41
40
8
it has to decide whether in the particular case the immunity exists or not. If it is clear that it does, the Court will of its own initiative give effect to it. The sovereign himself, his envoy, and his property including his public armed ships are not to be subjected to legal process. These immunities are well settled. In relation to the particular subject of the present dispute, the crew of a warship, it is evident that the immunities extend to internal disputes between the crew. Over offences committed on board ship by one member of the crew upon another, the local courts would not exercise jurisdiction. The foreign sovereign could not be supposed to send his vessel abroad if its internal affairs were to be interfered with, and members of the crew withdrawn from its service by local jurisdiction What are the precise limits of the immunities it is not necessary to consider. Ques- tions have arisen as to the exercise of jurisdiction over members of a foreign crew who commit offences on land. It is not necessary for their Lordships to consider these. In the present case the question arises as to the murder of one officer and the attempted murder of another by a mem- ber of the crew. If nothing more arose the Chinese Govern- ment could clearly have had jurisdiction over the offence: and though the offender had for reasons of humanity been taken to a local hospital, a diplomatic request for his surrender would appear to have been in order. It is difficult to see why the fact that either the victim or the offender or both are local nationals should make a difference if both are members of the crew. But this request was never made. The only request was for extradition, which is based upon treaty and statutory rights, and in the circumstances inevit- ably failed. But if the principles which their Lordships have been discussing are accepted, the immunities which the local courts recognise flow from a waiver by the local sovereign of his full territorial jurisdiction and can themselves be waived. The strongest instances of such waiver are the not infrequent cases where a sovereign has as it is said sub- mitted to the jurisdiction of a foreign court over his rights of property. Here is no question of saying you may treat an offence committed on my territory as committed on yours. Such a statement by a foreign sovereign would count for nothing in our jurisprudence. But a sovereign may say you have waived your jurisdiction in certain cases: but I prefer in this case that you should exercise it. The original jurisdiction in such a case flows afresh.
Applying these considerations to the present case, it appears to their Lordships as plain as possible that the Chinese Government, once the extradition proceedings were out of the way, consented to the British Court exercising jurisdiction. It is not only that with full knowledge of the proceedings they made no further claim, but at two different dates they permitted four members of their service to give evidence before the British Court in aid of the prosecution. That they had originally called in the police might not be material if on consideration they decided to claim jurisdic- tion themselves. But the circumstances stated together with the fact that the material instruments of conviction, the
9
revolver bullets, etc., were left without demur in the hands of the Hong Kong police make it plain that the British Court acted with the full consent of the Chinese Government. It therefore follows that there was no valid objection to the jurisdiction and the appeal fails. There was a further point raised by the Crown as to the possible effect of the Treaty of Tientsin in 1858, in renouncing jurisdiction by Chinese over British subjects who committed crimes in China. The Supreme Court was prepared to decide in favour of the Crown on this point also, but in view of the opinion already expressed on the main point it is unnecessary to decide this and no opinion is expressed upon it. For the above reasons their Lordships will humbly advise His Majesty that this appeal be dismissed.
(13804—3A) Wt. 8168–10
4. 20, 25
11/98 P. St. G. 338