HO WAI YIN v. COLLECTOR OF STAMP REVENUE

HCAL 1465/2025

[2026] HKCFI 876

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1465 OF 2025

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J U D G M E N T

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A. Introduction

1.  By her Form 86 dated 20 June 2025, the Applicant seeks leave to apply for judicial review to challenge the decisions of the Collector of Stamp Revenue (“Collector”)  contained in a letter dated 13 November 2024 (“Decision”), refusing to refund a part of the ad valorem stamp duty (“AVD”)  paid by the Applicant upon her purchase of a residential property in Kwai Chung, New Territories (“Subject Property”).

2.  The substantive issue arising is whether the Applicant is entitled to partial refund of the AVD under the Stamp Duty Ordinance Cap 117 (“SDO”)  in the circumstances where she disposed of her original residential property (“Original Property”)  by more than one instrument.  This turns on the correct statutory interpretation of section 29DF of the SDO, which contains what is sometimes known as the “buy-first-sell-later” exception to the AVD regime.

3.  The facts to which the correct interpretation is to be applied are essentially undisputed.

4.  I gave directions for a rolled-up hearing, and fixed 30 September 2025 as the date for the hearing.  At the hearing, the Applicant was represented by Ms Athena Wong Hiu Hung and Mr Jason PH Wong of Counsel, and the Collector was represented by Ms Bonnie YK Cheng and Mr Jonathan Ng of Counsel.

5.  At the end of the hearing, I reserved my decision to be handed down later.  This is my Judgment.

6.  Unless the context otherwise makes clear, all references to numbered section are to the numbered sections of the SDO.

B.  Background

B.1  Replacement of Residential Property

7.  The Applicant, her daughter, and her grandchildren were residing in the Original Property prior to acquiring the Subject Property.  The Applicant was the then registered owner of the Original Property.

8.  As her grandchildren grew, their existing flat no longer met the needs of their household.  To ensure her grandchildren had the space and environment to thrive, she decided to relocate the family to a larger home.

9.  On 12 December 2022, the Applicant entered into a Provisional Sale and Purchase Agreement (“PSPA”)  to purchase the Subject Property as the replacement home at the price of HK$7,600,000.  She later paid AVD of HK$1,140,000.

10.  In the course of arranging to sell the Original Property to finance the purchase of the Subject Property, the Applicant’s friend Mr Lee Kwok Wing (“Purchaser”)  expressed interest in acquiring the Original Property.  He was searching for a flat, but was unable to afford the full purchase price at once.  He proposed purchasing a one-half share first, with the remaining share to follow within one year after the Applicant acquired the Subject Property.  Understanding his financial difficulty and trusting him, she agreed.

11.  On 16 December 2022, the Applicant executed a Sale and Purchase Agreement (“1^st SPA”)  and an Assignment (“1^st Assignment”)  with the Purchaser, to dispose of 50% of her interest in the Original Property.

12.  On 29 December 2022, the Applicant paid the AVD of HK$1,140,00 for the acquisition of Subject Property, calculated at 15% of the purchase price of HK$7,600,000.  The AVD was paid under Scale 1 of Head 1(1A)  in the First Schedule to the SDO.

13.  On 30 December 2022, the Applicant entered into a formal Sale and Purchase Agreement (“SPA”)  to acquire the Subject Property.

14.  On 28 February 2023, the Assignment for the Subject Property was executed and the acquisition completed.  The Applicant’s family then moved to live in the Subject Property.

15.  On 21 June 2023, the Applicant executed a Sale and Purchase Agreement (“2^nd SPA”)  and an Assignment (“2^nd Assignment”)  to dispose of the remaining 50% of her interest in the Original Property to the same Purchaser.

B2.  Application for Refund

16.  On 5 July 2023, the Applicant’s solicitors (“Littlewoods”)  applied for a partial refund of the AVD pursuant to section 29DF. The “specific amount” sought, as defined in the section, was HK$855,000, being HK$7,600,000 x (15% - 3.75%).

17.  By a letter dated 29 August 2023, the Collector rejected the application for partial refund, relying on Ho Kwok Tai v Collector of Stamp Revenue [2016] 5 HKLRD 713, [2016] HKCA 521 (“Ho Kwok Tai”), and stating that section 29DF does not allow the Applicant to deal with the property using two SPAs and two assignments, as shown by the time limits in section 29DF(3)(c).

18.  There followed a course of correspondence between Littlewoods and the Collector, which strictly does not matter because the question of statutory interpretation is one for the Court.  However, it is perhaps instructive to understand how the argument developed.

19.  By letter dated 5 September 2023, Littlewoods expressed disagreement with the Collector’s view.  They first clarified that the Applicant had fully complied with section 29DF(3), emphasising that both agreements for sale and purchase pertained exclusively to a single original property.  They further distinguished the present case which involves only one residential property from Ho Kwok Tai which involved the disposal of two residential properties.

20.  By subsequent letter dated 6 September 2023, Littlewoods directed the Collector’s attention to section 29A(3), which provides that “an Agreement for Sale may consist of 2 or more instruments”, reinforcing the applicability of this provision to the matter at hand. Additionally, they highlighted that the term “Instrument” is broadly interpreted under section 2 to include “every written document,” reinforcing their argument that multiple instruments can collectively constitute a single agreement for sale.

21.  By letter dated 1 November 2023, the Collector reaffirmed that the Applicant is not entitled to the refund. The Collector relied on section 29DF(3)  of the SDO, which he said specified that “the original property must be disposed by an agreement for sale and a conveyance on sale thereafter” (emphasis in original).

22.  By letter dated 5 November 2023, Littlewoods contended that the Collector’s construction of section 29DF(3)  is overly superficial. They emphasised that, under section 29A(3)  an Agreement for Sale may consist of more than one instrument.  Furthermore, section 29AF clarifies that if a conveyance comprises two or more instruments, the relevant date is determined by the first of those instruments.

23.  By letter dated 27 November 2023, Littlewoods further clarified that, following the acquisition of the Subject Property on 28 February 2023, the Applicant disposed of her remaining interest in the Original Property strictly by one Agreement for Sale and one Conveyance on Sale.  So, analysing the sequence of transactions, it is evident that:

(1)  Before acquiring the Subject Property on 28 February 2023, the Applicant had already sold a half-share of the Original Property on 16 December 2022.

(2)  Consequently, after acquiring the Subject Property, the Applicant retained only the remaining half-share of the Original Property, which was then disposed of within the statutory period through one agreement for sale and one conveyance on sale.

24.  In a letter dated 15 December 2023, the Collector maintained the stance that the Applicant is not entitled to the refund, again citing section 29DF(3)(c)  and stating that where the original property is disposed of by two sets of Agreement and Assignment, the prescribed application deadline will become uncertain and ambiguous if such practice is accepted by the Office.

25.  By letter dated 20 December 2023, Littlewoods clarified that the Applicant had sold the remaining 50% of her interest in the Original Property by an Assignment on 21 June 2023, rather than on 12 December 2022 as mistakenly stated in the Application Form due to a clerical error.  Accordingly, the partial refund application was submitted within the prescribed two-month period, thereby entitling her to the refund.

26.  After receiving no response from the Collector for over a month, Littlewoods sent follow-up letters on 25 January 2024 and 29 February 2024.

27.  On 14 March 2024, the Collector informed Littlewoods that it was seeking legal guidance from the Department of Justice (“DOJ”)  regarding the matter.

28.  By letter dated 19 March 2024, Littlewoods stressed that the Applicant had only executed a single SPA to dispose of her remaining half-share of the Original Property after the acquisition of the Subject Property.

29.  By letter dated 29 May 2024, the Collector advised that legal guidance was still being sought on the matter.  Later, on 4 June 2024, the Collector informed the Applicant that the DOJ was still considering the matter.

30.  On 13 November 2024, the Collector informed the Applicant of the Decision, rejecting her refund application, and stating that the DOJ concurred with the view that section 29DF does not apply as long as the Original Property was disposed of by more than one instrument, notwithstanding that one of the instruments was executed before the date of assignment in respect of the Subject Property.

31.  In the same month, the Applicant’s daughter passed away due to acute pneumonia.

32.  On 25 June 2025, the Applicant filed the application for leave to apply for judicial review of the Collector’s decision in the letter on 13 November 2024.

33.  The application also identifies an intended challenge to the 29 August 2023 letter from the Collector, being the first dismissal of the Applicant’s partial refund application.  However, in light of the lengthy exchange of correspondence, and the final Decision being taken only after seeking legal advice, I think the effective decision is that made on 13 November 2024.

34.  Nevertheless, that still means that the present application for leave to apply for judicial review was commenced out of time, and over four months after the expiry of the ‘long-stop’ three-month period within which the application should have been made.  The Applicant has therefore recognised the need to apply for an extension of time.

35.  As one of the matters to consider in the exercise of discretion whether or not to extend time is the merit of the application, I shall address the merits first before returning to the question of delay and any possible extension of time.  In their submissions, both Ms Wong and Ms Cheng proceeded on the same basis.

C.  Relevant Provisions

36.  First, it can be noted that the Stamp Duty (Amendment)  Ordinance 2024 (“2024 Amendment Ordinance”)  was published in the Gazette on 19 April 2024. Under the 2024 Amendment Ordinance, the AVD rate under Part 1 of Scale 1 was amended to the same as the AVD at Scale 2 with effect from 28 February 2024. But the acquisition of the Subject Property and the disposal of the Original Property occurred prior to the commencement of the 2024 Amendment Ordinance.  Accordingly, all references to the provisions of the SDO for the purpose of this judicial review refer to the version in force prior to the commencement of the 2024 Amendment Ordinance.

37.  Materially for present purposes, the main focus is on Part IIIA of the SDO.

38.  Section 29A(1)  is in Division 1 of Part IIIA and defines, amongst other things, “agreement for sale” for the purposes of Part IIIA and the First Schedule.  Section 29A(3)  also provides that an agreement for sale may consist of 2 or more instruments.

39.  Section 29DF is in Division 6 of Part IIIA.  It is the statutory provision which entitles a Hong Kong permanent resident who acquires a new residential property before disposing of their original residential property within a specified statutory period to a partial refund of the enhanced AVD paid in relation to the acquisition of the new property, i.e. the ‘buy-first-sell-later’ exception. It provides as follows:

29DF.  Partial refund of ad valorem stamp duty on disposal of residential property in certain circumstances

(1)  In this section—

applicable instrument (適用文書)  means an instrument—

(a)  under which a residential property (whether or not together with a car parking space permitted for the parking of 1 motor vehicle)  is acquired; and

(b)  on which stamp duty had been paid according to Scale 1 of head 1(1), or Scale 1 of head 1(1A), in the First Schedule;

original property(原物業), in relation to a person who acquires a subject property under an applicable instrument, means another residential property (whether or not together with a car parking space permitted for the parking of 1 motor vehicle)  of which the person is a beneficial owner on the date of that acquisition;

specified amount(指明款項)  means—

(a)  for an applicable instrument on which stamp duty had been paid according to Scale 1 of head 1(1)  in the First Schedule—an amount equal to the difference between the stamp duty paid and the stamp duty that would have been payable on that instrument if it were chargeable under Scale 2 of head 1(1)  in the First Schedule in accordance with Division 2; or

(b)  for an applicable instrument on which stamp duty had been paid according to Scale 1 of head 1(1A)  in the First Schedule—an amount equal to the difference between the stamp duty paid and the stamp duty that would have been payable on that instrument if it were chargeable under Scale 2 of head 1(1A)  in the First Schedule in accordance with Division 3;

subject property(標的物業)  means the residential property, or the residential property and car parking space, acquired under an applicable instrument.

(2)  The Collector may, on an application made by a person (applicant)  who had paid stamp duty on an applicable instrument, refund to the applicant the specified amount if—

(a)  subsection (3)  or (4)  applies to the disposal of an original property of the applicant; and

(b)  had the original property been disposed of before the subject property was acquired, the applicable instrument would have been chargeable with stamp duty under Scale 2 of head 1(1), or Scale 2 of head 1(1A), in the First Schedule.

(3)  This subsection applies to the disposal of an original property of the applicant if—

(a)  it is shown to the satisfaction of the Collector that the original property is disposed of by the applicant under an agreement for sale that is made within the period specified in subsection (5);

(b)  it is shown to the satisfaction of the Collector that the original property is transferred or divested from the applicant under a conveyance on sale executed in conformity with that agreement; and

(c)  the application for refund is made by the applicant not later than 2 years after the date of the applicable instrument, or not later than 2 months after the date of the conveyance on sale under which the original property is transferred or divested, whichever is the later.

(4)  This subsection applies to the disposal of an original property of the applicant if—

(a)  it is shown to the satisfaction of the Collector that the original property is transferred or divested from the applicant under a conveyance on sale within the period specified in subsection (5); and

(b)  the application for refund is made by the applicant not later than 2 years after the date of the applicable instrument, or not later than 2 months after the date of the conveyance on sale under which the original property is transferred or divested, whichever is the later.

(5)  For subsections (3)(a)  and (4)(a), the following period is specified—

(a)  if the applicable instrument is a conveyance on sale—12 months after the date of that instrument; or

(b)  if the applicable instrument is an agreement for sale—12 months after the date of the conveyance on sale executed in conformity with the agreement for sale.

(6)  For the definitions of applicable instrument and original property in subsection (1), a car parking space is permitted for the parking of 1 motor vehicle unless any of the following provides that the parking space may be used, at any time during the term of the Government lease in respect of the parking space or during the term of the Government lease that has been agreed for in respect of the parking space (as is appropriate), for the parking of more than 1 motor vehicle—

(a)  a Government lease or an agreement for a Government lease;

(b)  a deed of mutual covenant, within the meaning of section 2 of the Building Management Ordinance (Cap. 344);

(c)  an occupation permit issued under section 21 of the Buildings Ordinance (Cap. 123);

(d)  any other instrument which the Collector is satisfied effectively restricts the permitted user of the parking space.

40.  I shall return to the legislative intent of that section, below.

41.  Reference can also be made to the interpretation section 2, which interprets “instrument” to “include every written document”.  This interpretation applies throughout the STO, unless the context otherwise requires.

42.  Reference can be made to section 7(2)  of the Interpretation and General Clauses Ordinance Cap 1 (“IGCO”), which provides that words and expressions in the singular in a statutory provision include the plural.

D.  Grounds of Review

43.  In the Form 86, the intended grounds of judicial review are identified as follows:

(1)  Ground 1: Section 29DF Allows Disposal of a Single Property by Multiple Instruments

The Collector misinterpreted section 29DF as restricting the disposal of the Original Property through one instrument.

(2)  Ground 2: Legislative Intent – Relief from Undue Burden on Homeowners

The Collector misinterpreted the legislative intent of s.29DF(3)(c), incorrectly concluding that the Applicant is restricted to disposing of the original property through a single agreement, whereas the legislative intent allows disposal via more than one set of agreements, where only one original property is involved.

(3)  Ground 3: Mistake as to Certainty of Time Limit

The Collector misdirected himself in assuming that permitting disposal of an original property by more than one instrument would render the statutory time limit in section 29DF(3)(c)  ambiguous.  The statutory time limit remains clear and enforceable.

(4)  Ground 4: Liberal Construction of Section 29DF

Under section 19 of the IGCO, exemption provisions such as section 29DF of the SDO should be construed liberally in favour of the taxpayer.  In other words, where the Applicant replaced a single Original Property with a new Subject Property as the residence of her herself and her family, a purposive and generous interpretation of section 29D is not only justified, but required.

(5)  Ground 5: Only One Instrument is Used After Acquisition of the Subject Property

Even if the Collector’s literal interpretation is adopted, the Applicant should still be eligible for a partial refund.  She disposed of her remaining interest in the Original Property by one set of instruments executed “within the period” of “12 months after the date of the conveyance on sale” of the Subject Property: sections 29DF(3)(a)  and 29DF(5)(b).

44.  The essence of the grounds overall is that the Collector’s Decision was contrary to the proper construction of section 29DF, and inconsistent with the fundamental policy purpose of the refund mechanism for additional AVD, hence contradicting the legislature’s intent in enacting that section.

E.  Grounds 1 and 2

45.  It is convenient to deal with Grounds 1 and 2 together, because Ground 2 relates to the legislative intent of section 29DF and Ground 1 relates to whether the section on its proper construction permits disposal of one single Original Property by more than one set of instruments.

46.  The context and purpose of section 29DF was considered and explained by Chow J (as Chow JA then was)  in Yau Sun Yee v Collector of Stamp Revenue [2021] 1 HKLRD 786, applying the settled principles for statutory interpretation, at §§25-32 as follows (footnotes omitted, emphasis in original):

25.  In order to understand the context and purpose of s.29DF, it is necessary first to refer to some basic provisions in the Ordinance relating to the charging of ad valorem stamp duty on agreements for sale of residential property under Division 3 of Pt.IIIA of the Ordinance.

26.  The starting point is s.29BA(a), which provides that, subject to certain specified exceptions, an agreement for sale is chargeable with stamp duty under Pt.1 of Scale 1 of Head 1(1A)  in the First Schedule (Scale 1 – Part 1) if the property concerned is residential property.  Where an agreement for sale is chargeable with stamp duty under Scale 1 – Part 1, the amount of stamp duty is calculated at the flat rate of 15% of the amount or value of the consideration under the agreement.

27.  However, lower rates of stamp duty are applicable in relation to certain agreements for sale of residential property where the purchaser is a Hong Kong permanent resident (HKPR) and is not, at the time of acquisition, a beneficial owner of any other residential property in Hong Kong:

(1)  Under s.29BB(a), an agreement for sale is chargeable with stamp duty under Scale 2 of Head 1(1A)  in the First Schedule (Scale 2) if (a) the property concerned is a single residential property; and (b) it is shown to the satisfaction of the Collector that subs.(2)  or (3)  applies to that agreement.

(2)  Subsection (2)  of s.29BB relates to the situation where, on the fate of acquisition of the property, (a) the purchaser, or each of the purchasers, under the agreement is a HKPR acting on his or her own behalf; and (b) the purchaser, or each of those purchasers, is not a beneficial owner of any other residential property in Hong Kong.

(3)  For this purpose, a HKPR who has entered into an agreement to dispose of his original residential property before entering into an agreement to acquire a new residential property is regarded as not being a beneficial owner of the old property on the date of acquisition of the new property.

(4)  Where an agreement for sale is chargeable with stamp duty under Scale 2, the amount of stamp duty is calculated at rates between HK$100 and 4.25% depending on the amount or value of the consideration under that agreement.  In particular, where the amount or value of the consideration exceeds $6,720,000 but does not exceed $20,000,000 (as in the present case), the amount of stamp duty is calculated at the rate of 3.75%.

28.  The purpose of s.29BB was explained in the Legislative Council Brief on Stamp Duty (Amendment)  Bill 2013, TsyB R 183/700-6/5/0 (C), dated April 2013 (the LegCo Brief) prepared by the Financial Services and Treasury Bureau, para.9:

Having regard to the Government’s prevailing policy of according priority to the housing needs of HKPRs, we are mindful that any new measures to address the overheated property market should not impose undue financial burden on HKPRs who aspire to be homeowners.

29.  In addition, it was recognized that some HKPRs might acquire a new residential property before disposing of their original one, and it was decided that the lower rates under Scale 2 should also be available to those HKPR purchasers by means of a refund mechanism provided that certain conditions were met: see para. 15 of the LegCo Brief:

As set out in paragraph 12 above, HKPRs who have disposed of all their old residential properties before acquiring a new residential property (先賣後買)  would be charged the old AVD rates.  As for HKPR purchasers/ transferees who acquire a new residential property before disposing of their original one (must be their only other residential property)  (先買後賣), they have to pay stamp duty on the instrument for the newly acquired property at the enhanced AVD rates (applicable instrument)  in the first instance.  Yet, the Bill proposes to provide for a refund mechanism, whereby after the disposal of the old property is completed, IRD will refund, on application by the HKPR purchasers/ transferees within two years from the date of the applicable instrument, the stamp duty for the difference between the enhanced and the old AVD rates on the newly acquired property, on the condition that the agreement to dispose of their old property was entered into within six months from the date of the applicable instrument.

30.  The purpose of the refund mechanism was stated in the Report of the Bills Committee on Stamp Duty (Amendment)  Bill 2013, LC Paper No CB(1)1703/13-14, dated 2 July 2014 (the Bills Committee Report) at para.32:

The proposed section 29DF stipulates that a HKPR, having entered into an agreement for sale and purchase to dispose of his/her original and only other residential property in Hong Kong within six months from the date of acquiring a new residential property, can apply to the IRD, within two years from the date of the instrument in acquiring the new residential property, for the refund of AVD of an amount equal to the difference between payments according to the old and new rates on the newly acquired property.  The refund mechanism for HKPR purchasers/ transferees having acquired a new residential property before disposing of their original property is to cater for the replacement needs of HKPRs having regard to the fact that one may own more than one residential property during the transitional period in the process of acquiring a new property for replacement of the original one. [Emphasis added.]

31.  The refund mechanism is given effect by s.29DF which, so far as relevant, provides as follows:

[section 29DF set out]

32.  It can be seen that, where the applicable instrument is an agreement for sale on which ad valorem stamp duty has been paid purchasers who wishes to obtain a partial refund of the stamp duty under s.29DF:

(1)  the original property must be disposed of by the purchaser under an agreement for sale that is made within “12 months after the date of the conveyance on sale executed in conformity with the [applicable instrument]” by virtue of s.29DF(3)(a)  and (5)(b)  (the Disposal Deadline); and

(2)  the application for refund must be made by the purchaser “not later than 2 years after the date of the applicable instrument, or not later than 2 months after the date of the conveyance on sale under which the original property is transferred or divested, whichever is the later” by virtue of s.29DF(3)(c)  (the Application Deadline).

47.  I adopt those passages and the analysis.

48.  It is also helpful to note at this point that in the current case: (1) the Original Property was fully disposed of within the Disposal Deadline in section 29DF(3)(a); and (2) the Refund Application was submitted within the Application Deadline in section 29DF(3)(c).

49.  As a starting point, addressing Ground 2 (legislative intent), Ms Wong also pointed to the LegCo Brief – explaining the purpose of section 29BB – and to the recognition that some HKPRs might acquire a new residential property before disposing of their original one.  Hence, it was therefore decided, that the lower rates under Scale 2 should also be available to those HKPR purchasers by means of a refund mechanism, provided that certain conditions were met.

50.  This was given effect by section 29DF.  The central purpose of the refund mechanism is to cater for the replacement needs of HKPRs who have acquired a new residential property before disposing of their original property, so that there may be a transitional period in the process of acquiring a new property for replacement of the original.

51.  Ms Wong submitted that on proper reading, informed by its legislative intent, where the Applicant disposed of her single Original Property and replaced it with a single Subject Property, she must be fall within section 29DF of the SDO.  To interpret the provision otherwise would, she said, frustrate legislative intent.

52.  Ms Wong went further to submit that even if the original property was divided up into further tranches, and/or sold to different purchasers, if the policy objective is nonetheless achieved and no mischief is furthered, the applicant would be entitled to the refund in section 29DF.

53.  Addressing Ground 1 in particular, Ms Wong submitted that the expression “an agreement for sale” (in the singular)  in section 29DF should in fact be properly interpreted to consist of “2 or more instruments” and/or “agreements for sale” (in the plural).  Ms Wong pointed to overarching legislation:

(1)  Section 29A governs the interpretation of all provisions within Part IIIA of the SDO, which includes section 29DF.

(2)  Section 29A(3)  expressly provides that “[an] agreement for sale may consist of 2 or more instruments”. the provision this court is concerned with.

(3)  Section 2 defines “instrument” to “include every written document” – a definition applicable throughout the entire SDO, unless the context otherwise requires (which the present context does not).

(4)  Section 7(2)  of the IGCO provides that “[words] and expressions in the singular include the plural and words and expressions in the plural include the singular”.

54.  Applying these provisions, Ms Wong submitted that the proper interpretation of section 29DF allows the Original Property to be disposed of using more than one instrument.  Alternatively, Ms Wong asked the Court to view both agreements collectively as one set of instruments.  Ms Wong emphasised that the Applicant is not seeking the mercy of the Court but argued that this is the proper context and interpretation of the law.

55.  In response to the Grounds 1 and 2, Ms Cheng argued for a textual interpretation of the provisions grounded in the ordinary meaning of the statutory language.  Even if the Applicant might fall within the legislative rationale, she submitted that a line of authorities suggest that prominence has to be given to the wording of the statute.

56.  Referring to Feng Hongyan v Collector of Stamp Revenue [2018] 2 HKLRD 1471 at §§33-35, Ms Cheng submitted that the Court’s job is finding legislative intention as expressed in the statute’s actual language, and that the true interpretation of a statute cannot be affected by the fact that there may be individual cases where a different interpretation would or could lead to what may be considered a fairer result, especially in tax legislation.  That is a matter within the exclusive province of the legislature.

57.  Similar ways of expressing this have been given, as Ms Cheng pointed out, in Ho Kwok Tai at §§22-24, 27-33, in Yau Sun Yee v Collector of Stamp Revenue [2021] 1 HKLRD 786 at §42, and in Wang Weichen v Collector of Stamp Revenue [2021] 3 HKC 139 at §40.

58.  As to section 7(2)  of the IGCO, Ms Cheng also pointed to Ho Kwok Tai at §44, where it was held that it should not be applied to the interpretation of the expression “original property” in section 29DF because a contrary intention appears from the context of that section.

59.  Pointing to section 29DF(1)  and section 29DF(3), Ms Cheng highlighted the following:

(1)  “applicable instrument” means an instrument under which residential property is acquired and on which AVD had been charged according to the enhanced (Scale 1)  rate(s);

(2)  “subject property” means the residential property acquired under an applicable instrument;

(3)  “original property”, in relation to a person who acquires a subject property under the applicable instrument, means another residential property of which the person is a beneficial owner on the date of that acquisition;

(4)  “specified amount”, for an applicable instrument on which AVD had been paid according to the enhanced (Scale 1)  rate(s), means an amount equal to the difference between the AVD paid and the AVD that would have been payable on that instrument if it were chargeable under the lower (Scale 2)  rates;

(5)  in section 29DF(3)(a), the words “the original property is disposed of by the applicant under an agreement for sale” are in their singular forms;

(6)  in section 29DF(3)(b), the expression “a conveyance on sale executed in conformity with that agreement” is in its singular form.

60.  Ms Cheng submitted that, on the ordinary and natural meaning of the words as defined, it is clear that section 29DF is only engaged when the original property is disposed of under one agreement for sale and one conveyance on sale.  In the present case, neither of the sale and purchase agreements can be treated as “an agreement for sale” under section 29DF(3)(a), as they each disposed of only 50% of the Original Property, meaning the subject matters of the two agreements are different.  Moreover, she submitted, neither of the agreements disposed of the Original Property, which must mean 100% of the property.  The same reasoning applies to the two assignments, where neither of them was “a conveyance on sale” under which the Original Property was transferred or divested as per section 29DF(3)(b).

61.  I accept that the correct approach to questions of statutory construction is well settled, so much so that it can be set out without reference to authority:

(1)  Words are construed in their context and purpose.

(2)  They are given their natural and ordinary meaning with context and purpose to be considered alongside the express wording from the start, and not merely at some later stage when an ambiguity is thought to arise.

(3)  However, a purposive and contextual interpretation does not mean that one can disregard the actual words used in the statute.

(4)  To the contrary, the Court is to ascertain the intention of the legislature as expressed in the language of the statute.

(5)  A provision cannot be given a meaning which the language of the statute, understood in light of its context and purpose, cannot bear.

(6)  There is no room for the Court to look behind the clear words of a statute and try to construe them in such a way to achieve what it perceives to be a fair or fairer result.

62.  But it seems to me that where a provision operates to grant relief (to taxpayers, in this case), the Court must interpret the actual words used purposively, having regard to context and the objectives the provision is designed to achieve.  Substance should prevail over form.

63.  It is clear from the LegCo Brief that the purpose of section 29DF and other relevant provisions are: (1) to avoid overheating in the market, but also (2) to ensure that genuine HKPRs who are replacing their homes are not penalised by higher AVD rates, achieved by the refund mechanism to cater for HKPRs who have acquired a new residential property before disposing of their original property, when there may be a transitional period in the process of acquiring a new property for replacement of the original.

64.  The legislative intent relates to where a HKPR replaces a single original property with a single new one, so long as the relevant time frames for disposal and claiming the refund are met.  Put another way, the legislative intent is to cater for the situation of a person who buys a residential property in substitution for an earlier owned residential property – what might be termed a ‘one-for-one’ swap.  By way of contrast, the legislature obviously did not intend to cover the situation of a person owning two or more prior properties.

65.  Hence, in the present case, it seems to me the Applicant is precisely the type of person for whom section 29DF was designed.  She was residing in the Original Property with her daughter and grandchildren. As her grandchildren grew, the Original Property no longer met their household needs.  She purchased the Subject Property as a replacement family home.  She disposed of the entire Original Property within the statutory timeframe.  Her family now resides in the Subject Property.  She is clearly not a property speculator, but a grandmother providing housing for her family.

66.  The fact that the Applicant allowed the Purchaser, her friend who had financial difficulties, to purchase the Original Property in two tranches does not alter the fundamental character of the transaction.  It may not have been the most ideal way, but she nonetheless replaced one original property with one subject property.  Had she insisted the Purchaser acquire the entire property in a single transaction (involving only one set of instrument), she would unquestionably qualify for the refund.  The substance of what she did is identical; only the form differs.  The legislative intent has been achieved.

67.  Ms Cheng’s submission that neither of the two agreements disposed of “the original property” (meaning 100% of the property)  because each disposed of only 50% of it does not give proper effect to the substance of what occurred.  The fact that the Applicant disposed of her interest in that property in two tranches did not create two different “original properties”.  There remained only one original property.

68.  Further, the focus on the use of singular terms – “an agreement”, “a conveyance”, “the original property” – to argue that only a single agreement and a single conveyance that disposes 100% of the original property is permitted, fails to give proper effect to the overarching interpretative provisions within the SDO itself (sections 2 and 29A(3))  and within the IGCO (section 7(2)).  I do not accept that the context otherwise requires, so I therefore agree with Ms Wong that, read with these overarching provisions, the singular terms in section 29DF must also encompass their plural forms.

69.  I also agree with Ms Wong that the present case is distinguishable from Ho Kwok Tai:

(1)  In Ho Kwok Tai, the applicants owned two original properties and sold both after acquiring one new property.  They sought a partial refund, arguing that both properties were “original property” under section 29DF.  The Court of Appeal rejected this argument.

(2)  Crucially, the Court held that the language in section 29DF could not bear the interpretation that “original property” meant multiple properties.

(3)  In other words, the Court was concerned with whether general interpretive aids, such as that words in the singular should include the plural, should inform the meaning of “original property”.  The Court did not – and did not need to – consider the application of section 29A(3)  or section 7(2)  of the IGCO to words such as “instrument” or “agreement for sale”.

(4)  The Court’s reasoning at §§41-43 focused on the administrative difficulty that would arise if an applicant owned multiple properties.  In particular, if the applicant owned two or more properties which were disposed of after the acquisition of the new property, there could be more than one date of the conveyance on sale.  In such a case, there could be difficulty in determining the timeframe for the disposal and for an application for refund.  This concern was specific to the scenario of multiple properties.

(5)  It is easy to see why that was outside the legislative intent.

(6)  Effectively what was not permitted was the consolidation of two or more previously held properties being replaced by the new property.

(7)  But, that is not the present case.

(8)  In the present case, the language of section 29DF can certainly “bear the meaning” that disposal of a single original property might be effected through multiple instruments.  There was only one original property, and the question is whether that single property may be disposed of through more than one instrument.

(9)  In contrast to the Ho Kwok Tai case, the present case clearly falls within the legislative intention that a person who lives in one property (the original property)  but moves to live in a new replacement property should not be penalised, even if the new residential property is acquired before disposal of the original property.

70.  The point of distinction between Ho Kwok Tai and the present case can perhaps also be found in the definition of “original property” in section 29DF(1)  as “another residential property” of which the person is beneficial owner on the date of the acquisition of the new property – where the context and legislative purpose do point to only one other residential property as constituting the “original property”.  As already pointed out above, the intent is to cater for person living in one property moving to another, and obviously not to cater for a person who owns two or more residential properties and sells them at a time similar to buying another one in which to live.

71.  Nor do the additional authorities relied on by Ms Cheng – such as Feng Hongyan, Yau Sun Yee and Wang Weichen – assist.  The latter was, for example, another case in which they were to original properties.  Of course, I accept that those cases stand for the proposition that tax statutes must be interpreted strictly according to their language, and that individual cases cannot justify departing from the wording of the statute.  However, the interpretation I have adopted does not depart from the statutory language.  On the contrary, it gives full effect to the language used, read in context of the interpretative provisions in section 29A(3)  and section 7(2)  of the IGCO, and in light of the clear legislative intention.  Furthermore, for reasons already given, the present case should be distinguished from the cited cases – and where in none of them was there discussion about whether the original property could be disposed of by more than one instrument.

72.  In the circumstances, I conclude that Grounds 1 and 2 are both reasonably arguable with a realistic prospect of success, and both succeed on substantive review.

F.  Ground 3

73.  Addressing Ground 3, Ms Wong further distinguished the present case from Ho Kwok Tai, and the concerns expressed in that case – where there was disposal of two original properties – about ambiguity of timing.

74.  In Ho Kwok Tai – relied upon by Ms Cheng in her submissions – the Court of Appeal expressed concern that if the applicant was the beneficial owner of two (or more)  residential properties which he disposed of after the date of the acquisition of the new property within the specified statutory period, and later conveyed them to his purchasers, there could be more than one date of the conveyance on sale under which the “original property” is transferred or divested.  The Court thought that in such a case, there would be difficulty in determining the precise timeframe for the applicant to make the application for refund.

75.  But, in addition to the fact that Ho Kwok Tai involved the disposal of two original properties, Ms Wong further submitted that where the reference point – the “applicable instrument” by which the subject property is acquired – is a fixed point, the following times can be assessed with certainty:

(1)  Where the applicable instrument is a conveyance on sale, the relevant time limit is “12 months after the date of the applicable instrument”: sections 29DF(3)(a)  and (5)(a).

(2)  Where the applicable instrument is an agreement for sale, the relevant time limit is “12 months after the date of the conveyance on sale executed in conformity with the applicable instrument”: sections 29DF(3)(a)  and (5)(b).

(3)  The application for refund is made “not later than 2 years after the date of the applicable instrument”: section 29DF(3)(c).

76.  Therefore, Ms Wong submitted, there is no ambiguity in determining time limits.  In the present case:

(1)  The Original Property was disposed of within the disposal deadline under section 29DF(3)(a): the disposal of the second half of the Original Property on 21 June 2023 was within 12 months of the date of instrument of acquiring the Subject Property on 12 December 2022.

(2)  The refund application was filed within the timeframe under section 29DF(3)(c): the refund application on 5 July 2023 was within 2 years after the date of the of the provisional agreement for sale in respect of the Subject Property on 12 December 2022.

77.  Ms Wong also pointed to the LegCo Brief at §15, which explained that the legislative intent behind the refund of the AVD is that the applicant must have fully divested all interest in the original property (emphasis added):

As set out in paragraph 12 above, HKPRs who have disposed of all their old residential properties before acquiring a new residential property (“先賣後買”)  would be charged the old AVD rates.  As for HKPR purchasers/transferees who acquire a new residential property before disposing of their original one (must be their only other residential property)  (“先買後賣”), they have to pay stamp duty on the instrument for the newly acquired property at the enhanced AVD rates (applicable instrument)  in the first instance.  Yet, the Bill proposes to provide for a refund mechanism, whereby after the disposal of the old property is completed, IRD will refund, on application by the HKPR purchasers/transferees within two years from the date of the applicable instrument, the stamp duty for the difference between the enhanced and the old AVD rates on the newly acquired property, on the condition that the agreement to dispose of their old property was entered into within six months from the date of the applicable instrument.

78.  With this approach in mind, Ms Wong submitted, section 29DF(3)(a)  and (b)  and the “alternative deadline” for the application for refund in section 29DF(3)(c)  are not ambiguous:

(1)  Section 29DF(3)(c)  provides that “the application for refund is made by the applicant not later than 2 years after the date of the applicable instrument, or not later than 2 months after the date of the conveyance on sale under which the original property is transferred or divested, whichever is the later”.

(2)  This alternative deadline the qualifier “whichever is the later” is expressly formulated to operate in favour of persons such as the Applicant.

(3)  Its purpose is to extend the period for making a refund application to cases where the original property is disposed of by way of an agreement for sale within 12 months, but the actual assignment or completion takes place more than two years after the date of the applicable instrument.

(4)  Considering that the provision serves to extend the time for the applicant, and the legislative intent requires the applicant to have fully divested all interests in the original property, the alternative deadline must run from the date of the final assignment completing such divestment.

79.  I agree with Ms Wong’s analysis.  The ambiguity of the time limits identified in Ho Kwok Tai does not arise in the present case – and would not apply in any similar case.   Section 29DF(3)(a)  read with section 29DF(5)  set out that the agreement for sale or conveyance on sale to dispose of the original property must be made within 12 months after the agreement for sale or conveyance on sale of the subject property.  I agree that where there is more than one agreement disposing of a single original property, the natural reading is that this refers to the date when the property is completely transferred or divested – that is, the date of the final conveyance by which the applicant disposes of the whole 100% of the interest in the property of which he was the beneficial owner at the date when he acquired the subject property.  This interpretation gives effect to the legislative purpose identified in §15 of the LegCo Brief, which requires that “the disposal of the old property is completed”.  In the present case: (1) the Applicant held the beneficial ownership of 100% of the Original Property at the date of the acquisition of the Subject Property; (2) the 2^nd Assignment was executed on 21 June 2023, where the Applicant’s remaining 50% interest in the Original Property was transferred and disposed of; and (3) this was within 12 months of 12 December 2022, when the Applicant signed the PSPA for the Subject Property.

80.  Section 29DF(3)(c)  sets out that the application for refund must be made “not later than 2 years after the date of the applicable instrument, or not later than 2 months after the date of the conveyance on sale under which the original property is transferred or divested, whichever is the later”.  In the present case: (1) the applicable instrument is dated 12 December 2022, when the PSPA for the Subject Property was signed; (2) the refund application was made on 5 July 2025, which is within 2 years of 12 December 2022 and within 2 months of 21 June 2023. Since this date is fixed, the application for refund deadline is unaffected by how many instruments are used to dispose of the Original Property.  There is no ambiguity and the time limits are satisfied.

81.  Ground 3 is reasonably arguable with a realistic prospect of success, and it succeeds on substantive review.

G.  Ground 4

82.  In the circumstances of my decision on Grounds 1, 2 and 3, I do not think there is any need to address Ground 4, which is based on Ms Wong’s submissions that:

(1)  in the context of revenue legislation, charging provisions and exempting provisions should be read “generously”, adopting a construction in favour of the taxpayer, provided always that the statutory language admits of such a reading; and

(2)  because section 29DF is an exempting provision providing for a mitigation of the strictness of the application of the higher rate of charge under Scale 1 in a “buy first, sell later” scenario, a liberal construction should be adopted.

83.  Suffice it to say that I accept that those submissions are in line with both:

(1)  section 19 of the IGCO, which provides that an Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit; and

(2)  the comments in Escoigne Properties Ltd v IRC [1958] AC 549 at 568-569, that judges should interpret laws to “supress the mischief, and advance the remedy” and that “every statute must be read in the light of the circumstances in which it was made and the object it was passed to achieve”.

84.  However, I do not think those points significantly add to the necessary considerations already engaged in upon the statutory construction exercise conducted under Grounds 1 and 2.  Indeed – as pointed out by the Court of Appeal in John Wiley & Sons UK2 LLP v Collector of Stamp Revenue [2024] 3 HKLRD 689 at §27 – the particular principles applicable may have greater or lesser significance depending on the facts and circumstances of any given case, and may not be decisive in any particular case.

H.  Ground 5

85.  Nor is there any particular need to address Ground 5, though I shall do so as a matter of completeness.

86.  Ms Wong submitted that even if a narrow interpretation of the provision is adopted, the Applicant should still be eligible for refund.  This is because the Applicant disposed of her remaining 50% interest in the Original Property by one set of instruments, executed “within the period” of “12 months after the date of the conveyance on sale” of the Subject Property, in accordance with sections 29DF(3)(a)  and 29DF(5)(b).  Therefore, Ms Wong submitted, even on the Collector’s strict reading, the Applicant’s compliance with sections 29DF(3)(a)  and 29DF(5)(b)  entitles her to a partial refund.  The legislative intent is met, and the refund must follow.

87.  I disagree.  I think Ms Cheng correctly pointed to section 29AE(2)(b)  which provides that the date of acquisition is the date of the first agreement for sale.  Applying this, she said, the date on which the Applicant acquired the Subject Property is 12 December 2022, i.e. the date of the agreement, as opposed to 28 February 2023, i.e. the date of the assignment.  Accordingly, the Applicant disposed of the Original Property through two, as opposed to one, agreements for sale and conveyances of sale after the acquisition of the Subject Property.  They were the two agreements (i.e. 1^st SPA dated 16 December 2022 and 2^nd SPA dated 21 June 2023)  and two conveyances (i.e. 1^st Assignment dated 16 December 2022 and 2^nd Assignment dated 21 June 2023). Hence it cannot be said that only one instrument is used after acquisition of the Subject Property.

88.  In passing, it seemed to be common ground between Ms Wong and Ms Cheng that the claim to partial refund would not be to the refund applicable to the disposal of the second 50% of the Original Property.  Where the Applicant was the beneficial owner of the whole of that 50% at the date of the acquisition of the Subject Property, and disposed of it through one set of documents within the relevant timeframes, I am not sure the apparently common ground is necessarily correct, but there is no need for me now to consider that point any further.

I.  Delay and Extension of Time

89.  Returning to the issue of delay, and the possibility of extension of time, it is trite that an application for leave to apply for judicial review should be made promptly and in any event within three months of the date when the grounds for the application first arose.  Further, where there has been delay in seeking leave to apply for judicial review, the Court’s approach in deciding whether to grant an extension of time to the applicant to make the application is also well established.  The Court should take into account the following non-exhaustive list of factors: (1) length of delay, (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice; and (5) whether any question of general public importance is raised in the application.

90.  Ms Wong submitted that time extension ought to be granted for the following reasons:

(1)  Although the Collector initially refused the Applicant’s partial refund application by letter dated 29 August 2023, it subsequently informed the Applicant on 14 March 2024 that her partial refund application was being withheld pending advice from the DoJ.

(2)  The Collector took considerable time to consult the DoJ before reverting on its final position on 13 November 2024.

(3)  Given that even the Collector had to seek legal advice on this matter before the Court, it is reasonable that the Applicant, a layman, needed more time to consider her position and obtain advice.

(4)  Adding to this, the Applicant was in bereavement over her daughter’s tragic passing in November 2024.

(5)  There is public interest in clarifying the refund provisions under the SDO, not least where the Applicant understands that several similar cases exist in which the Collector has denied partial refund applications on the basis that disposal was affected by more than one instrument.

(6)  In terms of prejudice, the detriment to the Applicant if time is not extended would be significantly greater than any prejudice to the Collector (as representative of the public revenue).

(7)  The Applicant’s challenge is well-founded and supported by strong legal merit.

91.  On the other hand, Ms Cheng submitted that:

(1)  Even assuming that time began to run only from 30 November 2024, the delay of approximately seven months is nonetheless substantial.

(2)  The longer the delay the more cogent the reason needed for the grant of an extension of time.

(3)  Whilst negotiation with the decision-maker may be a relevant factor, this is not a reason for delaying the application for leave to apply for judicial review in the present case – where the application was only taken out on 25 June 2025 – i.e. more than 7 months after the last letter issued by the Collector on 13 November 2024.

(4)  The Applicant has been advised by the same firm of solicitors, Littlewoods, at least since 5 September 2023.

(5)  It cannot be seriously suggested that the Applicant only came to realise there was an allegedly arguable basis to challenge the Decision on 25 June 2025.

(6)  The unfortunate demise of the Applicant’s daughter is also not, with respect, a ground for extension given the extent of the delay.

92.  Ultimately, I am persuaded that the circumstances are such that I should exercise my discretion to extend time.  I acknowledge that the delay is not insignificant, even in the difficult personal circumstances faced by the Applicant.  I also acknowledge that the Applicant has been legally represented throughout, as the chain of correspondence traversed above identifies, which is a factor pointing against granting the extension.  Nevertheless, the merits of the substantive application strongly favour granting an extension, and the Court will be cautious about denying substantive justice on procedural grounds where the applicant has a meritorious case.  Further, I do not think there is any real prejudice to the Collector arising from the delay, whereas the prejudice to the Applicant of the extension is refused is substantial, where the relevant refund is HK$855,000.  The balance of prejudice clearly favours the Applicant. Lastly, the case does seem to me to raise a question of wider or general public importance.

J.  Result

93.  By way of brief summary, the legislative intent and words used in section 29DF identify that the meaning and purpose is to provide AVD relief to a HKPR residential property owner who makes what I have termed a ‘one-for-one’ swap to a new residential property – where the acquisition of the replacement new residential property occurs before disposal of the original property, such that there is a transitional period in the process of acquiring a new property for replacement of the original.  The key is that the HKPR must dispose of 100% of the original property as was owned at the date of acquisition of the new property, and must do so and claim the refund within time limits set.

94.  In this case, at the time of the acquisition of the Subject Property, the Applicant was the beneficial owner of 100% of the Original Property.  Within the necessary time limit, the Applicant completed her replacement needs and disposed of that 100% of the Original Property (albeit in two tranches), and therefore effected the relevant ‘one-for-one’ swap entitling her to the AVD refund.

95.  Therefore, for reasons set out above:

(1)  The necessary extension of time for the Applicant to bring this application for leave to apply for judicial review is granted.

(2)  Leave to apply for judicial review on Grounds 1, 2 and 3 is granted.

(3)  The substantive application for judicial review on those grounds succeeds.

(4)  In the exercise of my discretion as to relief, I order the Collector’s Decision dated 13 November 2024 to be quashed as claimed, and it follows that the Applicant’s application for partial refund in the sum of HK$855,000 must be granted.

96.  I see no reason why costs should not follow the event, and therefore I order the Collector to pay the Applicant’s costs, to be taxed if not agreed.  However, in the first instance I will make that order on a nisi basis, to become absolute if either party makes a variation application within 14 days.  Any such application will be dealt with on paper.