Chan Chun Chuen v. The Commissioner of Inland Revenue

CACV 113/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 113 OF 2011

(On Appeal from HCAL No. 76 of 2010)

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DECISION

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Hon Cheung JA (giving decision of the Court):

1.The applicant applies for leave to appeal to the Court of Final Appeal against our judgment dated 8 March 2012 on the ground of great general or public importance. The three questions that have been framed for this ground are as follows :

(1) Is the proportionality approach applicable in determining whether the statutory scheme for service of a notice of assessment under sections 62(l) and 58 of the Inland Revenue Ordinance (‘IRO’) (Cap. 112), and the making of objection thereto under section 64(1) of IRO, constitutional having regard to Article 35 of the Basic Law and/or Article 10 of the Hong Kong Bill Of Rights Ordinance (Cap. 383)?

(2) Does the said statutory regime, which restricts the court’s review of the Commissioner’s decision under section 64(1) to the traditional grounds for judicial review, satisfy the proportionality approach?

(3) Is the interpretation of sections 62(1) and 58 of IRO that no actual notice of the assessment is required in order to constitute a valid service of the assessment correct, having regard to the constitutional protection under Article 35 of the Basic Law and Article 10 of the Hong Kong Bill Of Rights Ordinance?

2.In essence these questions are concerned with the constitutionality of the statutory scheme under the IRO and the Court’s ambit of scrutiny in an application such as this.

3.The applicant was represented by very experienced specialist senior counsel.  The issues now relied upon by Mr. Mok SC were not relied upon by the applicant when he applied for judicial review.  There were not issues relied upon by him before Reyes J.  There were also not issues relied upon by him before this Court.  Although the point on constitutionality was briefly addressed in our judgment, it was in response to Mr. Stewart Wong SC’s submission on this point.  As can be seen from the judgment, the appeal was determined on the construction of the statutory provisions and not on the constitutional issue.

4.This being a judicial review, since these issues have never been taken by the applicant before, we are of the view that these issues are not open for him to take now.  This being the case we will refrain from addressing the merits of these issues.  Accordingly we will refuse the application with costs to the respondent.

Mr Johnny Mok SC, Ms Catrina Lam and Mr David Chen, instructed by Li & Lai, for the applicant

Mr Stewart KM Wong SC, instructed by Department of Justice, for the respondent

Please refer to FAMV23/2012 for the relevant appeal(s) to the Court of Final Appeal.