WONG YU CHO ROLLY t/a MARCO POLO AND CHINA OVERSEA TECHNICAL DEVELOPMENT v. INLAND REVENUE DEPARTMENT

HCMP 599/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 599 OF 2007

(ON APPEAL FROM HCAL NO. 15 OF 2007)

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J U D G M E N T

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Hon Yeung JA (giving Judgment of the Court):

1.  The applicant, Wong Yu Cho, Rolly trading as Marco Polo and China Oversea Technical Development, sought leave to commence judicial review proceedings against Inland Revenue Department (“IRD”).

2.  On 1 March 2007, Saunders J refused his application.

3.  On 28 May 2007, the applicant sought extension of time to appeal against Saunders J’s decision from Cheung JA.

4.  On 19 July 2007, Cheung JA accepted the applicant’s explanation for the delay but nevertheless rejected the judicial review application on the basis that his application had no merits.

5.  The applicant now appeals against Cheung JA’s decision.

6.  It may be necessary to set out the history of the disputes between the applicant and IRD briefly.

7.  In 2004, the applicant commenced proceedings in the District Court (DCCJ 4492/2004) against IRD and one of its staffs, Mr Ho for negligence and trespass. IRD counterclaimed for the payment of tax earlier assessed and obtained default judgment.

8.  The applicant’s attempt to set aside the default judgment failed before Judge Chow. The applicant also failed to obtain leave either from the Court of Appeal or the Judicial Committee of the Court of Final Appeal to appeal against default judgment.

9.  The judgment on IRD’s counterclaim against the applicant for the assessed tax is therefore final and conclusive.

10.  In 2005, the applicant commenced HCA 2132/2005 to set aside the default judgment in DCCJ 4492/2004. Mr Registrar Chan struck off the applicant’s claim on the basis that such a claim was an abuse of process.

11.  It appears that the applicant has also commenced DCCJ 5016/2205 against IRD for trespass.

12.  The applicant then commenced the present proceeding on the basis of:

1.	wrongful assessment of taxation by IRD;
2.	trespass on 24 August 2001 by officers of IRD;
3.	the freezing of the applicant’s bank accounts pursuant to section 76(1) of the Inland Revenue Ordinance on 16 August 2004; and
4.	failure by IRD to adhere to the directions given by the District Court on 21 December 2006.

The applicant sought the following reliefs:

1.	Certiorari : Quash Respondent’s tax assessment,
2.	Mandamus : To adhere the court’s order,
3.	Damages from trespassing premises, and
4.	Declaration: The Applicant does not owe any tax to the Respndent.

13.  The disputes between the applicant, and IRD and its staff circled around the applicant’s tax liability and the applicant’s allegation of trespass.

14.  The applicant’s tax liability, the subject matter of the counterclaim by IRD in DCCJ 4492/2004 had been adjudicated upon by various level of the court.

15.  IRD had obtained default judgment against the applicant. The applicant’s many attempts to set aside the default judgment, including applications to the Court of Appeal and the Appeal Committee of the Court of Final Appeal for leave, had all been dismissed.

16.  The applicant’s attempt to re-litigate the same issue in HCA 2132/2005 ended up in his claim being struck off.

17.  Undeterred, the applicant sought a judicial review over the same issue.

18.  Firstly, the applicant’s claim does not have any public element and is therefore not the proper subject matter of a judicial review application. In any event, the issues had been adjudicated upon and the applicant cannot, in multiple proceedings, seek to re-litigate the same issue again.

19.  The allegation of trespass is already before the court in DCCJ 4492/2004, which proceeding is still pending.

20.  It is quite wrong, if we may add, for the applicant to commence DCCJ 5016/2005 seeking the same relief as he did in DCCJ 4492/2004.

21.  The applicant’s allegation that IRD failed to respond to his proposal dated 27 December 2006 simply cannot be challenge as IRD is not obliged to negotiate with him.

22.  Unfortunately the applicant sees fit to commence multiple proceedings on the same issues in his disputes with IRD.

23.  What the applicant does is a clear abuse of the court’s process. The applicant simply is not entitled to re-open the same subject matter after the court had decided against him in earlier proceedings, whether he likes it or not.

24.  We agree with Cheung JA’s decision that the applicant’s judicial proceeding should not be allowed to proceed.

25.  The appeal is therefore dismissed.

26.  The applicant has repeatedly taken out unmeritorious proceedings with a view to relitigate on the tax assessment.  This course of conducts has occasioned substantial waste of judicial resource which should have been deployed on other cases.  It is high time that the court should take step to stop such conduct if the applicant persists the same.  If the applicant shall attempt to revive his challenge to the tax assessment by legal proceedings in whatever stage or form, the court seized with the matter should consider making a RPO and RAO against him.