Ibrahim v R
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1914 |
| Date | 1914 |
| Court | Privy Council |
Criminal Law - Jurisdiction in China - Afghan enlisted in Indian Regiment - British Subject -
The appellant, who was a subject of the Ameer of Afghanistan, was enrolled as a private in the 126th Baluchistan Infantry and made an affirmation of allegiance. On September 4, 1912, while he was serving with a detachment of that regiment on Shameen Island at Canton, a native officer of the regiment was murdered; the appellant was taken into custody on the spot and charged with the murder. Under a warrant issued by a judge of His Majesty's Supreme Court for China, he was removed to Hong Kong, where he was tried by the Supreme Court of that Colony and a jury, and upon conviction was sentenced to death. The jurisdiction of the Supreme Court of China and Corea includes criminal jurisdiction and is conferred by the Foreign Jurisdiction Act, 1890, and the China and Corea Order in Council, 1904. Art. V. of that Order provides as follows: “the jurisdiction conferred by this Order extends to the persons and matters following, in so far as by treaty, grant, usage, sufferance or other lawful means, His Majesty has jurisdiction in relation to such matters and things, that is to say: (1.) British subjects, as herein defined, within the limits of this Order; …. (3.) foreigners, in the cases and according to the conditions specified in this Order and not otherwise; (4.) foreigners, with respect to whom any State, King, chief or government, whose subjects or under whose protection they are, has, by any treaty as herein defined or otherwise, agreed with His Majesty for, or consents to the exercise of power or authority by His Majesty.” Art. III. provides that “British subject includes a British-protected person, that is to say, a person, who either (a) is a native of any protectorate of His Majesty and is for the time being in China or Corea, or (b) by virtue of the Foreign Jurisdiction Act or otherwise, enjoys sis Majesty's protection in China or Corea.” Art. L. provides that “where a British subject is accused of an offence the cognizance of which appertains to any Court established under this Order, …. he may be sent for trial to Hong Kong or to Burma.”
At the trial uncontradicted evidence was given that the jurisdiction exercised at Canton on Shameen was the same exterritorial jurisdiction as is exercised throughout China and Corea under the Order in Council, that soldiers in Indian regiments enjoy the protection of His Majesty on Shameen, and that the Court exercises jurisdiction over them. The evidence of the officer in command of the detachment was admitted that ten or fifteen minutes after the murder he said to the appellant, who was then in custody, “Why have you done such a senseless act?” to which the appellant replied, “Some three or four days he has been abusing me; without a doubt I killed him.” There was a body of other evidence which clearly established the guilt of the appellant, and rendered it very improbable that a jury would have acquitted him if his confession had been excluded:—
Held, (1.) that the evidence established that “by usage, sufferance or other lawful means” His Majesty has jurisdiction at Canton, and that the appellant was a British subject within art. III. of the Order; (2.) that the jurisdiction was not prevented from extending to the appellant as a British subject within art. III. by the words “and not otherwise” in art. V. (3.); (3.) that the Court was not precluded from hearing the evidence which established its jurisdiction by reason of the Foreign Jurisdiction Act, 1890, s. 4, which provides for the decision of a Secretary of State upon the application of the Court; (4.) that the appellant's confession was a voluntary statement in the sense that it was not made either from fear of prejudice or hope of advantage, and that, even if it was inadmissible in evidence upon the ground that it was made by him in answer to his officer in whose custody he was (as to which the law was not settled), its admission, having regard to the other evidence given and to the circumstances of the case, was not such a violation of the principles of natural justice as entitled the appellant, according to the practice of the Board, to have his conviction set aside.
The authorities as to the admission in evidence of a statement made by a prisoner in reply to a person in whose custody he is reviewed.
APPEAL, in forma pauperis by special leave, from a judgment of the Supreme Court of Hong Kong (December 16, 1912) affirming a conviction of the appellant for wilful murder and sentence of death pronounced by the Chief Justice.
The appellant, a natural-born subject of the Ameer of Afghanistan, was enrolled in 1911 as a private in the 126th Baluchistan Infantry, a regiment of His Majesty's Indian forces. After his enrolment the appellant made an affirmation of allegiance to His Majesty and that he would faithfully serve in those forces. On September 4, 1911, he was serving with a detachment of his regiment on Shameen Island at Canton, when Ali Shafa, a subadar or company commander in the regiment, was murdered by being shot with a rifle. The appellant was arrested on the spot and charged with the murder.
A preliminary inquiry took place before the judge of the Provincial Court at Canton, and on September 18, 1912, a judge of the Supreme Court for China and Corea issued a warrant for the removal of the appellant to Hong Kong for trial by the Supreme Court of that Colony. The jurisdiction of the Supreme Court for China and Corea is conferred by the China and Corea Order in Council, 1904, made under the Foreign Jurisdiction Act, 1890 (53 & 54 Vict. c. 37), s. 9. The extent and nature of the jurisdiction appear from arts. III. and V. set out in the headnote. The appellant was sent for trial to Hong Kong under art. L., and the jurisdiction of the Provincial Court at Canton rests upon art. XIX. of the Order.
An indictment was preferred against the appellant by the Attorney-General of Hong Kong charging him with the murder, and he was tried before the Chief Justice and a jury on October 21, 22, 23, and 24, 1912, but the jury failed to agree and was discharged. The appellant was tried a second time before the Chief Justice and a jury on November 18, 19, 20, 21, and 22, 1912, and the jury returned a unanimous verdict of guilty. Sentence was postponed pending the hearing by the Full Court of the Supreme Court of points as to the jurisdiction of the Court raised at the trial. On November 25, 1912, these points were argued before the Full Court (Rees Davies C.J. and Gompertz J.) and judgment was delivered affirming the conviction.
On December 16, 1912, the Full Court dismissed an application for a rule nisi for a habeas corpus and a motion to arrest judgment, and the Chief Justice sentenced the appellant to death, The sentence was respited, in the event of leave to appeal being granted, until His Majesty's pleasure should be known. Special leave to appeal in forma pauperis was granted by the Board.
At the trial the Order in Council was put in evidence and the warrant proved; the British Vice-Consul at Canton gave evidence that the place of the murder was within his jurisdiction as judge of the Provincial Court established at Canton under the Order in Council; that the jurisdiction exercised at Canton on Shameen is the same exterritorial jurisdiction as is exercised throughout China by the Supreme Court; that soldiers in Indian regiments enjoy His Majesty's protection in Shameen, and that the Court exercises jurisdiction over them. This evidence was not modified upon cross-examination or contradicted.
The evidence of Major Barrett, the commanding officer of the detachment on Shameen, was admitted at the trial to the effect that within ten or fifteen minutes of the murder, the appellant being then in custody of the guard, he said to the appellant, “Why have you done such a senseless act?” to which the appellant replied, “Some three or four days he has been abusing me; without a doubt I killed him.”
There was, in addition, a body of evidence, referred to in their Lordships' judgment, as to the circumstances of the murder which clearly established the guilt of the appellant.
Romer Macklin, for the appellant. There was no evidence given at the trial of any “treaty, grant, usage, sufferance or any other lawful means,” which could establish the jurisdiction of the Supreme Court of China and Corea under art. V of the Order in Council: Imperial Japanese Government v. Peninsular and Oriental Steam Navigation Co.F1 The evidence given by the Vice-Consul did not prove that the jurisdiction was exercised by sufferance, it amounted only to an expression of opinion that jurisdiction existed. Further, the jurisdiction having been questioned at the trial, its existence could not be validly proved by the admission of evidence, but only in the manner provided by s. 4 of the Foreign Jurisdiction Act, 1890, namely, by application to a Secretary of State. The appellant is a foreigner and a subject of the Ameer of Afghanistan. There was no evidence of any agreement with the Ameer, by treaty or otherwise, which would bring the appellant within the category of foreigners to whom the jurisdiction extends under art. V. (4.). The appellant was not a British subject within the definition contained in art. III., but even if he came within the terms of that definition as a person enjoying His Majesty's protection in China, the jurisdiction under the Order in Council did not extend to him, since he was a foreigner, and under art. V. (3.) the jurisdiction...
To continue reading
Request your trial
-
Patricia Henry v R
...and Mr. Tomlinson. In support of these submissions, Mr. Senior-Smith referred us to a trio of well known cases on confession evidence, Ibrahim v R [1914] AC 599, Deokinanan v The Queen [1969] AC 20 and Director of Public Prosecutions v Ping Lin [1976] AC 574. 24On ground two, Mr. Senior-S......
- Shivnarine and another v The State
- Dato' Mokhtar Hashim and Another v Public Prosecutor
- Aziz Muhamad Din v Public Prosecutor
-
Indexes
...240,243,250Howlin vMorris [2006] 2IR 321 . . . . . . . . . . . . 341Huntley vCage 123 ER787 . . . . . . . . . . . . . . . . 107Ibrahim vR [1914] AC599 . . . . . . . . . . . . . . . . . 135International Finance Trust Co Ltd v New SouthWales Crime Commission (2009) 240 CLR319 . . . . . . . . ......
-
Subject Index
.... . . . . . . . 284,286Hui Chi-mingv R [1992]1 AC 34. . . . . . . . . . . . . 54Hunt vT & Nplc (1995) 4BCLR (3d) 110,BC . . 238Ibrahim vR [1914] AC599 . . . . . . . . . . . . . 230,231Ikarian Reefer, The see National JusticeCompania v Prudential AssuranceInterporc v Commission (Case T–92/98......
-
Table of Cases
.... . . . . . . . . . . . 251Hoskyn v Metropolitan Commissioner[1979] AC 474. . . . . . . . . . . . . . . . . . . . . . . . .337Ibrahim v R [1914] AC 599, PC . . . . . . . . . 231–232Idaho v Wright, 497 US 805 (1990). . . . . . . . . 219Irvine v California, 374 US 128 (1954) . . . . . . 211Ja......
-
Public policy and private illegality in the pursuit of evidence
...Connolly M, 4 September 1998); Southern Equities Corporation Ltd (in liq) vBond (No. 2)(2001) 78 SASR 554 at 567–571; contra,Ibrahim vR[1914] AC 599 at 610; Helliwell vPiggott-Sims [1980] FSR 582.59. (2000) 77 SASR 24.60. RvLobban (2000) 77 SASR 24 at [40].61. Ibid. at [40].Caruso 99 If cou......