DOUGLAS LAM HO TAK v. LAM SHUN

HEADNOTE

NEW TERRITORIES LAND – nature and effect of prohibitory order – Land Registration Ordinance sections 17 & 19.

IN THE DISTRICT COURT OF HONG KONG

CIVIL JURISDICTION

Miscellaneous Proceedings

No. 1273 OF 1993

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JUDGMENT

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1.  The plaintiff (“Mr. Lam”) is the owner of some land (Lot No. 35 in Demarcation District No.111) in the New Territories, which he has used as a pig farm for about 20 years. By an originating summons dated the 9th December 1993 he seeks orders that a Prohibitory Order registered against that land has ceased to have any effect and should be vacated from the register.

2.  When the matter first came before me counsel was unable to explain the nature or origin of a prohibitory order, but did refer me to a judgment of Godfrey J (as he then was) in Fung Kwong Tai Tso v. Kwok Yiu Wing (M.P. No. 1494 of 1990; 3rd January 1991). The learned judge was similarly unable to throw any light on the nature or effect of such an order, but he was able to decide that its continued presence on the register was not a blot on the title to the Land. He did so when dealing with a vendor-and-purchaser summons. In the case before me, the plaintiff cannot invoke the provisions of section 12 of the Conveyancing and Property Ordinance (Cap.219) because there is no contract for the sale of the land. I understand that negotiations for the sale of the land came to a halt because the would-be purchaser cried off on becoming aware of the entry on the register relating to the Prohibitory Order. The hearing of the originating summons was adjourned for further enquiries and to enable the plaintiff to comply with further directions as to service thereof.

3.  The plaintiff purchased the land in 1973. According to the memorial the Order in question was registered on the 19th June 1937, pursuant to an “Order of Court”. The parties were stated to be “Lam Shun of Yuen Long, plaintiff” and “Cheung Kam Kiu of Sheung Tse, guarantor” and there is a reference to “S.D.C. Case No. 40/36.” This must, in my view, be a reference to an adjudication by a magistrate exercising the former civil jurisdiction of the Small Debt Court. (See section 58 of New Territories Regulation Ordinance (No. 34 of 1910).) Cheung Kam Kiu seems to have been the owner of the land in the thirties. There are other memorials relating to mortgages effected by Cheung Kam Kiu including one which suggests that he transferred the land to Ma Moo Yin, one of the mortgagees, in 1934. (See Exhibit KMT-8). On the basis of the information before me, it is difficult to see what, if any, interest in the land Cheung Kam Kiu had in 1937. However, I think I must assume that he was the owner of the land at that time, because there would be no other basis for the small Debt Court making the prohibitory order.

4.  According to my own and counsel’s researches, a prohibitory order was a form of attachment of property in execution of a judgment for a sum of money. (See Lam Kwan Sze v. Shun Hong Tea Merchants and anor [1962] HKLR 294; Dao Heng Bank Ltd v. A.G. [1969] HKLR 602) Section 401 (later Ord. 17 r. 32) of the Code of Civil Procedure (Ordinance No.3 of 1901) provided as follows:–

5.  “Where the property consists of immovable property … the attachment shall be made by a written order prohibiting the judgment debtor from alienating the property by sale, gift or in any other way, and all other persons from receiving the same by purchase, gift or in any other way.”

6.  Section 407 (Ord.17 r. 38) provided that any alienation of the property without leave of the court should be “null and void.” A prohibitory order is neither a judgment nor a lis pendens. It is perhaps, akin to a charging order over land imposed by virtue of section 20 of the Supreme Court Ordinance or section 52A of the District Court Ordinance, although the expression “null and void” might suggest that it has a far greater impact on title to land. But, whatever may be its true nature or effect, it seems to me that section 17 of the Land Registration Ordinance would have the effect of extending the re-registration requirements of the early 19th century Judgments Acts, which only applied to judgments and lites pendentes, to prohibitory orders. In the absence of re-registration in this case, the order registered in 1937 has, in my view, long ceased to have effect.

7.  For these reasons, I grant a declaration to that effect pursuant to my powers under section 52 of the District Court Ordinance. With regret I refuse the application for an order vacating the entry on the register since it does not fall within section 19 of the Land Registration Ordinance. I can only hope that registration of my order will have the effect of removing any stains on the title which may be thought to be present because of these old entries.