Commissioner of Inland Revenue v. Kwok Siu-tong

HCIA000002/1977

IN THE HIGH COURT OF HONG KONG

APPELLATE JURISDICTION

INLAND REVENUE APPEAL NO. 2 OF 1977

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Coram: Mr. Commissioner Liu, Q.C. in Court.

Date of Judgment: 30 December 1977

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JUDGMENT

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1. This is an appeal by the Commissioner of Inland Revenue on a Case Stated under section 69 of the Inland Revenue Ordinance.

2. The taxpayer has gone astray in making an incorrect return without reasonable excuse, and he was assessed under section 82A to additional tax in respect of the years of assessment 1969/70, 1970/71 and 1971/72. The additional tax was assessed under the then section 82A which, prior to the amendments introduced in July, 1975, read as follows:

shall, if no prosecution under section 80(2) or 82(1) has been instituted in respect of the same facts, be liable to be assessed under this section to additional tax of an amount not exceeding the amount of tax which has been undercharged in consequence of the incorrect return, statement or information, or which would have been so under-charged if the return, statement, or information had been accepted as correct."

3. The taxpayer furnished a return for each of the said three years of assessment and elected to be personally assessed. These originally submitted returns were not accepted, and the assessor proceeded to make estimated assessments against the taxpayer under section 59(2)(b). Thereafter, the accounts and affairs of the tax-payer were investigated; as a result taxable profits were re-assessed and the taxpayer was found chargeable to additional amounts of tax under section 60(1). Notices of additional assessments for the same three basic periods were served on the taxpayer through his representatives. No prosecution was instituted against the taxpayer, and he was assessed to what may be aptly described as "tax penalty" for each year under the then section 82A.

4. One of the issues before the Board of Review was the proper quantification of such "tax penalties". Putting aside allowances for personal assessment and depreciation, broadly speaking the taxpayer advocated two coexistent guidelines for the assessment of "tax penalty" under the then section 82A viz.

Applying to the phrase "in consequence of" a liberal interpretation, the Board construed an assessment estimated after the rejection of the original return as one made "in consequence of" it, and the amounts in both (1) and (2) above were recognized as possible ceilings of "tax penalties" under the then section 82A, but the Board favoured the latter of the two i. e. the difference between profit tax on the ultimate re-assessment and profit tax on the estimated assessment. In effect, the Board of Review selected an alternative more favourable to the taxpayer with a lesser tax liability. Mr. Kwok rallied to the support of the basic concept that in case of ambiguity the construction most beneficial and fairest to the taxpayer is to be adopted, and counsel referred to the judgment of Sir Garfield Barwick in C.I.R. V. Mutual Investment Company Ltd.,⁽¹⁾ in which Sir Garfield in delivering judgment of the Privy Council observed:

"No doubt in case of ambiguity, that construction which the better serves the ends of fairness and justice will be adopted, but otherwise it is for the legislature in forming its policy to consider such elements."

5. Insofar as the Board accepted the former alternative as a ceiling of "tax penalties" under the then section 82A, the Commissioner unreservedly bows to its determination which, to that extent, does not form part of this Case Stated. The Commissioner's principal complaint is that on proper construction of section 82A the Board of Review had fallen into error in its acceptance of the latter as a coexistent alternative and, in preference to the former, as a more amenable yardstick for quantification. From that determination alone the Commissioner now appeals.

6. The Commissioner's stance was sought to be supported by what is claimed to be the two mutually exclusive alternatives in section 82A. If an understated returned is accepted, tax will be undercharged "in consequence of" that original incorrect return, and "tax penalty" under section 82A may not exceed the ceiling of the amount actually undercharged. Conversely, if an understated return is rejected and when the assessor proceeds thereafter to estimate a taxpayer's profits, his assessment will not be made "in consequence of" that original incorrect return which has been refused, and any undercharge arising from the estimated assessment cannot be an undercharge "in consequence of" the rejected original return; it will be an undercharge estimated independently of that original return after its rejection. Thus "tax penalty" under section 82A is to be assessed in a sum not exceeding the same amount which "would have been so undercharged if the return had been accepted as correct". The consequence is that the misconduct of a taxpayer will be visited by the same penalty whether or not his incorrect return is accepted. The Commissioner's interpretation has the advantage of uniformity and the blessing of the ordinary and natural meaning of the language in the statutory provision.

7. Whichever interpretation one may be persuaded to sway in favour of, the computation of "tax penalty" for 1970/71 is below any of the ceilings advocated by the parties to this appeal. Therefore, the question of law for the opinion of this Court concerns primarily the years of assessment 1969/70 and 1971/72 only:

In the course of his submissions, Mr. Somerville confirmed the Commissioner's concurrence with the Board's decision that adjustments should be made for personal assessment and depreciation. Thus, counsel explained, the second question in the Case Stated would require no more than an adaptation of the accepted figures of $13,296.00 for the year of assessment 1969/70 and $66,689.00 for the year of assessment 1971/72.

8. The Board of Review comprised four appointed members, but only its chairman and one other member signed the Case Stated, in the last paragraph of which the reason is given as follows:

"Two of us, Mr. Donald Q. Cheung and Mr. G.H.P. Pritchard, J.P., have since the delivery of our Decision resigned as members of the panel for the Board of Review, and consequently have not signed this Case."

It is recited in paragraph 15 of the Case Stated:

"The Commissioner, being dissatisfied with our decision, has in due course required us to state a Case for the opinion of the Court pursuant to section 69 of the Inland Revenue Ordinance (Cap. 112) and this Case is stated and signed accordingly."

The Case Stated begins with the following preamble:

"CASE STATED pursuant to section 69 of the Inland Revenue Ordinance (Cap. 112) on the application of the Commissioner of Inland Revenue."

9. The proviso to section 69(1) of the Inland Revenue Ordinance requires the Board to state a case on the application of a party aggrieved, and the above quotations confirm this Case as having been stated by the Board pursuant to section 69 and at the request of the Commissioner with an explanation of the absence of the signatures of two of its members. I was informed by both counsel that the parties to this appeal settled and approved of the draft Case Stated. The position of the Board is therefore this: It agreed to and did state this case and must have, in stating this Case pursuant to section 69(1), approved of its contents.

10. A preliminary objection was taken by the Respondent that the Case Stated is not properly before this Court by reason of the absence of the signatures of two of the members.

11. The Court was informed that there is no authority which would throw much light on this preliminary objection. It does not seem to be disputed that there is no statutory provision for the contingency of resignation and that the other two members have no power to sign the Case Stated after their resignation.

12. Counsel for the Appellant offered for my assistance the Case of Kean v. Robinson⁽²⁾ where three Justices unanimously dismissed a summons but unanimously agreed to state a case. A draft case had been approved of by both parties to the contest. The Case Stated was approved of and signed by one Magistrate, another Magistrate also approved of it but died without having signed it, and the remaining Magistrate died without having approved of or signed the Case Stated.

13. It is of interest to note that in this case all the members of the Board agreed to and did state a Case, thus having approved of it, and to that extent the Commissioner seems to be in a healthier position than that of the Magistrates at the Irish Petty Sessions in Kean v. Robinson. The circumstances attending the stating of the Case in Kean's case were set out in an affidavit of the Magistrates' Clerk placed before the Court of Appeal. In that affidavit, it was deposed that the deceased Magistrate who approved of the contents of the Case would have signed the same but for the fact of his death and that the other deceased Magistrate who did not approve of the Case would also have signed the Case as stated but for the fact of his death. The Court of Appeal acknowledged the lacuna that the affidavit evidence of the Magistrates' Clerk did not go far enough to establish the third deceased Magistrate as having approved of the Case as stated, but the decision of the majority of the Court of Appeal in Ireland turned eventually upon the absence of signatures of two of the three Magistrates. It was held by a majority that two legal maxims operated in favour of the Appellant and that the Case was properly before the Irish Court of Appeal.

14. Speaking of the Magistrate who approved of but died not having signed the Case and the Magistrate who did not approve of nor sign the Case before he died, Madden, J. said at the bottom of p. 318 and p.319:

"But to my mind both cases are covered by the application of the same general principles. These are two: - First, Lex non cogit ad impossibilia. (The law does not compel a man to do that which he cannot possibly perform). The impossibility in this case is of a special character, and calls into operation the application of the second principle - Actus Dei nemini injuriam facit (The law holds no man responsible for the act of God or the act of God does injury to no one). In one case, Morgan v. Edwards (5 H. & N. 415), it was suggested that the former maxim might be called in aid where the act of God did not intervene, the cause of the impossibility being one of another character. There it was held that the transmitting the case to the Court, and the giving notice to the respondent, are conditions precedent to the right of the appellant to have the case heard; Channell, B., who delivered the judgment of the Court, adding: - 'We guard ourselves, however, as the Court of Queen's Bench did, to this extent, that when an appellant may have done all that he could do in order to comply with the statute, as, for instance, supposing personal service on the defendant to be necessary and made impracticable by his keeping out of the way, there might be ground for considering whether a party might not be allowed to enter his case, though the statute may not have been strictly complied with.' The case there put is not nearly so strong as the present, inasmuch as the reason which is suggested for dispensing with performance of a condition precedent rests solely on the principle, Lex non cogit ad impossibilia. I do not rest my decision on this maxim alone; but the case is important as showing that the English Courts have gone the length of suggesting that a condition precedent may be dispensed with where the party interested in having the case heard has done all in his power to comply with the condition, and for some cause, even though unconnected with actus Dei, compliance has become impossible."

Madden, J. drew a distinction between an obligation created by contract and a condition precedent imposed by law in his conclusion at p.320:

"The document before us is attested by one of the three presiding magistrates as being the case which the entire bench agreed to state. Authentication by the signatures of the other magistrates ought, in my opinion, to be dispensed with, inasmuch as the absence of compliance with this condition has been the result, not of any act or default of the party applying for the case, but of what is known as the act of God."

Lord O' Brien, L.C.J. at p.321 cited with approval an observation of Patteson, J. in the Queen v. Justices of Leicestershire⁽³⁾:

"He (Patteson, J.) is reported to have said, 'We are of the opinion that as the duty to give such notice was cast upon him (the appellant) by law and not by his own voluntary contract, he is excused from performing that duty by its becoming impossible by the act of God.' This is the language of Mr. Justice Patteson, stating what is now the well-established law."

At page 322 Lord O'Brien continued:

"One of the two magistrates had neither approved of nor signed the case. One had approved of it but had not signed. The third, as I said, approved and signed. The applicant, that is to say the plaintiff in the summons, was in no default whatever. Are we under the circumstances sufficiently seized of the case? Is the case rightly before us? Applying the maxims to which I referred at the outset of my judgment, I think it is. Applying the maxim Actus Dei nemini injuriam facit - the act of God does injury to no one - I think the case is adequately stated, that is to say that it was competent to the surviving magistrate to state the case. If the surviving magistrate was not competent to state a case, injury would be done to the applicant for the case by the act of God - the death of the two magistrates who died - and the maxim telling us that the act of God does not, and therefore should not, be ever deemed as capable of doing injury to anyone, would be violated. If the case could not be heard, then, without any default on the part of the applicant, injury would be done to him."

Wright, J. in his dissentient judgment made no reference to any of the legal maxims so heavily relied upon and embraced by the other two members of the Irish Court of Appeal. Mr. Justice Wright confined himself to the interpretation of the section and held:

"I am unable to come to the conclusion that where three magistrates have decided the case, we have any jurisdiction except upon a case signed by all those three magistrates. No provision is made in the Act for the death, illness, or absence of a magistrate, and I am unable to hold that signature by one is equivalent to signature by the three, or that approval by two, as in the present case, is equivalent to approval by the three."

15. I should reiterate the obiter of Mr. Justice Madden to the effect that the English Courts would lean in favour of an independent operation of the maxim of impossibility of performance without the intervention of an act of God and dispense with the fulfilment of a statutory condition precedent. The learned judge referred to the case of Morgan v. Edwards⁽⁴⁾ and quoted the judgment of Channell B. in extenso.

16. Mr. Somerville also craved in aid the case of Marsland v. Taggart.⁽⁵⁾There, a complaint was unanimously dismissed by three Magistrates who agreed to state the case for the opinion of the High Court. One of the Magistrates died before the case was stated, and the case was signed by the two surviving Magistrates only. It was held that the Court had jurisdiction to proceed with the matter, and the majority decision in Kean v. Robinson⁽⁶⁾ was applied.

17. In delivering the main judgment of the Court, Lord Hewart, C.J. applied both legal maxims and declared the Court as having been seised of the case stated.

18. Shearman, J. expressed, in my view, the sound basis for the right judicial sentiments at p.450:

"I am of the same opinion. Justices come and go, but justice itself should endure. I see no reason to uphold an objection which would result in justice coming to an end owing to the death of a Magistrate because section 2 of the Summary Jurisdiction Act, 1857, is worded as it is. This sort of objection ought to be as extinct as the thumbscrew."

19. Whilst the two legal maxims are said to be "intimately connected",⁽⁷⁾it has never been suggested that either of them can have no independent operation. In the case at bar, obviously the second legal maxim cannot be invoked in conjunction with the first. The absence of the signatures of the two other members of the Board of Review was the result of their resignation from the panel of members. Indeed, not only has the first maxim never been disclaimed as being capable of operating by itself, Mr. Justice Madden expressed the inclination of the English Courts to apply the first legal maxim on its own.

20. The impossibility of the two other members of the Board signing the Case Stated stemmed from their resignation, and the Commissioner "has done all in his power to comply with" the statutory condition precedent. The impossibility of fulfilling this condition precedent to the right of appeal by way of this Case Stated under section 69 did not arise as a result of any act or omission on the part of the Respondent as that envisaged in the case of Morgan v. Edwards⁽⁸⁾ but from the resignation of two of the members of the Board of Review. The Commissioner has been in no default whatsoever and ought to be excused from compliance. The law does not, and should not, compel the Commissioner to do that which he cannot possibly perform in obtaining the valid signatures of the two resigned members of the Board which can no longer be given for the purpose of this appeal. The Commissioner's right to appeal by way of this Case Stated should not be defeated. Justice should not be withheld on account of this acknowledged impossibility. In my judgment, this Case is adequately stated and this Court is sufficiently seised of the Case so transmitted.

21. It is not necessary, therefore, to consider the further contention of Mr. Somerville to the effect that whilst the Board is required to "state" a Case in the proviso to section 69(1), it is only in a different subsection, subsection 2, that the Case is required to be "stated and signed" and that the Case need not be stated by the full board or at least need not be signed by the full board, an act none other than a mere procedural measure to be taken in the course of formal authentication.

22. Mr. Kwok for the Respondent taxpayer further contended that the Case Stated must be signed by a statutory quorum of three, and counsel referred to section 65(4) of the Inland Revenue Ordinance which is set out below:

"Three or more members of the panel, one of whom shall always be either the chairman or a deputy chairman, shall be nominated by the Chief Secretary and summoned by the clerk to attend meetings of the Board at which appeals are to be heard. At any such a meeting a quorum shall consist of three members. All matters coming before the Board shall be decided by a majority of votes and in the case of an equality of votes the chairman or deputy chairman shall have a second or casting vote."

23. There is no ambiguity in section 65(4). In fact, none is suggested. A quorum of three is a pre-requisite reserved for a meeting at which appeals are to be heard by the Board. A case stated is required of the Board under section 69(1), and the exercise of their duties and functions under that separate section is not made subject to any statutory quorum prescribed for a meeting hearing appeals.

24. Next I turn to the casus belli between the Commissioner and the taxpayer on this appeal, namely, whether or not upon the rejection of a return furnished by the Respondent taxpayer, the estimate assessment of his tax liability was made "in consequence of" that incorrect return.

25. The Board of Review correctly pointed out the three alternatives open to an assessor under section 59(2) of the Inland Revenue Ordinance after a return has been furnished by a taxpayer as (1) accepting the return and making an assessment accordingly, (2) rejecting it and making an estimated assessment or (3) accepting it as substantially correct and making a provisional assessment. The Board concluded, and quite rightly so, that once section 59(2) has been put into motion by the filing of a tax return, an assessment under one of the three alternatives would follow. But the Board pressed yet a step further and held that since an assessment made in one of these three alternatives is invariably the end product of a chain reaction set off by the receipt of the original return, incorrect as it may be and rejected as it may be, it is nevertheless made "in consequence of" the original return regardless of the fact that an estimated assessment is made by way of an estimate without any reference to the original incorrect return. Consequently, so the Board decided, any undercharge of tax subsequent to a return is "in consequence of" it.

26. The Board claimed that its view was supported by the Commissioner's first reaction reflected in the notices of his intention to assess the taxpayer for "tax penalties" which contained a statement to the effect that "the amount of tax which has been under charged in consequence of incorrect returns actually came to $188,438.00". The Commissioner has, through counsel, openly regretted this unfortunate use of phraseology, but Mr. Somerville was prompt to submit that the notices were not void or voidable by reason of, inter alia, section 63 of the Inland Revenue Ordinance.

27. Mr. Kwok, counsel for the Respondent taxpayer, revered the same parity of reasoning fostered by the Board. With respect, there seems to be some confusion of thoughts. Sequence of events regulated by law or nature does not necessarily involve an intervention of cause and consequence. Death follows birth as the night follows the day, but death is not in consequence of or as a result of birth. The common denominator is simply that life begins with birth and ends at death, but death is not caused by birth. when a man takes out a marriage licence to have a civil marriage, the licence is not the cause of the marriage; love is or is supposed to be. A licence is only a vehicle to producing a desired result. The desire is fuelled by emotions. Similarly, when section 59(2) is set in motion by the filing of a return, the rejection of that original incorrect return and the making of an estimated assessment are stages in succession laid down by the law. The estimated assessment is a step proximate to and following the rejection, but it is not caused by the filing of the original incorrect return or the rejection of it. There is no causal link between the filing or rejection of the original incorrect return and the subsequent estimated assessment.

28. The phrase "in consequence of" is defined in the Concise Oxford Dictionary as "as a result of". For the term under discussion to become operative, a causal link between two occurrences must be established. In Preston v. Norfolk County Council⁽⁹⁾ where an agricultural tenant, whilst disputing the validity of a notice to quit, finally vacated his holding after judgment for possession on the notice having been obtained by the landlords, and the question to be decided was whether the tenant quitted "in consequence of" the notice. It was held that he was. The bone of contention was whether the tenant quitted his agricultural holding "in consequence of" a notice to quit or under the compulsion of a judgment upon it. In reading the judgment of the Court at p.784, Lord Greene M.R. had this to say:

"In spite of the fact that a tenant holds over, it may well be that the notice is what causes him to quit the holding. To explain our meaning, we will give two examples. At the expiration of the notice, the tenant may be in bed seriously ill, and incapable of moving. In the absence of permission to remain, he becomes in law a trespasser. Nevertheless, if when he recovers sufficiently to enable him to be moved, he at once quits the holding, the inevitable conclusion would be that he did so ' in consequence of' the notice. His temporary failure to comply with the notice could not break the causal link between the notice and his departure which is all that is postulated by the words ' in consequence of'."

29. The difficulty, if any, is more apparent than real. In my view, the estimated assessment was not caused by the filing or rejection of the original incorrect return. There is no causal link between the estimated assessment and the taxpayer's original incorrect return which merely set the procedure in motion.

30. Section 82A of the Inland Revenue Ordinance was couched in notably clear and unambiguous language. One of the foremost cannons of construction as given at page 66 in Craies of Statute Law, 6th Ed. is:

"If the words of the Statutue are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The words them selves alone do in such a case best declare the intention of the lawgiver."

31. If an original incorrect return is accepted and an assessment accordingly made pursuant to section 59(2)(a), the undercharge (being the difference in tax between that on the ultimate re-assessment and that on the assessment made in accordance with the original incorrect return) will be one truly "in consequence of" the original return. But in this case, none of the original incorrect returns was accepted, assessments were estimated independently, and therefore there can be no undercharge of tax "in consequence of" any of the original incorrect returns.

32. On the strained construction put upon section 82A by the Board, the latter alternative would become redundant. In addition, the Board's interpretation of section 82A may render its application uncertain and inoperative, as can be seen in Mr. Somerville's illustration: Suppose (1) an original incorrect return which would yield a profit tax of $50,000.00 is not accepted, (2) thereafter an estimated assessment of$150,000.00 is made and (3) ultimately on subsequent investigation a final tax liability of only $100,000.00 is re-assessed. Thus, whilst the taxpayer has indisputably misbehaved in his incorrect return for which section 82A is devised to provide an additional tax penalty, in adopting the view of the Board that an estimated assessment is also an assessment in consequence of the original incorrect return, the effect of (3) minus (2) will produce the oddity that no tax has been undercharged and no tax penalty can be imposed. The Board's demonstrably grotesque theory cannot be put to the test. It may lead to an even more illogical conclusion: Any re-assessment ultimately made after investigation under section 60(1) is for an "additional amount" "where is appears to an assessor that..... any person chargeable with tax..... has been assessed at less than the proper amount". By parity of the same reasoning of the Board, the additional amount chargeable on a final re-assessment such as that in this case is also an assessment "in consequence of" the original incorrect return, and if this premise were sound, the re-assessment might likewise be taken to set-off against itself, and an undercharge of tax in consequence of the original incorrect return would become an utter impossibility. Such novel approach in construction violates the true spirit and purport of section 82A.

In Barnes v. Jarvis⁽¹⁰⁾, Lord Goddard C.J. observed:

"A certain amount of common sense must be applied in construing statutes. The object of the Act has to be considered."

Similar passages can be found in Craies on Statute Law 6th Ed. at pages 99 and 69:

Lastly, S.19 of the Interpretation and General Clauses Ordinance, Cap.1 must not be overlooked:

"19. An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit."

33. The construction canvassed by the Board would defeat the very intention of the Legislature and frustrate every conceivable purpose of section 82A.

34. The meaning and effect of section 82A are plain. In my judgment, the alternatives for charging additional tax by way of penalty are mutually exclusive. The former alternative is confined to the situation where an original incorrect return is accepted and the latter alternative to the situation where the original incorrect return is rejected.

35. From this single issue the Commissioner appeals, and there is no cross appeal. In his criticism of the Board's alleged erroneous computation, Mr. Kwok complained of the inclusion of depreciation which was not claimed in the original return and the grant of allowance to the taxpayer on his personal assessment. No appeal has been brought from the decisions on these matters which are wholly indorsed by the Commissioner.

36. The desirability of including specific questions of law for the opinion of the Court in a case stated was succintly explained by Roskill L. J. in Ransom v. Higgs⁽¹²⁾. Mr. Kwok sought refuge in the case of C.I.R. v. Rico Internationale Ltd.⁽¹³⁾ where Scholes, J. had this to say:

37. At p.269, Blair-Kerr, J. shared the same opinion:

38. The case stated is on one particular point, and this allegation of erroneous computation eagerly sought to be argued by Mr. Kwok cannot, in my view, be included by section 69(5) in the "questions of law arising on the case stated". If I were to subscribe to counsel's proposition, almost every appeal would serve as a cross appeal for a respondent. That is obviously not the intention of the Legislature which saw fit to set a one-month time limit for an appeal to be brought. In any event, my views on these matters ventilated before the Court could bring the Respondent no comfort. Counsel submitted that on the original incorrect return, personal assessment could not have been processed without the requisite further information. Whenever a taxpayer elects personal assessment, counsel elaborated, further particulars will be required of him as a matter of course under section 51(1) of the Inland Revenue Ordinance. Thereafter, the taxpayer will have to furnish information of property income, salary income, profits and interest income, together described as the "the total income" under section 42(1)(a), (b), (c) and (d). I find myself at variance with that argument of counsel. Under section 51(2) the taxpayer was obliged to submit the requisite information even if unsolicited, and it would seem that in the absence of any further information from the taxpayer in discharge of his statutory duty, it was not unreasonable for the assessor to assume that none existed. Mr. Kwok returned with the contention that section 51(2) imposes a criminal liability but is not concerned with the mechanics in computing tax liability on the basis of a personal assessment. However, the point taken expired as an exercise in futility by reason that the Respondent did in fact supply all the information at the time of making his original incorrect return. A statement to this effect made by Mr. Somerville was not differed from by Mr. Kwok, and this line of argument abruptly ceased to command any real interest.

39. As for the depreciation which was disclosed in the original incorrect return but not then claimed by the taxpayer, the answer seems to lie in section 37 which imposes a duty on the assessor to allow depreciation whether or not it is claimed as a deduction.

40. In conclusion, the questions posed for my consideration are answered as follows:

41. This appeal is therefore allowed with costs, and to that extent the decision of the Board of Review be set aside and the Commissioner's assessment of additional tax be restored.

Representation:

Mr. Somerville, counsel for the Appellant.

Mr. Kenneth Kwok instructed by Messrs. Woo, Kwan, Lee & Lo for Respondent.

(1) HKTC 185 at p.223.

(2) [1910] 2 I.R. 306

(3) 15 Q.B. 88

(4) 5 H. & N. 415

(5) [1928] 2 K.B. 447

(6) [1910] 1 I.R. 306

(7) Page 162 Broom's Legal Maxims 10th Ed.

(8) 5 H. & N. 415

(9) [1947] 1 K.B. 775

(10) [1953] 1 W.L.R. 649

(11) (1826) 3 Addams 210 at p.216.

(12) 50 T.C. 1 at 45E

(13) HKTC 229 at p.255