TANG TSING WAN TSO v. The Personal Representative of TANG TSOI KWAN, deceased

HCMP 3084/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3084 OF 1999

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J U D G M E N T

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1. This is an application for a declaration that two mortgages in respect of Lots Nos 71, 75 and 77, all in D.D. 127 in favour of the Defendant as noted in the Schedule to the Block Crown Lease in 1905, are no longer capable of subsistence or are unenforceable.

2. The Schedule to the Block Crown Lease in 1905 shows that the properties had been mortgaged to a person by the name of Tang Tsoi Kwai by the then Crown Lessee namely, Fung Shui Wan. In January 1910, Fung Shui Wan sold the property to Tang Tsing Wan for a sum of $90. There is no reference in the Conveyance on Sale to any encumbrance. Subsequently, Tang Tsing Wan died and the property was succeeded to by a "Tso" which was set up in his name, i.e. the Tang Tsing Wan Tso. The "Tso" has been in possession of the properties since.

3. When this matter first came up before me for directions, I queried the factual basis of certain factual alternatives which were set out in the 1st affirmation of Mr Tang Kwok-Chu, one of the Managers of the Plaintiff "Tso". Since then, there have been supplemental affirmations which show that the lots were subsequently mortgaged to a Hop Yik Tong for a sizeable amount, and it has been suggested that it might reasonably be inferred from that that the first mortgage had already been released or redeemed. That is not necessarily so, because there is no indication that the Defendant mortgagee was in possession.

4. However, the better evidence, in my view, is the affirmation of another of the Managers who is now 83 years of age who says that the properties had been used by the "Tso" and the family for agricultural purposes and after 1965 for letting to agricultural tenants. It is clear from the affirmations that there have been no demands for repayment and no repayment or acknowledgement has been made by the "Tso" or this family.

5. In the circumstances, I am satisfied that there can be an order that the mortgages in respect of these lots as endorsed in the Schedule to the Block Crown Leases are no longer capable of subsistence or are unenforceable under the Limitation Ordinance, Cap. 347 of the Laws of Hong Kong.