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DCMP 1099/2025
[2025] HKDC 693
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO 1099 OF 2025
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IN THE MATTER of the property known as ALL THAT one equal undivided 2,450th part or share of and in ALL THOSE pieces or parcels of ground registered in the Land Registry as SUBSECTION 1 of SECTION E OF NEW KOWLOON INLAND LOT NO.5087, SUBSECTION 2 OF SECTION E OF NEW KOWLOON INLAND LOT NO.5087 and SUBSECTION 3 OF SECTION E OF NEW KOWLOON INLAND LOT NO.5087 And of and in the messuages erections and buildings thereon TOGETHER with the sole and exclusive right and privilege to hold use occupy and enjoy ALL THAT FLAT “B” ON THE SEVENTH FLOOR of NO.8 GLEE PATH as shown and coloured Pink on the Floor Plan annexed to an Assignment registered in the Land Registry by Memorial No.UB1016808 (the “Property”)
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and
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IN THE MATTER of a Loan Agreement and Memorandum of Agreement dated 2nd August 2024
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and
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IN THE MATTER of a Legal Charge / Mortgage dated 2nd August 2024 and registered in the Land Registry by Memorial No. 24080500380057
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and
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IN THE MATTER of Order 83A and Order 88 of the Rules of the District Court, Cap. 336H
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and
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IN THE MATTER OF Section 2, 3, 6 and 9 of the Partition Ordinance, Cap. 352
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| BETWEEN |
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ZHONGCAI FINANCE LIMITED |
Plaintiff |
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and
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NG KA WAI |
1st Defendant |
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NG KIN KWOK |
2nd Defendant |
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| Before: |
Deputy District Judge Kenneth KY Lam in Chambers |
| Date of Hearing: |
17 April 2025 |
| Date of Decision: |
17 April 2025 |
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DECISION
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1. This is an application by the plaintiff (“P”), a licenced money lender under the Money Lenders Ordinance (Cap 163), for an order for sale of an apartment known as “Flat 7B, Mei Foo Sun Chuen, No. 8 Glee Path, Kowloon, Hong Kong” (“the Property”).
2. As had been explained by the First Affirmation of Leung Wai Yee Sally filed on 19 February 2025, P commenced this action based on a mortgage deed (“the Mortgage”) executed by the 1st Defendant (“D1”) in favour of P. D1 & the 2nd Defendant (“D2”) are the registered owners of the Property, with each of them registered as owning half of the Property as a tenant-in-common with the other person after the filing of a Notice of Severance dated 29 July 2024. The execution of the Mortgage post-dated the Notice of Severance. A loan of HK$1.5M (“the Loan”) was advanced by P to D1 but had never been repaid in full. P, as a secured creditor, now seeks to realize its security by selling the Property in the open market.
3. D1 was made bankrupt on 22 October 2024 (HCB6363/2024). The trustees-in-bankruptcy are Mr Fred Lee and Ms Christine Chow (“the Trustees”). Having read the most helpful written submissions of Mr Jack Hui, Counsel for P, I am satisfied D1’s bankruptcy did not have the effect of requiring P to seek leave from a High Court Master as Section 12(2) of the Bankruptcy Ordinance (Cap 6) applied – see, eg, Field Finance Limited v Seck King Chung [2020] HKDC 514 (§§14 to 16, per HHJ Leung).
4. Given the current market conditions in Hong Kong, if P were to sell the Property, the order for sale should of course be made as soon as possible.
5. I have thus considered whether I should dispose of the matter substantively today even though the hearing was only listed for 15 minutes – in my view further delays would be harmful to everyone involved.
6. However, with reluctance, I have come to the conclusion that I must adjourn the matter, for the following reasons: -
(1) D1 filed an acknowledgement of service contesting this action. While at the moment I cannot see how the order for sale can be contested by D1, D1 is entitled to file an affidavit for this purpose, and this has not been done.
(2) The relief sought by P in the originating summons filed on 19 February 2025 is with respect incomplete, and no draft order had been lodged, served, or exhibited to the First Affirmation of Leung Wai Yee Sally filed on 19 February 2025.
(3) No valuation report had ever been exhibited to the First Affirmation of Leung Wai Yee Sally so that this Court cannot be sure what a fair reserve price should be.
(4) No evidence of compliance with Rule 4 of the Partition Rules (Cap 352A) had been produced, and the position of the Director of Lands on this matter is unclear.
(5) No evidence setting out the position of the Trustees had been produced.
7. By reason of the above, I can only make, and I hereby make, the following order:-
(1) P shall, by 4pm on 29 May 2025, file and serve affidavit evidence explaining, if known to P, the positions taken by (a) the Director of Lands; and (b) the Trustees and exhibiting copies of (i) the relevant correspondence; (ii) the valuation report for the Property; and (iii) a proper draft order.
(2) D1 & D2 (collectively, “Ds”) do have leave to file and serve affirmations in opposition, if any, within 28 days thereafter.
(3) P do have leave to file and serve affirmations in reply, if any, within 28 days thereafter.
(4) No further affidavit, except affidavit of service, shall be filed or served without leave of the Court.
(5) This matter be adjourned to substantive hearing before any Judge of the District Court to be fixed, with 2 hours reserved.
(6) Costs of today be in the cause.
(7) There be Certificate for Counsel for today.
(8) P’s solicitors shall draw up, file and serve this order;
8. I do thank Mr Jack Hui for his very able assistance.
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( Kenneth KY Lam )
Deputy District Judge |
Mr Jack Hui, instructed by So, Lung & Associates, for the plaintiff
The 1st defendant appeared in person
The 2nd defendant appeared in person
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