Tam Lai Ha and Another v. Collector of Stamp Revenue

HCAL 2155/2020
HCAL 2156/2020
HCAL 2157/2020
HCAL 2158/2020
HCAL 2159/2020
HCAL 2160/2020
HCAL 2161/2020
HCAL 2162/2020
HCAL 2163/2020
HCAL 2164/2020 &
HCAL 2165/2020
[2021] HKCFI 142

HCAL 2155/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2155 OF 2020

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AND

HCAL 2156/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2156 OF 2020

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________________

AND

HCAL 2157/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2157 OF 2020

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________________

AND

HCAL 2158/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2158 OF 2020

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________________

AND

HCAL 2159/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2159 OF 2020

________________

________________

AND

HCAL 2160/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2160 OF 2020

________________

________________

AND

HCAL 2161/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2161 OF 2020

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________________

AND

HCAL 2162/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2162 OF 2020

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AND

HCAL 2163/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2163 OF 2020

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________________

AND

HCAL 2164/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2164 OF 2020

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________________

AND

HCAL 2165/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2165 OF 2020

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(Heard together)

Before:  Hon Chow J in Court

Date of Hearing:  15 January 2021

Date of Decision: 15 January 2021

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D E C I S I O N

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1.On 11 November 2020, the court made an order staying these 11 applications for leave to apply for judicial review pending the determination of the application for leave to apply for judicial review in HCAL 1479/2020. They all raise the same issues, in particular, whether the imposition of the Buyer’s Stamp Duty (“BSD”) under s 29CB of the Stamp Duty Ordinance, Cap 117, on an agreement for sale of a residential property entered into by a purchaser who is a Hong Kong permanent resident as trustee for another Hong Kong permanent resident as beneficiary disproportionately restricts or interferes with the rights protected by Articles 6 and/or 105 of the Basic Law.

2.HCAL 1479/2020 was heard on 15 December 2020. The court handed down a written judgment on 6 January 2021 (“the Judgment”), dismissing the application for leave to apply for judicial review in that case.

3.On 6 January 2021, the court made an order lifting the stay of proceedings in the present 11 applications.  The court was minded to dispose of the 11 applications on paper.  However, the Applicants proposed that the applications be further stayed pending the outcome of an intended appeal against the Judgment to the Court of Appeal.

4.On 12 January 2021, the court directed the present 11 applications for leave to apply for judicial review to be heard on 15 January 2021.

5.I have considered the submissions made by Mr Lam on behalf of the Applicants.  For the same reasons given in the Judgment, I consider that the 11 intended applications for judicial review now before me are not reasonably arguable and have no realistic prospect of success.  I would add that:

(1)  The delay in the present 11 cases is more serious.  The relevant assessments were made on 15 January 2015, but the leave applications were only made on 28 October 2020.  The delay is over 5.5 years. In HCAL 1479/2020, the delay was about 3 years and 10 months.  There is no good or valid explanation for the delay in the present cases.  The delay is so substantial that I would refuse to extend time even if the applications were otherwise meritorious, which I do not believe they are.

(2)  The argument that the imposition of the BSD is manifestly without reasonable foundation is plainly unarguable.  The Government is entitled to a wide margin of discretion to impose measures to cool the residential property market in Hong Kong.  As mentioned in the Legislative Council Brief referred to in §26 of the Judgment, property prices have risen beyond the affordability of the general public.  It is for the Government, not the court, to decide what measures are necessary to rein in the residential property market.  Even if the more stringent test of “no more than reasonably necessary” is applicable, I consider that it can be satisfied in the present case.  In this regard, it is relevant that a Hong Kong permanent resident who wishes to buy a property for self-use or investment can easily avoid the BSD by purchasing the property in his/her own name.

6.As for the suggestion that the leave applications should be further stayed pending the outcome of the intended appeal against the Judgment to the Court of Appeal, I consider that, generally speaking, where an application for leave to apply for judicial review is ready for disposal and can be disposed of fairly and expeditiously, it ought to be disposed of as soon as possible.  I do not see any good reason to defer the consideration of the present 11 leave applications.  I should mention that this morning, Mr Lam invites the court to dismiss the 11 leave applications so that an appeal can be lodged against the dismissals in one go.

7.In all, the court dismisses the 11 applications for leave to apply for judicial review.  For the avoidance of doubt, the court does not grant any extension of time to the Applicants to apply for leave to apply for judicial review.

8.Mr Lam accepts that costs should follow the event. I therefore make an order that the Applicants shall pay the costs of the Putative Respondent, to be taxed if not agreed.

Mr Gary C C Lam, instructed by Bernard Wong & Co, for the Applicants in all cases

Mr Jesse Yu, Government Counsel, of Department of Justice, for the Putative Respondent in all cases