Is the Hong Kong Courts’ Ability to Refer to Foreign Authorities Unrestrained?
Once in a while there is a debate on whether Hong Kong courts should be freely able to refer to foreign authorities, indicating the lack of firm consensus. In light of the need for clarifications, this note affirms the court’s ability to refer to foreign authorities for three main reasons. Constitutionally, this note is the first to raise that Hong Kong courts have a unique ‘constitutional assurance’ of their ability to refer to foreign cases. By comparison, other jurisdictions, like England & Wales and Singapore which do not share the same assurance, have even further restrained their power with Practice Directions. Professionally, the courts will not blindly rely on foreign authorities given the jurisdictional differences. Practically, Hong Kong has a relatively smaller case pool, so the practical insights from the foreign authorities are very useful. Given these three justifications, there should not be any doubt over the courts’ power and practice for such.
Keywords: common law; Singapore; English law; comparative law; case law; precedent; India; judiciary; legal method.
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