Lo Wang Sang v. Chan Kap

HCMP 1569/2017

[2021] HKCFI 623

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1569 OF 2017

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Before: Hon G Lam J in Court

Date of Hearing: 10 March 2021

Date of Judgment: 10 March 2021

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J U D G M E N T

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1.The plaintiff, Mr Lo Wang Sang, is the registered owner of Sections A and B of Lot No 438 and Section B of Lot No 561, both in Demarcation District No 26, Tai Po, New Territories. They will be referred to below as Lots 438A, 438B and 561B respectively. There is in the Land Registry a Prohibitory Order registered by Memorial No TP 103968 dated 23 August 1938 against these three parcels of land as well as an additional piece of land known as Lot No 12 in Demarcation District No 27.

2.According to the Memorial, one Chan Kap of Hip Loong Fish Shop was the plaintiff, while one Lo Ting Yau or Lo Ting and one Lo Ah Mun were defendants, in connection with a debt in Tai Po Small Debts Court Case No 54 of 1938.  Lo Ah Mun was in fact the plaintiff’s father who held, under the alias of Lo Yik Pui, the three parcels of land mentioned above now held by the plaintiff.  Lo Ah Mun passed away on 25 September 1950.

3.The plaintiff now wishes to redevelop Lots 438A and 438B.  Because of a requisition raised by the District Lands Office, he wishes to have the registration of the Prohibitory Order vacated from the Land Registry.  He has accordingly issued the originating summons herein against Chan Kap as the defendant.

4.Lots 438A and 561B have all along been in the possession of the plaintiff’s family.  The plaintiff has lived at the house erected on Lot 438A since he was born in 1946, while Lot 561B had been used for agricultural purposes for a long time.  Lot 438B had at all material times up to 2011 been in the possession of the family of the plaintiff’s uncle, and was assigned to the plaintiff in 2011.  Neither the plaintiff nor his nephew who lived in Lot 438B had ever seen or been contacted by any person claiming to represent the aforementioned Chan Kap.

5.The plaintiff made enquiries in his native village, Wong Yu Tan Village, but no one knew anything about “Chan Kap” or “Hip Loong Fish Shop”.  The plaintiff has not been able to find any information relating to “Chan Kap” from a search at the Births and Deaths Registry.  He found from the Probate Registry only one entry in respect of Chan Kap, namely, a record of letters of administration with the will annexed being granted on 28 June 1993 in respect of the estate of one Chan Kap who died on 18 April 1991.  The plaintiff’s solicitors wrote to the administrator at the address shown in the letters of administration but the letter was returned undelivered and marked “no such person”.  The death certificate of this Chan Kap shows that he was aged 71 when he died, which means that he was only 18 years old in 1938, below the age of majority at the time under the common law: Lee Siu Fong v Wong Wan Leung (HCA 122/2012, 3 January 2017), §44.  It is therefore unlikely that this Chan Kap was the plaintiff that obtained the Prohibitory Order. 

6.The plaintiff herein has not been able to find anything about “Hip Loong Fish Shop” by business registration search.

7.Pursuant to an order for substituted service made by a Master of the High Court, the plaintiff placed an advertisement about these proceedings and Lots 438A, 438B and 561B in two Chinese newspapers circulating in Hong Kong on 3 May 2019 notifying anyone claiming to have an interest in the Prohibitory Order that he or she could apply to be joined as a defendant in these proceedings.  There has been no response to the advertisement.  No one has appeared this morning on behalf of the defendant.

8.Section 17 of the Land Registration Ordinance (Cap 128) provides:

“ Expiry and re-registration

The registration of a judgment, order or lis pendens shall cease to have effect at the end of 5 years from the date of registration, but the judgment, order or lis pendens may be re-registered from time to time and, if so re‑registered, shall have effect for 5 years from the date of re-registration.”

9.It does not appear from the available records from the Land Registry that the Prohibitory Order had been re‑registered after 1938.  Prima facie, therefore, it has ceased to have effect as from 1943.

10.In the circumstances, it is inconceivable that the Prohibitory Order still has any effect or that the defendant or his successors have any interest by way of encumbrance on the land in question.  It is accordingly an appropriate case for the court to exercise its inherent jurisdiction to order the registration of the Prohibitory Order to be vacated: Re Li Fat [2009] 5 HKLRD 259.

Mr Fung Pak Kay, instructed by Dickman L T Chan & Co, for the Plaintiff

The Defendant, unrepresented, did not appear