CO537-6049 — Page 21

CHINA

Government for the duration of the lease subject only to such reservations as may be made in the instrument granting the lease.

26. In the present case, the general presumption is reinforced by the statement in paragraph 2 of the Convention of 1898, namely that:---

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Within the remainder of the newly-leased territory Great Britain shall have sole jurisdiction."

The reservation made relates to the city of Kowloon, but the use of the word "sole" in the sentence quoted suggests that the parties to the Convention contem- plated that the jurisdiction over Kowloon would at least be shared.

are not

27. The Chinese case therefore seems to rest on the interpretation of the words in the first sentence of paragraph 2 of the Convention, namely "that within the city of Kowloon the Chinese officials now stationed there shall continue to exercise jurisdiction except so far as may be inconsistent with the military requirements for the defence of Hong Kong." The Chinese contention is that these words import a complete reservation of jurisdiction to Chinese officials subject only to the military requirements for the defence of Hong Kong. In their favour it may be said that the words "to exercise jurisdiction expressly qualified in any way and therefore the jurisdiction reserved is full jurisdiction. On the other hand, the language used is rather surprising if that was the real intention. It would have been much easier to express the idea of a complete reservation of jurisdiction to China in so many words. Against the Chinese contention it may be argued that the reference to "the Chinese officials now stationed there coupled with the word 'continue implies that it was only the jurisdiction which at the time of the Convention was exercised by Chinese officials that should thereafter be exercised by them.

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28. Nevertheless, it will be seen from paragraphs 3 to 10 of paper A that the Chinese Government, although willing to lease additional territory in Kowloon promontory at first resisted the inclusion of Kowloon City in the lease, on the ground that it was a matter of dignity to them not to withdraw their permanent officials. No other reason was given by the Chinese Government for their objection other than that of "saving face." It is clear, therefore, that the clause was a concession made by the British Government in order to obtain Chinese assent to the transaction as a whole. The Chinese were actuated by national pride, and, in order to avoid holding up the Convention, His Majesty's Government agreed, subject always to arrangements for the military defence of Hong Kong, that the Chinese officials might remain. It is suggested that the provision should be read in the light of the conditions then prevailing and of the overriding purpose of the Convention, namely the military requirements for the defence of Hong Kong.

29. Even assuming that the Chinese contention as to the interpretation of paragraph 2 of the Convention is correct, it may be contended that the Chinese have lost their claim to jurisdiction as a result of the assumption of jurisdiction by the Hong Kong authorities in 1899, followed by over thirty years of acquiescence by the Chinese Government (1900-33). This acquiescence followed, after one more ineffective approach to Mr. Scott, Her Majesty's Consul-General, in January 1900, the categorical notes to the Chinese Government of 30th May and 24th October, 1899, in which it was stated: "It is impossible for Her Majesty's Government to allow resumption of jurisdiction by the Chinese authorities in Kowloon City.”

30. Another and stronger argument that may be made in favour of the United Kingdom case is that the continued exercise by Chinese officials of juris- diction in Kowloon is inconsistent with military requirements for the defence of Hong Kong. The facts appear to show that in 1898-1900 the presence of the Chinese authorities in Kowloon was contrary to military requirements of Hong Kong. The Chinese constituted a riotous element which directly threatened the security of the immediate neighbourhood in the colony. In 1934, the Service Departments were of the opinion that the resumption of jurisdiction by the Chinese would be contrary to the defence requirements of Hong Kong. The military implications of permitting the Chinese to exercise jurisdiction in Kow- loon City have recently been considered by the British Defence Co-ordination Committee, Far East, in conjunction with the Hong Kong Local Defence Com- mittee, and the conclusion was reached that it would be absolutely inconsistent with military requirements to accede to the Chinese request. This conclusion is endorsed by the Ministry of Defence. A copy of the British Defence Co-ordina- tion Committee, Far East's telegram, dated 29th April, 1948, and of the letter from the Minister of Defence to the Minister of State for Colonial Affairs, dated 5th May, 1948, are attached. (Paper D, No. 2.)