Lui Ming Lok v Ng Im Fong Lorretta [2023] HKCA 865

Robert Pang SC and Jeff Yau represented the Defendant in successfully resisting an appeal against the decision of Coleman J striking out a claim by the nephew of a deceased that the marriage between the deceased and the Defendant was void in Lui Ming Lok v Ng Im Fong Lorretta [2023] HKCA 865, the first appellate authority in Hong Kong on whether a marriage is void by reason of the mental incapacity of a party to the marriage.

The Court of Appeal (Cheung and Yuen JJA giving separate judgments) held that, upon proper construction of section 20 of the Matrimonial Causes Ordinance (Cap. 179) (MCO), the mental incapacity of a party to the marriage only renders such marriage voidable but not void. The practical implication is that the nephew is precluded from challenging the marriage the existence of which would have revoked an earlier will under which the nephew was allegedly provided for under the Wills Ordinance (§29).

Under section 20(1) of the MCO, none of the grounds expressly provides that a marriage entered into by a mentally incapacitated person is void. On the other hand, section 20(2) of the MCO provides that a marriage is voidable if a party to the marriage suffers, inter alia, mental disorder. However, the Plaintiff argued that the marriage in question was void due to the ancient common law rule that a marriage is void if one of the parties lack mental capacity, and that such rule has been preserved by section 20(1)(b) of the MCO by virtue of the wording “the marriage is otherwise invalid by the law of Hong Kong”.

Upon an extensive review of the legislative history, the Court of Appeal held at §90 that the common law rule could not have been preserved:

• The Divorce Ordinance 1932 (Cap. 179) (DO) (the first statute in Hong Kong for divorce) provided that a marriage is void if “either party was a lunatic or idiot at the time of the marriage” (“lunatic and idiot ground”). It would be odd for the legislature to intend for the co-existence of the common law rule;
• The Matrimonial Causes Ordinance 1967 (Cap. 179) (MCO 1967) removed the lunatic and idiot ground from grounds for void marriage and repealed the DO in its entirety, and the common law rule was not maintained or restored; and
• Since the MCO expressly spells out all the grounds for void and voidable marriage, it would be strange that a person has to look for “some old dusty rule” to determine what is a void or voidable marriage.

The Court of Appeal therefore dismissed the Plaintiff’s appeal unanimously.