CHAN MA CHOI AND ANOTHER v. CHAN SHEUNG KI

HCMP 789/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 789 OF 1998

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J U D G M E N T

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1. These proceedings concern the properties known as Lots Nos. 304 and 312 both in Demarcation District No. 79, Ta Kwu Ling, New Territories, Hong Kong ("the properties").

2. The Plaintiffs are the co-owners of the properties. The 1st Plaintiff and his brothers succeeded to half share of the properties since 20th February 1945. The 2nd Plaintiff and his brothers succeeded to the other half share of the properties since 15th June 1949.

3. The evidence also shows that the Block Crown Lease dated 24th January 1905 in respect of the properties shows that the properties are mortgaged to the Defendant for the sum of HK$20.00. The evidence also shows that ever since the Plaintiffs and their families have succeeded to the properties no one has ever come forward to demand repayment under the mortgage. Ever since 1945, the properties have been used by the Plaintiffs and their families for the purpose of cultivation without any disturbance or interference or claim or demand of the Defendant or anybody else, whether on behalf of the Defendant or who might have derived title from the Defendant, whether on the basis of the mortgage or otherwise. Despite the efforts of the Plaintiffs, the Defendant or his representative cannot be located.

4. In all the circumstances, I am satisfied that the Plaintiffs are entitled to the declaration that they seek. The authorities of Fung Kam Cheung & Others v. Kwok Yiu Wing & Others [1991] 1 HKC 321 and Cheng Tin Loi & Another v. Li Yung Hing & Another [1999] 3 HKC 699 are of assistance.

5. I grant a declaration that the mortgage made in favour of the Defendant under the Block Crown Lease in respect of the properties is incapable of subsistence or is otherwise unenforceable by operation of the provisions of the Limitation Ordinance Cap. 347. The Plaintiffs do not seek costs and I make no order as to costs.