before me Mr. Ong never attempted to annul the marriage before he reached the age of 20 and also the Defendant bore him children.

61. All of the articles and opinions which were cited to me seemed to me to be sympathetic towards adopting a liberal or informal approach to the 1950 marriage Law.  The overriding philosophy is pragmatic and directed towards the overall well being of society some limited assistance.  These are the reasons for my decision.

Representation:

Miss Audrey Eu (Melville Boase & Co.) assigned by D.L.A. for Applicant/Plaintiff.

Mr. Eric Waley (Wong Shum & Co.) assigned by D.L.A. for Respondent/Defendant.

Miss Alice Mok (Helen A. Lo & Co.) assigned by D.L.A. for official solicitor for the minor holding a watching-brief.