Fan Chi Ping v. The Estate of Lei Wing Long and Another

HCA 913/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 913 OF 2011

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Before: Deputy High Court Judge Le Pichon in Court

Date of Hearing: 31 July 2012

Date of Judgment: 31 July 2012

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JUDGMENT

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1.By this action, the plaintiff seeks various declarations and other relief against the first defendant being the estate of Lei Wing Long also known as Lei Weng Long and the second defendant, namely, Fan Sam Wai Tong with its managers Fan Muk Kwai and Fan Kum Hay.

2.The facts are straightforward. The plaintiff was born in 1945. At the time of his birth, his parents were living in Tung Chung and cultivated plots of land there including Lots 861 and 866 in Demarcation District 3, Tung Chung, New Territories.

3.In fact, his grandfather had been in possession of the land since the late 19^th century.  The year is not known.  But he had in his possession a mortgage in Chinese that is dated 1883 which was made between the registered owner of the land, namely, the 1^st Defendant, and Fan Ah Chiu.

4.In any event, his grandfather took possession of the land which, together with other property, passed to his father on his grandfather's death.

5.From 1945 until he left Hong Kong to be a seaman in 1967, the Plaintiff lived with his parents who cultivated the land.  He returned to Hong Kong in 1972 before his father passed away.  And shortly after his return, his father died and he inherited the land which he then asked his mother to cultivate on his behalf as he was returning to his work as a seaman.

6.He eventually came back to Hong Kong in 1984 and continued to cultivate the land to the exclusion of others until the land was resumed by Government in about 1994.

7.Clearly, the Plaintiff has been in uninterrupted possession of the land for more than 20 years prior to the date of the resumption, and I am satisfied that he has been occupying the land for a sufficient period of time to support a good possessory title.

8.Apart from the Chinese mortgage, the land search revealed that the land was also mortgaged to the 2^nd Defendant.  The date of that mortgage is not entirely clear although it recorded in the Block Crown Lease and the indenture appears to bear the date '1904'.

9.The mortgagees have never asked for any payment in respect of their mortgages during the time that the Plaintiff has been in possession of the land.  The managers of the 2^nd Defendant have been served with these proceedings but they have neither appeared nor filed an acknowledgement of service.

10.When they were asked to produce evidence of the mortgage, their response was that they did not have any mortgage deed or document and could not provide any relevant information.

11.In the above circumstances, I am more than satisfied that this is an appropriate case to grant the Plaintiff the relief he seeks. 

12.I declare that the Plaintiff has acquired a good possessory title to the land by virtue of section 7 of the Limitation Ordinance. I also declare that the mortgage of the 2^nd Defendant is incapable of subsistence or is otherwise unenforceable by operation of the Limitation Ordinance.

Mr. Chan Hei Ching instructed by Cheng & Wong for the Plaintiff

The 1^st and 2^nd Defendants, in person, absent