Introduction to Legal System

Lecture 3

Common Law System and the Doctrine of

Precedent
The meaning of ‘Common Law’
1 Historical meaning
 Distinct from local law

2 A system of law (Common law vs Civil law)

 Distinct from other foreign legal systems, such as Civil law systems
 Principles of law originally developed in England through its courts

3 A particular form of decisional law

 Case law – Common law vs Legislation
 A source of law in the Hong Kong legal system
Common Law vs Legislation
Legislation
• Passed by legislature
• Made by government authorities under powers
delegated to them

Common law
• the law found in cases and are developed by judges
(doctrine of judicial precedent)
 Common Law vs Legislation
"the common law position was X but this was
amended by legislation“

Important principles :
1) legislation will always take precedence over
judicial decisions

2) common law rules can operate retrospectively

vs
legislation (strong presumption) does not have
retrospective effect, i.e. Bill of Rights Ordinance
The Common law in Hong Kong
 The Basic Law upholds the concept of ‘One country, Two
systems’

 Article 8 of the Basic Law: the law previously in force in HK

(the common law shall be maintained)
The concepts, interests and values of the common law will
remain including support for ‘the rule of law

 HK Common law vs English Common Law

The Common law in Hong Kong
Hung Chan Wa & Another [2006] 3 HKLRD
841

 Drug trafficking case

 “it is of the essence of the common law that it
evolves to meet the changing needs of the
society in which it functions.
Judges have the responsibility and indeed the
duty to develop the common law to respond to
changing needs ……….its capability of being
developed by judges to meet changing needs is
at the heart of the common law”
Hung Chan Wa & Another [2006]
Section 47 of the Dangerous Drugs Ordinance (Cap.134) provided :-
"(1) Any person who is proved to have had in his physical possession –
(a) anything containing or supporting a dangerous drug;
(b) the keys of any baggage, briefcase, box, case, cupboard, drawer,
safe-deposit box, safe or other similar container containing a
dangerous drug, shall, until the contrary is proved, be presumed to
have had such a drug in his possession.

(2) Any person who is proved or presumed to have had a dangerous

drug in his possession shall, unless the contrary is proved, be
presumed to have known the nature of such drug."

Article 11 of Bill of Rights Ordinance

 “(1) Everyone charged with a criminal offence shall have the right
to be presumed innocent until proved guilty according to law”
The Common law in Hong Kong
 Article 19: the HKSAR “shall be vested with independent judicial power,
including that of final adjudication”

 Article 80: The courts of the HKSAR at all levels shall be the judiciary of
the Region, exercising the judicial power of the Region.

 Article 82: the power of final adjudication “shall be vested with CFA, which
may as required invite judges from other common law jurisdiction to sit on
the CFA”

 Article 84: the Hong Kong courts may refer to case precedents from other
countries under common law jurisdictions
 As fisher noted, English precedents still form the most significant
body of law to which Hong Kong judges refer in practice
Judicial Power of the Court
Griffith CJ in Huddart, Parker & Co. v
Moorehead [1909] 8 CLR 330, 357

“the power…….to decide controversies between its

subjects, or between itself and its subject, whether
the rights relate to life, liberty or property”
Judicial Power of the Court
How to exercise its judicial power?
 its function to adjudicate cases, i.e. determine the
legal rights of parties by applying the applicable law
pay compensation to somebody
Restrain from doing some act
Whether that person violate criminal law and even
sentenced to jail, depriving its liberty !!

 Invalid the law (including the legislation and case law)

or act of government which are contrary to the
Basic Law  declare it unconstitutional
Case Precedent
 How important is it?

 much of the relevant law is to be found in

the cases  Case Law

 it establish legal principles  followed by

future courts dealing with cases of similar
fact and law

 Example
The doctrine of Precedent
 Fundamental aspect of the common law

 based on Stare decisis - “stand by that

decided”
When deciding cases, judges to follow the
rulings and determinations of judges in higher
courts where a case involves similar facts and
issues
The doctrine of Precedent
The doctrine of Precedent
 The precedent is cited as authority for a legal proposition for
deciding a later case on similar facts

 Precedents could be either :-

◦ binding
◦ persuasive

 Binding precedent
◦ a judicial decision that the later court must follow

 Persuasive precedent
◦ not binding
◦ the later judge is entitled to refuse to follow
◦ may carry considerable weight in the development of the law
The doctrine of Precedent
How does binding precedent operate?
1) Law reports
2) Hierarchy of Courts
3) Rules of precedent
◦ Vertical stare decisis
◦ Horizontal stare decisis
◦ Ratio decidendi (the court is bound by legal
principle of the previous case only instead of
the decision)
The doctrine of Precedent
1) Law report
• authoritative series of law reports,
recording the judgments of the courts

Example:
Hong Kong Law Reports
Hong Kong Electronic Cases
Hong Kong Family Law Reports
The doctrine of Precedent
2) Hierarchy of the HKSAR courts
◦ Court of Final Appeal
◦ Court of Appeal
◦ Court of First Instance
◦ District Court
◦ Magistrates’ Courts
◦ Various tribunals

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The doctrine of Precedent
3) Rules of Precedent

Vertical Stare Decisis

 Decision of a superior court (i.e. CFA) is binding on all lower
courts and tribunals

Horizontal Stare Decisis

 Courts with horizontal level (of equal status) do not bind
each other
 Same situation in Court of Appeal?
Solicitor (24/07) v Law Society of Hong Kong [2008] 2
HKLRD 576
 must follow its earlier own decision unless it was
plainly wrong
Vertical Stare Decisis
 Vertical Stare Decisis
Court of Final Appeal (CFA)
Highest court in HKSAR (Article 82, BL) - decisions are binding on all lower courts and tribunals
However, the CFA is bound by decisions of the Standing Committee of the National People’s Congress on
interpretations of BL

Court of Appeal (CA)

It follows previous decisions of the CFA. Its own decisions are binding on all lower courts and tribunals,
but not the CFA.

Court of First Instance (CFI)

It follows previous decisions of the CFA and the CA. Decisions of the CFI are binding on all lower courts
and tribunals.

District Court (DC)

It is bound by previous decisions of the CFA, CA and CFI.
In principle, the court lower than DC bound by its decision. In practice, DC’s decision in civil case is not
relevant

Magistrates’ Courts
Magistrates’ courts are bound by all upper courts except tribunals.
Decisions of the magistrates’ courts are not binding on any other court
Advantage of the doctrine of Precedent
 Certainty in the law

 Predictability in the application of the law

 Rational, consistent and fair decisions

 Foundation for the orderly development

of the law
Disadvantage of the doctrine of Precedent

 Complexity and volume

 Rigid adherence to the doctrine of

binding precedent
lead to injustice and impede the development
of the law
Need for a sufficient degree of flexibility for
the law to adapt to changing social need
Ratio decidendi
 “legal reason for the decision” - A later court is bound only by the ratio decidendi
in a precedent

 Ratios are reason for the a decision that are central and essential to the court’s
conclusions, not the decision itself

 Statement of law but tied up with facts

 Determining the ratio not an easy task

◦ usually read through the whole case to follow the judge’s line

 The ratio depends on relevant and material facts of the case as well as a judge’s
treatment to a particular case

 The higher level of abstraction, the broader the principle which allow many new
fact situation to be brought within it
Donoghue v Stevenson [1932] AC 562 HL
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Donoghue v Stevenson [1932]
• established the civil law tort of negligence and obliged
manufacturers to observe a duty of care towards their customers

Fact of the case

 In a store, Ms Donoghue was given a bottle of ginger beer, which
had purchased for her by a friend.

 The bottle was not made of clear glass but dark green colour

 The bottle was later discovered to contain a decomposing snail

after Ms. Donoghue had consumed most of its contents

 She later fell ill and a physician diagnosed her with gastroenteritis.

 Ms. Donoghue subsequently took legal action against Mr David

Stevenson, the manufacturer of the ginger beer and claimed
compensation
Donoghue v Stevenson [1932]
 Whether Stevenson is liable to pay compensation?

As per Lord Macmillan

 The law “concerns itself with carelessness only where
there is a duty to take care and where failure in that
duty caused damage”

 Ms. Donoghue asserted that Mr. Stevenson owed

her a duty of care, had broken that duty of care,
thereby causing her injury for which she was
entitled to the compensation
Donoghue v Stevenson [1932]
Legal issue
 whether the manufacturer of a drink sold to a distributor, in
circumstances which prevent the distributor or the ultimate
purchaser from discovering by inspection any defect, is under
any legal duty to the ultimate purchaser or consumer to take
reasonable care that the article is free from defects likely to
cause injury to health

Argument
 Ms. Donoghue’s lawyers claimed that Stevenson had
breached a duty of care to his consumers and had caused
injury through negligence (untested area at that time)

 Mr. Stevenson’s lawyers challenged Donoghue’s action, on the

basis that no precedents existed for such a claim.
Donoghue v Stevenson [1932]
Rationes (Legal Principle)

Lord Macmillan
 “[A] person who …. manufacturing articles of food and drink intended for
consumption by members of the public …… is under a duty to take care in the
manufacture of those articles. That duty…he owes to those whom he intends to
consume his products. He manufactures his commodities for human consumption;
he intends and contemplates that they shall be consumed.
By reason of that very fact he places himself in a relationship with all potential
customers of his commodities, and that relationship which he assumes and desires
for his own ends imposes upon him a duty to take care to avoid injuring them…”

Lord Atkin
 “[A] manufacturer of products, which he sells ….. intends them to reach the
ultimate consumer in the form in which they led him with no reasonable possibility
of intermediate examination, ……. will result in an injury to the consumer’s life or
property, owes a duty to the consumer to take that reasonable care.”
Obiter dictum
 “other things said”

 These statements are not central to the conclusion made but may still be important

 It could be a proposition wider than is necessary for the facts of the case or a
proposition concerning some matter not raised in the case

 Obiter dictum is not binding BUT has persuasive authority

 i.e. Statements in a dissenting judgment in CA or in CFA

Candler v Crane Christmas [1951] 2 KB 164
◦ the majority decided that there was no liability in the law of tort for negligent
misstatements resulting in loss to an investor in a company.
◦ Denning LJ dissented, stating that there was liability for careless statements
where accountants showed accounts to a person whom the accountants knew
would consider the accounts with a view to investing in the company
◦ Denning’s position on this point was subsequently accepted by the House of
Lords in a later case as the correct view of the law on this issue.
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Overruling, Reversing and Distinguishing
Overruling
 A precedent is overruled when the later court holds that the propositions of law
stated in the precedent do not accurately represent the law. The case is held to have
been wrongly decided.
 A precedent that is overruled is no longer part of the body of law and, therefore,
cannot be relied upon as the source of legal rights or duties
 A lower court cannot overrule a decision of a higher court

Reversing
 involves a higher court setting aside the judgment of a lower court in the same case, as
the case proceeds up the hierarchy of the courts, i.e. Appeal
 The higher court may therefore reverse a decision of a lower court, without overruling
the principle used in that court

Distinguishing
 If precedent is distinguishable not bound to follow , even if it is a decision of a higher
court
 where there is a material distinction between the facts of the precedent case and the
case be decided