CO129-604-5 Immigration- control over entry from China 4-3-1948 - 6-1-1949 — Page 54

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(i)"all persons, whether natives of China or otherwise, who

may wish to convey goods, from any one of the 5 ports of Canton, Foochowfoo, Amoy, Ningpo and Shanghai, to Hong Kong, for sale or consumption, shall be at full and perfect liberty to do so, on paying the duties on such goods, and obtaining a pass, or port dearance, from the Chinese Custom House at one of the said ports"; and

(ii) "should natives of China wish to repair to Hong Kong to purchase goods, they shall have free and full permission to do so; and should they require a Chinese vessel to carry away their purchases, they must obtain a pass, or port clearance, for her at the Custom House of the port whence the vessel may sail for Hong Kong."

There seems to me to be two possible interpretations of Article XIII. One might interpret it as an undertaking by H.M.G. which conferred

(i) upon the Chinese and all other persons, the right to

convey goods for sale or consumption from any of the 5 ports to Hong Kong and to enter Hong Kong without restriction for that purpose; and

(ii)

upon the Chinese as such, the right to go to Hong Kong to purchase goods and to enter Hong Kong without restriction for that purpose.

This, however, is in my opinion not the correct interpretation. Article XIII is, I think, an undertaking by the Chinese Government that they will permit all persons to convey goods from the five free ports of China to Hong Kong and will permit natives of China to repair to Hong Kong to purchase goods. This interpretation gains support from the terms of the Proclamation of 7th June, 1841, which, after declaring Hong Kong to be open to mefchants and traders from China, goes on to declare that "there will be an immediate embargo upon the port of Canton and all the large ports of the empire if there be the least obstruction to the freedom of trade and intercourse with the port of Hong Kong". This shows that the tendency was for freedan of trade between China and Hong Kong to be restricted not by H.M.G. but by the Chinese Government and Article XIII of the Supplementary Treaty of 1843 accordingly states the extent to which the Chinese Government is prepared to permit such freedom of trade. In favour of this interpretation, too, is the fact that the restrictive conditions attached to the exercise of the rights granted by Article XIII are conditions which are in the interest of China and are, therefore, such as one would expect to be attached by the Chinese Government to the exercise of a right granted by it♪.7. phite Xvi lap down hat to recomes fases that be issued at the Chimmy s

The conditions are that duties shall be paid on goods taken from any of the five ports to Hong Kong (this refers to Chinese export duties - see Article I) and that any vessel conveying goods from the five ports to Hong Kong and any Chinese vessel conveying goods for Chinese purchasers from Hong Kong to China shall have a pass or port clearance from the Chinese port from which it comes. Finally, if Article XIII were interpreted not in this way but as a grant by H.M.G. of a right of entry to the Chinese, it would be difficult to understand why it is not reproduced in the Treaty of Tientsin,1858, (see sub-paragraph (d) below).

If my interpretation of Article XIII is the correct one, the Article confers no right of entry as against H.M.G. on the Chinese or anyone else; the entry of Chinese to Hong Kong is, as previously, at the pleasure of H.M.G. and permission to the Chinese to enter is granted not by any formal document (the proclamation of 7th June, 1941 having lapsed) but merely as a matter of practice. This seems to me to be quite a natural situation having regard to the fact that at this time it was H.M.G, which wished to promote, and the Chinese Government which wish to restrict, free intercourse

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