SUEN HUNG SHAN v. COMMISSIONER OF INLAND REVENUE

HCIA 3/2017

[2020] HKCFI 1065

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

INLAND REVENUE APPEAL NO 3 OF 2017

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D E C I S I O N

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1.  This is an application by the Commissioner for leave to appeal against my decision dated 11 March 2020 [2020] HKCFI 418.

2.  It seems to me that the intended appeal raises a discrete point of statutory construction which has sufficient prospects to be permitted to be taken to the Court of Appeal.  It is a novel point which has some general significance as regards the proper procedure for challenging a decision of the Board of Review that an appeal to the Board is out of time or that time is not to be extended.  I am not sure how the Commissioner deals with the point that the Board ordered costs against the taxpayer which seems to me to be clearly an exercise of power under section 68 and which the Commissioner appears to accept was in error.  But it seems to me the whole procedural question is fit for consideration by the Court of Appeal. 

3.  I have some concern, however, in relation to Mr Suen’s potential exposure on costs and so, during the hearing, I mentioned to him that it is his choice whether actively to take part in the appeal which concerns a point of statutory construction to which the contribution that he could realisically make acting in person, with every respect to him, may not be proportionate to the risk of costs to which he might be subject in case the appeal is allowed.  But, as I emphasised to Mr Suen, that is ultimately a matter for him.

4.  As is usual, the costs of the application will be in the cause of the appeal.  There will therefore be an order in terms of the summons.