AIR PASSENGER DEPARTURE TAX ORDINANCE

AIR PASSENGER DEPARTURE TAX ORDINANCE

LAWS OF HONG KONG

AIR PASSENGER DEPARTURE TAX ORDINANCE

CHAPTER 140





CHAPTER 140

AIR PASSENGER DEPARTURE TAX ORDINANCE

ARRANGEMENT OF SECTIONS
Section Page
1. Short title . ...... ... ... ... ... ... ... ... ... ... 2
2. Interpretation ... ... ... ... ... ... ... ... 2
3. Imposition of tax ... ... ... ... ... ... ... ... ... ..... ... 2
4. Collection of tax ... ... ... ... ... ... ... ... ... . ... 2
5. Records ... ... ...... ... ... ... ... ... ... ... ... ..... 2
6. Returns ... ... ...... ... ... ... ... ... .... ... ... ... ... 3
7. Assessment and payment of tax ... ... ... ... ... ... ... ... ... ... ... 3
8. Recovery of tax ...... ... ... ... ... ... ... ... ... ... ... 4
9. Lien on aircraft ... ... ... ... ... ... ... ....... ... 4
10. Collection fee ... ... ... ... ... ... ... ... .. ... 5
11. Appointment of agent ... ... ... ... ... ... ... ... ... ... ... ... ... 5
12. Exemption from tax ... ... ... ... ... ... ... ... ... ... ... ... ... 5
13. Waiver of tax ... ... ... ... ... ... ... ... ... ... 5
14. Refund of tax ... ... ... ... ... ... ... ... ... ... 5
15. Offences ... ... ... ... ... ... ... ... ... ... ... 6
16. Arrest ... ... ... ... ... ... ... ... ... ... ... 7
17. Alternative means of collecting tax ... ... ... ... . ... ... ... ... 7
18. Liability of an employer ... ... ... ... ... ... . ... ... ... ... ... 7

First Schedule Air passenger departure tax ... ... ... ... ... ... ... ... ... ... 7
Second Schedule Passengers exempted from liability to pay the tax ... ... ... ... 7





CHAPTER 140

AIR PASSENGER DEPARTURE TAX

To impose a tax on passengers departing by air from Hong Kong and
for purposes connected therewith.

[9 June 1983.]

1. This Ordinance may be cited as the Air Passenger Departure Tax
Ordinance.

2. In this Ordinance, unless the context otherwise requires

'aircraft' includes both fixed wing and rotary wing aircraft;

'airport' means the Hong Kong International Airport;

'Director'means the Director of Civil Aviation;

'operator' means, in relation to any aircraft, the person for the time
being having control over the management of the aircraft, and
includes an agent of such person appointed under section 11;

'passenger' means any person carried or to be carried on an aircraft
other than a bona fide member of the flight crew or cabin staff
operating the aircraft flight;

'tax' means the air passenger departure tax imposed under section 3.

3. (1) Subject to sections 12 and 13, every passenger intending to
depart from Hong Kong by aircraft at the airport shall, before embarking
on the aircraft for that purpose. pay in accordance with this Ordinance
an air passenger departure tax of the appropriate amount specified in
the First Schedule.

(2) The Legislative Council may by resolution amend the First
Schedule.

4. A passenger liable to pay the tax shall make payment to the
operator of the aircraft on which the passenger intends to depart from
Hong Kong and the operator shall collect that tax and pay it to the
Director of Accounting Services under section 7.

5. (1) An operator shall maintain proper records of passengers
embarking on aircraft under the control of the operator and of the tax
paid to the operator.

(2) The Director, or any person authorized, in writing, by him, may
at any reasonable time inspect and take copies of the records
maintained under subsection (1).





6. (1) An operator shall furnish returns to the Director, in
such form and at such intervals as the Director may specify, giving
details of passengers and aircraft departures and such other infor-
mation relating to the tax or the collection of the tax as the Director
may require.

(2) Nothing in subsection (1) shall derogate from or affect the
obligation of an operator under any other enactment to furnish
information on aircraft operations to the Director or any other
person.

7. (1) The amount of the tax due by the operator from time
to time in respect of tax payable by passengers to that operator shall
be assessed by the Director.

(2) In assessing the amount of the tax under subsection (1) the
Director shall not be bound by the information in any return
furnished under section 6, but may use such further or other means
of assessment as he thinks fit.

(3) Subject to subsection (6), an operator shall pay to the
Director of Accounting Services the amount of the tax assessed
under subsection (1) within 30 days after the date of issue by the
Director of a notice of demand therefor.

(4) If the amount of the tax is not paid within the period
referred to in subsection (3), it shall be deemed to be in default
and the Director may, in his discretion, order that a sum not ex-
ceeding 5 per cent of the amount in default shall be added to that
amount and recovered therewith.

(5) Where any amount of the tax is in default for a period of
not less than 6 months from the date when it was deemed to be in
default, the Director may, in his discretion, order that a sum not
exceeding 10 per cent in all of the total unpaid amount of-

(a) the amount of the tax in default; and

(b) any sum added thereto under subsection (4),

shall be added to such total unpaid amount and recovered therewith.

(6) Notwithstanding subsection (3), the Director may, where
in his opinion no satisfactory arrangements exist for payment by an
operator under that subsection of the amount of tax assessed under
subsection (1), demand orally or in writing the payment of such
amount to the Director of Accounting Services prior to the depar-
ture of an aircraft of the operator from the airport.

(7) The payment by an operator of any amount in accordance
with subsection (3), (4), (5) or (6) shall not prevent-

(a)the Director, where it appears to him that a further amount
of the tax remains payable by an operator in respect of any
period, from making an assessment of that amount and
issuing a notice of demand under subsection (3) therefor.
or





(b)an operator from claiming a refund of any overpayment made
by the operator and proved to the satisfaction of the Director.

8. (1) The tax payable by a passenger under this Ordinance shall be
recoverable from the passenger as a debt due to the Crown.

(2) The amount of the tax assessed by the Director and payable
under section 7 and any additional sum payable under that section shall
be recoverable from

(a) the operator; or

(b) an agent of the operator, appointed under section 11; or

(c) the operator and any such agent jointly,

as a debt due to the Crown, and proceedings for the recovery thereof
may be brought in the District Court notwithstanding that the amount is
in excess of the sum mentioned in section 33 of the District Court
Ordinance.

(3) In any proceedings against an operator or an agent of the
operator to recover an amount referred to in subsection (2), the Crown
may claim in one action the amount of the tax payable in respect of any
number of passengers and a certificate purporting to be signed by the
Director stating the number and categories of passengers in respect of
whom tax is payable and the total amount of the tax assessed in respect
thereof shall. until the contrary is proved. be sufficient evidence, on its
production by the Crown, of the facts stated therein and of the
correctness of the assessment.

9. (1) Without prejudice to any right of recovery by the Crown
under section 8, the Director shall have a lien. both particular and
general, over any aircraft under the control of the operator at the airport,
for the amount of the tax assessed by the Director and payable under
section 7.

(2) The lien referred to in subsection (1) shall not lapse or be lost
by reason of the departure of the aircraft from the airport, but shall
continue and be exercisable if the aircraft returns to the airport for so
long as the amount of the tax remains unpaid.

(3) The Director may, in exercise of the lien referred to in
subsection (1), from time to time and in such manner as he thinks fit,
take possession of, remove, sell or otherwise dispose of the aircraft in
order to recover the amount of the tax.

(4) The Director and the Government shall not be liable for any
injury or loss to any person or any loss or damage to any property
arising out of the exercise of the lien under subsection (3).

(5) Nothing in this section shall derogate from or affect any right
or entitlement of the Director to a lien over any aircraft pursuant to any
other enactment.





(6) In this section-

'aircraft' includes any parts and accessories of the aircraft,

'amount of the tax' includes any additional sum payable under section 7.

10. (1) The Financial Secretary may authorize the payment to an
operator of a fee for collection of the tax.

(2) A fee referred to in subsection (1) shall be paid to the operator
in such manner as the Financial Secretary may determine.

11. (1) Subject to subsection (2), an operator may, with the
approval in writing of the Director, appoint an agent in Hong Kong to
carry out the functions and duties of the operator under this Ordinance
on his behalf and may, by notice in writing to the agent and to the
Director, revoke any such appointment.

(2) Notwithstanding subsection (1), where an agent is appointed
under that subsection, the operator and the agent shall be jointly and
severally liable for the amount of the tax payable under section 7 and
any additional sum payable under that section, and for the purposes of
that section and section 8, a notice of demand issued under section 7(3)
to either the agent or the operator shall be deemed to be a notice of
demand issued to both.

12. (1) A passenger of any description or class mentioned in the
Second Schedule shall be exempted from liability to pay the tax.

(2) The Governor in Council may by order amend the Second
Schedule.

(3) The Governor in Council may, by notice in the Gazette, exempt
passengers on any specified route or airline service from liability to pay
the tax, or such part or proportion of the tax as is specified in the notice.

(4) The provisions of this Ordinance shall apply to and in relation
to a passenger who is exempted from liability to pay a part or proportion
of the tax under subsection (3) as they apply to and in relation to a
passenger who is not exempted from liability under that subsection.

13. The Chief Secretary may, where he is satisfied that payment of
the tax by a passenger would entail or has entailed serious hardship or
that it would in any particular circumstances be inequitable or contrary
to the public interest to impose the tax

(a)release the passenger liable to pay the tax from his liability; or

(b) direct that the tax be refunded.

14. (1) The tax paid to an operator by a passenger who does not
depart by air from Hong Kong on the occasion in respect of which he
has paid the tax, shall be refunded by the operator.





(2) A refund-

(a)whether under section 13 or in any other circumstance, to a
passenger who departs by air from Hong Kong; or

(b)to an operator of an overpayment referred to in section 7(7),

shall be made in such manner as the Financial Secretary, after
consultation with the Director either generally or in any particular case,
may determine.

15.(1) Any passenger liable to pay the tax who-

(a)fails to pay the tax in accordance with section 3(1); or

(b)makes a false statement with intent to evade payment of the
tax; or

(c)in any other way, evades or attempts to evade payment of the
tax,

commits an offence and is liable to a fine of 55.000.

(2) Any person who authorizes or permits a passenger liable to pay
the tax to embark on an aircraft, unless the passenger has previously
paid the tax, commits an offence and is liable to a fine of 510,000 and to
imprisonment for 6 months.

(3) In proceedings for an offence under subsection (2), it shall be a
defence to show that the accused person did not know, and could not
reasonably have ascertained, that at the relevant time the passenger-

(a) was liable to pay the tax; or

(b) had not paid the tax.

(4) Any person who obstructs the Director or any person
authorized by the Director in writing in the exercise of the powers
conferred on the Director or such person by section 5(2), commits an
offence and is liable to a fine of 510,000 and to imprisonment for 6
months.

(5) An operator who fails to comply with section 5(1) or 6(1)
commits an offence and is liable-

(a)on conviction upon indictment to a fine of 550,000 and, where
the operator is an individual, to imprisonment for 2 years; and

(b)on summary conviction to a fine of 520,000 and, where the
operator is an individual, to imprisonment for 1 year.

and is liable in addition to a further fine of $1,000 for every day on
which the offence continues.





16. (1) A police officer or any person authorized by the Director in
writing for the purposes of the Hong Kong Airport (Regulations)
Ordinance, may arrest without warrant any person reasonably
suspected of committing an offence under section 15(1) or (2).

(2) A person arrested under subsection (1) shall be taken forthwith
to the nearest police station and thereafter section 52 of the Police Force
Ordinance shall apply.

17. (1) Without prejudice to the liability of an operator for any
amount under this Ordinance, the Director may, if it appears to him for
any reason that any tax is unlikely to be collected by an operator,
appoint a person in lieu of the operator to collect that tax.

(2) Where a person is appointed by the Director under subsection
(1), references to the operator in sections 4 and 14(1) shall be construed
as references to the person so appointed.

18. (1) Notwithstanding any term express or implied in any contract
of employment, whether entered into before or after the commencement
of this Ordinance, but subject to subsection (2). an employer shall not
be liable to pay on behalf of an employee the tax payable by the
employee or by any member of the employee's family departing by air
from Hong Kong, nor to reimburse to the employee any such tax that
has been paid, and no action shall lie against an employer in respect of
the failure by the employer to so pay or reimburse any such tax.

(2) Subsection (1) shall not apply where a contract of employment
provides for payment of the tax expressly by reference to this
Ordinance.

(3) In this section the term 'employer' includes the Crown.

FIRST SCHEDULE [s. 3.]

AIR PASSENGER
DEPARTURE TAX

Amount of Tax
1. Passenger 12 years of age or above $120
2. Passenger 2 years of age or above but less than 12 years of age $60
3. Passenger less than 2 years of age Nil
(Amended, L.N. 64/85)

SECOND SCHEDULE [s. 12.]

PASSENGERS EXEMPTED FROM LIABILITY TO PAY THE TAX

1.Direct transit passengers, that is to say passengers arriving at the airport by
aircraft from a place outside Hong Kong who-

(a)do not, otherwise than for reasons which are, to the satisfaction of
the Director, beyond the passengers' control. pass through arrival
immigration controls; and





(b)subsequently depart from Hong Kong on the same aircraft or, by
reason of that aircraft being declared unserviceable, on a substituted
aircraft.

2.Connecting airside transfer passengers. that is to say passengers arriving at the
airport by aircraft from a place outside Hong Kong who

(a)do not, otherwise than for reasons which are. to the satisfaction of
the Director, beyond the passengers' control, pass through arrival
immigration controls; and

(b)subsequently depart from Hong Kong on another aircraft,
not being direct transit passengers.

3. Passengers who-

(a)arrive on an aircraft landing in Hong Kong solely by reason of
distress, emergency or adverse weather: and

(b)subsequently depart from Hong Kong by aircraft as soon as
practicable.

4.Passengers departing from Hong Kong by aircraft being used at the time of
departure

(a)for official or ceremonial purposes of the Government:

(b)for military. diplomatic or ceremonial purposes of the government of
any country: or

(c)for official or diplomatic purposes of the United Nations or any
Specialized Agency thereof.

5. Passengers departing from Hong Kong by civilian aircraft, who

(a)are members of Her Majesty's forces or are civilians sponsored by the
Ministry of Defence of Her Majesty's Government in the United
Kingdom: and

(b)are present in Hong Kong with or in connexion with Her Majesty's
forces in Hong Kong.

and members of their families forming part of their households. if their
passages have been arranged by the appropriate authority or with the approval
of the appropriate authority, as evidenced by a certificate issued by or on
behalf of the Commander British Forces. (Amended, L.N. 207 85)

6.Passengers who are Vietnamese refugees as defined by section 2 of the
Immigration Ordinance. and who are permanently departing from Hong Kong
for resettlement elsewhere.

7.Passengers who are entitled to be accorded exemption from the tax by
operation of the International Organizations and Diplomatic Privileges
Ordinance.

8.Passengers who-

(a)are consuls or consular staff within the meaning of regulation 2 of
the Registration of Persons Regulations (other than consuls or
consular staff who are British citizens, British Dependent Territories
citizens or British Overseas citizens). and members of their families
forming part of their households; or (Amended, L.N. 207/85)

(b)are employed exclusively in the private service of consuls or consular
staff of a consular post in Hong Kong. who are nationals of the
country represented by the consular post and who have been brought
to Hong Kong solely for the purposes of such services or

(c)are otherwise entitled to be accorded exemption from the tax by
operation of the Consular Relations Ordinance,

upon production by such persons of evidence of their status in a form
satisfaclory to the Director.

9. Passengers who-

(a)are officers of the Visa Office and their dependants within the
meaning of section 2 of the Chinese Visa Office (Privileges and
Immunities) Ordinance; or

(b)are otherwise entitled to be accorded exemption from the tax by
operation of the Chinese Visa Office (Privileges and Immunities)
Ordinance.





upon production by such persons of evidence of their status in a form
satisfactory to the Director. (Added, 61 qf 1984. s. 5)

10.Passengers who are persons to whom the Privileges and Immunities (Joint (Cap. 36.)
Liaison Group and Land Commission) Ordinance applies upon production by
such persons of evidence of their status in a form satisfactory to the Director.

(Added, 18 of 1985, s. 5. Amended, 44 of 1985, s. 7)
Originally 25 of 1983. 61 of 1984. L.N. 64/85. 18 of 1985. L.N. 207/85. 44 of 1985. Short title. Interpretation. Imposition of tax. First Schedule. Collection of tax. Records. Returns. Assessment and payment of tax. Recovery of tax. (Cap. 336.) Lien on aircraft. Collection fee. Appointment of agent. Exemption from tax. Second Schedule. Waiver of tax. Refund of tax. Offences. Arrest. (Cap. 292.) (Cap. 232.) Alternative means of collecting tax. Liability of an employer. (Cap. 115.) (Cap. 190.) (Cap. 177, sub. leg.) (Cap. 259.) (Cap. 224.) (Cap. 36.)

Originally 25 of 1983. 61 of 1984. L.N. 64/85. 18 of 1985. L.N. 207/85. 44 of 1985. Short title. Interpretation. Imposition of tax. First Schedule. Collection of tax. Records. Returns. Assessment and payment of tax. Recovery of tax. (Cap. 336.) Lien on aircraft. Collection fee. Appointment of agent. Exemption from tax. Second Schedule. Waiver of tax. Refund of tax. Offences. Arrest. (Cap. 292.) (Cap. 232.) Alternative means of collecting tax. Liability of an employer. (Cap. 115.) (Cap. 190.) (Cap. 177, sub. leg.) (Cap. 259.) (Cap. 224.) (Cap. 36.)

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