SINGAPORE ACADEMY OF LAW ANNUAL LECTURE 2009 —“THE DEVELOPMENT OF THE COMMON LAW IN HONG KONG UNDER ‘ONE COUNTRY, TWO SYSTEMS’”

Date01 December 2009
Published date01 December 2009
Citation(2009) 21 SAcLJ 375
AuthorThe Honourable Chief Justice Andrew LI Chief Justice of the Hong Kong Special Administrative Region.
I. Introduction

1 I am greatly honoured to be invited to deliver this prestigious Annual Lecture. And I am delighted to have this opportunity of visiting Singapore to learn about developments in its legal system. I am most grateful to the Chief Justice and the Academy for their warm hospitality during my visit.

2 The Academy is a unique institution in bringing together various parts of the profession under one membership body. A principal mission is to nurture a strong collegiate spirit among its members in order to maintain pride in the profession and its honourable standards and practices. Over the last 20 years, its achievements have been impressive. I am sure that under the leadership of the Chief Justice, the Academy will continue to go from strength to strength.

II. Singapore and Hong Kong

3In the late 1960’s, during my undergraduate days in Cambridge, I met many fellow students from Singapore and Malaysia and had the opportunity of hearing Minister Mentor speak. Since that time, I have followed developments in Singapore with great interest.

4 In January 1970, nearly 40 years ago, on receiving his honorary degree from the University of Hong Kong, Minister Mentor gave his speech under the title “Hong Kong and Singapore — A Tale of Two Cities”. He discussed their respective histories and developments and concluded with this perceptive prediction:

… into the long-term future, the peoples of Hong Kong and Singapore may have significant, even exciting roles to play. As pioneers in modernisation of their regions, Hong Kong and Singapore can act as catalysts to accelerate the transforming of traditional agricultural societies around them …

By design, Hong Kong and Singapore were chosen as trading beachheads to a vaster hinterland … By the accident of subsequent developments, they may become dissemination points, not simply of

the sophisticated manufacture of the developed world, but more vital, of social values and disciplines, of skills and expertise.

5 Over the last 50 years, Hong Kong and Singapore have developed in the context of different geographical and historical circumstances. Today, there are both similarities and differences between the two societies. One thing which both jurisdictions share is the common law heritage. Both have developed legal systems which have been given very high rankings in international surveys. I am sure that both jurisdictions have much to learn from each other. Certainly, Hong Kong has much to learn from the judiciary-led reforms in Singapore, as discussed in the World Bank’s publication, which have transformed your judicial system over the last 20 years.

III. Theme

6 In this lecture, I shall discuss the continuing development of the common law in Hong Kong since 1997. I shall focus on the jurisprudence of the Court of Final Appeal (“the Court”) which was established to replace the Privy Council as Hong Kong’s final appellate court. A comprehensive survey of its jurisprudence cannot be attempted. I shall select from its decisions as appropriate to give a flavour of the development of the common law after 1997.

IV. The constitutional framework

7 On the resumption of the exercise of sovereignty by the People’s Republic of China on 1 July 1997, Hong Kong was established as a Special Administrative Region of China under the principle of “one country, two systems” in accordance with Article 31 of the Chinese Constitution. It is governed by the Basic Law, our mini-constitution, which was adopted by the National People’s Congress on 4 April 1990. The resumption of the exercise of sovereignty resulted from the Sino-British Joint Declaration which had been signed by the two governments in December 1984.

8 The Basic Law is a national law of China enacted under and taking effect under the Chinese legal system. It provides that the laws previously in force in Hong Kong shall be maintained except for any that contravene the Basic Law and subject to amendment by the Hong Kong legislature.1 Thus, it mandates the continuation of a legal system based on the common law. The great strength of the common law is of

course its ability to adapt to changing times and circumstances and the conditions of the society it serves.

V. The Court of Final Appeal

9 The Court of Final Appeal, which was established in 1997 as Hong Kong’s final appellate court, is a collegiate court of five judges with the Chief Justice presiding. Under the Court’s statute,2 one of the five judges is a non-permanent judge. A non-permanent overseas judge is usually invited to sit.3 At present, the panel of non-permanent overseas judges comprises serving and retired Law Lords from the United Kingdom, retired judges from the High Court of Australia and the Supreme Court of New Zealand.

10 An appeal lies as of right from a final judgment of the Court of Appeal in a civil case, where the matter in dispute amounts to or is the value of HK$1m or more. Apart from this exceptional category, leave must be obtained for any appeal. The Court’s power to deal with applications for leave is exercised by an Appeal Committee, consisting of three Hong Kong judges, whose decision is final.

11 In 2008, 140 applications for leave were disposed of. Sixty-one per cent of them were dealt with, on the papers without a hearing, on the basis that no reasonable ground of appeal had been shown. For the remainder, apart from 3% which were withdrawn, a short hearing would be held. Leave was granted in 17% of the total, amounting to 47% of the applications orally heard. In that year, the Court disposed of 38 appeals of which seven were criminal appeals. The caseload of the Court far exceeds the previous caseload of the Privy Council on appeal from Hong Kong. The highest number of cases from Hong Kong dealt with by the Privy Council in any year prior to 1997 was in 1996 when it disposed of 16 appeals and 28 petitions for leave to appeal.

VI. Stare decisis

12 The doctrine of stare decisis4 is an essential part of a common law system.

13 In Singapore, with the abolition of all appeals to the Privy Council in 1994 and with the establishment of the Court of Appeal as Singapore’s final appellate court, the Chief Justice issued a practice statement concerning the use of precedent in that court.5 The statement recognised the vital role the doctrine of stare decisis plays in giving certainty to the law and predictability in its application. It also recognised, however, that the development of the law in Singapore should reflect its political, social and economic circumstances and the fundamental values of its society. It adopted the position that whilst the Court of Appeal would continue to treat prior decisions of its own and of the Privy Council as normally binding, it will depart from such prior decisions, whenever it appears right to do so. Bearing in mind the consequences of departure, this power would be exercised sparingly.

14 Hong Kong had to address a similar question in the new constitutional order after 1997. The decision was made not to issue any practice statement but that the matter should be addressed when the point arises in a case.

15 In Solicitor (24/07) v Law Society of Hong Kong,6 the Court addressed the question. The Court first clarified the status of Privy Council decisions before 1997. As a matter of principle, the doctrine of precedent only operates as between courts within an hierarchy in the same judicial system. Before 1997, when the Privy Council dealt with 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 appeal from Hong Kong were therefore binding on all courts in Hong Kong. But Privy Council decisions on appeal from other jurisdictions were not binding on Hong Kong courts since it was not functioning as a Hong Kong court as part of its judicial system. However, Privy Council decisions on non-Hong Kong appeals and also decisions of the House of Lords, bearing in mind that it shares essentially a common membership with the Privy Council, had such a great persuasive effect that they were virtually invariably followed, except where local circumstances were material. Unless circumstances in Hong Kong made a difference, the Privy Council on a Hong Kong appeal was unlikely to diverge from a decision its members had reached in a different capacity, especially where the earlier decision was not an old one.

16 The Basic Law enshrines the theme of continuity of the legal system after 1997. The Court held that, having regard to this, the body of jurisprudence represented by Privy Council decisions on Hong Kong appeals continues to be binding after 1997. But the Court asserted its power to depart from previous decisions of the Privy Council and the Court’s own previous decisions. This is consistent with the approach adopted by final appellate courts in numerous common law jurisdictions as well as by the Privy Council. The Court recognised the fundamental importance of the doctrine of precedent in giving the necessary degree of certainty to the law and in providing reasonable predictability and consistency to its application. At the same time, the Court appreciated that a rigid and inflexible adherence to previous binding precedents may unduly inhibit the proper development of the law and may cause injustice in individual cases. Recognising the importance of these considerations, the Court stated that it will only exercise the power to depart from previous precedents most sparingly.

VII. Comparative jurisprudence

17 In the same case, the Court affirmed7 that in the new constitutional order, it is of the greatest importance that the courts in Hong Kong should continue to derive assistance from comparative jurisprudence. Hong Kong is a relatively small jurisdiction and in seeking the appropriate solution to problems, it is of great benefit to understand how similar problems have been dealt with elsewhere...

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