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No. 2 Judgment of
C.J.
delivered 1st April,
-continued.
1931
position of the courts of oyer and terminer in England and that any Wood, Acting power possessed in this matter by the courts in England had been conferred upon the Supreme Court of Hong Kong by section 7 of the Supreme Court Ordinance, 1873 (Ordinance No. 3 of 1873). This Court, therefore, on this view may be said to have obtained a juris- diction in piracy both directly from international law and also from the same source through the channel provided by the Supreme Court Ordinance. The importance of this submission lies in this- that if the court is here to refer for its jurisdiction to international law, and to it alone, then its jurisdiction may be held not to be limited by 10 decisions given by the English courts proceeding under the common law and the statutes of the realm of England. More particularly. the learned Attorney General has based his submission on the language used in the judgment of the Judicial Committee of the Privy Council in the case of The Attorney General for the Colony of Hong Kong v. In that case Kwok A. Sing ((1873) L.R. 5 P.C. A.C. p. 179).
He was Kwok A. Sing had been accused of piracy jure gentium. himself a Chinese subject and the crime alleged against him was stated to have occurred upon the high seas and upon a French vessel. Having been found in Hong Kong he was brought before a police magistrate 20 and was by him committed for trial on that charge to the Supreme Court of the Colony. Habeas corpus proceedings followed, in the course of which the matter came before the Judicial Committee. In their judgment the Judicial Committee decided that the custody was legal. The language of their judgment, in which the jurisdiction of this court to adjudicate upon an indictment for piracy jure gentium was formally recognised, did not contain any reference to statute or ordinance on which such jurisdiction might be founded. The Judicial Committee contented itself by observing that the crime alleged was by the law of nations justiciable everywhere.
G
I have noticed that a similar submission was made by the counsel for the prisoner in The King v. Depardo (1 Taunton at p. 29) who argued that" the statute 28 Hen. VIII, c. 15, merely altered the mode of trial in that court, and its jurisdiction still continues to rest on the same foundations as it did before that act; it is regulated by the civil law, et per consuetudines marinas, grounded on the law of nations which may possibly give to that court a jurisdiction that our common law has not." It appears that in that case no judgment was given by the court.
44
30
During the argument I drew the attention of the learned Attorney 40 General to the fact that the same point had been taken for the crown
in England in The Queen v. Keyn (L.R. 2 Ex. Div. p. 63). In that No. 2 case a German subject, who was the master of a foreign ship, had, wood, acting
Judgment of during a voyage when his ship was within three miles of the coast of C.J.
delivered England, by his negligence caused the death of a passenger upon a
1st April, British ship with which his vessel was in collision. He was indicted
1931 at the Central Criminal Court for manslaughter and the question continued. before the court was whether the Central Criminal Court had power to try the offence. The question of the derivation of jurisdiction from international law was considered by Sir R. Phillimore in his
(C
10 judgment at p. 68; he said It being then in my opinion clear that "the jurisdiction to try this prisoner was not derived from the common law, or the statute law, or the law of the High Court of Admiralty, "what law did render the English court competent for this purpose? As I understand the contention on behalf of the crown, the answer "is international law. In other words, by the consent of all civilised states, England has become entitled to include within her realm a "marine league of sea and therefore has jurisdiction over a foreign "' vessel within that limit. It is indeed a most grave question whether, "if this statement of international law were correct, nevertheless, an
K
*
20 act of Parliament would not be required to empower the court to
exercise jurisdiction."
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40
**
In my opinion the argument that a jurisdiction whether in England or in this Colony in respect of an extra-territorial occurrence can be derived by a court from international law directly without the intervention of legislation cannot be sustained. Legislation is necessary; and the crime of piracy being extra-territorial, the legisla tion which is to empower this court to try that offence must be legisla- tion of the imperial parliament. To hold any other view would lead to the conclusion that it might be possible for this court to exercise alternatively powers obtained from two authorities which might at any time be found to be conflicting. It would on that view in certain circumstances be conceivable that a court might act legally in defiance of the limitations imposed upon it by its own constitution. The com- petence of a court is derived from its sovereign. Judicial functions are a portion of sovereignty. Unless it receives the jurisdiction from the sovereign, a court is without power to act. An acquiescence by the sovereign in a usurpation by the court of any portion of sovereign power would not amount to a sufficient authority. Jurisdiction cannot depend on any form of ratification.
I note in passing that the contention of the learned Attorney General has the support of Sir William Blackstone who, in his Com-
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