Chan Chi Ming and Another v. Man Tsong Shau

HCMP006958/1999

HCMP6958/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.6958 OF 1999

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Coram: Hon Tong J in Court

Date of Hearing: 17 November 2000

Date of Judgment: 17 November 2000

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J U D G M E N T

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1. This is an application for declarations by originating summons. The defendant was absent at the hearing and in fact, had never made any appearance. The land lots in question were Nos.69, 200, 519, 573, 729, 731, 865, 919, 1028, 1061, 1138, 1481, 1615 and 1124 in Lantau Island D.D.305. The plaintiff obtained the lots by virtue of section 17 of the New Territories Ordinance, Cap.97 and became the registered owner.

2. However, the lots were found to be encumbered by a mortgage registered in favour of one Man Tsong Shau, who was the named defendant in the present proceedings. The mortgage seemed to have been created in 1905. However, apart from the fact that the Land Registry had a record that "As stated in Block Government Lease, the lot is subject to mortgage in favour of Man Tsong Shau", there was no further particulars about this mortgage. Upon enquiry by the plaintiffs' solicitors, the Land Registry, by a letter dated 17 February 2000, replied that :

"According to the Block Government Lease of D.D.305, the captioned lots are subject to Mortgage in favour of Man Tsong Shau. Further information concerning the above Mortgage is not available in this Registry."

3. The plaintiffs' solicitors had also written to the Immigration Department in an attempt to trace the said defendant. The Immigration Department wrote back to the solicitors on 14 January 2000, stating that :

"... a search of our records has been made but no record in respect of the abovenamed person can be traced."

4. Pursuant to Master Ho's order dated 14 April 2000, substituted service of the summons on the defendant was effected by way of newspaper advertisement. At one stage, the summons was re-amended by which two paragraphs were added in compliance with the judgment of Godfrey J (as he then was) in Fung Kam Cheung & Ors v. Kwok Yiu Wing & Ors [1991] 1 HKC 321.

5. In the re-amended originating summons, the plaintiff asked for the following orders :

"1. A declaration that the Defendant's right to sue for the sum or sums of money secured by a Block Crown Lease Mortgage in the property known as Lot Nos.69, 200, 519, 573, 729, 731, 865, 919, 1028, 1061, 1138, 1481, 1615 and 1124 in Lantau Island Demarcation District No.305. New Territories, Hong Kong have been barred by the Limitation Ordinance, Cap.347.

2. A declaration that the Defendant's right to bring foreclosure proceedings in respect of the said property has been barred by the Limitation Ordinance, Cap.347.

3. A declaration that the said property is now free and discharged from the said Mortgage;

4. A declaration that the Plaintiff holds their interest in the said property free from the said Mortgage;

5. A declaration that the said Mortgage be discharged and/or declared null and void;

6. A declaration that the said Mortgage is no longer subsisting or capable of taking effect."

6. Having heard counsel for the plaintiff and having considered the authorities¹, I found that the declarations sought ought to be granted. However, I could not say, based on the material before this court, that the said mortgage should be declared null and void. There was no basis to say that it was null and void ab initio.

7. Hence, I shall grant the orders in terms of the re-amended summons, except the reference to the mortgage being null and void. Further, having heard counsel, it is ordered that there be no order as to costs for the whole proceedings.

Representation:

Mr William M.F. Wong, instructed by Messrs Kenneth C.C. Man & Co., for the Plaintiffs

Defendant, Man Tsong-shau (Absent)

1 Fung Kam Cheung & Ors v. Kwok Yiu Wing & Ors [1991] 1 HKC 321; and Cheng Tin Loi & Li Yung Hing & Anor [1999] 3 HKC 699