C G LIGHTING LTD v. COMMISSIONER OF INLAND REVENUE

FAMV No. 23 of 2011

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 23 OF 2011 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV 119 OF 2010)

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Between:

	C G LIGHTING LIMITED	Applicant
	- and -
	COMMISSIONER OF INLAND REVENUE	Respondent

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Appeal Committee:

Mr Justice Chan Acting CJ, Mr Justice Bokhary PJ and Mr Justice Ribeiro PJ

Date of Hearing: 24 August 2011

Date of Determination: 24 August 2011

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ :

1.  This taxpayer won before the Board of Review.  But it lost before the High Court.  And before the Court of Appeal it lost again.  It now seeks leave to appeal to the Court of Final Appeal, doing so on two bases.  First, it contends that, having regard to the amount involved, such an appeal lies as of right under s.22(1)(a) of the Court’s statute.  Secondly, it puts forward questions as ones which it submits are within s.22(1)(b) of the Court’s statute as ones which are involved and which, by reason of their great general or public importance, or otherwise, ought to be submitted to the Court for decision.

2.  Monetary claims which require assessment – and are therefore unliquidated rather than liquidated – do not come within s.22(1)(a).  Tax requires assessment.  So tax demands do not come within s.22(1)(a).  The appeal which the taxpayer seeks to bring does not lie as of right.

3.  Turning to the other basis on which leave to appeal is sought, we are not persuaded that there is any question of legal principle to be resolved in the proposed appeal.   In the absence of any question of legal principle to be resolved, there is no foundation for the grant of leave to appeal under the “question of law” limb of s.22(1)(b).  As for the “or otherwise” limb of s.22(1)(b), it is only in rare and exceptional circumstances that leave to appeal would be granted thereunder.  No such circumstances exist in the present case.

4.  In the result, despite the skill with which this application has been advanced, leave to appeal is refused.

(Patrick Chan)	(Kemal Bokhary)	(RAV Ribeiro)
Acting Chief Justice	Permanent Judge	Permanent Judge

Mr Chua Guan-Hock SC (instructed by Messrs Allen & Overy) for the applicant

Mr Eugene Fung (instructed by the Department of Justice) for the respondent