CHU RU YING v. COMMISSIONER OF INLAND REVENUE

CACV 203/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 203 OF 2008

(ON APPEAL FROM HCIA NO. 7 OF 2007)

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DECISION

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 1.  This is the taxpayer’s application to adjourn the hearing of her appeal from the order of Burrell J given on 13 June 2008 when he dismissed her appeal by way of case stated on certain assessments made under section 82A of the Inland Revenue Ordinance, Cap. 112.  The appeal is scheduled to be heard on 30 October 2009.  As I understand it, the taxpayer’s case for an adjournment is based on the fact that her appeal, according to her, will involve points which are also involved in two other pending proceedings. 

2.  The first is an appeal pending in this Court, Commissioner of Inland Revenue v Nam Tai Trading Co Ltd in CACV 107/2009, which is scheduled to be heard on 2 February 2010.  The other is an application for judicial review, HCAL 40/2008, where leave was granted on 20 April 2009 by A Cheung J. 

3.  This is not the occasion to decide whether these cases actually involve points which are, or may be relevant to the taxpayer’s appeal.  Mr Eugene Fung, for the Commissioner, has submitted that they do not and he has provided cogent reasons why not.  On the other hand, the taxpayer, with her husband who is a solicitor acting as a McKenzie friend, has provided very detailed submissions to the contrary. 

4.  In the end, it requires an exercise of discretion.  In exercise of my discretion, I would refuse an adjournment of the hearing of the appeal.  I do so because even if those cases do involve points which are, or may be relevant to the appeal, that is not a sufficient reason for an adjournment. 

5.  One of the cases relied on Re Lee Yee Shing Jacky and Yeung Yuk Ching in HCAL 40/2008, is at a very preliminary stage, as I have said, leave having been granted on 20 April 2009.  The other appeal will be heard in February 2010.  If there are indeed common grounds in those two appeals, that is not a sufficient reason, as I have said, to adjourn the appeal which is scheduled to be heard on 30 October 2009.  Moreover, although I do not decide now whether there are indeed common points, it is at least arguable that there are not.  It would be unsatisfactory to postpone the hearing of the present appeal for perhaps a number of years and then to revive the hearing of the present appeal and it turns out that no common points are involved. 

6.  The taxpayer also relies on the fact that an earlier date fixed for the hearing of this appeal, namely 25 February 2009, was vacated by Rogers VP on 19 January 2009.  The background of that order can briefly stated. 

7.  By letter dated 16 January 2009, the taxpayer wrote to the Registrar of Civil Appeals.  Amongst other things, this is what she said:

“In view of the pre-emptive effect of the trimming of my draft appeal bundle, I have lodged two claims with the Small Claims Tribunal against the statute-barred additional taxes penalties for 1996/97 and 1999/2000 in the amount of $47,000 and $50,000 respectively (SCTC 59186/08 and 59185/08).  The first hearing is scheduled for 26 February 2009 which is the day after the Court of Appeal hearing.  I wish to add that the statue bar issue was not spotted until the Board of Appeal hearing was over, not due to my fault.”

8.  By letter dated 19 January 2009, the Registrar replied:

         “Your letter dated 16 January 2009 had been placed before the Honourable Mr. Justice Rogers, Vice President for consideration and his Lordship made the following order on 19 January 2009:-

‘Date may be vacated and refixed.’”

9.  Then on 27 February 2009, the Department of Justice acting for the respondent, informed the Registrar of Civil Appeals by letter that the Small Claims had been struck out by the adjudicator of the tribunal on 26 February 2009:

“… The reasons were that the Small Claims were outside the jurisdiction of the Tribunal and that the Small Claims were re-litigation of this set of proceedings.  For the assistance of the Court, we enclose herewith the Claim Forms of the Small Claims, which showed clearly issues involved therein can be equally disposed of in this appeal.”

10.  Following that, there were two letters, both dated 2 March 2009, the first one I would read is the one from the Registrar to the parties, stating that, after referring to the letter on 27 February 2009 from the Department of Justice, that the parties should attend the Deputy Clerk of Court (Appeals) on 10 March 2009 to refix the hearing of the appeal.  The other letter dated 2 March 2009 is from the taxpayer to the Registrar saying that she was applying for a review of the adjudicator’s decision.

11.  By letter dated 3 March 2009, the Department of Justice wrote to the Registrar stating that although the appellant (the taxpayer) had not made an application to further adjourn the fixing of the hearing date of the appeal, they wanted to make clear that any such application would be contested.

12.  On 5 March 2009, the Registrar wrote again to the parties saying after referring to his letter of 2 March 2009, and the taxpayer’s letter of 3 March 2009:

“Please be informed that the listing appointment has been re-scheduled for 24 March 2009…”

13.  To cut a long story short, eventually the present October date was fixed.  It is quite clear that the order made by Rogers VP on 19 January 2009 has been overtaken by the subsequent events. 

14.  I am told by the taxpayer that leave has been granted to appeal the decision of the adjudicator in respect of the two small claims, although no date has been fixed for the hearing of those appeals.  She was given leave by Deputy Judge A To (as he then was).

15.  Anyway, the relief that the taxpayer is seeking today is not that the hearing of the present appeal should be adjourned until after the hearing of the Small Claims appeal, but even if it were, I do not agree that that is a good reason for the adjournment of the hearing of the present appeal.  It may be that the determination of the present appeal will be determinative of the Small Claims appeal anyway.  If it is, that is a good reason for not adjourning this until after the hearing of the Small Claims appeal.  If it is not, then there is no reason why it should be adjourned until after the hearing of the Small Claims appeal.

16.  So for these reasons, I would refuse an adjournment.

17.  The taxpayer also complained that because of the trimming of her appeal bundle, she would be unable to take a point which she might otherwise have wished to take.  The point seems to be directed to challenging the factual finding of the board of review which is of course not permissible under the case stated procedure.  Be that as it may, I have told that the taxpayer that if, as she claims, the decision of A Cheung J in Re Lee Yee Shing Jacky and Yeung Yuk Ching, unreported, HCAL 40/2008, 20  April 2009 has made the point that she wished to make open to her, she can of course apply to the court of appeal for leave to take the point and to put in a supplemental bundle.  I say this without indicating in any way that in my view that the point that the taxpayer may wish to make is a good one, or is even arguable.  But I say it, nevertheless, in order to indicate to the taxpayer that all points she wished to make, subject to the permission of the court, may be made at the hearing of the appeal in October.