RESPONDENT. High Court-Jurisdiction-Appeal from Supreme Court of Territory of Papua-
New Guinea-Appeal as of right-Papua-New Guinea Provisional Adminis- tration Act 1945-1946 (No. 20 of 1945-No. 77 of 1946), S. 16-New Guinea Act 1920 (No. 25 of 1920), S. 14-Judiciary Ordinance 1921-1938 (No. 3 of 1921-No. 2 of 1938) (N.G.), S. 24. Public International Law-Immunity from local criminal jurisdiction of foreign
armed forces present, with consent of Commonwealth, within its territory- Members of labour corps, subject to military discipline, but not part of armed forces.
In 1948 there were present on Manus Island (in the mandated Territory of New Guinea) some 300 Chinese nationals, sent there to collect surplus war supplies sold to the Republic of China by the United States of America. The body included Army personnel and labourers. There was evidence that they were subject to military discipline, exercised by officers of the Chinese Army, and that they were subject to Chinese military law. They did not carry arms. The Army personnel acted as guards and the labourers as workmen. Two labourers, members of this body, were charged in the Supreme Court of the Territory of Papua-New Guinea with having assaulted a native of the island and were convicted. They sought to appeal to the High Court.
The nature and extent-according to the rules of international law as recognized by the common law-of the immunity from local jurisdiction of members of military forces of a friendly Power entering the Commonwealth by agreement, discussed.
The Schooner Exchange v. M' Faddon, (1812) 11 U.S. 116, at p. 146 [3 Law. Ed. 287, at p. 297], Chung Chi Cheung v. The King, (1939) A.C. 160, and Wright v. Cantrell, (1943) 44 S.R. (N.S.W.) 45, discussed.
Decision of the Supreme Court of the Territory of Papua-New Guinea (Phillips J.) affirmed.
APPLICATIONS for leave to appeal and APPEALS from the Supreme Court of the Territory of Papua-New Guinea.
Chow Hung Ching and Si Pao Kung (hereinafter called the appellants) were members of a body of Chinese nationals, recruited in China and subject to Chinese military law, who were sent to Manus Island, in the Territory of New Guinea, to collect surplus war supplies which had been sold by the United States of America to the Republic of China by an agreement made in 1946. The constitution of this body is described in greater detail in the judg- ments hereunder.
The appellants were convicted in the Supreme Court of the Territory of Papua-New Guinea on charges that, on or about 25th January 1948, at Manus, (1) they unlawfully assaulted one Pon- dranei and thereby did him bodily harm, and (2) they unlawfully detained Pondranei in a hut against his will. Each of them was sentenced to three-months' imprisonment on the first charge and six-months' imprisonment on the second charge, the sentences to be concurrent.
They applied for leave to appeal, and, alternatively, sought to appeal as of right, to the High…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Chow Hung Ching v The King [1948] HCA 37
Case
[1948] HCA 37
Decision Date
CaseChat Overview and Summary
The appellants, Chow Hung Ching and Si Pao Kung, were convicted in the Supreme Court of the Territory of Papua-New Guinea for assault and unlawful detention of a native. They were members of a group of Chinese nationals present on Manus Island to collect surplus war supplies, who were subject to Chinese military law and discipline. The appellants sought to appeal their convictions to the High Court, arguing that they were immune from local criminal jurisdiction as members of a foreign military force present with the Commonwealth Government's consent.
The High Court was required to determine two primary legal issues: first, whether the appellants had a right of appeal to the High Court as of right or only by leave, and second, whether the appellants, as members of the Chinese contingent on Manus Island, were entitled to immunity from the criminal jurisdiction of the Supreme Court of the Territory of Papua-New Guinea. The appellants contended that their presence on the island, with the consent of the Commonwealth Government, implied a waiver of local jurisdiction over them, based on principles of international law concerning visiting forces.
The Court reasoned that the Papua-New Guinea Provisional Administration Act 1945, by establishing a new Supreme Court and providing for appeals to the High Court under section 16(9) without prescribing conditions for leave, conferred a right of appeal as of right. Regarding the immunity claim, the Court considered the principles of international law as adopted by Australian municipal law, referencing cases such as *The Schooner Exchange v. M'Faddon* and *Chung Chi Cheung v. The King*. The Court distinguished between visiting ships of war and land forces, noting that immunity for land forces is not presumed and depends on the specific terms of consent. Crucially, the Court found that the Chinese contingent, despite being subject to some military discipline and having officers with military rank, were not established to be members of an armed force in the relevant sense. They were described as "labourers" and "workmen" employed by the Board of Supplies, and their alleged offences had no relation to military activities or discipline. Therefore, the Court concluded that the appellants had not demonstrated that they were members of a foreign armed force entitled to immunity from local jurisdiction.
The appeals were dismissed. The High Court affirmed the decision of the Supreme Court of the Territory of Papua-New Guinea, finding that the appellants had failed to establish their entitlement to immunity from local criminal jurisdiction. The Court also indicated that there was no reason to interfere with the sentences imposed by the trial judge.