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B HCMP 1242/2025 B
[2025] HKCFI 4760
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IN THE HIGH COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E COURT OF FIRST INSTANCE E
MISCELLANEOUS PROCEEDINGS NO 1242 OF 2025
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IN THE MATTER of an application by
INSTINCT INVESTMENT LIMITED
H (智力投資有限公司) and TO WAI H
NAM (杜偉南) for a declaration under
I section 12A of the Conveyancing and I
Property Ordinance, Cap. 219
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and
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IN THE MATTER OF all those pieces
or parcels of ground registered in the
L Land Registry as The Remaining L
Portion of Section D of Lot No. 606 in
M D.D.209 and The Remaining Portion M
of Lot. 620 in D.D.209, Tai Po, New
N Territories, Hong Kong (“the N
Property”)
O and O
P IN THE MATTER OF a Mortgage P
recorded in the Block Crown Lease
dated 27th March 1905 made between
Q Q
HO TAI WA ( 何 泰 華 ) as the
Mortgagor of the one part and HO TAI
R R
LUNG (何泰隆) as the Mortgagee of
the other part (“the Mortgage”)
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Before: Hon Eugene Fung J in Chambers (Open to Public)
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Date of Hearing: 30 September 2025
D Date of Decision: 30 September 2025 D
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DECISION
F __________________ F
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1. By an ex parte originating summons dated 25 July 2025, the
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Applicants apply under section 12A of the Conveyancing and Property
I Ordinance (Cap 219) (“CPO”) for an order that the Property be free from I
the encumbrance constituted by the Mortgage upon the Applicants’
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payment into court of such sum of money as the court deems fit.
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2. It is well-established that there are three stages to an
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application under section 12A of the CPO. This hearing is only concerned
M with the first stage of the section 12A application. M
N 3. At the first stage, the applicant should establish the matters N
under section 12A(1), and obtain the direction or approval of the court to
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make a payment into court sufficient to redeem the encumbrance and any
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interest thereon. See Re Cheung Chi Wang [2002] 1 HKLRD 409 at [10].
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4. Section 12A(1) of the CPO provides that “[where] land is
R subject to any encumbrance, whether immediately realizable or payable or R
not, and the encumbrancer is out of the jurisdiction, cannot be found or is
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unknown, or if it is uncertain who the encumbrancer is, the court may, if it
T thinks fit, on the application of the party for the time being entitled to T
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B redeem the encumbrance, direct or allow payment into court of a sum of B
money sufficient to redeem the encumbrance and any interest thereon”.
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D 5. Having considered the evidence before the court, I am D
satisfied that the Applicants have established the various matters under
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section 12A(1) of the CPO.
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(1) The Property is subject to the Mortgage, which is an
G encumbrance in relation to land and has not been discharged. G
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(2) The Mortgage is made in favour of a person known as Ho Tai
I Lung (“the Mortgagee”). Attempts have been made on I
behalf of the Applicants to find the Mortgagee, including
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(a) conducting a search at the Birth and Deaths Registry to
K ascertain whether the Mortgagee is still alive, but no relevant K
record was found, (b) conducting a search at the Probate
L L
Registry to ascertain whether any probate or letters of
M administration had been granted in relation to the Mortgagee, M
but no such grant was found, (c) writing to the District Lands
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Office, Tai Po, the Land Registry and Sai Kung North Rural
O Committee requesting information about the Mortgagee, but O
none of them had any information, and (d) making inquiries
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into the Mortgagee through the villagers of the village where
Q the Property is situated, but no relevant information was Q
obtained. I accept that the Applicants have taken reasonable
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steps to locate the Mortgagee but that he cannot be found.
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(3) The Applicants are the registered owners of the Property and
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are entitled to redeem the Mortgage.
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B 6. In relation to the sum of money sufficient to redeem the B
encumbrance and any interest thereon, the Applicants point out that the
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principal of the Mortgage is stated to be HK$35 and no interest rate is
D stated in the extract from the Block Government Lease. I agree that it is D
appropriate for the Applicants to adopt a notional annual interest rate of
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20%: Man Chi Kan v Man Tsak Lun [2003] 2 HKLRD 489 at [10]. This
F means that the total interest for 120 years (from 1905) on HK$35 would F
amount to HK$840. Accordingly, the total sum required to redeem the
G G
Mortgage would be HK$875.
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7. In the circumstances, I make the following directions:
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(1) Leave be given to the Applicants to pay HK$875 into court to
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redeem the Mortgage and any interest thereon.
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(2) Within 7 days after the payment into court is made, the
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Applicants should advertise in a widely circulated local
M Chinese newspaper a notice (a) making known this order and M
the fact that payment into court has been made pursuant to this
N N
order, and (b) stating that any person interested in the
O Mortgage and/or the payment into court may apply within O
28 days to be joined as a respondent to these proceedings.
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Q (3) The Applicants may, after the lapse of no less than 35 days Q
from the publication of the advertisement, make a paper
R R
application to the court pursuant to section 12A(2) of the CPO
S for a declaration that the Property is free from the S
encumbrance constituted by the Mortgage.
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A A
B 8. I make no order as to costs. B
C C
D D
(Eugene Fung)
E Judge of the Court of First Instance E
High Court
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Mr Raymond Hung, of Dickman L.T. Chan & Co., for the Applicants
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