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Nomura Funds Ireland Plc v The Collector Of Stamp Revenue

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date21 June 2019
Neutral Citation[2019] HKDC 852
Year2019
Judgement NumberDCSA4/2017
Subject MatterStamp Duty Appeal
CourtDistrict Court (Hong Kong)
DCSA4A/2017 NOMURA FUNDS IRELAND PLC v. THE COLLECTOR OF STAMP REVENUE

DCSA 4/2017

[2019] HKDC 852

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

STAMP APPEAL NO 4 OF 2017

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IN THE MATTER of Section 14 of the Stamp Duty Ordinance, Cap 117

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BETWEEN
NOMURA FUNDS IRELAND PLC Appellant
and
THE COLLECTOR OF STAMP REVENUE Respondent

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Before: His Honour Judge Andrew Li in Chambers (Open to Public)

Date of Hearing: 14 June 2019

Date of Decision: 14 June 2019

Date of handing down Reasons for Decision: 21 June 2019

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REASONS FOR DECISION

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INTRODUCTION

1. This is an application by Nomura Funds Ireland Plc (“the appellant”) for leave to appeal to the Court of Appeal against my decision handed down on 22 March 2019 (“the Decision”).

2. At the end of the hearing on 14 June 2019, I dismissed the appellant’s application with costs in favour of the respondent. I said I would provide the reasons for my decision in due course. Here are the reasons.

BACKGROUND

3. The facts of this case can be found in the Decision and in the Case Stated summed up by the respondent which had been agreed by the appellant prior to the original appeal hearing. I do not need to repeat them here.

4. The appellant relies on 4 substantive grounds plus the additional “public interest” ground in its draft notice of appeal (“the Draft Notice of Appeal”).

5. It is trite that no leave should be granted if any of its grounds set out in the Draft Notice of Appeal is devoid of merits or unarguable. To put it in another way, unless the appellant can demonstrate to the court that there is a reasonable prospect that it will succeed in the Court of Appeal “or otherwise” that in the interests of justice that the appeal should be allowed, then no leave should be allowed: see section 63A of the District Court Ordinance, Cap 336.

6. I shall discuss each of those grounds relied on by the appellant and the reasons why I had dismissed the application hereinbelow.

DISCUSSION

Ground 1: The court erred in law in rejecting the evidence of Luxembourg law provided in writing by Luxembourg counsel at the request of the respondent

7. Under this ground, Mr Mariani, solicitor for the appellant, submits that whereas the court was correct to identify the House of Lords judgment in Lazard Brothers & Co v Midland Bank Ltd [1933] AC 289 as authority for the proposition that the existence and incidents of a company’s personhood, and any change thereof, are governed by the laws of the jurisdiction of its incorporation (see §28 of the Decision), it erred in law by failing to bring that general principle to its only logical conclusion in rejecting uncontested evidence of Luxembourg law as provided by Luxembourg counsel in two separate opinions, in each case expressly solicited by the respondent, and furnished by the appellant at the appellant’s expense: (see §§41 to 46 of the Decision).

8. In particular, the appellant submits that the Second Opinion set out in detail the analysis and reasoning of Luxembourg counsel on which its conclusions of law were premised, and was thus internally consistent on its own terms and not manifestly wrong or unfounded. It was thus impermissible for the court to speculate on the proper content or depth of reasoning of an opinion of Luxembourg law (see §§45 to 46 of the Decision). Thus, it says that there is no tenable basis for a forum with no alternative understanding of Luxembourg law to presume what the appropriate content or mode of reasoning is for an opinion of foreign law where the conclusions draw in that opinion are on their face arguable and not patently contradictory or absurd.

9. Further, the appellant submits that the authorities cited by counsel for the respondent and accepted by the court at §43 of the Decision in rejecting the probative value of the Second Opinion were not on point. According to the appellant, those decisions turned on the evidential weight to be accorded to opinions of foreign law in the ambit of commercial disputes; that context is fundamentally distinct from a foreign law firm issuing an opinion addressed to a public body in Hong Kong at the express request of that public body. At no time did the respondent ever assert any submission to the effect that Luxembourg counsel was in any way unqualified to opine on matters of Luxembourg law, or otherwise lacked the requisite objectivity or impartiality of an expert witness.

10. The appellant further submits that it was inconsistent with good public administration and procedural fairness for the respondent to do what they did in this case.

11. With respect, I do not accept any of the above submissions.

12. It is firstly wrong for the appellant to contend that the two Opinions were “uncontested”. The respondent did. I accept the submission of the respondent’s counsel, Mr Jonathan Chang that, just because there was no expert opinion from the respondent it did not mean the two Opinions were “uncontested” and must be accepted by this court.

13. I also fail to understand how the two Opinions could be said to have been adduced “at the express request” of the respondent. I do not think it was the case at all. In this regard, I agree with the respondent that the burden of challenging the stamp duty assessment falls on the appellant, and it is up to the appellant to adduce evidence for such purpose. It is not for the respondent to disprove any propositions or theory, whether it is on a matter of law or fact, put forward by the appellant in such an appeal. Hence, I agree with Mr Chang that the respondent was plainly entitled to challenge the two Opinions as not supporting the appellant’s case.

14. In my judgment, there is nothing in the respondent’s conduct that is “inconsistent with good public administration and procedural fairness” as the appellant contended. In any event, it is unclear how this could possibly assist the appellant in its appeal. As I have put to Mr Mariani during the hearing, these are clearly administrative law matters which the appellant has to seek judicial review on if they are not satisfied with the way they were being dealt with “administratively”. This court does not have any jurisdiction on such matters.

15. Further, with greatest respect to the appellant’s solicitor, the two authorities cited in §43 of the Decision on the court’s approach in evaluating expert evidence are directly on point and I cannot see how they can be distinguished as submitted by the appellant. I simply cannot see how these authorities are limited to “commercial disputes” only and why the court should adopt a different approach in other disputes. I reject such absurd argument.

16. I also believe that I have comprehensively analyzed the terms of the Merger Proposal read in light of the relevant provisions under the Luxembourg law and concluded that it was the Merger Proposal that had effected the Merger and in turn the transfer of the HK Securities to the Receiving Sub-Fund, and gave detailed reasons why the two Opinions did not support the appellant’s contention in my Decision: (see §§30-47 of the Decision). The appellant did not advance any argument either in its skeleton or in its Draft Notice of Appeal as to why my reasoning was...

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