WONG KOON CHUNG PAUL v. CHUNG WAN SUM

HCMP 712/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANCEOUS PROCEEDINGS NO. 712 OF 1999

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J U D G M E N T

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1. This is an application by way of Originating Summons for a declaration that a mortgage made in favour of the Defendant under the Block Crown Lease in March 1905 in respect of the land known as Section A of Lot No. 873 in Demarcation District No. 10, Tai Po, New Territories, Hong Kong is incapable of subsistence or is unenforceable by operation of the Limitation Ordinance Cap. 347 of the Laws of Hong Kong.

2. The evidence disclosed in the affirmation shows that the mortgage was referred to in the Block Crown Lease in 1905, in which the leasee was Chung Kat Un. In 1973, Chung Kat Un's interest in the property was succeeded to by Chung Yat Sau. In 1993 Chung Yat Sau executed a Deed Poll whereby Lot No. 873 was divided into Sections A, B, C, D, E and the Remaining Portion. The present proceedings are concerned with Section A only.

3. In 1993, Chung Yat Sau assigned Section A to Chung Kwok Fu and in 1998, Chung Kwok Fu assigned Section A to the present Plaintiff. So it would appear that since 1973 the property had been in the possession of Chung Yat Sau until 1993, and it had been in the possession of Chung Kwok Fu from 1993 until 1998, when it was assigned to the Plaintiff.

4. In relation to the mortgage, there is a statutory declaration of Chung Yat Sau made in April 2000 in which he said that after he succeeded to the land of Chung Kat Un, he, Chung Yat Sau had never paid any principal or interest under the mortgage to the mortgagee, nor had he ever been asked by anyone to do so, nor had he ever made any acknowledgement or made any payment in relation to the said mortgage.

5. Since he became the beneficial and registered owner of the land in September 1973, he, Chung Yat Sau had been in exclusive possession of the land without any interference by or complaints from the mortgagee or anyone for or on the mortgagee's behalf, nor had he ever received any demand of whatsoever nature from the mortgagee or anyone for or on his behalf.

6. Mr Wong, the present Plaintiff, has also deposed on affirmation to a similar fact and he has also said that he had made enquiries with Chung Kwok Fu, his immediate predecessor in title, and the evidence was that similarly Mr Chung Kwok Fu had not made any repayment or received any demand nor had made any acknowledgement of the said mortgage.

7. In the circumstances set out above, I am satisfied that this is a case in which it is proper for the court to make a declaration that the mortgage made in favour of the Defendant dated 27 March 1905 under the Block Crown Lease in respect of that piece or parcel of ground situate and being at Lot No. 873 in Demarcation District No. 10, insofar as it applies to Section A, is incapable of subsistence or is unenforceable by operation of the Limitation Ordinance.