CO537-3707 — Page 11

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Like Mr. Sidebotham, I agree that we should explore as fully and sympathetically as possible any suggestion, such as that put forward by the Chinese Minister in the enclosure to No. 233, which might provide a reasonably satisfactory solution of the problem of jurisdiction in the Kowloon walled City, without undue loss of face either to ourselves or to the Chinese, and which would not be detrimental to the security of Hong Kong.

At the same time it seems to me that, before we send that proposal to the Governor for his comments, the implications of paragraph 2 require still further examination here.

As a layman I find it difficult to formulate very precisely the difficulties which I see in the Chinese proposal, and it may be that they are mere bogies. But I attempt to set out below some of the further questions which seem to me to arise.

What is not specifically indicated in the Chinese proposal is what law is to be administered in the walled City. But I assume that the Chinese would not willingly agree that Hong Kong law should be applied and that their intention is that the law would be whatever is in operation in the area of the Court to which it would fall for any particular case to be referred. For example, if a person ordinarily resident in Canton were accused of a murder committed in the walled City he would be tried for that crime in the Canton court in accordance with the law relating to murder which prevails in Canton.

But does not this give rise to the dilemma that an act (e.g. subversive activity against the Hong Kong Government) might be a crime if committed. in Kowloon by a person amenable to the court in Hong Kong but would not be a crime if committed in Kowloon by a person amenable to the court in Canton? If so, might we not have a situation in which, of two persons jointly concerned in some wrong doing in Kowloon, one might be guilty of a punishable offence, while the other would not?

It seems to me that the problem is even more complicated than that because the question whether a particular action by a particular individual constitutes a crime might depend also on the nationality of the individual. E.g. the crime of treason.

For example a British subject, ordinarily resident in Canton might conceivably have done some thing in Kowloon which, if it had been done on Hong Kong Island, would be a treasonable act under British law, But treason to the British Crown would presumably not be a crime under the law in operation in Canton. And even if it were, it would be ludicrous for him to be tried by the court in Canton. Might not the result be that a British subject (if ordinarily resident in China) could commit a treasonable act in Kowloon with impunity?

/Might