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4
GENERAL.
pirate is hostis humani generis, and his crimes are justiciable anywhere (per Cockburn C. J. in Reg. v. Keyn at pp. 163, 168–9; Hawkin's Pleas of the Crown, Volume 1, Chapter 20, Section 1; Halsbury's Laws of England, Volume 9, p. 524; Archbold's Criminal Pleading, Evidence and Practice, 28th edition, pp. 670-1; Hall's International Law, 8th edition, pp. 311, 317). That view was held by the Privy Council in A.G. for Hong Kong v. Kwok a Sing (1873 L.R. 5 P.C. 179 at 199, 200), and the jursidiction specificially recognised in the Courts of that Colony. In this respect, we think the acting Chief Justice was wrong when he expressed the opinion that such jurisdiction in order to exist would probably require to be founded on an express Statute of the Imperial Parliament. But even so, it seems to us that the Admiralty Offences (Colonial) Act, 1849 (12 & 13 Vict. c. 96) coupled if necessary with the earlier Acts 11 William III, c. 7, and 46 Geo. III, c. 54-have effectively invested the Hong Kong Courts with jurisdiction to try foreigners charged with piracy jure gentium upon the high But such jurisdiction is confined to acts falling within the conception of piracy jure gentium under international law. Any extension--and, conversely, any restriction in the definition of that crime in English municipal law has not affected that jurisdiction.
seas.
Thus it remains to examine whether actual robbery is a necessary ingredient in the commission of piracy jure gentium, or whether an unsuccessful attempt to rob upon the high seas fulfils that crime. Up to the present case, this question seems to have been treated academically, for no direct answer has been given judicially, facts apparently not having arisen to require it.
For the purpose of answering such question we think the opinions of the leading writers on International Law are entitled to rank with more authority than was allowed in Reg. v. Keyn, when the application of municipal law was involved; or in Republic of Bolivia v. Indemnity Mutual (1909 1 K.B. 785), where the question was one of the construction of a policy of insurance (see pp. 790 and 802 ibid).
While there is no absolute consensus on the subject, it seems to us that modern opinion supports the contention that attempted or unsuccessful attack or attempt to rob at sea amounts to piracy jure gentium. Thus Hall, at p. 314 of his work on International Law, 8th edition, says:
piracy may be said to consist in acts of violence done upon the ocean by a body of men acting independently of any politically organised society, and among acts which are recognised or alleged to be piratical," the writer includes "robbery or attempt at robbery of a vessel by force or intimidation, either by way of attack from without or by way of revolt of the crew and conversion of the vessel and cargo to their own use. Phillimore's International Law. 2nd edition, Vol. 1, p. 411, contains the passage, "piracy is an assault upon vessels navigated on the high seas, committed animo furandi, whether the robbery or forcible depredation be effected or not, and whether or not it be accompanied by murder or personal injury. Oppenheim, 4th edition, Vol. 1, 500, is to a similar effect, while Lord Birkenhead, 5th edition, pp. 139-140, goes further, in stating that an animus furandi is not essential, and robbery is not necessarily an ingredient in the offence. On the other hand, in Archbold's Criminal Pleading, robbery is treated as being of the essence of piracy jure gentium (p. 670); while in Hawkin's Pleas of the Crown (Ch. XX, 8th edition, p. 251) there appears to be a conflict between Sections 1 and 3 as to whether actual robbery is essential. It is worth noting, however, that statutes such as the Suppression of Piracy Act. 1698, Section 11, and 6 Geo. IV, c. 49 (an Act for encouraging the capture or destruction of piratical ships and vessels) suggest that Parliament recognised that piracy, though frustrated, was nevertheless piracy. See also the judgment of Dr. Lushington on the latter Statute in Serhassan (2 W.Rob. 354).
The chief argument to the contrary is founded on the charge to the Grand Jury by Sir Charles Hedges in R. v. Dawson (1696 13 State Trials 451 at 454) (approved in Kwok a Sing's case), but the conclusiveness and authority of his definition appear to us to be capable of being discounted by two factors (1) he was dealing with charges where robbery of the clearest kind had occurred; (2) he was charging a Grand Jury at the second trial of the same prisoners, and it is tolerably clear from the circumstances that the occasion was not one when Sir Charles Hedges would have deemed it either necessary or expedient to embark on the niceties of technical definition. For such reasons. notwithstanding the Privy Council's adoption of Sir Charles's words in Kwok a Sing's case, and
GENERAL.
5
the statements which are to be found in such works as Carver's "Carriage of Goods by Sea (7th Edition, p. 142), or Russell on Crimes (7th Edition, Vol. 1, p. 256), we consider that what Sir Charles Hedges said in R. v. Dawson need not be accepted as a precise definition to-day of piracy jure gentium. Nevertheless, it must be recognised that, until comparatively recently, piracy was regarded as practically another term for sea robbery (see the trial of Captain Kidd, reported in 14 State Trials, p. 123, and of Bonnet and others, 15 State Trials, p. 2341, where the several indictments laid are set out in full; see also per Lord Abinger C. J. in R. v. Macgregor, 1 Car & Kirwin at 431). But, weighing the various opinions, judicial and otherwise, as well as we can, we are of the view that the old definition expressed by Sir Charles Hedges and approved by the Privy Council in Kwok a Sing's case, is not conclusive to the effect that actual robbery is an essential ingredient in piracy jure gentium. It is to be observed, also, that Sir Robert Phillimore, in the Chapter already referred to, cites several of these authorities without, apparently, regarding them as being in conflict with his definition of piracy quoted above.
In our opinion, therefore, the full Court of Hong Kong was wrong when it decided to quash the conviction of these twelve prisoners. We think the indictment, verdict, and conviction were proper upon the facts, and if, on a future occasion, a similar case arises of an unsuccessful attack by pirates, the Hong Kong Court is entitled to, and should, convict. But it seems to us that, before convicting in such circumstances, the Court should have clear evidence of the attack being made with intent to rob, or, in other words, made piratically. Under the present law homicide by a foreigner when not in a British ship and outside Hong Kong territorial waters (and a fortiori lesser offences, such as assaults) are not cognisable by Imperial Courts. It is of obvious importance that the scope of judicial treatment by any State of piracy jure gentium should not be extended so as to trespass unduly upon the municipal jurisdiction which every civilised State is assumed to exercise over its subjects. In the interests of international amity, any unwarranted extension of Imperial jurisdiction over the high seas is sincerely to be avoided.
Our answers to the questions put to us are as follows :—
(1) The conviction was correct and should not have been quashed. (2) A foreigner, when not in a British ship and outside the 3-mile zone, cannot be proceeded against under 1 Vic. c. 88, or in Colonial Courts by virtue of 12 and 13 Vic. c. 96.
(3) It is unnecessary, in our opinion, to answer this, but we conceive great objection to legislation extending Imperial Municipal jurisdiction beyond the limits at present laid down.
(4) Having regard to the importance of the question to the community at Hong Kong, we think that this is a proper case for special reference to the Judicial Committee under Section 4 of the Judicial Committee As the judgment was Act, 1833, if His Majesty should think fit. one quashing the conviction, we do not think that an appeal would have lain under Section 3. We are aware of the decisions in R. v. Bertrand (L.R. 1 P.C. 520) and R. v. Murphy (L.R. 2 P.C. 535). These, however, were cases in which a new trial had been ordered without jurisdiction. In the present case, in spite of power to order a new trial under Section 78 of the Hong Kong Criminal Procedure Ordinance, the Court quashed the conviction, and we know of no case in which the Privy Council has entertained an appeal against a judgment of acquittal. In our opinion, the Hong Kong Order in Council (1909 S.R.O., p. 805) does not affect the matter.
We think that the reference should be in the following terms :—
“Whether actual robbery is an essential element in the crime of piracy jure gentium, or whether a frustrated attempt to commit a piratical robbery is not equally piracy jure gentium and justiciable as such."
Law Officers' Department,
July 29. 1932.
T. W. H. INSKIP.
F. B. MERRIMAN.
WILFRID LEWIS.
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