Danix Ltd v. Collector Of Stamp Revenue
District Court
Stamp Duty Appeal Nos 3 & 4 of 2012
Judge Liu Man Kin in Chambers
31 January, 2 February 2018

Taxation — stamp duty — appeal against assessment by way of case stated — seven-day time limit — court had no jurisdiction to extend time limit — Stamp Duty Ordinance (Cap. 117) s. 14(2)

Human rights — equality before courts and right to fair hearing under art. 10 Hong Kong Bill of Rights Ordinance (Cap. 383) and art. 35 Basic Law

[Stamp Duty Ordinance (Cap.117) s.14(2)]

C1–2 lodged notices of appeal against assessments by the Collector of Stamp Revenue (the Collector) of stamp duty payable Cs acknowledged receipt of the Case Stated from the Collector. However, Cs failed to serve it on the Secretary for Justice (SJ) or set down the cases for hearing within the seven-day time limit under s. 14(2) of the Stamp Duty Ordinance (Cap. 117). The Collector applied to strike out the appeals.

Held, granting the applications, that:

  • Cs’ challenge to the seven-day time limit in s. 14(2) based on the right to equality before the courts and right to a fair hearing under art. 10 of the Hong Kong Bill of Rights could not succeed, since tax matters fell outside the scope of civil rights and obligations under art. 10. There was also no inequality between the absence of a time limit for the Collector’s duty to prepare the Case Stated taking into account the duty payer’s comments, which was a time-consuming exercise, and the seven-day limit for the duty payer’s duty under s. 14(2), which involved relatively simple matters (Lee Yee Shing Jacky v. Inland Revenue Board of Review [2011] 6 HKC 307 (CFI), Lee Yee Shing Jacky v. Inland Revenue Board of Review [2012] 2 HKLRD 981 (CA) applied). (See paras. 18–19.)
  • If a duty payer did not comply with s. 14(2), but the delay was excusable and the appeal meritorious, the duty payer could seek relief from the Court of First Instance by judicial review. Thus, the seven-day time limit did not infringe the right of access to courts under art. 35 of the Basic Law (Lee Yee Shing Jacky v. Inland Revenue Board of Review [2012] 2 HKLRD 981 applied). (See paras. 20–23.)
  • Accordingly, the Court did not have jurisdiction to extend the seven-day time limit in s. 14(2). The appeals could not proceed and should be struck out under s. 48(1) of the Ordinance and O. 1B r. 1(2)(l) of the Rules of the District Court (Cap. 336H, Sub.Leg.) (Bangkok Capital Antique Co Ltd v. Collector of Stamp Revenue (1984) 2 HKTC 83 applied). (See paras. 24–25.)

Application

This was an application by the Collector of Stamp Revenue seeking an order to strike out the appeals brought by the two appellant-companies for non-compliance with the 7-day time limit under s. 14(2) of the Stamp Duty Ordinance (Cap. 117). The facts are set out in the judgment

Jurisdictions: 

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