LEUNG CHUN CHOI AND OTHERS v. TANG TSIK FUK

HCMP 1785/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1785 OF 1998

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J U D G M E N T

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1. This is an application in respect of a mortgage which was endorsed in the schedule to the Block Crown Lease relating to Lot No. 3484 in DD124.

2. The documents exhibited to the affirmations show that there was an endorsement in the schedule to the Block Crown Lease which shows that there was a mortgage given in favour of the Defendant Tang Tsik Fuk by the then registered owners who were Leung Shu Hing and Leung Shu Yau.

3. In 1969, the property was succeeded to by Leung Yung and Leung Kang San and in 1987, the interests of these two persons were succeeded to by the four present Plaintiffs.

4. The property has remained in the possession of the Leung family by way of succession from the time of the Block Crown Lease to date.

5. The evidence shows that in 1945, there was a person who identified himself as the Defendant who appeared at the property and asked for repayment. This was challenged by the land owners who asked for verification of his claim. This appears in the affirmation of one of the Plaintiffs, Mr Leung Wai Lam who was about 14 years old at the time.

6. After the then owners cast doubt on the validity of the mortgage and asked the person purporting to be the Defendant to produce documentation to verify his claim, there were one or two further encounters in the same year, i.e. 1945, but thereafter it would appear that there was no further demand for repayment, nor had the registered owners at the time nor their successors given any payment or acknowledged the Defendant's title.

7. In the circumstances, in view of the evidence filed, I am satisfied that an order can be made as set out in the case of Fung Kam Cheong, in other words, that the mortgage of the Defendant was incapable of subsistence or was unenforceable, and I would order accordingly.