Sit Kwok Keung v. Commissioner of Inland Revenue

cacv 23/2005

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 23 of 2005

(on appeal from HCAL NO. 144 of 2004)

BETWEEN

Before: Hon Rogers VP and Sakhrani J in Court

Date of Hearing: 13 December 2005

Date of Judgment: 13 December 2005

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JUDGMENT

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Hon Rogers VP:

1.This is an application for leave to appeal to the Court of Final Appeal.  The Applicant was late in applying for leave to appeal.  The reason was given orally and that is that he was suffering from a serious liver complaint which caused him to be in hospital close to the time of the hearing in this Court.  He was discharged from hospital, although he had to return twice a month.  As a result of his illness, he is suffering from diabetes.  Unfortunately, even taking all these things into consideration, they would not, except if there were very exceptional circumstances, seem to me to be sufficient for this Court to exercise its discretion to extend time to the extent required in this case.

2.Looking at the basis of the application for applying for leave to appeal to the Court of Final Appeal, the Applicant labours under a clear impression that there is manifest injustice, but the manifest injustice which the Applicant perceives is in the way the law has been framed in the Ordinance.  As has been explained in the judgment of this Court given on 3 June, there is nothing this Court can now do.  Effectively, the same point was argued in the Applicant’s previous case which was heard in 2002 and, as was pointed out, that judgment was not appealed and that stands.  As it is, the point which the Applicant seeks to argue in the Court of Final Appeal is the point which was dealt with in the judgment handed down in June this year and there is nothing more that can be said today other than what has already been said, that this is not a matter where this Court can see fit to hold that section 8(2)(i) of the Inland Revenue Ordinance is in breach of the Basic Law.

3.The Applicant sought to raise, as a ground for appeal to the Court of Final Appeal, the question as to whether he should be entitled to a single parent allowance for his two sons.  The question arose under section 32 of the Inland Revenue Ordinance.  That was a matter which was argued in the Applicant’s case in 2002, but it was not argued on this appeal and did not form part of the grounds of appeal in the notice of appeal to this Court.  Since it was not argued and it did not form part of the notice of appeal, it is not a matter that was considered by this Court.  In those circumstances, it would be wrong for this Court even to consider giving leave to appeal as a matter of great or general public importance, because it is not a matter which has hitherto been raised in this case.

4.Whilst this Court expresses its sympathy for the Applicant, so far as it can, unfortunately, the Applicant’s points cannot be grounds for granting leave to appeal.  In those circumstances, I would refuse both the application for extension of time, as well as refusing the leave to appeal.

Hon Sakhrani J:

5.I agree.

The Applicant, in person

Mr Eugene Fung, instructed by Department of Justice, for the Respondent