Commissioner of Inland Revenue v. Board of Review (Inland Revenue Ordinance) and Another

cacv 57/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 57 of 2006

(on appeal from HCAL NO. 118 of 2004)

BETWEEN

Before: Hon Rogers VP, Le Pichon JA and Sakhrani J in Court

Date of Hearing: 8 June 2007

Date of Judgment: 8 June 2007

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J U D G M E N T

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Hon Rogers VP:

1.This is an application for leave to appeal to the Court of Final Appeal.  It is from a judgment of this court given on 27 April 2007.  On that occasion, this court was dealing with an appeal from a judgment of the Court of First Instance in which it had granted judicial review in respect of a decision of the Board of Review refusing to state a case.  This court upheld the Court of First Instance and said the case should be stated.

2.The only thing that remotely comes anywhere near a question which could be considered by the Court of Final Appeal on the basis of whether there is a matter of great general or public importance comes in question 1 of the various questions which have been listed out.  That is, in effect, whether there can be a second case stated in any proceedings before the Board of Review.

3.This court considered the arguments very carefully and if I might say so, the matter was gone into with considerable care.  It came to the conclusion that every time the Board issued a decision, there could clearly be a case stated because there may be matters of law which arose in that decision which did not arise in the previous decision.  That, as a matter of logic, is the result this court arrived at.

4.In those circumstances, it does not seem to me to be correct for this court to give leave for the matter to go to the Court of Final Appeal.  If it should be raised there, it is a matter which the Court of Final Appeal can decide to grant leave to appeal, if it sees fit.

5.The remainder of the questions which have been listed out in the Notice of Motion appear to me to be unacceptable.  For example, question 2 is so indefinite that it is not a matter in respect of which I would even contemplate giving leave.

6.Question 3 is a matter which does not arise; it is a question of whether further evidence of fact can be heard by the Board if the matter is remitted, but that is not a matter which arises on these judicial review proceedings.

7.The fourth, fifth and sixth questions seem to go together.  The fourth question is again a matter which I really cannot see how it can possibly arise.  It seems to raise as a question whether there could be a case stated if there is no question of law.  This court has never even suggested that, so I do not see how that can possibly arise in this case.

8.Question 5, in so far as it is a question, seems to me to go back to the first question all over again.  Question 6 questions whether there can be a case stated if one of the parties has abused the process.  Again, I really cannot see how that can arise on the judgment of this case because, as has been pointed out in skeleton argument by the respondents, paragraph 32 of the judgment of this court makes it quite clear that this court was not of the view that the process could be allowed to be abused.

9.Finally, the last question seems to raise a question as to whether the question of apportionment is solely a question of fact and no questions of law can arise on a matter of apportionment.  Again, I really cannot see that that can be right at all.  There must be questions of law which can arise on a question of apportionment, just as there can be questions at law which arise on questions of damages or anything else.  So, again, the question posed in such a general way seems to me to be quite inappropriate for submission to the Court of Final Appeal.

10.In those circumstances, I would refuse this application.

Hon Le Pichon JA:

11.I agree.

Hon Sakhrani J:

12.I also agree.

Mr Michael Yin, instructed by Department of Justice, for the Applicant/Respondent

Mr Neil Thomson, instructed by Messrs Johnson, Stokes & Master, for the 2nd Respondent/Applicant