CO129-166 - Public Offices & Others - 1873 — Page 130

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was, when the Treaty was made, a manifest risk that the Colony of Hong Kong might become the refuge of the criminal classes of the city of Canton and other Chinese towns, and it was impossible that the Colonial Government could punish Chinese subjects for acts committed within the territory of China. Having regard to this object their Lordships think that the words crimes and offences ought to be confined to those ordinary crimes and offences which are punishable by the laws of all nations, and which are not peculiar to the laws of China. In the Treaty of Tientsin the persons to be delivered up are described generally as criminals. All ordi- nary crimes such as murder, robbery, theft, arson- committed by a Chinese within Chinese territory or in Chinese ships on the high seas would be within the meaning of the Ordinance. Their Lordships are also of opinion that piracy, at least in certain circumstances, would be within the meaning of the Ordinance. They think it may properly be assumed, without proof, that China has laws to punish piracy on her own coast, and if it was proved that a subject of China who had taken refuge in Hong Kong was a pirate in this sense, that he was a person who went from the Chinese coast to plunder ships at sea, returning with his plunder again to China, they are of opinion that such a person might be given up under the Ordinance. On a claim for the rendition of such criminals as these, it would not, in their Lordships' opinion, be necessary to produce the evidence of experts to prove what is the law of China.

Their Lordships have now to consider whether there was evidence that Kwok-a-Sing had been guilty of crimes against the laws of China within the meaning of the Ordinance. He is accused of two crimes, murder and piracy. The alleged murder was the murder of 2 Frenchman on board a French ship in which Kwok-a-Sing was a passenger on the high seas. They have, therefore, to consider whether murder by a subject of China of a person who is not a subject of China, committed outside the Chinese territory, is a crime against the laws of China within the meaning of the Ordinance; and they are of opinion that it is not. Their Lord. ships cannot assume, without evidence, that China has laws by which a Chinese subject can be punished

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for murdering beyond the boundary of the Chinese territory a person not a subject of China. Up to a comparatively late period England had no such laws. Moreover, although any nation may make laws to punish its own subjects for offences com- mitted outside its own territory, still, in their Lord- ships' opinion, the general principle of criminal jurisprudence is that the quality of the act done depends on the law of the place where it is done. Now, the law as to what constitutes murder differs in different places. Suppose that a subject of China kills an Englishman within English territory, or on board an English ship, under circumstances which, according to English law, might amount to man- slaughter ouly, could it possibly be right for the English Government to surrender such a person to the Chinese Government to be tried according to Chinese law, to which the distinctions between murder and manslaughter may be wholly unknown. On the whole, therefore, on these two grounds-- first, that it cannot be assumed without evidence that there is any law in China to punish a Chinese subject for a murder committed upon a foreigner within foreign territory; and, secondly, because even

if it could be assumed that there was such a law, still, this offence having been committed within French territory ought to be treated as an offence against French law, and not as an offence against Chinese law, their Lordships are of opinion that there was no evidence before the magistrate that Kwok-a-Sing in murdering the French captain, committed an offence against the laws of China according to the true construction of the Ordinance. Their Lordships have next to consider whether there was sufficient evidence before the magistrate that Kwok-a-Sing had committed an act of piracy jure gentium, and, if there was such evidence, whether that would make his imprisonment, for the purpose

of being delivered to the Chinese authorities, lawful.

Now, their Lordships are of opinion that there was before the magistrate sufficient prima facie evidence that Kwok-a-Sing had committed an act of piracy jure gentium to justify his committal for trial for that offence at Hong-Kong. They see no reason to doubt that the charge of Sir Charles Hedges, Judge of the High Court of Admiralty, to the

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