Leung Sai Lun Robert And Others v Leung May Ling And Others

Cited as:[1999] 1 HKLRD 649; (1999) 2 HKCFAR 94
Court:Court of Final Appeal (Hong Kong)
Judgement Number:FACV5/1998
Judgment Date:29 Jan 1999
FACV000005/1998 LEUNG SAI LUN ROBERT AND OTHERS v. LEUNG MAY LING AND OTHERS

FACV No. 5 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 5 OF 1998 (CIVIL)

(ON APPEAL FROM CACV No. 119 OF 1997)

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IN THE ESTATE of LEUNG WAI KIT ROGER, also known as LEUNG KWAI SUM, late of 4A, Woodstock, 67 Fa Po Street, Yau Yat Chuen, Kowloon, Hong Kong, Businessman, deceased.

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Between:

LEUNG SAI LUN ROBERT 1st Appellant
LEUNG SAI TAT DENNIS 2nd Appellant
LEUNG SAI CHEUNG ERIC 3rd Appellant
LEUNG SIN (or SEEN) YEE LINA 4th Appellant
AND
LEUNG MAY LING 1st Respondent
LEUNG SEEN MAN JACQUELINE 2nd Respondent
LEUNG SEEN WEI REBECCA 3rd Respondent
LEUNG SAI KIT ALFRED 4th Respondent

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Court: Chief Justice Li, Mr Justice Litton PJ, Mr Justice Ching PJ, Mr Justice Bokhary PJ and Sir Anthony Mason NPJ

Date of Hearing: 18-19 November 1998

Date of Judgment: 29 January 1999

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J U D G M E N T

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Chief Justice Li :

1. The essential question in this appeal is the proper construction of section 13(1) of the Wills Ordinance, Cap. 30. I have read the judgment of Mr Justice Ching PJ. I agree with his judgment on this question of statutory construction and I would dismiss this appeal with costs.

Mr Justice Litton PJ :

2. The facts relevant to this appeal are these:

(1) Madam Leung May Ling (1st respondent) and her deceased husband went through a Chinese customary marriage on 28 February 1966.

(2) On 27 July 1967 the deceased executed a will.

(3) On 18 June 1985 Madam Leung and the deceased were married again at the marriage registry under the provisions of the Marriage Ordinance, Cap. 181.

(4) The deceased died on 21 March 1996 without executing another will.

3. The issue quite simply is whether the marriage contracted in June 1985 at the marriage registry has the effect in law of revoking the will made in July 1967. This depends upon two statutory provisions:

* Section 13(1) of the Wills Ordinance, Cap. 30, which, at the relevant time, provided

"A will shall be revoked by the subsequent marriage of the testator except a will expressed to be made in contemplation of that marriage".

* Section 38 of the Marriage Ordinance, Cap. 181, which provided at the relevant time (and still provides) as follows:

"38. Marriage under Ordinance of persons customarily married

The parties to any non-Christian customary marriage duly celebrated according to the personal law and religion of the parties before the appointed day under the Marriage Reform Ordinance (Cap. 178) may, unless the husband has any other wife, contract with each other a marriage under this Ordinance; and such a marriage shall not invalidate the previous customary marriage."

4. It is common ground that the customary marriage celebrated in February 1966 was "according to the personal law and religion of the parties" and that this took place before the "appointed day under the Marriage Reform Ordinance" (7 October 1971). It follows that unless the expression "subsequent marriage" in s.13(1) of the Wills Ordinance excludes a marriage made permissible under s.38, the will made in July 1967 was revoked by operation of law.

5. In argument before us, the registry marriage contracted in June 1985 was referred to by counsel as "the s.38 marriage". That is a convenient shorthand, but should not disguise the fact that it was contracted in accordance with the formalities in the Marriage Ordinance. The ceremony took place before the Registrar in accordance with the procedures laid down in s.21. It is a "monogamous marriage" within the meaning of that expression in s.2 of the Matrimonial Causes Ordinance, Cap. 179, and can only be dissolved on the grounds set out in s.11 of that Ordinance. Contrast this with a customary marriage which, though validated pursuant to s.7(3) of the Marriage Reform Ordinance, Cap. 178, can nevertheless be dissolved by mutual consent in accordance with Part V of that Ordinance.

6. Sophisticated arguments were deployed in the courts below, and before us, to the effect that the word "marriage" in s.13(1) of the Wills Ordinance can be used in two senses: the ceremony, or the contract between the parties resulting in a new status. Counsel for the appellants argues that, purposively construed, the word "marriage" in s.13(1) means marriage in the sense of a change in the parties' status, and since persons contracting a "s.38 marriage" are already married according to Chinese law and custom, there is no change in status after such a marriage; hence it does not come within the expression subsequent marriage in s.13(1) of the Wills Ordinance. Counsel bolsters up this argument by reference to s.38(2) of the Marriage Ordinance which provides that a marriage made permissible under that section "shall not invalidate" the previous customary marriage, thus emphasising, as counsel submits, that there is no change in status after such marriage. This argument failed to convince the judges in the courts below. Rightly so. It introduces a gloss on s.13(1) of the Wills Ordinance which is not warranted. As can be seen from the section, it already contains one exception: counsel's interpretation means, in effect, that it contains another by implication, exempting from the scope of s.13(1) subsequent marriages contracted under the Marriage Ordinance and made permissible by s.38. Nothing within the scheme of the Wills Ordinance supports this view. And if regard be had to other statutes where the word "marriage" is used, one sees that it is used in its widest possible sense. Thus in the Married Persons Status Ordinance, Cap. 182, marriage means (see s.2):

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

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

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

(d) 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.

The same definition appears in the Legitimacy Ordinance, Cap. 184.

7. It would be absurd to construe the word marriage in these two Ordinances as if a "s.38 marriage" were by implication excluded, when such a marriage is clearly "contracted in accordance with the provisions of the Marriage Ordinance".

8. As mentioned earlier, what has to be construed, for the purposes of this case, is s.13(1) of the Wills Ordinance as it stood in June 1985 when the parties were married again in the marriage registry. That Ordinance was amended in 1995. Section 13(1) was repealed and replaced by s.14(1). Section 14(5) says:

"In this section, 'marriage' has the same meaning as in section 2 of the Married Persons Status Ordinance."

9. It follows that, as things stand today, a "s.38 marriage" subsequent to a testator's will would unquestionably revoke that will. It would be an odd thing if "marriage" in 1985 meant something different from "marriage" in 1995 when the amending Ordinance was passed.

10. Reverting to counsel's argument, seeking to draw a distinction between ceremony and status, s. 38 in terms allows the parties to a customary marriage to contract with each other a marriage under that Ordinance. The Ordinance draws no distinction between a "s.38 marriage" and any other contracted before the Registrar under s.21. The requirement of giving prior notice, for example, is the same: see s.6. The expression a "s.38 marriage" is simply forensic shorthand used by counsel. It does not invest such a marriage with any special quality. Plainly, it is more than a mere ceremony. Once contracted, a "s.38 marriage" carries with it all the legal incidents attaching to a marriage: Having been contracted before the Registrar under s.21 it is the "civil equivalent of a Christian marriage": see s.40(1). Section 38 may be compared with s.39 of the same Ordinance dealing with persons living in "unlawful concubinage" one of whom is dying: If a marriage between such persons is celebrated under s.39, subsection (2) expressly provides that such marriage shall not revoke any will previously made. It follows that, but for subsection (2), a s.39 marriage would revoke a previous will. It would be odd if a "s.38 marriage" did not have the same effect in law.

11. In my judgment the courts below undoubtedly came to the right conclusion with regard to the effect of the June 1985 marriage on the 1967 will. I would dismiss this appeal with costs.

Mr Justice Ching PJ :

12. On 1st May, 1951, the deceased, Leung Wai Kit, married his first wife at the Marriage Registry in Hong Kong. She died on 31st August, 1963, having borne him four children who are the Defendants in this action. On 28th February, 1966, he married the 1st Plaintiff in Hong Kong in a ceremony in accordance with Chinese law and custom, a marriage usually referred to as a customary marriage. It produced three children who, together with their mother, are the Plaintiffs. The first of them was born on 10th April, 1967. On 27th July, 1967, just over three months after that birth and almost exactly 17 months after the customary marriage he executed a Will in which he left his entire estate to the Defendants. On 19th June, 1985, he went through another ceremony of marriage with the 1st Plaintiff, this time at the Marriage Registry in Hong Kong (the Registry marriage). He...

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