TANG KAM SUI AND OTHERS v. TANG SHUI KI

HCMP 5111/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 5111 OF 2000

____________

_______________

J U D G M E N T

_______________

1. This is an application for a declaration that the Mortgage dated 10 July 1911 and registered by Memorial No. 16772 of the same date in the Yuen Long Land Registry is no longer subsisting or capable of taking effect under the provisions of the Limitation Ordinance, Cap. 347. The matter first came before me on 3 April 2001 and it was adjourned for the Plaintiffs to file further affirmations to deal with the queries raised by the Court regarding the affirmations filed.

2. By the Mortgage, the 1st, 2nd and 3rd Premises were mortgaged by Tang Lai Tong Tso and Tang Lai Kwong Tso (collectively "the two Tsos") to one Tang Shui Ki to secure payment of HK$150.00 on three months' notice of any date, yearly interest of HK$27.00 payable by instalment of HK$13.50 at each crop. Other than the particulars given in the memorial, nothing further is known about the Mortgage or the mortgagee.

3. The manager of the two Tsos at the time that the Mortgage was executed was Tang Tok Ying who is the uncle of Tang Kam Sui, the present manager. Tang Kam Sui is named as the 1st Plaintiff and the 2nd Plaintiff in these proceedings in his capacity as manager.

4. Tang Kam Sui started to assist in managing the affairs of the two Tsos in the late 1940s, when he was still in his teens. He took over the management in the 1950s. He was formally appointed the manager of the two Tsos with the consent of the District Officer on 23 May 1979. Thus, he is able to speak from his own personal knowledge about the occupation and the uses of the Premises in the affirmations he has made in these proceedings.

5. According to Tang Kam Sui, since the 1950s, the 1st Premises were used continuously by the two Tsos for cultivation and the 2nd and 3rd Premises were occupied by the two Tsos for development of small houses.

6. The two Tsos are still the registered owners of the 1st Premises and the usage is unchanged. Thus, there is continuous occupation of this property by the two Tsos without interference, claims or demands since at least the 1950s.

7. As for the 2nd Premises, they were assigned by the two Tsos to Tang Hon Ho as the trustee for his son Tang Ki Ying in April 1980. Tang Hon Ho passed away in 1994. His daughter Madam Tang Lai Ngor became the administratrix of his estate by letters of administration granted in November 1999. According to Madam Tang Lai Ngor, who is the 3rd Plaintiff herein, after the 2nd Premises were assigned to her father on trust for her brother, her father built a stone house on it in 1980 for storage and as dwelling for a servant. The 2nd Premises had been occupied by her father and her brother without interference and without making payment to anyone.

8. The 3rd Premises were assigned by the two Tsos to Tang Tak Ming, the 4th Plaintiff herein, in September 1982. Since then he had occupied a house on the property as his dwelling without interference and to the exclusion of all others.

9. As nothing is known about the mortgagee despite enquiries by Tang Kam Sui in the villages in the Kam Tin area and the checking by the Plaintiffs' solicitors in the Probate Registry, the Plaintiffs applied for substituted service of the Originating Summons by advertisement in the newspapers. An order for substituted service was made on 19 October 2000. Various notices of appointment for the hearing were served on the mortgagee by substituted service by the orders of the Court.

10. It is not known if any notice was ever given by the mortgagee to the two Tsos to make payment within three months before Tang Kam Sui took over the management of the two Tsos. No such notice was given as from the 1950s when he took over the management. No payment of yearly interest had been made since Tang Kam Sui managed the affairs of the two Tsos. Given the antiquity of the Mortgage in that it was made in 1911, the possibility of the mortgagee ever giving three months' notice to pay is extremely remote. The rights of the mortgagee to recover the payment of the principal and interest and to pursue any other remedy under the Mortgage have been time-barred.

11. In the circumstances, it would be appropriate to make a declaration that the Mortgage is no longer subsisting or capable of taking effect by virtue of section 19 of the Limitation Ordinance and I so order.

12. I make no order as to costs for this application.