Suen Hung Shan v. Commissioner of Inland Revenue

CACV 147/2020, [2023] HKCA 820

On appeal from [2020] HKCFI 1065

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 147 OF 2020

(ON APPEAL FROM HCIA NO 3 OF 2017)

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DECISION ON COSTS

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Hon Kwan VP (giving the Decision on Costs of the Court):

1.On 30 May 2023, we handed down our judgment refusing to grant the Taxpayer an extension of time to appeal to the Court of Final Appeal against our judgment of 31 December 2020[1] and dismissing his notice of motion issued on 3 April 2023. We made an order nisi that he should pay the Commissioner of Inland Revenue the costs of this application on an indemnity basis, which we assessed summarily at $24,887.

2.On 13 June 2023, the Taxpayer applied in writing to vary the costs order nisi of 30 May 2023, enclosing his letter dated 5 January 2018 to the Department of Justice marked “Without Prejudice save as to cost”. He also applied to vary “the former Allocatur (Bill of Costs) for HCIA 3/2017 and CACV 147/2020 dated 16 Feb 2023” and the costs order made by this court in the judgment of 31 December 2020.

3.The Commissioner has lodged submissions in response on 27 June 2023.

4.We shall not consider the Taxpayer’s additional applications to vary the Bill of Costs dated 16 February 2023 and an earlier costs order of 31 December 2020, as the present application for variation of the costs order nisi should be confined to the order made on 30 May 2023.

5.The letter marked “Without Prejudice save as to cost” dated 5 January 2018 has no relevance to the present exercise. As for the Taxpayer’s contention that he should be exempted from any costs liability “as he is submitting the appeal based upon public interest”, this contention is without merit. The fact is that he has delayed for over two years in seeking leave to appeal without any valid reason and his proposed grounds of appeal are just not reasonably arguable. We decline to vary the costs order nisi and gross sum assessment.

6.The Commissioner seeks costs of the variation application. We see no reason why costs should not be awarded to the Commissioner. We order the Taxpayer to pay the Commissioner’s costs for the variation application. Having considered the statement of costs lodged by the Commissioner, we consider the amount of costs incurred entirely reasonable and award the sum as claimed by the Commissioner at $4,674.

The Applicant (Respondent), acting in person

Mr Sky Shum, Senior Government Counsel of the Department of Justice, for the Respondent (Appellant)