The Commissioner of Inland Revenue v. Ngai Lik Electronics Co Ltd

DCTC 6110/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

TAX CLAIM NO. 6110 OF 2007

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BETWEEN

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Coram  :  His Honour Judge Chow

Date of hearing  :  11^th May, 2007

Date of handing down Decision  :  21^st May, 2009

DECISION

1.This is the Defendant’s application for leave to appeal against the decision handed down by this Court on 17 December 2008 to the Court of Appeal, and for a stay for execution of the interlocutory judgment made by Master Poon on 23 June 2008,  pending the hearing of the Defendant’s appeal to the Court of Appeal.  No grounds of appeal were provided by the Defendant.  But the Defendant filed in, on 2^nd March 2009, the 5^th affirmation of Mr. Yeung Cheuk Kwong, the Defendant’s Chief Financial Officer.  Under paragraph 3 of his affirmation, Mr. Yeung said:-

“3.          The Defendant respectfully seeks leave to appeal to the Court of Appeal in respect of the complex issues of law which have been considered in the reserved Decision of His Honour Judge Chow and also in respect of the issue whether or not the jurisdictional requirement of section 75(3) of the Inland Revenue Ordinance (Cap. 112) that the Commissioner is to provide a certificate “signed by the Commissioner” was ever met in this case …… ”

2.The Defendant submits that the proposed appeal raises important legal issues which have never been the subject of any decision of the Court of Appeal or above.  If a decision on these issues is made from the Court of Appeal then it would provide authoritative guidance to this Court.  In gist the Defendant argues that the absence of time limitation in section 61A of the Inland Revenue Ordinance (“IRO”) is contrary to Article 105 of the Basic Law and/or Articles 13 and 22 of the Bill of Rights Ordinance, and to that extent section 61A is void, and the notices of assessment were hence void.  It also contends that to the extent section 75(4) of the IRO purports to remove judicial authority to decide the issues in question and/or the duty of this Court to exercise its relevant judicial powers, it is contrary to notice 35 of the Basic Law and/or Articles 13 and 22 of the Bill of Right Ordinance, and therefore is void and therefore does not debar this Court from entertaining the Defendant’s pleas.

3.I have dealt with these provisions in my Decision handed down on 17.12.2008.  No arguments were advanced in this application to show how my reasoning on the adjudication of these issues is wrong.  I cannot see how the Defendant can succeed in its arguments before the Court of the Appeal.

Was the requirement under s. 75 (3) of the IRO met?

4.Section 75(3) of the IRO provides:-

“In proceedings under this section for the recovery of tax the production of a certificate signed by the Commissioner stating the name and last known address of the defaulter and particulars of the tax due by him shall be sufficient evidence of the amount so due and sufficient authority for a District Court to give judgment for the said amount.”

(Underline added)

Under section 75(3), must the certificate be signed by the Commissioner personally?  Section 82A(3) of the IRO stipulates that “An assessment of additional tax may be made only by the Commissioner personally or by a deputy commissioner personally.”  The word “personally” does not appear in section 75(3).  If the Legislature had intended that the certificate referred to in section 75(3) has to be signed by the Commissioner personally, it would have inserted the word “personally” in that section.  But that was not done.  Hence there is no legal requirement that the certificate under section 75(3) must  be signed by the Commissioner personally.  Under section 3(3) of the IRO an assistant commissioner exercising or performing any power, duty or function of the Commissioner under the IRO shall be deemed for all purposes to be to authorize to exercise or perform the same until the contrary is proved.  The certificate in this case was signed by an assistant commissioner.  So he was performing the duty of the Commissioner under section 75(3).  Therefore the certificate in question was duly signed in compliance of section 75(3).  Hence it was a valid certificate.

5.For all the reasons stated above, I cannot see any merit in the Defendant’s arguments.  I therefore dismiss the applications for leave to appeal and for a stay of execution of the judgment passed by Master Poon.

Costs

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

The Plaintiff  : represented by Miss Michelle Chan of the Department of Justice

The Defendant  : represented by Mr. Barrie Barlow, S.C., instructed by M/S Andrew Lam & Co., Solicitors.