HEUNG KIU CHOW AND ANOTHER v. THE COMMISSIONER OF ESTATE DUTY

1996, No.MP3975

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H E A D N O T E

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Matrimonial home exemption under s.10A of the Estate Duty Ordinance - Property acquired by Deceased in 1975 as the matrimonial home - Deceased died in UK in 1995 having emigrated there in 1980 - Property was unlet and available for the use of the Deceased and his wife whenever they returned to Hong Kong - whether exemption applies - meaning of "occupied ... exclusively for residential purposes" in s.10A(1)(a)(i) - whether Property was "matrimonial home of the Deceased" immediately before his death

1996, No.MP3975

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. This originating motion is an appeal under s.22 of the Estate Duty Ordinance ("the Ordinance") against the assessment made by the Commissioner of Estate Duty dated 16 August 1996 on the property situated at 1/F., No.60 Po Tung Road, Sai Kung, New Territories ("the Property"). The Plaintiffs are the executrices of the estate of Yuet On Chow ("the Deceased"). Their claim for matrimonial home exemption under s.10A of the Ordinance in respect of the Property was rejected by the Commissioner.

The facts

2. The Property was acquired in April 1975 by the Deceased and his wife who were indigenous villagers of the New Territories as their matrimonial home. They lived there until they emigrated to the United Kingdom in 1980. At the date of his death on 22 February 1995, the Deceased owned altogether six properties in Hong Kong including the Property. The other five properties were let during his life time but the Property was retained for the use of the Deceased and his wife whenever they returned to Hong Kong. It is accepted that they never parted with the ownership, possession or control of the Property. It should be mentioned that the Commissioner sought to contend that the Property was "vacant" but there is no evidence to support that contention.

3. Immediately before his death, the Deceased was a British citizen and ran a supermarket store in Swansea in the United Kingdom. Between 1980 and his death in 1995, the Deceased and his wife made the following visits to Hong Kong :

The Deceased	No of days
5 December 1990 - 10 January 1991	36
6 November 1992 - 3 December 1992	27
The wife
2 July 1982 - 31 August 1982	61
1 April 1983 - 5 June 1983	66
17 July 1990 - 4 September 1990	50

4. The Deceased and his wife were Hong Kong permanent residents within Schedule 1 of the Immigration Ordinance Cap.115. As such, they had the right and the widow still has the right to return to live in Hong Kong.

5. The only issue which arises is whether, on those facts, the matrimonial home exemption applies to the Property.

The matrimonial home exemption

6. Prior to 1982, estate duty was exigible in respect of a person's matrimonial home like all other property passing on his death. Such duty was only exigible on property situate in Hong Kong at the time of death. The residence, citizenship, nationality, domicile and place of death are irrelevant. In 1982, an exemption was introduced for "the principal matrimonial home of the deceased where the deceased leaves a surviving spouse". This exemption broadly followed the Property Tax owner-occupy exemption; and where there is more than one matrimonial home, the estate's legal personal representative is permitted to designate which property is to be the principal matrimonial home. See the report of the second reading of the Appropriation Bill 1982 on 24 February 1982, Hong Kong Hansard, Session 1981/82, para.101 and footnote 61. The exemption applied as from 1 April 1983.

Section 10A of the Ordinance

7. Section 10A provides as follows :

"10A. Exception for matrimonial home

(1) Estate duty shall not be payable in respect of property -

(a) which was, immediately before the death of the deceased -

(i) a residence owned by him and occupied solely by him exclusively for residential purposes; and

(ii) the matrimonial home of the deceased and his spouse; and

.....

(2) For the purposes of subsections (1) and (3) -

(a) property shall be deemed to be a residence and deemed to be capable of being a matrimonial home if the property is the exclusive right to enjoy the residence together with the right to an undivided share in land on which the residence is situated;

(b) a residence shall be deemed to be owned by the deceased if the property is owned by him or by him and his spouse;

(c) a residence shall be deemed to be occupied solely by the deceased if it is occupied solely by him or by him and his spouse and family;

.....

(3) Where more than one residence would, under subsection (1) and but for this subsection, be exempt from estate duty, only one residence shall be so exempt and the executor may, by notice in writing to the Commissioner, elect which residence shall be exempt; in default of which, the Commissioner shall make the election."

8. To qualify for exemption, the requirements contained in both paras.(a) and (b) of sub-section (1) must be fulfilled. In the present case, it is common ground that the requirements of para.(b) are satisfied. That leaves the requirements of para.(a) which may be broken down into the following elements :

(i) the property was "a residence";

(ii) it was owned by [the Deceased];

(iii) it was "occupied solely by him";

(iv) it was "occupied ... exclusively for residential purposes";

(v) it was the matrimonial home of the Deceased and his spouse; and

(vi) (i) to (v) above were satisfied "immediately before the death of the Deceased".

(i) a residence

9. Sub-section (2)(a) contains a mandatory deeming provision relating to "residence". However, it is to be noted that sub-section (2)(a) is not readily intelligible; grammatically, it makes little sense. Despite the grammatical difficulties of that paragraph, both parties accept that the deeming provision applies where the Deceased had the exclusive right to enjoy the residence together with the right to an undivided share in land upon which it is situated. This being the case here, it is common ground that the deeming provision has the effect of making the Property "a residence" for the purposes of Section 10A(1)(a).

(ii) owned by the Deceased and (iii) occupied solely by the Deceased

10. It is also common ground that the deeming provisions in sub-section (2)(b) and (c) apply and no issue arises as to these requirements.

(iv) occupied ... exclusively for residential purposes

11. This is where the real dispute between the parties lies.

12. Counsel for the Plaintiff submitted that the controlling or operative word here was "occupy" rather than any notion of "residence". The essential ingredients of "occupation" are possession and control. In R. v. St. Pancras Assessment Committee [1877] 2 QBD 581, a rating case, Lush J. stated (at p.588) that :

"Occupation includes possession as its primary element, but it also includes something more. Legal possession does not of itself constitute an occupation. The owner of a vacant house is in possession, and may maintain trespass against anyone who invades it, but as long as he leaves it vacant he is not rateable for it as an occupier. If, however, he furnishes it, and keeps it ready for habitation whenever he pleases to go into it, he is an occupier, though he may not reside in it one day in a year."

The word "occupy" is thus not synonymous with "reside"; it is a different concept and has a wider meaning, residence being only a limited form of occupation. For example, one may be occupying a property without being physically there : Poland v. Earl of Cadogan [1983] All ER 544 at 548-550.

13. The main thrust of the Commissioner's contention is that, on its true construction, the phrase is synonymous with occupying property as a home or a residence because "occupy" should be given its ordinary meaning and the meanings asserted to it in the Oxford English Dictionary include "to reside in and use (a place) as its tenant or regular inhabitance", "to dwell, reside; to stay, abide".

14. As to the meaning of occupying a house as a home or residence, reference was made to case law on the English Rent Acts. Under that legislation, (e.g. s.2(1) of the Rent Act 1977), the relevant consideration is whether the person claiming a statutory tenancy "occupies the dwelling-house as his residence". In D.J. Crocker Securities (Port Smith) Ltd. v. Johal (1989) 42 EG 103, the material question was whether or not the appellant was residing at the flat in question as his residence or as his home. He went to the UK from Malaysia in 1971 to study for the bar and moved into the flat in question. He occupied it until 1977 when he returned to Malaysia and started a law practice there. Thereafter, for most years, he and his wife made visits to the UK and occupied the flat from between 9 to 26 days each year. The Court of Appeal rejected the argument that the appellant used the flat as his home, Stuart-Smith LJ stating that "having regard to the very limited extent to which he was here, the fact that his home is placed well in Malaysia and the very limited extent to which he uses the flat in this country, it really is an abuse of language to describe him as residing and occupying it as his residence or his home." Hampstead Way Ltd. v. Lewis-Weare [1985] 1 WLR 164 is also a decision on s.2(1) of the Rent Act 1977. There it was held that while a person could occupy two houses "as his residence" within the meaning of the section, where he occupied one of them occasionally or for limited purposes, it is a question of fact and degree whether he occupied it "as his residence". Where the tenant only made limited use of the flat and did not carry out all an ordinary person's living activities there, it was not sufficient. So it was submitted that as the Deceased made limited use of the Property and did not carry out all his living activities here, the contention being that those activities were carried out in his Swansea home, the Property was not occupied by the Deceased as his residence.

15. How relevant are Rent Act cases to the interpretation of s.10A of the Ordinance? In my judgment, they are of no assistance for the following reasons. The wording is significantly different resulting in different material questions : under the Ordinance, the relevant inquiry is whether the Property was occupied exclusively for "residential purposes" whereas under the Rent Acts it is whether the dwelling house was occupied as a person's home or residence. Further, it is also relevant that the legislative objectives are wholly different : one is to levy capital duty on property passing on death, the other is to mitigate hardship to tenants resulting from a scarcity of housing by, inter alia, giving protection to tenants of premises within the Rent Acts.

16. In my judgment, on the true construction of s.10A, the relevant inquiry and its focus are the purposes for which the Property was occupied. An example may be found in Cheryl Investments Ltd. v. Saldanha [1978] 1 WLR 1329 a case relating to the meaning of "occupied for the purposes of a business" for the purposes of s.23(1) of the Landlord and Tenant Act 1954. There the relevant inquiry was "the purpose" for which the tenant was occupying the premises and not the actual use made of the premises. Lord Denning M R stated (at p.1337A-B) :

"A professional man may occupy premises for the 'purpose' of seeing clients but he may make little 'use' of them because no clients come to see him."

So here it is the purposes for which the Property was used that are relevant. If they were not exclusively residential, then the exemption cannot apply, for example, where the premises were used in part for business or professional purposes. On the facts, they were plainly residential in nature : whilst the property may not have been used very much, it cannot be disputed that the purposes for which the Property was occupied were exclusively residential.

(v) "the matrimonial home immediately before the death of the Deceased"

17. Although the requirement "immediately before the death of the Deceased" qualifies both paras.(i) and (ii) of sub-section (1)(a), it is only in relation to (ii) that issue is taken. It would therefore be convenient to consider this requirement together with the matrimonial home element.

18. The Property was certainly capable of being the matrimonial home by reason of the deeming provision in sub-section (2)(a). It is also clear from sub-section (3) that more than one residence may qualify for the matrimonial home exemption. Thus the legislation itself envisaged that a person may have several matrimonial homes.

19. The Commissioner contended that because the Deceased's place of abode was in the UK, that being their normal family home, the Property was not in any real sense, the matrimonial home of the Deceased immediately before his death. Reliance was placed on Beck v. Scholz [1953] 1 All ER 814 where it was stated (at p.816) that :

"Occupation merely as a convenience for ... occasional units ... would not ... according to the common sense of the matter, be occupation as a home."

But again that is a Rent Act case where occupation as a home was the determinative factor for a statutory tenancy. Those observations whilst appropriate in construing rent restriction legislation have little bearing on estate duty legislation.

20. In my judgment, infrequency of user is not in itself fatal. Suppose their principal home had been on Hong Kong island rather than Swansea. In that scenario, as a matter of principle, there is nothing that would preclude a secondary residence in Sai Kung or on the outlying islands albeit rarely used but at all times available for the use of the Deceased and his spouse from qualifying as a matrimonial home. Sub-section (3) would then come into play and an election would have to be made. The fact that the principal residence is situated outside Hong Kong is irrelevant.

21. Prior to their emigration to the UK, the Property was undoubtedly the matrimonial home of the Deceased. I do not agree that it ceased to be so when they left Hong Kong in 1980 : the Property was not let; the Deceased had possession and control over it and it was available for his use exclusively for residential purposes whenever he and his wife chose to return; it was their home whenever they were in Hong Kong.

Order

22. For the reasons I stated above, I will allow the appeal and make an order in terms of paras.2 and 3 of the originating motion. I also make an order nisi that the costs of this appeal be to the Plaintiffs.