HEUNG KIU CHOW and Another v. THE COMMISSIONER OF ESTATE DUTY

IN THE COURT OF APPEAL

1997, No.143
(Civil)

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J U D G M E N T

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Mayo, J.A.:

1. The Appellant is appealing against a judgment of Mrs Justice Le Pichon when she held that the respondents were entitled to deduct HK$730,000 being the assessed value of property at 60 Po Tung Road, Sai Kung (the property) from the assessed estate of Chow Yuet On deceased.

2. The Judge held that this deduction was permissible pursuant to the provisions contained in S.10A of the Estate Duty Ordinance which are couched in theses terms.

"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

(b) which is devised or bequeathed by the deceased, or otherwise passes on his death, to or for the benefit of his spouse.

(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;

(d) property to which subsection (1)(a) applies shall, if the deceased-

(i) died intestate as to that property; and

(ii) is survived by his spouse,

be deemed to have passed on his death to or for the benefit of his spouse. (Added 18 of 1896 s.2)

(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.

(4) (Repealed 34 of 1994 s. 4)

(Added 28 of 1982 s. 4)"

3. The facts of the case are not in dispute. The deceased and his wife occupied the property while they were living in Hong Kong. They owned five other properties which were let out to tenants. In 1980 they settled in Swansea, Wales where the deceased had business interests. Both he and his wife visited Hong Kong after this although they did not stay any length of time more than a few months or in some cases a few days. At no time were they in Hong Kong together after 1980. However when they did visit Hong Kong, they always stayed in the property which was fully furnished. It was never let out to any tenant.

4. It would appear to have been common ground that the respondents had fulfilled the requirements on S.10A (2) (b) & (c). The issue in the case was whether the property was a residence owned by the deceased and occupied solely by him exclusively for residential purposes and was the matrimonial home of him and his wife.

5. The Judge held that these requirements had been satisfied and it is this determination which is the subject of this appeal.

6. Ground 1 of the grounds of appeal is framed in general terms.

7. Ground 2 is divided into 7 separate parts. Complaint is made in the grounds 2 (a) & (b) that the Judge was wrong to regard possession, control and availability of use as determinative factors rather than focusing her attention upon occupation as a home as being the important factor.

8. These grounds have to be considered in conjunction with ground 2 (c) where the Judges is criticised for finding that the property was the matrimonial home of the deceased and his wife. In this connection complaint is made that the Judge failed to have regard to the infrequency of user or the fact that the property was not occupied as a matrimonial home immediately prior to the deceased's death on the 22nd February 1995.

9. At the hearing below the appellant placed heavy reliance upon the case of Beck v. Scholz [1953] 1 AER 814 where it was stated at p816:

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

10. As was pointed out by the Judge this case was a case involving the interpretation of the English Rent Acts and could not reliably have application to an entirely different situation such was encountered in the present case.

11. The approach which was adopted by the Judge was to consider the meaning of the word "occupy". For this she obtained assistance from R v St Pancras Assessment Committee [1877] 2 QBD 581. What emerged from a consideration of this case was that occupation and residence were separate concepts.

12. The focus in S.10A 1(a) is on occupation and the purpose of the occupation and the Judge was right to consider these aspects of the case rather than confining herself to residence at any particular point of time.

13. What is important is that if the section is interpreted strictly, as was done by the Judge, it is difficult to escape coming to a conclusion that the property was occupied solely by the deceased and his wife in accordance with the requirements of the section.

14. The Appellant has attempted to surmount these difficulties by introducing the concept of a "principal" matrimonial home.

15. The justification for this was to refer to Hong Kong Hansard of 24th February 1982 p458 para. 101 Tab 2 which contains the speech of Sir John Brembridge which he delivered when the amending legislation was before the Legislative Council.

"... I propose to exempt from duty altogether the principal matrimonial home of the deceased, where the deceased leaves a surviving spouse. This relief acknowledges the claim that sometimes there can be hardship for the surviving spouse because the home is subject to duty. Whilst I know of no case where a widow has been obliged to sell the home in order to pay the duty, it seems logical in the context of our tax law philosophy to exclude it from charges ..."

16. Also Mr. Andrews for the respondent sought to derive assistance from the definition of "occupied" in the 2nd Edition of the Oxford English Dictionary.

17. All this is beside the point. If the section is considered as a whole there is no necessity for continuous residence to be an essential ingredient of occupation.

18. What is also of relevance is that it is not possible for the Appellant to argue convincingly that there can only be one matrimonial home. S10A (3) provides for election where more than one property may be eligible for this exemption.

19. In addition to this I would concur with the reasoning of the Judge that there is no reason to hold that the property can not be a matrimonial home simply on account of the fact that there may also be a matrimonial home in some other jurisdiction.

20. The 4 remaining grounds of appeal deal mainly with the small amount of time the deceased and his wife were in Hong Kong residing in the property after 1980.

21. Once it has been established there is no requirement for continuous occupation it is then necessary to have regard to the purpose of the occupation.

22. There can be no doubt on the facts of this case that it was the intention of the deceased and his wife to use the property as their home when they were in Hong Kong. It was also the case that the property could properly be described as being a matrimonial home.

23. In my view the Judge was right to conclude that the requirements of S10A had been complied with and the respondents were entitled to the exemption they were seeking and this appeal should be dismissed.

Sears, J.:

24. I agree with Mr. Andrews that the underlying object of the concession given in 1982 to exemption from estate duty for matrimonial property was indeed to protect the surviving spouse from having to sell it. The words, however, used by the legislature do not seek to differentiate between matrimonial property which may be here and abroad. If the legislature in S.10(1)(a) (ii) had used the words "principal matrimonial home" then the fact-finding tribunal would have to consider all the facts surrounding the occupation of each matrimonial home to decide which was the principal one. However all that has to be decided on the words used is whether this was a matrimonial home in Hong Kong. The Judge found it was and in my judgment she came to a correct conclusion and like my lord I agree this appeal should be dismissed.

V. Bokhary, J.:

25. For the reasons given by my Lord Mayo JA and by Sears J, I, too, would dismiss this appeal.

Mayo, J.A.:

26. The result of this is that this appeal stands dismissed and the Respondents will have their costs.