Asia Pacific Education Holdings Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri

Appellant(s): Asia Pacific Education Holdings Sdn Bhd

Respondent(s): Ketua Pengarah Hasil Dalam Negeri

• YA Dato' Sri Mariana binti Haji Yahya
• Dato' Dr. Choo Kah Sing
• YA Dato' Faizah Binti Jamaludin

• The appellant disposed of shares in a subsidiary that operated a school; while the subsidiary did not own the land at the time of the share sale agreement, it was nominated to acquire the land under a separate land sale agreement which was conditional upon State Authority approval.
• The respondent issued a Notice of Assessment for Real Property Gains Tax on the basis that the subsidiary was a "real property company," arguing that the purchaser’s intention to transfer the land to the subsidiary sufficed to trigger the tax, notwithstanding that statutory approval for the land transfer was obtained after the share disposal.
• The appellant commenced judicial review proceedings to quash the assessment, but the High Court dismissed the application at the substantive stage, characterizing it as an abuse of process because the appellant had a concurrent statutory right of appeal to the Special Commissioners of Income Tax.

• Whether the existence of a domestic remedy under section 18 of the Real Property Gains Tax Act 1976 operates as an absolute bar to judicial review when the challenge is directed at the legality and jurisdictional basis of the respondent's decision.
• Whether the respondent committed a jurisdictional error or misdirection in law by relying on the "intention" of the parties to determine the date of acquisition, rather than applying the express statutory scheme for conditional contracts found in Paragraph 16 of Schedule 2 of the Act.
• Whether the High Court was entitled to dismiss the application based on the existence of "disputed facts" and "abuse of process" after the Court of Appeal had previously dismissed the respondent's appeal against the grant of leave on those exact grounds.

• The Court allowed the appeal and set aside the High Court’s decision, ruling that judicial review is maintainable despite an alternative statutory remedy if there are exceptional circumstances, such as an allegation that the decision-maker failed to apply mandatory statutory provisions.
• The Court held that the respondent’s reliance on "intention"—a concept not recognized by the Act for fixing acquisition dates—instead of the statutory mechanism for conditional approvals, raised a justiciable issue of legality and a prima facie case of jurisdictional error.
• The Court found that the High Court erred in revisiting the "abuse of process" objection at the substantive stage, as the Court of Appeal had already determined at the leave stage that the matter involved arguable issues of law and no serious disputes of relevant fact.