4.
15
In the first of these submissions there is, in our
opinion, no substance. The common law jurisdiction of the
Supreme Court is declared by section 5 of the Supreme
Court Ordinance 1873 to extend to the Colony, and it is
not disputed that the locus of this crime was within the
Colony as defined in the Interpretation Ordinance 1911.
Throughout the arguments both here and in the Court
below it has been agreed that the Chinese Customs Cruiser
Cheung Keng must be treated in all respects as an armed
public vessel of the Republic of China.
Mr. Macnamara's argument on his second point was
supported by a number of citations from the works of
international jurists.
Oppenheim (4th Edition Vo. I. p. 368 para. 172 (a))
after discussing the land, national waters, and territorial
waters of a State, continues:-
In contradistinction to those real parts of State
territory there are some things that are either in every
respect or for some purposes treated as though they were
territorial parts of a State. They are fictional and in
a sense only parts of the territory. Thus men of war
and other public vessels on the high seas as well as
in foreign territorial waters are essentially in every
point treated as though they were floating parts of their
home State".
and again at p. 675 para. 450
"The position of men of war in foreign waters
is characterised by the fact that they are called
'floating portions of the flag state'. For at the present
time there is a customary rule of International law,
universally recognised, that the State owning waters
into which foreign-men-of-war enter must treat them
in every point as though they were floating portions
of their flag state. Crimes committed on board by
persons in the service of the vessel are under the