The Commissioner of Inland Revenue v. Wong Chi To, The Director of Selbo Industries Ltd

DCTC 8460/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

TAX CLAIM NO. 8460 OF 2007

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Before:    Her Honour Judge Mimmie Chan in Chambers (open to public)

Date of Hearing: 28 November 2008

Date of Delivery of Decision: 28 November 2008

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D E C I S I O N

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1.Having heard submissions from both parties, despite Miss Lam’s valiant efforts, I am not satisfied that there are reasonable prospects of success of the intended appeal.  As pointed out in the case of CIR v Choy Sau Kam & Chan Yun [1983] 2 HKTC 10, the question is not whether there are triable issues but whether the court is precluded from trying them by virtue of section 75(4) of the Ordinance.

2.The essence of the plea in the Defence, that the Commissioner has no jurisdiction in the narrow sense to make the assessment, remains, in my view, a plea that the tax assessed is incorrect.  I cannot see how the case of Ng Chun Kwan v. The Commissioner of Inland Revenue [1976] HKLR 94can be distinguished from the present case, and Ng Chun Kwan has been consistently applied to mean that any defence that the tax assessed under an assessment issued by the Commissioner is incorrect or a nullity is barred under section 75(4) of the Ordinance.

3.It is clear from the decided cases that the legislative intent of section 75(4) is clear, and that the language used in the section is wide enough to wrap up all objections which can be made to the assessment issued.  If a taxpayer is dissatisfied with an assessment, the proper avenue is to object and appeal under the relevant provisions of the Ordinance, which include provisions for questions of law to be stated for determination by the Court of First Instance and for direct appeal to the Court of Appeal by reason of the general public importance of the matter or its extraordinary difficulty or for any other reason.

4.I am not persuaded that the Defendant cannot properly argue, on an appeal under the Ordinance, that he is not liable to the tax assessed on his alleged lack of jurisdiction ground.

5.In view of the clear legislative intent, meaning and effect of section 75(4), I am not satisfied that there is any public interest to be examined or clarified by the Court of Appeal.

6.The Defendant’s application for leave to appeal is dismissed with costs, with certificate for counsel.

Mr Paul H M Leung, instructed by the Department of Justice, for the Plaintiff

Miss Catrina Lam, instructed by Messrs Ng & Co., for the Defendant