CHEUNG WAI NAN v. CHEUNG HAU SHI

HCMP 5715/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 5715 OF 1999

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J U D G M E N T

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1. This is an application by Originating Summons for a declaration that the mortgage made in favour of the Defendant dated 12 February 1935 and registered at the Tai Po New Territories Land Registry by Memorial No. 91868 in respect of the property known as Demarcation District 19, Lots 110 and 118 is incapable of subsistence, or is unenforceable by operation of the Limitation Ordinance, Cap. 347 of the Laws of Hong Kong.

2. The documents exhibited to the affirmation of the Plaintiff who is the registered owner of the Lots show that the mortgage was entered into in February 1935 by Cheung Mak Shi in favour of Cheung Hau Shi, Cheung Hau Shi being the Defendant in this case. The mortgage was for repayment of $130.00 3 years after the date of the mortgage, in other words, $130.00 was to be repaid on 12 February 1938. Interest was payable yearly and was 2 sheks of grain a year. The then mortgagor, Cheung Mak Shi, was the grandmother of the present Plaintiff.

3. In May 1948, the properties were succeeded to by the Plaintiff's father, Cheung Cheung Tai, and in 1954, the Plaintiff succeeded in turn to his father, so that the Plaintiff became the registered owner of the properties since 25 January 1954. That is some 45 years ago.

4. The Plaintiff has said in his affirmation that since that date, he has been growing vegetables on the Lots which are agricultural land and he has exhibited some Crown rent receipts to show that he was in occupation for a substantial length of time. The Plaintiff has also said in his affirmation that for this period of 45 years, he has not received any demand by the mortgagee or on her behalf, nor has he made any payment, nor has he ever acknowledged the mortgage.

5. In the circumstances, it is clear, in my view, that the mortgage made in favour of the Defendant dated 12 February 1935 is incapable of subsistence, or is unenforceable by operation of the Limitation Ordinance, Cap. 347 and I so declare.