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it is probable that the negotiators of the cession if they had thought of the point would have taken measures to meet it.
As it was, they probably did not regard the cession of Kowloon as an out-and-out transfer of sovereignty even for a term of years, and did not suppose, if the question indeed ever occurred to them, that the principles of international law quoted by Mr. Hurst would be applied in all its strict rigour.
Supposing that Chinese municipal law prescribes, as I understand it does, that Liang Tou is within China a Chinaman, how can we object on the ground that according to international law he is not ?
Foreign Office, October 31, 1910.
[34647]
No. 3.
Mr. Max Müller to Sir Edward Grey.-(Received September 26.)
(No. 298.) Sir,
W. E. D.
Peking, September 6, 1910. I HAVE the honour to transmit to you herewith copies of correspondence which has passed between His Majesty's consul-general at Hankow, His Majesty's. Legation, and the officer administering the Government of Hong Kong in regard to a criminal charge brought at Hankow against one Ho Pak-ki, a British subject of Chinese descent born in Hong Kong.
It will be seen that Ho Pak-ki had omitted to fulfil the formalities prescribed in Sir Ernest Satow's circular to consuls of the 22nd August, 1904, copy of which was forwarded to the Marquess of Lansdowne in his despatch No. 15, Treaty, of the same date. Mr. Fraser, therefore, hesitated to assume jurisdiction in the case, but decided to do so on learning from the Government of Hong Kong that the accused was a British subject. Sir F. May explains, however, that he had no knowledge whether Ho Pak-ki had complied with the formalities necessary for protection as a British subject in China, and that failing those formalities there was no desire on the part of the colonial Government that such protection should be extended to him. The misunderstanding resulted in Ho Pak-ki being afforded British protection to which he was not strictly entitled, but the case being to all appearances definitely disposed of it is perhaps unnecessary to discuss the further question as to which form of certificate was applicable in this instance.
I have, &c.
(No. 78.) Sir,
Enclosure 1 in No. 3.
W. G. MAX MÜLLER.
Consul-General Fraser to Mr. Max Müller.
Hankow, August 3, 1910.
I HAVE the honour to report that one Ho Pak-ki, a student attached to the Yang-tse Engineering Works (Limited), when brought up by the police of the French concession, in which he lives, on a charge of stabbing a police constable who was taking him to the station, produced a certificate of birth in Hong Kong and claimed to come under British protection.
His employer, the manager of the works, who is also a British subject of Chinese descent, made affidavit that Ho's father was born in the colony, where he lived from 1961 to 1868 and from 1877 to 1907, that his mother was Chinese, and that Ho, who was educated at Queen's College, lived in Hong Kong until he was 24 years old.
He was not provided with any of the forms of certificate prescribed in Sir Ernest Satow's circular despatch of the 22nd August, 1904, nor had he complied with the other condition by registering himself at this office.
As my French colleague raised no objection to our taking jurisdiction over the man, I telegraphed to the Hong Kong Government and was told that they desired me to treat Ho as a British subject.
The case was accordingly heard by Mr. Turner, as my deputy, and found not
proven,
25
I have instructed Mr. Turner to summon Ho Pak-ki for failure to register, and to make it a condition of registering him that he produce official proof from Hong Kong of his right to British protection.
I have also impressed on the manager, Wong Kwong, who appealed to me in the capacity of Ho's guardian, that he was greatly to blame for not seeing that his ward had the proper papers to prove his status, and also, like himself, was duly registered at Flankow. As I understand that Ho is not the only student from Hong Kong, I added that it was unlikely that the legal conditions of recognition would again be
ived.
Mcision to take jurisdiction over Ho Pak-ki was affected by doubt whether any syste? existed in Hong Kong to warn persons in this position intending to reside in China of the steps requisite to secure British protection and recognition.
The case seems to me to raise points which render desirable its being submitted to His Majesty's Legation, in accordance with Sir John Jordan's despatch No. 10 of the 11th February, 1909.
The forms laid down in 1904, except A 100, speak of the parents of the holder of the certificate; but in this case the father was born, and apparently domiciled, in the colony, while the mother was a Chinese subject.
Ho lived in the colony until he was 24, and made no declaration of alienate. He had thus apparently become entitled to British protection anywhere save in his land of origin, where, if he comes under form A 1006, he was entitled to protection only provided he had duly registered himself, while, if he comes under form A 100, the condition does not apply.
Which form of certificate he was entitled to depends on whether or not the usual law that the wife takes the nationality of her husband is to apply.
He produced noue of the forms of certificate prescribed in 1904; and although the Government of Hong Kong's telegraphic reply induced me to suppose that his right to one of them had been investigated and established, that Government's despatch in confirmation of its telegram merely states that there appears to be no doubt that Ho Pak-ki is a British-born subject, since he was duly registered in the colony as born on the 9th October, 1885, at No. 10, Aberdeen Street, Hong Kong.
Had Ho been arrested by the native police on some charge or other a further pimplication would probably have arisen from the claim of China (as reported in the ative press) that the legitimate descendants of her subjects, wherever born, remain hinese, which, irrespective of the birthplace of Ho's father and the residence of his ndfather when Hong Kong was annexed, would bring in the general rule that in ses of double nationality the jurisdiction of the country in which the person happens o be prevails over that of the competing State.
This claim on China's part, if correctly reported, raises doubt as to the feasibility of a suggestion that had recommended itself to me as a means of preventing men in lo's position from both enjoying the privileges and avoiding the disabilities of British subjects in China, namely, that Ilis Majesty's consuls be authorised, at their discretion, to notify the Chinese local authorities of the names and professions of all such persons registered at their consulates as entitled to British protection.
Sir,
I have, &c..
(In the absence of His Majesty's Consul-General),
Enclosure 2 in No. 3.
Mr. Max Müller to Sir F. May.
W. P. W. TURNER,
Peking, August 11, 1910. I HAVE the honour to transmit, for your Excellency's information, the copy of a despatch which I havo received from His Majesty's consul-general at Hankow in regard to the case of Ho Pak-ki, a British subject of Chinese descent, over whom Mr. Fraser assumed jurisdiction in pursuance of a request from you.
I have, &c. (In the absence of His Majesty's Chargé d'Affaires),
[725]
ERNEST SCOTT.
H
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