陳玉琼及另一人 v. 印花稅署署長

DCSA 100/2016, DCSA 101/2016 & DCSA 102/2016

(Heard Together)

[2018] HKDC 1302

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

STAMP APPEAL NO 100 OF 2016

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

STAMP APPEAL NO 101 OF 2016

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

STAMP APPEAL NO 102 OF 2016

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REASONS FOR DECISION

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INTRODUCTION

1.  This is the hearing of the respective striking out summons, all in the same terms, taken out by the Collector of Stamp Revenue (“the Collector”), the respondent in each of the 3 appeals, to strike out the 3 respective Notices of Appeal all dated 23 July 2016 on the ground that they disclose no reasonable cause of action and/or are abuses of the process.

2.  These summonses were ordered to be heard together by the orders of His Honor Judge Kent Yee made on 19 July 2018 in the 3 set of proceedings.

3.  After hearing the matters, I order the striking out of the said 3 Notices of Appeal with costs summarily assessed.  These are my reasons.

4.  The appellants in the 3 appeals are family members.  The appellants in DCSA 100 of 2016, Mr Man (Man Senior) and Madam Chan (Mrs Man) are husband and wife.  The appellants in DCSA 101 of 2016 are Man Senior and Man Wai Wah, their older son (“Older Son”).  The appellants in DCSA 102 of 2016 are Mrs Man and Man Yu Lung, their younger son (‘Younger Son”).

5.  By 3 respective sale and purchase agreements all executed on 23 June 2010, Man Senior and Mrs Man as co-owners, Man Senior and Older Son as co-owners, and Mrs Man and Younger Son as co-owners respectively purchased the Ground Floor and the Garden thereto, the First Floor (with Balcony), and the Second Floor (with Balcony) of No 85J Kau Lung Hang, Tai Po, New Territories.

6.  By 3 respective Notices of Stamp Duty Assessment & Demands for Payment all dated 11 May 2016 (“the Demands”), the said respective co-owners of the said Ground Floor, First Floor and Second Floor were demanded stamp duty in the respective sums of HK$59,900, HK$53,900 and HK$59,900, as being chargeable under Head 1(1A) in the First Schedule to the Stamp Duty Ordinance Cap 117.

7.  After one round of correspondence in respect of each of the Demands in which the Collector informed the respective appellants that he maintained the Demands and reminded them to pay the stamp duty under section 14(1) of the Stamp Duty Ordinance prior to the making of an appeal, the said 3 Notices of Appeal were filed.

8.  As said, the 3 Notices of Appeal were all filed on 23 July 2016, which were some 6 weeks outside the statutory period, as prescribed by section 14(1)(a) of the Stamp Duty Ordinance, of within one month from the date on which the assessments were made.

9.  Despite being informed as above said of the requirement to pay the respective demanded stamp duties as required under section 14(1)(b) of the Stamp Duty Ordinance, such were not paid to date.

10.  Actions in the District Court have been commenced by the Collector to recover the demanded stamp duties, which are pending.

11.  Despite 3 letters by the Collector all dated 13 April 2018 each in respect of each of the appeals demanding the respective appellants to withdraw them, the respective appellants refused to do so.

12.  The present 3 summonses were then taken out all on 7 June 2018.

13.  On the last hearing of these 3 summonses before His Honor Judge Kent Yee on 19 July 2018, the learned judge gave directions for the respective appellants to file evidence in opposition within 21 days and reminded them the importance of complying with such direction.  Three months have lapsed and they have not done so.

14.  In the respondent’s 2 letters in Chinese respectively to the appellants in each of the 3 appeals dated 16 December 2016 and 10 August 2017 and again in paragraphs 2 and 3 the written submissions in Chinese of Ms Chan for the respondent in respect of each of the 3 Notices served for the purpose of the hearing on 19 July 2018^[1], it has been clearly explained to all the appellants time and again that they were required to and could apply for bringing the appeal out of time under section 14(5B) and for bringing the appeal without the payment of the stamp duties under section 14(1B). 

15.  To date, there is no application by any of the appellants under section 14(5B) or under section 14(1B).

16.  It is now well settled that the time limit in section 14(1) must be strictly adhered to (Diamond Dragon Finance Co v Collector of Stamp Revenue [2004] HKCU 384, Re Wan Wah Shing [2005] 4 HKLRD 674, Cheng Yung Ching v Commissioner of Inland Revenue Department [2017] 4 HKC 489 and King Crown Decoration & Construction Limited v The Collector of Stamp Revenue DCSA 14/2009, unrep, 19 March 2010 ), such that, in my view, an purported appeal brought outside the time limit and without an order given under section 14(5B) extending the time is one that is improperly constituted and therefore is an incompetent appeal.

17.  In my view, it is also clear that the fulfillment of the payment obligation under section 14(1)(b) – by either full payment of the stamp duty, or obtaining an order under section 14(1B) to bring an appeal without payment or with part payment, or payment being postponed by the Collector under 14(1A) – is a pre-condition to the bringing of a competent appeal under section 14(1).

18.  The present 3 Notices of Appeal were filed out of time without any time extension being sought, not to mention being given.  The payment obligation under section 14(1)(b) has not been fulfilled in respect of them.  The 3 appeals sought to be brought by the 3 Notices therefore are clearly incompetent and are liable to be struck out (Hui Shu Leung v Wah Fung Forest Resources Limited CACV 134/2013, unrep, 7 January 2014).

19.  In the hearing, after having been explained again the above mentioned statutory requirements for the bringing of an appeal, the respective appellants all make clear to me this morning that they have no intention of fulfilling that payment requirement, nor do they intend to make applications under sections 14(5B) and 14(1B).  Man Senior further emphasizes on behalf of the appellants that the Demands are unfair that the appellants should not be required to do anything.

20.  It is therefore very clear that the appellants have no intention of taking any steps to make the 3 appeals competent.

21.  It is clearly an abuse of process to attempt to maintain an incompetent appeal without taking any steps to properly constitute it to make it competent, despite having had ample opportunities to do so, and/or without any intention so to do.

22.  For these reasons, I order the striking out of the said 3 Notices of Appeal with costs, which I summarily assess after hearing the parties at HK$6,500 in respect of each of the appeals to be paid by the respective appellants to the Collector.