Read the full judgment text of CACV 000165/1991 on BabelCite. This Court of Appeal judgment was delivered on 27 November 1991 before Yang CJ, Fuad VP, Clough JA.
Administrative law – judicial review – leave to apply – whether arguable case – test for grant of leave – Inland Revenue Ordinance (Cap 112) ss.59(1), 59(3), 64, 76(1) – assessment of profits tax – notice of recovery to third party – police seizure of cash – magistrate's order for return of money – conflict between court order and statutory recovery powers – Wednesbury unreasonableness – bad faith – abuse of process – contempt of court – Police Ordinance – Summary Offences Ordinance (Cap 228) s.30 – R.S.C. O.53, r.3(4), r.3(7), r.5(1) – appeal against refusal of leave to apply for judicial review by Jones, J. – applicant Madam Lee Sap Pat found with $1 million in notes by police on 28 October 1990 and charged under s.30 of the Summary Offences Ordinance – acquitted on submission of no case to answer – magistrate ordered return of money if no appeal within 14 days – Crown's application to review refused – Inland Revenue subsequently issued assessment for 1984/85 year of assessment demanding $1,020,000 and notice for recovery of tax under s.76(1) to Commissioner of Police – police paid $1 million to Commissioner of Inland Revenue on 7 June 1991 – applicant sought judicial review – whether leave should be granted – first issue: whether applicant demonstrated arguable case for judicial review on materials before court – held: yes, application raised matters fit for further investigation – learned judge's conclusion that application was wholly misconceived and doomed to failure not accepted – second issue: scope of s.59(1) proviso and s.59(3) – whether assessor had jurisdiction to estimate assessment without prior return – held: arguable – proviso requires expediency and non-capricious exercise of power – absence of affidavit evidence from Commissioner meant court could not conclude assessment was lawful on materials – third issue: lawfulness of s.76(1) notices to Commissioner of Police while magistrate's order stood – held: arguable – question whether police were entitled to act on s.76 notice notwithstanding subsisting court order required further investigation – whether actions of police and Inland Revenue officials amounted to abuse of process, bad faith, or contempt of court – held: arguable and not finally determined at leave stage – application of ex parte Rukshanda Begum test – grant of leave where point is fit for further investigation on inter partes basis – appeal allowed – leave to apply for judicial review granted – originating motion to be filed within 14 days.
Legal issues: Whether leave to apply for judicial review should be granted · Scope of s.59(1) proviso and s.59(3) Inland Revenue Ordinance · Lawfulness of s.76(1) recovery notices issued to Commissioner of Police
Outcome: Appeal allowed; leave to apply for judicial review granted to the applicant