IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO. 1072 OF 2008
Before: Hon Chung J in Chambers
Date of Hearing: 3 July 2008
Date of Decision: 3 July 2008
Date of Handing Down Reasons for Decision: 9 July 2008
REASONS FOR DECISION
1. This is one of the numerous applications brought pursuant to s. 12A, Conveyancing and Property Ordinance (Cap. 219).
2. At the end of the hearing on 3 July 2008, I directed the plaintiffs to make a payment into court. The remainder of the applicationwas adjourned; notice of the adjourned hearing was to be advertised once in a Chinese newspaper widely circulated in Hong Kong.
3. As will be discussed further below, the above order in effect rejected the plaintiffs’ argument that final relief should be grantedon 3 July 2008.
4. For easy of reference, s. 12A(1) to (3), Cap. 219 is set out below:-
S. 12A(4), which essentially is concerned with jurisdiction, will be set out and further discussed below.
5. As is usual in applications of this kind, the Block Government Lease, executed in March 1905, in which the suit property is registeredcontains a remark in its Schedule that a mortgage has been registered as an encumbrance against it. In the present instance, themortgagee was the defendant and the mortgage sum was $76.
6. In the supporting affirmation, the deponent says that the plaintiffs became the registered owners by way of a succession to propertydated 15 February 1996. They wanted to sell the suit property but have been advised that the mortgage might well constitute a “bloton title”.
7. The deponent also says that despite due diligence, the plaintiffs have not been able to locate the defendant. The plaintiffs cannotfind anyone who knows anything about the defendant either.
8. On the face of the above, this application therefore falls squarely within the terms of s. 12A(1) because:-
What S. 12A Prescribes ?
9. The court’s power under s. 12A(1) is clear. It can, where appropriate to do so:-
But s. 12A(1) per se does not confer any further or other power.
10. In Re Cheung Chi Wang and Another  1 HKLRD 409, Deputy Judge Lam (as he then was) concluded that the provisions in s. 12A(1) and (2) envisage there should be three stages to such an application: see pp. 332-3; Man Chi Kan v. Man Tsak Lun  2 HKLRD489, para. 7.
11. However, Counsel for the plaintiffs urged me to adopt a so-called “one-stage” approach. That is, an order should be made immediatelyfor the following relief:-
12. He relied on the judgment in Harvest Development Ltd. v. The Personal Representative of the Estate of Liu Wa Fuk, deceased, DCMP No. 1367/2006, unrep. ( 19 September 2007) in support.
13. The relevant part of the judgment in Harvest Development Ltd. reads:-
14. With respect, practicality, or efficiency (however much one thinks that is desirable), cannot be a sufficient reason for the courtto go against what has been prescribed by legislation, or to ignore it.
15. As stated above, s. 12A(1) only confers power on the court to direct or allow a payment into court to be made. The court’s other powers under s. 12A have to be found in its other provisions.
16. In relation to the making of an order for conveyance or vesting order, that discretion can only be exercised:-
The Chinese version is equally clear:-
17. There is therefore no escape from the conclusion that the court does not have power to make such orders before the payment intocourt has been effected.
18. The scheme prescribed by s. 12A may not be entirely redundant. What s. 12A(1) appears to provide for is a mechanism whereby anyone falling within its ambit can commence an application thereunder. It may wellbe that, at that stage, he believes that the encumbrancer:-
19. But while there may be reasons for his belief, it does not necessarily reflect reality. At a s. 12A(1) hearing, the court may well consider it appropriate that notice of the s. 12A(2) hearing (if it is appropriate for the power conferred by s. 12A(1) to be exercised) should be effected, for example, by advertising in a newspaper widely circulated (locally or otherwise). The possibilityof the 12A(2) application coming to the attention of whoever may be entitled to the encumbrance cannot be ruled out.
20. I have perused the court files of the two High Court cases referred to in Harvest Development Ltd. There were no written judgments in the files, but the skeleton submissions of the applicants therein show that practicality wasagain relied upon as the ground for seeking final relief at what should have been a s.12A(1) hearing.
21. I pause here to observe that, in what effectively were ex parte applications, it is regrettable counsel did not see fit to draw to the courts’ attention the (at least potential) inconsistencybetween their contention and the express provision in s. 12A(1).
22. Another matter discussed in Harvest Development Ltd. is the District Court’s jurisdiction in relation to applications brought pursuant to s. 12A, Cap. 219.
23. While this does not arise in the context of this application, I propose to say a few words about it because it may have practicalsignificance to litigants: the right of audience in the District Court is different from the High Court’s.
24. Harvest Development Ltd. observed that:-
25. The judge also observed elsewhere in the judgment that the District Court’s jurisdiction to hear claims concerning title in landis limited:-
See also Wong Kum Chi v Lee Tit Ying  1 HKLRD 420.
26. In addition to the provisions referred to in Harvest Development Ltd. and Wong Kum Chi, s. 3, Cap. 336 stipulates:-
27. In the context of s. 12A, Cap. 219, s. 12A(4) provides:-
It is to be noted the sub-section uses the word “party” which is singular. At least before any encumbrancer enters a court appearancein the application, “party” must mean the applicant.
28. A similar provision can be found in s. 12(2), Cap. 219 (vendor-purchaser summons), although that sub-section refers to “the vendor and purchaser” instead of “the party”.
Mr Wilson W S Lau, instructed by Messrs K M Tang & Co., for the Plaintiffs