TANG CHOW FAT AND OTHERS v. HOP SHENG TONG

HCMP 6404/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 6404 OF 1999

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J U D G M E N T

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1. There are total of five miscellaneous proceedings. The Plaintiffs are the same in all five proceedings but the Defendants are different. Nevertheless, it would be appropriate to deal these five separate miscellaneous proceedings in one judgment because they have been heard together.

2. All five miscellaneous proceedings deal with property in Lantau Island in D.D. 326 and 328.

3. In relation to MP 6404 of 1999, the documents exhibited to the affirmations reveal that a mortgage had been entered into on or prior to 18 March 1905 because that has been endorsed on the schedule to the then Block Crown Lease.

4. The land was granted by the Crown to the Plaintiffs' grandfather by the name of Tang Man and it would appear that the lots were succeeded to by the father of the Plaintiffs in 1950. In 1981 the Plaintiffs themselves succeeded to their father and became the registered owners of the properties involved in MP 6404, namely lots 543, 799 and 1525. Therefore it is clear that these lands have been in the possession and control of the same family since 1905.

5. According to the Plaintiffs' affirmation, these lots were farmed until 1970 when they were no longer farmed, but it is clear from the affirmation of the first named Plaintiff on behalf of the other Plaintiffs that ever since their father took over these properties in 1950, if not before, no one has claimed under the said mortgage nor has there been any payment or repayment or acknowledgement of the mortgage.

6. In the circumstances, following the decision in Fung Kam Cheung v. Kwok Yiu Wing [1991] 1 HKC 321, it is clear that the mortgage which had been recorded in the schedule to the Block Crown Lease against these lots is incapable of subsistence or is otherwise unenforceable by operation of the Limitation Ordinance Chapter 347 of the Laws of Hong Kong.

7. In relation to MP 6405 of 1999, the facts are similar to those in MP 6404 save that the lots were originally granted to the Plaintiffs' uncle Tang King Tsong and their father succeeded to these lots in 1958. Other than those two slight distinctions in fact, the other factual matters disclosed are similar. Similarly, the lots had been farmed by the Plaintiffs and their father until 1970 and thereafter no longer farmed, but the lands have been under the control and possession of the same family since 1905. Similarly, there has been no repayment or acknowledgement nor any claim made, and therefore I would similarly declare that the mortgage is incapable of subsistence or is otherwise unenforceable.

8. In relation to MP 6406 of 1999, the Defendant in this case is a "tong" called the Hop Sheng Tong. The papers reveal that the Plaintiffs' solicitors have made enquiries with the Tso and Tong Registry which has disclosed that there is another similarly named "tong" in Cheung Chau although the transliteration appears to be a little different. The Plaintiffs' solicitors have written to the managers of this Cheung Chau Tong at the address provided by the Tso and Tong Registry, but no reply has been received. Similarly, no Acknowledgement of Service has been made and in any event, it is by no means clear whether the "tong" in Cheung Chau is the same as the "tong" recorded in the schedule to the Block Crown Lease. Accordingly, the facts being similar to those in MP 6405, I would also declare that the mortgage in respect of the properties in MP 6406 is incapable of subsistence or is otherwise unenforceable.

9. I then come to MP 6407 where the Defendant is a shop as it was so recorded in the endorsement to the Block Crown Lease. The Plaintiffs' solicitors have made enquiries with the Business Registration Office in 1994 which has revealed that there is no business registered with that name.

10. Accordingly, I am also satisfied that service has been duly effected by means of the order for substituted service which Master Cannon has made. The facts are similar to MP 6405, being similarly a lot originally granted to the Plaintiffs' uncle Tang King Tsong and I would similarly declare that this mortgage is also incapable of subsistence or is otherwise unenforceable.

11. The last proceedings MP 6408 also deals with land which had originally been registered in the name of Tang King Tsong, the Plaintiffs' uncle. The facts are similar to those in MP 6405, so similarly I would declare that the mortgage here is also incapable of subsistence or is otherwise unenforceable by operation of the Limitation Ordinance.