After the Decennial: The New Doctrine of Precedent in the Hong Kong Court of Appeal

Abstract

In Solicitor (24/07) v. Law Society of Hong Kong, the Court of Final Appeal ("CFA") redefined the doctrine of precedent in the Hong Kong Court of Appeal ("CA") in two ways. First, it widened the circumstances in which the CA could depart from its own decisions. Second, it insisted that judgments of the Privy Council, to the extent that they were given on appeal from colonial Hong Kong, remained binding on the CA, despite the handover.

Solicitor 24/07 leaves open a number of issues as to the power of the CA to reverse its own decisions. These issues must be resolved before litigants can fully pursue the opportunities Solicitor 24/07 affords. This article attempts to do so.

Further, as a matter of history, a judgment of the Privy Council could be disregarded by the courts of the jurisdiction appealed from where the judgment had not been followed in a later judgment of the Privy Council in any judicial capacity or the House of Lords. This article argues that Solicitor 24/07 should be made subject to a corresponding exception, whether the later judgment was given before or after the handover.

Keywords: Precedent, Intermediate appellate courts, Departure from own decisions, Privy Council, Hong Kong