CO129-547-8 Piracy- case of Rex v. Chung Tam Kwong 22-3-1934 - 14-12-1934 — Page 52

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No. 1. Order of

tackle and cargo from the owners thereof and to steal the same and that after the verdict of guilty of the jury the following question of 10th Novem law was reserved by the trial judge viz. :

Reference,

ber, 1933 -continued.

No. 2. Judgment of Wood, Acting C. J.

delivered

1st April, 1931.

Reported Hong-Kong L. R. Vol. 25,

page 31,

C

Whether an accused person may be convicted of piracy (mean- ing thereby of piracy jure gentium) in circumstances where no robbery has occurred a question which by the judgment of the Full Court of Hong Kong delivered on the 1st April, 1931, was determined in the negative with the result that the said conviction was quashed and the prisoners were discharged; that no appeal lies from the above judgment of the Full Court which is and remains binding upon 10 all the Courts of Hong Kong; that the question of law involved in this judgment is one of far-reaching importance and that it is con- ceived that others of His Majesty's Criminal Courts in the Far East will regard the said judgment as one which, though not binding on them, they ought to follow; that the efficacy of the protection afforded by His Majesty's Naval Forces against piracy on the High Seas in the Far East may, if the law has been rightly declared in the said judg- ment, be seriously affected, and that in these circumstances the said Secretary of State humbly submitted that the matter was a proper one to be referred to the Judicial Committee of His Majesty's Privy 20 Council under the Statute aforesaid and prayed that His Majesty might be pleased to direct accordingly :

Now, therefore, His Majesty, having taken the said letter into His consideration, is pleased, by and with the advice of the Privy Council, to order and it is hereby ordered that the question 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 be and the same is hereby referred to the Judicial Committee for their hearing and consideration.

No. 2.

M. P. A. Hankey.

30

JUDGMENT OF THE FULL COURT OF HONG KONG IN THE CASE OF REX v. CHUNG TAM KWONG AND 12 OTHERS.

WOOD, Acting C.J.

This matter arises before us as a question of law reserved for the consideration of the full court under section 78 sub-sec. (1) of the Criminal Procedure Ordinance, 1899 (Ordinance No. 9 of 1899).

No. 2. Judgment of Wood, Acting

delivered

1931

This question was reserved by myself during the Criminal Sessions held on February last. The prisoners were convicted by the jury on an indictment for piracy. The facts established in the case by un- c.J. contradicted evidence were these :-On the 4th January, in the present 1st April, year, on the high seas, the prisoners were cruising in two junks. The prisoners are subjects of China and the junks were Chinese vessels. continued.

The One or more of the prisoners were in possession of firearms. prisoners pursued and attacked a cargo junk which was also a Chinese vessel. The master of the cargo junk was alarmed and 10 attempted to escape. A chase ensued during which the prisoners came within two hundred yards of the cargo junk. The chase con- tinued for over half an hour, the vessels preserving this distance. Shots were fired 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 interfered and through their agency the prisoners were eventually taken in charge by the commander of H.M.S. Somme, which arrived in consequence of a report made by wireless. The prisoners were then brought to this Colony and indicted for the crime of piracy. The 20 count contained in the indictment on which evidence was offered was

as follows:-

44

Statement of Offence, Piracy. Particulars of Offence,- that you...

.....on the 4th day of January, 1931, upon the high seas with force and arms assaulted and put "in fear of their lives...

mariners in cargo .with intent to take the

away

C

junk No. 206V.

"said junk her tackle and cargo from the owners thereof and

to steal the same."

+

After the verdict of the jury, I reserved the following question "whether an accused person may be convicted of piracy in circumstances where no robbery has occurred."

30 of law

The learned Attorney General, in his argument before us on behalf of the Crown, has submitted that the decision of this question depends wholly upon international law. The piracy charged is piracy jure gentium. By international law this crime is justiciable every- where. A conviction for this crime may be recorded by a competent court in any country. The Supreme Court of any community in its criminal jurisdiction will, he submitted, accept a power from inter- national law to punish prisoners guilty of piracy jure gentium. If I 40 have followed his argument correctly, he claimed that this is the

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