1937-10-15 — Page 4

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ELIZABETH ALLAN- MICKEY ROONEY

THE CHIN

CUSTOMS CRUISER CRIME: APPEAL DISMISSED

The appeal before the Chief Jus-appellant was doubtless inspired by tice, Sir Atholl MacGregor, the the belief that the appellant, &per- Pitisne Judge, Mr. Justice R. Eson of Chinese parentage, with Lindsell and Mr. Justice C. G. Ala-Chinese name, and employed on baster, sitting in Full Court of board a Chinese vessel was g na- Appeal, against sentence of death tional of China. The moment that on Chung Chi-cheung was dismiss-the appellant established affirma- ed this morning.

tively, under section 18 of the Chin- Mr. H. C. Macnamara, for the apese Extradition Ordinance 1889 that pellant, argued that the Hong he was not a national of China pro- Kong Supreme court had no juris-ceedings for his extradition failed. The Chinese authorities ineffect

was

diction

Chung who over cabin-boy of the Chinese Maritime Customs cruiser "Cheng Keng and are claiming to exercise a jurisdic was found guilty on August 24 tion which they had surrendered in the murder of the late Captain D 1858. In these circumstances, if the L. Campbell on board the cruiser appellant's plea to the jurisdiction of the Supreme Court of this Co- on January 11.

The judgment, read by the Chieflony were upheld the appellant, so Justice, quoted authorities on jur long at least as he remains in Hong isdiction and extraterritorial rights Kong, would not be answerable to any Court for the murder which at great length and said:-

WILLINGLY WAIVED

In our opinion, from the conduct

We have set out these quotations he has committed. at some length as indicating the change in the attitude of interna tional jurists as to the reasons un-of the Chief Officer and the boats- derlying the universally conceded im-wain on board the "Cheng Keng" munity (of foreign armed vessels) and from the fact that the Chinese Government, after the failure of and the trend of modern writers to wards the opinion that it is a freely their proceedings for the extradi- tion of the appellant have made e accorded waiver by one sovereign

diplomatic representations with state of part of its complete sover- eignty. If this opinion is the cor-view to have the appellant put

back on

board the vessel on which rect one it necessarily follows that the guest state and the host state he was serving, it is a reasonable and proper inference that the im- have concurrent jurisdiction, but that, as a matter of international munity enjoyed by members of the comity, the jurisdiction of the host crew of an armed Chinese vessel has in this case been willingly: state is postponed to that of the

waived. guest state.

SUN YAT SEN CASE

а

The conclusion to which we have

TRANSFER OF YOUNG GIRL

Mr. Macnamara's. proposition that come. is that the decision of the the jurisdiction of the visiting state learned Chief Justice was right, and jis sole and exclusive is one to which this appeal must be dismissed.

On any we are unable to accede. other view of the authorities the footnote to page 245 of Hall's In- ternational Law and the concluding words of Lord Chief Justice Cock- burn's opinion would be meaningless. nor would it be possible to justify the action of the British and French authorities in the cases of Sun Yat Yeung Lam and Ho Kwai-sum, married women, were this morning Sen and Nikitschenkow which referred to in the footnote to page charged before Mr. S. F. Balfour 632 of Voll of Oppenheim's work at the Central Magistracy with There remains for consideration taking part in a transaction for the third of the submissions made the transfer of a minor, Lo Kam

Ling, a girl aged 12. on behalf of the appellant.

Inspector Ellis was for the Po- lice and first defendant was repre- sented by Mr. H. L. Kwan

are

As we have already decided

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visiting state has sole and exclusive jurisdiction it follows that in our opinion there is no merit in the be mo argument that there can waiver of immunity. The question that now falls for decision is whe- ther in the facts of this case there has been a valid and sufficient waiver and therefore a submission to jurisdiction of this Court.

the

Second defendant had borrowed $50 from Yeang Lam as she was in peed of money for rent. She agreed to let her daughter work for Yeung until the money was repaid. A document was drawn

137.

Yeung-Lam-said she lent the money to the other defendant, the girl lived with her and could go back when she liked.

Mr. Kwan said that the arrange- ment was a family one. The girl

WAIVER OF PRIORITY In the course of his argument Mr. Macnamara relied particularly on the extradition proceedings: at the instance of the Chinese Government was staying with his client and as evidencing the fact that they had was known to her as her aunt. The object was not to transfer the cus not consented to waive their prior-tody of the girl who could return ity of jurisdiction nor had they apat any time."

proved of any waiver of that prior- Inspector Ellis said it was appar- ity which might be inferred froment that first defendant had control the conduct of the Chief Officer or and custody of the girl. The law the boatswain.

did not require it to be for al

ways..

In his able argument Mr. Macna- mara, in our opinion, overlooked one Yeung Lam was fined $100 and important point which is fatal to bis the mother of the girl, $50 or one contention. The appellant has been month found by a competent court to be a British subject. By the Treaty of Miss F. K. Langford of Taipo Tientsin 1858 the Emperor of China Orphanage, knocked down a boy in renounced all claim to exercise Tai Po Road yesterday when

jurisdiction within his territorial ran across the road in front of het

over British subjects. The ar. He was taken to the Kowloon uisition for the surrender of the Hospital