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3. The legal aspect of the matter has not been closely
examined in the admiralty, but so far as my Lords are aware, the
power of the courts at Hong Kong under British municipal law to
deal with cases of piracy committed in Chinese territorial
waters, and even in Chinese national waters, has not been in doubt
The question, however, appears to tien to be one which must be
dealt with on a political rather than on a legal basis and this
view is confirmed by the circumstances in which the instruction
first appeared in the Station Orders. No
its insertion can be traced, but it first appears about 1900 and,
from the similarity of the wording, it no doubt originates from a
promise given by the Governor of Hong Kong to the Chinese Viceroy
Li Hung Chang in that year that prisoners taken on account of
piracy would be handed over to the Chinese Governments on conditio
that a guarantee was given that no torture would be applied (see
despatch from the Governor of Hong Kong to the Colonial Office
dated 19th January 1900- enclosure to C.0. letter No.5529/1900
dated 14th March). The arrangement, however, then made was in
respect of pirates in the west kiver, and there is nothing to show
why it was extended to pirates captured in Chinese waters generally
4. I am to observe that the instruction as it stands does
not appeare to be wholly in accordance with present practice, as
apart from the 1926 case quoted, the S.S. IRENE was captured by
pirates outside Chinese territorial waters, taken by them within
the 3 mile limit, and sunk by H.M. Submarine L.4 in 1927 in order t
prevent the pirates escaping. The pirates were taken to Hong Kong
to be tried and a protest against this, among other things, was
made by the Chinese Government. The reply sent on this point (see Foreign Office letter of the 27th July 1929, No.F.3381/72/10) was
to the effect that, if the L.4 was entitled to capture the pirates
it follows that the Courts of the Flag State had jurisdiction to
try then. AB, however, the Chinese had proved themselves incapabl
of taking effective action against pirates and had invited the
assistance of this country in dealing with them, they obviously
were not in a position to press the matter.
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