Wong Yu Cho Rolly v. Inland Revenue Board of Review
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HCAL108/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 108 OF 2009 ----------------------------- BETWEEN
----------------------------- Before : Hon Poon J in Court Dates of Hearing : 1 December 2009 and 10 June 2010 Date of Decision : 10 June 2010 ---------------------- D E C I S I O N ---------------------- 1.The applicant carried on a business known as Marco Polo, which commenced trading on 1 January 1996. 2.This is his application for leave to apply for judicial review against the Board of Review dated 17 July 2009 (“the July Decision”) refusing his application to state a case against its decision dated 12 November 2008 (“the November Decision”) to enable him to appeal to the Court of First Instance. 3.The background circumstances had been set out by the Board in its written decision for the November Decision thus :
4.The applicant raised 7 grounds of appeal before the Board, which were all rejected. The Board then dismissed the appeal. 5.By letter dated 12 February 2009, the applicant’s solicitors applied to the Board for leave to appeal against the November Decision. Enclosed with that letter was the proposed notice of appeal. Further written submissions on the proposed grounds of appeal were placed before the Board. By the July Decision, the Board refused to state a case because the proposed grounds of appeal were not questions of law. 6.The applicant now wishes to apply, by way of judicial review, for a certiorari to quash the July Decision, a declaration that the applicant is entitled to the case stated for the High Court of determination, and alternatively a mandamus to direct the Board to state a case for the opinion of the Court of First Instance in accordance with the grounds placed before it on 12 February 2009. 7.Section 69 of the Inland Revenue Ordinance (Cap. 112) provides :
8.In applying to the Board to state a case on a question of law, the applicant must identify a question of law which is proper for the High Court to consider. The Board is under a statutory duty to state a case in respect of that question of law. The Board has a power to scrutinize the question of law to ensure that it is one which is proper for the court to consider. If the Board is of the view that the point of law is not proper, it may decline to state a case. See Commissioner of Inland Revenue v Inland Revenue Board of Review and Another [1989] 2 HKLR 40, per Barnett J at p. 57H-J. 9.Here, the proposed grounds of appeal placed before the Board on 12 February 2009 are not questions of law. Presently formulated, they are just grounds of appeal setting out why in the applicant’s view the Board had erred in the November Decision. 10.For this reason alone, the Board was entitled to refuse to state a case in accordance with those grounds. The applicant’s intended judicial review is not reasonably arguable. It must be refused. 11.Counsel for the applicant has devoted considerable time and effort to the merits of the grounds of appeal. (There are five altogether but I am told that the applicant will abandon Grounds 1 and 2 and will only rely on Grounds 3 to 5.) I shall not go into detail of counsel’s submissions in light of my ruling above. I will briefly dispose of them by saying that having carefully considered all the materials before me, I am unable to conclude that the applicant has a reasonably arguable case that those grounds are proper questions of law that the Board ought to have considered and acted upon in stating a case. 12.For the above reasons, I refuse the application.
Ms Angela Gwilt and Mr Johnny Fok, instructed by Messrs Raymond Chu & Co. for the hearing on 1 December 2009 and Messrs Y.T. Szeto & Co. for the hearing on 10 June 2010, for the Applicant | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment