Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

A Solicitor v The Law Society Of Hong Kong

Judgment Cited authorities 61 Cited in Precedent Map Related
Vincent
Judgment Date13 March 2008
Subject MatterFinal Appeal (Civil)
Judgement NumberFACV24/2007
CourtCourt of Final Appeal (Hong Kong)
FACV000024/2007 A SOLICITOR v. THE LAW SOCIETY OF HONG KONG

FACV No. 24 of 2007

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)

_____________________

Between:
A SOLICITOR Appellant
and
THE LAW SOCIETY OF HONG KONG Respondent

_____________________

Court Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ
Dates of Hearing: 18 and 19 February 2008
Date of Judgment: 13 March 2008

_____________________

J U D G M E N T

_____________________

Chief Justice Li :

1. I agree with the judgment of Mr Justice Bokhary PJ. The standard of proof for disciplinary proceedings in Hong Kong should be the civil standard. The proper approach to its application is explained in his judgment.

2. This appeal raises the question of the extent to which the Court of Appeal may depart from its previous decisions. That Court occupies a central position in our judicial system. The question of the extent of its freedom to depart from its previous decisions is an important question relating to the operation of the doctrine of stare decisis[1] which is part of the wider doctrine of precedent[2].

3. In granting leave to appeal, the Court of Appeal formulated the specific question whether it is :

“bound by its own decision(s) when that previous decision(s) was influenced or itself bound by a Privy Council decision(s), which has since been either overtaken and/or developed and/or departed from?”

4. The question concerning the rule of stare decisis arose in the Court of Appeal in relation to the issue of the applicable standard of proof in solicitors disciplinary proceedings. The Chief Judge held that the Court of Appeal was bound to apply the civil standard by its previous decisions pursuant to the rule in Young v. Bristol Aeroplane [1944] KB 718 which has been adopted in Hong Kong (para. 41). He also held that even if he were free to depart from them, he would not have done so (para. 44). Stock JA accepted the civil standard without any discussion of the rule of stare decisis. Tang JA (as he then was) held in favour of the criminal standard of proof. He concluded with some hesitation that the Court of Appeal was free to depart from its previous decisions as they had been based on the Privy Council decision in Bhandari v. Advocates Committee[1956] 1 WLR 1442 which has been departed from by the Privy Council in Campbell v. Hamlet [2005] 3 All ER 1116 (para. 183).

5. The rule of stare decisis in relation to the Court of Appeal must be considered in the context of the judicial system as a whole. Before discussing that rule, it is appropriate to address two aspects of the judicial system. First, the binding effect of decisions of the Judicial Committee of the Privy Council (“the Privy Council”) in Hong Kong both before and after 1 July 1997. Secondly, the position of the Court of Final Appeal, which replaced the Privy Council as Hong Kong’s final appellate court on 1 July 1997, as regards departure from previous decisions.

Privy Council decisions on Hong Kong appeals

6. Prior to 1 July 1997, the Privy Council was the final appellate court of Hong Kong. It also functioned as the final appellate court for many other jurisdictions. In the course of the second half of the 20th century, its role as a final appellate court gradually diminished as a growing number of jurisdictions established their own final appellate courts to replace the Privy Council. In addition to its role as a final appellate court, the Privy Council was for many years also the appellate court for appeals from disciplinary tribunals for various professions in England and Wales. Since 2003, except for one profession, the High Court has replaced the Privy Council for dealing with such appeals.

7. As a matter of principle, the doctrine of precedent only operates as between courts within an hierarchy in the same judicial system. Thus, under the doctrine, the decision of a final appellate court is binding on the intermediate court of appeal and the lower courts in the same system. Before 1 July 1997, when the Privy Council entertained an appeal from Hong Kong, it was functioning solely as the final appellate court in and as part of the Hong Kong judicial system. Its decisions on appeals from Hong Kong were therefore binding on the Court of Appeal and the lower courts in Hong Kong before 1 July 1997.

8. The Basic Law enshrines the theme of continuity of the legal system. Article 8 of the Basic Law[3] provides that the laws previously in force in Hong Kong shall be maintained except for any that contravene the Basic Law and subject to any amendment by the legislature. This is reinforced by Article 18(1)[4]. By virtue of these articles, the body of jurisprudence represented by Privy Council decisions on appeal from Hong Kong continues to be binding in Hong Kong after the Basic Law came into effect on 1 July 1997.

Privy Council decisions on non-Hong Kong appeals

9. The position of Privy Council decisions, which were not made on appeals from Hong Kong, is however entirely different. When sitting as the final appellate court of another jurisdiction or as the appellate court from a professional disciplinary tribunal, the Privy Council was not functioning as a Hong Kong court as part of our judicial system but was discharging its responsibility as a court in a different regime. There was no relationship between the Privy Council when so operating and the Hong Kong courts. In principle, its decisions on non-Hong Kong appeals were not binding on the courts in Hong Kong under the doctrine of precedent prior to 1 July 1997.

10. This conclusion is supported by the view expressed by the Privy Council on an appeal from Hong Kong in de Lasala v. de Lasala [1980] AC 546. Its judgment considered the persuasive effect of decisions of the House of Lords in Hong Kong (see para. 15 below). In the course of its judgment, the Privy Council stated that its decisions on appeals from Hong Kong are binding on all Hong Kong courts (at 558 A-B). Although it was not directly focusing on the effect in the Hong Kong courts of decisions of the Privy Council on non-Hong Kong appeals, this statement should be regarded as authoritative[5].

11. In Fatuma Binti Mohamed Bin Salim Bakhshuwen v. Mohamed Bin Salim Bakhshuwen [1952] AC 1, the Privy Council was dealing with an appeal from the Court of Appeal for Eastern Africa concerning a question of Mohamedan law. It was not suggested that Mohamedan law in East Africa on the material question was different from that in India. The Privy Council held that its previous decisions on the relevant question on Mohamedan law on appeals from India were binding on the Court of Appeal for Eastern Africa (at 14). Whatever be the correctness of the decision regarding Mohamedan law in East Africa, having regard to the conclusion reached above in relation to Hong Kong, Bakhshuwen cannot be regarded as applying to render Privy Council decisions on non-Hong Kong appeals binding on the Hong Kong courts before 1 July 1997[6].

12. A number of statements can be found in judgments of the Court of Appeal and the lower courts in Hong Kong that decisions of the Privy Council were binding on them prior to 1 July 1997, without distinguishing between decisions on appeal from Hong Kong and other decisions. These statements should be read as confined to Privy Council decisions on appeal from Hong Kong.

13. Some judgments have gone further and have stated expressly that Privy Council decisions, including those given on non-Hong Kong appeals, were binding on the courts in Hong Kong before 1 July 1997. See for example, R v. Lee Yuk-wah [1985] HKLR 193 at 195H (Kempster JA) and 199A (Barker JA). And in the present case, Tang JA stated that prior to 1 July 1997, the Court of Appeal would have been obliged to follow the Privy Council decision in Campbell v. Hamlet (at para. 177). Having regard to the conclusion reached above on the status of Privy Council decisions on non-Hong Kong appeals under the doctrine of precedent, such statements must be regarded as incorrect.

14. Before 1 July 1997, Privy Council decisions on non-Hong Kong appeals were only persuasive authority. But except where local circumstances were material[7], their persuasive authority was so great that the courts in Hong Kong virtually invariably followed them before 1 July 1997. The reason was that, unless there were real grounds for distinction, it was unrealistic to expect the Privy Council to take a different view on a Hong Kong appeal from that taken in its earlier decision on a non-Hong Kong appeal, especially where that earlier decision was not an old one. It may be that some of the Hong Kong judicial statements referred to above intended to refer to this realistic position. But to speak of Privy Council decisions on non-Hong Kong appeals as binding in Hong Kong is incorrect and confuses their great persuasive force with what should properly be regarded as binding under the doctrine of precedent.

House of Lords

15. Before 1 July 1997, decisions of the House of Lords stood in a similar position to decisions of the Privy Council on non-Hong Kong appeals. Although they were only persuasive, their authority was very great unless the decision was in a field where local circumstances made it appropriate for Hong Kong to develop along different lines. The House of Lords and the Privy Council essentially share a common membership. Unless local circumstances were material, the Privy Council on an appeal from Hong Kong was unlikely to diverge from a decision its members had reached in a different capacity in the House of Lords. See de Lasala at 558A-C and Tai Hing Cotton Mill Ltd...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT