WU CHO YEUNG AND OTHERS v. 楊木勝

HCMP1461/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1461 OF 2011

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BETWEEN

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JUDGMENT

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1.  These proceedings concern the property known as All That piece or parcel of land registered in the Land Registry as Lot No. 1207 in Demarcation District No. 17 (“the Property”).

2.  According to the Block Government Lease there appears to be an encumbrance registered against the Property, namely a mortgage between the defendant as mortgagee on the one part, and Lam Ying Pong, Lam Yat Tai and Lam Kam Tai, the predecessor in title of the Property, as mortgagor on the other part. The mortgage affecting the Property is for a sum of $8.00 and is not shown on the documents to have been discharged.

3.  The Owner Particular section of the land search records in respect of the Property showed Lam Ying Pong, Lam Yat Tai and Lam Kam Tai to be the first owners under the Block Government Lease. Their legal interest in the Property was ultimately passed on to the plaintiffs in manner as follows:

(a) on 9 December 1958 Wu Fat and Wu Sun Fat became the registered owner of the Property in equal shares by way of Succession to Property under Memorial TP 138791 registered in the Land Registry;

(b) on 30 January 1981 Wu Cho Yeung, Wu Chow On, Wu Cho Ping, Wu Siu Man and Wu Kwok Keung succeeded the interest of their father Wu Fat, being the registered owner of ½ share of the Property, by way of Succession to Property under Memorial No. TP 202097 registered in the Land Registry; and

(c) on 26 February 1992 Wu Cho Chuen also known as Cho Chuen Wu, Wu Cho Shing also known as Cho Shing Wu, and Wu Kwok Man also known as Kwok Man Wu acquired the interest of Wu Sun Fat, being the registered owner of the remaining ½ share of the Property, by way of Gift under Memorial No. TP 384448 registered in the Land Registry.

4.  Given the circumstances stated above, the plaintiffs are the registered owners of the Property.

5.  The plaintiffs now seek an order to declare the Property to be free from the mortgage which was made in or before 1905 since the Block Government Lease was dated 27 March 1905.

6.  The defendant being the mortgagee and therefore the encumbrancer in respect of the mortgage, on the evidence before the court, cannot now be found.

7.  Steps taken by the plaintiffs’ solicitors to seek out information relating to the defendant from searches attempted at the Birth and Death Registry as well as the Probate Registry have led nowhere and no records could be found of the defendant.

8.  I am therefore satisfied that the provisions of section 12A of the Conveyancing and Property Ordinance, Cap 219 apply on the evidence before this court.

9.  In the circumstances I am of the view that this is a proper case for directing or allowing payment into court of a sum of money sufficient to redeem the encumbrance.

10.  The plaintiffs are prepared to pay into court the sum of $179.20 which is calculated on the basis of interest upon the capital amount of $8.00 at 20% per annum for 107 years up to 27 March 2012.

11.  The rate of interest at 20% per annum is, in my view, a proper rate to be adopted. A similar rate was also adopted by Deputy Judge Lam (as he then was) in the case of Man Chi Kan v Man Tsak Lun [2003] 2 HKLRD 489.

12.  In the circumstances I am satisfied that the sum of $179.20 should be sufficient to redeem the mortgage and any interest thereon.

13.  Up to this stage of the proceedings needless to say the defendant has not appeared nor has anyone else come forward to represent the interest of the defendant. In this respect, I was told by the solicitor appearing for the plaintiffs that the Originating Summons had been served simply by posting a copy of it on the Property.

14.  The steps so far taken in the attempts to locate the defendant are limited to the attempted searches made at the Birth and Death Registry and the Probate Registry.

15.  In my view further steps ought to be taken with a view to ascertaining whether there may be some other persons (other than the defendant himself) who may have an interest or entitlement derived from the defendant particularly if payment into court is to be made for the purpose of redeeming the mortgage as well as the interest thereon.

16.  In this respect, the approach adopted by Deputy Judge L. Chan and the orders made by him In the matter of an application by Light Time Investments Limited (HCMP326, 328, 330–347/2010) commends themselves to me and I would be prepared to adopt that same approach.

17.  Accordingly, I make the following orders:

(1) pursuant to section 12A(1) of the Conveyancing and Property Ordinance Cap 219, the plaintiffs do make payment of the sum of $179.20 into court to redeem the mortgage registered against Lot No. 1207 in Demarcation District No. 17 and any interest thereon;

(2) within 7 days after the said payment into court, the plaintiffs do advertise in a widely circulated local Chinese newspaper and a widely circulated local English newspaper a notice making known the aforesaid Order and the fact that payment has been made into court pursuant to such Order with full particulars of the land, the mortgage and the names of the mortgagee and mortgagor and further stating that any person who has any interest or entitlement in or derived from the mortgage and in the payment into court aforesaid may apply within 14 days to be joined as a respondent to these proceedings; and

(3) there be a further order that the plaintiffs may, after a lapse of no less than 21 days from the publication of the advertisement, make a paper application pursuant to section 12A(2) of the Conveyancing and Property Ordinance for a declaration that the said lot be free from the mortgage or encumbrance.

18.  There will be no order as to costs.