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BAY MEN TALANTA Basi
No. 2
Judgment of Wood, Acting C.J. delivered
1st April.
1931
-continued.
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ment of the Privy Council in The Attorney General for the Colony of Hong Kong v. Kwok A Sing (supra at p. 199), from which judgment I quote the following opinion of the Judicial Committee:-
They
see no reason to doubt that the charge of Sir Charles Hedges, Judge of the High Court of Admiralty, to the grand jury, as reported in the case of Rex v. Dawson (13 State Trials, 454) and which was made in the presence and with the approval of Holt C.J. and several other common law judges, contains a correct exposition of the law as to what constitutes piracy jure gentium.” He there says piracy is only a sea term for robbery, piracy being a 10
robbery within the jurisdiction of the Admiralty
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If the mariners of any ship shall violently dispossess the master and afterwards carry away the ship itself or any of the goods, with a felonious intention in any place where the Lord Admiral hath 'jurisdiction, this is robbery and piracy." The standard forms of indictments contained in Archbold's Criminal Pleading include an allegation of stealing. In the records of this court there are two interesting indictments to which I have drawn attention. They are connected with what are locally known as the Sunning and the Haiching piracies. Both indictments were laid under 1 Vict., c. 88, 20 s. 2, which deals with certain violent acts connected with the crime of piracy. The distinguishing feature between these two occurrences was that in the case of the Sunning the prisoners succeeded in dis- possessing the master and obtaining control of the ship (which was subsequently retaken from them by the gallant action of the ship's officers), while the attack upon the Haiching was foiled and the attackers at no time controlled the bridge. The indictment in con- nection with the Sunning was filed in March, 1927, and that in connection with the Haiching in February, 1930. Both indictments were filed by the present learned Chief Justice, Sir Joseph Kemp, 30 who was then Attorney General. He charged the first set of prisoners with Piracy with assault with intent to murder". In the particulars of offence he set out the acts of violence and after so doing proceeded and then and there committed the crime of piracy in respect of the said ship by stealing with force and violence the said ship". By way of contrast the later indictment alleged wounding persons on board a ship with intent to commit piracy and the particulars of the offence corresponded with this statement. It would thus appear that at the time when these two indictments were drafted, the draftsman gave effect to the opinion that the steal- ing of the ship constituted an essential element in the crime of piracy.
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1st April,
continued.
Leaving the records of the courts, I now come to the consideration No. 2 of the term "
piracy as it has been used in the statutes dealing with Judgment of
Wood, Acting piracy (other than municipal piracy). It was not necessary for the CJ. learned Attorney General to argue, nor did he do so, that cruising delivered with a piratical object by itself rendered a pirate liable to be 1931 punished by international law in national courts. Still less that the status and reputation of a pirate was such as to render him amenable to this court. It has been agreed by the learned Attorney General, in presenting the view of the crown, that in order to constitute the 10 crime of piracy for the purpose of these proceedings, there must have been present not only a piratical mind, but also a piratical act. The enquiry necessitated here will seek, in the language of the statutes, to ascertain the nature of the requisite act; and for the purpose of the question of law here under consideration, the issue has been narrowed to discussion whether violence for the purpose of robbery is by itself enough or whether further a completed robbery is required. This enquiry may be usefully prosecuted by study of statutes passed in England to supplement the common law relating to piracy. That not every piratical act brings the offender within 20 reach of the common law may be inferred from the language of "An Act for the more effectual suppression of Piracy," 11 William III,
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c. 7, s. 8, which provides: "If any commander or master of any shall in any place where the Admiral hath juris- turn pirate
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ship
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diction
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run away with his
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ship
and piratically and feloniously
he shall be adjudged deemed
and taken to be a pirate felon and robber and being convicted thereof according to the directions of this Act shall have and suffer pains of death
as pirates felons and robbers upon the seas
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ought to have and suffer." By the same section it was provided ao that
If any person shall lay violent hands on his commander whereby to hinder him from fighting in defence of his ship and goods committed to his trust or that shall confine his master or make or endeavour to make a revolt in the ship he shall be similarly punished. The legislature here declared certain acts to be piratical in character and yet at the same time found it necessary to provide by statute for their punishment. It is even more interesting to note that in the Piracy Act, 1721, 8 George I, c. 24, s. 1, it was enacted that In case any person or persons belonging to any ship or vessel whatsoever, upon meeting any merchant ship or vessel upon the high seas or in any port haven or creek whatsoever, shall forcibly board or enter into such ship or vessel and though they
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