5057.
No. 559.
(Hong Kong.)
PUBLIC RECORD OFFICE
Reference :-
mummil PELLIC.O. 885
11 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
SIB,
FOREIGN OFFICE to COLONIAL OFFICE.
Foreign Office, May 3, 1869.
your letter I AM directed by the Earl of Clarendon to acknowlege the receipt of of the 13th of March, forwarding a copy of a Despatch from the Governor of Hong Kong, which enclosed copies of his correspondence with Her Majesty's Consul at Canton in regard to the question of placing the authorities of that Colony in direct communication with the Chinese authorities at Kowloon, with a view to the pursuit and capture on Chinese territory by the police of Hong Kong of criminals when they escape to the mainland, and in which Despatch the Governor of Hong Kong expresses a desire to receive instructions from Her Majesty's Government on the two points of law adverted to in ss. 11 and 12.
I am now to acquaint you, for the information of Earl Granville, that Lord Clarendon caused your above-mentioned letter and the whole correspondence upon this question to be referred to the proper Law Officers of the Crown, and they have stated to his Lordship that as regards the first point of law raised by Sir R. Macdonnell, they are not aware of any existing treaty engagement between Great Britain and China which would entitle a British authority to arrest in Chinese territory a British subject who may have committed a crime in British territory.
The jurisdiction conceded to British Consuls or other public functionaries under Article XVI. of the Treaty of Tientsin (XI. Hertslet, p. 90), which is believed to be the only treaty in force bearing on the question of British jurisdiction within Chinese territory, is only in respect of British subjects "who may commit any crime in
China.
The Law Officers observe, indeed, that there was a provision in Article IX. of the previous Treaty of Hooman Chae (VI. Hertslet, p. 265) for the apprehension by the any British Chinese authorities and the surrender to the nearest British functionary of subject who should escape into Chinese territory, and if any practice grew up under that treaty to which Sir R. Alcock may refer in his Despatch No. 297 of November 28, 1868 (a copy of which was transmitted to you in my letter of February 18th), when he says that there is no impediment to the police pursuing and arresting any British subject in Chinese territory," and if any such practice is in fact continued in the present day, the Law Officers consider such arrest is to be regarded as a matter of sufferance on the part of the Chinese authorities, and not as a matter of treaty right on the part of the British police, for the provision in question of the Treaty of Hooman Chae, not having been incorporated with the Treaty of Tientsin, must be held to have been abrogated by Article I. of that treaty.
"
The Law Officers think it hardly necessary to answer in the negative the second question of law raised by Sir R. Macdonnell. There being no treaty right in the Law Officers' opinion which entitles British Government officers to pursue and arrest British subjects who may escape into Chinese territory, if there should be in practice any comity in such matters on the part of the Chinese authorities, the extension of that comity to the arrest of Chinese subjects must originate with the Chinese authorities. No fiction of law would justify the British authorities in assuming an extension of that comity to the case of Chinese subjects who should escape from British custody in Kowloon or Hong Kong and take refuge on Chinese soil.
As regards the general question of placing the authorities at Hong Kong in direct communication with the Chinese authorities, I am to inform you that Lord Clarendon concurs in Earl Granville's observations upon this subject as contained in your letter of the 13th March, and he will instruct Sir R. Alcock to endeavour to make arrange- ments for communication in cases of emergency between the Colonial officers and the Chinese local authorities, with a view to mutual assistance to prevent disorder or to track out fugitive criminals, whose extradition, however, can still only be demanded or granted through Her Majesty's Consulate at Canton.
Sir R. Alcock will also be consulted as to the expediency of attempting to come to some arrangement with the Chinese Government under which fugitives from Hong
0 16278.-569. 15.-5/86.