HO HON KWONG v. TANG HEI CHEUNG

HCMP 2805/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2805 OF 1997

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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 a mortgage of the pieces of land registered as Lot Nos 271 and 273 in Demarcation District No. 83 ("the Premises") in favour of the Defendant Tang Hei Cheung is no longer subsisting.

2. It is not known when the mortgage came into existence save that it must have been made by the time of the Block Crown Lease which was in 1905. All that is known about the mortgage, as appeared from the Schedule of the Crown Lease for Demarcation District No. 83, is that the Premises were mortgaged by Tang Leung Ming to the Defendant for HK$5.00 and that the mortgagee was in possession.

3. The Plaintiff became the owner of the Premises by a conveyance on sale dated 19 October 1983, when he purchased the same from Mr Yau Kwok Ching at a price of HK$15,000.00. By a notice of resumption served by the Government dated 14 December 1998, the Premises reverted to the Government for its use on 23 March 1999, whilst the Plaintiff remains as the legal owner on the land register.

4. Ever since the Plaintiff became the registered owner of the Premises, he had occupied the property to the exclusion of all others without any interference from the Defendant or any one claiming through him. Further, the Plaintiff had made enquiries of the Defendant with his predecessor in title Mr Yau and Mr Yau had no knowledge of the Defendant or the Defendant's whereabouts.

5. Service of process and other court documents in these proceedings was effected on the Defendant by substituted service pursuant to various orders of the court.

6. In the circumstances, I can draw reasonable inference from the evidence that there had been no demand for repayment of the loan secured by the mortgage made to the Plaintiff ever since 1983. Further, I think it is probable that no demand for payment under the mortgage had been made to the Plaintiff's predecessor in title, Mr Yau Kwok Ching, as he had no knowledge of the Defendant.

7. I am satisfied on the evidence that the mortgage is incapable of subsistence by virtue of section 19 of the Limitation Ordinance, Cap. 347. I therefore make a declaration that the mortgage is no longer subsisting or capable of taking effect.