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GENERAL.
The Law Officers are accordingly requested to advise :-
(1) Whether the case of Rex v. Chung Tam Kwong was. in their opinion,
rightly decided if so (2) Whether, assuming that satisfactory proof of intent to commit piracy is forthcoming, a foreigner who on the high seas assaults with intent to murder any person on board a vessel, could be convicted in the Courts of this country under 1 Vie., c. 88, or in the Colonial Courts under 12 & 13 Vic., c. 96.
(3) Whether the Imperial Parliament could properly be invited to pass legislation conferring jurisdiction to try foreigners in the circum- stances indicated in (2).
(4) Whether it is expedient to refer to the Judicial Committee of the Privy Council any question arising out of the matters discussed in this. case, and, if so, to settle the suggested terms of reference.
(5) Generally on the case.
Opinion of the Law Officers of the Crown and Mr. Wilfrid Lewis.
In our opinion the question whether or not the full court of Hong Kong arrived at a correct decision in quashing the conviction in the above case can only be satisfactorily answered by approaching the matter de novo.
It is thus necessary to decide at the outset what jurisdiction the Hong Kong Court had to try the twelve prisoners. They were Chinese subjects in a Chinese vessel upon the high seas. Although it is not expressly so stated, we feel entitled to assume that the acts with which the prisoners were charged were not committed inter fauces terrae, and took place more than 3 miles from the coast of Hong Kong so as to be outside the zone provided by the Territorial Waters Jurisdiction Act, 1878. From the above circumstances it results that these prisoners, in the absence of any relevant statute applying to foreigners when outside that zone and in foreign ships. were for no purpose subject to Imperial municipal law. These prisoners, however, were liable to be tried and punished for offences committed outside the 3-mile zone if amounting to piracy jure gentium. Reference should be made to the exhaustive judgment of Cockburn C. J. in Reg. v. Keyn (1876 2 Exch. D. 63 at pp. 159 to 238), where the history and scope of English criminal jurisdiction over foreigners upon the seas was traced and examined,
It will be convenient to postpone dealing with the questions whether actual robbery is an essential element in the crime of piracy jure gentium or whether a frustrated attempt to commit a piratical robbery is not equally piracy and justiciable as such, and to deal first with the question whether Imperial Courts have jurisdiction over foreigners in foreign ships who commit outside the 3-mile zone offences made punishable as piracy by British or Imperial Statutes.
•
In this connection the propositions of Cockburn C. J. in Reg. v. Keyn can be stated broadly as follows: Up to the 16th century the jurisdiction of English criminal courts was confined to crimes committed within the body of a county," while crimes at sea were subject to the jurisdiction of the Admiral (pp. 162, 167). Thus piracy jure gentium was never a felony at common law. Subsequently, in the reign of Richard II the respective jurisdictions were allowed to overlap, to the extent that in murder and mayhem done in great ships in the mouths of great rivers the Admiral was accorded concurrent jurisdiction with the common law (p. 168). And so English criminal law remained until 1878. Cockburn C. J. examined the statute 28 IIenry VIII, c. 15, and reached the conclusion (pp. 169 and 209) that it created no new offence and did not render foreigners liable to any English Court when they were not previously so liable: the statute merely transferred the existing jurisdiction of the Admiral to commissioners appointed by the King, and the only jurisdiction over foreigners for crimes committed on the high seas being derived from the civil law the commissioners received no further or greater jurisdiction under the statute of Henry VIII than the Admiral possessed and no power to apply English criminal law to foreigners in circumstances where the Admiral could not apply it (p. 169). And this position was not altered by the statute 4 & 5 William IV, c. 36 (which gave the Central Criminal Court jurisdiction) or 7 & 8 Vict., c. 2, which gave power to ordinary Courts of Assize to try offences committed on the high seas and within the jurisdiction of the Admiral.
GENERAL.
3
Admittedly piracy jure gentium was within the jurisdiction of the Admiral, and to this extent the Commissioners (subsequently the Central Criminal Court and Assize Courts) obtained jurisdiction over foreigners committing crimes in' foreign ships on the high seas, though Cockburn C. J. admitted that if Parliament had expressly asserted a more extended jurisdiction it would have been the duty of the Courts to recognise and endeavour to enforce such jurisdiction (pp. 160 and 207). At p. 208 he examined the question whether English municipal law either expressly or by implication had been extended to foreigners in foreign ships on the high seas. After approving the doctrine laid down by Turner L. J. in Cope v. Doherty (1858 2 De G. & J. 614 at 624 affirming 4 K. & J. 367) that Parliament must not be presumed to have legislated for foreigners and that to warrant such a conclusion the words of an Act ought to be express or its context very clear, Cockburn C. J. reached the conclusion that, up to 1876, no provision had been made by Parliament for trying foreigners for crimes committed generally upon the seas in foreign ships (p. 213), while such legislation as had been applied either expressly or impliedly to foreigners within what may for convenience be termed territorial waters had dealt with the revenue, customs, the protection of fisheries and kindred matters.
We feel satisfied that Cockburn C. J. in his exhaustive analysis of the law would have commented on such acts as the Suppression of Piracy Act, 1698 (Halsbury's Statutes IV, p. 334), the Piracy Act, 1821 (p. 343 op. cit.), the Offences at Sea Acts, 1799 and 1806 (pp. 401 and 417), the Murders Abroad Act, 1817 (p. 440), the Piracy Act, 1837 (p. 461), the Admiralty Offences Act, 1844 (p. 476), and the Piracy Act, 1850 (p. 520), had he considered that the provisions of any of those Acts either expressly or impliedly referred to foreigners, for, although the crime charged in Reg. v. Keyn was manslaughter, the principle at issue was sufficiently wide to render relevant the various municipal Acts dealing with piracy had the advocates in the case or other members of the Court cited them as conferring statutory criminal jurisdiction over foreigners in foreign ships.
Up to 1878, therefore, we think that, while for the purpose of regulating national defence and such matters as customs and revenue, municipal law had in certain cases been applied to foreigners in foreign ships at sea, there was no statute which had extended the jurisdiction of our criminal courts in respect of crimes committed by foreigners at sea, unless committed on board a British ship or falling under the definition of piracy jure gentium. The ratio decidendi of Cockburn C. J. and the majority of the Court was responsible for the drafting of the Territorial Waters Jurisdiction Act of 1878. The effect of that Act was to declare and enact (see the preamble and per Coleridge C. J. in R. v. Dudley and Stephen, 14 Q.B.D. at 281), that the jurisdiction of our courts extended to all offences committed within 3 miles of the coast; but, subject to that extension. we think that the law of the high seas remains to-day as it was stated by Cockburn C. J. (see Harris v. steamship" Franconia." 1877. 2 C.P.D. 173, and the Fagernes, 1927 P, 311).
Thus, in our opinion, Section 2 of the Piracy Act, 1837, does not assist, except in so far as it affects the question of punishment.
We think that the object of this Act was not the definition of the crime of piracy, but the regulation of its punishment. It must be remembered that at this time statutory revisions of punishments, and more particularly capital punish- ment, was occupying the attention of the Legislature see. for instance, the Criminal Law Act. 1827, Section 7, the Forgery Act, 1837, and the Punishment of Offences Act, 1837. We think the object of the Piracy Act, 1837. was to retain the death penalty in cases of piracy with violence, but in other cases of statutory or municipal piracy to substitute transportation for death (Section 3). Moreover, if actual robbery is an essential ingredient in piracy, the Section carries the matter no further; if it is not, it is unnecessary to invoke the section.
Accordingly, in our opinion, it would not have been correct to indict these twelve prisoners under the Piracy Act, 1837, Section 2, or any other provision of English municipal law relating to piracy.
On the other hand, we do not agree with what we understand to be the view of the Hong Kong Court, that they were not competent to try a charge of piracy
jure gentium. We entertain no doubt that the Hong Kong Court possesses jurisdiction over foreigners accused of piracy jure gentium." We think such jurisdiction was inherent under international law, upon the doctrine that the
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