CO129-547-8 Piracy- case of Rex v. Chung Tam Kwong 22-3-1934 - 14-12-1934 — Page 11

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East's "Pleas of the Crown" (1803), Vol. II, p. 796, defines the offence of piracy by common law as "the commission of those acts of robbery and depredation upon the high seas which, if committed on land, would have amounted to felony there." This definition would exclude an attempt at piracy, because an attempt to commit a crime is, with certain exceptions, not a felony but a misdemeanour.

Their Lordships were also referred to Scottish textbook writers, including Hume (1757-1838) Scottish Criminal Law (1797) and Alison (1792-1867), Scottish Criminal Law (1832), where similar definitions are to be found. It is sufficient to say with regard to these English and Scottish writers that as was to be expected they followed in some cases almost verbatim the early concept, and the criticism upon them is :

(1) that it is obvious that their definitions were not exhaustive;

(2) that it is equally obvious that there appears to be from time to time a widening of the definition so as to include facts previously not foreseen;

(3) that they may have overlooked the explanation of the statute of Henry VIII as given by Coke and quoted above, and have thought of piracy as felony according to common law whereas it was felony by civil law.

In "Archbold's Criminal Pleading" (28th Edition, 1931) will be found a full conspectus of the various statutes on piracy which have been from time to time passed in this country defining the offence in various ways and creating new forms of offence as coming within the general term piracy. These, however, are immaterial for the purpose of the case because it must always be remembered that the matter under present discussion is not what is piracy under any municipal Act of any particular country, but what is piracy jure gentium. When it is sought to be contended as it was in this case, that armed men sailing the seas on board a vessel without any commission from any state, could attack and kill everybody on board another vessel sailing under a national flag without committing the crime of piracy unless they stole, say, an article worth sixpence, their Lordships are almost tempted to say that a little common sense is a valuable quality in the interpretation of international law. This appears to be re- cognised in the "Digest of Criminal Law," by the distinguished writer, Sir James Fitzjames Stephen (1829-94), 7th Ed., 1926, at p. 102. At the end of the article on piracy it is stated that "it is doubtful whether persons cruising in armed vessels with intent to commit piracy are pirates or not," but in a significant footnote, it is added that "the doubt expressed at the end of the article is founded on the absence of any expressed authority for the affirmative of the proposition and on the absurdity of the negative."

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Murray's Oxford Dictionary (1909) defines a pirate as who robs and plunders on the sea, navigable rivers, etc., or cruises about for that purpose."

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It may now be convenient to turn to American authorities, and first of all Kent (1826). In his Comm. I. 183, he calls piracy a robbery or a forcible depredation on the high seas without lawful authority and done animo furandi in the spirit and intention of universal hostility."

Wheaton writing in 1836, Elements Pt. II, cap. 2, para. 15, defines piracy as being the offence of "depredating on the seas without being authorized by any foreign State or without com- missions from different sovereigns at war with each other." This enshrines a concept which had prevailed from earliest times that one of the main ingredients of piracy is an act performed by a person sailing the high seas without the authority or com- mission of any State. This has been frequently applied in cases where insurgents had taken possession of a vessel belonging to their own country and the question arose what authority they had behind them. See the American case of the Ambrose Light (1885) (ubi infra). Another instance is the case of the "Huascar.” In 1877, a revolutionary outbreak occurred at Callao in Peru and the ironclad Huascar," which had been seized by the insurgents, put to sea, stopped British steamers, took a supply of coal from one of them without payment and forcibly took two Peruvian officials from on board another where they were passengers. The British Admiral justly considered the "Huascar was a pirate, and attacked her. See Parl. Papers, Peru, No. 1,

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In Moore's "Digest of International Law,” (1906) (ubi supra), Vol. II, p. 953, a pirate is defined as one who, without legal authority from any State, takes a ship with intention to appro- priate what belongs to it. A pirate is a sea-brigand, he has no right to any flag and is justiciable by all."

Time fails to deal with all the references to the works of foreign jurists to which their Lordships' attention was directed. It will be sufficient to select a few examples.

Ortolan (1802-1873), a French jurist, and professor at the University of Paris, says, Dip. de la Mer, Book II, ch. XI, “Les pirates sont ceux, qui courrent les mers de leur propre autorité, pour y commêtre des actes de dépredation pillant à main armée les navires de toutes les nations."

Bluntschli (1808-81), a Swiss jurist and a professor at Munich and Heidelberg, published, in 1868, "Le Droit International Codifié," which, in Art. 343, lays down; "Les navires sont considerés comme pirates qui sans autorisation d'une puissance belligerante cherchent à s'emparer des personnes à faire du butin (navires et marchandises) ou à anéantir dans un but criminel les biens d'autrui."

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