Chung Chi Cheung v R - case PDF

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Public international and municipal law Customary international law in municipal law

Chung Chi Cheung v. R [1939] AC 160 (Privy Council) A criminal offence committed by a member of the crew on board and internal to a foreign armed public ship in the territorial waters of a coastal state is an offence committed in and subject to the jurisdiction of the coastal state. However, under customary international law recognised in the municipal law of the coastal state, the offender may be entitled to immunity from jurisdiction unless immunity is waived by the state to which the ship belongs. Background Chung Chi Cheung, the appellant in the Privy Council, was a member of the crew of a foreign armed public ship, the Chinese Maritime Customs cruiser, “Cheung Keng”. In January 1937, while the ship was in the territorial waters of Hong Kong, a British crown colony, the appellant shot and killed the captain of the ship. In respect of this offence, the appellant was convicted of murder by the Supreme Court of Hong Kong after the Chinese government waived any immunity from jurisdiction to which the appellant may have been entitled. On appeal to the Privy Council, the appellant contended that, as a member of the crew of a foreign armed public ship, he was not subject to the jurisdiction of the Supreme Court of Hong Kong. Disposition Under customary international law, a foreign armed public ship in the territorial waters of a coastal state is not a part of the territory of the state to which the ship belongs. A criminal offence committed on a foreign armed public ship in the territorial waters of a coastal state is an offence committed in and subject to the jurisdiction of the coastal state. In this regard, the supposed theory (“extraterritoriality”) that a foreign armed public ship is a “floating island” of the state to which the ship belongs is a fiction which must be rejected. Brierly’s Law of Nations, 1928, p 110 approved. In the present case, any immunity from jurisdiction to which the appellant may have been entitled under customary international law as a member of the crew of a foreign armed public ship had been waived by the Chinese government. Accordingly, the appellant had properly been convicted of murder by the Supreme Court of Hong Kong. Judgment extract In the course of considering the immunity from jurisdiction of foreign armed public ships, LORD ATKIN (who delivered the judgment of the Privy Council) made the following observations on the relationship between customary international law and municipal law: [167] It must be always remembered that, so far, at any rate, as the Courts of this country are concerned, international law has no [168] validity save in so far as its principles are accepted and adopted by our own domestic law. There is no external power that imposes its rules upon our own code of substantive law or procedure. The Courts acknowledge the existence of a body of rules which nations accept amongst themselves. On any judicial issue they seek to ascertain

2 what the relevant rule is, and, having found it, they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals. [After referring with approval to the decision of the Supreme Court of the United States in Schooner Exchange v. M’Faddon (1812) 7 Cranch 116, where the Court recognised the immunity from jurisdiction under customary international law of an armed public ship of the Emperor of the French which had entered the port of Philadelphia under stress of weather and, after referring with approval to remarks of Professor Brierly in The Law of Nations, 1928, p 110, his Lordship continued.] [175] The true view is that, in accordance with the conventions of international law, the territorial sovereign grants to foreign sovereigns and their envoys, and public ships and the naval forces carried by such ships, certain immunities. … The sovereign himself, his envoy, and his property, including his public armed ships, are not to be subjected to legal process. These immunities are well settled. In relation to the particular subject of the present dispute, the crew of a warship, it is evident that the immunities extend to internal disputes between the crew. Over offences committed on board ship by one member of [176] the crew upon another, the local Courts would not exercise jurisdiction. … [However, in the present case] it appears to their Lordships as plain as possible that the Chinese Government…consented to the British Court exercising jurisdiction. … Appeal dismissed

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