LEE YIU TONG AND OTHERS v. CHUNG WAN FAI

HCMP 3011/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3011 OF 1998

____________

_______________

J U D G M E N T

_______________

1. This is an application by way of an originating summons for a declaration that the mortgage made in favour of the Defendant dated 30 May 1912 in respect of Lot 1129 in D.D. 19 is incapable of subsistence or is unenforceable by operation of Limitation Ordinance Cap. 347 of the Laws of Hong Kong.

2. The evidence disclosed on the affidavits show that a mortgage was made in favour of the Defendant by the Plaintiffs' predecessor in title on 30 May for an amount of $12.00, the property being security for the repayment of that amount to be repaid on 19 May 1913 with monthly interest of what would appear to be $0.33 payable monthly on the 29th day of each month. That can be found from the memorial of the mortgage, no actual document of mortgage having been found.

3. In 1994, the property was bought by a company called Bright Wide from certain persons surnamed Chung in whose family apparently this property had been vested for many years. In 1994, after Bright Wide purchased the property, there was a deed poll by which the property was apportioned into three sections, namely Section A, Section B and the Remaining Portion. Section A was then assigned to a person by the name of Mr Lee. Section B was assigned a month later to a person by the name of Mr Chan and the Remaining Portion remains vested in Bright Wide.

4. The present application is therefore made by these three persons, namely Mr Lee, Mr Chan and Bright Wide Investment. In a previous directions hearing, I had made enquiries with the solicitors then appearing for the Plaintiffs as to how it could be said by the Plaintiffs that they had to the best of their knowledge found out that their predecessors of the property had not made any repayment or received any demand from the Defendant.

5. There is now a supplemental affirmation made by the solicitors who dealt with the conveyancing and he says that he had, after conducting a land search, made enquires of Mr Chung Kwok Choi and Mr Chung Kwok Keung regarding the existence of the said mortgage and that he had been informed that they did not have any knowledge about the mortgagee nor did they make any repayment or receive any demand for repayment from the mortgagee or any persons claiming title or interest under the mortgagee. The persons of whom he made enquiry, Mr Chung Kwok Choi and Mr Chung Kwok Keung, are members of the Chung family in which this property had been vested since before 1917. Mr Chung Kwok Choi became the beneficial owner of the property in 1958 by way of succession and Mr Chung Kwok Keung became the beneficial owner in 1980.

6. Consequently, it would appear that, certainly if not prior to 1958 then certainly by 1974 when Mr Chung Kwok Choi became the legal and the beneficial owner after the removal of trustees, it is quite clear that there had no demand for repayment and that there had been no repayment made by these persons who are the predecessors in title of the Plaintiffs.

7. In view of the above, I am satisfied that a declaration can be made by the court that the mortgage made in favour of the Defendant in 1912 in respect of the land is incapable of subsistence or is unenforceable by operation of the Limitation Ordinance.