XCHRX TSE KAM HUNG v. ITALIAN MISSIONARY, SOCIETY OF SAI KUNG

1995, MP No.42

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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D E C I S I O N

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1. This is an application by Tse Kam Hung for a declaration that a mortgage made in favour of the Italian Missionary Society of Sai Kung by Ho Li Kiu, his predecessor-in-title as evidenced by an entry endorsed on the Schedule of Block Crown Lease in respect of Demarcation District No.220 is incapable of subsistence or is otherwise unenforceable by operation of the Limitation Ordinance, Cap.347.

2. The Originating Summons was issued on 6 January. The proceedings were served on the Defendant by way of substituted service. The notice of the appointment to hear the Originating Summons was also served by way of substituted service by advertising in a Chinese paper and in an English paper.

3. The facts of this case are that in 1954, the Plaintiff's father purchased the property in question and became its registered owner. The property was subject to a mortgage in the sum of HK$70 in favour of the Defendant. The Plaintiff's father died in 1993 and was succeeded by the Plaintiff. There is evidence from the Plaintiff's mother Madam Chi Yuk Ching that she and her late husband have occupied the property since it was purchased in 1954 and that no payment of $70 or any interest thereon had ever been made to anyone. It is also her evidence that she was unaware of the existence of the mortgage until recently when the Plaintiff decided to sell the property. She also said that she has made diligent enquiries in the neighbourhood but has not been able to discover any information regarding the whereabouts of the Defendant.

4. I am satisfied, on the evidence that has been filed, that any claim in respect of the mortgage is now time-barred. I therefore made the declaration sought in the Originating Summons.