Feng Hongyan v Collector of Stamp Revenue
Court of First Instance
Constitutional and Administrative Law List No 165 of 2017
Anthony Chan J
30 May 2018

Administrative law - Collector of Stamp Revenue - decision refusing partial refund of additional ad valorem duty paid on purchase of new residential property after owner cancelled sale and purchase agreement of original property - whether wrong in law

Taxation - stamp duty - partial refund of ad valorem stamp duty on disposal of residential property under s.29DF - agreement to cancel sale and purchase of original residential property not "conveyance on sale" - taxpayer not entitled to partial refund of additional ad valorem duty paid on purchase of new residential property - Stamp Duty Ordinance (Cap.117) s.29DF

Words and phrases - "conveyance on sale" - Stamp Duty Ordinance (Cap.117) ss.2, 29DF

The applicant (F) entered into an agreement with V to purchase the First Property (First ASP). F then entered into an agreement to purchase the Second Property (the Second ASP). Subsequently, F and V cancelled the First ASP (the Cancellation Agreement), V forfeited the deposits paid by F and resold the First Property. F successfully applied for a refund of the ad valorem stamp duty (AVD) paid on the First ASP under s.29C(5B) of the Stamp Duty Ordinance (Cap.117). F then applied under s.29DF of the Ordinance for a refund of the AVD paid on the Second ASP, on the basis that she had disposed of the First Property within 6 months of acquiring the Second Property. The Collector of Stamp Revenue rejected F's application and F applied for judicial review of that decision. At issue was whether the Cancellation Agreement was a "conveyance on sale" within the relevant provisions of s.29DF of the Ordinance.

Held, dismissing the application, that:

(1) The definition of both "conveyance" and "conveyance on sale" in s.2 of the Ordinance confirmed the plain meaning of a "conveyance on sale" as an instrument whereby any immovable property, upon sale, was transferred to or vested in a purchaser or another person on his behalf. (See paras.17-18, 21.)

(2) The Cancellation Agreement was not a conveyance on sale. First, it was not a conveyance since it did not transfer or vest any immovable property or interest. Its effect was to annul the First ASP and terminate F's right in equity to specific performance, ie V would no longer hold the beneficial interest in the First Property for F (Central Trust and Safe Deposit Co v Harvey Snider [1916] 1 AC 266 applied; Tang Yiu Tin Joseph v Ma Ka Chun (HCMP 2890/1993, [1993] HKEC 38) considered; Lau Kwok Cheong v Tse Ming Chiu [2001] 2 HKLRD 500 distinguished). (See paras.21-22, 24, 27.)

(3) Second, the Cancellation Agreement involved no sale. Third, there was no sale to "a purchaser"; V under that agreement did not fall within the definition of "purchaser" under s.29A(1) of the Ordinance. (See paras.29-31.)

(4) In interpreting a statute, the court's task was to ascertain the intention of the legislature "as expressed in the language" and words used and not "the legislative intent on its own". The Collector had correctly applied the law in rejecting the refund application (Cape Brandy Syndicate v IRC [1921] 1 KB 64, Ho Kwok Tai v Collector of Stamp Revenue [2016] 5 HKLRD 713 applied). (See paras.33-36.)

Application

This was an application for judicial review of the decisions of the Collector of Stamp Revenue refusing an application for a partial *1473 refund of additional ad valorem stamp duty paid. The facts are set out in the judgment.

Jurisdictions: 

Thomson Reuters – Sweet & Maxwell are the publishers of the Authorised Hong Kong Law Reports & Digest ("HKLRD") and the Authorised Hong Kong Court of Final Appeal Reports ("HKCFAR"), and providers of Westlaw HK (www.sweetandmaxwell.com.hk / www.westlaw.com.hk).