Chow Hung Ching v The King

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.