TANG MUK HING v. CHAN KAM HENG AND OTHERS

HCMP 342/2005

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 342 OF 2005

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HCMP 343/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 343 OF 2005

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HCMP 344/2005

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 344 OF 2005

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HCMP 345/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 345 OF 2005

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BETWEEN

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HCMP 346/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 346 OF 2005

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J U D G M E N T

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1. This is the trial of five Miscellaneous Proceedings before me.  They all relate to various lots in Demarcation District 328 in Lantau Island, New Territories.  HCMP 342/2005 relates to lot no. 595.  HCMP 343/2005 relates to lot nos. 876, 1378, 1391 and 1392.  HCMP 344/2005 relates to lot no. 982.  HCMP 345/2005 relates to lot nos. 995 and 998.  And HCMP 346/2005 relates to lot nos. 1357 and 1362.

2. As recorded in the Block Crown Lease all the said lots were mortgaged to various mortgagees as set out in the evidence before me. 

3. The plaintiff became the owner of all of the said lots either by assignment, succession or under a deed of gift.  In respect of lot no. 595, the plaintiff became the owner by assignment in 1956.  In respect of lot nos. 876, 1378, 1391, 1392, 982, 995 and 998, the plaintiff became the owner by way of a deed of gift in 1962.  In respect of lot no. 1357, the plaintiff became the owner by succession in 1950.  In respect of lot no. 1362, the plaintiff became the owner by assignment in 1981. 

4. Ever since the plaintiff became the owner of the lots the plaintiff and his family have been in possession of the lots.  The evidence shows that at all material times the relevant mortgagees have not been in possession of the lots.  They have never taken any action to enforce the mortgages. 

5. The service of these proceedings has been duly effected under the order for substituted service made in these proceedings. 

6. I have been referred to the case of Li Tai, Administratrix of the Estate of Chan Muk Hoi deceased v Chan Fuk Un Shop HCMP 2636 of 1998, 17 June 1999, a decision of Yuen J (as she then was) and also another decision of Yuen J (as she then was) in Tang Chow Fat and others and Chan Shan and another,HCMP 6404/1999, 23 February 2000.  Yuen J made a declaration in those cases that the mortgage was incapable of subsistence or was otherwise unenforceable by the operation of the Limitation Ordinance. 

7. On the evidence before me I am satisfied that the mortgages in respect of each of the Miscellaneous Proceedings are incapable of subsistence or otherwise unenforceable.  In the circumstances, I make a declaration in each of the proceedings that the mortgage is incapable of subsistence or is otherwise unenforceable.  I make no order as to costs in respect of each of the proceedings.