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Bright Empire Enterprises Ltd v Ho Kap Sin And Another

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date29 August 2022
Neutral Citation[2022] HKCFI 2651
Year2021
Judgement NumberHCMP1880/2021
Subject MatterMiscellaneous Proceedings
CourtCourt of First Instance (Hong Kong)
HCMP1880/2021 BRIGHT EMPIRE ENTERPRISES LTD v. HO KAP SIN AND ANOTHER

HCMP 1880/2021

[2022] HKCFI 2651

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1880 OF 2021

______________

IN THE MATTER of Section 19 of the Limitation Ordinance, Cap. 347

and
IN THE MATTER of ALL THAT piece or parcel of ground registered in the Land Registry as Lot No.302 in Demarcation District No.220

and
IN THE MATTER of the Mortgage recorded/registered in the Schedule of Block Government Lease (previously known as Block Crown Lease) dated 27th March 1905 against Lot No.302 in Demarcation District in favour of HO KAP SIN (何甲先) and HO YEUNG FAT (何揚發)

______________

BETWEEN
BRIGHT EMPIRE ENTERPRISES LIMITED （耀堡企業有限公司） Plaintiff
and
HO KAP SIN （何甲先） 1st Defendant
THE PERSONAL REPRESENTATIVE OF HO YEUNG FAT（何揚發）deceased 2nd Defendant

______________

Before: Hon K Yeung J in Chambers

Date of Hearing: 28 June 2022

Dates of Further Submissions by the Plaintiff: 12 July and 8 August 2022

Date of Decision: 29 August 2022

______________

DECISION

______________

1. This is P’s application against D1 and D2 for a declaration that the Mortgage recorded/registered in the Schedule of Block Government Lease of Demarcation District No.220 dated 27th March 1905 (the “Mortgage”) in favour of HO KAP SIN (何甲先) (“D1”) and HO YEUNG FAT (何揚發) (the “Deceased”) for $10 (part) against, touching and concerning ALL THAT piece or parcel of ground registered in the Land Registry as Lot No. 302 in Demarcation District No. 220 (the “Lot”) is incapable of subsistence or taking effect or is otherwise unenforceable by reason of the limitation of action for over 12 years, pursuant to ss19(1) and (2) of the Limitation Ordinance, Cap 347.

Service of the process

2. In respect of D1, pursuant to leave previously obtained, substituted service has been effected. No issue arises from that.

3. In respect of D2:

(a) Land search records show that he passed away some time before March 1981, and that his landed properties have been inherited by two line of successors. Probate search however does not reveal any grant of probate or letter of administration for his estate;

(b) Despite efforts, D2’s successors could not be located;

(c) On 21 January 2022, and by consent, an order was obtained under Order 15 rule 6A(4) for the Official Solicitor to be appointed to represent D2’s estate, but for the limited purpose of accepting service of the Originating Summons only;

(d) The Originating Summons has been validly served upon the Official Solicitor.

The hearing on 28 June 2022

4. The hearing of the Originating Summons was first set down for 15-minute before this Court on 28 June 2022.

5. For the purpose of that hearing, Mr Wong, counsel for P, lodged his written submissions on 23 June 2022. Amongst other matter, Mr Wong therein fairly draws to my attention, relevant to P claim against D2, the case of In re Amirteymour, decd [1979] 1 WLR 63 (CA). That case is referred to in §15/6A/8 of the Hong Kong Civil Procedure 2022, that:

“Appointment of Official Solicitor — The court has power to appoint the Official Solicitor to represent the estate of a deceased person, under para.(4) and this power may be exercised in the first instance to the limited extent of requiring him to accept service of the writ or originating summons. Such a limited appointment of the Official Solicitor as the person to act as defendant to the action lapses as soon as he accepts service of the writ, after which he becomes functus officio, and therefore since there is no one capable of acknowledging service on behalf of the defendant, any judgment entered in default of acknowledgment of service in the action is a nullity and is not enforceable (Re Amirteymour (dec’d) [1979] 1 W.L.R. 63, CA).”

6. At the hearing on 28 June 2022 (no one appeared for either of the two defendants), I raised with Mr Wong a number of issues, which included the lack of any evidence from the documents thus far produced on the date of the Mortgage (and in particular whether the date of 27 March 1905 is the date of the Block Government Lease or that of the Mortgage), why Re Amirteymour can be distinguished on the basis that the present application is one for declaratory relief (as Deputy Judge Seagroatt did in Chan Yu Shan v The Personal Representatives of the Estate of Cheung Ying Ha (deceased) & Anor (unrep., HCMP 2722/2016, 21 June 2017) which Mr Wong relied on), and why the statutory route pursuant to section 12A of the Conveyancing and Property Ordinance Cap 219 was not pursued. In the end, I granted P liberty to file further evidence within 14 days, to be accompanied by Mr Wong’s further written submissions to address the various issued raised, with liberty to apply, with the view of the application being dealt with on the papers.

Clarification of the date

7. On 12 July 2022, the 4th Affirmation of Kwok Sau Kuen was filed. A copy of the entire Block Government Lease has now been filed. The date of 27 March 1905 is that of the Block Government Lease. The date of the Mortgage is not known, but must be prior to 27 March 1905.

8. On that same date, and further on 8 August 2022, Mr Wong filed two sets of further written submissions, contending that Re Amirteymour is...

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