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F 8886/154/10
Gentlemen,
CHINA
REPORT
We were honoured with your commands, signified to us in a letter dated 14th May, 1948, from Mr. K. O. Roberts-Wray and Mr. F. A. Vallat (F.O. Ref. F. 6995/154/10: C.O. Ref. 54145/16/6/48), requesting us to favour you with our opinion on certain questions that have arisen out of difficulties between His Majesty's Government and the Government of China with respect to jurisdiction over the walled City of Kowloon.
We have taken the matter into our consideration, and in obedience to your commands have the honour to report-
That the dispute upon which we are asked to report arises out of a provision in the Convention dated 9th June, 1898, between Great Britain and China respecting an extension of Hong Kong territory. The provision relates to the exercise of jurisdiction in Kowloon City and the issue turns upon the extent to which, upon its true interpretation, this provision retains for China the right to exercise jurisdiction within the walled City of Kowloon in the circumstances which have supervened from the date of the making of this Convention.
In seeking the proper meaning to be attributed to this provision, it is, we think, of importance to bear in mind the nature and extent of the territory to which the provision relates and the population resident in Kowloon City at the time when the Convention was made. It appears from the papers submitted to us that Kowloon City was at that time an enclosed area, surrounded by a stone wall forming as nearly as possible a parallelogram measuring 700 feet by 400 feet It had at that time a total Chinese population of about 744 persons, the garrison amounting to 544 and the civilian population to 200. The civilian population was dependent upon the military and, according to а report dated 8th October, 1898, by Mr. Stewart Lockhart, the civilian population would be sure to follow if the military were to remove. The Chinese officials stationed within Kowloon City at the time of the Convention were (with the exception of one civil officer, a deputy magistrate) military officers, the head of whom was the Colonel-in-Command. This officer was the chief military officer in the district of San On, now known as Po On. His jurisdiction was purely military in character, extending over the whole district of San On and the islands adjacent thereto. The garrison under the command of this Colonel was maintained for the defence of the district of San On, and the adjacent islands. The deputy magistrate resident within the city exercised a somewhat extensive jurisdiction not confined to the city, but comprising a large portion of the area leased by the Convention to Great Britain. The Chinese Government, in the course of the various communications which have passed in relation to Kowloon City, have relied upon the circumstances that other not dissimilar treaties were made in 1898 and 1899 with Great Britain, Germany, Russia and France in relation to other Chinese territory. They have contended that they were "unable to resist the successive rival demands from the Powers who were seeking a sphere of influence on the Asiatic mainland." This may well have been an accurate description of what was taking place, the Chinese Government endeavouring so far as they could to save face by retaining at any rate some measure of token or real jurisdiction in relation to some of the territories comprised in the leases. We do not think, however, that any other deduction can be made from the terms of these other treaties helpful for the solution of the questions put to us.
From the date when the Convention was made, there was not any great change in Kowloon City until Hong Kong was occupied by the Japanese during the second world war. At the present time the city is virtually a ruin, the city wall having been largely demolished by the Japanese in 1942. Only two buildings remain; a school which is in a dilapidated condition, and a home for aged women. It is in relation to the then state of affairs as so described that the expression in the provision in question "Within the City of Kowloon the Chinese officials now stationed there shall continue to exercise jurisdiction " has to be construed. Attached to the Convention there was a map showing the leased territory, which includes the territory on which Kowloon City stands, no distinction in that respect being made in the marking of the map between the rest of the leased territory and Kowloon City.
It seems to us, having regard to the state of affairs which subsisted at the time when the words quoted were used, that it is impossible to construe them otherwise than as providing that the jurisdiction then exercised by Chinese officials should continue to remain vested in the Chinese authorities. The words quoted clearly cannot refer only to the actual individual officials then alive, and