CO129-562-2 Chung Chi Cheung- appeal against death sentence 1-1-1937 - 31-12-1938 — Page 16

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exclusive jurisdiction of the commander and the

other home authorities".

The learned author is here clearly propounding

the fiction of exterritoriality. At.p. 629 para. 389

dealing with the position of diplomatic envoys, he

writes "Exterritoriality, in this as in every other

casc, is a fiction only, for diplomatic envoys are

in reality not without, but within, the territories

of the receiving States. The term "exterritoriality"

in nevertheless valuable, because it demonstrates

clearly the fact that envoys must, in most respects,

be treated as though they were not within the territory

of the receiving States".

The acceptance of that fiction with all the

implications suggested by Professor Oppenheim would

logically connote the entire absence of jurisdiction

in the present case in the Supreme Court of Hong Kong.

The learned editor of the fourth edition, however,

appends to the paragraph just cited the following

footnote.

"The modern tendency among writers is towards

rejection the fiction of exterritoriality".

Hall, on whose authority also Mr. Macnamara

relics, puts the position thus (8th Edition p. 245 para. 55).

"From what has been said it is clear that there

is not a great preponderance of authority in favour of

the view that a vessel of war in foreign waters is to

be regarded as not subject to the territorial juris-

diction. This being the case the law may probably be

stated as follows:-

A vessel of war or other public vessel of the

State, when in foreign waters, is exempt from the

territorial jurisdiction, but her crew and other

persons on board of her cannot ignore the laws of the

country in which she is lying, as if she constituted