Topic 10: Binding Precedent

Question 1

The Court of Appeal has to follow a previous decision it made. True or false?

Answer 1

False Baby.

Andrew Phang can change his mind on Spandeck.

He can add Situation 3c if he wants.

He can say Hongkong fir sucks and change it

Andrew Phang is law.

The Court of Appeal is not bound by its own previous decisions, nor the decisions of the Privy Council when it was Singapore’s highest court

Question 2

The High Court must follow a previous decision made (by the High Court). True or false?

Answer 2

False.

The High Court is not bound by each other decisions.

Quentin Loh can say Lee Siu Kiu’s law is shit.

Question 3

The High Court must follow the Court of Appeal decisions on a similar matter. True or false?

Answer 3

True. It must follow the ratio set by SGCA decisions.

Question 4

When can a High Court decline to follow a precedent?

Answer 4

Changes in social circumstances

Between two conflicting CA ratios, it can pick one

Case was decided per incuriam

Question 5

If there is a conflict between the decisions between the Court of Appeal and High Court, the District Court must follow the Court of Appeal decision. True or false?

Answer 5

True baby. Follow Andrew Phang, not Quentin Loh.

Question 6

Is the House of Lords case on a similar matter in 2005 binding or persuasive?

Answer 6

Persuasive, Decisions of all other courts, including those of other jurisdictions, are merely persuasive. There is no obligation to follow any of them even if they interpret statutes which are the same as ours.

Question 7

Is the Privy Council case on appeal from Singapore in 1985 binding or persuasive?

Answer 7

Persuasive. Decisions of all other courts, including those of other jurisdictions, are merely persuasive. There is no obligation to follow any of them even if they interpret statutes which are the same as ours.

Question 8

Yong Pung How woke up one morning and told the Court of Appeal judge: “I think there is a Privy Council case on this negligence case from 1970. We need to follow it.” What should the Court of Appeal judge say in return?

Answer 8

“No need. We are no more bound by Privy Council. We are the highest court.”

Question 9

Andrew Phang called Quentin Loh one morning and said “In 2007, I created the Spandeck framework. Now you must follow the Spandeck framework.”

Quentin Loh is intimidated by Andrew’s words, but he finds the Spandeck framework too troublesome to use and wants to use Anns instead. Can he use the Anns test for the negligence case he is currently reviewing?

Answer 9

No. Quentin Loh must follow Spandeck because Spandeck is Court of Appeal ratio.

Question 10

Andrew Phang was taking a shit in his Chambers when he thought of a better way to test for duty of care. He Whatsapps the Chief Justice saying “I think Spandeck is so 2007. I have an idea in mind for a new and better test for DOC.”. Can Andrew create a new test for Duty of Care in the latest negligence case the Court of Appeal is reviewing?

Answer 10

Yes. Court of Appeal can depart from its own precedent if it sees a need to develop the law, if the reasoning of that precedent is unsound, and if the precedent no longer fits the circumstances in Singapore.

Question 11

When and how did the Court of Appeal stop being bound by Privy Council decisions?

Answer 11

8 April 1994

Appeals to the Judicial Committee of the Privy Council were abolished.

Question 12

Since April 1994, the Singapore Court of Appeal cannot adopt a decision of the Privy Council that it agrees with. True or false?

Answer 12

False. It can still adopt a decision by the Privy Council that it agrees with. It’s just that it is not bound to do so.

Question 13

The High Court is bound by a 1991 decision of the Privy Council (on appeal from Singapore). True or false?

Answer 13

Yes (probably)

Question 14

When was the High Court bound by the Supreme Court of the Straits Settlements?

Answer 14

Before Japanese Occupation (1942)

Question 15

When was the High Court bound by the Federal Court of Malaysia?

Answer 15

1963 to 1970

Question 16

From what year onwards was the High Court bound by the modern Court of Appeal that we know today?

Answer 16

1970 onwards

Question 17

When was the High Court bound by the Singapore Court of Criminal Appeal?

Answer 17

1970 to 1993 (when it was merged with Court of Appeal)

Question 18

When was the High Court bound by the Singapore Court of Criminal Appeal?

Answer 18

1970 to 1993 (when it was merged with Court of Appeal)

Question 19

When is the High Court bound by Privy Council decisions?

Answer 19

When the decision was a Privy Council decisions on appeal from Singapore

Question 20

What did the High Court say in Mah Kah Yew (1970)?

Answer 20

The decisions from

Court of Appeal of Sarawak, North Borneo and Brunei

is binding on the High Court

(Page. 396, Week 5 Doctrine of Judicial Precedent)

Question 21

What was Singapore’s highest court history?

Answer 21

Pre-1994, the Privy Council heard appeals from Singapore and was the highest court.

Supreme Court of Straits Settlements (1868 to 1942)
Supreme Court of Singapore Crown Colony (1946- 1963)
Federal Court of Malaysia (1963- 1970)
Court of Appeal (1970 onwards)

Question 22

What did Prof Woon argue with regards to Privy Council appeals from other jurisdictions?

Answer 22

He said that decisions from

Privy Council appeals from other jurisdictions

should not be binding, but only persuasive

because the Privy Council no longer hears appeals from Singapore.

Question 23

What did Prof Woon argue with regards to stare decisis of High Court from foreign appellate courts in Malayan Union, Sarawak, North Borneo etc. ?

Note: Prof Woon’s argument was approved by Quentin Loh in Re Lehman Brothers (2012)

Answer 23

He said that decisions from

Court of Appeal of Federated Malay States
Court of Appeal of Malayan Union
Court of Appeal of Federation of Malaya
Court of Appeal of Sarawak, North Borneo and Brunei

should not be treating as binding on High Court, only persuasive,

because none of these courts have ever exercised jurisdiction in Singapore (these courts have never heard Singapore cases).

Question 24

The SGCA issued Practice Statement of 1994 said:

“… whilst this court will continue to treat [Privy Council and prior Court of Appeal] decisions as normally binding, this court will, whenever it appears right to do so, depart from such prior decisions”

What have subsequent decisions to the Practice Statement said about when it would depart from its prior decisions “whenever it appears right to do so”?

Answer 24

When the analysis and reasoning in the prior decision is unpersuasive

When the prior decision is not applicable to the circumstances and conditions in Singapore

(Phang JA dicta in Man Financial)

Question 25

Why is it important to depart from prior decisions, even if the precedent has been established for a long time?

Answer 25

So that the law can maintain its relevance and coherence.

Judges should not condone mistake only because the law has been promulgated for a long time

Through the willingness of courts to re-examine legal principles from time to time, such imperfections can be re-moulded and corrected

(VJ Rajah dicta in Lee Chez Kee)

Question 26

What did SGHC say in Indo Commercial Society (1992)?

Answer 26

The practice (up till that point) had been for Singapore courts to treat themselves bound to any Privy Council decision from any jurisdiction.

However, there was no decision from SGCA that stated if the court had to follow a Privy Council decision from other jurisdictions.

The judge suggested to re-state the doctrine of stare decisis in such a way that only Privy Council decisions on appeal from Singapore will be binding on Singapore courts

He said it was undesirable for a Singapore court to find itself bound by a Privy Council decision from another jurisdiction which clearly cannot stand against a more recent House of Lords decision on the same common law point