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1 the History of Hong Kong Stamp Duty and Its Influence on the Modern Law Submitted by Yiu Yu Butt to the University of Exeter A

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1 the History of Hong Kong Stamp Duty and Its Influence on the Modern Law Submitted by Yiu Yu Butt to the University of Exeter A Title The History of Hong Kong Stamp Duty and its Influence on the Modern Law Submitted by Yiu Yu Butt to the University of Exeter as a thesis for the degree of Doctor of Philosophy in Law In December 2016 This thesis is available for Library use on the understanding that it is copyright material and that no quotation from the thesis may be published without proper acknowledgement. I certify that all material in this thesis which is not my own work has been identified and that no material has previously been submitted and approved for the award of a degree by this or any other University. Signature: ………………………………………………………….. 1 Title Acknowledgements Acknowledgements I would like to express my sincere gratitude to my supervisor Prof Chantal Stebbings for her continuous support of my PhD study, for her motivation and immense knowledge. I use this opportunity to express my appreciation to persons who enabled me to learn, grow and develop in the field of taxation: To the tax lecturers at the Nanyang Technological University Singapore, Prof Sum Yee Loong and Dr Angela Tan who delivered captivating lectures which shaped my career interest when I was an undergraduate student. To the tax partners at KPMG Singapore, Mr Albert Poon, Mr David Lee and Ms Gan Kwee Lian who not only employed me but also provided state-of-the-art professional training in tax law as well as tax accounting. To the tax partner and director at KPMG Hong Kong, Mrs Ayesha Macpherson Lau and Mr Patrick Ho who continued to engage me and provided further professional tax training when I moved to Hong Kong. To the Chair Professor of Accounting at the University of Hong Kong, Prof Amy Lau who offered me a lecturing post in the Faculty of Business and Economics which opened up my horizon to tax research. To Prof Eric Chang who taught me how to teach and to Prof Patrick Chau who counselled me in pursuing an academic career. 2 Acknowledgements Abstract Abstract In 1866, the Hong Kong colonial government imposed stamp duty on written instruments. The tax was imposed for 132 years during the British rule of Hong Kong and was retained by the Hong Kong Special Administrative Region after the 1997 transfer of sovereignty over Hong Kong from Britain to China. Despite the vast number of textbooks written on the application of the contemporary Hong Kong stamp duty law, little is known about the driving forces that lay behind the first imposition of stamp duty in Hong Kong and the forces that shaped its development in the nineteenth and twentieth centuries. Little is revealed by the successes or failures of various stamp duty laws enacted to fulfil these forces. In order to deal with the knowledge gaps, this study uses the legal historical method and the legal comparative method to reconstruct an interpretation of stamp duty legal history for investigation. The study reveals that the first imposition of the tax was driven by the primary imperative to raise revenue followed by a secondary demand for social equity. It also reveals that the provisions of the first Hong Kong stamp duty legislation were influenced by local political demands occasioned by events leading to the American Revolution in the eighteenth century. The study demonstrates that, along with the dominant financial impetus, other social, economic, political, sustainability and pragmatic forces also shaped the stamp duty system under British rule. Social and economic forces supplemented the financial impetus from the 1960s onwards as key drivers for stamp duty legislative change. The study examines the explicit and discerned objectives of various historical Hong Kong Stamp Ordinances in terms of the actual outcomes. The analysis reveals many novel lessons in stamp duty system design. The study also demonstrates that Hong Kong should not abolish its stamp duty system at the present time. 3 Abstract Contents Contents CHAPTER 1 INTRODUCTION ......................................................................................................... 9 1.1 AIMS OF THE STUDY .................................................................................................................................. 9 1.2 RESEARCH QUESTIONS ........................................................................................................................... 10 1.3 RESEARCH METHODOLOGIES ................................................................................................................ 11 1.4 ORGANISATION AND STRUCTURE ......................................................................................................... 15 1.5 BACKGROUND .......................................................................................................................................... 15 1.6 SIGNIFICANCE OF THE STUDY ................................................................................................................ 18 1.7 SCHOLARSHIP .......................................................................................................................................... 26 1.8 SOURCES ................................................................................................................................................... 29 1.9 REFERENCING MATTERS ........................................................................................................................ 36 CHAPTER 2 THE ORIGINS OF HONG KONG STAMP DUTY .................................................37 2.1 THE DRIVING FORCES BEHIND THE INTRODUCTION OF HONG KONG STAMP DUTY ..................... 38 2.1.1 Early colonial Hong Kong and its revenue needs ............................................................... 38 2.1.2 Non-revenue demands for the introduction of the Hong Kong Stamp Ordinance ................................................................................................................................................................... 48 2.2 OTHER CIRCUMSTANCES INFLUENCING STAMP DUTY LAW .............................................................. 55 2.2.1 Stamp duty was the only viable choice ................................................................................... 55 2.2.2 Why stamp duty was not introduced earlier into Hong Kong ..................................... 60 2.2.3 Early colonial social structure influencing stamp duty law ......................................... 65 2.3 THE BRITISH ORIGIN .............................................................................................................................. 68 2.3.1 The introduction of stamp duty into Britain ........................................................................ 69 2.3.2 Structure of the first Hong Kong Stamp Ordinance .......................................................... 71 2.3.3 Chargeable instruments of the first Hong Kong Stamp Ordinance ........................... 73 2.3.4 The initial regulations relating to jurisdictions subject to tax .................................... 83 2.3.5 Duty computation methods .......................................................................................................... 85 2.3.6 Methods of collection....................................................................................................................... 92 2.3.7 The prosecution protection mechanism and assessment appeal process safeguards deficiency ...................................................................................................................... 99 2.3.8 Introduction of rules to counter stamp duty noncompliance .................................... 111 2.4 THE AMERICAN STAMP ACT 1765 ................................................................................................... 118 2.4.1 The introduction of American Stamp Act 1765 ............................................................... 120 2.4.2 The American Stamp Act’s impact on Hong Kong’s constitutional development and fiscal policy .............................................................................................................................. 122 2.5 CONCLUSION ......................................................................................................................................... 127 4 Contents Contents CHAPTER 3 PRIMARY IMPERATIVES DRIVING THE DEVELOPMENT OF HONG KONG STAMP DUTY .................................................................................................................................... 131 3.1 INTRODUCTION .................................................................................................................................... 131 3.2 THE CLASSIFICATION OF STAMP DUTY CHANGES ........................................................................... 133 3.3 FINANCIAL IMPERATIVES .................................................................................................................... 134 3.3.1 Governor Sir Richard MacDonnell’s duplicity ................................................................... 134 3.3.2 Governor John Pope Hennessy’s arrangements to increase stamp revenue ....... 142 3.3.3 Hong Kong’s first revenue-driven comprehensive stamp duty reform ................. 147 3.3.4 Meeting revenue exigency caused by cessation of opium by dealing with both stamp duty structure and mechanism ................................................................................. 155 3.3.5 Meeting revenue demand in Hong Kong’s most disastrous year by dealing with the stamp duty structure ...........................................................................................................
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