Lord Sumner:-

The Appellant, Ibrahim, is a natural-born subject of the Ameer of Afghanistan, who was duly enlisted and enrolled on 12th January, 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 4th September, 1912, he was a private serving with the detachment of that regiment which was encamped on Shamien 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 purpose 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