CO129-399 - Governor Sir May - 1913 [1-2] — Page 156

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155

(b) The second point is that the accused being a native

of Afghanistan was not subject to His Majesty's jurisdiction.

Under clause 50 of the Order-in-Council the Court in China can

only send for trial to Hongkong "British subjects"; but in clause

3 of the Order-in-Council "British subject* is defined as being

inclusive of persons who enjoy His Majesty's protection in China. The accused is a soldier in His Majesty's Aray and took the oath of allegiance to His Majesty and the Acting Consul-General testifi-

-ed that these soldiers do in fact enjoy His Majesty's protection

in China; and apart from this the English Army Act is perfectly explicit that any alien who is enlisted in His Majesty's Forces enjoy all the protection which a naturalized British subject en- -joys. For these and other reasons which it is not necessary to

detail here I have never had any doubt that this point put up by

the defence was an unsound one.

(c) The third point raised is that in the definition of British subject the Order-in-Council goes beyond His Majesty's powers as given Him by Treaty with China. To some extent the point is not raised clearly at present because the Court has no Treaty before it but it is possible that it might be raised in some further proceedings on an application for a writ of habeas corpus even after the Court may have given its decision on the points reserved and after sentence has actually been passed on the azcused. But even so I do not think the point has any merits. It is very doubtful if the Court could go behind the Order-in-Council at all and even if it could examine the Treaty (which I may remark refers to "British subjects without any definition inclusive of protected foreigners) there are other grounds on which it would be extremely difficult for the Court to decide of its own motion that His Majesty has exceeded His powers in this respect.

(Sd.) John A. Bucknill,

Attorney-General.

27th. November, 1912.

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