Not bound by precedents of courts above Not bound by own precedents BL art 82

Not bound by precedents of courts above not bound by

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Not bound by precedents of court(s) above - Not bound by own precedents - BL art 82: Exercises the power of final adjudication - May depart from precedents set by the Judicial Committee of the Privy Council on appeal from HK and its own precedents after careful consideration of the risks affecting pre-existing legal rights - Only body with ultimate authority to adjudicate on matters of BL arising from concrete disputes - Courts’ interpretation of BL have both prospective and retroactive effect - NPCSC is not a court competent to set precedents through adjudication; BL art 158: interpretation of BL are prospective supplementary legislation and are subject to limitations of such proceedings Court of Appeal - Bound by precedents of CFA, precedents of the Judicial Committee of the Privy Council on appeal from HK as are left intact by the BL, Ordinances of the Legislative Council - Bound by its own precedents - Per incuriam: precedents “given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision of some step in the reasoning on which it is based is found to be demonstrably wrong” Ng Yuen Shiu v Attorney-General [1981] HKLR 352 - CA may determine which of its own precedents it will follow when they conflict or overrule its own precedent when inconsistent with a subsequent decision of the Privy Council on appeal from British HK or CFA CA is not bound to follow its own precedent if satisfied that the decision was made per incuriam Solicitor v Law Society of Hong Kong - CFA refined the rules of precedent applicable to CA - CA will be bound by its own precedents “unless it concludes, after an examination of legal developments, including subsequent comparative jurisprudence, that its earlier decision should now be regarded as plainly wrong” - The “plainly wrong” test does not apply in criminal cases unless in the interests of the liberty of the accused CFI/ competition tribunal - Bound by precedents of court(s) above - CT: not by own precedent(s) CFI: - Original and supervisory jurisdiction: not bound by own precedents( but under “judicial comity’ High Court judges follow HC precedent unless they are convinced that the judgment is wrong - Appellate jurisdiction: normally bound by appellate precedents of other judges with the same
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jurisdiction( Young v Bristol Aeroplane Co Ltd) - Exception: a decision of CA which has not been expressly overruled by CFA but CFA considered CA misinterpreted the authorities on which the impugned decision was based> CFI ceases to be bound by it, but not bound to dissent from their conclusion> previous decision is undermined rather than directly overruled Attorney-General v F Gardiner esq Permanent Magistrate [1987] HKLR 22,24 - Conflicting decision of courts of co-ordinate jurisdiction> later decision is to be preferred if it is reached after full consideration of earlier decision District Court -
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