WONG HING LUNG AND OTHERS v. WONG IU FUNG

HCMP 3776/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3776 of 1999

____________

_______________

J U D G M E N T

_______________

1. This is an application by an Originating Summons for a declaration that a mortgage over certain pieces of land is incapable of subsistence or taking effect or is otherwise unenforceable.

2. These proceedings were first issued in 1999; it is now more than 1 1/2 years since the issue of the proceedings. Since the issue of the proceedings, the Originating Summons has had to be amended twice, on both occasions after queries made by the Court. There has also been a number of supplemental affirmations to deal with those queries.

3. I would note that in applications such as these where the defendant is absent, it is important that those representing the plaintiff should put the papers in order before making application to the Court. In this case, for example, there were errors in the affirmations when compared with the exhibits. These were important errors because they dealt with lot numbers and therefore the substance of the property the subject matter of the proceedings.

4. It is regrettable that it has taken 1 1/2 years since the issue of proceedings before the substantive hearing could be held. The time that would be taken for an application such as this would be greatly reduced if those preparing the papers took care to ensure that affirmations are accurate and properly supported by relevant documentary evidence, such as Land Office search records.

5. I can now turn to the substance of the applications.

6. The application as now re-amended is in relation to Lots No. 2445 section B and the Remaining Portion, 2437, 2439, 2447 and 2470 Remaining Portion. The documents exhibited to the affirmation show as follows.

7. In 1915, all 5 lots, at that time undivided, were sold to Wong Yut Tsin Tso. This was done with a mortgage endorsed in the Block Crown Lease which was made in 1905. The mortgagees were said to be Wong Iu Fung and Wong Shii Heung.

8. In 1961, section A of Lot No. 2470 was surrendered to the government, as well as section A of Lot 2445.

9. Subsequently in 1998, section B of Lot No. 2445 was given by the Tso to the 1st Plaintiff by way of deed of gift. Other than those 2 surrendered properties, all these properties have remained in the possession of the Tso and the 1st Plaintiff. This has been referred to in the affirmation of the manager of the Tso who has deposed to the fact that all these lots have been used by the Tso as agricultural land without any disturbance or demand from the mortgagees or their personal representatives or agents.

10. In view of the fact that this land has been in the Tso's possession for such a long period of time, I am satisfied that applying the ratio first set out in Fung Kam Cheung v Kwok Yiu Wing [1991] 1 HKC 321, it could be reasonably inferred that the mortgage has been discharged or that the mortgagor owners were otherwise free to deal with the property.

11. Accordingly, I am prepared to declare that the mortgage dated 24 January 1905 and recorded or registered in the schedule of Block Crown Lease as Lot Nos. 2445, 2437, 2439, 2447 and 2470, all in DD No. 249 in favour of Wong Iu Fung and Wong Shii Heung touching and concerning all those pieces of ground registered in the Yuen Long New Territories Land Registry as Lot No.2445 now respectively known as 2445A, 2445B and 2445RP, 2437, 2439, 2447 and 2470 now known as 2470A and 2470RP, all in DD 129 is incapable of subsistence or taking effect or is otherwise unenforceable.