CHAN CHUN WAI VICTOR v. CHAN WING FOOK AND OTHERS

HCMP 2018/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2018 OF 1998

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J U D G M E N T

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1. This is an application by the Plaintiff which is a Tso for a declaration that a mortgage set out in the Block Crown Lease against the land registered in Yuen Long New Territories Land Registry as Lot No. 4787 in Demarcation District No. 116 in favour of Chan Hun (or Kun or Hin) Pong Tso alias Chan Hun Pong Tso with Chan Wing Fook, Chan Chi Chan and Chan Yau Tim as Managers be declared unenforceable by reason that the mortgage is statute-barred.

2. The evidence discloses that the land has been in the possession of the Plaintiff Tso since at least 1947 when there was a division of property from the original Block Crown lessee, another Mr. Chan. The mortgage cannot be found, but it has been recorded in the schedule to the Block Crown Lease in favour of Chan Hun Pong Tso (together with another Lot). There has been an acknowledgment of service filed by the present Managers of that Tso stating their intent to contest these proceedings. However, after that acknowledgment of service was filed, no affirmation has been filed by the Defendants, nor have they appeared in court today, nor on a previous hearing.

3. The mortgage in question was referred to in the Block Crown Lease, but there is no other evidence relating to that mortgage or of any action taken to enforce the same. The property has been in the possession of the Plaintiff Tso, as I have said, for more than 50 years and apparently, in possession of another ancestor for something like 90 years. There is no evidence at all that the mortgagee Tso or anyone representing it has ever taken any steps to enforce the same.

4. In the result, I feel confident that I can declare that pursuant to the formulation suggested by Mr. Justice Godfrey, in Fung Kam Cheung v. Kwok Yiu Wing [1991] 1 HKC 321 at p. 324 the mortgage in question is no longer subsisting or capable of taking effect and has been statute-barred. There shall be no order as to costs.