So Yee Mui and Others v. Lam Pui Chi

HCAP 7/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 7 OF 2008

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BETWEEN

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Before: Hon Lam J in Court

Dates of Trial: 14, 15, 18, 19 and 22 October 2010

Date of Judgment: 1 December 2010

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J U D G M E N T

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1.This case is about a man who died intestate and there are conflicting claims to grant for his estate. The late Chan Hay Shun [“the Deceased”] passed away on 18 March 2008. He died intestate. The 2^nd to 5^th Plaintiffs are his natural children. The 1^st Plaintiff [“Madam So”] is their mother. Her case is that she was married to the Deceased in 1963. The marriage was not registered but according to her evidence, they had undergone the necessary formalities to give rise to a valid marriage under the Marriage Reform Ordinance [“MRO”] Cap. 178.

2.The Defendant [“Madam Lam”] said she was married to the Deceased on 19 November 1970. She does not accept that the Deceased was married to Madam So.  She entered a caveat in respect of the estate of the Deceased on 15 April 2008.  Her case is that she, as the lawful wife of the Deceased, should have priority in getting the Grant.  Though she initially refused to acknowledge the status of the 2^nd to 5^th Plaintiffs as the children of the Deceased, by the time of trial she accepted they are his children.  However, she said she is the only widow of the Deceased.

3.Madam Lam also did not undergo a registered marriage with the Deceased. She said her marriage was celebrated with all the necessary formalities and as such recognized as a valid marriage under the MRO.

4.The Plaintiffs do not accept that Madam Lam was married to the Deceased.They said she was an account staff working in the Deceased’s company.They said the Deceased had been living with them all along as husband and father and they did not know he had a relationship with another woman.

5.The 2^nd Plaintiff wishes to obtain a Grant in respect of the estate and the other Plaintiffs had renounced in his favour. In the light of the caveat, a warning was issued.  Madam Lam entered an appearance claiming to be the surviving spouse.  The matter became a contentious probate action and the Plaintiffs issued the writ on 18 June 2008.

6.Counsel for Madam Lam accepted that her alleged marriage cannot be valid unless Madam So was not validly married to the Deceased in 1963. The MRO does not recognize bigamous marriage.

7.Further, MRO only recognizes customary or modern marriages before 7 October 1971. After that date, only marriage contracted in accordance with the Marriage Ordinance Cap. 181 is valid, see Section 4 of the MRO.

8.Since it is no longer disputed that the 2^nd Plaintiff was the son of the Deceased (and the relationship is established by birth certificate as well as DNA test), the main issue at the trial is whether Madam Lam was the wife of the Deceased.  Three subsidiary issues arise,

(a) Whether Madam Lam had gone through the open celebration of marriage as she claimed;

(b) If she had, when did that happen;

(c) If that actually happened on the date she claimed (19 Nov 1970), was that marriage void by reason of Madam So’s earlier marriage with the Deceased.

9.These are essentially factual issues because it was agreed, in the light of the expert opinions obtained by the parties, that had Madam Lam gone through the celebration on the date as claimed as a matter of fact, her marriage could be recognized under the MRO but for an earlier marriage.  It was also agreed that had Madam So gone through the celebration as she claimed, her marriage would be recognized under the MRO.

Whether the Deceased and Madam Lam had undergone a celebration of marriage in the presence of the relatives of Madam Lam?

10.Madam Lam gave evidence that the Deceased had a wedding dinner party held at a restaurant to celebrate their marriage and she called several witnesses to corroborate her: her mother, her brother and two other relatives who attended the dinner party.  It was not a large banquet. According to the evidence of the mother, there was only one table of adult guests whilst the children sat at another table.  No photograph had been taken as the family did not have a camera.

11.In Mr Fung SC’s cross-examination of these witnesses, he primarily focused on their recollection as to the date of the dinner party.  I shall deal with the date below.  As far as the holding of the dinner party is concerned, subject to the accuracy and reliability as to its date, I do not think the witnesses made up a story to such effect.

12.Madam Lam also gave evidence about the preparation of her marriage at her home several days before the dinner party. She said that the date was chosen by her father and it was recorded down on a piece of paper.  The marriage formalities were conducted by her parents in accordance with Chinese customs and Chinese wedding cakes were sent to relatives.  Since the Deceased told them his family members were not in Hong Kong, they had not been involved.

13.Though I do not accept other aspects of her evidence (as discussed below), subject to the question as to the dates of the wedding and the dinner party, I believe Madam Lam had gone through the marriage formalities with the Deceased and celebrated the same in a dinner party. Inherently, it is unlikely that Madam Lam and her parents would hold a dinner party to celebrate her marriage if she had not gone through some marriage formalities with the Deceased.

14.Mr Fung’s challenge to the evidence of Madam Lam in this respect was primarily based on the challenge to her general credibility (including challenge as to the alleged dates of the events), her relationship with the Deceased after she had finished her study in England and returned to Hong Kong and her conducts and reaction when she saw the Plaintiffs at the hospital in 2006 and 2008.  Though I find some force in these submissions (as further discussed below), they are not conclusive.  In my view, much of what happened at the later stage can equally be explained by Madam Lam’s realization before these events that the marriage formalities she had undergone with the Deceased did not constitute a valid legal marriage. 

15.In so saying, I am conscious that Madam Lam’s case was that her marriage was legally valid and she had no reason to believe otherwise.  As I shall explain below, I do not believe this to be the case.  I need not speculate as to how and the precise date when she found out about the invalidity of her marriage with the Deceased.  On the evidence, it is quite clear to me that this occurred prior to 2006 when she met the Plaintiffs at the hospital.

16.The point I am making is simply that notwithstanding what happened subsequently there is no direct evidence contradictory to Madam Lam’s evidence as to the marriage formalities undertaken in her marriage with the Deceased.  And her evidence in this respect is consistent with the inherent probabilities.  It is my finding that Madam Lam and the Deceased did go through some Chinese customary marriage formalities at some point in time.  The important question is when did it happen? 

17.This question cannot be answered without examining the other significant events during the lifetime of the Deceased.

The 1960’s and the 1970’s

18.As stated in the Admitted Facts of 30 September 2010, the Deceased was born in mainland China on 15 September 1938.  He came to Hong Kong in 1957 and received higher secondary education at Fu Jen School (輔人書院) until 1960[1].  From 1960 to 1961, he studied civil engineering at Tak Ming College[2]. By 1962, according to the documentary evidence, he worked at a company called Shun Cheung & Co.[3] At the same time, he studied economics at Chu Hai College between 1962 and 1965[4]

19.The documentary evidence is not clear as to how much the Deceased earned when he worked in Shun Cheung and what exactly was his job nature.  Madam So said in her oral evidence that according to the Deceased his duty in Shun Cheung involved the introduction of seamen to shipping companies and he earned commissions.  Madam Lam testified that because of his connection with many seamen and other clansmen who settled overseas whilst leaving their families in the mainland the Deceased from time to time acted as intermediaries in remitting funds and purchasing items for these people.  She produced some letters and documents pertaining to remittances to support her evidence.  She also said that the Deceased provided care and support to the family members of these seamen and clansmen when they came to Hong Kong.

20.According to the evidence of Madam So, she was introduced to the Deceased in 1962 and after courtship they were married in 1963.  I shall examine her evidence as to this marriage at a later part of this judgment.  But it is indisputable that Madam So had a family with the Deceased since 1960’s.  Through no fault of hers, Madam So was pregnant with a child of another man and she gave birth to him in July 1965.  The Deceased was willing to be named as the father of that son in his birth certificate and throughout his life he had treated him as his own son.  Apart from the evidence of this son, there were correspondence between him and the Deceased whilst he studied in England to bear witness to the love and affection between them.

21.From 1966 to 1973, Madam So gave birth to 4 children of the Deceased: the 2^nd Plaintiff in 1966, the 3^rd Plaintiff in 1969, the 4^th Plaintiff in 1970 and the 5^th Plaintiff in 1973.  The date of birth of the 4^th Plaintiff (26 November 1970) is of great significance in view of Madam Lam’s alleged date of her wedding (19 November 1970).

22.In 1969, the 2^nd Plaintiff was 3 years old and the son born in 1965 was 4 years old.  The 3^rd Plaintiff was born in November 1969.  In the family, there was also another daughter of Madam So (born before she came to Hong Kong and treated by the Deceased as a child of the family after they were together).  Madam So testified that after she was pregnant with the 4^th Plaintiff, she was weak and had an accident when she was pregnant for about 5 months.  Thus, the Deceased had to spend a lot of time in looking after her and the children in addition to his work.  For several days before giving birth to the 4^th Plaintiff, Madam So had signs of going into labour and the Deceased was with her all the time.    

23.By 1968, the Deceased got sufficient money to start a factory.  In July 1969, he acquired a unit at Man Yiu Building at the price of $40,500 for his factory[5]. He operated an electronic factory there. 

24.In early 1970’s, the Deceased became involved in another factory operated by a company called American Electronic Limited [“AEL”]. The company was set up in 1973 and its shareholders were a Mr Ting and a New York company.  The factory leased a premise at a unit in the Gee Luen Chang Industrial Building in To Kwa Wan from 1973 to 1976[6].  In November 1974, the Deceased and Madam So became the only shareholders of this company holding 70% and 30% of the shares respectively[7]. In the company’s annual return, the Deceased was described as “managing director” and Madam So was described as “married woman”. 

25.On 15 August 1974, the Deceased purchased a domestic unit at Tai Fu Building in Tai Kok Tsui in the name of Madam So as matrimonial home[8]. The price was $78,000 and it was under construction at that time.  Construction of the building was completed in September 1974 and in November of the same year the family moved in. 

26.In April 1976, the Deceased purchased in his own name a factory unit at Kaiser Estate in Hunghom at the price of $1,480,000.  At the end of the tenancy at Gee Luen Chang Industrial Building, AEL’s business was moved to this unit.

27.As the children grew up, more space was needed. In August 1977, the Deceased purchased in the name of Madam So a larger flat at Ho On Mansion, Austin Road for the matrimonial home[9].  The purchase price was $280,000.  In the assignment, Madam So was described as “married woman”.

28.This chronology of events shows that as the Deceased worked hard to expand his business during this period, he also took good care of his family.  Further, he arranged for shares and properties to be held under the name of Madam So with the description “married woman”.  These are indicia of his recognition of her status as his wife.  The evidence of Madam So and the children is also consistent with this conclusion.

29.Madam So testified that there were unhappy occasions in the 1970’s when the Deceased had disagreement with her about the raising of children and her indulgence in mahjong playing.  In 1979, she mortgaged the Ho On Mansion flat to borrow $100,000 for repayment of her debts.  This upset the Deceased.  He redeemed the mortgage and had the property transferred to his own name.  The assignment was dated 19 March 1980[10].  In that document, Madam So was again described as “married woman”. 

Madam Lam’s version of events

30.I shall now turn to Madam Lam’s evidence to see how her alleged marriage fit into this picture.

31.Madam Lam said she met the Deceased at a noodle restaurant in late 1969.  She was then 15 years old working at another factory in San Po Kong and studying at evening school during weekdays.  Afterwards, she worked on Saturdays as a part-time worker at the Deceased’s factory.  Later on, at the invitation of the Deceased, she worked as a typist at the factory during Saturdays.

32.According to Madam Lam, the Deceased rented a room at Victory Avenue in Homantin with his classmate at that time.  Learning that she did not have a proper desk for her study, the Deceased invited her to use his room.  Sometimes, he had dinner with her at a restaurant before she attended evening school.  She said she and the Deceased became lovers within a short time.

33.After her family learned about her courtship with the Deceased, Madam Lam said her parents urged her to get married.  Though the Deceased told them to wait until Madam Lam finished her secondary education (she did not finish her secondary education until 1973), after repeated discussions with her parents he agreed to marry her.  Since his family members were in the mainland, all the arrangement for the marriage ceremony and dinner party was prepared by Madam Lam’s parents.

34.Her father chose the date and wrote it on a piece of paper.  Madam Lam referred to that document in support of her case and produced it as exhibit D-3.  Apart from recording the date of marriage, it also purported to set out the birthdays of Madam Lam and the Deceased according to the Chinese calendar.  The birthday of the Deceased was not the equivalent date for 15 September 1938, his birthday as stated in the Agreed Facts.

35.Madam Lam said after the marriage she resided with the Deceased at the room at Victory Avenue for about 2 months.  Then they moved to a rented unit at Ma Tau Chung Road.  In 1973, after AEL had been set up, they sometimes spent the night at AEL’s factory premises since the Deceased had to work long hours.  At that stage, she was still working in another factory (not owned by the Deceased).  It was only in 1974 that she worked at AEL after that other factory closed down.

36.In early 1975, they moved to a room at Waterloo Road though they spent more time at the factory premises.  In 1976, she was pregnant.  During one of the medical checkups, the doctor found some problems and she was advised to have an abortion.  The abortion was carried out at the Precious Blood Hospital in January 1977.  She produced the record kept by the hospital[11] to support her evidence.  In the record, the Deceased was named as her husband.

37.The Deceased attributed the incident to Madam Lam working too hard.  To provide her with a proper place for rest, they moved to a rented unit at Kau Pui Lung Road after the incident.        

38.She said it was in 1977 that the Deceased demanded Mr Ting to transfer all the shares in AEL to him and it was done in 1978.  She knew that the shares of Mr Ting was transferred to Madam So.  She thought Madam So was a senior trading associate of the Deceased[12].

39.To equip herself better for the business of the Deceased, Madam Lam went to England to further her study from 1980 to 1983. She left Hong Kong in January 1980 and returned in January 1983.

40.Madam Lam produced some letters written by the Deceased to her when she was in England to prove his relationship with her.

41.In respect of the flat at Ho On Mansion, Madam Lam said the Deceased told her in 2006 after she saw the Plaintiffs at the hospital that Madam So was his former business partner and he purchased the flat from Madam So when she was unable to pay the mortgage.  He did that out of compassion and he allowed her to live there in view of the tender age of her children.

Credibility of Madam Lam 

42.I do not find Madam Lam to be a credible witness.  Her assertion that she was married to the Deceased in 1970 is contradicted by the information she supplied to the Immigration Department when she applied for adult identity card on 12 August 1971.  According to the record of the Registration of Persons Office[13], Madam Lam reported herself as single on 12 August 1971.

43.Madam Lam tried to explain that in her evidence.  She said the Deceased had business dealings with some persons in Taiwan which required him to conceal his family status in order to protect his family members.  Thus the Deceased declared himself to be single to the Inland Revenue Department.  In her witness statement, she said the Deceased did so in order not to affect her in case his business failed.

44.Since she did not have any children with the Deceased, Madam Lam did not see any need to report any change of her status. 

45.I find that explanation hard to believe.  The relevant time frame was 1971 when she obtained her adult identity card.  It was not a matter of reporting any change as to her marital status on her own volition.  Rather, she was asked to state her marital status upon her application for adult identity card.

46.There is no suggestion that the Deceased was in any financial difficulty at that time.  On the contrary, he appeared to be doing well.  He had acquired the factory at Man Yiu Building in 1968 and in 1973 he was able to invest into AEL which operated another factory.

47.Further, in 1971 the Deceased had not put any property under the name of Madam Lam.  There was no reason why he needed to protect her from the reach of his Taiwanese business associates.

48.Madam Lam said the Deceased acted as an intermediary between these Taiwanese associates and their relatives in the mainland.  The evidence she produced shows that he had remitted funds for them.  But she did not explain why the Deceased needed to keep his marital status secret in playing that role.

49.As a matter of fact, as we have seen from the annual returns of AEL and the assignments for Ho On Mansion, the Deceased did not conceal the fact that Madam So was a married woman.

50.This implausible explanation of Madam Lam was actually part of her story to account for another extraordinary feature in her case.  She said the Deceased often had to go out to work at night whilst she stayed overnight at home alone.  In her first witness statement, she did not give a full picture of this remarkable aspect of her case.  She only said at para. 37 that the Deceased kept a room at the factory at Man Yiu Building and occasionally he stayed there after he had entertained some business associates and seamen to very late at night.

51.The point was raised fairly and squarely by Madam So in her first witness statement at para. 28 that over the 40 odd years since 1963 the Deceased had all along been living with her and the family and he invariably came home at night after works.  Her evidence was supported by the evidence of the children.  At para. 12 of her supplemental statement of 10 August 2009, Madam So referred to the time when the relationship between her and the Deceased was not so good in 1975 to 76.  Even then, the Deceased would come home after staying at the factory for one night.  

52.Madam Lam responded to the witness statements of Madam So in her supplemental witness statement of 15 October 2009.  But she did not deal with para. 28 specifically.  In respect of para. 12, Madam Lam simply repeated what she said at para. 37 and put forward a bare denial of Madam So’s evidence.

53.At para. 13 of her supplemental witness statement, Madam Lam reiterated that the Deceased had to entertain seamen and business associates to very late at night.  But she did not say he did not come home.  Instead she said he usually had late supper before he slept.  In the same paragraph, she also referred to her Answer to Request for Further and Better Particulars para. A(3)(i) and (iv).  In those particulars, Madam Lam asserted that the Deceased had lived with her at the factory unit at Focal Industrial Centre where they took their meals, slept and worked together but sometimes, because of work, the deceased would not stay at there at night. 

54.In her last witness statement of 3 March 2010, Madam Lam gave more information about what the Deceased did at night time.  At para.  12, she said the Deceased had to assist the trade associates to take care of a company investing in the American and European markets and to entertain them and help them with shopping and finance matters.  No further details was given.  The documents produced by her only evidenced some remittances during the 1960’s and early 1970’s.  I do not understand how shopping and management of finance could be done at late night after business hours.

55.In all her written evidence, she did not state clearly the extent to which the Deceased stayed outside home overnight.  She only stated that the Deceased did not return home occasionally because of work.  Thus, on the written evidence there is a direct conflict between her evidence that over all these years (apart from the time she studied in England) the Deceased lived with her and the evidence of Madam So and the children that the Deceased had been living with them.  In this connection, Madam Lam’s evidence was contradicted by the evidence of the siblings who stated that at the time when they lived there (in the 1980’s) the Deceased did not live with her at the factory and she was there by herself.

56.I think the reason why Madam Lam did not address fully in her written statements the extent to which the Deceased stayed elsewhere during the night is because she realized the lack of cogency in her evidence to account for such arrangement.  When Madam Lam gave evidence in the witness box, she was cross-examined about her own statement in a letter written by her to the Deceased on 21 June 2006 that the Deceased left her every night. She said it was an exaggeration and actually since their marriage the Deceased worked 3 or 4 nights per week and he would stay with her for the other nights in each week. 

57.I shall come back to the letters written by Madam Lam in 2006 and for reasons given later, I attach more weight to the contents of these letters than what Madam Lam said in her evidence.  But even assuming for a moment that the Deceased stayed out for 3 or 4 nights per week, it would be unusual for a married couple.  Madam Lam suggested that on those nights when the Deceased had to work late, he would go to sleep at the factory at Man Yiu Building.  But why would he need to do so instead of going back to his home no matter how late it was? Alternatively, if Man Yiu Building was more convenient in terms of locality, why couldn’t she move to live with him there? I have no hesitation in rejecting Madam Lam’s pretext that the Deceased had told her that it was inconvenient for her to visit him there because of the presence of other men.  The evidence shows that the facilities at Focal Industrial Centre were not much better. 

58.According to Madam Lam this had all along been like that, not only just a few months or years.  I find it incredible that she would accept such arrangement had she held a genuine belief that she was the wife of the Deceased.

59.Moreover, there is still a conflict between Madam Lam’s evidence as to the number of nights the Deceased spent with her and the evidence of Madam So and the children.  Taking into account of all the evidence, including the evidence of the siblings as well as the letters written by Madam Lam in 2006, I prefer the evidence of Madam So and the children in this respect.  It is my finding that the Deceased did not spend that many nights with Madam Lam as she testified.  The Deceased spent most of his nights with Madam So and the children.

60.I do not accept Madam Lam’s evidence regarding the Deceased’s nighttime activities.  Whilst it is quite understandable that the Deceased had to work late on some occasions (and the children also testified to such effect as well) I do not think it was as frequent and regular as suggested by Madam Lam.  She only seized upon this and exaggerated the extent of the Deceased’s involvement with these Taiwanese associates as convenient account for some aspects of her evidence which would otherwise be inexplicable.

The letters written by Madam Lam in 2006

61.In 2006, Madam Lam wrote a series of letters to the Deceased after he had been admitted to hospital.  Mr Fung put these letters to Madam Lam in his cross-examination.  Counsel set out the salient points drawn from these letters in Annex II to his written opening.  There are many inconsistencies between what were said by Madam Lam in these letters and her evidence in the present case.  I do not think I need to go through each and every one of them.  Instead, I will only highlight some more important aspects.   

62.In the very first letter, written by Madam Lam on 9 June 2006, she stated that even though she was not his closest relative she could still care for him and asked him not to mind.  This is hardly consistent with her case that he was her husband.  Under cross-examination, she explained that the closest relative of the Deceased was his mother and his siblings though she was his most loved one.  She further said that the letter was written when she was in anger and grief.

63.I do not find that explanation satisfactory. For reasons discussed below in the context of what happened in June 2006, I do not believe that Madam Lam only found out about the Deceased having another family in 2006.  Thus, she said in her letter of 12 June 2006 that she was quite contented with the Deceased being looked after by his family members. This was written after she saw the Plaintiffs at the hospital.  In another letter dated 19 June, she said she understood the Deceased did not want her to appear before his children and she was not the person whom he loved most.  In her letter of 23 June, she said she witnessed a perfect harmonious family as she saw the Deceased and the Plaintiffs together coming out of ward B5 and she had been acting out of her own fantasy for the past 20 odd years.  She further referred to Madam So as the wife by the side of the Deceased.

64.In these letters, Madam Lam repeatedly said she had been together with (or waiting for) the Deceased for 20 odd years.  This is inconsistent with her case that she had been married to the Deceased since 1970.  By 2006, on her reckoning she should have been with the Deceased for 36 years.  In cross-examination, Madam Lam explained she did not make any precise calculation when she wrote these letters and she just referred to the time since the sister had come to Hong Kong.  Again I do not find that explanation convincing.  These letters were written over a period of time, from 9 June to 1 August, and the reference to 20 odd years was made in many letters.  I do not understand how the length of Madam Lam’s association with the Deceased would link with the date of the sister’s arrival in Hong Kong.

65.Moreover, as mentioned, Madam Lam referred to her leading a lonely life over the 20 odd years.  In the letter of 2 July, she further said in about 10 odd years ago, she realized that the Deceased had no intention of living with her.  In the next letter, viz. 3 July, she recalled that in the past 10 odd years the Deceased had treated her badly and there was no intimacy between them.  In contrast, she said the Deceased would not betray the wife who lived with him.  Though she would not admit it when cross-examined about the identity of this wife who lived with the Deceased, it is obvious that she was referring to Madam So.

66.And in a letter of 7 July, Madam Lam said the Deceased loved his children and the wife who lived with him more than her.  To substantiate that, she said for the past 20 odd years, no matter what, the Deceased would go back to their home at night whilst she would always be alone.  She described the place she lived at the factory as a “柴房” (a storeroom for firewood).  She said the Deceased purposely treated her badly to show the difference between her and his family.  She realized how stupid she had been, hoping that the Deceased would one day live with her, and she made up all the excuses to account for him not staying with her over the 20 odd years.

67.This theme was repeated in a letter of 19 July. Referring to the time after she had come back from England, 3 days after the Deceased introduced her to his mother at the factory, he left her to live alone there.  She said within 2 weeks after she returned from England, he lost his temper with her.  He told her to leave.  She moved to live at the YWCA. Throughout the 20 odd years, he did all sorts of things to make her leaving him.  Madam Lam said the Deceased had never intended to give her a proper status.

68.It is not necessary to go through each letter in this judgment.  I have read them all.  It is fair to say what Madam Lam described in these letters were how miserable she had been throughout the 20 odd years she spent with the Deceased and he had never treated her as his wife.

69.In her oral evidence, Madam Lam said these letters were written at a time when she was angry and confused upon learning for the first time of the existence of the other family of the Deceased.  What she said in the letters was not the true representation of her relationship with the Deceased and they were just exaggerations on her part.  She said when she confronted the Deceased he denied that he had another family and told her not to imagine things.  He told her the Plaintiffs were not his children.

70.I must say I find this explanation disingenuous. As I said above, I do not believe Madam Lam only found out the Deceased had another family in 2006.  Had she genuinely believed she was the wife of the Deceased and he did not have another family, she would not behave as she did when she saw the Plaintiffs at the hospital in June 2006.  Nor would she simply let him go back to Ho On Mansion by himself after he was discharged from the hospital in mid June.  I shall deal with the events in 2006 at greater length below.

71.Further, the contents of some of Madam Lam’s letters indicated that she was aware of the fact that the Deceased had another family well before 2006.  Thus, in the letter of 9 June 2006, she said she was not his closest relative.  In the letter of 12 June, she said he was well looked after by his family notwithstanding that according to her own evidence, the Deceased had not told her that the people she saw was his family and she herself thought that they were Taiwanese business associates.  In the letter of 15 July, she said 20 odd years ago she thought she had 100/100 of his love, but later she thought she had 50/100, now she learnt she only got 1/203.  In other words, before 2006, she already learnt of the existence of someone else in the heart of the Deceased.  In the next letter, dated 18 July, she traced back to the past when the Deceased first told her that he had a wife and children[14] and how over the 20 odd years she wondered in her mind why the Deceased would ask her not to fight with his children.  She said in the same letter that she had previously thought the reason why the Deceased did not want to have children with her was due to the fact that he already had a large family to take care.  Reading this letter carefully, it was referring to something that had happened many years ago instead of recently.  To the same effect is the last part of her letter of 19 July where she referred to the concern of the Deceased when he first brought her back to the factory after she came back from England and she said she had hoped time would allay his concern.

72.When she referred to how the Deceased had treated her during the 20 odd years in these letters, she was quite specific. For example, she referred to how she was left alone at the factory 3 days after she returned to Hong Kong from England, how the Deceased always had to left her in order to go back to his home every night and how he acted harshly towards her in trying to make her leave.  She also referred to how he did not want to have children with her and tell her about his children.  I do not think she made these up out of her imagination.

73.In her re-examination, Madam Lam asked this court to pay attention to her sending the Deceased various get-well messages in the letters.  She also invited the court to have regard to her own reference to herself as the wife of the Deceased and to their marriage in the letter of 19 July and her status as the daughter-in-law of the Chan family in the letter of 18 June.  I have read the relevant passages again carefully.  But I do not discern anything which cause me to question the correctness of the above conclusions.

74.Likewise, I have duly considered the points at paragraphs 28 to 32 of Mr Tsui’s written closing submissions.  Whilst I accept that the letters show a relationship between the Deceased and Madam Lam over the 20 odd years (as evidenced by other evidence adduced by the defence as well), in my view, the points canvassed by counsel cannot negate the above analysis.   

The incidents in 2006 and 2008    

75.These letters have to be considered together with the events that took place during that period.  On 3 June 2006, the Deceased was admitted into Queen Elizabeth Hospital.  He stayed there until 17 June.  Upon his discharge, he returned to the residence at Ho On Mansion.

76.Madam Lam said she first learnt about the Plaintiffs in 2006.  She said around May 2006, she overheard a phone call made to the Deceased’s mobile phone.  She heard that the person at the other end called the Deceased father and the Deceased just said he had no time for having meal together.  She queried the Deceased about his relationship with the caller.  The Deceased said it was his god-daughter.  When she pressed further, he said he had 6 god-daughters.

77.Then on 6 or 7 June 2006, during the time when the Deceased was in hospital, Madam Lam called him by phone.  It was answered by a girl who told her she was the daughter of the Deceased.  Madam Lam said she was shocked.  However, as she could hear that the Deceased was weak, she did not question him over the phone.  Instead she went to the hospital.  At the hospital she learnt of the seriousness of the kidney failure of the Deceased and the Deceased refused to accept the diagnosis by the doctor and the treatment offered.  Madam Lam considered it was more important to persuade the Deceased to have treatment and therefore she did not ask him about the phone call.

78.Madam Lam did not explain why she did not ask the Deceased about that on the following days when she gave him the letters or notes of 9, 10 and 11 June.  Further, her account of the events could not explain why she wrote in the very first note (9 June) that she was not his closest relative and in the next one (10 June) that she had been waiting for 20 odd years.

79.Madam Lam said on 12 or 13 June, when she arrived at the hospital a nurse told her that the Deceased was watching a video about the use of haemodialyser with his daughters at ward B5.  She was surprised and waited outside the ward.  When they had finished and came out, the Deceased became uneasy when he saw her outside.  He was on a wheelchair and those daughters pushed him back to his bed.  Madam So was also there on that occasion.  Madam Lam did not approach them and she waited until they had left him.  When they had left, the Deceased asked if she saw it and she answered “yes”.  She said she just handed him a card and she could see from his eye how sorry he was.  As she did not want to exert further pressure on the Deceased that may affect his recovery, Madam Lam did not question him about the incident.

80.In Madam Lam’s oral evidence, when Mr Fung questioned her about this incident, she said she did not go forward to question these people as to their relationship with the Deceased because she thought they could be the family of his business associates from Taiwan whom he had looked after in the past.  She said she needed to find out from the Deceased instead of confronting them.

81.I must say I cannot accept such evidence as truthful.  If she honestly believed she was the wife of the Deceased and he did not have another family, there was nothing to stop her from joining them at ward B5 and introduced herself to them as the wife of the Deceased.  If she was so anxious about the treatment for the Deceased, I cannot understand why she chose to wait outside.  Further, the note she wrote on 12 June mentioned he was well taken care of by his family.  On 16 June, she wrote that he had to go back to his children.  Throughout the whole series of letters and notes written by Madam Lam during this period, there was not a single suggestion by her that she had regarded them as family members of a Taiwanese associate.  Instead, she repeatedly referred them as the wife by his side and their children.

82.When the Deceased was discharged from the hospital, he returned to the residence at Ho On Mansion.  Madam Lam said it was the first time she learnt of this place and she accompanied him there though she did not actually go into the building.  She said she believed that residence was similar to the room kept by the Deceased at the factory premises at Man Yiu Building.  In her oral evidence, she explained why she did not go into the flat with the Deceased.  She said the Deceased told her that since there were other people there and he only occupied one room it would not be convenient for her to come with him.  She said the Deceased did not like a woman to follow her around.

83.I find this absolutely bizarre and wholly incredible.  If she genuinely believed she was his wife and wished to look after him well after his discharge from hospital, I do not think she would refrain from going into the residence on such flimsy excuse.  She would have at least accompanied him back into his room to make sure he had everything he needed for proper rest.  Further, it is difficult to understand why she would agree to leave him by himself without some family members by his side.

84.It is also inexplicable on her evidence as to why upon discharge from the hospital she took him to Ho On Mansion instead of taking him back to the room at Focal Industrial Centre which she regarded as their home.  In her witness statement, she explained that it was to avoid disturbance by others.  She did not elaborate on what was the disturbance she referred to.  Based on what the Deceased told her as to the character of his residence at Ho On Mansion (according to Madam Lam’s account as set out above), it seems that the likelihood of disturbance at Ho On Mansion was greater than that at Focal Industrial Centre.

85.On 30 November 2006, the Deceased underwent an operation at the Queen Elizabeth Hospital for the insertion of Tenckhoff catheter to facilitate peritoneal dialysis.  Madam Lam was aware of the operation and she said she was advised by a nurse that the Deceased could not have peritoneal dialysis at Focal Industrial Centre which is a factory unit. After the operation, the Deceased was taken back to Ho On Mansion by one of his daughters.  He had to have dialysis at home daily.  The Plaintiffs attended to him and he rarely left the home at Ho On Mansion.

86.Madam Lam did not play any part in such daily treatment.  Her only explanation was that since the dialysis fluid was kept at Ho On Mansion, he had to live there.  In my view, Madam Lam failed to explain how she could just let the Deceased return to Ho On Mansion after the operation if she believed herself to be his wife and that the Plaintiffs were not his family members.  

87.In fact, she said she had tried to look for a domestic unit near to Focal Industrial Centre but in the end the Deceased refused to move there.  Again if she really believed she was the wife of the Deceased and that the Deceased was living alone at the residence at Ho On Mansion, it is difficult to see how she would simply accept that.

88.According to the evidence of Vera, the 3rd Plaintiff, she had met Madam Lam on several occasions in 2007, once at Ho On Mansion and the other times at hospital when the Deceased was admitted there. She also had a telephone conversation with Madam Lam.  On the occasion when they met at Ho On Mansion, Vera said the Deceased introduced Madam Lam as an account staff from his company bringing him documents to sign.  Vera further said on the phone Madam Lam also introduced herself as a staff of the company.

89.On the other hand, Madam Lam said she had called Vera in 2007 when the Deceased was at hospital and told her that she was his wife.  She said she informed Vera the medical condition of the Deceased and asked Vera to take good care of the Deceased.  Vera thanked her and told her about her family.  She said she had other telephone conversations with Vera.  

90.In respect of this conflict, I prefer the evidence of Vera to that of Madam Lam.  I do not believe Madam Lam told Vera that she was the wife of the Deceased.  As Vera testified, if she had done so, Vera would have told the other family members.  In that case, I believe the Plaintiffs would have been more cautious towards her and she would not be allowed to visit the Deceased at Ho On Mansion subsequently.

91.It is my finding that in 2007 the Deceased introduced Madam Lam to Vera as his account staff in the company bringing documents for him to sign.  Madam Lam did not contradict him, whether in his presence or subsequently when she met or talked to Vera.

92.There is an element of inconsistency in Madam Lam’s own evidence.  In her witness statement, she referred to her telephone conversations with Vera (and her learning from the Deceased that he had another family with several children)[15] before she alluded to her visits to Ho On Mansion in the latter part of 2007[16].  She also said the Deceased had indicated that Vera was his daughter[17].  However, when she gave evidence in the witness box as to the family of the Deceased at Ho On Mansion, she repeatedly claimed that the Deceased had steadfastly denied that there was another family and that she believed they were family members of his Taiwanese associate.  She even said the Deceased told her the residence at Ho On Mansion was his workplace though it happened that he slept there as well.

93.As to what happened in 2008 between the admission of the Deceased to the hospital and his demise in March, Madam Lam and the Plaintiffs have different versions.  For present purposes, I only find it necessary to discuss briefly their evidence on the developments leading to Madam Lam being barred from visiting the Deceased.

94.According to Madam So, on an occasion when she visited the Deceased at the hospital in mid February 2008, she found Madam Lam and another lady in the room.  She was upset upon seeing the other lady (not Madam Lam) messaging the ankle of the Deceased.  She lost her temper and Madam Lam left the room immediately.  Two days later, Madam So met Madam Lam again at the hospital.  Madam So introduced herself as the wife of the Deceased.  Madam Lam said she was a representative from the relatives of the Deceased in mainland China.  Madam So apologized for her behaviour on the previous occasion.  Madam Lam gained the confidence of Madam So by telling her to watch out for the other lady.  However, subsequently Madam So found out from the siblings of the Deceased that Madam Lam was not their representative and she was an employee of the Deceased, Madam So forbade her from visiting the Deceased at the end of February.  After that, Madam Lam had tried to contact them through the hospital chaplain.  Madam So did not meet her.  Instead a son-in-law of hers did so.  Madam Lam managed to visit the Deceased one more time subsequently.  She and two other persons rushed into the room despite the objection of the daughters.  She only stayed there for a short while on the pretext of saying a prayer for the Deceased.

95.Her version was partly corroborated by the evidence of the children.

96.On the other hand, Madam Lam testified that on or about 6 February 2008 when she was taking care of the Deceased at the hospital Madam So arrived.  Without explaining why, Madam Lam said she stayed in the toilet to avoid conflicts[18]. Then she heard that the Deceased told Madam So to leave immediately and she left unhappily.  Thereafter, Madam Lam encountered obstructions by the daughters from seeing the Deceased.  She said on one occasion the Deceased assured her she could ignore their objections and come to see him.  She visited the Deceased on several more occasions in February until 16 February she met Madam So at the hospital again.  The Deceased quarreled with Madam So about Madam Lam’s presence.  The 2^nd and 5^th Plaintiffs also arrived.  To appease them, Madam Lam left the room.  On 18 February, the same thing happened.  Madam Lam sought help from the nurses.  After a while, Madam So came out of the room and asked Madam Lam about her identity.  Madam Lam said she was from the Chan family and she came to protect the Deceased.  Then Madam So became courteous to her.  On 28 February, Madam Lam was with the Deceased when he was treated by nurse.  Madam So arrived with two daughters and told her to leave.  When Madam Lam came back later at night, she found the entrance to the room blocked by a group of people.  She sought help from the hospital chaplain.  As a result, she met the husband of the 4^th Plaintiff. She requested to see the Deceased and he refused.  Madam Lam called her own mother for help and her brother and sister came to the hospital at 9:00 pm that evening.  They managed to get into the room of the Deceased and one of the daughters kept an eye on them.  After that, Madam Lam was obstructed by the daughters from gaining access to visit the Deceased and she had sought help from a lawyer to no avail.  She said she was able to see the Deceased on several subsequent occasions by stealth though she could not stay long.      

97.Probably due to the lack of direct relevance of these events to the central issues in this trial, counsel did not spend much time on cross-examination in respect of these factual disputes.  For the sake of completeness, I would simply say as between the two versions, I prefer the evidence of Madam So.  I find Madam Lam’s version incoherent in several aspects.  First, it is inexplicable why Madam So would suddenly quarreled with the Deceased when she did not know who Madam Lam was, and then later on when she was told that she was from the Chan family became courteous to her again. Second, if Madam Lam believed that Madam So was not the wife of the Deceased and she had the assurance of the Deceased, there was no reason why she would be so passive when she was faced with obstructions in visiting the Deceased.  She could have mustered help from her own relatives and seek assistance from lawyers much earlier.  Third, Madam Lam suggested at different parts of her evidence that Vera and the siblings of the Deceased were on her side or at least sympathetic to her.  But their evidence does not support her.

The evidence of the other witnesses on the date of the marriage

98.The above discussion focused on the credibility of Madam Lam.  My conclusion is that she is not a credible witness.  But there are other witnesses on the date of the marriage.  I agree with the submissions of Mr Fung that there is no reliable evidence from Wong Chiu Yu and Cheung Shui Fun as to the date of the dinner party.  Their witness statements were prepared beforehand and presented to them for signature.  They testified in the witness box that they could not remember the exact year.  At the highest, they could only say it was in the 1970s.

99.Madam Lam also called her mother and brother to give evidence about the date of the marriage.  In her witness statement, her mother said Madam Lam and the Deceased got married in or about 1970.  In her oral testimony she said in more certain terms that it was 1970 the year of the Dog.  However, when probed further, she said they married after dating for two years since 1969.  She further said when he was dating Madam Lam the Deceased was already the owner of AEL.  And she said after their marriage, having living at a flat at Ma Tau Chung for 2 months, they moved to the factory unit at Tokwawan and she had visited the same.

100.AEL did not start its operation until 1973 and the Deceased did not have any factory at Tokwawan until AEL rented the factory premises at Gee Luen Chang Industrial Building in that year.  Actually the mother identified the factory unit as the same as that shown in the photos taken of the unit at Focal Industrial Centre.  That was acquired much later. But even assuming she made a mistake as to the identification of the photos, according to her evidence, the marriage could not have taken place earlier than 1973.

101.As regards the evidence of the brother, in his cross-examination, he gave an unsolicited answer that he remembered the date of the marriage to be 1970 because it was before his Secondary School Certificate Examination in 1971.  But he also said that after marriage the Deceased and Madam Lam lived at a rented room for a short time, thereafter they moved to the factory of the Deceased at Hunghom.

102.The first factory unit acquired by the Deceased at Hunghom was Unit E on the second Floor of Kaiser Estate at Man Yue Street. It was purchased in April 1976.

103.I bear in mind that the mother and the brother had obvious reason to give evidence in favour of Madam Lam.  Their evidence on the date of marriage is inconsistent with the report by Madam Lam herself to the Immigration Department as to her single status in 1971.  It is also inconsistent with Madam Lam’s repeated assertions in her 2006 letters that she had been together with the Deceased for 20 odd years.  On the whole, I do not find the evidence of the defence witnesses as to the date of marriage to be reliable.

Exhibit D-3

104.Madam Lam also relied on the contents of exhibit D-3 to prove the date of her marriage.  She said this was the document written by her father when he chose the date of marriage for them.  The date of marriage written on the document was 19 November 1970.  The document itself does not state the date on which it was made.  Madam Lam did not call her father as a witness since he had suffered a stroke.

105.Mr Fung attacked the veracity of this document by reference to the wrong date of birth of the Deceased set out therein.  For my part, I would not attach as much significance to that mistake.  However, the fact remains that there is no independent verification as to the provenance of this document apart from Madam Lam’s own testimony.  Given that I have serious reservation about her credibility, I am not satisfied that this document was made by her father in the circumstances she described.  I attach more weight to her report to the Immigration Department and her 2006 letters than this document.      

Other circumstantial matters relied upon by Madam Lam

106.Madam Lam referred to the following additional circumstantial evidence to support her claim that she had validly been married to the Deceased.

(a)   The abortion record of 1977;

(b)   Letters written by the Deceased to Madam Lam when she was in England and his financial support to her during that time;

(c)   The introduction of Madam Lam to the mother and the siblings of the Deceased and they treated her as the wife of the Deceased;

(d)   Transfer of 30% the AEL shares into the name of Madam Lam and purchase of 2 units at Focal Industrial Centre by the Deceased in the name of Madam Lam;

(e)   The evidence of the cleaning worker at Focal Industrial Centre as to the relationship between the Deceased and Madam Lam;

(f)   The compilation of the family tree by Madam Lam in respect of the Chan family;

(g)   The payment of the hospital bills and collection of the meal tickets of the Deceased by Madam Lam.

107.Whilst I agree that these matters were probative in showing a close relationship between Madam Lam and the Deceased at some point in time, none of them can shed light on the crucial issue we are examining, viz. whether Madam Lam was married to the Deceased in November 1970 as opposed to a date later than 7 October 1971.  The earliest of these events took place in 1977.  There was also a letter of 24 July 1979 by AEL certifying that Madam Lam had been employed as an accountant in the factory since 18 June 1974.  It did not shed light on her date of marriage.

108.On circumstantial matters pertaining to this crucial issue, I find the events in the 1960’s and 1970’s recited above[19] to be more relevant. In view of the successive births of the 3^rd and 4^th Plaintiffs and the birthday of the 4^th Plaintiff, it is highly unlikely that the Deceased could have married Madam Lam in 1970.

109.Given that I rejected the evidence of the defence as to the date of this marriage and there is no alternative basis for suggesting that the marriage occurred prior to 7 October 1971, I do not need to speculate the exact date when the marriage ceremony and the wedding dinner took place.  In the light of the record of the Immigration Department and what Madam Lam stated in her letters of 2006, it is likely that they took place in the late 1970’s.  I am certain that they occurred after 7 October 1971.  Thus the marriage is not valid according to Hong Kong law.

110.In the light of this conclusion, I do not need to discuss at length the evidence regarding the circumstantial matters raised by Madam Lam.  But I should mention that as regards the treatment of Madam Lam as the wife of the Deceased by his mother and siblings, two siblings testified during the trial that they had only done so out of their own speculation and the Deceased had never introduced Madam Lam as his wife.  They said the Deceased did not live with Madam Lam who lived by herself at the factory.  The sister, Sau Wah, agreed that the Deceased had dinner together with them and Madam Lam at the factory.  They further said they had not seen Madam Lam since 1984 until she phoned them again in 2006 telling them the news of the hospitalization of the Deceased.  Sau Wah testified that in 2006 Madam Lam enquired with her about the Chan family.  Mr Fung said that was the source of Madam Lam’s information for the preparation of the family tree.  In 2008, the siblings introduced themselves to the Plaintiffs.  They took part in the funeral for the Deceased organized by the Plaintiffs which Madam Lam did not attend.

111.Insofar as the evidence of Madam Lam is in conflict with those of the siblings, I prefer the evidence of the latter.  In addition to the general  reservation I have  about Madam Lam’s credibility, I agree with Mr Fung that the siblings have no interest in the outcome of this action and they actually knew Madam Lam for a much longer duration than the Plaintiffs. Further, if Madam Lam was as close to the Deceased and the siblings as she claimed, she had ample opportunity to ask the Deceased to reaffirm her status openly towards the siblings so that they would support her after the incidents in 2006 instead of writing those letters to the Deceased.  Likewise, she could have asked the Deceased to tell the siblings to stand by her side in 2007 and 2008 in case of any challenge to her status by the Plaintiffs.  If there is any merit in Madam Lam’s claim, I do not believe that the siblings would have so easily switched to the other camp.

Finding as to the date and the validity of Madam Lam’s marriage

112.Taking into account of all the evidence, for the reasons set out above, I find that Madam Lam did not marry the Deceased on 19 November 1970 or at any time prior to 7 October 1971.  Thus her so-called customary marriage with the Deceased is invalid as a matter of law.

113.It is also my finding that Madam Lam knew about the invalidity of her marriage well before 2006.  She also came to know that the Deceased had another family.  These explained why she wrote the letters and behaved as she did in 2006 to 2008.

The prior marriage between Madam So and the Deceased

114.My above conclusion is sufficient to dispose of the case.  However, since the issue as to the validity of the marriage between Madam So and the Deceased has been raised, I should determine it for the sake of complete and final resolution of the dispute between the parties.

115.Madam So said she was married to the Deceased in 1963 after he had courted her for about one year.  She was introduced to him by a friend of her mother.  When he proposed to her for the first time she did not agree.  At the second time, her mother agreed on her behalf.  Then, in accordance with Chinese custom, an intermediary formally made the proposal. They were married on 10 November 1963, which was also Madam So’s birthday.  She could not locate any witnesses who attended their wedding banquet as some have passed away and others have lost contact.  She said photos had been taken on the occasion but she had lost them over the years when the family moved.

116.Mr Tsui attacked the credibility of Madam So. According to the record of the Immigration Department, she registered for identity card on 20 June 1962 and she gave the particulars that she was married to one Chau Kwok Hung.  Then on 23 September 2003, she gave the information that she was single when she renewed her identity card.

117.Madam So explained that in 1962, when she first came to Hong Kong, she had a daughter with her.  In those days she did not want people to know that she had a daughter born out of wedlock.  Thus she made such a report to the Immigration Officer.  There is no challenge in the pleadings to the validity of Madam So’s marriage by reference to any prior marriage.  I accept her evidence and I do not attach any significance to the 1962 entry.

118.As regards the 2003 entry, Madam So said she did not read the form properly when she ticked the box regarding her status.  She referred to some other documents where she stated she was married.  One of such documents is a life insurance application of October 2006.  I have mentioned similar references in the annual returns of AEL and assignments in the 1970’s.

119.Mr Tsui submitted that there was a discrepancy in the first witness statement of Madam So as to the date of her marriage.  In that statement, Madam So stated that the intermediary made the proposal on 10 November 1963 and the marriage took place a few days later.  She corrected that mistake in her last witness statement.  Counsel said since the date of marriage coincided with her birthday she could not have made such a mistake.  With respect, I do not find this to be of much significance.  I accept Madam So’s explanation.

120.Counsel then referred to the lack of knowledge on the part of mainland family members of the Deceased as to his marriage with Madam So.  Madam So said she only met the mother of the Deceased once in 1980 and she thought the mother returned to the mainland afterwards.  However, in her witness statement, it referred to the mother applied for settling in Hong Kong and as she needed time to adjust to living in Hong Kong she was taken care of by the siblings[20]. When she was cross-examined about this paragraph, she said she meant that the mother could not adjust to the life in Hong Kong and return to live with the siblings in the mainland.  She agreed that she did not attend the funeral of the mother of the Deceased.  She said the Deceased did not inform her.

121.Mr Tsui highlighted the evidence of the siblings as to the concern of the mother over the Deceased’s marriage prospect.  Thus, if she had met Madam So, she would have told the siblings and they would not have mistaken Madam Lam as the wife of the Deceased.

122.I can see the force of this submission.  The evidence shows that in 1980 the relationship between the Deceased and Madam So was not that good.  She herself referred to a period of “cold war” between them[21].  He demanded her to assign the title of Ho On Mansion to him.  As shown in his letters to Madam Lam, he had an affair with her.  Considering all the evidence, I do not believe Madam So met the mother of the Deceased in 1980.  Having said so, given the relationship between the Deceased and Madam So at that point in time and his association with Madam Lam, I do not find it surprising that he did not introduce Madam Lam to his mother and siblings in 1980.  

123.Whilst my rejection of Madam So’s evidence on meeting the mother of the Deceased in 1980 must affect my overall assessment of the credibility of Madam So, I have to weigh this against the other evidence supporting her case as to the marriage.  As I said earlier, it is not disputed that she gave birth to 4 children of the Deceased successively between 1966 and 1973 and I have no doubt that they had set themselves up as a family by 1966.

124.In his tax returns, the Deceased did not claim any children allowance.  Also in a letter to the Inland Revenue in 1987, the Deceased claimed to be single.  Mr Tsui did not place much emphasis on this apart from referring to it as supporting Madam Lam’s evidence that the Deceased wished to maintain an image of not having been married to the outside world.  I have explained why I rejected her story.  I am not going to speculate why the Deceased claimed to be single to the tax authority.  I would just treat the letter and the tax returns as evidence I should take into account.  But they cannot be conclusive.

125.Mr Tsui drew this court’s attention to the absence of Madam So in the photos of family outings of the Deceased with the children and the absence of the Deceased in a family photo taken at a studio. Madam So had offered explanations for this.  She said most of the time she did not join the outings as she had to stay at home and cook for the family. As regards the studio photo, she said the Deceased was not available as he had to go to work on the day in question.

126.Perhaps the strongest points in Mr Tsui’s challenge to the marriage of Madam So are the Deceased’s absence from the family functions of Madam So’s maiden family (including her mother’s funeral) and his absence of the wedding banquets of his children and lack of knowledge on the part of his siblings as to the existence of Madam So and her children. Counsel submitted that the Deceased deliberately kept a distance from Madam So as a denial of his relationship with her.

127.On the other hand, Mr Fung submitted the evidence indicates that the Deceased was a reticent and introvert person and this might explain such behaviour of the Deceased vis-à-vis Madam So and the children.  Further, Mr Fung said, even assuming the relationship of the Deceased with Madam So and the children was poor, it did not necessarily follow that Madam So had not been married to the Deceased in 1963.  Mr Fung also referred to the probable embarrassment harboured by the Deceased as to Madam So having given birth to two children not by him to account of his lack of enthusiasm in introducing Madam So to his mother and siblings.

128.I have given very serious consideration to this aspect of the case.  In my judgment, the evidence is not all one-sided in respect of the lack of acknowledgement by the Deceased as to the status of Madam So.  Though in certain aspects of life the Deceased had maintained a distance from Madam So, the evidence also revealed that he had been a caring father and husband providing for the family generously.  According to my findings, he returned home to spend time with Madam So after works almost every night.  He allowed Madam So to put down his name as father of the son born in 1965.  He treated that son as his own.  As mentioned, in the 1970’s the Deceased purchased the matrimonial home in the name of Madam So and in the assignment, she was described as married woman.  The same can be found in respect of the annual returns of AEL.  In contrast, even though the shares in AEL were transferred to Madam Lam in 1986, she was described as “account” or “accountant” in the annual returns.  Further, in the 2006 letters, Madam Lam herself described Madam So as the wife of the Deceased who lived with him.  She also said the picture she witnessed at the hospital was a family in harmony.  In 2008, after observing the Plaintiffs for some time, the siblings accepted that they were family of the Deceased.    

129.After considering all the evidence, focusing on the crucial issue, viz. whether Madam So and the Deceased was married in 1963, I find on the balance of probabilities they had.  In other words, Madam So was the wife of the Deceased.

130.It also follows from this finding that in any event Madam Lam’s marriage could not have been valid by reason of its bigamous in nature.

Results

131.The Plaintiffs succeed on their claim.  I shall order that the caveat of Madam Lam be vacated.  Letters of Administration shall be granted to the 2^nd Plaintiff, if entitled thereto.  The Counterclaim of Madam Lam is dismissed.

132.Since this is a piece of hostile probate litigation, I make an order nisi that Madam Lam shall pay the costs of the Plaintiffs on party to party basis.

Mr Patrick Fung, SC & Mr Lam Chin Ching, Gary, instructed by Messrs Lo, Wong & Tsui, for the Plaintiffs

Mr Raymond Tsui Wai Nam & Mr Tsang Fat Kuen, Freddy, instructed by Messrs K Y Lo & Co., for the Defendant