WONG YU CHO ROLLY v. INLAND REVENUE BOARD OF REVIEW

HCAL108/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 108 OF 2009

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BETWEEN

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D E C I S I O N

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1. The applicant carried on a business known as Marco Polo, which commenced trading on 1 January 1996. 

2. This is his application for leave to apply for judicial review against the Board of Review dated 17 July 2009 (“the July Decision”) refusing his application to state a case against its decision dated 12 November 2008 (“the November Decision”) to enable him to appeal to the Court of First Instance. 

3. The background circumstances had been set out by the Board in its written decision for the November Decision thus :

“1.  稅務局(‘稅局’)約在2002 年初開始對上訴人進行稅務調查。

2.  評稅主任認為上訴人沒有就其入息及開支備存足夠的紀錄，所提供資料混亂。

3.  評稅主任由2005 年中至2007 年再三以書面要求上訴人提供詳盡資料。上訴人並無實質回覆。

4.  評稅主任向上訴人作出1995/96至2003/04利得稅評稅。

5.  上訴人以書面通知稅務局局長(‘局長’)反對評稅主任作出的1995/96至2003/04利得稅評稅。

6.  署理副局長根據《稅務條例》(第 112 章)第 64 條於2007 年7 月4 日對該項反對作出以下決定：

課稅年度	評稅日期	應評稅利潤 元	決定將應評稅利潤 增加至/減為 元
1995/96	2002年3月22日	3,000,000	增加至     5,200,547
1996/97	2003年2月27日	2,000,000	增加至     8,898,029
1997/98	2004年3月29日	2,000,000	增加至     5,305,665
1998/99	2005年3月30日	2,000,000	增加至   11,438,822
1999/00	2000年12月11日	500,000	增加至     8,535,258
2000/01	2006年12月29日	9,000,000	減為         8,299,939
2001/02	2006年12月29日	5,000,000	減為         4,920,550
2002/03	2006年12月29日	2,500,000	減為         2,421,148
2003/04	2006年12月29日	2,200,000	減為         2,099,525
			總額       57,119,483

7.  上訴人向稅務上訴委員會(‘委員會’)發出日期為2007 年7 月30 日的上訴通知書。”

4. The applicant raised 7 grounds of appeal before the Board, which were all rejected.  The Board then dismissed the appeal. 

5. By letter dated 12 February 2009, the applicant’s solicitors applied to the Board for leave to appeal against the November Decision.  Enclosed with that letter was the proposed notice of appeal.  Further written submissions on the proposed grounds of appeal were placed before the Board.  By the July Decision, the Board refused to state a case because the proposed grounds of appeal were not questions of law. 

6. The applicant now wishes to apply, by way of judicial review, for a certiorari to quash the July Decision, a declaration that the applicant is entitled to the case stated for the High Court of determination, and alternatively a mandamus to direct the Board to state a case for the opinion of the Court of First Instance in accordance with the grounds placed before it on 12 February 2009. 

7. Section 69 of the Inland Revenue Ordinance (Cap. 112) provides : 

“ (1) The decision of the Board shall be final :

Provided that either the appellant or the Commissioner may make an application requiring the Board to state a case on a question of law for the opinion of the Court of First Instance. Such application shall not be entertained unless it is made in writing and delivered to the clerk to the Board, together with a fee of the amount specified in Part II of Schedule 5, within 1 month of the date of the Board’s decision. If the decision of the Board shall be notified to the Commissioner or to the appellant in writing, the date of the decision, for the purposes of determining the period within which either of such persons may require a case to be stated, shall be the date of the communication by which the decision is notified to him.

…

(2) The stated case shall set forth the facts and the decision of the Board, and the party requiring it shall transmit the case, when stated and signed, to the Court of First Instance within 14 days after receiving the same.

…”

8. In applying to the Board to state a case on a question of law, the applicant must identify a question of law which is proper for the High Court to consider.  The Board is under a statutory duty to state a case in respect of that question of law.  The Board has a power to scrutinize the question of law to ensure that it is one which is proper for the court to consider.  If the Board is of the view that the point of law is not proper, it may decline to state a case.  See Commissioner of Inland Revenue v Inland Revenue Board of Review and Another [1989] 2 HKLR 40, per Barnett J at p. 57H-J. 

9. Here, the proposed grounds of appeal placed before the Board on 12 February 2009 are not questions of law.  Presently formulated, they are just grounds of appeal setting out why in the applicant’s view the Board had erred in the November Decision. 

10. For this reason alone, the Board was entitled to refuse to state a case in accordance with those grounds.  The applicant’s intended judicial review is not reasonably arguable.  It must be refused. 

11. Counsel for the applicant has devoted considerable time and effort to the merits of the grounds of appeal.  (There are five altogether but I am told that the applicant will abandon Grounds 1 and 2 and will only rely on Grounds 3 to 5.)  I shall not go into detail of counsel’s submissions in light of my ruling above.  I will briefly dispose of them by saying that having carefully considered all the materials before me, I am unable to conclude that the applicant has a reasonably arguable case that those grounds are proper questions of law that the Board ought to have considered and acted upon in stating a case. 

12. For the above reasons, I refuse the application. 

Ms Angela Gwilt and Mr Johnny Fok, instructed by

      Messrs Raymond Chu & Co. for the hearing on 1 December 2009 and

      Messrs Y.T. Szeto & Co. for the hearing on 10 June 2010, for the Applicant