Wong Yu Cho Polly t/a Marco Polo and China Overseas Technical Development v. Inland Revenue Department

DCCJ 4492/2004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 4492 OF 2004

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BETWEEN

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Coram : His Honour Judge Chow in Court

Date of Hearing : 30^th August, 2005

Date of handing down Decision : 9^th September, 2005

DECISION

1.This is the Plaintiff’s application for leave to appeal out of time against the Decision made by me on 20^th June 2005.  The fundamental issue I have to decide is whether the Plaintiff will have a prospect of success if leave is granted out of time for him to appeal to the Court of Appeal.

2.In Paragraph 7 of his affirmation dated 15 July, 2005, the Applicant said:-

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7.

On page 5 paragraph 10, the court said that I have no prospect of succeeding in my defence. However, as mentioned, I have handed all the evidence his lordship requested. It is absolutely prejudice and unfair to a layman like me, to be denied of all the submissions to the court without considering my defence, and pleaded I have no prospect whatsoever.”

This contention cannot stand.  The Plaintiff has not submitted any proposed reply and defence to the counter-claim for this Court to consider.  In the absence of such a document, I was unable to say definitely what the defence of the Plaintiff is.  As shown in Paragraph 9 of the Decision, I presumed that his likely defence is that the assessments in question are incorrect, but I decided that this Court was precluded from entertaining that defence.

3.In his written submission, the Plaintiff referred to Paragraph 3 of the Decision and stated that he had submitted to the Defendant the relevant documents on 15^th April 2004, which clearly showed that China Overseas Technical Development had no business activities and Marco Polo had been making a loss, and therefore none of these companies should be taxed.  According to the Defendant, the objections were not substantiated by tax returns as required by section 64(1)(b) of the Inland Revenue Ordinance (“the Ordinance”) and are therefore invalid objections.  I did refer to the cases of Commissioner of Inland Revenue Hong Kong v. Lai Yin-ha formerly trading as China Skin Specialist Clinic (CACV 73 of 1998) in Paragraph 9 of the Decision and held that this Court is precluded from entertaining that defence, by reason of section 75(4) of the Ordinance.  Therefore there can be no defence to the counter-claim by the Defendant.  The burden to set aside the regular judgment entered against the Plaintiff in respect of the Defendant’s counter-claim is on the Plaintiff.  He has to show that he has a real prospect of success against the counter-claim raised by the Defendant.  He will not be able to do so, because this Court is precluded by section 75(4) of the Ordinance to entertain such a defence.  Since he will not be able to put up such a defence, there cannot be any defence to the counter-claim.  As a result the final judgment entered in respect of the counter-claim cannot be wrong.  Therefore there is no reason to set aside such a regular judgment.  That being the situation, even if this case is to be considered by the Court of Appeal, the outcome will be the same, and the Plaintiff will have no chance of success for the same matter to be considered by the Court of Appeal.  Accordingly I dismiss his application.

4.In his written submission the Plaintiff submitted that he did show to this Court some news articles relating to an attempt to kidnap his son.  In this way he explained to this Court why he was unavailable to file a defence at the material time.  But it is a fact that he did not put up at the material time an explanation in his affirmation in support of setting aside the regular judgment as to why he did not have time and opportunity to file his defence.

5.The Plaintiff referred to violation of the Basic Law, contempt of court, and late submission of documents.  The first two matters do not cover issues relating to the counter-claim.  So it is unnecessary for me to make any finding.  For the last matter, I cannot see any prejudice done to the Plaintiff.  These matters cannot be a defence to the counter-claim.

Costs

6.I make an order nisi, to be made absolute in 14 days’ time, that the Plaintiff is to pay costs of this application, to be taxed, if not agreed.

The Plaintiff : appeared in person.

The Defendant: represented by Mr. Ho Chi Sum, Senior Government Counsel of Department of Justice.