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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J U D G M E N T

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Hon Cheung JA:

The appeal

1.  The Commissioner of Inland Revenue (‘the Commissioner’), by 25 property tax and profits tax assessments (they are sometimes referred to as the notices of assessment in the proceedings), assessed Mr Chan Chun Chuen (‘the taxpayer’) to be liable to property tax in the sum of $631,784 and profits tax in the sum of $330.24 million.

2.  The taxpayer claimed that he had not received the 25 assessments and through his tax adviser, Grant Thornton Tax Limited (‘Grant Thornton’) by a letter dated 4 June 2010 objected to the assessments pursuant to section 64(1)(a) of the Inland Revenue Ordinance (‘IRO’).  He also asked for an extension of time to raise objection to the assessments which was stipulated by section 64(1) to be one month from the date of assessment.

3.  The Commissioner by letter dated 22 June 2010 refused the objection on the ground that it was not received within one month after the dates of issue of the 25 assessments. The Commissioner further refused to extend the time for lodging objection.

4.  The taxpayer applied for judicial review to quash the Commissioner’s decision not to consider his objection to the assessment (‘the first decision’) and his decision not to grant extension of time to lodge objection (‘the second decision’).  The taxpayer also applied for an order requiring the Commissioner to consider his objection.

5.  Reyes J quashed the decision of the Commissioner in refusing to grant an extension of time to object and ordered the Commissioner to consider whether to grant the taxpayer an extension of time to raise objection to the assessments.

6.  The Commissioner now appeals against the judgment.

Facts

7.  The taxpayer and his wife were the owners of three properties.  He and his brother, Chan Chun Hang, Bobby (‘Bobby Chan’) were the owners of another property. These properties were referred to in these proceedings as the Marble Road property, the MacDonnell Road property, the Laguna City property and the Tseung Kwan O property.

8.  On 21 October 2009 the Commissioner issued a property tax assessment in respect of one of the four properties.  On 22 January 2010 the Commissioner issued another 22 property tax assessments in respect of the four properties.  The Commissioner further issued two profits tax assessments to the taxpayer on 10 February 2010.  These are the 25 assessments in this case.

9.  The 23 property tax assessments were sent by ordinary post to the taxpayer ‘c/o Messrs Kao, Lee & Yip, 17^th Floor, Gloucester Tower, The Landmark, Central, Hong Kong’ (‘the KLY address’), which was the address of a firm of solicitors (‘KLY’).  The two profits tax assessments were also sent to the KLY address but by registered post.  KLY acknowledged receipt of the two registered posts.

10.  The 25 assessments were issued after the taxpayer had failed to complete and return the following tax returns that had been sent by the Commissioner to the taxpayer to the KLY address:

1)  2005/06 and 2006/07 Tax Returns – Individuals;

2)  2004/05 to 2008/09 Property Tax returns for the Marble Road property;

3)  2004/05 to 2008/09 Property Tax returns for the MacDonnell Road property;

4)  2003/04 to 2008/09 Property Tax returns for the Laguna City property; and

5)  2003/04 to 2008/09 Property Tax returns for the Tseung Kwan O property.

11.  Prior to the tax returns and assessments referred to in paragraphs 9 and 10, the taxpayer had previously filed tax returns in respect of the following:

1)  2003/04 Tax Return – Individuals;

2)  2003/04 Property Tax returns for the Marble Road Property;

3)  2003/04 Property Tax returns for the MacDonnell Road Property;

4)  2001/02 Property Tax returns for the Tseung Kwan O Property; and

5)  1999/00 Property Tax returns for the Laguna City Property.

12.  These returns were also sent by the Commissioner to the KLY address.  They contained provisions which enabled the taxpayer to change his postal address. He had not caused any change to the postal address contained in the returns.

13.  Apart from the 25 assessments, the Commissioner had also sent the following documents to the KLY address:

1)  Estimated Property Tax assessment of the Marble Road property for the years 2004/05 to 2007/08 and of the MacDonnell Road property for the year 2004/05.  There was no notice or record of non-delivery.

2)  In respect of the 2007/08 assessment for the Marble Road property issued on 29 January 2009, a 5% surcharge notice was sent to the taxpayer at the same KLY address on 27 March 2009 together with a reminder sent on 17 June 2009.  The tax and surcharge were actually paid in two parts on 11 June 2009 and 8 July 2009 respectively.

3)  Notices of surcharge for the 25 assessments were also sent to the KLY address on 18 December 2009, 26 March 2010 and 9 April 1020 by ordinary post and there was no record or notice that any of them was not delivered or was returned.

4)  On 26 March 2010 the Commissioner issued a letter to the taxpayer by ordinary post to the KLY address advising him that the two profits tax assessments issued on 10 February 2010 were final and conclusive.  The taxpayer was reminded to file the completed Tax Returns for Individual for the years 2005/06 and 2006/07.  There was no record of non-delivery.

5)  On 7 April 2010, the Commissioner issued two letters, one to the applicant and the co-owner of the Marble Road property, the MacDonnell Road property and the Tseung Kwan O property, and the other to the applicant and the co-owner of the Laguna City property.  The letters were sent by ordinary post to the KLY address. They advised the taxpayer and the co-owners that the 22 property tax assessments issued on 22 January 2010 were final and conclusive and they were reminded that they were still obliged to file duly completed Property Tax Returns for the four properties.

6)  On 23 April 2010, the Commissioner issued a writ in the District Court (DCTC 2290/2010) against the taxpayer seeking the recovery of the tax (plus surcharges) due under the 25 assessments.  On 27 April 2010, the amended writ in that action was successfully served on the taxpayer at the KLY address by registered post.  KLY acknowledged receipt on the postal receipt.

14.  The taxpayer claimed that he had not received the 25 assessments.  Between May and September 2009 the taxpayer was embroiled in the trial of the probate action of the will of Nina Wang (High Court Probate Action No. 8/2007).  Judgment was delivered on 2 February 2010.  He only became aware of the assessments on 24 April 2010 when watching news on television.  He caused inquires to be made with contacts in the media by his colleagues and obtained a copy of the writ. He had not received the writ before.

15.  He then instructed a firm of solicitors, Richards Butler to make inquiries with the Commissioner and KLY. KLY replied on 11 May 2010 that they had not received the tax returns or the assessments.

16.  This was followed by the taxpayer’s objection dated 4 June 2010 and the Commissioner’s refusal dated 22 June 2010.

17.  KLY on 6 July 2010 in response to further inquiries by Richards Butler wrote:

‘ With reference to your letter of 1^st June 2010, we regret to inform you that we are unable to locate any record of the tax assessments.

Over the past years, our arrangement with your client, Mr. Chan, regarding any letter sent to our office for his attention or any of his companies was that one of our colleagues would telephone either Bobby Chan or Patty Kam, who would then arrange for someone from your client’s side to pick up the letter from our office.  As the arrangement was informal, we did not open any of the letters.  Nor did we keep any record of incoming letters or of any such letters being collected by anyone on your client’s behalf.  We have made further inquiry within our firm. Although our colleagues concerned are unable to recall specifically any letter that may have passed through our office to your client or his representatives, they believe that any letter received would have been forwarded to your client as above.

As regards your letter of 23^rd June 2010, in relation to your request that we confirm whether the documents Items 1 through 5 mentioned in that letter were received by our firm and passed onto Mr. Chan and/or his representatives for handling, we can only repeat the second paragraph of this letter.’

18.  By affirmations both dated 28 July 2010, the contents of which are identical, Bobby Chan and Kam Ming Yan Patty (‘Ms Kam’), the secretary of the taxpayer, claimed that they had been asked by the taxpayer to act as his point of contact with KLY which the taxpayer had used in the past for conveyancing matters.  The taxpayer would not usually deal with KLY.  Two clerks in KLY would contact them when they received correspondence addressed to the taxpayer.  Bobby Chan and Ms Kam would either go to KLY to collect the correspondence or arrange for the correspondence to be sent to them.  The correspondence would include documents sent by the Commissioner.  They were not contacted by the two clerks or anyone from KLY in January or February 2010, concerning correspondence addressed to the taxpayer and received by KLY.

Statutory provisions on service

19.  1)        Section 62(1) of the IRO requires the Commissioner to give a notice of assessment to each person who has been assessed stating the amount assessed, the amount of tax charged, and such due date for payment thereof as may be fixed by the Commissioner.

2)       Notices given by virtue of the IRO may be served pursuant to section 58(2), on a person either personally or by being delivered at, or sent by post to, his last known postal address, place of abode, business or employment or any place at which he is, or was during the year to which the notice relates, employed or carrying on business or the land or buildings or land and buildings in respect of which he is chargeable to tax under Part II.

3)        Section 58(3) provides that, any notice sent by post shall be deemed, unless the contrary is shown, to have been served on the day succeeding the day on which it would have been received in the ordinary course by post.  Section 58(4) further provides that, in proving service by post it shall be sufficient to prove that the letter containing the notice was duly addressed and posted.

4)        Section 51(8) further provides that any person chargeable to tax under Part II (i.e. property tax), III (i.e. salaries tax), IV (i.e. profits tax) or VII (i.e. personal assessment) who changes his address shall within 1 month inform the Commissioner in writing of the particulars of the change.

Period of objection

20.  Under section 64(1) a taxpayer may object to the assessment within one month after the date of the assessment but the Commissioner may extend the time limit for objection, if the Commissioner is satisfied that owing to absence from Hong Kong, sickness or other reasonable cause, the person objecting to the assessment was prevented from giving such notice within such period.

The Judge’s Decision

21.  The judge identified and addressed the following four issues.

1)       Whether the Commissioner must establish actual receipt of an assessment

22.  The judge rejected the taxpayer’s submission that actual notice of an assessment must be given to a taxpayer.  He held that while the Commissioner must establish actual notice, she can do so by relying on the presumption of actual notice in section 58(3). There is no separate obligation on her to consider which of the modes of service listed in section 58(2) is the most appropriate.  All modes are equally open and she may choose among them as she sees fit.  Once the presumption in section 58(3) comes into play, it falls upon the taxpayer to rebut the presumption and establish the absence of actual notice.  In the present case, the Commissioner cannot be faulted in choosing to send the assessments to the KLY address as the taxpayer’s last known postal address.

2)       Whether the Commissioner was required to send assessments to more than one last known address

23.  The judge held that having served on the last known postal address of the taxpayer, the Commissioner was not obliged to serve the assessments on any other type of address.

3)       Whether lack of actual knowledge can form the basis of extending the time for objection

24.  The judge held that the answer is ‘yes’.  If one does not have actual knowledge of an assessment, that lack of knowledge could conceivably have prevented one from objecting to an assessment in timely fashion.  This does not, however, mean that, by simply asserting that one did not have actual knowledge, a taxpayer automatically becomes entitled to an extension.  The lack of knowledge will only form the basis of an application for the extension of time.

4)       Whether on the evidence before her, the Commissioner reasonably rejected the taxpayer’s application for an extension of time

25.  The judge held that the Commissioner had acted unreasonably in refusing to grant an extension of time.  He held that the Commissioner’s deliberation on the question of extension in June 2010 does not seem to have gone far enough.  Her letter of 22 June 2010 did not confront the gravamen of Grant Thornton’s case for an extension, namely, the taxpayer’s lack of actual knowledge regardless of whether anything had been received by KLY.  Thereafter, it remained open to the Commissioner to reconsider the position in light of the materials which have become available including the letter of 6 July 2010.  The Commissioner had acted unreasonably by attaching no weight to that letter which she ought to have placed significant weight.

My view

Late objection

26.  By virtue of his decision on the first two issues, the judge had effectively affirmed the Commissioner’s first decision that the taxpayer was out of time when he raised objection to the assessments on 4 June 2010.  The objection was raised beyond the one month period from the respective dates of the assessments, namely, 21 October 2009, 22 January 2010 and 10 February 2010.

27.  1)  In my view the judge was clearly right on this point.  The issue is simply one of statutory construction.  Section 62(1) requires the Commissioner to give a notice of assessment.  The giving of that notice is accomplished and time will run when the Commissioner served it by one of the two methods identified in section 58(2), namely, either by personal service on the taxpayer or by postal service on either one of the following addresses:

(1) last known postal address;

(2) place of abode, business or employment;

(3) place at which the taxpayer is or was during the year to which the notice relates, employed or carrying on business;

(4) the land or/and buildings in respect of the property tax assessment.

2)    I am unable to accept the taxpayer’s argument advanced by Mr Dykes SC and Mr Parker that the ‘giving’ of notice implies ‘receipt’ by the taxpayer, in the sense that he must have actual knowledge of the notice.  Section 58(2) is the governing provision for giving notice by way of postal service.  Once it is invoked the Commissioner does not need to show further that the notice had ‘actually’ come to the knowledge of the taxpayer.  This is because, first, the very fact that a mode of service other than personal service is permitted, is by itself an indication that service will be completed when the requirements stipulated for service have been fulfilled.  Although section 58(2) does not use words that postal service ‘shall be deemed to be service’, the wording in that section clearly carries that meaning.  See Deputy Commissioner of Taxation v. Taylor [1983] 2 NSWLR 139 at 143.  Second, there is nothing in section 58(2) either alone or taken together with any other sections of IRO which requires that the notice of assessment must have come to the actual knowledge of the taxpayer before the time starts to run for the purpose of lodging objection.  In my view, once the document was properly served under section 58(2), actual notice was treated to have been given to the taxpayer.  It is then up to the taxpayer to ensure that the document which he had chosen to be sent to a specified address would be brought to his attention.   

3)    The only difference I have with the judge is on the effect of section 58(3).  In my view, section 58(3) merely provides the rebuttable presumption on the time that the notice sent by post is deemed to have been served, namely, on the day succeeding the date on which the notice would have been received in the ordinary course by post.  Even if the notice is not received by that presumed time or at all, nonetheless it is deemed to have been served.  See D135/02 (2003) 18 IRBRD 231 at paragraph 10 and R v County of London Quarter Sessions Appeals Committee, ex p Rossi [1956] 1 QB 682 at 700.  In any event, the question of time is a non issue in this case and will not assist the taxpayer because under section 64(1), time starts to run for the purpose of objection within one month after the date of the notice of assessment (on the basis that it has been given by way of proper service) and not from the date of service of the notice of assessment.

4)    Although the constitutionality of the legislative framework is not in issue, I agree with the submission of counsel for the Commissioner, Mr Stewart Wong SC, that the requirement of giving notice under section 62(1) and the method of service under section 58(2) strikes a proper balance between, on the one hand, the right of a taxpayer to be notified of the relevant documents and, on the other hand, the administrative and practical convenience of an effective system of tax assessment and collection.  In my view the Commissioner’s duty is discharged by choosing any one of the methods of service under section 58(2) because each one is equally lawful and effective.  There is no issue of minimum compliance.  It is irrelevant if the Commissioner had chosen to serve the writ in the District Court action by other means as well.

5)    The Commissioner has adduced evidence that as there are literally millions of tax returns, notice of assessments and other documents that the Commissioner has to send out under the IRO to taxpayers every year, personal service is out of the question, and the only practical manner of service would have to be by post.  Under the statutory framework there is no requirement to serve on all the known addresses of the taxpayer.  The taxpayer’s right is further protected because he has the right under section 51(8) to choose which address he wishes the notices from the IRD to be sent to him.  The entitlement of this right is specifically identified in the tax returns and the notice of assessment.

6)    The salutary principle propounded in R (Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604 that

‘ Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so.’

does not in any way impose a different construction of the relevant statutory provisions under the IRO.  The IRO has provided its own scheme for giving notice and the requirement was complied within the present case.  It should be noted that in R (Anufrijeva) there was no notification by the decision maker to the party affected.  The decision was merely noted in the case file without being communicated to the party affected.

7)    Mr Dykes SC postulated the situation of a postal strike which prevented the mail from being delivered.  He submitted that in such a situation, the Commissioner should issue a fresh assessment so that time could run anew.  This is a difficult problem but the question of postal strike is clearly hypothetical and under the legislative framework there is no provision for the giving of a fresh assessment.  On the facts of this case, although this court is not required to determine whether the assessments were served on KLY, there is hardly any credible evidence suggesting that they were not.  The available evidence points to the contrary.

8)    In this case the Commissioner had served the assessments by post on the KLY address which was the last known postal address of the taxpayer as chosen by him.  Once this was properly done, the giving of notice under section 62(1) was effected. There was no further requirement that the assessments must have come to the actual knowledge of the taxpayer before time started to run under the relevant provisions of the IRO.  The Commissioner had not erred when she came to view that the objection was out of time.

Extension of time

28.  The judge held the Commissioner’s refusal to extend time was incorrect because she had not focused on what should be the real issues, namely

1)  regardless of whether KLY had received the relevant assessments, did KLY forward them to the taxpayer?

2)  if not and if (as a result) the taxpayer was not aware of the assessments, was he prevented by his lack of knowledge from objecting to the assessments before 4 June 2010?

29.  The judge further held that the Commissioner had not put sufficient weight to the subsequent letter of KLY dated 6 July 2010.

30.  1)  In my view the judge is incorrect.  The two issues identified by the judge were not the basis of the taxpayer’s challenge in the judicial review.  They were not raised in the Notice of Application (Form 86). Mr Stewart Wong SC, referring to the transcript of the proceedings before the judge, further submitted that the matter was also not raised by the taxpayer or the judge at the hearing.  This was not disputed by Mr Dykes SC.  If the judge intended to rely on these grounds, then, at the least, he should give the Commissioner an opportunity to address them. This was not done and the judge should not have decided on this issue.

2)  In any event, on proper analysis, the judge’s decision is wrong.  Whether the Commissioner should grant extension of time or not is a matter entirely for her to decide.  The focus on the correctness of the Commissioner’s decision on extension of time must be based on the material that was available to her on 22 June 2010.  The basis of the extension sought was simply that the taxpayer had not received the assessments because KLY had not received the assessments.  In my view this is the only reasonable way of reading the letter of 4 June 2010 which specifically referred to the statement by KLY that they had not received the assessments themselves.  It was not put on the basis that even if KLY had received the assessments, they were not received by the taxpayer himself.

3)  The Commissioner in the letter dated 22 June 2010 referred to the acknowledgement by KLY of the receipts of the two profits tax assessments and the lack of record that the other 23 property tax assessments which were sent by ordinary post were not delivered. On the basis of this material, the Commissioner held that she was not satisfied that the assessment was not received by KLY.  The Commissioner’s conclusion that she was not satisfied that owing to absence from Hong Kong, sickness or other reasonable cause the taxpayer was prevented from giving notice of objection within the statutory period cannot be faulted.

4)  Further, contrary to the judge’s view that the Commissioner had not addressed the real issues, the Commissioner had indeed considered whether there were probable reasons why the taxpayer had not received the assessments even though no other reasons were put forward by Grant Thornton in its letter of 4 June 2010.  The judge had not addressed this in his judgment.  As evidenced by the affirmation of Chi Lai Ming, an Assistant Commissioner of the Field Audit and Investigation Unit of the IRD who dealt with the objection, she had specifically considered this issue.  She stated that, in refusing the extension, she had considered the following matters:

(1) The taxpayer chose to use the address of a solicitors’ firm (i.e. the KLY address) as his postal address, hence it was logical to infer that there should be some sort of arrangement between them to ensure that the correspondence addressed to the taxpayer by way of the KLY address would pass to and reach him.  There was no argument put forward by Grant Thornton that notices or letters addressed to the taxpayer and received at the KLY address would not have reached, or would not be actually received by the taxpayer.

(2) The IRD had before issuing the 25 assessments, issued estimated property tax assessments in respect of the Marble Road property and the MacDonnell Road property by ordinary post to the taxpayer and his co-owner at the KLY address.  The tax charged under the said assessments had been settled.  That meant the previous tax assessments sent to the KLY address were properly received and dealt with by the taxpayer and his co-owners.

5)    As to the judge’s view that the Commissioner had not properly considered the subsequent letter from KLY of 6 July 2010, it is important to bear in mind that the taxpayer had not relied on an alleged failure of duty on the part of the Commissioner to consider the new material.  Although this letter was referred to in Form 86, it was not raised for the purpose of mounting this ground of challenge.  Rather it was only referred to as part of the summary of events in this case.  The requirement of leave before judicial review proceedings can be instituted and the specific requirement in Form 86 to identify the decisions that are being challenged are there to ensure a proper focus on the identified issues that require adjudication by the Court.

6)    In any event, I do not see how this letter would assist the taxpayer at all.  The Commissioner had come to the view that in the light of the evidence on service, the 25 assessments had been served on KLY.  This letter only lent support to the Commissioner’s view that the taxpayer had indeed received the assessments because KLY had stated that any letter received by them would have been forwarded to the taxpayer.

7)    Looking at the matter in the round, the Commissioner must be of the view that it was plainly too much of a co-incidence that all the 25 assessments which were sent at different times would not have reached the taxpayer.  It is not sufficient for the taxpayer to say that he had not received the assessments.  The so-called difficulties of proving a negative can only be carried so far.  They must be viewed in their proper perspective having regard to the circumstances of the case.   For a start if the taxpayer wished to challenge KLY’s assertion that the assessments had been supplied to his agents, there ought to be evidence of further inquiries with the staff of their action.  There was none in the present case.  In my view, there was no proper ground to challenge the correctness of the Commissioner’s refusal to extend time.

Conclusion

31.  I will allow the appeal, set aside the judgment below and dismiss the taxpayer’s application for judicial review.

Costs

32.  Costs should follow the event and I will make a provisional costs order that the Commissioner is to have the costs of the appeal and below.

Hon Hartmann JA:

33.     I too would allow this appeal for the reasons given.

Hon Lam J:

34.     I agree with the judgment of Cheung JA.

35.     The central plank of the argument of Mr Dykes SC is that the giving of notice carries with it the implication that the recipient must have actual knowledge of the same.  He relies heavily on R (Anufrijeva) v Home Secretary [2004] 1 AC 604 to support his proposition.  With respect, I do not think that case goes as far as counsel suggested.

36.     In my judgment, R (Anufrijeva) v Home Secretary is better understood as a case about the need to communicate a decision rather than how the giving of notice can be effected.  As my Lord pointed out, in that case the Home Office did not make any attempt to notify the claimant of the determination.  Thus, when Their Lordships referred to the fundamental right of an individual to have notice of a decision, they did not need to dwell into the more refined question (which is before this court) of whether a giving of notice by post would be regarded as effective even though the recipient claimed not to have received it.  The general principle one may derive from the case can be found at paragraph 30 of the judgment, 

‘ Elementary fairness therefore supports a principle that a decision takes effect only upon communication.’

37.     But communication does not necessarily require the decision maker to establish that the recipient has actual knowledge.  This is clear from paragraph 29 of the judgment,

‘ It has been held to be a fundamental principle in the Community legal order … that a measure adopted by the public authorities shall not be applicable to those concerned before they have the opportunity to make themselves acquainted with it …’

There could be persons who, for one reason or another, do not avail themselves of such opportunity and remain ignorant of decisions that affected them.  Such lack of actual knowledge would not impinge on the validity and effect of the decisions.   

38.     Ultimately, as recognized by Lord Steyn at paragraph 27 of the judgment by quoting from the speech of Lord Hoffmann in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115 at 131, the answer is to be found by reference to the statutory scheme in question.  As demonstrated by the difference in opinion between Lord Bingham and the other Law Lords, it is in substance a matter of construction of the relevant statutory scheme.

39.     The statutory scheme we are concerned with is the Inland Revenue Ordinance.  Mr Dykes focused on Sections 58(3) and 62(1).  But the statute should be construed in the context of the whole statutory scheme.  In my view, the following sections of the Ordinance are also relevant,

(a) Section 51(8) imposes a statutory duty upon a person chargeable to tax to inform the Commissioner of his change of address;

(b) That statutory duty is reinforced with criminal sanction under Section 80(1)(c).

40.     Moreover, Section 8 of the Interpretation and General Clauses Ordinance is also relevant.  That section reads,

‘ Where any Ordinance authorizes or requires any documents to be served or any notice to be given by post or by registered post, whether the expression “serve” or “give” or “send” or any other expression is used, the service or notice shall be deemed to be effected by properly addressing, pre-paying the postage thereon and dispatching it by post or by registered post, as the case may be, to the last known postal address of the person to be served or given notice, and, unless the contrary is proved, such service or notice shall be deemed to have been effected at the time at which the document or notice would be delivered in the ordinary course of post.’

41.     There are two parts in the section: the first part provides for the deeming effect as to service by post and the second part provides for the deemed timing of service.  Though the two concepts are related, the effective giving of notice and the date when it is deemed to have been given remains distinct.  Section 8 permits proof to the contrary when it comes to the deemed timing of service but not in respect of the deemed service, see R v County of London Quarter Sessions Appeals Committee ex p Rossi [1956] 1 QB 682 at p.700; A/S Cathrineholm v Norequipment [1972] 2 QB 314 at p.322A and 323G to 324A. 

42.     I agree with my Lord that the same approach should be applied in the construction of Section 58(2) and (3).  It should be noted that in this respect, the rule as to service of writ by post is governed by a different statutory code and, as such, subject to different considerations, see Forward v West Sussex County Council [1995] 1 WLR 1469.

43.     In the context of the giving notice under Section 62(1) and the running of time limit for objection under Section 64 (unlike Sections 70A, 79 and 82B), the date of service is not relevant.  The 25 assessments were duly given to an address provided by Mr Chan for service. 

44.     The only question is whether Mr Chan had made out a case before the Commissioner in terms of proviso (a) in Section 64, viz. “owing to absence from Hong Kong, sickness or other reasonable cause, the person objecting to the assessment was prevented from giving such notice” within time.

45.     In addition to what has been said by my Lord, I would highlight two points.  First, under the statutory scheme, the authority to be satisfied as to the applicability of the proviso is the Commissioner, not the court.  The present case is a judicial review against the decision of the Commissioner, not an appeal from the decision of the Commissioner.  Therefore, the court could only intervene on public law grounds and it should be mindful of not usurping the function of the Commissioner.  This also means that the court must consider the matter by reference to how the case was put before the Commissioner as opposed to how it is advanced by counsel before the court.  For the reasons given by my Lord, I agree that there is no proper basis for the court to intervene with the decision of the Commissioner on the facts of this case.

46.     Second, putting aside absence from Hong Kong and sickness (which are not relied upon by Mr Chan) the proviso refers to the taxpayer being prevented from giving notice of objection in time by reason of “other reasonable cause”.  Speaking for my part, the mere lack of actual knowledge of Mr Chan per se would not be a reasonable cause if he did not exercise due diligence in ensuring the effectiveness of the arrangement he had with KLY for transmission of letters to him.