COMMISSIONER OF INLAND REVENUE v. SIMON PATRICK DURRANT

DCTC3415/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3415 OF 2008

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D E C I S I O N

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1.  This is the defendant’s application to appeal against the decision of Master Lo given on 27 February 2009.  The notice of appeal was taken out on 25 May 2009.  According to Order 58, Rule 1(3) of the Rules of the District Court, after the judgment was given the defendant must appeal against this decision within 14 days thereof.  So the present application made by the defendant is outside the 14 days’ period.

2.  There is no application for extension of time to appeal on his part and I note that on the Notice of Appeal, there is a sentence stating that the party insists filing claim not out of time to appeal.  Since this application is outside the 14 days’ period required under Order 58, Rule 1(3) I have no jurisdiction to hear this application and on this ground alone it must be dismissed.

3.  Even if I had the jurisdiction to hear this application it must be dismissed for the following reasons.  On 3 June 2009 when the parties appeared before me for the first time the defendant alleged that the plaintiff committed perjury.  I therefore adjourned the case to today so that the defendant could serve and file an affidavit relating to the alleged perjury.  The defendant does not appear before me today but he filed an affirmation dated 22 June 2009.  In this affirmation he made the following remarks. 

‘There are stiff penalties for lying under oath, the committing of perjury is a serious offence.  Essentially the whole foundation of the judicial system relies on this principle of speaking truthfully under oath/affirmation.  With those who claim to “act in the public interest” it is doubly important that they speak truthfully and accurately and not seek advantage by distorting the truth…  The dishonesty of the IR lies in the use of the provisional tax as the means to prosecute this case.  To claim a provisional figure to be fact, when the IR knows it to be an assessment/estimate is dishonest and amounts to false testimony delivered under oath perjury.’

4.  The defendant is not here to lead me to the part relating to this alleged perjury so that I could go in depth to consider the opinion advanced by him.  The mere opinion that the IR is dishonest in the way he describes may be subject to different opinion but certainly it cannot be dishonest to use the provisional tax to prosecute the case.  In the absence of further evidence in this respect, I cannot make a finding that the plaintiff has committed any perjury.  Therefore this ground must fail.

5.  The defendant’s argument to upset the judgment made by Master Lo appears to be that the documents confirming the provisional tax are nothing more than a guess, quoting what he stated in his affirmation then such estimates cannot be truthful.  That is what I gather from his affirmation and the estimate or assessment cannot be correct according to the part of his affirmation where he says that the plaintiff amended the provisional tax figures on two occasions.  The plaintiff amended these figures because this estimation was incorrect.  Now it appears to me that he is saying that the estimation is incorrect.  This is not allowed under section 75(4) of the Inland Revenue Ordinance.  Section 75(4) says:

“In proceedings under this section for the recovery of debts the court shall not entertain any plea that the tax is excessive, incorrect, subject to objection or under appeal.”

So this defence cannot stand, according to section 75(4).

6.  I cannot find any other ground of the defendant trying to upset the order or judgment made by Master Lo.  So on the merit of the case the defendant has no chance of success to revoke the judgment. 

7.  For all these reasons I dismiss his application.

(Submissions on Costs)

8.  I order that the defendant do pay costs to the plaintiff estimated in the sum of $8,692.50 being costs for summary assessment.