Koo Ming Kown and Another v. The Commissioner of Inland Revenue

HCIA 1/2017

[2019] HKCFI 51

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT INLAND REVENUE APPEAL NO 1 OF 2017

(on appeal from Board of Review Cases No. B/R 16/13 and B/R 17/13)

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Before: Hon G Lam J in Court

Date of Written Submissions: 14 and 28 December 2018

Date of Decision on form of order and costs: 3 January 2019

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D E C I S I O N   O N   F O R M   O F   O R D E R   A N D   C O S T S

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1.Pursuant to my judgment herein handed down on 23 November 2018 [2018] HKCFI 2593 and following written submissions made by the parties as directed in paragraph 119 of that judgment, the order I make is simply that the assessments under appeal be annulled. This decision should be read in conjunction with the judgment.

2.I decline to incorporate into the formal order answers to the questions of law raised in the appeal.  Although under the Ordinance an appeal lies against the Board’s decision only on grounds involving questions of law (s 69(1)), it does not mean that the court has to set out in its order each discrete point of law decided or on which it expressed a view, as distinguished from the ultimate outcome of the appeal.  Nor do I see any practical benefit in doing so in the circumstances of this case.

3.As to the question of the costs in this court, while the appellants are successful in the overall result, they have failed in respect of the grounds involving Questions 1(c), 2 and 3.  It is readily apparent from this court’s judgment that those questions, particularly Questions 2 and 3, raise discrete and different arguments from those concerning Questions 1(a) and (b).  In my view they have led to considerable time and costs being incurred which are exclusively attributable to them.  The circumstances are such as to warrant a reduction of the costs payable to the appellants in accordance with the Elgindata principles.  Taking a broad brush approach, the fair order seems to me to be that the Commissioner should pay the appellants two‑thirds of their costs in this court.  For the avoidance of doubt, the costs of the submissions on the form of order and costs are to be treated as part of the costs of the proceedings.

Written submissions by Mr Dennis Chang SC, instructed by Mayer Brown, for the 1^st and 2^nd Appellants

Written submissions by Mr Stewart Wong SC and Ms Elizabeth Cheung, instructed by Department of Justice, for the Respondent