CO129-568-9 Chung Chi Cheung- petition to appeal against decision of Hong Kong court 7-1-1938 - 28-12-1938 — Page 58

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alternatively, if it could, the only means of repudiation

was by diplomatic representations and not by a requisition

for extradition.

S

12. It is desirable to add a few words in explanation of the

arguments before the Full Court based on the China Order in

Council and in particular the proviso to Article 2 of that

Order. The crime was perpetrated at a point outside the

three mile limit, but within the "Waters of the Colony" as

defined by section 39B(6) of the Interpretation Ordinance,

1911, as read with section 39B. (1) of the same Ordinance, and

therefore within 100 miles of the coast of China. By Article

87 of the Order, a British subject being in Hong Kong, who is

charged with any crime or offence (see article 39) within

any British or Chinese ship at such distance as aforesaid,

(i.e. not more than 100 miles from the coast of China see

Article 86), falls within the jurisdiction of the Supreme

Court at Hong Kong as fully as if the crime or offence had

been committed in that Colony. That it is immaterial that

such British subject is in the service of the Chinese

Government, is, it is submitted, made clear by the terms of

Article 75, and therefore Article 87 applies equally to a

private or public Chinese ship. It was suggested by Alabaster,

J., (see his notes) that if the Order in Council conferred

jurisdiction as contended by the Crown, the proviso to Article

2 excluded the operation of the Order in the present case,

because at the time when the offence was committed, the vessel

was outside the three mile limit, and within the waters leased

to Great Britain by the Government of China. As appears from

the notes of MacGregor, C.J., Counsel for the respondent was

taken by surprise by this suggestion, since until this stage

of the proceedings, no one had sought to draw any distinction