Lui Kit Chiu v. Lui Kwok Hin Chow

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT KOWLOON

CIVIL JURISDICTION

MISCELLANEOUS PROCEEDING NO. 90 OF 1976

_________________

Between

_________________

JUDGMENT

_________________

1. In this matter the applicant asks for a declaration that a validated modern marriage exists between himself and the Respondent. The Respondent has not appeared at the hearing of this application. The application is made under Section 9(3) of the Marriage Reform Ordinance, Cap. 178, which allows a party to a “validated marriage” to, where the other party refuses to join in the application, apply to the District Court for a declaration that the marriage subsists. A “validated marriage” is defined by the Ordinance as being a modern marriage made valid by Section 8. Section 8 states that every marriage celebrated in Hong Kong before 7^th October, 1971 as a modern marriage by a man and a woman each of whom is not less than 16 and is not married to any other person shall be a valid marriage. The definition in the Ordinance of a modern marriage is not of much help as it states that a “modern marriage” is a marriage celebrated in open ceremony before 2 witnesses as a modern marriage. What the definition says, in effect, is that a “modern marriage” is a modern marriage. In this regard assistance can be obtained from the 2 White Papers on Chinese marriages in Hong Kong published by the Colonial Secretariat in 1960 and 1967, out of which present legislation arose. It is stated in the second of these when dealing with Chinese Modern Marriages (p.10) that “The essential requisite for such marriages in Hong Kong has by popular consent been celebration in an open but otherwise indefined ceremony in the presence of at least 2 unspecified witnesses. This was the main requirement laid down by the Chinese Civil Code, although it should be noted that Articles 980-988 of the Code laid down other requirements in addition (e.g. degress of consanguinity, need for consent of guardian in some cases etc.) and that it was doubtful how far these other requirements have been known or complied with in Hong Kong”. It seems clear than that the “modern marriage” referred to in the ordinance is a Chinese Modern Marriage, as performed in Hong Kong, based upon Article 982 of the Chinese Civil Code.

2. That articles stated “A marriage must be celebrated by open ceremony in the presence of 2 or more witnesses.” These words are, of course, almost exactly the words used by the White Paper quoted above. However they give no guidance upon 3 important questions.

(a)   What sort of ceremony is required?

(b)  What is meant by “open”?

(c)  What is required of the 2 witnesses?

3. I have been assisted in arriving at the answers to these questions by Dr. Vermier Y. Chui’s book “Marriage laws and Customs of China”. As to the first question it is clear from Dr. Chui’s summaries of the cases decided before the Chinese courts that, although the form of the ceremony was left to the parties to decide, there was no valid marriage unless some form of ceremony was gone through. (p.125 seq.)

4.It is clear that the marriage ceremony, although indefined, is essential.

5. Dr. Chiu discusses the second question at p.128 et seq. and it is clear from that discussion and the summarized decided cases that “open” does not merely mean “not secret” As he points out “The Judicial Yuan in Yuan No. 859 of the year 1933 defined it as follows:

6. ‘Open ceremony is a ceremony so held that it is known and can be seen by all those who are not particularly invited to participate’. It is apparent from the ruling of the Judicial Yuan, cited by Dr. Chui at p.129, that only those inside can see what is going on is not an “open” ceremony. One can see that difficulties might well arise in applying such rulings to Hong Kong where an ordinary public restaurant, in which marriage ceremonies are often celebrated, might be on the 20^th floor of a high rise building and, of necessity by reason of fire regulations, behind a number of closed doors. Happily each case must be decided upon its own facts and it therefore falls to me here to decide whether the ceremony in the present case was an open one. I would remark here that the practice in Hong Kong, in an attempt apparently to satisfy the requirement of openness, has been to leave the door of the room in which the ceremony is performed ajar.

7. As to witnesses it appears that all that is required is that the person was present and witnessed the ceremony with his own eyes and is willing to testify to that effect.

8. In the present case the parties were married in March 1953, the Applicant then being 32 and the Respondent 20, at ground floor premises at 97 Chun Yeung Street half of which were occupied by the Aunt of the applicant and half by a sewing factory. The whole area including the cockloft was taken over for the wedding party which consisted of 6 tables of 12 to 13 each. It appears that the relatives and close friends were simply verbally invited and that persons with whom the parties were less intimately acquainted were sent the traditional red invitation cards. No card was produced but the applicant stated that they said that he and his wife were being married on that day and that it was a wedding dinner. Wedding Scrolls were placed at the entrance to the premises and the door to the factory part of the premises was left open. The guests on arrival were greeted by the brothers and aunt of the applicant. The bride wore a Chinese style wedding grown and a nameplate marked “bride” and the applicant wore a European Style suit and a nameplate marked “groom”. The bride and groom toasted the guests table by table and were congratulated by many of those present. After the dinner the bride and groom said goodbye to the guests at the front door. The form of the ceremony was decided by the parties and their relatives. The “official witnesses” were the aunt of the applicant AU Suk-ching, who was referred to by the applicant as “The presiding woman of the ceremony” and by herself as the groom’s “representative” and Madam Mok Sui Lan. The Applicant took the bride home at the conclusion of the wedding dinner and they lived there after as man and wife. The Respondent now refuses to join in an application for registration of the marriage and the applicant therefore applies to the District Court for decision under Section 9(3) of the Marriage Reform Ordinace.

9. It is clear form the evidence that there was not particular form of ceremony indeed, in the strict sense, there was no ceremony at all. However I am quite satisfied that what the parties decided upon for the purpose of formally sealing their union, i.e. a wedding feast which was announced as such to the relatives and friends who were invited and at which the bride and groom were toasted table by table, was a “ceremony” within the meaning of that term as it is used in the Marriage Reform Ordinance.

10. Was it an “open” ceremony? It was certainly not a secret ceremony as it was announced as being a wedding feast to all the invitees. Further it was, in a sense, announced as such to passing members of the public by the wedding scrolls placed at the front door. Further the door to one half of the premises through which the quests entered and left was kept open. There is no evidence as to exactly how much of the premises could be seen through this door but I have no doubt that a passerby, having read the scrolls, could have seen enough to know that a wedding feast was taking place therein. I am satisfied therefore that the ceremony was “open” in accordance with the meaning of that term as used in the Ordinance. Further I have no doubt that the ceremony took place in the presence of more than 2 persons who would have been willing to testify to what they saw.

11. I am satisfied and I do so declare that a validated marriage exists between the applicant and the respondent.

12. I order applicant costs to be taxed in accordance with Legal Aid Regulations on standard scale.