LEE SHEK MUI AND OTHERS v. CHEUNG FUK SAN

HCMP 1771/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1771 OF 1999

____________

____________

_______________

D E C I S I O N

_______________

1. This is an application by the Plaintiffs for a declaration that a mortgage made in 1907 is incapable of subsistence or is unenforceable by operation of the Limitation Ordinance Chapter 347 of the Laws of Hong Kong.

2. The evidence exhibited to the various affirmations before me shows that the relevant mortgage was made in November 1907 between the Crown lessee being a tso ("祖") and a person known as Cheung Fuk San (張福新) as mortgagee. The consideration was $1,000 which had been paid to the tso by the mortgagee, and the interest is said to be yearly interest of 8 sheks of grain payable by instalment of 4 sheks at each crop. The mortgage loan was due to be repaid in one year's time.

3. In 1911, Lot 465 was subdivided into amongst others Section J, and by 1911, the property had become vested in a person by the name of Lee Mou Lam. Soon after that, it became vested in Lee Mou Lam's tso with three persons as trustees. In 1940, a person by the name of Lee Kwai Leung succeeded to Section J. And in 1961, Lee Kwai Leung's son Lee Wong Shing otherwise known as Lee Fong Shing became owner of Section J.

4. The first present Plaintiff Lee Shek Mui is the widow and the administratrix of the estate of Lee Fong Shing, Letters of Administration having been obtained in 1992. The rest of the Plaintiffs are the sons of Lee Fong Shing by the 1st Plaintiff.

5. The evidence before me shows quite clearly that the widow has lived at the property since 1968 and she deposes that she has never had any demand for payment of interest or principal under the mortgage since that time.

6. On the last occasion when this matter came before me, I queried the widow's assertion that she has lived at the property since 1968 by reason of the fact that the Letters of Administration show that Lee Fong Shing had died "domiciled in the United Kingdom". However, there is now a supplemental affirmation by the widow to the effect that in fact they were living in Hong Kong, but that Lee Fong Shing travelled from time to time to England, and it was on one of his trips to England that he died there but he was not domiciled there.

7. In my view, the evidence shows quite clearly that the Lee family had been living in the property for quite some time. There are a number of bills such as electricity bills, water bills, sewage charge bills and telephone bills showing that they had been in possession of that property and the widow has deposed that there has never been any claim or demand for the payment of either principal or interest under the mortgage.

8. In the circumstances, I am prepared to make a declaration that the mortgage made in favour of the Defendant dated 4th November 1907 and registered at the Tai Po New Territories Land Registry by Memorial No. 5013 originally in respect of all that piece and parcel of ground situate and being at Tai Po and registered at the Tai Po New Territories Land Registry as Lot No. 465 in Demarcation District No. 26, Tai Po, New Territories, Hong Kong as registered against Section J of Lot No. 465 is incapable of subsistence or is unenforceable by operation of the Limitation Ordinance Chapter 347 of the Laws of Hong Kong. I have amended the draft order to make it quite clear that in so far as the Plaintiffs have no interest in the rest of Lot No. 465, this declaration has no effect in relation to the rest of Lot No. 465.