Suen Hung Shan v. Commissioner of Inland Revenue

HCIA 1/2020

[2020] HKCFI 1972

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

INLAND REVENUE APPEAL NO 1 OF 2020

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Before: Hon G Lam J in Chambers

Date of Hearing: 24 July 2020

Date of Decision: 24 July2020

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D E C I S I O N

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1.On 26 June 2020, I handed down a decision based on the written materials, dismissing the application of the taxpayer on the ground that it was out of time and there was no power for the court to extend time under section 69 of the Inland Revenue Ordinance (Cap 112).

2.Pursuant to section 69(3)(g), the taxpayer has requested for an oral hearing to have the decision reviewed. 

3.At this hearing, Mr Suen submits that whether there are proper questions of law for appeal raised should take precedence over the question whether there is an application for leave to appeal made within time.  He submits that the court should not dismiss his application because the delay in lodging it was due to the pandemic. 

4.I do not think that these are valid answers to the question whether there is a valid application for leave to appeal or not. For the reasons I have already set out in my decision in June 2020, I am of the opinion that there is simply no valid application for leave to appeal because it was made out of time and the court has no power to extend time.

5.Mr Suen also submitted that the court does not normally consider fractions of a day, referring to the fact that on 6 May 2020 the Registry was not open for a full day. 

6.That submission, in my view, also fails because the terms of section 71 of the Interpretation and General Clauses Ordinance (Cap 1) are such that the time in which the application for leave to appeal must be lodged was extended to the day after the period of closure of the Registry, not being a closure day for the office.  That seems to me to be clearly 6 May 2020. 

7.In any event, I do not think Mr Suen has raised any valid answer to the point that he did not serve the application on the Commissioner in time.  Reliance was placed on section 8 of the Interpretation and General Clauses Ordinance, in that, according to Mr Suen, he posted the document to the Commissioner on 7 May 2020.  But it seems to me that, under that section, service is deemed to have been effected at the time at which the document would have been delivered in the ordinary course of post.  That would not be 7 May 2020 but a subsequent time.

8.Mr Suen also complained that the merits of his application for leave to appeal have not been dealt with.  That is correct, because, for the reasons set out in my decision, there was simply no competent application in the first place and therefore it was entirely unnecessary and, in my view, undesirable to deal with the various grounds of appeal sought to be raised by the taxpayer.

9.For these reasons, the decision of 26 June 2020 will be maintained.

(Submissions on costs)

10.Costs are to be paid by the applicant to the respondent, to be taxed if not agreed.

The Applicant, unrepresented, appeared in person

Ms Katherine Chan, GC of Department of Justice, for the Respondent