Stare Decisis: Legal Precedence and Its Significance in Hong Kong Law

This report examines the doctrine of stare decisis, or the doctrine of precedent, within the context of Hong Kong law. It begins by defining stare decisis and its function in the legal system, emphasizing its role in binding lower courts to follow decisions made in previous cases with similar circumstances. The report analyzes the application of this doctrine in the case of Solicitor (24/07) v Law Society of Hong Kong [2008] 2 HKLRD 576 and makes a comparative analysis of the legal position before and after 1997. It also references Young v Bristol Aeroplane [1994] to understand the limitations on the Court of Appeal's ability to depart from its own precedents. The analysis covers the hierarchy of courts in Hong Kong, the influence of the Privy Council before 1997, and the shift in authority after the handover. The report explores exceptions to the stare decisis rule and the diminishing power of the Privy Council. The conclusion considers whether the Court of Appeal should retain its powers regarding per incuriam or if alternative exceptions are needed. The report highlights the importance of precedent in ensuring consistent and impartial justice within the Hong Kong legal system.

Running head: STARE DECISIS
Stare Decisis
Name of the Student
Name of the University
Author Note

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In the contemporary globalized world of today, much importance is placed on the human
rights and individual freedom. Since ages, individuals were kept under authoritarian rule and
dictatorship and were considered to be subordinate to the agency of the State. Such a situation
existed especially in the eastern part of the world. After the end of the Second World War in the
middle of the twentieth century, the leaders of the various States realized the significance of
individual freedom and as a consequence, took up significant measures to ensure that the
universal freedom is granted to all, irrespective of any discrimination. This led to the
establishment of a strong legal system in almost all the countries of the world, especially that of
Hong Kong in China. The primary responsibility of a legal system of any country is to provide
justice to the people so that they can enjoy a quality standard of living. This justice should be
delivered in such a way that it is impartial and appropriate under the circumstances. As a result,
at times, the verdict delivered may be similar or overlap on another in the situations where the
condition of the crime committed is identical. This paper seeks to discuss the issue of stare
decisis or doctrine of precedence as seen in the case of Solicitor (24/07) v Law Society of Hong
Kong [2008] 2 HKLRD 5761. For this purpose, the paper also analyses the case of Young v
Bristol Aeroplane [1994]2. This paper also seeks to make a comparison of the past legal position
to that of the present legal position of Hong Kong. The main purpose of this paper is to look in to
the importance and significance of the doctrine of precedence for the society in Hong Kong.
The term stare decisis is a Latin terminology which means to stand by and abide by
something which has already been decided3. This phrase is used in the legal system. Stare decisis
refers to a legal doctrine which imposes an obligation on the lower or the equal courts to follow
the decisions decided in a past historical case which had similar circumstances. In other words,
1 Solicitor (24/07) v Law Society of Hong Kong [2008] 2 HKLRD 576
2 Young v. Bristol Aeroplane Co Ltd ([1944] KB 718 CA)
3 Barrett, Amy Coney. "Originalism and Stare Decisis." Notre Dame L. Rev. 92 (2016): 1921

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in a historical case, a verdict was already given. If a similar kind of case arises with similar or
identical circumstances as existed in the historical case, then it is the obligation of the lower
courts to abide by the verdict which was passed originally. However, there is an important lacuna
in this doctrine of stare decisis. Although it binds the lower courts and the courts of equal
ranking to follow the verdicts of the historical cases, the courts which rank higher than the one
which had initially passed the judgment, are not obligated to follow the judgment and give the
same verdict. The high ranking courts have the freedom and the liberty to either follow it wholly,
partially or simply reject it or modify the judgment. Thus, the doctrine of stare decisis is only
applicable for the lower ranking courts and for those courts which are equal in ranking to that
court which had initially passed the judgment.
The doctrine of stare decisis or the doctrine of binding precedent has two important
unique functions with regards to the courts situated and operating in Hong Kong. First, it
determines the impact of the English laws and other common laws on the courts of Hong Kong.
Second, it further determines the impact of the decisions of the Hong Kong courts on the other
courts located in Hong Kong. There are three courts within Hong Kong which has the power to
produce certain binding precedents. First is the CFA, second is the Court of Appeal and the third
is the Court of First Instance. Before the year 1997, when Hong Kong was still under the
control of the United Kingdom, the final appeals were heard by the Privy Council which was
situated in London.
This doctrine of precedence became significant in a landmark case within the country of
Hong Kong that is the Solicitor v the Law Society of Hong Kong4. In this case, a solicitor of
Hong Kong was brought in before the Solicitor’s Disciplinary Tribunal as the solicitor was
4 Solicitor (24/07) v Law Society of Hong Kong [2008] 2 HKLRD 576

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charged for misbehavior by the society of Hong Kong. He was accused of conducting himself in
a manner which was considered demeaning for his profession. The Solicitor’s Disciplinary
Tribunal found all the charges levelled against him to be proved and hence, found him guilty.
The Solicitor’s Disciplinary Tribunal placed certain punishments on solicitor such as imposing
hefty fines and punishment of being suspended from his practice for two years. Moreover, if the
solicitor returned to work after the end of two years, he would have to make compensatory costs
for his misdemeanor. The solicitor in return, made an appeal in the Court of Appeal who again
found him guilty. The solicitor then appealed to the CFA. In order to solve this issue, two further
issues came to the forefront. First was the issue of the binding effect of the decisions undertaken
by the Judicial Committee of the Privy Council in Hong Kong during both the time periods of
before 1st July, 1197 and after 1st July 1997. The second issue that was brought to the forefront
was the position of the CFA. The CFA came in to being after replacing the Privy Council as the
final appellate court of Hong Kong’s, on 1st July 1997.
The CFA was of the opinion that before 1st July, 1997, the Privy Council of Hon Kong
was the final appellate court of jurisdiction and any judgment passed by it were binding on the
lower courts5. This also meant that the said judgments were also binding on the Court of Appeal.
The doctrine of precedent states that the judgments passed by a court higher in the structure of
hierarchy is binding on the courts which are lower to it. Moreover, the same judgments may also
be used by those courts which are equal in ranking to the one which has passed the original
judgment. Before 1st July 1997, the Privy Council operated as the final court of appeal in the
cases arising from the country of Hong Kong and it was a vital part of the legal system of the
5 Benjamin, Stuart Minor, and Arti K. Rai. "Administrative Power in the Era of Patent Stare Decisis." Duke LJ 65
(2015): 1563.

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country. Thus, the decisions of the Privy Council were binding on the lower courts operating in
Hong Kong and on the Court of Appeal, before 1st July 1997.
However, this was not the case with regards to those appeals which did not originate from
Hong Kong. The decisions of the Privy Council were not binding on the cases which originated
from Hong Kong. A situation may be noticed here whereupon the decisions of the Privy Council
on those cases which did not arise from Hong Kong, were more often than not followed by the
Hong Kong courts if the circumstances of the cases were similar. Such a tendency is known as
persuasive authority. This happened because of the fact that the decisions of the Privy Council
were hardly expected to be different in the case of Hong Kong appeals if the situation
surrounding the case was similar or identical to that case of non-Hong Kong origin. Similarly,
the position of the House of Lords of Britain was similar to the position of Privy Council in the
matters of jurisprudence in Hong Kong. The decisions passed by the House of Lords had to be
followed by the courts in Hong Kong as the House of Lords had the same power as that of the
Privy Council. However, if the circumstances were different in the cases of Hong Kong then the
decisions of the House of Lords were not imposed. The situation began to change after 1st July
1997. The Privy Council gradually lost its hold over the legal system in Hong Kong and it
started to lose out on its power of being the highest court of appeal in the country. Other
jurisdictions began to establish their very own courts of appeal which replaced the Privy
Council. Moreover, the Privy Council also had the power to hear certain disciplinary actions
arising out of several professions in Wales and England. However, after 2003, this power of the
Privy Council was also taken away and the High Court replaced the Privy Council in this regard.
Now, the Privy Council has the power to hear disciplinary hearings from only one profession.

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In the case of Young v Bristol [1944]6 was a case fought in the English court. This case
laid down that the Court of Appeal is mandated to follow the decisions of its own, along with the
decisions of those courts which are equal in ranking to it. However, this did not apply to three
exceptional circumstance. First, under the circumstances that two previous judgments of the
court are in conflict to each other, the court has the privilege to decide which verdict of its own
to follow. Secondly, the Court of Appeals has the freedom to refuse to follow a particular
decision of its own if such a decision in conflict with a decision of the House of Lords. Thirdly,
the Court of Appeals also has the freedom to refuse to abide by a decision of its own if the
decision is a result of per incuriam, meaning that a particular established statute or decree,
having the power to impact the decision, was not brought to the attention of the court earlier. As
such, the current rule of stare decisis of the Court of Appeals is different from the ruling given in
the case of Young v Bristol [1994]7. The Court of Appeals has the responsibility to follow its
earlier decision. However, three exceptions were added to it by the case of Young v Bristol
[1994]8. These exceptions served as important points of departure for the Court of Appeal which
now could decide not to follow its own earlier ruling if certain barriers arose to it. This changed
the framework of the Privy Council which was followed for so long till the year of 1997. The
case of Young v Bristol [1944]9, made the decisions of the Court of Appeals open to questioning
and deliberations. Moreover, certain tests are applied to observe the reason for the non-
compliance of the earlier rulings. First is the test of manifest slip or error, which is to see if the
judgment given was wrong. Second, to observe if the judgment was manifested in a faulty way.
Third, if the judgment is wrong or outdated for the present society. This has therefore resulted in
the dilution of the power of stare decisis as given to the Court of Appeals.
6 Young v. Bristol Aeroplane Co Ltd ([1944] KB 718 CA)
7 Young v. Bristol Aeroplane Co Ltd ([1944] KB 718 CA)
8 Young v. Bristol Aeroplane Co Ltd ([1944] KB 718 CA)
9 Young v. Bristol Aeroplane Co Ltd ([1944] KB 718 CA)

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In conclusion, it is observed that the critical question which now arises with respect to the
power of stare decisis as enjoyed by the Court of Appeals is that whether the Court of Appeals
should continue to enjoy the powers of per incuriam or if the exceptions of per incuriam should
be substituted by some other exception. The power of the Privy Council has diminished to a
considerable extent after the year of 1997. Now the same power is enjoyed by the Court of
Appeals of Hong Kong. This is significant as the decisions taken now will be more conducive to
the framework of Hong Kong and its society. However, the doctrine of stare decisis is important
to ensure that the same judgment is given to different people caught in the same circumstances.
This assures that there is impartiality in the judicial system. However, the occurrence of identical
circumstances is very rare and hence, some amount of leeway should be given to the Court of
Appeals to make a few necessary adjustments. This will help the Court of Appeals to continually
keep its judgments updated to the needs and requisite of the society.
Advantages and Disadvantages of Doctrine of Precedent
Doctrine of Precedent is widely used in the legal frame work. In the judicial world, this
is known as the doctrine of stare decisis10. The doctrine of precedent lays down that it is the
duty and obligation of the lower ranking courts to follow the judicial judgment of the higher
court in the cases where the circumstances are same. In other words, if two unrelated but
identical situation occurs where the victims and the perpetrators are found in the under similar
circumstances, then the lower ranking court is obligated to follow the judgment reached by the
higher court while deciding the case. Such an obligation is also made necessary for the courts
which are equal in ranking to the one which gave the original verdict. The doctrine of stare
decisis is not valid for the courts which are higher in the ranking order. The high ranking courts
10 Barrett, Amy Coney. "Originalism and Stare Decisis." Notre Dame L. Rev. 92 (2016): 1921

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have the option to either accept the earlier judgment or modify the judgment in parts or pass a
new judgment based on the earlier judgment.
The doctrine of precedent has been made necessary in order to ensure that there is no
biasness while deciding similar cases. The main objective is to give the same degree of
punishment to the perpetrators based on their actions11. Thus, one of the greatest advantage of the
doctrine of precedent is that the judicial system is adhered to in its spirit. Moreover, a second
advantage of the doctrine of precedent is that the courts do not have to face the criticism that
they had different points of view on two identical cases. For instance, if a higher court decides to
punish a perpetrator and a lower court decides to forgive a perpetrator when both the cases have
similar circumstances, then the very integrity of the judicial system will come in to question.
There are several disadvantages of the doctrine of stare decisis. In the real world it is
very rare that two cases can occur which have the same identical circumstances. There is bound
to be one important element or factor which differentiates one case from the other. As a result, if
the perpetrators are punished in a similar manner while their cases are identical except that
differentiating factor, then it would be a huge breach of trust on the part of the entire judicial
system. The judicial system is the epitome of fairness and impartiality12. It is the utmost
responsibility of the judicial courts to ensure that people are given fair treatment. This is only
possible when the courts take in to account all the factors that affect a case, no matter how
inconsequential they may seem. It is such miniscule factors which have the power to separate
one case from the other.
11 Barrett, Amy Coney. "Originalism and Stare Decisis." Notre Dame L. Rev. 92 (2016): 1921
12 Barrett, Amy Coney. "Originalism and Stare Decisis." Notre Dame L. Rev. 92 (2016): 1921

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The doctrine of precedent is however very important for the purposes of maintaining the
spirit of uniformity in the real world. However, in this endeavor the judicial system must ensure
that all the different factors are considered.

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References:
Barrett, Amy Coney. "Originalism and Stare Decisis." Notre Dame L. Rev. 92 (2016): 1921.
Benjamin, Stuart Minor, and Arti K. Rai. "Administrative Power in the Era of Patent Stare
Decisis." Duke LJ 65 (2015): 1563.
In The Court Of Final Appeal Of The Hong Kong Special Administrative Region Final Appeal
No. 24 Of 2007 (Civil) (On Appeal From Cacv No. 107 Of 2005)
Solicitor (24/07) v Law Society of Hong Kong [2008] 2 HKLRD 576
Young v. Bristol Aeroplane Co Ltd ([1944] KB 718 CA)

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