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Colonial Cases

R. v. Page, 1881

[murder - jurtisdiction]

R. v. Page, 1881

Selected, edited and transcribed by Douglas Clark, barrister, Hong Kong

Regina v Edward Page, 
Date: 22 February 1881 

Source: North China Herald, 18 March 1881, p. 239

Coram:  Chief Justice French 
Mr. Francis, for the Acting Crown Advocate, for the prosecution 
Mr. Hayllar for the prisoner 
Judgement as to whether the prisoner, being in the service of the Chinese Government, was amenable to British jurisdiction, for the alleged commission of an act, which had been adopted, approved and ratified, by and on behalf of the Emperor of China. 
The prisoner, Edward Page was arraigned upon an indictment containing four counts. 
The first count charged him with the murder at Hato, in the province of Kuangtung, in the Empire of China, of one Li Amai, on the 26th October, 1880; the second with the manslaughter at the same place and on the same day of one Li Amai; the third with the murder at the same place and on the same day of a person whose name was unknown to the Acting Crown Advocate, and the fourth with the manslaughter at the same place and on the same day of a person whose name was unknown to the Acting Crown Advocate. Upon this arraignment the prisoner pleaded to the jurisdiction of the Court because, protesting that he is not guilty, nevertheless he says that he, being a British subject, did, with the sanction of the Queen, and as he lawfully might, on or about the 18th day of August, 1880, enter into the service, etc., of His Imperial Majesty the Emperor of China, as a Chinese Customs Revenue Officer, being duly and properly appointed to the said office, and that thenceforward, up to and including the time of the committing of the said alleged offence or offences in the said indictment mentioned, continued to be such Customs Revenue Officer as aforesaid, performing the duties of the said office and having and enjoying all the rights and privileges belonging and appertaining thereto. And he, the said Edward Page, further saith that thereupon it became and was his duty as such Customs Revenue officer as aforesaid to aid the Government of His said Imperial Majesty in the protection of the Customs Revenue and in the prevention of smuggling. And he, the said Edward Page, further saith that on the said 26th October, 1880, in the due and lawful discharge of his duty as such Customs Revenue Officer, as aforesaid, and of his duty in the prevention of smuggling, he, accompanied and assisted by certain subjects of His imperial Majesty the Emperor of China, did attempt to seize and capture, as he lawfully might, certain persons subjects of His said Imperial Majesty within the lawful jurisdiction of His said Imperial Majesty, and who then and there were engaged in an unlawful attempt to smuggle certain dutiable goods into the territory of His said Imperial Majesty, and to defraud the said Customs revenue, and did furthermore attempt to seize the said goods. 
And he, the said Edward Page, further saith that they, the said Chinese smugglers did, being so unlawfully engaged as aforesaid, by force and arms resist their said capture and the seizure of the said goods, whereupon, firearms being first used by a certain person or persons other than the said Edward Page, and those accompanying and assisting him, as aforesaid, and subsequently by him the said Edward Page and by one of the said Chinese subjects accompanying and assisting the said Edward Page as aforesaid; and be the said Edward Page further saith that one of the said Chinese smugglers met his death from a bullet-wound; and the said Edward Page further saith that the said killing of the said Chinese smuggler so unlawfully engaged as aforesaid was a lawful act in accordance with the laws of China. And he the said Edward Page further saith that the crime or crimes, offence or offences, charged against him in the said indictment as aforesaid is or are the said killing of the said smuggler as hereinbefore related, and that the said alleged killing, murdering, and slaying in the said indictment charged, occurred as hereinbefore appears, and not otherwise. And the said Edward Page further saith that the said killing of the said smuggler and the circumstances connected therewith having been duly and lawfully inquired into and investigated by the Chinese authorities lawfully empowered in that behalf by His said Imperial Majesty, and having been duly reported to the Tsung-li Yamen at Peking, the said Edward Page has been by the said Tsung-li Yamen acquitted of all blame, and his acts and conduct in connection with the death of the said smuggler have been adopted, approved, and ratified as an act of State by and on behalf of His said Imperial Majesty. And this he, the said Edward Page, is ready to verify; wherefore he prays judgment, if the said Court of our Lady the Queen nowhere will or ought to take cognisance of the indictment aforesaid, and that by the Court here he may be dismissed and discharged from the said premises in the said indictment above specified. 
To that plea the following demurrer has been put in on behalf of the prosecution:- 
The said Alexander Myburgh, who prosecutes for our said Lady the Queen in this behalf by John Joseph Francis, his representative aforesaid, as to the said plea of the said Edward Page by him above pleaded, saith that the same and the matters therein, contained; in manner and form as the same are above pleaded and set forth are not sufficient in law to bar or preclude our said Lady the Queen from prosecuting the said indictment against him, the said Edward Page, and that our said Lady the Queen is not hound by the law of the land to answer the same because he the said Alexander Myburgh by his representative, the said John Joseph Francis, saith that the matters in the said plea pleaded, assuming them to be true in substance and in fact, which the said Alexander Myburgh, by his representative John Joseph Francis, doth not admit, are matters in excuse and justification and are properly pleadable to the jurisdiction of this Court, but can, and ought only, be pleaded in bar to the further continuance of this prosecution, and this he, the said Alexander Myburgh by his representative John Joseph Francis, who prosecutes as aforesaid, in ready to verify, wherefore for want of a sufficient plea in this behalf he, the said Alexander Myburgh by his representative John Joseph Francis, prays judgment and that the said Edward Page may be convicted of the premises in the said judgment specified. 
On behalf of the prisoner there was a joinder in demurrer on terms. The question is whether upon the averments made in the above plea this Court has jurisdiction to entertain this prosecution. The plea involves the proposition that where a British subject lawfully and with the sanction of the Queen enters into the service of the Emperor of China, the conduct of such British subject, while in that service, and in discharge of his duties therein and being in conformity with the laws of China, cannot, under any circumstances, be made the subject of legal proceedings in a British Court of law, provided such conduct has been inquired into und approved, adopted, and ratified as an act of State, by the Emperor of China, and the proposition just stated, if established, involves this consequence, that under certain circumstances the acts of British subjects in China, although involving charges of a criminal nature, may be withdrawn entirely from the cognisance of the British authorities, and that thus the jurisdiction which the sequel will show has been given by treaty by the Government of China to the British Government of jurisdiction in China over British subjects is liable to the qualification that the acts complained of be not adopted as acts of State by the Chinese Government. The point then to be established on behalf of the accused under the plea, and this I understood to be the argument for the accused, is that the inquiry into the conduct complained of and its adoption, approval, and ratification as an act of State by the Emperor of China has ousted this Court of its jurisdiction in the matter of this prosecution. 
The foundation of the jurisdiction of Her Majesty over her subjects in China are the Acts 6 and 7 Vic., c. 80, and 6 and 7 Vic., c. 94. By the latter Act, called the Foreign Jurisdiction Act, it was enacted among other things that it should be lawful for Her Majesty to hold, exercise, and enjoy any power or jurisdiction which Her Majesty then had or might at any time thereafter have within any country or place outside Her Majesty's dominions in the same and as ample a manner as if Her Majesty; had acquired such power or jurisdiction by the cession or conquest, of territory.  Then by clause 2 of Article l6 of the Treaty of Tientsin (1858) it is provided that "British subjects who may commit any crime in China shall be tried; and punished by the Consul or other public functionary authorised thereto according to the laws of Great Britain." By section 4 of the China and Japan Orders in Council 1865 it is provided that- 
All Her Majesty's jurisdiction exerciseable in China or in Japan for the judicial; hearing and determination of matters in difference between British subjects, or between foreigners and British subjects, or for the administration or control of the property or persons of British subjects, or for repression or punishment of crimes or offences committed by British subjects, or for the maintenance of order among British subjects, shall be exercised under and according to the provisions of this Order, and not otherwise.  
Section 5 provides that- 
Subject to the other provisions of this Order, the civil and criminal jurisdiction aforesaid shall, as far as circumstance admit, be exercised upon, the principles of and in conformity with the Common Law, the Rules of Equity, the Statute Law, and other Law for the time being in force in and for England, and with the powers vested in and according to the course of procedure and practice observed by and before Courts of Justice and' Justices of the Peace in England, according to their respective jurisdictions and authorities. 
And section 6 provides that- 
Except as to offences made or declared such by the Order, or by any Regulation or Rule made under it, any act other than an act that would by a Court of Justice having criminal jurisdiction in England be deemed a crime or offence making the person doing such act liable to punishment in England, shall not, in the exercise of criminal jurisdiction under this Order, be deemed a crime or offence 
making, the person doing such act liable to punishment.  
Thus, according to this last provision, those acts only which are crimes or offences according to the law of England, or declared such by any regulation made under the Order in Council, are liable to punishment. In support of the plea Musgraves, appellant v. Palido, respondent (Q. R., App. C., v.. 5, p. 102) was mainly relied upon, and, on the authority of that case, it was contended that where it was established that the acts complained of were acts of State policy done under the authority of the Crown the defence was complete and the Municipal Courts could take no further cognisance of them. In Palido v. Musgrave the action was brought in the Supreme Court in Jamaica against the Governor of that Island for seizing and detaining a vessel. To that action there was a plea that the acts complained of were acts of State; but the plea did not show by proper and sufficient averments that the acts complained of were acts of State policy within, the limits of the defendant's commission as Governor, and done by him as the servant of the Crown, so as to be, as they are sometimes shortly termed, acts of State. The Privy Council, in deciding the case on appeal from the decision of the Supreme Court in Jamaica said that a plea disclosing proper and sufficient. facts would raise more than a question of personal exemption of the defendant from being sued as Governor, and would afford an answer to the action, not only in the Courts of the colony, but in all Courts; and that the question of personal privilege could not practically arise, being merged in the larger one, whether the facts pleaded showed that the acts complained of were really such acts of State as were not cognisable by any Municipal Court. Having regard to the views expressed by their Lordships in the Privy Council, it was said that the plea in this case had been framed with the object of meeting those views by averments showing that the acts complained of were acts of State policy, and it was contended that the averments made in the plea were enough to enable the Court to say whether the circumstances therein stated were a matter of State. The argument for the accused seems to me to amount in substance to this, that in the article already referred to in the Treaty of Tientsin giving jurisdiction in China to Her Majesty over her subjects there, the following proviso should he considered as added, "Provided always that such jurisdiction shall not exist in cases in which the acts, the subject of a complaint, by whomsoever made, against a British subject, shall he shown and declared to be acts of State on the part of the Chinese Government," and that by the law of England the Treaty of Tientsin is to be read as if such a proviso were in express terms part of it. 
This argument, if it were to prevail, would seem to me to lead almost to an abrogation of the clause already stated in the Treaty of Tientsin, and would withdraw British subjects in cases in which it might be thought fit to apply the argument from all jurisdiction whatever.  For if, in such cases, the matters of complaint could not be taken cognisance of by Her Majesty's Courts, they would not be punished by the law of China, inasmuch as the Emperor of China has given up the jurisdiction which he would otherwise have been entitled to over British subjects while in China and conferred it exclusively upon Her Majesty. The consequences to which such a view if established would tend need not he adverted to further than to say that acts might he excused as acts of State which to say the least could not meet with approval out of the country in which the acts complained of were said to be acts of State. 
Then arises the question what is to be the jurisdiction to determine the question whether the acts complained of are properly acts of State. Something more than the mere fact of their being approved of as acts of State would be required. Their bona fide nature as acts of State would have to be shown, and differences would in all likelihood appear in the laws of the two countries with reference to the matters of complaint.  But it was said that as this Court admits evidence to show what is the law of China in regard to contracts affecting the tenure of land, and is bound by the law of China in regard to such contracts, so here the Court would admit evidence to show what was the law of China in regard to smuggling, and would be bound by what was shown by the evidence to be such law. By the law of nations, however, which is part of the law of England, contracts in regard to land are governed by the law of the place where the land is situated. To apply the same doctrine in the manner contended for would make the law of China in regard to smuggling the law of England, and would be antagonistic to the express provisions before stated of the China and Japan Order in Council, 1865.  But further, no case has been referred to in which an act of State of a foreign Government has been held to he an answer to a criminal charge in a British Court of justice. In Dobree v. Napier, seven Bingham's N.C. 781, the defendant, on behalf of the Queen of Portugal, seized the plaintiff's vessel for violating a blockade of a Portuguese port in time of war. The plaintiff brought trespass, and judgment was given for the defendant, because the Queen of Portugal in her own territory had a right to seize the vessel and to employ whom she would to make the seizure, and therefore the defendant, though an Englishman, could justify the act under the employment of the Queen of Portugal. That case was an authority to show that an act authorised by the law of the country in which it takes place cannot he the subject of a legal proceeding in England. It was, however, a civil case, and there is no analogy between a civil action for a wrong done abroad and an indictment for an offence committed abroad. 
In Regina v. Lesley (29 L.J., M. C. 97) two points were raised, one as to what was done by Lesley while in Chilian territory in carrying from Valparaiso to Liverpool some political prisoners who had been banished by order of the Chilian Government to England, and the other as to what was done by Lesley out of Chilian territory in respect of the same matter, and the Court held as to the former acts he was not liable, and that as to the latter he was as much subject to the laws of England when on the high seas and out of Chilian waters as he would be on English soil. The latter ruling in this case seems to me opposed to the argument for the accused, inasmuch as the present case is to he determined in the same manner as if the acts complained of had taken place on English territory. In Burn v.Denman, 2 Ex., 167, the action was brought against Captain Denman for seizing and carrying away slaves and destroying property belonging to the plaintiff, who was a Spaniard engaged in the slave trade on the West Coast of Africa. Those proceedings having been communicated to the Lords of the Admiralty and the Secretaries of State for the Foreign and Colonial departments, they severally by letter adopted and ratified the act of the defendant. It was held, first, that the plaintiff had a property in his slaves and might maintain trespass for their seizure; and secondly, that the ratification of the defendant's acts by the Ministers of State was equivalent to a prior command and rendered it an act of State for which the Crown was responsible. This was the cause of a civil action, in which it was held by a British Court of law that where the acts complained of in an action at law had been adopted and ratified as acts of State of the British Government, the proof that such acts were acts of State was an answer to the action, It was argued that there was no real difference between the law of England and the law of China on the subject of smuggling, and that by the English law for the suppression of smuggling it was justifiable to fire into any ship suspected of smuggling in England and not bringing to when required, and that upon the facts averred in the plea being proved the prisoner would have been acquitted in England if the case had occurred there, and in support of that argument the Customs Consolidation Act (1876) 39 and 40 Vic., cap. 33, sec. 181, was referred to.  One important element mentioned in that section as necessary to discharge any proceeding at law in respect of such firing was not averred in the plea under consideration, namely, that there was any pendant or ensign hoisted in the boat of the accused with the view of indicating that it was engaged in behalf of the Chinese Customs service. I only observe on that argument with the view of showing that the plea does not contain an averment of every fact which it would be necessary for the accused to prove to discharge him from liability to punishment under the law of England. Phillips v. Eyre (L.R., 4 Q.B., 225) was also referred to. In bar to the action in that case for assault and false imprisonment of the plaintiff in the island of Jamaica, the defendant pleaded that since the matters complained of an act of indemnity had been passed by the legislature of Jamaica and assented to by the Crown, by which the defendant, the Governor of the Island, was indemnified in respect of all acts done in order to put an end to the rebellion, and such acts were made and declared to be lawful; and it was held that where the right of action in respect of an act otherwise wrongful was taken away before an action had been brought in England by a law binding where such act was done, no action could be maintained in England, and that the plea was therefore good_ This also was the case of a civil action. In Hart v. Gumpach (LR. 4 P.C , 439) which also was the case of a civil action, the Lords of the Privy Council said that the contention in that case that questions arising between officers in the service of a foreign Government ought not to be entertained by an English Court, although the litigants might be English subjects, was a contention which opened a question of great importance, but their Lordships thought that in that case the facts stated in the answer were insufficient to raise it. I may observe that in the cases of Regina v. Lesley and Dobree v. Napier, the Government of Chili on the one hand, and the Government of Portugal on the other, had not abandoned their territorial jurisdiction over British subjects as the Emperor of China has. In this case I fail to see that any of the authorities cited support the plea. In my opinion the demurrer must he allowed and an order made directing the accused to plead to the indictment. 
Date: 24 February 1881 
Coram:  Chief Justice French 
Mr. Francis, for the Acting Crown Advocate, for the prosecution 
Mr Hayllar for the prisoner 
The Defendant was on trial for murder and manslaughter allegedly committed during the course of his duties as an officer of the Chinese Government.  His immediate superior in the Chinese Customs Service was called to give evidence and asked to state what the Defendant had told him when he reported on the shooting. The Defendant objected to the question.   
His Lordship gave the following judgment: 
The question put to the witness on behalf of the Crown was "state to the Court and the Jury what Page, the prisoner, at the time said to you in answer to your question: 'give me your report of the business you were sent on'"  
The question was objected to on behalf of the prisoner, because, first it was said that the reply of the prisoner to such question was not made voluntarily; secondly, that the witness was privileged from answering it; and, thirdly, that the answer would lead to a disclosure of a secret of the Chinese Government.  
As to the first ground of objection, it is true that the reply was made in answer to a question which was put by the prisoner's superior officer, but it does not appear to me that, having regard to the circumstances under which the question was put, it would be excluded on that ground, because the reply does not seem to have been obtained under any inducement, threat, or promise held out to the prisoner by the person asking the question, although the person asking the question was the superior officer of the prisoner having authority over the prisoner.  
Then we come to the second ground of objection, and on this I refer to Roscoe's Evidence, by Sir Fitzjames Stephens' edition of 1858. The question is as to the nature of the privilege. There are several grounds on which a witness can claim privilege. First, on the ground of injurious consequences of a civil, of an ecclesiastical, or of a criminal kind. Now, it has not been argued that any such consequences would ensue to the witness. Then the question is whether it is to he excluded on the ground of confidence. This seems to relate only to professional confidence.  
Then, thirdly, comes the question of whether the witness is privileged on the ground of public policy. That seems to trench so closely on the third objection, namely, that the Answer would lead to the disclosure of a secret of the Chinese Government that it seems to me the two points must he considered at the same time. The third ground of objection under the second head is involved in the third head. In support of the contention on behalf of the prisoner, the case of Bestson and Skene, 29 LJ., Ex.. 430, was relied upon, and there it was said that the Court must he satisfied with the assertion of the right on behalf of the Government to entitle the witness to the privilege claimed. 
Now, in that case there is no doubt the majority of the Court seem to have been opposed to the views expressed by Mr. Baron Martin. It is said there-- "My brother Martin does not entirely agree with us as to the general view we have taken on this question. He is of opinion that whenever the judge is satisfied that a document may he made public without prejudice to the public service, the judge ought to compel its production notwithstanding the reluctance of the head of the department to produce it." And then the Lord Chief Baron goes on to say this- "And perhaps cases might arise where the matter would he so clear that the judge might well ask for it, in spite of some official scruples as to producing it, but this must be considered rather as an extreme case, and extreme cases throw very little light on the practical rules of law. "  
I am disposed to think that, having regard to the circumstances of this case and the nature of the objection made, and the reply -- having regard to all the circumstances of the case, that this is one of those cases where the matter appears to me to he so clear that I am well entitled to ask for it in spite of the alleged official scruples as to the inquiry being answered. I have been pressed, and pressed with great earnestness, by both the learned Counsel for the prisoner with reference to the injurious consequences that such a decision would entail upon foreigners engaged in the Chinese Customs service. The question is, of course, whether what I am doing is right or wrong. Of course if it is wrong it can be set right, I am very happy to say, but if the view I have expressed is right I am not at liberty to avoid the law in order to avoid a possible injury, even to a large body of gentlemen who are perfectly well-known to serve the Chinese Government most meritoriously. And so far from this decision being an injury to the Chinese Customs service, I believe it to be a benefit to it. The question is whether it is a benefit to those engaged in the service to feel that they have protection, and that they are protected against the wrongs of those who can have complaints made against them in a British Court of justice for wrongs done by them. If that be a disadvantage, of course that is one question, but if it be an advantage, as I conceive it to be, I think so far from its being attended with injurious consequences, it will be attended solely with advantageous consequences. I mention this. Really you may say it does not enter into the argument, but still it was advanced, and I merely notice it. Under those circumstances the objection is overruled. 

Published by Centre for Comparative Law, History and Governance at Macquarie Law School