Au Lut Chi and Griffith Cheng appeared for the successful Respondent in the Court of Final Appeal case of Lui Ming Lok v Ng Im Fong Loretta, the executrix of the estate of Lui Kwan Cheung [2024] HKCFA 21, which concerns the question of whether mental incapacity suffered by a party to the marriage at the time of its celebration is capable of rendering the marriage void, or whether it is only capable of rendering it voidable under the Matrimonial Causes Ordinance (Cap. 179) (“MCO”).
The Appellant, the nephew of the Deceased and a beneficiary under the Deceased’s purported will in 1994 (“the 1994 Will”), had sued the Respondent, who married the Deceased in 2010 (“the Marriage”) and was named executrix and sole beneficiary under a will created in the same year (“the 2010 Will”). In so doing, the Appellant had challenged inter alia the validity of the Marriage on grounds of the Deceased’s alleged mental incapacity. It was necessary for the Appellant to have the Marriage declared void since under section 14 of the Wills Ordinance (Cap. 30), a will is automatically revoked by the testator’s subsequent marriage. It would not have been enough if the Marriage was held to be voidable since, by virtue of section 20B of the current MCO, the existence of the Marriage prior to the decree of nullity being made absolute would have had the effect of revoking the 1994 Will.
The Appellant argued that sections 20(2)(c) and (d) do not displace the common law rule that in cases of “severe incapacity” involving an inability to understand the nature of the obligation the party concerned was entering into at the time of the marriage ceremony, the marriage is void (“the Common Law Rule”). The Appellant contended that the Common Law Rule is preserved by section 20(1)(b) of the current MCO, which provides that a marriage shall be void if it is otherwise invalid by the law of Hong Kong. Both the CFI and the CA found against the Appellant.
Upon considering the legislative history of the current MCO, the Court of Final Appeal held that the Common Law Rule has long been displaced by statute. Section 20(1) of the current MCO specifies the only grounds on which a marriage can be declared void, none of which relate to mental incapacity. On the other hand, sections 20(2)(c) and (d) are intended to cover all cases of mental incapacity. It was not accepted that “severe incapacity” is inferentially covered by section 20(1)(b), which has the purpose of ensuring that provisions in other ordinances are not unintentionally overruled. Moreover, there is nothing in section 20 of the current MCO which expressly restricts its application to a party to the marriage. The Court agreed with the Respondent that, as marriage is a status and affects not only the parties to the marriage but also other third parties, the same test must apply in determining whether a marriage is void or voidable. The Appellant’s appeal was therefore unanimously dismissed.
Au Lut Chi and Griffith Cheng are led by Audrey Eu SC and counsel team is instructed by Francis Kong & Co.
LC was called to the Bar in 2013. He established a civil practice on probate, land disputes, commercial litigation, and personal injury matters. His clients include a roster of investment funds, listed companies, high-net-worth individuals, administrators, beneficiaries, insurance companies, and telecom operators.
He advises and appears in court in relation to Beddoe orders and other applications in administration under RHC O.76 and O.85, the Probate and Administration Ordinance (Cap. 10), the Intestate Estate Ordinance (Cap. 73) and the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481).
Notably, LC is a prolific contributor to numerous legal publications, including the Hong Kong Civil Procedure, Butterworths Hong Kong Employees’ Compensation Ordinance Handbook (7th edn.) (2023), Atkin’s Court Form Hong Kong (Companies (General)), Hong Kong Encyclopaedia of Forms and Precedents Companies (General), Annotated Ordinance of Hong Kong – Merchant Shipping Ordinance (Cap 281), and Bills of Lading and Analogous Shipping Documents Ordinance (Cap 440).
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Griffith was called to the Bar in 2020. He maintains a civil practice spanning across company and shareholder disputes, insolvency and bankruptcy, probate and administration, family, property, trust, civil fraud and asset tracing, arbitration, commercial and tort law.
Griffith is regularly instructed to appear before all levels of court and different tribunals as led junior or sole advocate.
Griffith has published in peer reviewed journals and contributed to Annotated Ordinances commentaries, notably in respect of the Defamation Ordinance (Cap 21). He was a judicial assistant to the Court of Final Appeal prior to joining the bar.
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