IN THE COURT OF APPEAL 199_ No by wuyunqing

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									                                                       CACV 23/2000


              IN THE HIGH COURT OF THE
       HONG KONG SPECIAL ADMINISTRATIVE REGION

                        COURT OF APPEAL

                   CIVIL APPEAL NO. 23 OF 2000

                  (ON APPEAL FROM HCAP 6/1991)


BETWEEN

          CHAN CHIU LAM                              1st Plaintiff

          SUEN TOI LEE                               2nd Plaintiff

          SUEN MEI LEE                               3rd Plaintiff

                      and

          YAU YEE PING appointed by Order to
           represent the Estate of CHU LEE
           alias CHU LAN FAN, deceased               Defendant

                            ----------------------

Before : Hon Godfrey VP, Rogers JA and Ribeiro JA in Court
Dates of Hearing : 1 and 2 June 2000
Date of Judgment : 4 July 2000

                            ----------------------
                            JUDGMENT
                            ----------------------
                                    - 2 -


Hon Rogers JA :

Introduction

               This is an appeal from a judgment of Keith JA of 17 September
1999 and a cross appeal by the plaintiffs in the same action. Effectively the
appeal is against that part of the order which arose from the judgment handed
down on 17 September 1999 and the cross appeal arises from that part of the
order which is based on the judgment dated 24 April 1998.


Background facts
               Sung Chuen Pao, alias Robin C.P. Sung, was evidently born in
China. He lived in Shanghai in the early part of the last century. On 22
September 1929, he married Chan Chiu Lam, the 1st plaintiff, in Shanghai in
what is referred to as a Chinese customary marriage. Madam Chan bore no
children.


               On 1 May 1933, Mr Sung took Madam Sung So Chun as his
concubine. At that time, Mr Sung still lived in Shanghai and Madam Sung
bore three children by him. Two were sons. One died in 1977 and the other
in 1990. The daughter was Suen Toi Lee. She is the 2nd plaintiff. The
younger of the two sons, Suen Ming Sheng was also referred to in the
judgments below by his nick-name Momo.


               In December 1945, Mr Sung, who was still living in Shanghai,
took a Madam Chu Lee as his second concubine. There is no dispute between
the parties that when Mr Sung took Madam Sung So Chun and Madam Chu
                                    - 3 -


Lee as his concubines he did so with the consent of his family, and in
particular his wife, and that they were accepted as part of the family.


             In December 1947, Mr Sung and Madam Chan adopted a
daughter, Suen Mei Lee. She is the 3rd plaintiff. The 3rd plaintiff was the
daughter of Mr Sung‟s younger sister.


             Mr Sung came to Hong Kong in 1951 and Madam Chu Lee
joined him in Hong Kong in 1952. Madam Chan, his wife, and Madam Sung
remained in Shanghai.


             In 1983, Madam Sung So Chun, the first concubine, died. In
1985, Mr Sung died intestate in Hong Kong.


             In 1987, Madam Chu was granted letters of administration in
respect of Mr Sung‟s estate. That grant was, apparently, on the basis of a
supporting affirmation which stated that Madam Chu was Mr Sung‟s lawful
“kit fat” widow, that Mr Sung had had no wife or concubine apart from her
and that Mr Sung had had no children.


             Later that year, Madam Chu herself died intestate in Hong Kong.
After her death, Madam Chu Wan Hing, Madam Chu Lee‟s sister, applied for
letters of administration in respect of Madam Chu Lee‟s estate. Before any
letters of administration were granted, this action was commenced. Madam
Chu Wan Hing was therefore appointed to represent Madam Chu Lee‟s estate
                                       - 4 -


in this action. Madam Chu Wan Hing died in September 1995 and thereafter,
her daughter Madam Yau Yee Ping was appointed to represent Madam Chu
Lee‟s estate.


This action
                As originally commenced, the claim in this action related to the
grant of letters of administration to Madam Chu Lee in respect of Mr Sung‟s
estate. The undisputed facts, which I have outlined above, demonstrate that
the supporting affirmation lodged in respect of the application by Madam
Chu Lee was ill-founded. That is conceded by the defendant. It is also
conceded that the 1st and 3rd plaintiffs were entitled to an order that the grant
of letters of administration of Mr Sung‟s estate to Madam Chu Lee should be
revoked and that an account should be taken in respect of Madam Chu Lee‟s
dealings with Mr Sung‟s estate.


                The action then proceeded upon the basis that the 2nd and 3rd
plaintiffs claimed that by reason of the provisions of the Intestates‟ Estates
Ordinance, Cap. 73, they were entitled to inherit the estate of Madam Chu
Lee and entitled to grant of letters of administration.


The judgments of Keith J
24 April 1998
                Keith J handed down two judgments in this matter. The first was
on 24 April 1998. The first matter dealt with by that judgment was in respect
of the 3rd plaintiff‟s claim. This was founded upon section 2(2)(b) and (c) of
                                           - 5 -


the Intestates‟ Estates Ordinance. It was said that Suen Mei Lee, who was
adopted, as I have said, in 1947, could claim to be a child or issue of Madam
Chu Lee coming within either of those sub-sections. Section 2(2), insofar as
is material, reads as follows :-
               “References in this Ordinance to a child or issue of any person shall
               mean –

               (b)     if that person is a female, a child of a valid marriage to which
               her last husband and another female were parties; and

               (c)     a child adopted by that person.”


               Since Suen Mei Lee had been adopted prior to the date on which
it was said that Madam Chu Lee became a concubine, clearly, sub-section (c)
was irrelevant. The judge went on to hold that sub-section (b) could only
apply to a natural child and not to an adopted child. The 3 rd plaintiff‟s claim
was thus dismissed. There has been no appeal in respect thereof.


               In the first judgment, the judge then went on to deal with the
claims of the 2nd plaintiff. In doing so, the judge made reference to claims on
the part of the estate of Suen Ming Sheng. Whilst it would seem that any
claim on the part of the estate of Suen Ming Sheng would stand or fall with
the claim on the part of his sister Suen Toi Lee, there was in fact no claim
made on the part of his estate and his estate was not represented in these
proceedings.


               The 2nd plaintiff‟s claim depended on whether she could bring
herself within s.2(2) of the Intestates‟ Estates Ordinance. That, in turn,
                                        - 6 -


depended on whether Mr Sung had been Madam Chu‟s “husband”, and on Mr
Sung and Madam Sung having contracted a “valid marriage” within the
meaning of the Ordinance. For these purposes, para. 2 of the Schedule to the
Ordinance was relevant. That provides:
             “(1) A child of a union of concubinage shall be regarded for the
             purposes of the Ordinance as the child of a valid marriage.

             (2)     The reference in section 2(2)(b) to „husband‟ shall be construed
             as including a reference to the male partner of a union of concubinage.”


             In the first Judgment, Keith J considered that for a relationship
between a married man and a woman other than his wife to be regarded as “a
union of concubinage”, it was not enough to show that the requirements listed
in s.13(2) of the Ordinance, namely that the relationship was (i) entered
before 7 October 1971 (ii) accepted by the man‟s wife and (iii) recognised by
the man‟s family, had been fulfilled. It also had to be shown that the union
was something other than a union of concubinage de facto, namely that it had
to be a union de jure. The Civil Code of the Republic of China which came
into effect on the 5 May 1931 made no reference to concubinage. The judge
considered the omission to be deliberate and that concubinage had ceased to
be recognised in China as a legal status when the Civil Code came into
operation. Keith J therefore came to the conclusion that neither Madam Sung
nor Madam Chu had entered unions of concubinge within the meaning of
s.13(2).


             At the end of the first hearing, the plaintiffs raised two further
points. The first was that Madam Sung and Madam Chu were subsequently
                                    - 7 -


recognised as the concubines of Mr. Sung under Chinese law once the Civil
Code had been abrogated on 29 September 1949. The second was that
Madam Chu was recognised as Mr Sung‟s concubine under Hong Kong law
after they had acquired domicile in Hong Kong prior to the coming into force
of the Marriage Reform Ordinance in 1971.


             The matter was then left to another hearing which took place in
September 1999.


The September 1999 decision
             At the beginning of that hearing, Mr Miu, Counsel for the
plaintiffs said that he did not wish to pursue the argument that Mr Sung and
Madam Chu had acquired Hong Kong domiciles. The judge then dealt with
the issue of whether Madam Sung and Madam Chu were recognised as the
concubines of Mr Sung under Chinese law once the Civil Code had been
abrogated in 1949. The conclusion that he came to was that since women
who had become concubines prior to 29 September 1949 were accorded the
same legal rights as those enjoyed by wives in modern China in relation to
divorce, matrimonial protection and inheritance and, as such, were far better
off under the law than they had been prior to 29 September 1949, it meant that
the unions of concubinage to which they were parties were recognised by the
law of the People‟s Republic of China, even though the law did not go so far
as to recognise the unions to be valid and lawful. That, in the circumstances,
was sufficient to satisfy the provisions of s.13(2) of the Ordinance and, in
those circumstances, the 2nd plaintiff (and Suen Ming Sheng) fell within
                                    - 8 -


s.2(2) of the Intestates‟ Estates Ordinance. The result to which he came in the
second judgment would thus seem difficult to reconcile with the conclusion
reached in the first.


This Appeal and Cross Appeal
             On this Appeal, the defendant‟s main contention is that s. 13(2)
of the Intestates‟ Estates Ordinance contemplates a union of concubinage de
jure, i.e. one recognised by the applicable personal law as a union of
concubinage. S.13 and the Schedule to the Intestates‟ Estates Ordinance
contemplated concubinage as known under customary law. It had been found
as a fact that concubinage, as a legal status, was abolished from 5 May 1931
under Book IV of the Civil Code. That finding had not been challenged. The
entitlement to legal rights not less than those granted to a concubine under
Chinese customary law did not support the existence of the status of
concubine because such rights were given to Madam Sung and Madam Chu,
not because they were Mr Sung‟s concubines, but because they were
members of Mr Sung‟s house under Chapters V and VI of Book IV of the
Civil Code before 29 September 1949 and had the same rights as wives of Mr
Sung under the PRC law after the promulgation of the new law in 1950.


The questions arising on this Appeal
             It seems to me that the resolution of the question as to whether
the 2nd plaintiff is entitled to share in the intestacy of Madam Chu Lee
depends on the answer to 2 questions. They arise in this way.
                                          - 9 -


             Section 4(5) of the Intestates‟ Estates Ordinance provides :-
             “If the intestate leaves issue but no husband or wife the residuary
             estate of the intestate shall be held on statutory trusts for the issue of
             the intestate.”


             What constitutes “issue” is dealt with, so far as is relevant to
these proceedings, by s.2(2)(b) of the Ordinance, which provides :-
             “References in this Ordinance to a child or issue of any person shall
             mean -

             (a)     a child of a valid marriage to which that person was a party;

             (b)     if that person is a female, a child of a valid marriage to which
             her last husband and another female were parties;”


             Thus, if the 2nd plaintiff is to lay claim to all or part of Madam
Chu‟s estate, it must be shown that Mr Sung had been Madam Chu‟s
“husband” and that Mr Sung and Madam Sung (the 2nd plaintiff‟s mother)
were validly married. It is in this respect that para. 2 of the Schedule to the
Ordinance becomes relevant. That provided :-

             “(1) A child of a union of concubinage shall be regarded for the
             purposes of the Ordinance as the child of a valid marriage.

             (2)    The reference in section 2(2)(b) to „husband‟ shall be
             construed as including a reference to the male partner of a union of
             concubinage.”


             Finally, s.13(2) of the Ordinance needs to be considered because
that deals with the question of what constitutes a union of concubinage. That,
at the relevant time, read as follows :-
                                       - 10 -


             “In this section and in the Schedule, „union of concubinage‟ means a
             union of concubinage, entered by a male partner and a female
             partner before the appointed day under the Marriage Reform
             Ordinance, under which union the female partner has, during the
             lifetime of the male partner, been accepted by his wife as his
             concubine and recognized as such by his family generally.”


             The two questions which thus become relevant on this appeal
can be stated as follows :-
      (a)    Was Madam Chu Lee Mr Sung‟s concubine within the meaning
             of s.13(2) at the time of his death?
      (b)    Was Madam Sung Mr Sung‟s concubine either at the time of the
             2nd plaintiff‟s birth or at any other time such as to make the 2nd
             plaintiff a child of that union within the extended meaning of
             s.2(2)(b)?

Was Madam Chu Lee Mr Sung’s concubine at the time of his death?
             In this respect, I fully appreciate that the plaintiffs abandoned
the argument in relation to Mr Sung‟s domicile having changed to Hong
Kong. For the reasons which I will briefly set out below, it would seem that
in the period up to 7 October 1971, concubinage was part of the law of Hong
Kong. After 1931, concubinage was not part of the then law of law of China,
although prior to 1931 it had been.


             There is no question that in the period up to 1951 and 1952, Mr
Sung and Madam Chu respectively were subject to the law of China. The
question then arises as to whether in the period between 1952 and 1971 their
                                    - 11 -


status became governed by the law of Hong Kong notwithstanding that their
domicile is to be taken for the purposes of this appeal as Shanghai.

The Law in China relating to concubinage
             It is unnecessary to venture into a discussion as to whether the
customary law of China, which permitted those who had entered a Chinese
customary marriage to take a concubine, rendered the marriage potentially
polygamous or permitted a single wife and the taking of concubines who had
a quite different status. The former is the conventional approach. The latter
is an approach adopted by some of the other authorities, for example, in In re
the Estate of Ng Shum (No. 2) [1990] 1 HKLR 67.


             There is some suggestion, in some of the authorities, that the law
as to concubinage may have changed in China in 1911. That, however, does
not appear to have been universally accepted and it would seem that
concubinage as a status was recognised in China up until the promulgation of
the Civil Code of the Republic of China on 5 May 1931. No formality was
necessary in respect of the taking of a concubine. No ceremony was
necessary.


             Our attention has been drawn to various provisions in Book IV
of the Civil Code but as referred to by the judge below in his first judgment,
the provisions appear to be such that they can be summarised to the effect that
the Civil Code provided that a man should only have one wife. There was no
reference in the Civil Code to concubines. The judge below examined the
evidence and the authorities and came to the conclusion that although there
                                      - 12 -


was provision in Article 1116 of Chapter 5 for maintenance of Members of
the House, who are defined in Chapter 6, Article 1123 as including “persons
who are not relatives but who lived together in one household with the object
to sharing a life in common permanently …” which would include persons
who were formally concubines, concubinage was not recognised.


            In my view, the judge below was correct in adopting the
approach of the Court of Appeal in Tang Lai Sau-Kiu v. Tang Loi [1987]
HKLR 85. At p.91, Sir Alan Huggins VP said :-
            “Miss Leong valiantly urged upon us that Cap. V of the Civil Code
            (relating to maintenance) made provision for maintenance of a t‟sip
            and that it was, therefore, clear that Chinese customary marriages
            continued after the coming into force of the Code. The answer to
            that argument is that, although Cap. V thus in effect made provision
            for the maintenance of a t‟sip, it did not do so in her capacity as a
            t‟sip but a „member of [the] house‟; see Article 1114(4).”


            On 29 September 1949, the Civil Code was abrogated. It was
not however until the 30 April 1950 that the new Marriage Law was
promulgated. Article 2 of that banned the status of concubinage in specific
terms.


            Hence, it follows from the foregoing that in China after 5 May
1931, the legal status of concubinage could no longer be created. Hence, as
regards section 13(2) of the Intestates‟ Estate Ordinance, no union of
concubinage could have been created in respect of persons on account of their
having taken or become concubines in Shanghai after 5 May 1931.
                                        - 13 -


The position in Hong Kong
            For reasons which have been referred to in many authorities, the
law of Hong Kong includes the customary law of China as of 5 April 1843.
The way in which this came about has been explained most recently in the
judgment of Ching PJ in the case Leung Sai Lun Robert and others v. Leung
May Ling and others [1999] 1 HKC 605. At p.612, Ching PJ referred to
Captain Elliott‟s proclamation of 2 February 1941 which referred to “… the
natives of Hong Kong and all natives of China thereto resorting shall be
governed according to the laws and custom of China, every description of
torture excepted.”


            He then referred to section 5 of the Supreme Court Ordinance
1873 which provided :-
            “Such of the laws of England as existed when the Colony obtained a
            local legislature, that is to say, on the 5th day of April, 1843, shall be
            in force in the Colony, except so far as the said laws are inapplicable
            to the local circumstances of the Colony or of its inhabitants, and
            except so far as they have been modified by laws passed by the said
            legislature.”


            Ching PJ continued :-
            “The effect of these provisions was that there applied to Hong Kong
            the Ordinances passed by the local legislature, the common law of
            England, the statutes of England as they existed on 5th April, 1843,
            save as modified by the local legislature or save as inapplicable to
            local circumstances or local inhabitants and Chinese law and
            custom. It is immediately apparent that the ascertainment and the
            applicability of Chinese law and custom would cause difficulties.
            So far as ascertainment was concerned the Courts perforce allowed
            expert evidence to be given upon it notwithstanding that that law
            and those customs were a part of our law.”
                                  - 14 -


            The practice of Hong Kong courts of allowing the calling of
expert witnesses to prove what had become part of the domestic law is upon
analysis a curious feature of our legal system. It was commented upon in,
amongst other places, the judgment of Macfee J in the case Lui Yuk-Ping v.
Chow To [1962] HKLR 515.


            The feature of applying the pre-existing law to inhabitants of
colonies which had been newly founded was not uncommon in colonial
times. It was recognised that in countries where there may be persons of
different races and creeds the inhabitants may be governed by the personal
laws. See, for example, Attorney-General of Ceylon v. Allen Ellington Reid
[1965] AC 720.


Post-1950 developments in Hong Kong
            It thus came about that after 1950, not only did the law of the
People‟s Republic of China not recognise concubinage but that it was an
institution, which was not allowed under the law. In contrast, however,
because the customary law was part of the law of Hong Kong, concubinage
was permitted in Hong Kong under Hong Kong law applying the customary
law of China. Not only was it permitted under the law but it was recognised
under the law.


            There were many other aspects of the application of Chinese
customary law requiring clarification with the consequence that, in October
1948, a committee was set up to consider and make recommendations :-
                                      - 15 -


             “as to how far Chinese law and custom as existing in 1843 –

             (a)    is now applicable to Chinese domiciled in Hong Kong or to other
             Chinese resorting here;

             (b)     should with or without modification be incorporated by Ordinance
             into the law of the Colony;

             (c)    should whether already incorporated or not be superseded with or
             without modification by the law of the Colony applicable to persons to
             whom such Chinese law and custom does not apply or by any other law;”


             That Committee was chaired by the Solicitor General and its
report has been known as the “Strickland Report”. It was followed in 1965 by
a report by the Secretary for Chinese Affairs and the Attorney General known
as the “McDouall-Heenan Report”.


             The result of these reports and the deliberation in respect of them
was a series of new Ordinances which came into force on 7 October 1971.
Amongst those Ordinances was the Intestates‟ Estates Ordinance to which I
have already referred, the Marriage Reform Ordinance, the Married Person‟s
Status Ordinance, the Affiliation Proceedings Ordinance (which has since
been repealed) and the Legitimacy Ordinance. They constituted a package of
reforms which regularised the position in relation to marriages and
concubinage. It is unnecessary to refer to those Ordinances in any great
detail, save to say that after 7 October 1971, no person was permitted to take a
concubine although the status of concubinage was recognised in respect of
those who had lawfully become concubines prior to at date.
                                    - 16 -


In respect of whom was the status of concubinage recognised in Hong Kong
prior to 7 October 1971?
             In relation to the status of Madam Chu Lee, it is important to
ascertain whether she was regarded as a lawful concubine in Hong Kong prior
to 7 October 1971.


             As indicated above, the judge below resolved the question on the
basis of considering that Madam Chu Lee was a de facto concubine in the
People‟s Republic of China and, because she enjoyed rights which were
equivalent to that of a wife and considerably greater than that previously
enjoyed by concubines under customary law, she should have been regarded
in Hong Kong law as being a lawful concubine in a union of concubinage.


             I find difficulty in accepting this approach. In the final analysis,
a de facto concubine can be no more than a mistress. The expression de facto
concubine is not one which I have found in any of the authorities. If a
particular status, in this instance concubinage, has been abolished by the law,
it cannot, it seems to me, be revived by acts or consent of one or more parties.
The fact that the law will accord to a mistress, who has been accepted into a
household, albeit with the consent of the husband‟s wife, rights to
maintenance and even inheritance cannot revive what was a previous status
known only in respect of the law of China as related to a particular type of
marriage, namely the customary marriage which had also been abolished.
                                        - 17 -


             In private international law, the capacity to marry is governed by
the law of each party‟s ante-nuptial domicile. A marriage would be invalid if
under the law of either party‟s ante-nuptial domicile, that party lacks capacity
to marry. See, for example, Dicey and Morris on the Conflict of Laws, 13th
Edition, rule 68. Certainly, only those who had entered a Chinese customary
marriage could take a concubine. It follows, as indeed would appear from the
case of Lee v. Lau [1967] P.14, that the capacity to enter a union of
concubinage was probably to be equated with the capacity to contract a
polygamous marriage, namely a Chinese customary marriage. In the usual
private international law, the capacity to enter a polygamous marriage has
been governed by the law of each party‟s ante-nuptial domicile as well as the
law of the country in which the marriage took place. As demonstrated by the
case of Parkasho v. Singh [1968] P.233 as a matter of conflict rules, a court
recognised as effective legislation in a person‟s country of domicile which
alters his capacity to contract a polygamous marriage, when, previously, he
would have had, as a matter personal religious or customary law, the capacity
to enter a polygamous marriage.


             The above are what might be considered standard conflict of
laws rules. The question which needs to be considered however is the manner
in which Chinese customary law was applied in Hong Kong and the parties to
whom it was applied. As recorded by Ching PJ in Leung Sai Lun Robert v.
Leung May Ling in the passage following that quoted above, he said :-
             “The applicability of that law and those customs caused difficulties
             of their own, for people were entitled to choose their personal law
             and it became problematic to decide whether and which law they
             chose in any given case. In the course of time the applicability of the
                                       - 18 -


            English Acts was restricted to those expressly adopted in Hong
            Kong and to those listed in the Application of English Laws
            Ordinance, Cap. 88. So far as Chinese law and custom were
            concerned the Strickland Committee was appointed in 1948 to
            consider and to make recommendations as to how far Chinese law
            and custom as it existed in 1843 was or still should be applicable to
            Chinese domiciled here or to other Chinese resorting hereto and to
            other related matters.”


            Chapter 2 of the Strickland Report is headed “Extent and scope
of Chinese law in Hong Kong”. Paragraph 14 falls under the heading
“Application of Chinese Law and Custom to the Chinese Inhabitants of the
Colony”. That reads :-
            “14.    In the following paragraphs it is proposed to examine the
            question whether Chinese law and custom can apply to Chinese not
            domiciled in the Colony and then to consider the particular spheres
            in which Chinese law and custom does apply.

            15.     It would seem that with such exceptions as are mentioned
            later the application of Chinese law and custom should be confined
            to those Chinese who are domiciled in Hong Kong. This is the
            ordinary rule of Private International Law as applied by British
            Courts. Indeed it is usually unwise to attempt to legislate in matters
            directly or indirectly affecting the status of persons not domiciled in
            the Colony as the status of such persons is normally governed by the
            law of their domicile and such legislation might well be disregarded
            by Courts established outside the Colony.

            16.      The main exception to the above principle is that if the
            intestate is Chinese, any leaseholds forming part of his estate will, it
            would seem, devolve in accordance with Chinese law and custom as
            it existed in Hong Kong in 1843. …

            17.    Another exception is contained in section 2 of the Chinese
            Wills Validation Ordinance 1856 …”


            Paragraphs 20 and 21 deal with the question of devolution of an
estate in a manner which makes clear that domicile is relevant.
                                       - 19 -




             And then the Report comes to paragraph 22 :-
             “22. English law was inapplicable in 1843 to Chinese customary
             marriage, divorce according to Chinese law and custom and
             adoption, and accordingly Chinese law and custom on these
             institutions prevails subject to certain exceptions. As to the main
             proposition, see Appendix 1 at pp. 108, 109 and 110. See also,
             however, the Ordinances cited at p.99 of that Appendix and the
             Separation and Maintenance Orders Ordinance, 1935, which, while
             confirming the rights of a tsai of a Chinese marriage, in many cases
             deny similar rights of concubines. It should be noted, however, that
             the rights conferred on the wife are rights viewed in the light of
             English law, particularly as regards custody of the children of the
             marriage. Moreover, the rights of the concubine have on occasions
             been given effect to by the Courts and save in so far as her position
             has been effected by express legislation, her position is still
             governed by Chinese law and custom. See Appendix 3. But see also
             para. 17 supra.

             …

             24.     The English rule of law that a person cannot be legitimate
             unless his parents are married probably applies – see Appendix 1,
             p.89 and pp. 117 and 121, so as to preclude the legitimation of a son
             born out of wedlock by mere recognition on the part of the putative
             father, but subject to this the Chinese law of customary marriage
             applies and sons born, whether to the tsai or to the concubine, are
             legitimate, as are also, it would seem, sons born out of wedlock
             whose parents subsequently marry.”


             The answer to the present question is not to be found in
Appendix 1 of the Strickland Report. Appendix 1 was an opinion of the
Chairman which the Committee considered was a useful guide to the legal
basis for Chinese law and custom. It is headed “The True Interpretation of
Section 5 of the Supreme Court Ordinance, 1873, in relation to the
Survival of Chinese Law and Custom of Hong Kong”. A considerable
part of Appendix 1 is given over to the consideration of the case of Ho Tsz
                                       - 20 -


Tsun v. Ho Au Shi and Others 10 HKLR 69. That was a case in which it
was held that devolution of leaseholds which had been held by the
deceased were not governed by the Statutes of Distribution because the
lex loci in relation to those cases was the Chinese law and custom of
inheritance. Strickland went to a great deal of trouble to explain why the
decision did not accord with traditional Private International Law. His
conclusion was, however, that it was part of the law of Hong Kong and
could only be changed by legislation. He said at p. 101 :-
            “The decision has in any event been the law of Hong Kong for so
            long that it is doubtful whether the criticisms levelled at it would be
            considered sufficient by the Privy Council to upset it, and if it is not
            to be the law the matter must be set right by express legislation. …”


            At p.108 of the Report under the heading “Indirect Effect of the
Hong Kong Supreme Court Decisions” at paragraph 10, Strickland said :-
            “10. We have seen that the Courts in Hong Kong have not been
            called upon to decide directly upon the validity of Chinese marriages
            or concubinage or of adoption in accordance with Chinese law and
            custom, but that they have recognized and given effect to these
            institutions in dealing with applications for a grant of letters of
            administration or in considering devolution upon intestacy. In fact,
            although Ho Tsz Tsun‟s case must be taken to apply to the case of a
            Chinese not domiciled in the Colony, its ratio decidendi is based on
            the Statutes of Distribution being totally inapplicable to local
            conditions and the local inhabitants and ever since that case, if not
            indeed before, it has been accepted that in the case of a Chinese
            domiciled in Hong Kong his estate devolves on intestacy in like
            manner and to the like persons as it would have done had he died in
            1843. In the face of this constant practice the Courts would probably
            also give effect for purposes other than administration or devolution
            of assets on intestacy to institutions such as marriage concubinage
            and adoption, save in so far of course as other paramount principles
            of English law or the enactments of the legislature require further
            modification of these institutions. …”
                                      - 21 -



             After considering a large number of cases in the books, most of
which were not cited in argument, I have come to the conclusion that Hong
Kong courts have, when considering concubinage and marital status, not
differentiated between persons of Chinese race domiciled in Hong Kong and
persons of Chinese race domiciled abroad. Since concubinage, although
separate from marital status is a status which was in many ways akin to a
marital status, I consider the same rules applied. I would draw attention to the
following cases.


             In Wong Kam Ying & another v Man Chi Tai [1967] HKLR 201,
Huggins J was deciding a case concerned with the recognition or otherwise of
concubinage. In respect of concubinage, he considered that the authorities
showed that the Chinese customary law applied to Chinese inhabitants of
Hong Kong. Indeed, in a passage at the foot of page 209 of his judgment, he
drew a distinction between Hong Kong and Malaya. There was a general rule
that persons domiciled in that territory may have concurrently with the lex
loci, a personal law dependent upon race or creed. In respect of Hong Kong,
he said:
              “…but persons of Chinese race enjoy a limited privilege by virtue
             of the provisions of s. 3 of the Application of English Law
             Ordinance 1966. Section 5 of the Supreme Court Ordinance, which
             that section replaces, has (rightly or wrongly) always been
             interpreted as preserving to the Chinese inhabitants of the Colony
             parts of the Chinese customary law. All the persons with whom we
             are concerned in this case are persons of Chinese race.”


Huggins J‟s judgment does not give any indication that any other factor was
taken into account in considering the applicability of Chinese customary law
                                      - 22 -


to the relevant persons i.e. those who were ethnically Chinese, other than the
fact that they were inhabitants. Indeed, on the following page from the
passage quoted above, Huggins J. said:
             “What is important for our purposes is that in Ho Tsz-tsun's Case
             (1915) 10 H.K.L.R. 69 & 76. Havilland De Sausmarez, P. said:
             "The common law of China was secured to the Chinese inhabitants'
             as it had existed prior to the cession". As I remarked in Chan
             Wei-keung v. Reg. 6 Cr.App. No. 386 of 1965 with reference to the
             common law of England one of the attributes of the English
             Common Law is that it does not change although it may develop to
             meet new circumstances. That remark appears to be equally
             applicable to the Chinese customary law.”


             In the case of Kwan Chui Kwok Ying & Anor v Tao Wai
Chun & Ors [1995] 1 HKC 374 Patrick Chan J (as he then was) had to
consider the law relating to concubinage. At page 393, he said:
             “Since Chinese customary law forms a part of the law in Hong Kong,
             Chinese residents in Hong Kong had, until 1971, been permitted to enter
             into marriages pursuant to Chinese customary law. Under Chinese
             customary law, it was permissible to take a wife and several concubines.
             Chinese customary marriages and unions of concubines contracted prior to
             1971 had always been recognised as lawful in Hong Kong and as from
             1971, are recognised under the Marriage Reform Ordinance (Cap 178).”


             Two points emerge from that. In the first place, of course, he
used the word “residents” and was not, at least on the face of the matter,
concerned with domicile. In the second place, he made no reference to
modern marriages in accordance with the Civil Code. Had the matter
depended on domicile, the point would have arisen as to whether persons
domiciled in the Mainland would be bound by the Civil Code and incapable
of entering a Chinese customary marriage.
                                    - 23 -


             In the case of Chan Yeung v. Chan Shew Shi (1925) 20 HKLR
35, Sir Henry Gollan CJ referred to persons having settled in Hong Kong and
made it their home, he refers to Chinese law and custom and he refers at p.49
to the case of Chung Tye Phin v. Tan Ah Loy which is a case relating to
Chinese who had been settled in Penang, being governed by customary law.


             In the case of Chan Hing-chuen and others v The Queen [1974]
HKLR 196 the Full Court, Huggins, McMullin and Pickering JJ. considered
the position of a concubine in relation to the question as to whether a
concubine should be treated as a wife for the purposes of being competent as
a witness in criminal proceedings. One of the questions which arose was as to
the recognition of concubines in Hong Kong law. The judgment of the Court
refers only to Chinese inhabitants. No reference was made to domicile, the
determining factor being apparently residence.


             In the case of Lui Yuk Ping v Chow To [1962] HKLR 515
Macfee J had to consider the application of Chinese customary law in relation
to an appeal in respect of an order made by the magistrate in adoption
proceedings. Macfee J seems to have approached the question of the
applicability of Chinese customary law on the basis of race alone, although
the determination was not crucial to his decision.


             A liberal approach to the law applicable was shown in the case
of In the matter of the Estate of Kishen Das 26 HKLR 42, the acting Chief
Justice Wood said:
                                        - 24 -


             “I am satisfied that these persons intended a marriage, looking to a
             consortium vitae. The rule of the English Common Law is „Every
             intendment shall be made in favour of a „marriage de facto‟ (see
             Eversley „Law of Domestic Relations‟ 2nd Edn. p. 6). That the same
             presumption will apply to Christian and non-Christian forms of
             marriage is clear upon the authority of judgment of the Judicial
             Committee of the Privy Council in „Sastry Velaiden v. Sembecutty‟.

             This legal presumption requires strong and satisfactory evidence to
             dispute it; and no such contrary evidence appears here.”


             The acting Chief Justice then went on in the passage which
followed, to say that the presumption is only a particular application of the
maxim “omnia praesumuntur rite et solenniter esse acta” and that the maxim
had its limitations. In general, it applied to circumstances where persons are
found to have set out with the intention of complying with the law. The
maxim then operates in aid of the proof that everything was in fact done in a
proper manner. However, the approach which coincided with those who
were ethnically Chinese being governed by Chinese customary law is perhaps
demonstrated when he concluded by saying :-
             “Any lawful non-Christian customary marriage must be shown to
             have been duly celebrated according to the personal law and religion
             of both the contracting parties. In the present case this has not been
             shown.”


             The reason that he held that it had not been shown was that
customary marriages were part of the personal law of only one of the parties.


             Some legislation, in so far as it is relevant, also seems to have
been based on a test of ethnicity rather than domicile. For example, the
Chinese Marriage Preservation Ordinance, which was enacted in 1912 and
                                       - 25 -


remained in force until the 1971 reforms, contained a definition of “Chinese
married woman” which was ethnically based without any reference to
domicile, namely:
            “a woman married according to the laws or customs of China, and
            includes only the first wife (kit fat) or the second wife (tin fong) of
            any Chinese man.”


            Similarly, the definition section of the Separation and
Maintenance Orders Ordinance, enacted in 1935, contained the following :-
            “„wife‟ and „married woman‟ mean the wife of any man by any
            Christian marriage or its civil equivalent recognised by the law of
            the Colony , and , where no such marriage subsists, include-

            (a)    the kit fat or tin fong spouse of any Chinese man, married to
            him in accordance with the laws or customs of China.”


            That definition was changed in 1971 and it now reads:
            “„wife‟ (妻子) and „married woman‟ (已婚女子) mean the wife or
            partner of a man by-

            (a)    a marriage celebrated or contracted in accordance with the
            provisions of the Marriage Ordinance (Cap 181);

            (b)   a modern marriage validated by the Marriage Reform
            Ordinance (Cap 178);

            (c)   a customary marriage declared to be valid by the Marriage
            Reform Ordinance (Cap 178);

            (d)    a union of concubinage as defined by section 14 of the
            Legitimacy Ordinance (Cap 184);

            (e)    a kim tiu marriage entered in accordance with Chinese law
            and custom applicable thereto in Hong Kong before the appointed
            day under the Marriage Reform Ordinance (Cap 178); or
                                      - 26 -


            (f)    a marriage celebrated or contracted outside Hong Kong in
            accordance with the law in force at the time and in the place where
            the marriage was performed. (Replaced 28 of 1971 s. 19)”


The position of Madam Chu Lee and Mr Sung between 1952 and 1971
            It is clear that at all times, Madam Chu Lee was regarded by Mr
Sung as his concubine. She was accepted as that by Mr Sung‟s wife and his
household. Admittedly by the Civil Code, she did not, as I have already held,
acquire the status of a concubine. However, Madam Chu Lee came to Hong
Kong to join Mr Sung and clearly was treated and treated herself as his
concubine if not indeed his wife. Given the considerable immigration to
Hong Kong in those years, she was no doubt not the only person coming to
Hong Kong in similar circumstances. There were no doubt many people in a
similar position to Mr Sung and Madam Chu Lee who may or may not have
changed their domiciles to Hong Kong.


            In view of the fact that there was no formality necessary for the
taking of a concubine and no ceremony was required, I see no reason why
when Madam Chu Lee joined Mr Sung in Hong Kong as a resident of Hong
Kong, or in the words of the Supreme Court Ordinance 1873 as an inhabitant
of Hong Kong or in the words of Captain Elliott‟s Declaration resorted to
Hong Kong, she did not acquire the status of a concubine.


            The Hong Kong courts have in the past considered marital status
of those of Chinese ethnicity, even if not domiciled in Hong Kong, in
accordance with customary law and in my view, Madam Chu Lee was entitled
                                    - 27 -


to be so treated. Whereas, on the facts of some of the cases, it might have
been possible that the courts could have found the relevant persons to have
had Hong Kong domicile, that is not what happened. The judges referred to
“inhabitants” and “residents” and persons of “Chinese race”. I am not
prepared to ascribe to those judges a looseness of expression in this regard.
Still less do I consider that they laboured under a misconception of the law to
the extent of confusing residence with domicile. The applicability of
traditional Chinese law and custom to Chinese inhabitants of Hong Kong was
not only recognised by the courts but that recognition was reflected in statute.
I have no doubt that had the first occasion on which Mr Sung had treated
Madam Chu as his concubine been after 1952 when they were both in Hong
Kong that status of concubinage would have been legally recognised.


             I do not consider that simply because in the place from where Mr
Sung and Madam Chu came, and may have remained domiciled, the status of
concubinage was not recognised, she, and no doubt many like her, should be
condemned for ever to be regarded in law as a mistress. Whereas logic and
law should never be confused, it would be quite absurd if it were to be that
Madam Chu‟s status as a concubine would be recognised if she and Mr Sung
were to have expressed a desire to remain in Hong Kong forever; but that she
would be condemned to being a mere mistress if they both expressed their
desire to be buried with their ancestors in the Mainland.


             Even if one regards such an approach as changing Madam Chu
Lee from having no status or one as a mistress to having a status of a
                                    - 28 -


concubine, such a change in status is again one which, in my view, is not
beyond the contemplation of the law. As Blair-Kerr J said in Yeung
Yeu-Kong v. Yeung Fung Lai-mui [1971] HKLR 13 at 18 “… a potentially
polygamous marriage may well become monogamous, and vice-versa.”


The position of Madam Sung

             Madam Sung never came to Hong Kong. In those
circumstances, her status was at all times governed by the law of Shanghai.
Since, as I have indicated above, the law of Shanghai after 5 May 1931, did
not recognise the status of concubinage, her status was never recognised. It is
therefore, in my view, impossible for the 2nd plaintiff to bring herself within
the provisions of section 2(2)(b) because Madam Sung and Mr Sung were
never validly married nor was their union ever a union of concubinage.


             Since preparing this judgment, I have had the advantage of
reading in draft the judgments of Godfrey VP and Ribeiro JA. Whilst I would
differ from judgments of my brethren with hesitation, inevitably that must be
so in respect of one or other of those judgments. Whilst I note the case of
McCabe v. McCabe involved the position of the appellant‟s personal law
being the law of Ghana, the relevant law of Ghana included the particular
customary law. In that, I see a distinction as regards the position in the
present case insofar as it relates to Madam Sung. Had it been possible for
Madam Sung to keep Chinese customary law, insofar, at least, as it related to
marriage and concubinage, as her personal law despite the change in law of
the only country in which she had ever lived, I would have been of a different
                                      - 29 -


mind. The McCabe case unfortunately does not assist in establishing that
proposition. For the reasons which I have endeavoured to explain already, I
differ in one respect from the judgement of Ribeiro JA.


             In the result, therefore, it inevitably follows, in my view, that the
2nd plaintiff‟s claim on the intestacy of Madam Chu Lee must fail. I would,
for that reason, allow this appeal.


             In my view, the appeal should be allowed and there should be an
order nisi that the costs of this appeal should be to the appellant. Since the
appellant only conceded the plaintiff‟s initial claim that the defendant was not
entitled to letters of administration in respect of Mr Sung‟s estate when
re-amendment of the defence was sought and granted on 25 March 1998, the
appellant should only be entitled to the costs of the action after 25 March
1998.




Hon Ribeiro JA :

             I have had the benefit of reading the judgments of Godfrey VP
and Rogers JA in draft. With respect, I differ from the conclusion arrived at
by the Learned Vice-President. While I respectfully agree with Rogers JA
that the appeal must be allowed, I have reached that conclusion by a route that
differs to some degree.
                                     - 30 -


             The central facts are not in dispute. Mr Sung Chuen-pao (“Mr
Sung”) married Madam Chan Chiu Lam (“Madam Chan”), the 1st plaintiff, in
Shanghai on 22 September 1929. Thereafter, with her consent, Mr Sung took
Madam Sung So-chun (“Madam Sung”) as his purported concubine in
Shanghai on 1 May 1933. Two sons and a daughter were born of that union.
The daughter is the 2nd plaintiff, Suen Toi-lee. Mr Sung then took Madam
Chu Lee (“Madam Chu”) as his purported second concubine on 31 December
1945, again in Shanghai and with the consent of Madam Chan.


             Mr Sung died intestate on 16 January 1985. Madam Chu died,
also intestate, on 26 November 1987, Madam Sung having died earlier in
1983. It is with the estate of Madam Chu and the 2nd plaintiff‟s claim to
share in it that this appeal is concerned.


The 2nd plaintiff’s claim

             The 2nd plaintiff claims that by virtue of certain provisions of
the Intestates‟ Estates Ordinance, Cap. 73 (“the Ordinance”), she is deemed to
be part of the “issue” of Madam Chu and therefore entitled to a share in her
estate. It is therefore a claim made by a child of Mr Sung‟s first purported
concubine to a share in the estate of his second purported concubine. The
competing claimants are Madam Chu‟s siblings (claiming through Madam
Chu‟s personal representative, the defendant) who would be entitled if the
2nd plaintiff‟s claim fails.
                                         - 31 -


             In a decision given in two parts (by judgments handed down on
24 April 1998 and 17 September 1999 respectively), Keith JA held in favour
of the 2nd plaintiff. The defendant now appeals to this court.


The statutory provisions relied on by the 2nd plaintiff

             For the 2nd plaintiff to succeed, she must bring herself within
the entitlement conferred by section 4(5) of the Ordinance, which provides as
follows :-
             “If the intestate leaves issue but no husband or wife the residuary
             estate of the intestate shall be held on statutory trusts for the issue of
             the intestate.”


The only candidate for “husband” in the case of Madam Chu was Mr Sung
who predeceased her. Accordingly, Madam Chu “left no husband”. It
follows that if the 2nd plaintiff is, as she contends, part of the “issue” left by
Madam Chu, she is entitled by virtue of section 4(5) to benefit from the
residuary estate.


             As I have pointed out, Madam Chu was not the 2nd plaintiff‟s
mother. Accordingly, for the 2nd plaintiff to qualify as part of Madam Chu‟s
“issue” she must bring herself within the provisions of section 2(2)(b) of the
Ordinance which extends the concept of “issue” as follows :-
             “References in this Ordinance to a child or issue of any person shall
             mean –

                    (a)       ......

                    (b)       if that person is a female, a child of a valid marriage
                    to which her last husband and another female were parties ......”
                                      - 32 -




The relevant “person” in this case is Madam Chu, who was obviously “a
female”. The 2nd plaintiff‟s case is that she qualifies since (i) Mr Sung was
Madam Chu‟s “last husband”; (ii) Madam Sung was a party to a “valid
marriage” with Mr Sung; and (iii) the 2nd plaintiff is a child of such valid
marriage.


             Since Madam Sung and Madam Chu did not purport to be wives,
as opposed to concubines, of Mr Sung, the 2nd plaintiff must rely on two
further deeming provisions in the Ordinance if her argument is to succeed.
First, she relies on paragraph 2(2) of the Schedule to deem Mr Sung a
“husband” of Madam Chu so that he qualifies as her “last husband” for
section 2(2)(b) purposes. Secondly, she relies on paragraph 2(1) of the
Schedule to establish a “valid marriage” between Mr Sung and Madam Sung
for section 2(2)(b) purposes, on the basis that her parents were parties to a
qualifying “union of concubinage”. Those two deeming provisions read as
follows :-
             “2(1) A child of a union of concubinage shall be regarded for the
                   purposes of the Ordinance as the child of a valid marriage.

             2(2) The reference in section 2(2)(b) to „husband‟ shall be
                  construed as including a reference to the male partner of a
                  union of concubinage.”


             The reasoning set out above rests entirely on the contention that,
for the purposes of the Ordinance, the two unions, namely between Mr Sung
on the one hand and Madam Sung and Madam Chu respectively on the other,
                                        - 33 -


were “unions of concubinage”. Unless this is established in each case, the
2nd plaintiff‟s claim must fail.


             Of possible relevance in this context is section 13(2) of the
Ordinance which provides as follows :-
             “In this section and in the Schedule, „union of concubinage‟ means a
             union of concubinage, entered by a male partner and a female
             partner before the appointed day under the Marriage Reform
             Ordinance [i.e., 7th October 1971], under which union the female
             partner has, during the lifetime of the male partner, been accepted by
             his wife as his concubine and recognized as such by his family
             generally.”


             I describe section 13(2) as only of “possible” relevance because
its language is such that, in my view (and as the Judge held), it provides only
limited assistance in defining what a “union of concubinage” means for the
purposes of the Ordinance. It does not go beyond stating that the union of
concubinage which qualifies for recognition under the Ordinance must be a
union of concubinage bearing the specific characteristics of wifely
acceptance and familial recognition during the male partner‟s lifetime. In
other words, it does not purport to define what a “union of concubinage” as
such is, but merely stipulates certain characteristics that qualifying unions of
concubinage must exhibit.


The 2nd plaintiff’s claim to be a child of a union of concubinage

             In my view, for the 2nd plaintiff to come within paragraph 2(1)
of the Schedule as “a child of a union of concubinage”, her parents must have
been partners in a union of concubinage existing as a lawfully recognised
                                     - 34 -


status at the time of her birth.


             It is common ground that Madam Sung was taken as Mr Sung‟s
purported concubine on 1 May 1933 and that the 2nd plaintiff was born on 20
July 1940. It is also common ground that at the time of the 2nd plaintiff‟s
birth (as well as at the time when her parents first entered into the union), all
concerned were living in Shanghai and domiciled on the Mainland. Madam
Sung did not leave the Mainland before her death in 1983.


             Under Hong Kong private international law rules, capacity to
contract a marriage (including a polygamous marriage) is governed by the
law of each party‟s antenuptial domicile: Hussain v Hussain [1983] Fam 26.
Those rules tend to equate a foreign law permitting the taking of concubines
with laws permitting polygamous marriages: Lee v Lau [1967] P 14.
Accordingly, one is referred to the law of each party‟s antenuptial domicile to
determine whether it was legally possible for the parties to enter into a union
of concubinage as a lawful status.


             It is also clear that where, under the applicable foreign law,
legislation has been passed removing the capacity to contract a polygamous
marriage previously enjoyed under the personal laws of the parties, common
law conflict rules recognize the efficacy of such legislation in bringing about
such a change: Cheni v Cheni [1965] P 85; Parkasho v Singh [1968] P 233. In
my view, the same applies in principle where there has been legislation
abolishing the status of concubinage.
                                    - 35 -




             The question whether the 2nd plaintiff was the child of a legally
recognised union of concubinage therefore requires reference to the law of
the Republic of China, Mainland China being where Mr Sung and Madam
Sung were domiciled immediately before entering into their union, to see if
they had attained a legally recognized status of concubinage and had
thereafter maintained such status up to the time of the 2nd plaintiff‟s birth.


Concubinages under Mainland law

             On 5 May 1931, the Civil Code of the Republic of China, and in
particular its Book IV (“the Civil Code”), came into force. This was two
years before Mr Sung purported to take Madam Sung as his concubine and
nine years before the 2nd plaintiff was born.


             By Article 985, the Civil Code provided that a person who had a
spouse could not contract another marriage, but the Code was silent as to the
legal status of concubines. After hearing expert evidence on this matter,
Keith JA found that the effect of the Civil Code had been to abolish the status
of concubinage. That finding is not subject to challenge on this appeal, in my
view, rightly so.


             It follows that when Mr Sung purported to take Madam Sung
(and subsequently Madam Chu) as his concubine, he was purporting to confer
on her a status which had been abolished under the law of the Republic of
China, being the applicable law of the parties‟ domicile.
                                       - 36 -




             Keith JA considered evidence as to rights conferred by the Civil
Code on members of “the house”, as defined in Art 1122, entitling them to
maintenance under Art 1114. However, he held in both judgments that on the
evidence “Such rights as were accorded to them were accorded to them as
„members of the house‟ and not as de facto concubines.” As Rogers JA points
out, this is in line with this court‟s approach in Tang Lai Sau-Kiu v Tang Loi
[1987] HKLR 85 at 91, which supports the conclusion that the status of
concubinage was abolished by the Civil Code as from 5 May 1931.


             On 29 September 1949, the Civil Code was itself abrogated.
After a short interval, there was promulgated on 1 May 1950 the Marriage
Law of the People‟s Republic of China (“the 1950 Marriage Law”). Article 1
provided as follows :-
             “The feudal marriage system based on arbitrary and compulsory
             arrangements and the supremacy of man over woman, and in
             disregard of the interests of the children, is abolished. The New
             Democratic marriage system, which is based on the free choice of
             partners, on monogamy, on equal rights for both sexes, and on the
             protection of the lawful interests of women and children, is put into
             effect.”


Article 2 provided :-
             “Bigamy, concubinage, child betrothal, interference in the
             re-marriage of widows, and the exaction of money or gifts in
             connection with marriages, are prohibited.”


The 1950 Marriage law therefore not only abolished concubinage: it
prohibited the status.
                                     - 37 -


             At the second hearing, the Judge found that under the law of the
PRC, a woman who had been taken in concubinage prior to 29th September
1949 was treated as if she were the wife of her partner, enjoying a status equal
to that of her partner‟s first wife. It was on this basis that he held that both
Madam Sung and Madam Chu qualified as partners in respective unions of
concubinage with Mr Sung so as to trigger the deeming provisions discussed
above and founding his judgment in favour of the 2nd plaintiff.


             With respect, I do not consider the Judge‟s conclusion justified.
Indeed, it appears to me to be in conflict with his first decision in which he
held (to my mind, correctly) that when the relevant provisions of the
Ordinance spoke of a union of concubinage, they were referring to a union
legally recognised to have such a status and not to an assemblage of facts
which might attract legal benefits “as good as” or even “superior to” the
rights previously enjoyed by a person with the legally recognized status of
concubine.


             The fact that after enactment of the 1950 Marriage Law the
practice grew up in the PRC of according rights equivalent to the rights
enjoyed by wives to persons who, under an abolished legal regime, occupied
or would have occupied the status of concubine, is irrelevant. It does not
justify describing such women as “concubines”, much less as parties to a
lawfully recognized union of concubinage.
                                    - 38 -


Was the 2nd plaintiff the child of a qualifying union of concubinage?

             In my view, the answer to the captioned question is “No”. When
the union between Mr Sung and Madam Sung was entered into in Shanghai in
1933, the law of their domicile did not recognize or confer on any such unions
the legal status of concubinage. Accordingly, their relationship was not a
“union of concubinage” within the meaning of paragraph 2(1) of the
Schedule. The 2nd plaintiff therefore does not qualify as a child of such a
union and the extended meaning of “issue” provided for by section 2(2)(b) of
the Ordinance has no application in her case. It follows that she falls outside
any entitlement conferred by section 4(5) and that her claim must fail.


The position of Madam Chu

             Having reached my aforesaid conclusion (which is wholly in
agreement with that reached by Rogers JA), the appeal must be allowed
whether or not the 2nd plaintiff is able to satisfy the second requirement for
bringing herself within the extended meaning of “issue”, namely, the
requirement of establishing that Mr Sung was Madam Chu‟s “last husband”.

             It is therefore strictly unnecessary to decide that question.
However, as I differ in some respects with the analysis and conclusions of
Godfrey VP and Rogers JA on the matter, I ought perhaps to indicate where
the differences lie.


             In the present case it is common ground that Mr Sung, Madam
Sung and Madam Chu were and remained at all material times domiciled in
                                    - 39 -


Mainland China. It was therefore no part of the 2nd plaintiff‟s case that Mr
Sung and Madam Chu acquired a Hong Kong domicile after moving here in
1951 and 1952 respectively. At the start of the second hearing before Keith
JA, Mr Nelson Miu (who has acted throughout for the 2nd plaintiff)
abandoned the argument that Madam Chu had attained recognition as a
concubine under Hong Kong law after acquiring domicile here and prior to
the abolition of that status by the Marriage Reform Ordinance in 1971.


             The change of domicile point was therefore not canvassed and
the facts bearing on any such change have not been investigated. The legal
issues which it raises were also not discussed. Accordingly, questions such
as whether a union of concubinage would have been recognized under Hong
Kong law after a change in domicile; and whether paragraph 2(1) of the
Schedule requires the qualifying union of concubinage to have been a
lawfully recognized status from its inception, must be left open.


             On the footing that the relevant persons were always domiciled
in Mainland China, the ordinary conflict of laws rules ought in my view to
apply, so that the law of that domicile determines whether a status of
concubinage came into being.


             I am unable to accept the suggestion that despite such Mainland
domicile, one should recognize Madam Chu and Mr Sung as having
established the status of concubinage as a matter of Hong Kong law, ignoring
the abolition of such status by the law of their domicile.
                                         - 40 -




             It is argued that this unorthodox approach is justified because
Hong Kong case-law indicates that when determining concubinage and
marital status, the local courts have not examined the parties‟ domicile but
have considered it sufficient to show Chinese ethnicity and residence here as
the basis for applying Hong Kong law (incorporating Chinese law and
custom existing as at 1843) to such persons. On this approach, it is said that
pre-1971 Hong Kong law ought to be applied to Madam Chu so as to
recognize her as having acquired the lawful status of concubine between
1952 and 1971 for the purposes of the Ordinance.


             I am unable to subscribe to such approach. To my mind, none of
the authorities discussed support the proposition that despite an established
foreign domicile, a court may or should ignore or override the conflict rules
which refer the issue of status to the law of such domicile and instead apply
Hong Kong law simply because the person in question is Chinese and
resident in Hong Kong.


             The Report of the Committee Appointed by the Governor in
October 1948 on Chinese Law and Custom in Hong Kong (“The Strickland
Report”) clearly indicated that such was not the approach adopted by the
Hong Kong courts and that, on the contrary, the ordinary conflict of laws
rules were applicable. Thus, at §8, it stated :-
             “The Supreme Court has ruled that notwithstanding Chinese law
             and custom, a grant of probate or letters of administration is
             essential, but that distribution on intestacy of the personal estate of a
             Chinese is to be made in accordance with Chinese law and custom
                                        - 41 -


             existing in 1843 in that part of China of which Hong Kong then
             formed part. This law applies to all the personal estate of a Chinese
             domiciled in Hong Kong but only, it would seem, to the leasehold
             property of a Chinese not so domiciled”.

The importance of the private international law rules and their reference to
domicile was expressly recognized in §15 as follows :-
             “It would seem that with such exceptions as are mentioned later the
             application of Chinese law and custom should be confined to those
             Chinese who are domiciled in Hong Kong. This is the ordinary rule
             of Private International Law as applied by British Courts. Indeed it
             is usually unwise to attempt to legislate in matters directly or
             indirectly affecting the status of persons not domiciled in the Colony
             as the status of such persons is normally governed by the law of their
             domicile and such legislation might well be disregarded by Courts
             established outside the Colony.”


At §20, the Strickland Report stated the orthodox position as follows :-
             “Such movable property in the Colony of a Chinese not domiciled in
             the Colony as to which he is deemed to die intestate, will devolve in
             accordance with the law of the place where he is domiciled at the
             date of his death and not in accordance with Chinese law and
             custom”.


As explained in Appendix 1 to the Report, the applicability of Hong Kong
law to leasehold property in Hong Kong even in respect of a Chinese not
domiciled here was the consequence of the ordinary conflicts rule applying
the lex loci to immovables within the jurisdiction on an intestacy.


             In Appendix 3 to the Report, the Opinion of the then Attorney
General of Hong Kong, dated 5 June 1936, stated the orthodox position in
relation to concubines‟ rights on an intestacy as follows :-
             “The question whether she is entitled to a share of her deceased
             consort‟s estate and if so what is her portion, is governed by the
                                        - 42 -


             principles of Private International Law affecting the distribution of
             intestate‟s estates. The rule of such law is that the distribution of
             movables is governed by the lex domicilii of the deceased.
             Assuming that this domicile is Chinese the movables would be
             distributed according to the current law of the Republic of China.
             Immovables including leasehold properties are governed by the lex
             loci which has been held by the Full Court (Ho Tsz Tsun’s case,
             1915, 10 HKLR 69) to be the Chinese law and custom of inheritance
             as it existed in the neighbouring districts of China in 1843.”

             In Chan Yeung v Chan Shew Shi (1925) 20 HKLR 35, the court
was concerned with whether a concubine had the right to be granted letters of
administration in respect of her deceased consort‟s estate. As with many of
the cases discussed in this context, domicile appears never to have been
raised as an issue. Nonetheless, in reciting the facts, the court appears to have
found that the deceased and the plaintiff had in fact acquired a Hong Kong
domicile, although the word “domicile” itself was not used. Gollan CJ
stated :-
             “After the death of his father, deceased and his mother came to
             Hongkong in 1883; and plaintiff joined them shortly afterwards.
             None of the family ever returned to China, even to worship at the
             ancestral tombs, according to the plaintiff; and I think that on the
             facts of the case deceased and plaintiff must be taken to have settled
             in Hongkong and made it their home.”

             Other cases where domicile was again not in issue, and where
Chinese law and custom as incorporated in the law of Hong Kong was
conceded by both parties or simply assumed by the court to be applicable,
include Luk Yuk Ping v Chow To [1962] HKLR 515; Wong Kam Ying v Man
Chi Tai [1967] HKLR 201; Chan Hing-cheung v The Queen [1974] HKLR
196; Kwan Chui Kwok Ying v Tao Wai Chun [1995] 1 HKC 374; and Leung
Sai Lun Robert v Leung May Ling [1999] 1 HKC 605.
                                    - 43 -




             In such cases, the party or other relevant person is often referred
to as “a Chinese inhabitant of Hong Kong” to justify making Chinese law and
custom (as at the year 1843) applicable to him. However, this is done in the
context of establishing that Chinese law and custom as made applicable to
Chinese inhabitants by the various Supreme Court Ordinances forming part
of Hong Kong law, governs in the particular case. These are not examples of
Hong Kong law being somehow treated as an overriding law in the conflict of
laws sense, nor of the courts seeking to replace a domiciliary requirement
with a requirement of Chinese ethnicity and local residence for determining
the applicable law. In the abovementioned reported cases, no question of
private international law was in issue.


             Some of the other authorities cited in this context raise issues
concerning the formal validity of a marriage, e g: In the matter of the Estate
of Kishen Das [1932-1933] HKLR 42; and Tang Lai Sau-Kiu v Tang Loi
[1987] HKLR 85 (CA). Such cases simply apply the ordinary rule of private
international law that the lex loci celebrationis determines the formal validity
of marriages: Berthiaume v Dastous [1930] AC 79.


             In my view, McCabe v McCabe [1994] 1 FLR 410, merely
presents another example of the aforesaid principle being applied. It was a
case involving somewhat unusual facts which may be summarised as follows.
                                    - 44 -


             The appellant was a Ghanian who had lived with an Irishman
and become pregnant by him. The judge found that at the urging of her
great-uncle, she and the respondent had agreed to enter into a customary
marriage according to Akan customary law on her great-uncle‟s return to
Ghana.


             This was implemented by the parties providing her great-uncle
with £100 in cash as “aseda” (a kind of dowry) and with a bottle of gin, which
he took back to Ghana. There, a ceremony took place according to Akan
custom where neither the appellant nor the respondent were present, but
which was attended by about eight members of the appellant‟s family. The
relatives were told that the couple wished to be married and that the money
and gin had been sent via the great-uncle. The respondent‟s father and the
assembled family members expressed their agreement to the marriage and
some of the gin was poured into a glass as a blessing of the marriage and some
drunk by those present. Part of the £100 was distributed to the relatives at the
ceremony and a further part of the money distributed to other relatives a few
days later when they were informed of the marriage by the appellant‟s father.
The appellant then received letters from her father and great-uncle describing
the ceremony which she read to the respondent, with whom she continued to
cohabit, the union producing two children.


             The appellant later petitioned for divorce. However, the judge
dismissed her petition on the ground that there had been no valid marriage.
The Court of Appeal re-examined the expert evidence that had been placed
                                       - 45 -


before the judge and held that on such evidence, the marriage had been
validly celebrated so that the judge‟s decision was overturned and the
appellant granted a decree nisi.


               In my view, it is clear that the entire decision involved the
English court deciding whether, on the evidence as to the lex loci
celebrationis, namely, the law of Ghana, the marriage was valid as a matter of
formal validity.


               Butler-Sloss LJ (with whom Bracewell J agreed) explained the
decision below as follows (at p 412):-
               “The judge decided that in one essential respect, that is to say
               publicity, the formalities had not been complied with and
               consequently a valid marriage had not been performed.”


The Judge was overturned precisely on that question, namely, one going to
the formal validity of the marriage.


               In taking evidence as to the formal requirements of an Akan
customary law marriage, the English court was applying the law of Ghana as
the lex loci celebrationis which, as Butler-Sloss LJ pointed out (at p 412) had,
by its Courts Act 1971, s 49, r 1, recognised the personal law of a Ghanaian as
the customary law of his group. The Akan group of people were the largest
ethnic group in the southern half of Ghana, divided into a number of separate
communities such as the Fanti or Ashanti. Butler-Sloss LJ held (ibid) that the
Judge had :-
                                        - 46 -


              “ ...... correctly directed himself that he had to apply Ghanaian law
              and upon the most unusual facts of this case he had to determine the
              decision to which a Ghanaian judge would come as to the validity of
              the ceremony ......”


Accordingly, the English court was applying and not departing from the usual
rules of private international law. It was, with respect, not applying some
personal law to the appellant by virtue of a domestic doctrine of the English
forum conditioned merely on ethnicity. Akan law as the relevant personal
law was applied only because it had been given force by a Ghanaian statute
and so formed part of the law of the place where the marriage had been
celebrated.


              The fact that neither the appellant nor the respondent were
present in Ghana for the ceremony should not be allowed to confuse the
position. Common law conflicts rules have long recognized that marriages
may be valid under the lex loci celebrationis where the parties were not
present at the ceremony but were represented by proxies: Apt v Apt [1947] P
127; Ponticelli v Ponticelli [1958] P 204. The present case is unusual only to
the extent that (as held at p 417) the evidence showed that Akan customary
law, as incorporated into Ghanaian law, required neither the parties nor their
proxies to be present at the ceremony.


              Accordingly, in my view, cases dealing with the formal validity
requirements of marriages offer the 2nd plaintiff no assistance. The fact that
Hong Kong law (in the earlier cases, incorporating Chinese law and custom
made applicable to Chinese inhabitants by the Supreme Court Ordinances)
                                    - 47 -


applies to determine the formal validity of marriages celebrated within the
jurisdiction even as between parties domiciled elsewhere is irrelevant. This
case is not concerned with any issue of formal validity. It is concerned with
legal capacity to contract a union of concubinage, a question dependent on
the law of the parties‟ ante-nuptial (or “ante-concubinage”) domicile, which,
as we have seen, is the law of the Mainland.

Conclusions

              It is for the abovementioned reasons that I find myself with
respect unable to agree with the conclusion reached by Godfrey VP.

              While I entirely agree with Rogers JA as to the status of Madam
Sung and accordingly as to the need to dismiss the appeal, I am respectfully
unable to agree with the result he has reached in relation to Madam Chu. In
my view, Madam Chu never acquired the legal status of concubine since,
under applicable Mainland law, that status had been abolished ever since
1931, some 14 years before she was purportedly taken as a concubine. If it
had been necessary to do so, I would also have allowed the appeal on the
basis of this conclusion.




Hon Godfrey VP :

              I have had the advantage of reading in draft the judgments
prepared by Rogers JA and Ribeiro JA, concluding that this appeal should be
allowed. I have the misfortune to differ from them, as each of them has
mentioned.
                                     - 48 -




             I need not once again rehearse the facts; and the question for
decision may be shortly stated. It is whether both of the female partners taken
as concubines by Sung Chuen Pao are to be treated, for the purposes of our
law relating to the distribution of intestates‟ estates, as having at all material
times enjoyed that status.


             I am of the opinion that the answer to that question is that both
such female partners did at all material times enjoy that status. My reasons
are as follows.


             The status of concubinage is not universal, unlike the status of
marriage. It is a status peculiar to persons of Chinese race under whose
personal law (as it may conveniently be called) such a status is recognised. In
my opinion, it has nothing to do with domicile or residence. A concubine
recognised as such under Chinese customary law may find that, in different
places or at different times, her status as a concubine will not be recognised as
such for the purposes of the system of civil law in force at that place or at that
time. For example, in England and Wales, one claiming to be a concubine
would never in the past and would not now be recognised for any purpose of
English civil law as having any status, or any rights, different from that of a
mistress. In the system of civil law in force in China, on the other hand (at
any rate before 1911), a concubine would have been recognised as enjoying a
status, and rights, comparable though not by any means identical with the
status, and rights, enjoyed by a wife. It may be that, after 1911, a concubine
                                    - 49 -


would not have been recognised by that system as enjoying the status of a
concubine, although she would have been treated as enjoying the same rights
as she would have had if she had been so recognised.


             But none of this matters for our purposes. What matters for our
purposes, is the status, or rights, if any, enjoyed here, in Hong Kong, by a
concubine and her issue under the Intestates‟ Estates Ordinance, Cap. 73.


             Support for the approach which I have adopted is I believe
afforded by the case of McCabe v. McCabe [1994] 1 FLR 410. In that case,
the parties to an alleged “marriage” were both members of the Akan tribe of
Ghana. The “husband” was domiciled in the Republic of Ireland. The “wife”
was domiciled in Ghana. They were living together in England, but their
personal law was Akan customary law. They agreed to “marry” according to
the tribal custom of the Akan. The “husband” provided a bottle of gin and
some money (as “aseda”, a sort of dowry) which were taken to Ghana, where
a tribal ceremony of “marriage” was held at which neither “husband” nor
“wife” (nor proxies for them) were present. The Court of Appeal
nevertheless held that the “husband” and the “wife” had been validly married.
It was satisfied that the ceremony constituted a valid marriage under their
personal law; i.e. Arkan customary law.


             In our case, as it seems to me, Sung Chuen Pao entered into a
“union of concubinage”, for the purposes of the Intestates‟ Estates Ordinance,
Cap. 73, with Sung So Chun on 1 May 1933 and with Chu Lee in December
                                    - 50 -


1945. Each was a union under which, during the lifetime of Sung Chuen Pao,
the “concubine” was accepted by his wife and recognised as such by his
family generally. In order to reach this conclusion, it is, as it seems to me,
necessary to refer and to refer only to the personal law (Chinese customary
law) of all the parties concerned, under which the status of concubinage was
and indeed is at all material times permitted and recognised. References to
the law of the domicile of any of the parties at any particular time is not
necessary and indeed not relevant here, where the only question we have to
consider is whether Sung Chuen Pao did or did not enter into these two
“unions of concubinage” with Sung So Chun and Chu Lee respectively. The
question admits, as I think, of only one possible and affirmative, answer. No
person guiding himself by reference to the personal law of the parties could
come to any other conclusion on the facts, and the application to our case of
rules of private international law governing questions as to the formal or
essential validity of a marriage in order to decide whether there were
constituted here two “unions of concubinage” for the purposes of the
Intestates‟ Estate Ordinance, Cap. 73 is, I believe, unwarranted.


             It follows that I would dismiss this appeal (although for reasons
which differ from those given by the judge below). But, since the majority of
the court is of a different opinion, the appeal will in fact be allowed. As to
costs, I agree that we should make an order as indicated in the Judgment of
Rogers JA and we will accordingly make that order.
                                 - 51 -




(Gerald Godfrey)        (Anthony Rogers)        (R.A.V. Ribeiro)
 Vice-President         Justice of Appeal       Justice of Appeal

Mr Nelson Miu, instructed by Messrs John Ku Tam & Ho, assigned by DLA
for the 2nd Plaintiff

Miss Liza K.Y. Wong, instructed by Messrs Hastings & Co., assigned by
DLA for the Defendant

								
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