Lpc v. Cyc, The Administrator of the Estate of Chs, The Deceased

FCMP 61/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT

MISCELLANEOUS PROCEEDINGS NUMBER 61 OF 2012

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DECISION

(For leave to adduce further affidavit;

Wife under a void marriage; section 3(1) of Cap 481)

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Introduction

1.By way of an originating summons filed with the Family Court on 23 March 2012, the Applicant (“Madam L”) claims for financial provision and transfer of a property to her under the Inheritance (Provision for Family and Dependents) Ordinance, Cap. 481 (“Ordinance”), against the Respondent (“Mr C”), who is the son of the late CHS (“Deceased”) and the administrator the Deceased’s estate. The originating summons was later amended on 14 January 2014 to delete the request for property transfer, for the reason that the relevant property is not directly part of the estate of the Deceased, but is held by a company owned by the Deceased.

2.I came to have seizure of this case since April 2013. Since then and up to this hearing, 5 case management hearings or pre-trial reviews were held. Discussion with counsel for respective parties on the list of issues to be tried was made, consequential to which directions were given by me in the hearing of 30 August 2013 for preparation of Madam L’s 6^th affirmation[1] and Mr C’s 8^th affirmation[2] to set out their case in response to these agreed issues. The list of agreed issues dated 23 September 2013 and duly signed by both counsel was already filed.[3]

3.In the hearing of 15 January 2014, I set the case down for trial for 5 days to commence on 11 July 2014.

4.Although the Family Court has not made any order pursuant to Order 28 rule 8, Rules of the District Court (“RDC”) for continuation of the proceedings as if begun by writ (and thus no formal pleadings such as statement of claim or defence was filed), it is admitted by Madam L in her counsel’s written submission[4] that her case has all along been like this and only this. She relies on section 3(1)(xi) of the Ordinance and claims herself to be a dependant of the Deceased immediately before his death.

5.About 9 months after issues to be tried have been defined and agreed, or, alternatively, 2 months before trial, Madam L takes out this summons filed on 13 May 2014 for leave to file her 7^th Affirmation (“7^th Affirmation”). By the time when this summons is now before me, the trial is just 5 weeks away.

6.Despite her summons is for leave to file the 7^th Affirmation, I need to point out at this stage that the same was in fact already filed without leave on the same day when her summons was filed. When I pointed this out to Mr Tony Ko, counsel for Madam L, he at once made an oral application to amend the summons to one seeking retrospective leave to file the 7^th Affirmation. Mr Gary Lam, counsel for Mr C, has helpfully and fairly indicated that he would not take issue on this oral application to amend. Leave was accordingly granted on the amendment.

7.In whatever respect one tries to look at it, it is beyond argument that Madam L now purports to, through the 7^th Affirmation, add a new and substantial ground of claim, ie  she was the wife of the Deceased under a void marriage under section 3 (1)(i) of the Ordinance.

8.It comes as no surprise that Mr C vigorously opposes to this application.

Contentious Probate Action between parties

9.Before turning to the submission and argument of both parties, I need to say a few words on the contentious probate action between both parties heard before Lam J (as he then was) in HCAP 7 of 2008 (“Probate Action”), because the learned judge’s judgment and fact-finding therein are relied on and/or referred to in the 7^th Affirmation and counsel’s submission in this hearing.

10.The Deceased passed away on 18 March 2008, intestate. He had 4 natural children, including Mr C.  Madam S is their natural mother.

11.Upon the death of the Deceased, Mr C wished to obtain a Grant in respect of the estate (worth about $180 million). However, Madam L entered an appearance claiming to be the surviving spouse of the Deceased. The matter thus became the Probate Action, in which Madam S and the 4 natural children of the Deceased are the plaintiffs, and Madam L is the defendant.

12.During the trial of the Probate Action before the learned judge, which took place in late 2010, Madam S and the natural children claimed that Madam S was married to the Deceased in 1963 by undergoing the necessary customs and formalities of a Chinese customary marriage to give rise to a valid marriage under the Marriage Reform Ordinance, Cap 178 (“MRO”).[5] Madam L, however, did not accept that Madam S was married to the Deceased. She averred that she was married to the Deceased on 19 November 1970 by way of a Chinese customary marriage which should be recognized as a valid marriage under the MRO. According to her, she should be surviving spouse to obtain the Grant in respect of the Deceased’s estate.

13.On 1 December 2010, the learned judge handed down his judgment and found for Madam S and the natural children. He ruled that Madam S was validly married to the Deceased in 1963 and thus was his wife. On the other hand, he disbelieved the evidence of Madam L that she had taken part in a Chinese customary marriage ceremony with the Deceased before the appointed day of 7 October 1971 under the MRO (“Appointed Date”). He also found that Madam L admitted in certain letters written by her to the Deceased in 2006 that she was not a wife of the Deceased. Accordingly, the learned judge dismissed Madam L’s counterclaim and ordered that letters of administration be granted to Mr C, if entitled thereto.

14.Then Madam L lodged an appeal against the judgment and Madam S and the children sought an order for security for costs (CACV283/2010). Kwan JA ordered security in the sum of $350,000 to be paid by Madam L within 42 days of her order, failing which the appeal would be dismissed.  The sum was not paid in time and thus the appeal was technically dismissed.

15.Madam L later sought leave to appeal out of time of Kwan JA’s decision on the security for costs. Her application was dismissed by Yuen JA on 28 June 2011.

Madam L’s Argument

16.Mr Ko argues on behalf of Madam L that leave should be granted to her to adduce the 7^th Affirmation on 2 grounds.

17.The 7^th Affirmation, Mr Ko submits, secures the just resolution of the present dispute in accordance with the substantial rights of the parties (Order 1A rule 2(2) of the RDC). He argues that due to the findings by Lam J (as he then was) in the Probate Action, it is apparent that Madam L had entered into a void marriage with the Deceased. She has deposed in the 7^th Affirmation (para 7 therein) that she entered into this marriage in good faith, not knowing that the same was void. Gross injustice would be caused to her if she was not allowed to file and rely on the 7^th Affirmation. She would be debarred from receiving substantially more under section 3 (1)(i) (wife under a void marriage), if compared to section 3 (1)(ix) (dependant of a deceased), of the Ordinance, in case she could prove her case. Further, she would end up having nil financial provision if her claim for dependency failed. 

18.He refers me to 2 cases, namely (i) Tsoi Yiu Chung v ING Life Insurance Co (Bermuda) Ltd formerly known as AETNA Life Insurance Co (Bermuda) Ltd, HCA 2447/2007, 21 January 2011; and (ii) Ng Pok Leung v Ng Pok Man, DCCJ 2552/2012, 11 October 2013. In particular, he stresses that in Tsoi Yiu Chung (supra), a late application (6 weeks before trial) to re-amend the statement of claim and an application to file further witness statements/list of documents was granted by the late DHCJ Carlson (as he then was), despite that would involve the moving of the trial dates. The defendants’ appeal against this decision was refused by the Court of Appeal (HCMP 247/2011, 22 February 2011).

19.Mr Ko’s second ground for leave to adduce the 7^th Affirmation is that the additional claim ground under section 3(1)(i) of the Ordinance would not cause disruption to the trial date, nor any prejudice to Mr C. The 7^th Affirmation is short and it raises only one additional issue of “good faith” of Madam L, so that no further discovery or calling of additional witnesses (such as the siblings of the Deceased) is required. Even if formal discovery is required in respect of, eg, particulars the record of the registration of persons office of Madam L, such documents are not new documents but were already disclosed in the Probate Action.  

Mr C’s Argument

20.Mr Lam, counsel for Mr C, opposes the application on the following grounds.

21.First, he argues that a customary marriage after the Appointed D is not a marriage recognized by Hong Kong law. As Lam J (as he then was) has found in the Probate Action that Madam L and the Deceased underwent some customary marriage formalities after 7 October 1971, Madam L, like Gandhi (supra), simply did not enter into any void marriage, but a non-marriage.

22.Secondly, this application is a belated one which amounts to an introduction of a new and substantial ground of claim by Madam L. If allowed, further discovery of (eg. particulars the record of the registration of persons office of Madam L)  as well as more time to cross examination Madam L on the alleged “good faith” is required. It would mean that the milestone date, ie the trial, would be usurped, which in return would cause unfairness and prejudice to Mr C.

23.He invites me to take full on board the judicial approach towards late application in post-CJR era in cases such as Li Xiao Yun & anor v China Gas Holdings Ltd, CACV 38/2013, DBS (Hong Kong) Ltd v Sit Pan Jit, HCA 382/2009, 6 February 2014, Law Yin Pok Bosco v Dr Chan Yee Shing, HCMP 2256/2012, 2 November 2012.

Applicable Legal Principles

24.Although no formal statement of claim has been ordered to file in this case, Mr Ko for Madam Lam has fairly agreed in this hearing that authorities on late amendment of pleadings, in addition to the authorities on late filing of documents/witness statements, should apply.

25.Beyond doubt is that the 7^th Affirmation, in substance, seeks to introduce a new and substantial ground of claim. In the premises, I take the view that it is more appropriate to apply the authorities on late amendment of pleadings in this scenario.

26.The general principles on late amendment of pleadings are summarized succinctly in the case of Sit Pan Jit (supra) cited by Mr Lam. I do not find the case of Tsoi Yiu Chung (supra) too relevant here, since in that case, late amendment of pleadings was allowed because the plaintiff is a victim of a fraud.

27.In Sit Pan Jit (supra), DHCJ Marlene Ng quoted DHCJ Lok in Li Shiu To v Li Shiu Tsang & anor, HCA 416/2003, 14 August 2012 and gave the following summary of the relevant legal principles, to which I humbly beg to agree:  

‘23. In that case [Li Shiu To], the learned judge confirmed that the principles under which the court exercises it discretion to allow or refuse amendments of pleadings in Ketteman v Hansel Properties Ltd “remain good law after the CJR”. The principles in Kettemanhave been summarised by DHCJ Lok as follows:

“(i) first, all such amendments should be made as are necessary to enable the real questions between the parties to be decided;

(ii) second, amendments should not be refused solely because they have been made by the honest fault or mistake of the party applying for leave to make them: it is not the function of the court to punish parties for mistakes which they have made in the conduct of their cases by deciding otherwise than in accordance with their rights;

(iii) third, however blameworthy (short of bad faith) may have been a party’s failure to plead the subject-matter of a proposed amendment earlier, and however late the application for leave to make such amendment may have been, the application should, in general, be allowed, provided that allowing it will not prejudice the other party; and

(iv) fourth, there is no injustice to the other party if he can be compensated by appropriate orders as to costs.”

However, the learned judge said he “must put a caveat here”:

“16. …… First, the new O 1A of the RHC makes it clear that the court shall give effect to the underlying objectives when it exercises its power or interprets the RHC, including increasing cost-effectiveness of litigation, ensuring that a case is dealt with as expeditiously as is reasonably practicable, promoting a sense of reasonable proportion and procedural economy in the conduct of proceedings, facilitating the settlement of disputes and ensuring that the resources of the court are distributed fairly. If the amendment application is made in circumstances offending these underlying objectives, the court may have to balance all the factors in the case in determining whether to grant the application.

17. Second, there is a heightened concern to guard against late applications after the implementation of the CJR. For case management purposes, there are now certain milestone dates in the course of litigation, and one of which would be the trial date. If a party makes a late application to amend the pleading with the effect that the trial date may have to be adjourned, the court would be very reluctant in allowing the application unless there are exceptional circumstances. Indeed, adjournment of the trial is now considered as a serious prejudice to the parties involved in litigations. Hence, one should not assume that, once the Ketteman principles are satisfied, the court would automatically grant an application for amendment of pleading in particular at a very late stage of the proceedings.” (my emphasis)’

28.Further, amendment would not be allowed to save a cause of action which did not exist at the date of the issue of the writ (See: Hong Kong Civil Procedures 2014, Vol One, para 20/8/6 at p462 and Telecommunication & Technology Asia (BVI) Ltd v Outblaze Ltd, HCA 2541/2009).

29.In any event, no order for amendment of pleadings can or will be ordered unless the court is satisfied that such amendment to be ordered is a matter of necessity either for disposing fairly of the cause or matter, or for saving costs (See: Hong Kong Civil Procedures 2014, Vol One, para 20/8/6A at p462).

Relevant statutory provision under the Ordinance

30.Madam L premises her claim under section 3 of the Ordinance. The relevant parts of section 3(1) reads as follows:

“3. Application for financial provision from deceased’s estate

(1) Where after the commencement of this Ordinance a person dies –

(a)  domiciled in Hong Kong; or

(b)  having been an ordinarily resident in Hong Kong at any time in the 3 years immediately preceding his death,

and is survived by any of the following persons:

(i) the wife or husband of the deceased;

…

(ix) any person (not being a person included in the foregoing paragraphs of this subsection) who immediately before the death of the deceased was being maintained, either wholly or substantially, by the deceased,

that person may apply to the court for an order under section 4 on the ground that the disposition of the deceased’s estate effected by his will or the law relating to intestacy, or the combination of his will and that law, is not such as to make reasonable financial provision for the applicant.”

(my emphasis)

31.A “wife” and “husband” in section 3(1)(i) above is defined in section 2 of the Ordinance as follows:

‘"husband" (丈夫) or "wife" (妻子), in relation to a deceased person, means-

(a) a husband or wife by a valid marriage; and

(b) a person who in good faith entered into a void marriage with the deceased unless either-

(i) the marriage of the deceased and that person was dissolved or annulled during the lifetime of the deceased and the dissolution or annulment is recognized as valid by the law of Hong Kong; or

(ii) that person has during the lifetime of the deceased entered into a later marriage;’

32.Under section 3(2) of the Ordinance, a wife/husband applying under section 3(1)(i) is entitled to receive what is reasonable financial provision according to all the relevant circumstances, regardless of whether the provision is required for her/his maintenance. A dependent applying under section 3(1)(ix), however, will only be awarded such financial provision that is reasonable in all the circumstances for her/his maintenance.

The Gandhi case: void marriage or non-marriage

33.Mr Lam, relying on Gandhi (supra), argues that Madam L did not enter into any void marriage with the Deceased, but a non-marriage. What Mr Lam tries to convince me is that Madam L’s new claim ground does not have any merits.

34.Mr Ko, however, argues that due to the finding of Lam J (as he then was) in the Probate Action (to be elaborated later), Madam L entered into void marriage with the Deceased.  He views that the Gandhi case should not apply to Hong Kong, in that there lacks conformity between section 11 of the Matrimonial Causes Act 1973 in the UK and section 20 of the Matrimonial Causes Ordinance in Hong Kong (“MCO”).  Section 20 of the MCO states that,

“20. Grounds for decree of nullity

(1) A marriage which takes place after 30 June 1972 shall be void on any of the following grounds only --

(a)  that it is not a valid marriage under section 27 of the Marriage Ordinance (Cap 181), that is to say-

(i) the parties to the marriage are within the prohibited degrees    of kindred or affinity; or

(ii) either party is under the age of 16; or

(iii) the parties have intermarried in disregard of certain requirements as to the formation of marriage;

(b) that the marriage is otherwise invalid by the law of Hong Kong;

(c) that at the time of the marriage either party was already lawfully married;

(d) that the parties are not respectively male and female.” (my emphasis)

It is Mr Ko’s submission that there is no corresponding subsection 20(1)(b) of the MCO in section 11 of the Matrimonial Causes Act 1973 in the UK.

35.Mr Ko goes on to submit that the “catch-all’ nature of subsection 20(1)(b) of the MCO is wide enough to cover Madam L’s customary marriage to the Deceased, which was found by Lam J (as he then was) to have been taken place after the Appointed Day and thus made invalid by the MRO.

36.By arguing that the Gandhi case does not apply to Hong Kong, it is not sure if Mr Ko takes the stance that the concept of non-marriage has no application to Hong Kong. It is therefore necessary to expend on the concept.

37.In Gandhi, the claimant went through a Hindu marriage ceremony with the deceased but made no attempt to go through the English marriage ceremony. The deceased was already married to another woman, whom he never divorced. The claimant accepted that she was not the wife of the deceased, but had in good faith entered into a void marriage with him. She should thus be entitled to claim for provision under the Inheritance (Provision for Family and Dependants) Act 1975. It was held by Park J that:

(a) The meaning of void marriage was the same in section 25(4) of the Inheritance (Provision for Family and Dependants) Act 1975 as in section 11 of Matrimonial Causes Act 1973;

(b) For a ceremony to create a void marriage, it had to at least purport to be a marriage of the kind contemplated by the Marriage Act.

(c) The Hindu marriage ceremony did not comply with the requirements of English law, and did not purport to do so, no effort having been made by the participants to comply in any respect with those requirements. Therefore the Hindu ceremony was incapable of creating a marriage recognized as a marriage (not even a void one) under the English law. It was a relationship which, for the purposes of the English law, was no sort of marriage at all.

38.Putting aside Mr Ko’s submission on the “catch-all” nature of 20(1)(b) of the MCO for the time being (to be discussed later), I do not accept that simply due to the non-conformity of section 20 of the MCO with section 11 of the Matrimonial Causes Act 1973 in the UK, Gandhi has no application at all to Hong Kong. In my view, the legal principles stated therein (per para 37 above), in particular to the differentiation between void marriage and non-marriage, are relevant to our case.

39.As a matter of fact, my own research shows that the concept of non-marriage is not a newly-invented one under English law. There is already a line of authorities in the UK, such as Hudson v Leigh [2009] 2 FLR 1129, El Gamal v Al Maktoum [2011] EWHC B27, citing Gandhi and seeking to discuss on the different concept on void marriage and non-marriage.

40.Then in Joseph Jackson's seminal book The Formation and Annulment of Marriage, 2^nd ed (1969) at pp 85–86, under the heading "Distinctions between void and non-existent marriages", the learned author states that:

"The question whether a marriage is void, voidable or valid presupposes the existence of an act allegedly creative of a marriage status. In concubinage and the like, no act of the requisite nature exists. In those places where a marriage requires a declaration before a registrar or priest, a private and secret declaration of consent does not create any kind of marriage, not even a void one … a void marriage is still a marriage in the sense that it has to be distinguished from the non-existent marriage or mere cohabitation of man and woman …"

41.In Rayden & Jackson on Divorce and Family Matters, 18^th ed, vol 1(1), para 7.4, it is stated that:

“A void marriage must be distinguished from a non-existent marriage. A non-existent marriage is one which does not purport to be one of the kind contemplated by the Marriage Act 1949 is not a marriage for the purposes of s 11 of the Matrimonial Causes Act 1973 and the court will not entertain an application for a decree of nullity in respect of it.” (See: A-M v A-M (Divorce: Jurisdiction: Validity of Marriage) [2001] 2 FLR 6 and Gandhi v Patel [2002] 1 FLR 603).

42.In an article "When are we married?  Void, non-existent and presumed marriages" (2002) 22 LS 398, by Rebecca Probert, lecturer in law at the University of Warwick, the author expressly recognises the concept and entity of "a non or non-existent marriage", arguing, at p 402:

“it is clear from the logic—or lack of logic—of the Marriage Act 1949 that a concept of non-marriage is necessary, since a marriage conducted outside the framework of the Act can be neither void nor valid.”

43.Last but not the least, Gandhi was cited and adopted in the Hong Kong case of Yiu Lin Tei v Liu Pui Lan & anor, HCMP 1359/2008, 26 August 2011 (not quoted by either counsel before me).  In that case, the plaintiff had co-habited with the deceased since about 1977. While there was evidence that the deceased and the plaintiff had wedding pictures taken back in 1978 and had celebrated the occasion of their wedding with their friends and relatives, the “marriage” did not take place in accordance with the Marriage Ordinance, Cap. 181 (“MO”). Following Gandhi, DHCJ Winnie Tam SC held that the relationship between the plaintiff and the deceased did not fall within the meaning of a “marriage” under the MO, nor did it fall within the meaning of a void marriage under section 20 of the MCO.  Accordingly, she was not a “wife” within the meaning of section 2 of the Ordinance. [6]

44.The above authorities and academic works show, if put in simplified term, that a void marriage, though has defect, is at least capable of being recognized by the law of the place where the marriage was celebrated and thus to be nullified. A non-marriage, however, is one which does not purport to comply with the formalities of marriage and therefore is incapable of creating a marriage recognized as a marriage under the law, valid or invalid.

Just resolution of dispute

45.Madam L purports to base her claim on section 3(1)(i), in addition to section 3(1)(ix), of the Ordinance. It is not her case that she is to substitute her claim as a dependant of the Deceased for the claim as the Deceased’s wife under a void marriage.

46.However, the wording of subsections 3(1)(ix) of the Ordinance explicitly excludes a person claiming to be the wife (or husband) and a dependant of the deceased at the same time. In other words, since the fundamental case of Madam L is that she was a dependant of the Deceased before his death, she cannot claim, at the same time, that she was the wife of the Deceased, under a void marriage or not.

47.The 7^th Affirmation does not offer any explanation on this hurdle. There is no submission on behalf of Madam L on how to overcome this hurdle, either.

48.On the other hand, to support her proposition that she and the Deceased had entered into a void marriage, Madam L relies and relies only on the following findings by Lam J (as he then was) in the Probate Action[7]:

(a) “It is my finding that Madam L and the Deceased did go through some Chinese customary marriage formalities at some point in time.” (para 16);

(b) “…it is likely that they took place in the late 1970s. I am certain that they occurred after 7 October 1971. Thus the marriage is not valid according to Hong Kong law.” (para 109);

(c) “After considering all evidence, focusing on the crucial issue, viz. whether Madam S and the Deceased was married in 1963, I find on the balance of probabilities they had. In other words, Madam S was the wife of the Deceased” (para 129);

“It also follows from this finding that in any event Madam L’s marriage could not have been valid by reason of its bigamous in nature.” (para 130).

49.It is pertinent to say that the learned judge was not asked to adjudicate, in the Probate Action, on whether the “marriage” of Madam L and the Deceased was a void vis-à-vis non-existent one. Therefore, whenever the learned judge used the word “marriage” to describe the relationship of Madam L and the Deceased, he must have used the term loosely. His comment on the bigamous nature of Madam L’s “marriage” (para 130 of the judgment) must be read together with his finding on Madam S’s marriage (para 129 of the judgment). In my view, one cannot simply jump to the conclusion that there is already a fact-finding that a void marriage, instead of non-marriage, existed between Madam L and the Deceased.

50.Madam L states no other additional facts or purported facts in the 7^th Affirmation to substantiate her allegation of a void marriage.

51.By relying only on the aforesaid findings of the learned judge, Madam L’s case is and can only be this. She had undergone some Chinese customary marriage formalities with the Deceased afterthe Appointed Day, but had never registered their “marriage” in accordance with the MO.

52.Under section 4 of the MRO, marriages entered into in Hong Kong on or after the Appointed Day may be contracted only in accordance with the MO.

53.According to Section 40 of the MO, every marriage in Hong Kong has to be a Christian marriage or civil equivalent of a Christian marriage:

“(1) Every marriage under this Ordinance shall be a Christian marriage or the civil equivalent of a Christian marriage.

(2) The expression "Christian marriage or the civil equivalent of a Christian marriage" implies a formal ceremony recognized by the law as involving the voluntary union for life of one man and one woman to the exclusion of all others.”

54.Despite the provision in the MO, a Chinese customary marriage celebrated in Hong Kong before the Appointed Day is, by virtue of section 7 of the MRO, declared to be a valid marriage.

55.In view of the above statutory mechanism, Madam L had not entered into any marriage that is capable of being recognized under the law of Hong Kong.

56.Mr Ko is, however, very adamant in saying that the “catch-all” nature of section 20(1)(b) of the MCO would embrace Madam L’s marriage under its umbrella to become a void marriage (see para 35 above). He says that there is no authority in Hong Kong which has ruled that a Chinese customary marriage entered after the Appointed Day is not a void marriage under this section 20(1)(b).

57.I do not agree. Clearly, Yiu Lin Tei (supra) is a relevant authority. Further, I accept Mr Lam’s submission that the MRO, in particular section 7 therein, does not invalidate Chinese customary marriage entered into after the Appointed Day; rather, it recognizes Chinese customary marriages entered into before the Appointed Day as valid marriages in Hong Kong.  As such, I do not think section 20(1)(b) of the MRO can offer any assistance to Madam L’s intended plea of a wife under a void marriage.

58.Putting Madam L’s case to its highest, her customary “marriage” to the Deceased is not and cannot be a marriage recognizable by Hong Kong law. Her “marriage” is thus a non-marriage, fall short of a void marriage within the meaning of section 2 of the Ordinance.

59.In such circumstances, Madam L’s allegation that she was the wife of the Deceased under void marriage cannot be sustained, even when putting her case to its highest. To grant her retrospective leave to file the 7^th Affirmation would not achieve the aim of just resolution of the true dispute between the parties, or for saving costs.

Delay and prejudice

60.At the outset of the hearing, Mr Ko for Madam L concedes that this application is a late application on their part. As such, this court should be provided with an acceptable explanation on the delay. Mr Ko draws my attention to para 4 of the 7^th Affirmation, which reads,

“4. I have recently been advised by my new team of legal advisers that I am also entitled to claim under section 3 (1)(i) of [the Ordinance]…”

61.I should point out that Madam L has, since the issue of the originating summons, been represented by the same solicitor’s firm. Counsel were engaged to represent her in all previous hearings. She has failed to explain in such circumstances why she could not have put forward her allegation of being the wife under a void marriage earlier. It is fair to note that all she relies on to prove a void marriage is the finding of Lam J (as he then was) in the Probate Action, and the judgment was handed down as early as December 2010.   I do not find the explanation on delay acceptable or justified.

62.Besides, the authorities show that the court will have to carry out the requisite balancing exercise, weighing (i) the prejudice that may be caused to Madam L if retrospective leave for her to file the 7^th Affirmation was not allowed with (ii) the prejudice that may be caused to Mr C if the same was allowed at this late stage.

63.I am of the view that if the 7^th Affirmation was allowed, further affirmations would be required on the issue of “good faith”. For example, Madam L would need to particularize which parts of her 1^st to 6^th affirmations she intends to rely on to prove her “good faith”, after which Mr C needs to prepare his affirmation in opposition; and finally, Madam L should be given a chance to file an affirmation in reply.

64.I am also with Mr Lam that extra and more time would be required to cross examine Madam L on this issue. Mr Lam estimates that the total time on cross examination on all the issues (including this new intended issue of “good faith”) would take 4 days. I do not to think that this is an over estimation. One has to bear in mind that the allegation of “good faith” involves both a subjective and objective examination into the mindset of Madam L. The Deceased had passed away and thus unable to give any insight or evidence on this new intended issue. In all fairness to Mr C, he should be allowed ample opportunity to test her credibility in the trial.   

65.All the above considerations would lead to the inevitable result that the trial has to be adjourned or lengthened. 

66.It is really trite to point out that in post-CJR era, trial date is a milestone date that cannot be moved except for exceptional circumstances. To do so would more likely than not cause real prejudice to the other party, who has a legitimate expectation that he would have his day in court on the scheduled trial date(s). This has been explained succinctly by DHCJ Marlene Ng in Sit Pan Jit (supra) as follows:

“26. But in my view, the just resolution of disputes requires consideration of the question of potential procedural as well as substantive prejudice to the other party, which in the present case necessarily becomes more acute given the extreme lateness of the Summons. Post-CJR case management recognises that the closer to trial an application to amend pleadings is made the more likely it is to cause real prejudice to the other party, especially when the trial (which is an immovable milestone event unless there are exceptional circumstances) may be compromised by insufficient remaining time until the commencement of trial to accommodate the other party’s reaction to the new pleas if the application is granted, or by the even greater danger of putting the milestone trial at risk.

27. The above sentiments have been reflected in a number of authorities cited by Mr Dawes. In particular, the Court of Appeal in Li Xiao Yun & anor v China Gas Holdings Limited warned that a party has a legitimate expectation that he would have his day in court upon the scheduled trial dates, and “[there] has to be very strong and exceptional circumstances to warrant further postponement of such trial date”.

67.Having reviewed all the circumstances of the case, I am of the view that the result of the balancing exercise does not favour granting retrospective leave to Madam L to introduce a new and substantial ground of claim at this late stage. I cannot find any exceptional circumstances which cry for further postponement of the trial day. 

Conclusion

68.For the matters set out above, I refuse to grant retrospective leave to Madam L to adduce the 7^th Affirmation, which should be expunged from the court file. Her summons is accordingly dismissed.

69.There is no reason why costs should not follow the event. I shall therefore make a costs order that Madam L should bear the costs of Mr C in this application to be taxed if not agreed, with certificate for counsel.

Mr Tony Ko instructed by Messrs K Y Lo & Co for the Applicant

Mr Gary Lam instructed by Messrs Dickman L T Chan & Co for the Respondent

[1] [B2/371-379]

[2] [B3/431-439]

[3] List of agreed (or disputed) issues [B1/37]

[4] Para 7 of the Applicant’s written submission

[5] According to section 7 of the MRO, a Chinese customary marriage celebrated in Hong Kong in accordance with Chinese law and custom before the appointed day, ie 7 October 1971, is declared to be a valid marriage

[6] The case went on an appeal on the lump sum order given in the judgment (CACV 183/2011). The appeal was allowed. There is, however, no appeal on the finding that the plaintiff was not the wife under a void marriage

[7] Para 6 of Madam L’s 7^th affirmation