Yank Tah Ton v. Chau Sau Tsun
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IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 35 OF 1971 (On Appeal from O.J. M.P. 143 of 1971) ________________________
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________________________ JUDGMENT ________________________ Huggins, J.: 1. This is an appeal against a judgment of Mr. Justice Briggs whereby he dismissed the application of the natural father of two children for custody, care and control and refused him access. At the commencement of his address to us counsel for the Appellant stated that he did not seek to reverse the learned judge’s order as to custody but did seek an order for access and in relation to that issue wished to challenge two findings made by the learned judge. 2. The facts found by the judge were that the father was a married man whose normal place of residence was in Burma. He had married in accordance with Chinese customary rites. He had children by his kit fat wife and they included a daughter, YEUNG Shuet-yi. In about 1951 the father visited Hong Kong and the mother became his mistress. The father continued to make Burma his normal place of residence but on each occasion that he came here he and the mother lived together. In 1956 the mother accompanied the father to Burma and she subsequently visited that country on several occasions. The elder infant, a boy, was born in Hong Kong in 1961 and went with the mother to Burma on three occasions. The younger infant, a girl, was born in Burma in 1963 and remained there for some months while the mother returned to Hong Kong, although the exact period of separation is in dispute. The daughter, YEUNG Shuet-yi, married a Dr. LEE Choo-han. It was suggested that Dr. Lee had come to live with the father’s family when he was aged 14 but this was contested. The marriage of the daughter and Dr. Lee was not a success and they signed a divorce agreement. Shortly thereafter Dr. Lee married the mother at Tsuen Wan Marriage Registry. 3. The two main issues with which we are concerned on this appeal are first whether, as the father alleges, on her visit to Burma in 1956 the mother became his concubine and secondly whether the marriage of the daughter and Dr. Lee was a marriage which could lawfully be dissolved by an agreement of divorce. The learned judge found upon the one issue that the mother was not a concubine, with the inevitable result that the infants had to be regarded as illegitimate, and upon the other issue that the daughter’s marriage was a Chinese customary marriage, so that it could lawfully be dissolved by an agreement of divorce. The judge further held that, the mother never having been married to the father, there was no impediment to her marrying the father’s divorced son-in-law and there was no impropriety in her having sexual intercourse with the son-in-law. 4. Both the husband and the wife testified to the admission of the mother as a concubine in accordance with the customary rites and ceremonies, while the mother denied any such rites and ceremonies occurred. The learned judge was not favourably impressed by the evidence of any of them. There were five other witnesses to the ceremony of admission of the mother as a concubine, but they were uncertain about the date. At one stage the mother declared that she had never met the wife. Eventually she admitted having seen her in 1958 and finally admitted seeing her in 1956. The foundation of the father’s case is that the relationship between him and the mother was notorious and not clandestine. He says that this notoriety existed not only in Hong Kong but also in Burma. Not only did the mother leave the girl in Burma under the care of “a relative” of the father for some time after her birth but on two occasions after the rest of the family moved to Macau she left the two children with the father for several nights. The father’s evidence of these visits is supported by the mother’s travel document and it is contended that the wife would be unlikely to receive into the house the children of her husband’s mistress. There are photographs showing that the mother and the infants were to be seen together with the wife and her children from time to time. 5. In 1964 the mother subscribed to the Memorandum and Articles of Association of a private company called Hearty Wig Manufacturers Ltd. and she was therein described as a married woman. She said she really had no idea about that. Subsequently she subscribed to the Memorandum and Articles of Association of Hearte (Industries) Ltd., where she was described as a housewife. 6. Counsel argued that the judge should have leant against a finding which had the effect of bastardizing the infants and should have endeavoured to construe the relationship between the mother and father as being regular rather than irregular. On the other hand it is said on behalf of the mother that her evidence is consistent with her having gone to Burma not for the purpose of becoming the father’s concubine but in connection with her jade business and that that was the purpose of all her visits to that country. It is pointed out that a Deed of Separation signed by the mother and father on 6th August 1970 describes the mother as a spinster and recites that they had been living together “without having gone through any form of marriage or ceremony”. The father’s evidence as to that was that he did not know what he was signing, but thought it related solely to a sum of $300,000 which his wife was returning to him in consideration of his granting her a separation, which she wanted: and the whole purpose of the document was to enable him to receive back part of his money which she had had. It is common ground that the mother gave the father some $765,000 in about 1970. The father asserts that this was repayment of part of a sum of over $2 million which he had over the years entrusted to the mother to retain and invest for him. The mother denied ever having received from him more than $2,000 altogether and her story was that she gave him all but $200,000 of her own capital in the hope that she and the infants “would no longer be molested by the [father]”. The learned judge found that she was lying when she said she had received only $2,000. Counsel for the mother also relied upon the judge’s view that it was unlikely that the mother, whom he described as a “Shanghainese woman of parts’ would have been willing to take second place to an uneducated country woman such as the wife. 7. This is a case where, as it seems to me, everything turned upon a correct evaluation of the evidence of the witnesses who appeared before the judge. Counsel for the father submits that, having found that the mother had told lies, the learned judge should have exercised more caution before accepting the rest of her evidence. It is an argument which would no doubt have been addressed to us on behalf of the mother had the father’s evidence been accepted, for the other evidence is not such that an appellate court can say with certainty which side was telling the truth. This is another of those cases where, on the record, I would not have been surprised had the judge found the other way but I think it is quite impossible for us to say that he came to the wrong conclusion when he decided that the father had not proved the relationship of concubinage. That being so it is unnecessary for me to consider the arguments which were addressed to us as to the law applicable to concubinage in Burma: even if one assumes the law to be identical to that which would have been applied if the alleged ceremony had taken place in Hong Kong the judge’s findings on this issue would still stand. Counsel relied upon In re Taylor, deceased([1]) for the proposition that the mother should be presumed to have been validly taken as a concubine because it has been proved that they lived together as man and wife. No case has been cited where this principle has been applied to support a finding of concubinage. In Sastry Velaider Aronegary v. Sembecutty Vaigalie([2]) the law was stated thus:
Here, of course, it was clearly proved that they could not be “married’ in the sense that they were united in either a monogamous marriage or in a principal marriage in accordance with Chinese custom: it was concubinage or nothing. What, then, is the basis of the presumption? In In re Taplin([3]) Mr. Justice Simonds said at p.108:
It should be mentioned that in that case the man was one of the most prominent solicitors in a small community: the two persons were not living in a metropolis like Hong Kong. Indeed, in the present case there was no evidence that the father and mother were accepted by society as man and concubine. It is common ground that prior to 1956 they were living together as man and mistress, so that the presumption is clearly rebutted in respect of that period. It seems to me that in those circumstances the presumption cannot apply to the later period unless there is some evidence that society recognised a change of status. There is no such evidence. 8. In my view, therefore, we should not interfere with the conclusion of the learned judge on the first ground argued I would emphasise that the decision is one which binds only the parties to these proceedings. 9. The attack upon the judge’s finding that the daughter and Dr. Lee were married according to Chinese customary rites is complicated by the judge’s refusal to admit in evidence a statement sworn before a Vice-consul of the United States of America in Rangoon by a person who claims to have been present at the marriage of these two parties in a magistrate’s court. As I understand it this document was sworn in connection with an application by Dr. Lee for permission to enter the United States of America. It was countersigned by someone who described himself as “advocate”. There can be no doubt that the document was relevant and counsel for the father submits that the learned judge had a discretion to admit it notwithstanding that proper notice had not been given. Unfortunately the learned judge appears to have misunderstood which document it was that counsel for the father sought to adduce. Counsel referred to “U Chit Tin’s sworn statement. Sworn before Vice-consul American Consulate Rangoon” but when he sought to adduce it the learned judge did not make any ruling. Although the document is listed in the list of exhibits as Exh.Q and appears in the record placed before us it was not marked as an exhibit and, as I understand it, was never regarded as part of the evidence in the case. The learned judge does not refer to it in his judgment. He does, however, refer to an affidavit of U Chit Tin which is also in the record placed before us. He said:
It is clear that the learned judge meant to refer to the correct method of proving a marriage rather than a certificate of marriage. Although neither of the reasons given was, in my view, relevant to the exercise of the judge’s discretion to admit the affidavit despite the failure to comply with the Evidence (Hearsay) Rules but was relevant only to the weight to be attached to it if it were admitted. I agree that the weight which could properly be attached to it was negligible. The statement was, however, another matter, because it spoke directly to the marriage itself. The learned judge does not appear to have applied his mind to the question whether he ought to exercise his discretion in favour of admitting that document and in all the circumstances I think he ought to have admitted it. What is the effect of its wrongful exclusion? The wrongful exclusion of evidence does not ipso facto entitle the aggrieved party to a new trial. This question was considered by Lord Maugham in the House of Lords in Rowell v. Pratt([4]) where a document had been withheld from production by virtue of a statutory privilege granted in respect of returns made under the Agricultural Marketing Act 1931. Their Lordships held that the document had been lawfully withheld but, as there had been a full argument on the issue whether in the circumstances a new trial could properly have been ordered, Lord Maugham went on to express his views on that further issue. At p.116 he said:
Three other judges expressly concurred in the opinion delivered by Lord Maugham. I think it is clear from the judgment of Mr. Justice Briggs in the present case that in the absence of a certificate of marriage or other record of the magistrate’s court in Rangoon he would have been slow to disbelieve the oral evidence of Dr. Lee as to the nature of the marriage: that was the first reason he gave for rejecting the affidavit, “Exh.L”. I respectfully agree with him that the absence of such evidence – evidence which could have been adduced on the appeal if in truth reasonable attempts had been made to obtain it for the trial – is of very great significance. It is not entirely accurate to say that no reason was given for the failure to produce a marriage certificate: the daughter said that the certificate which she had “was missing” and that it would take 1½ years to get another copy. Not only did she not explain why it would take such an unreasonable length of time to get another copy but she went on to say that her uncle had a copy and identified it with “Exh.L”. That, of course, was not a marriage certificate at all and the learned trial judge had good reason for discounting her evidence on this matter. He weighed it against the evidence of Dr. Lee and “in the absence of any reliable evidence to the contrary” accepted the evidence of Dr. Lee. No doubt the sworn statement, “Exh.Q”, was more reliable than the affidavit, “Exh.L”, but in all the circumstances it is unlikely that it would have been thought to outweigh the oral evidence of Dr. Lee. I have therefore come to the conclusion that the sworn statement would not have been a determining factor, that the exclusion of it does not give the father a right to a new trial and, a fortiori, that the finding of the learned judge was not against the weight of the evidence. It follows that the judge was justified in concluding that the marriage of Dr. Lee and the daughter could lawfully be dissolved by an agreement in writing. 10. This leaves the question of access. The learned judge ordered that the infants remain wards of court and he refused access to the father. We do not have the advantage of knowing his reasons for these orders. For my part I suspect that he took the view that visits from the father would have an unsettling effect upon the infants. This was a risk which the evidence suggested might be particularly great in the case of the boy. It is argued on behalf of the mother that the father has gone out of his way to ruin her reputation and would be likely to abuse the privilege of access by setting the infants against her. On the other hand it is said on behalf of the father that it has never been suggested that he is unfit to have access, that prima facie he ought to be given reasonable access and that even to delay an order for access would prejudice him because it might later be said that as he had not been seeing the infants he had become a stranger to them and should not be given access for that reason. This last is a formidable argument. Nevertheless the prime consideration is the welfare of the infants and there may be circumstances in which a parent who is not unfit ought to be refused access. In the present case there does not seem to be any evidence of the kind which was given in B. v. B.([5]), where the infant did not want visits from his father: in the present case there is some evidence of the boy’s desiring to see his father, though that may be for reasons other than true affection. Had I known the factors which impressed the judge I might have reached the same conclusion as he did, but on the papers before us I do not think there is any compelling evidence that visits by the father would harm the infants. Nevertheless the possibility exists and we have not had the advantage of seeing the parties. Accordingly, I think that before we finally decide whether it would be right to interfere on the question of access we should call for an up-to-date social welfare report. 11. Since this judgment was written counsel have drawn our attention to a passage in the Report of the Committee on Chinese Law and Custom in Hong Kong (the Strickland Committee) where it is said that “the doctrine of presumption of marriage arising from cohabitation applies .... not only to the tsai but to the tsips and is stronger than the presumption against a subsequent bigamous marriage”. I had assumed that a presumption could have arisen in the present case but was of opinion that any such presumption was rebutted for the period up to 1956 and could not apply thereafter unless there were some evidence that society had recognised a change of status. There seems to be no copy of Kysshe’s Reports available in Hong Kong but there is nothing in the other cases cited in the Report to which we have been referred which leads me to a different conclusion. |