CHENG TIN LOI AND ANOTHER v. LI YUNG HING AND ANOTHER

HCMP 1892/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1892 OF 1998

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J U D G M E N T

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1. This is an application by the Plaintiffs for a declaration that the mortgage of the Defendant dated 27th March 1905 in respect of the pieces of property known as Lots No. 927 Section A and No. 927 Remaining Portion, both in Demarcation District No. 165 in the New Territories, Hong Kong is incapable of subsistence or is unenforceable by operation of the Limitation Ordinance, Chapter 347. The declaration follows the terms of the suggested order in Fung Kam Cheung & Others v. Kwok Yiu Wing and Others [1991] 1HKC 321.

2. The facts of this case are that in 1905, the Block Crown Lease disclosed that the Defendants were the mortgagees in possession of the relevant properties. The evidence now reveals, however, that since 1980 at least, there had been no demand for repayment, that the property was in the possession of the registered owners and that it would appear that up to 1980, the property was in the possession of the same family. In the interim, it would appear that the property had been mortgaged to another person and subsequently redeemed. That could hardly be so if the property had been in the possession of the previous mortgagees, that is the Defendants. Therefore, it may be reasonably inferred that the mortgage in question had been discharged or that the owners were otherwise free to deal with the properties.

3. In the circumstances, I take the view that it is quite clear from the evidence that the mortgage made in favour of the Defendants in 1905 as referred to in the Block Crown Lease is incapable of subsistence or is otherwise unenforceable by operation of the Limitation Ordinance, Chapter 347. Accordingly, I would grant an order in terms of paragraph one of the Originating Summons.