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(b) The facts proved in the case were as follows:-
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On the 4th January 1931 on the high seas the prisoners were cruising in two junks. The prisoners were subjects of China and the junks were Chinese vessels. One or more of the prisoners were in possession of firearms. The prisoners pursued and attacked a cargo junk which was also a Chinese vessel. master of the cargo junk was alarmed and attempted to escape. A chase ensued during which the prisoners came within two hundred yards of the cargo junk. The chase continued for over half an hour, the vessels preserving this distance. Shots were fired 10 by the attacking party. While the chase was still proceeding the s.s. Hang Sang approached and subsequently also the s.s. Shui Chow. The officers in command of these merchant vessels inter- fered and through their agency the prisoners were eventually taken in charge by the Commander of H.M.S. Somme which had The arrived in consequence of a report made by wireless. prisoners were then brought to Hong Kong and indicted for the crime of piracy.
(c) Upon the hearing of the aforesaid question of law re- served, the full Court of Hong Kong (Wood acting C.J. and 20 Lindsel J.) in answer to the aforesaid question so reserved held that robbery is necessary to support a conviction for piracy. The judgment of the said Court will be found in the Hong Kong Law Reports Volume 25 at pages 33 to 47.
3. It is respectfully submitted that actual robbery is not an essential element in the crime of piracy and that a frustrated attempt to commit a piratical robbery constitutes piracy jure gentium: that the essential characteristic of piracy jure gentium is that the acts com- plained of are done without the authority of a Sovereign state or a politically organised society or are done for private ends and 30 robbery or depredation" is not a necessary ingredient of the offence and that any unauthorised act of violence committed by a private vessel on the high seas against another vessel with intent to plunder constitutes piracy jure gentium.
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4. In support of the said contention the following (amongst other) authorities will be relied upon :-
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(i) Oppenheim's International Law 4th Edition Vol. I, §272. Piracy, in its original and strict meaning, is p. 500.
every unauthorised act of violence committed by a private "vessel on the open sea against another vessel with intent to 40
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"plunder (animo furandi). The majority of writers confine piracy to such acts, which indeed are the normal cases of piracy Therefore several writers (Hall, §81; Lawrence, $102: Bluntschli, §343; Liszt, §36, iv; Calvo, §485) correctly, I think, oppose the usual definition of piracy as an act of violence committed by a private vessel against another with intent to plunder. But yet no unanimity exists among them concerning a fit definition of piracy, and the matter is there- fore very controversial. If a definition is desired which really covers all such acts as are in practice treated as piratical, piracy must be defined as every unauthorised act of violence against persons or goods committed on the open sea either by private vessel against another vessel or by the mutinous crew or passengers against their own vessel. [The conception of piracy is discussed in The Republic of Bolivia v. The Indemnity "Mutual Marine Assurance Co. (1909) 1 K.B. 785.]”
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(ii) Smith's International Law 5th Edition pp. 139, 140. Pirates are sometimes described as hostes humani generis, a description which is, however, not entirely accurate, as the term pirate is applied to those who commit acts of war against
one state only, without themselves deriving authority from any state. In this case other states do not as a rule interfere unless directly affected; but, in general, pirates are justiciable, as Sir L. Jenkins puts it, being reputed out of the protection of all laws and privileges in what parts soever they
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are found [Works, Vol. II, p. 714]. Sir Charles Hedges, Judge of the High Court of Admiralty, in his charge to the grand jury in 1696 [R. v. Dawson (1696) 13 St. Tr. 454] gave the following definition of piracy :—
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Piracy is only a sea term for robbery, piracy being a robbery within the jurisdiction of the Admiralty. If the mariners of any ship shall violently dispossess the master,
and afterwards carry away the ship itself or any of the goods with a felonious intention in any place where the Lord Admiral hath jurisdiction, this is robbery and piracy'.
This definition, which has been cited with approval in the Privy Council [Attorney General for Hong Kong v. Kwok-a-Sing (1873), L.R. 5 P.C. 199. Various definitions were examined in The Republic of Bolivia v. Indemnity Mutual Marine In- surance Co. (1909) 1 K.B. 785] was made with particular
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RECORD.
Case for the Secretary of State for the Colonies.
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