CONFIDENTIAL
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7.
A number of interesting points emerge from a consideration of these documents :-
8.
(a)
I do not think it can be disputed that the land forming the City of Kowloon was within the lands indicated generally on the map annexed to the 1898 Convention. It is to be noted that following reference therein to the City of Kowloon the paragraph in question goes on to state that "within the remainder of the newly-leased territory Great Britain shall have sole jurisdiction". In my opinion it follows that the land in question was from the outset and still is a part of what was described as "the newly-leased territory" which today is known as the New Territories.
(b) The paragraph in the Convention conferring jurisdiction within the City of Kowloon makes reference to "the Chinese officials now stationed there". It may be that the choice of wording was somewhat unhappy but taken literally it can be argued that the question of jurisdiction within the City would inevitably have fallen away when the last of the officials then stationed in the City either left or died.
(c)
It is also to be noted that the paragraph in question goes on to confer upon Great Britain sole jurisdiction within the remainder of the newly-leased territory. "Sole" jurisdiction was not conferred upon the Chinese officials stationed in the City and it may well be argued that from the outset Great Britain had a jurisdiction which it shared with the Chinese officials.
As I think you are aware the Full Court, in Re Wong Hon (1959) HKLR 601 heard an application for habeas corpus made on behalf of a Chinese accused of murder. Counsel argued that Wong Hon was an alien whose alleged offence, committed inside the Walled City, was beyond British jurisdiction. It was argued on behalf of the Attorney General that Chinese jurisdiction in Kowloon under the Convention was temporary, limited and not exclusive and was terminated by the Order in Council of 27 December 1899. It was further argued that the Orders in Council were prerogative acts of state and therefore conclusive declarations of the jurisdiction conferred on the local courts. This latter ground was accepted by the Full Court. At page 171 of his book entitled "Unequal Treaty 1898 1997" Peter Wesley-Smith states that "Re Wong Hon settled the matter so far as the Hong Kong courts are concerned. When, in 1975, the Government sought closure orders on two Walled City buildings, a magictrate referred to this case as justifying his assumption of jurisdiction." It is with this case in mind together
CONFIDENTIAL