LLAW6259 Chap.3 Court Hierarchies and Overseas Authority
Court Hierarchies and Overseas Authority
Two complete hierarchies, and no rungs between them
From 1 July 1997 the Hong Kong courts run from the Magistrates' Court through the District Court and the Court of First Instance to the Court of Appeal and then to the Court of Final Appeal, with the National People's Congress above that structure on specific issues, the power of interpretation of the Basic Law being vested in its Standing Committee.
Before the handover the ladder was the same below the top and ended in the Privy Council. Only the apex changed, which is what Article 2 means when it speaks of independent judicial power including that of final adjudication.
The English hierarchy is a separate and complete structure, and precedent does not run between the two because, as the final court has put it, the doctrine only operates as between courts within a hierarchy in the same judicial system.
The final court binds below and is not bound by itself
Decisions of the Court of Final Appeal bind the Court of Appeal and the lower courts.
It is not itself bound by Privy Council rulings given before 1 July 1997 on appeals coming up from Hong Kong, nor by its own previous decisions, and the reason given is position: as the final court at the apex of the hierarchy it may depart from both. The published reasoning runs in both directions.
Rigid adherence may unduly inhibit the proper development of the law and cause injustice in individual cases, since the strength of the common law lies in its capacity to develop to meet changing needs.
Against that, the power is approached with great circumspection, the risks of disturbing existing rights are borne in mind, and it is exercised most sparingly.
The Court of Appeal has a different rule, and it was replaced
The inherited English rule made the Court of Appeal bound by its own decisions subject to three exceptions.
Two of them were held not to be real exceptions on analysis and were discarded; the third, the per incuriam case, was absorbed into a new test. The rule now is that the Court of Appeal is bound by its previous decisions but may depart from one where it is satisfied that it is plainly wrong.
The threshold is deliberately high: being satisfied that the arguments against a decision are more substantial and cogent than those for it is expressly insufficient. And a conclusion that a decision is plainly wrong does not settle the matter, because the court must then take all circumstances into account before deciding whether to depart.
Departure should be wholly exceptional and occur very rarely.
The distinction that sorts every foreign authority
Before 1997 the Privy Council heard appeals from Hong Kong and from many other places, and the temptation is to treat all its decisions alike. The answer separates them by what the Privy Council was doing.
On a Hong Kong appeal it was functioning solely as the final appellate court in and as part of the Hong Kong judicial system, so those decisions bound the courts here and, by virtue of the continuity principle in Article 8, remain binding. On an appeal from elsewhere it was discharging its responsibility as a court in a different regime, and there was no precedent relationship with the Hong Kong courts at all.
Those decisions were persuasive only, and to call them binding confuses great persuasive force with what is properly binding under the doctrine of precedent. Decisions of the House of Lords before 1 July 1997 stand in a similar position.
What this chapter covers
- 01
The hierarchy before and after 1 July 1997, and the one rung that changed
- 02
Why precedent does not run between two separate judicial systems
- 03
When the Court of Final Appeal may depart from itself or from the Privy Council
- 04
The published reasons for the power, and the published reasons for restraint
- 05
How the Court of Appeal rule was replaced, exception by exception
- 06
The plainly wrong test, its threshold and the discretion that follows it
- 07
Privy Council appeals from Hong Kong against appeals from elsewhere
- 08
Article 84 as a licence to refer, and to decline
Rank four authorities by binding force
- 3Classify each authority by whether the deciding court sat inside the Hong Kong judicial system.
- 2State the status of the Privy Council decision on the Jamaican appeal and why it differs from the Hong Kong one.
- 2Identify the conflict the judge is left with and say where it can be resolved.
Key terms
- Judicial Hierarchy
- The ordered structure of courts within one judicial system, which is the only structure the doctrine of precedent operates inside.
- Court Of Final Appeal
- The final appellate court of Hong Kong since 1 July 1997. Its decisions bind the courts below and it is bound neither by itself nor by pre-handover Privy Council decisions on Hong Kong appeals.
- Plainly Wrong Test
- The standard the Court of Appeal must reach before departing from one of its own decisions, satisfied only where the contentions against the decision are so compelling that it can be demonstrated to be wrong.
- Privy Council
- The final appellate court for Hong Kong until 30 June 1997. Its decisions on Hong Kong appeals remain binding; its decisions on appeals from elsewhere never bound the courts here.
- Continuity Principle
- The principle enshrined in Article 8 that the legal system carried over, which is why pre-handover authority did not lapse on 1 July 1997.
- Overseas Jurisprudence
- Decisions of courts in other common law jurisdictions, which Article 84 permits Hong Kong courts to refer to and which bind nobody here.
Court Hierarchies and Overseas Authority FAQ
Are English cases binding in Hong Kong?
No, and they never were. The House of Lords and the English courts have never formed part of the Hong Kong judicial hierarchy, and precedent operates only between courts within one system.
Before 1 July 1997 House of Lords decisions stood in a similar position to Privy Council decisions on non-Hong Kong appeals: persuasive only, though of very great authority unless local circumstances made it appropriate for Hong Kong to develop along different lines. The right submission is about persuasive weight, and the right response to it is an argument about reasoning.
Why do Privy Council decisions sometimes bind and sometimes not?
Because the Privy Council was doing two different jobs. On an appeal from Hong Kong it sat as the final appellate court in and as part of the Hong Kong judicial system, so those decisions bound the courts here and by virtue of the continuity principle still do.
On an appeal from any other jurisdiction it was acting as a court in a different regime, with no precedent relationship to Hong Kong at all, so those decisions were and remain persuasive only however closely they were followed in practice.
Can the Court of Appeal simply change its mind about one of its earlier decisions?
Not simply. It is bound by its previous decisions and may depart from one only where it is satisfied that the decision is plainly wrong, and it is expressly not enough that the arguments against the decision are more substantial and cogent than those for it. Even once that threshold is crossed the court must take all the circumstances into account before deciding whether to depart.
Departure on this basis should be wholly exceptional and occur very rarely.
Assessment move
Write the two hierarchies side by side from memory with a gap between them, then place five authorities you have actually cited this term onto the diagram. Any authority you cannot place is one you have been citing without knowing whether it obliges the court.
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