Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Suen Hung Shan v Commissioner Of Inland Revenue

Judgment Cited authorities 2 Cited in 1 Precedent Map Related
Vincent
Judgment Date07 December 2020
Neutral Citation[2020] HKCA 1010
Judgement NumberCAMP144/2020
Citation[2021] 1 HKLRD 175
Year2020
Subject MatterMiscellaneous Proceedings
CourtCourt of Appeal (Hong Kong)
CAMP144/2020 SUEN HUNG SHAN v. COMMISSIONER OF INLAND REVENUE

CAMP 144/2020

[2020] HKCA 1010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 144 OF 2020

(ON AN INTENDED APPEAL FROM HCIA NO 1 OF 2020)

___________________

BETWEEN

SUEN HUNG SHAN Appellant
and
COMMISSIONER OF INLAND REVENUE Respondent

___________________
Before: Hon Yuen and Barma JJA in Court
Dates of the Appellant’s Summons and Statement: 26 and 25 August 2020
Date of the Respondent’s Statement: 9 September 2020
Date of Judgment: 7 December 2020

____________________

JUDGMENT

____________________

Hon Yuen JA:

1.1. On 26 August 2020, Mr Suen Hung Shan (“the Taxpayer”) filed a summons in this court for leave to appeal against the Decision of the Inland Revenue Board of Review (“BoR”) given on 16 March 2020 in B/R48/18 (“the BoR Decision”) regarding salaries tax payable for the year of assessment 2013-2014 (“Y/A 2013-2014").

1.2. In HCIA1/2020, Godfrey Lam, J (“the Judge”) in the Court of First Instance (“CFI”) dismissed the application for leave to appeal on the ground that it was out of time1.

Relevant dates

2. It is important to note the dates when important procedural steps were taken.

3. According to the Taxpayer, the BoR Decision was communicated to him on 19 March 20202.

4.1. The Taxpayer then applied to the CFI for leave to appeal by a summons filed on 7 May 2020 (“the CFI application”) which was served on the Commissioner of Inland Revenue (“the Commissioner”) on 11 May 2020.

4.2. On 26 June 2020, the Judge dismissed the CFI application (“the June Decision”) on the ground that it was not lodged or served within the statutory time limit stipulated in the Inland Revenue Ordinance Cap. 112 (“IRO”) as “extended” pursuant to the Interpretation and General Clauses Ordinance Cap.1 (“IGCO”).

4.3. As the Judge had determined the CFI application on the basis of written submissions only, the Taxpayer (pursuant to s.63(3)(g) IRO) requested the Judge to reconsider the determination at a hearing inter partes.

4.4. The inter partes hearing took place on 24 July 2020. On the same day, the Judge ordered that his Decision of 26 June 2020 be maintained (“the July Decision”).

5. As noted earlier, on 26 August 2020 the Taxpayer applied to this court for leave to appeal.

Procedural steps for applying for leave to appeal

6.1. Section 69(1) IRO provides that where the BoR has made a decision, either party may appeal to the CFI against the BoR’s decision on an appeal under s.68 IRO3 on a ground involving only a point of law.

6.2. However, s.69(2) and s.69(3) (where material) provide as follows:

“(2) No appeal may be made ... unless leave to appeal has been granted, on the application of the appellant [i.e. the Taxpayer] or the Commissioner –

(a) by the [CFI]; or

(b) if a further application is made under subsection (4), by the Court of Appeal.

(3) For the purposes of an application to the [CFI] under subsection (2)(a) for leave to appeal –

(a) the application –

(i) must be lodged with the Registrar of the High Court, and served on the other party, within 1 month after the following date –

...

(B) if the Board’s decision is notified to the appellant by notice in writing, the date of the communication by which the decision is notified ...”.

(Emphasis added).

6.3. Since, on the Taxpayer’s own case, the date of the communication of the BoR Decision was 19 March 2020, the period of one month elapsed on 19 April 2020.

6.4. However, the High Court Registry was closed due to public health considerations from 23 March 2020 to 5 May 2020. It re-opened on 6 May 2020.

6.5. Sections 71(1A)(a) and (2) IGCO provide that if an act is allowed to be done within a period of time (in this case, within 1 month after 19 March 2020), and the last day of the period (in this case, 19 April 2020) was a closure day for the Registry, the period includes the next working day. The next working day after the closure was 6 May 2020, so that became the day when he must lodge and serve the application for leave to appeal.

6.6. Unfortunately for the Taxpayer, he lodged the application for leave to appeal only on 7 May 2020, i.e. one day late.

7.1. In the June Decision, the Judge considered whether he had power to extend time in favour of the Taxpayer. After examining a number of authorities, he concluded that the court had no power to do so5. Accordingly, the Judge dismissed the application for leave to appeal.

7.2. As the Judge had determined the application on the basis of written submissions only, on 2 July 2020 the Taxpayer sent to the court a document entitled “Request for Hearing under Cap.112 S.69(3)(g) regarding the Written Decision issued on 26 June 2020 without hearing”.

7.3. The Judge held an inter partes hearing on 24 July 2020 at which the Taxpayer was present. After hearing the Taxpayer’s submissions, the Judge orally delivered the July Decision in which he maintained the June Decision and refused to grant leave to appeal.

8.1. Section 69(4) IRO provides that if the CFI refuses to grant leave to appeal, the applicant may make a further application to the Court of Appeal for leave to appeal against the Board’s decision.

8.2. However, s.69(5) provides:

“(5) For the purposes of an application to the Court of Appeal under subsection (4) for leave to appeal –

(a) the application –

(i) must be lodged with the Registrar of the High Court, and served on the other party, within 14 days after the date on which the [CFI] refuses to grant leave ...”.

...

To continue reading

Request your trial
1 cases
  • Aw And Others v Py And Another
    • Hong Kong
    • Court of First Instance (Hong Kong)
    • 13 May 2022
    ...an act unless the statute so provides. Mr Whitehead also referred to the recent case of Suen Hung Shan v Commissioner of Inland Revenue [2021] 1 HKLRD 175, where the Court of Appeal observed that the only power which the court has to extend time is in the Rules of the High Court, and that t......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT