Ibrahim v The King
| Jurisdiction | UK Non-devolved |
| Judge | Lord Sumner |
| Judgment Date | 06 March 1914 |
| Judgment citation (vLex) | [1914] UKPC J0306-1 |
| Court | Privy Council |
| Docket Number | Appeal No. 112 of 1913 |
| Date | 06 March 1914 |
[1914] UKPC J0306-1
Privy Council
Present at the Hearing:
The Lord Chancellor
Lord Moulton
Lord Atkinson
Lord Sumner
Lord Shaw
Delivered by Lord Sumner
The Appellant, Ibrahim, is a natural-born subject of the Ameer of Afghanistan, who was duly enlisted and enrolled on January 12th, 1911, in the 126th Regiment of Baluchistan Infantry at Quetta. He took the oath of allegiance to His Majesty and made a solemn declaration undertaking among other things to go wherever ordered by land or sea. On September 4th, 1912, he was a private serving with the detachment of that regiment which was encamped on Sha-mien or Shameen Island at Canton as guard of the Concession. On Shameen are situated the various European Settlements including the British. About 10.30 p.m. Subadar Ali Shafa, a native officer in the same regiment, was murdered. Ibrahim was charged with the crime, tried before the Supreme Court of Hong Kong, and convicted. He was sentenced to death, but sentence was respited pending the hearing of this appeal, which is brought by special leave in forma pauperis. His grounds are two: first, that the jurisdiction of the Court was not established, and, second, that there was a grave miscarriage of justice by reason of the misreception of evidence.
The jurisdiction of the Supreme Court of China and Corea is conferred by the Foreign Jurisdiction Act, 1890, and by the China and Corea Order in Council, 1904 and includes criminal jurisdiction. Article V. provides that:
"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."
By Article VI. it is provided that "all His Majesty's jurisdiction, exerciseable in China or Corea for the hearing or determination of criminal or civil matters, … shall be exercised under and according to the provisions of this Order in Council and not otherwise".
The contention, therefore, is that the jurisdiction of the Supreme Court, conferred by and only exerciseable in accordance with the Order in Council, was not shown to extend, and therefore for the purposes of this case, did not extend to Ibrahim, who is admittedly an Afghan and a subject of the Ameer.
Article III. of the Order defines a "British subject" thus:
"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, 1890, or otherwise, enjoys His Majesty's protection in China or Corea."
There was no evidence of any treaty or other instrument by which the Ameer had agreed with the Crown for the exercise by His Majesty of power or authority over his subjects; but it may be reasonably inferred from the practice of enlisting native Afghans in Indian native regiments, whereby they are de facto brought under the authority of His Majesty, a practice which is matter of public knowledge, that the Ameer does in fact consent to such enlistment with its consequences. Whether or not this suffices to bring such enlisted Afghans within the terms of Article V.(4) of the Order in Council, "foreigners, with respect to whom any State, King, Chief or Government whose subjects … they are … consents to the exercise of power or authority by His Majesty," it is not necessary for their Lordships now to determine.
The British Vice-Consul, who in September 1912 was also Acting Consul at Canton, is Judge of a Provincial Court, held at Canton under Article XIX. of the Order, which is a Court of Record, and by Article XXII. exercises "all His Majesty's jurisdiction, civil and criminal, not under this Order vested exclusively in the Supreme Court". He was called as a witness at Ibrahim's trial and deposed that the place of the murder was entirely within his jurisdiction; that the jurisdiction exercised at Canton on Shameen is the same exterritorial jurisdiction as is exercised throughout China by the Supreme Court; that it is still in force; that "the Indian soldiers enjoy His Majesty's protection in Shameen, Canton, and the Court exercises jurisdiction over them"; and that "consular protection extends to trying persons and protecting them if they are improperly arrested". This evidence was not modified under cross-examination or contradicted in any way by evidence for the defence. The witness went on to say that he conducted the preliminary examination in this case and considered it expedient that the case should be sent for trial to Hong Kong (an opinion in which Major Barrett, commanding the detachment, concurred), thus satisfying the provisions of Article L. of the Order with regard to the transfer of the case from Shameen to Hong Kong.
Their Lordships are of opinion that s.4(1) of the Foreign Jurisdiction Act, 1890, does not prevent this evidence from being admissible upon the question and that in the absence of contradiction and of any grounds for real doubt, this evidence by itself satisfied all the conditions of proof requisite to establish the jurisdiction of the Supreme Court at Hong Kong. It shows that, by "usage, sufferance or other lawful it means", His Majesty has jurisdiction at Canton; that it in fact extends to persons of the class to which Ibrahim belongs; that in the case of Ibrahim himself it was exercised, so far as the preliminary examination went; and that its exercise, both generally and in this particular case, was suffered by the Chinese authorities holding office de facto, and that they made no objection. Incidentally it disposes of a point taken in argument, that whatever jurisdiction may have been ceded, agreed or suffered by the Imperial Government of China, it could not be deemed to persist by sufferance or otherwise since recent changes in the constitution and form of government of China took place. Even if such change had been proved, as it was not, or even if the Court could under the circumstances in any way take judicial notice of a political change in a neighbouring State, this evidence was sufficient to show that no change in the exercise of the jurisdiction and no diminution of the usage or the sufferance of it had occurred. It was suggested that the Vice-Consul was not testifying to the exercise of jurisdiction and sufferance thereof in fact, but was only expressing his opinion that jurisdiction ought to extend to such a case as lbrahim's, which he said was the first case committed to the Supreme Court from Canton. The judges of the Supreme Court, on the hearing of the points reserved to the Full Court, did not so take it, neither do their Lordships, and were it not for the gravity and importance of the case they would not think it necessary to pursue this question of jurisdiction further.
Was Ibrahim a British-protected person because, "by virtue of the Foreign Jurisdiction Act, or otherwise he enjoys His Majesty's protection in China"? The words "or otherwise" must at least include the operation of other statutes, Imperial or Indian, applicable to the person in question, and the various legislative provisions referred to in the elaborate and valuable judgments in the Court below amply establish that, after enrolment and during service in the Indian Army, Ibrahim was a soldier of the Crown and subject to military law while stationed at Shameen. That being so, their Lordships think that it needs no express provision to entitle him to His Majesty's protection. When the Crown lawfully enlists in its forces aliens along with British subjects and requires of them the same service, loyalty and allegiance as are the duties of British enlisted subjects, it extends to them the same protection in a foreign country, where all are serving together in the armed forces of His Majesty. Their Lordships are clearly of opinion that Ibrahim as of right "enjoyed His Majesty's protection" in China, and in virtue thereof was subject also to the jurisdiction of the Supreme Court of China.
Lastly, under this head reliance was placed on the words "and not otherwise" in Article V.(3) of the Order. These words do not import that, if a person is in fact a foreigner, he can only be brought under the jurisdiction set forth in the Order "in the cases and according to the conditions specified therein". They are not words limiting other provisions by which a person is clearly brought within the jurisdiction. They mean that when a "foreigner", as such, is to be brought within the jurisdiction, he can be so dealt with only in the cases and according to the provisions specified, but when a person is brought under the jurisdiction as "a British-protected person", and the fact that he is a foreigner is only accidental, the limitation contained in the words "and not otherwise" in Article V.(3), does not apply.
Their Lordships think it unnecessary further to pursue the points argued as to the necessity for proof of the Treaty of Tientsin, 1858; the validity of the proof of the Indian Army Act, 1911 (which, for reasons hereinafter appearing, is so formal a matter as to be immaterial on the present appeal); the conditions under which the Crown may enlist aliens in its Indian forces; and the effect of the preamble and recitals in the China and Corea Order...
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