5.1 The doctrine of binding precedent

Question 1

What are the three requirements for a system of binding precedent to operate?

Answer 1

1. A system of law reports
2. A hierarchy of courts
3. The rules of precedent (Rules that determine when one court is bound by another in the same judicial hierarchy)

Question 2

Why a system of law report is important for the system of binding precedent to operate?

Answer 2

It is because it is doubtful whether a systematic application of precedent is possible unless there is at least one authoritative series of law reports, recording the judgement of the courts in which law principles can be found.

Question 3

Why a hierarchy of courts is important for the system of binding precedent to operate?

Answer 3

It is because much of the doctrine of binding precedent involves lower courts following the previous decisions of higher courts.

Refer to book p.87

Question 4

The meaning of vertical stare decisis and its reason is?

Answer 4

A decision of a superior court is binding on all courts and tribunals lower in the same judicial hierarchy (Solicitior (24/7) vs Law society of Hong Kong (2008))

The rationale is that a lower court should not sit in judgement of higher court (Miliango vs George Frank Ltf (1975))

Question 5

Which principle is precedent referring?
What is the principle of__?

Answer 5

Ratio decidendi / Rationes decidendi

Ratio decidendi is the underlying principle that forms the authoritative element in any binding judicial decision (binding precedent), not the decision that is the outcome of the case.

Question 6

Chinese of Magistrate

Answer 6

裁判法院

Question 7

Chinese of Tribunals

Answer 7

審裁處

Question 8

What are the tribunals courts?

Answer 8

1. Land
2. Small claims
3. Obscene article
4. Labour

Question 9

What are the principal inferior courts?

Answer 9

1. District court (inculdes family court)
2. Magistrate court

Question 10

5.1.1.1 What if two binding precedents conflict?

Answer 10

The magistrate should follow the later decision, after fully consideration of the earlier decision.

Question 11

5.1.1.1 Find an illustration of vertical stare decisis

Answer 11

Attorney - General vs Lee Chi Keung (1984), states that when Court of Appeal **held that ** the decisions made by High Court are binding on magistrate unless and until reversed or overruled by a superior court.

Question 12

5.1.1.2 Court system before 1997 in Hong Kong

Answer 12

1. Privy Council 樞密院
2. Court of Appeal
   3. High Court

Question 13

5.1.1.2 Court system before 1997 in UK