Bangkok Capital Antique Co. Ltd. v. The Collector of Stamp Revenue
Read the full judgment text of CACV 123/1983 on BabelCite. This Court of Appeal judgment.
1. This is an appeal against a decision reached by a District Judge on the 3rd August 1983 in a matter which arose under the Stamp Duty Ordinance (Cap. 117). This is what happened. The Bangkok Capital Antique Co. Ltd. (the Appellants) were dissatisfied with an assessment made on the 17th August 1982 by the Collector of Stamp Duty Revenue under s.13 of the Ordinance. In purported compliance with the provisions of subsection (1) of section 14 of the Ordinance, on the 16th September, their Solicito
Cited by 6 cases
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CACV000123/1983
BETWEEN
_________ Coram: Leonard, V.-P., Cons and Fuad, JJ.A. Date of udgment: 10th January 1984 ___________ JUDGMENT ___________ Fuad, J.A. : 1. This is an appeal against a decision reached by a District Judge on the 3rd August 1983 in a matter which arose under the Stamp Duty Ordinance (Cap. 117). This is what happened. The Bangkok Capital Antique Co. Ltd. (the Appellants) were dissatisfied with an assessment made on the 17th August 1982 by the Collector of Stamp Duty Revenue under s.13 of the Ordinance. In purported compliance with the provisions of subsection (1) of section 14 of the Ordinance, on the 16th September, their Solicitors on their behalf lodged a Notice of Appeal against the assessment. A copy was sent to the Collector who had, in the meantime been requested to state a case for the purpose of the appeal, as provided for in that subsection. 2. After waiting for over a month, the Appellants had not received the case stated and so, on the 22nd November 1982, they took out a Summons to compel the Collector to state a case. This was adjourned by consent, sine die. 3. On the 5th January 1983 the Collector sent the Appellants' Solicitors a draft case stated which was returned with comments, on the 13th January 1983. On the 22nd April the Collector wrote to the Solicitors asking for "any comments" on the case stated, within 28 days. The Solicitors replied on the 9th May protesting about the delay and stating that they did not wish to comment further on the case. They told the Collector that if he did not sign and deliver the case stated within seven days, they would apply to restore the adjourned Summons. 4. The case stated was received at the Solicitors' office on the 23rd May. It was dated the 21st May, The document, which was identical in terms to the draft of the case stated, was then sent to Counsel for advice. Counsel returned the document on the 9th June advising that it be sent to the Court, and the Appeal set down. The 11th and 13th June were public holidays; the case stated was sent to the Court on the 14th June, with a request that the matter be set down for hearing. 5. We do not have before us any reasons that may have been given by the District Judge, but it is clear that he decided that he had no jurisdiction to extend the time limited by s.14(2) of the Stamp Duty Ordinance within which the case stated must be set down for hearing, and dismissed an application for extension of that time. 6. Sub-sections (1) and (2) of s.14 of the Stamp Duty Ordinance are in the following terms -
7. The first ground of appeal relates to the service of the case stated. It is said that s.14(2) of the Ordinance mandatorily provides that the Collector must-deliver the case stated to the Appellant - there was no provision for delivery to an agent. Therefore the time stipulated in s.14(2) had not begun to run when the District Judge made his Order. Counsel relied upon the principle that tax statutes are strictly construed. He prayed in aid a decision of Rowlatt J, in Grainger v. Singer [1927] 2 K.B. 505, and drew our attention to the following passage of the judgment - at P.509 -
8. The facts of that case were rather different to those of the present. There, after stating a case, the Commissioners of Inland Revenue sent it to the office of the person requesting it (the surveyor of taxes) at the office he occupied when the appeal was before them, the address of which was on all the documents of the appeal. The surveyor had left the office in the meantime and gone elsewhere. Rowlatt J. held that the case had been "received" by the surveyor within s.149(1)(d) of the relevant Act of 1918. 9. I do not see how this case helps the Appellants. In any event, we have before us the letter dated the 2nd September 1982 from the Appellants' Solicitors requesting the case to be stated and signed, the penultimate paragraph of which states -
10. How can the Appellants now be heard to complain that this request was met? Speaking for myself I regard this contention as quite hopeless. I would reject it as a matter of practical common sense, and say no more about it. 11. The second ground of appeal sets up the proposition that both parties to any proceedings must act fairly to each other. A party who has been dilatory in the duty placed on it by law should not, it is argued, be permitted to take advantage of a technical point of procedure to complain that the other party has also been dilatory. Put another way - the Crown should be estopped from the raising the procedural objection. 12. It was submitted that the Courts had an inherent jurisdiction in matters of pure procedure to see that there was fair play between the parties. They should not allow a strict application of the law to prevent one of the parties from coming to the judgment seat if the procedural error or failure was minor in comparison to the default of the other party. 13. With all due respect, I know of no authority for so broad a proposition. To accept it would it seems to me to fly in the face of well established authority that a court has no power to extend a period of time limited by statute for doing an act unless the statute so provides. 14. The argument on behalf of the Appellants on the third ground of appeal runs this way. In interpreting s.14(2) of the Stamp Duty Ordinance a "fair large and liberal construction and interpretation" should be applied (s.19 of the Interpretation and General Clauses Ordinance). The section should therefore be interpreted in a manner most beneficial to the Appellants, they being the tax-payer seeking relief. The section could mean, it was suggested, that the Appellants may keep the case stated for not more than seven days, then serve it on the Attorney General and then set the appeal down for hearing within seven days after such service. 15. Counsel for the Appellants points out that the equivalent English Act (s.13(2) of the Stamp Duties Act 1981) contains no reference to service on the Attorney General and therefore the comment made by the authors of SERGEANT AND SIMS ON STAMP DUTIES (8th Edition) p.65 that the relevant words "mean presumably that if the case is set down at all it must be set down within seven days after delivery of the case" (even if the interpretations were justified) would not be apt to describe the effect of the Hong Kong legislation. I would simply say that I cannot see how s.14(2) can be fairly interpreted otherwise than as requiring that the case can only be set down within seven days of its delivery, by which time the Attorney General must also have been served. It might be said that the time frame is very short, but this is a matter for the legislature. 16. The final ground of appeal seeks to rely on the Court's inherent jurisdiction to control its own procedure. It was submitted the District Court had inherent power to extend the time limit mentioned in s.14(2) of the Stamp Duty Ordinance "if justice warrants the granting of such an extension. " Reliance was placed on R. v. Bloomsbury and Marlylebone County Court, ex parte Villerwest Ltd. [1976] 1 All E.R. 897 which held that a County Court had such inherent jurisdiction and this included the power to enlarge or extend any time limits attaching to an order granted at an earlier hearing by a different judge; the court's powers not being limited to what was expressly stated in the rules of practice, and applied even where the application for an extension of time was made after the relevant period had expired. 17. About that case, I would merely say that I do not read it as authority for allowing the District Court to override the express provisions of the Stamp Duties Ordinance imposing the time limit which was ignored. I do not think the matter is capable of further elaboration. 18. The appellants also seek to draw comfort from s.72 of the Interpretation and General Clauses Ordinance, which is in these terms -
19. It is contended that the words I have emphasized are not to be limited to power granted by the Ordinance itself. I think it would be to do violence to the grammatical organisation of the section to attempt to read it in this way. This ground has no substance. 20. Finally it is said that in 0.3 r.5 of the Rules of the Supreme Court, could help the Appellants. Paragraph (1) of that rule reads -
It is submitted that the word "direction" could be read to include a procedural direction contained in an Ordinance. This is plainly not so and it is only necessary to add that Rules of Court cannot override or put a gloss on the express words of a statute. 21. For the reasons I have attempted to give, I would dismiss this appeal, but before taking leave of it I would permit myself to remark that the Collector should have acted with more despatch, particularly since under s.14(l) of the Ordinance the stamp duty in dispute had to be paid before the request to state a case could be made. Leonard, V.-P.: 22. I agree that the appeal should be dismissed and with the observations of Fuad, J.A. regarding the Collector's delay. Cons, J.A.: 23. I also agree that the appeal should be dismissed.
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