CO129-547-8 Piracy- case of Rex v. Chung Tam Kwong 22-3-1934 - 14-12-1934 — Page 57

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

delivered

1st April, 1931

-continued.

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do not seize and carry off such ship or vessel shall throw overboard or destroy any part of the goods or merchandises belonging to such ship or vessel. the person or persons guilty thereof shall in all respects be deemed and punished as pirates aforesaid." It would thus appear to have been necessary in the opinion of the legislature to reinforce the common law by statute in order to punish as pirates persons who had accomplished considerably more by their violent acts than is alleged in the present indictment. A distinction must be noted between statutes providing for the punishment of piracy and other statutes, e.g., the Piracy Act, 1850, 13 and 14 Vict., 10 c. 26, which provides for an inquiry by the High Court of Admiralty in England and other courts of Admiralty in His Majesty's dominions beyond the seas, held to determine whether persons attached or engaged with by His Majesty's ships were pirates and to ascertain the number of pirates captured or engaged. It is not only from the language of English statutes that assistance is obtainable in this matter. As appears in the report of an American case The United States of America v. Smith (5 Wheaton, 153) (and also from reference to Kent's Commentaries on American Law, vol. 1, p. 185) that Congress taking action under a constitu- 20 tional power given to define and punish felonies on the high seas " and offences against the law of nations had passed an act pro- viding “that if any person

shall upon the high seas commit "the crime of piracy as defined by the law of nations

such [C offender

be punished with death. In the case named the court considered whether Congress had sufficiently discharged its duty to define the particular crime. The judges differed on this point; and it would appear that that act was allowed to expire and in place of it, during the following year (to quote Kent) it was again declared, and essentially to the same effect, 30 that if any person upon the high seas or in any open roadstead or

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bay or river where the sea ebbs and flows commits the crime of robbery in and upon any vessel or the lading thereof or the crew he shall be adjudged a pirate." Congress here clearly laid it down that a piracy and a robbery were equivalent terms. The last statute to which I shall refer, and which I also mentioned in court during the argument, is 1 Vict., c. 88-" An Act to amend certain Acts relating to the crime of Piracy." Section 2 of this act provides that whosoever with intent to commit or at the time of

or immediately before or immediately after committing the crime 40 of piracy in respect of any ship or vessel shall assault with intent

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to murder any person being on board of or belonging to such ship No. 2.

1st April,

or vessel or shall stab, cut or wound any such person or unlawfully Judgment of Wood, Acting do any act by which the life of such person may be endangered, C.J. "shall be guilty of felony and being convicted thereof shall suffer delivered

death as a felon." The language of this legislation evidently 1931 contemplates that violence on a ship may occur where there is an continued. intent to commit the crime of piracy either immediately before or immediately after such crime. Violence itself does not make the crime.

The view that an attack upon a ship at sea by itself constitutes a piracy jure gentium, and under the criminal law of England, is set out in Halsbury's Laws of England, vol. 9, p. 523, para. 1057. It has further the support of Sir James Fitzjames Stephen who, in his Commentaries on the Laws of England, 19th edn., 1928, vol IV. p. 152, notes at common law it may be said to comprise any armed "violence at sea which is not a lawful act of war. The same defini- tion was also adopted by the late Dr. Kenny in his Outlines of Criminal Law. With great respect to these learned authors, it seems to me that these definitions err if their purpose is to define the crime 20 as it is punishable by legal proceedings taken in England or in this

court.

I have regarded the jurisdiction of the local court as something carved out of the jurisdiction of the Admiralty. It may be that the High Court of Admiralty sitting to try a person accused of piracy would be bound by the same definition to which common law courts in England have adhered. Wider definitions may have their use where executive action by the Admiral comes up for consideration.

For the above reasons the answer which I give to the question of law reserved is that a robbery is necessary to support a conviction for 30 piracy in this court.

LINDSELL, J. :—

Judgment of

delivered 1st

I concur. It may be that for certain purposes international law Lindsell, J. forms part of the common law and thus becomes without statutory April, 1981. assistance automatically enforceable by the Common Law Courts. It may be that for such purposes statutes have been passed which are

in their nature no more than declaratory of principles of international law already recognised and given effect to by those courts.

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