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

HCMP 599/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 599 OF 2007

(ON APPEAL FROM HCAL NO. 15 OF 2007)

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Before:  Hon Yeung JA and Hon Lam J in Court

Date of Hearing:  20 February 2008

Date of Judgment:  3 March 2008

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J U D G M E N T

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Hon Yeung JA (giving Judgment of the Court):

1.On 31 October 2007, we handed down a judgment dismissing the applicant’s appeal against the order of Cheung JA, who refused to grant an extension of time to the applicant to appeal against the order of Saunders J.

2.Saunders J had earlier dismissed the applicant’s leave application for a judicial review against Inland Revenue Department (“IRD”).

3.The applicant now seeks leave to appeal to the Court of Final Appeal.

4.The background of the case and the issues involved in the applicant’s case had been set out in our earlier judgment and we do not propose to repeat them.

5.We wish to repeat, however, what we had stated at paragraph 23 of our judgment that, “what the applicant does is a clear abuse of the court’s process. The applicant simply is not entitled to re-open the same subject matter after the court had decided against him in earlier proceedings, whether he likes it or not”.

6.The applicant, in his supporting affirmation, repeats his complaints against IRD. He says that he was the victim of IRD’s misconduct and had suffered damages. The applicant further emphasizes that his company did not conduct any business and was therefore not liable for any tax. He says that his appeal has a real prospect of success.

7.The applicant does not submit that he is entitled as of right to appeal pursuant to s 22(1)(a) of the Court of Appeal Ordinance nor is he suggesting that leave should be granted on the basis that the issue or question involved in his proposed appeal concerns a question of “great general or public importance”.

8.Rather, the applicant appears to be making repeated complaints and allegations against Sunders J, Cheung JA and this court, saying that he had been unfairly treated. The applicant emphasizes that the initial decision against him in favour of IRD is erroneous and should be rectified.

9.We have considered the applicant’s case and the matters that he has set out in his affirmation as well as what he says to us.

10.As it had been repeatedly emphasized to the applicant, the decision in favour of IRD is a final and conclusive decision, whether he likes or not.

11.If the applicant is aggrieved by an assessment made by IRD under the Inland Revenue Ordinance, he is entitled to object to the assessment in accordance with s 64 and/or appeal to the Board of Review in accordance with s 66.

12.Under s 71, the applicant is of course obliged to pay the tax assessed by IRD despite any notice of objection or appeal unless the Commissioners orders that the payment of tax or any part thereof be held over pending the result of such objection or appeal.

13.The order refusing leave to commence judicial review application is a discretionary decision and the applicant is clearly not entitled as or right to appeal pursuant to s 22(1)(a) of the Court of Final Appeal Ordinance.

14.Whatever grievances that the applicant may harbour against the decisions of Saunders J, Cheung JA and this court, those grievance cannot be elevated and transformed into issues of “great general or public importance” where none exists.

15.There is no valid basis upon which we can grant leave to appeal to the Court of Final Appeal. The application is therefore dismissed.

Applicant: In person.