Re Ng Ka Wing

HCAG 3253/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO. 3253 OF 2007

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Coram :     Before Master J. Wong in Chambers  

Date of Appointment :   20 May 2009

Date of Decision  :   29 May 2009

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D E C I S I O N

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Introduction

1.This is an appointment under the Non-Contentious Probate List.  The Applicant applies for the grant of the Deceased in the capacity of his “lawful kit-fat widow and relict”.

Background

2.On 2 April 2007, the Applicant through her solicitors filed the present application for grant.  She deposed, inter alia, that she married to the Deceased in 1976 in Hong Kong. Thereafter, she gave birth of two sons to the Deceased.

3.Since valid marriage can only be contracted in Hong Kong by registration on or after 7 October 1971 and the description of “kit-fat” wife is applicable to marriage under Chinese custom and rites, this Court raised requisitions to the mode and validity of the marriage between the Applicant and the Deceased.

4.The solicitors replied in the followings.

“We are instructed by the applicant that she was married to the said deceased in or about 1976 in Hong Kong according to the Chinese custom and rites.”

(letter of 6 August 2007)

“We are instructed by the applicant that she has wrongfully to gave the instruction regarding the date of marriage concerning her and the said deceased was in or about 1976.

We are instructed and confirmed by the applicant that she was married to the deceased aforesaid in or about 1966 in Hong Kong according to the Chinese custom and rites actually.”

(letter of 28 August 2007)

5.This Court was not satisfied with the reply and went on making further enquiries on the evidence of the marriage, including the production of the Registered Particulars of the Applicant and the Deceased from the Immigration Department.

6.When the Registered Particulars of the Applicant were filed with this Court, it showed that the Applicant had not told the whole truth.

“2.     You were registered as a New Arrival on 20 October 1975 for Identity Card No. XXX.  On registration the following particulars were lodged with this office:

(i)    Name – LUI, Koon Chai (雷管齊)

(ii)   Aliases – CHOI LUI, Koon Chai (蔡雷管齊)

(iii)   Date of birth – 25 February 1940

(iv)   Place of birth – China

(v)   Nationality claimed – Chinese

(vi)   Marital Status & subsequent changes – Married

(vii)  Name of spouse – CHOI, Kwok Yui (蔡國銳)

On 15 November 1984 you informed this office that you had separated from CHOI, Kwok Yui (蔡國銳).  On the same day you reported that you were married and informed this office that 吳家永 as your spouse.

On 12 January 2008 you informed this office that NG, Ka Wing (吳家永) (Identity Card No. XXX) was deceased.”

7.The Court then further raised:

“It appears that [the Registered Particulars of the Applicant] contains evidence contradictory to the case now put forward by the applicant to this Court.

(a)      By letter of 6 August 2007, this Court was informed that the deceased married with the applicant in or about 1976 in Hong Kong according to Chinese custom and rites.

(b)      Upon being questioned, by letter of 28 August 2007, the applicant clarified/changed her case that the date of marriage was in or about 1966.

(c)      From [the Registered Particulars of the Applicant], on 20 October 1975 [sic.1976], she informed the Immigration Department that her spouse was Choi Kwok Yui (蔡國銳).  She had an alias of 蔡雷管齊.  It was only on 15 November 1984, she then informed that she had separated with Choi Kwok Yui and the deceased was her spouse.

The applicant shall file an affidavit explaining the above situation.”

8.Subsequently, the Applicant filed her affirmation on 21 January 2009.  She said that she was married to the Deceased in about 1976 under Chinese custom and rites although there was no registration.  Her relationship with the Deceased was “close extremely as the married spouse actually”.  She further exhibited a divorce absolute showing that she married to Mr. Choi Kwok Yui in China on 2 November 1961 and divorced with him on 11 November 1977.  She reiterated that the grant should be issued to her.

9.I then called for an appointment to see how the matter is to be processed with.  The parties appeared before me on 20 May 2009.  Mr. Wong appeared for the Applicant.  She and one of her sons were also present at the appointment.

Decision

10.Upon consideration of all the evidence and submissions from the parties, I have decided to dismiss the Applicant’s application herein.  On balance, as a matter of law, she cannot be the lawful (kit-fat) widow and relict of the Deceased.

(a)   She was still legally married to Mr. Choi Kwok Yui until 10 November 1977, and as such, she had no capacity to contract any other valid marriage on or before that date.

(b)   Commencing from 7 October 1971, the Marriage Reform Ordinance (Cap. 178) abolished the Chinese customary marriage. Thereafter, valid marriage in Hong Kong can only be contracted in accordance with the Marriage Ordinance (Cap. 181).  Hence, the Applicant could not marry to the Deceased in or about 1976 by way of Chinese custom and rites.

(c)    Under the laws of Hong Kong, the Applicant has never been the lawful (kit-fat) wife of the Deceased.

Further Conduct

11.At the appointment, I also had the benefit of meeting one of the two sons of the Deceased and Applicant.  He submitted to me copy birth certificates of himself and that of his younger brother.  On face of them, they were born by the Applicant to the Deceased.  Therefore, subject to the advice of the solicitors to the Applicant and to the sons, and without binding this Court in any respect under any future application to be made, it appears that either of the two sons may apply for the grant to the estate of their deceased father in the capacity of natural son.

Reminder

12.As a reminder, practitioners as officers of this Court should duly advise the position of their client under the law and ask their client to bear in mind the obligation and liability in making affidavits under oath.  As contained in a recent decision of In the Estate of Yeh Lien Teh under HCMP 1809/2008, 8 October 2008, the Probate Judge Lam J., said that:

“10.  I cannot emphasise more about the importance of an applicant applying for grant to exercise due diligence and care in terms of the information contained in his or her supporting affirmation.  It is a serious matter to make a mistake in these sorts of documents because the court relies on the content of these documents to decide whether the grant should or should not be made and to whom the grant should be made.  Any mistake in those documents will have to be explained, to say the least.  This is the requirement of the law.”

13.In the present case, having heard from the Applicant as well as her son at the appointment, I barely accept their explanation that the Applicant did not intentionally mislead this Court.  She simply did not know the complications and believed, albeit incorrectly, that she was the lawful kit-fat wife of the Deceased.

Mr. Y.K. Wong of Messrs. Stanley Y.K. Wong & Co. for the Applicant.