Wan Koon Sau and Another v. Lo Tam Shing and Others

HCMP 1956/2022

[2023] HKCFI 3048

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1956 OF 2022

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REASONS FOR DECISION

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A.  INTRODUCTION

1.The 1^st and 2^nd plaintiffs are respectively the registered owner of Lot No 1117A and Lot No 1117RP, both in Demarcation District No 11, Tai Po, New Territories (the “Properties”). The 2^nd plaintiff is the son of the 1^st plaintiff.

2.The Properties were previously Lot No 1117 in Demarcation District No 11, Tai Po, New Territories (“Lot 1117”) before it was divided by virtue of a Deed Poll dated 17 December 2020.

3.There is in the Land Registry a Prohibitory Order registered by Memorial No 73914 dated 20 December 1929 against various properties including Lot 1117 (the “Prohibitory Order”).

4.In these proceedings, the plaintiffs apply, inter alia, to vacate the registration of the Prohibitory Order at the Land Registry.

5.At the hearing of the application on 14 September 2023, I made an order that the registration of the Prohibitory Order with the Land Registry, in respect of the Properties, be vacated.

6.Reasons for my decision were reserved, which I now give.

B.  ATTEMPTS TO LOCATE THE DEFENDANTS AND SUBSTITUTED SERVICE

7.The 1^st plaintiff was born in Nam Hang Village (where Lot 1117 is situated) and has lived there all his life.

8.Over the years, the 1^st plaintiff has never seen, met, or contacted any person representing or claiming to represent the defendants (assuming they were adults when the Prohibitory Order was created, they would have been over 112 years old by now), or any person interested in the Prohibitory Order.  He also does not know of anyone who may have any knowledge about the defendants.

9.The plaintiffs had made various attempts to locate the defendants or other persons who might have an interest in the Prohibitory Order, or obtain further information regarding the Prohibitory Order, but to no avail.

10.Pursuant to the order for substituted service made by Master Matthew Leung dated 7 December 2022, the plaintiffs placed an advertisement about these proceedings in a Chinese newspaper published and widely circulating in Hong Kong, namely Sing Pao Daily News, on 20 April 2023, 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.

11.There has been no response to the advertisement. No one has appeared on behalf of the defendants.

C.  DISCUSSION

12.A prohibitory order was a form of attachment of property in execution of a judgment for a sum of money.  It was akin to a charging order over land: Douglas Lam Ho Tak v Lam Shun, DCMP 1273/1993 (unrep, 14/03/1994) per HH Judge Downey.

13.Section 17 of the Land Registration Ordinance, Cap 128 (“LRO”) provides that:

“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.”

14.Prohibitory orders are also subject to the re-registration requirements under section 17 of the LRO: Douglas Lam Ho Tak (Supra) at page 4.

15.It does not appear from the available records from the Land Registry that the Prohibitory Order has been re-registered after 1929.  Prima facie, it has ceased to have effect as from 1934.

16.In the circumstances, this court followed the below precedents and saw fit to exercise its inherent jurisdiction to order the registration of the Prohibitory Order to be vacated:

(1)  In Re Li Fat [2009] 5 HKLRD 259 (concerning an application to discharge and vacate a prohibitory order created in 1918 which had not been re-registered), Carlye Chu J (as Chu VP then was) at §§9-12 held that:

“9. The proper basis for the application should have been s.17 of the Land Registration Ordinance…

10. Alternatively, the applicant could have relied on the inherent jurisdiction of the court to vacate a registration.

11. Given that the Prohibitory Order was registered in 1918 and there is no record of any re-registration thereafter, the Prohibitory Order has since 1923 ceased to have any effect. As such, its registration ought to be vacated.

12. Although the present application was incorrectly brought under s.19 of Land Registration Ordinance, in the interest of costs and time saving, and considering that no prejudice would be occasioned to any third party, I will exercise the inherent jurisdiction of the Court and order that the registration of the Prohibitory Order be vacated.  There is no order as to costs.”

(2)  Similarly, in Lo Wang Sang v Chan Kap [2021] HKCFI 623 (concerning an application to vacate a prohibitory order created in 1938 which had not been re-registered), Godfrey Lam J (as he then was) held at §§9-10 that:

“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.”

D.  CONCLUSION

17.For the reasons set out above, I made the order for the vacation of the registration of the Prohibitory Order in respect of the Properties, with no order as to costs.

Mr Jay Koon, instructed by Messrs Dickman L T Chan & Co, for the 1^st and 2^nd plaintiffs

The defendants were not represented and did not appear