CHINA ORDER IN COUNCIL

CHINA ORDER IN COUNCIL

2,0HINA ORDER IN OOUNOIL.

At the Court at Butekingliain Palace, 24th October, 1904.
PRESENT:
The King's Most Excellent Majests.

by Treatv, grant, usage, sulferance, and other lawful ineans,
His Majesty the King has jurisdiction ivithin the doniinions of the
Emperor of China:
NOW, THEREFORE, His Majesty, by virtue and in exercise of the Powers
in this behalf by the Foreign Jurisdiction Act, 1890, or otherwise in His
Majesty vested, is pleased, by and with the advice of his Privy Council,
to order, and it is hereby ordered, as follosys:-
PART I-PRELIMINARY AND GENERAL.

2. The limits of this Order are the dominions of the Emperor of
China, including the territorial ivaters of those dominions respectivel ' s ;
but, except as provided in this Order, the said limits do not include places
within the limits of the Wei-Flai-Wei Order in Council, 1901.
3. In. the construction of this Order the following words and expres-
sions have the meanings hereby assigned to them, unless there be some-
thing in the subject or context repugnant thereto, that is to say:-
' Administration ' means letters of administration including the same
with will annexed or granted for special or limited purposes, or limited
in duration.
' British ship ' means a merchant-ship being a British ship within
the meaning of the Merchant Shipping Act, 1894, and includes any ship
provided with sailing letters front the Governor of Hongk-ong, or from
His Majesty's Minister in China.
'British possession' means any part of His Majesty's dominiion ex-
clusive of the United Kingdom.
' 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 thne being in China; or (b) by virtue of section 15 of the
Foreign Jurisdiction Act, 1890, or otherwIse, enjoys His Majesty's protee-
tion in China.
' China ' means so much of the Empire of China as is within the
limits of this Order.
' Consular district ' means the district in and for which a Consular
officer usualIv acts, or for which he may be authorised to act, for all or
any of the purposes of this Order by authority of the Secretary of State.

The references in this Order to Corea are omitted,





Consular officer' means a Consul-General, Consul, Vice-Consul,
Consular Agent, or Pro-Consul of His Majesty resident in China, includ-
ing a person acting temporarily, with the approval of the Secretary of
State, as or for a Consul-General, Consul, Vice-Consul, or Consular Agent
of His Majesty so resident.
' Commissioned Consular officer ' means a Consular officer holding a
commission of Consul-General, or Vice-Consul from His Majesty, includ-
ing a person acting temporarily, with the approval of the Secretary of
State, or of His Majesty's Minister in China, as or for such a commis-
sioned Consular officer.
Consulate ' and ' Consular office ' refer to the Consulate and office
of a Consular officer.
' The Court ', except wben the reference is to a particular Court,
means any Court established under this Order, subject, however, to the
provisions of this Order with respect to powers and local jurisdictions.
' Foreigner' means -a subject or citizen of a State in amity with His
Majesty, including China.
'Judge', except where the context intends a reference to the Judge
of the Supreme Court only, includes Assistant Judge, and, except where
the context intends a reference to the Supreme Court only, includes the
officer for the time being-holding a Provincial Court.
LeYal practitioner ' includes barrister-at-law, advocate, solicitor,
writer to the Signet, and ally person possessing similar qualifications.
Lunatic ' means idiot or person of unsound mind.
'Master', with respect to any ship, includes every person (except a
pilot) having command or charge of that ship.
'Minister' mean His Majesty's Minister in China and includes
Charge d'Affaires or other chief Diplomatic Representative.
Month ' means calendar month.
Oath ' and ' affidavit ', in the case of persons for the time being
allowed- by law to affirm or declare, instead of swearing, include affirma-
tion and declaration, and the expression ' swear ', in the like case,
includes affiral and declare.
' Offence ' includes crime, and any act or omission punishable criminal-
ly in a summary way. or otherwise.
'Person ' in eludes corporation.
'Prescribed ' means prescribed by Regulations, or Rules of Court.
' Prosecutor' means complainant or any person appointed. or allowed
by the,Court to prosecute.
1 ' Proved ' means shown by evidence on oath, in the form of affidavit,
or other form, to the satisfaction of the Court or Consular officer acting
or having jurisdiction in the matter; and 'proof ' means the evidence
adduced in that behalf,





' Rules of Court ' means Rules of Court made under the provisions
of this Order.
' Secretary of State ' means one of His _Majesty's Principal Secretaries
of State.
' Ship ' includes any vessel used in navigation, however propelled,
with her tackle, furniture, and apparel, and any boat or other craft.
' The Treasury ' means the Commissioners of His Majesty's Treasury.
' Treaty ' inclu des any Convention, Agreement, or Arrangement, made
'by or on behalf of His Majesty with any State, or Government, whether
the Government of China is a party thereto or not.
' Will ' means will, codicil, or other testamentary instrument.
Expressions used in any rules, regulations, or orders made under this
Order shall, unless a contrary intention appears, have the same respective
meanings as in this Order.
4.--(1) In this Order, words importing the plural or the singular may
be construed as referring to one person or thing or to more than one
person or thing, and words importing the masculine as referring to the
feminine (as the case may require).
(2) Where this Order confers any power or imposes any duty, then,
unless a contrary intention appears, the power may be exercised and the
duty shall be performed from time to time as oecasion requires.
(3) Where this Order confers a power, or or imposes a duty on, or with
respect to, a holder of an office, as such then, unless a contrary intention
appears, the power may be exercised and the duty shall be performed
by, or with respect to, the holder for the time being of the office or the
person temporarily actin- for the holder.
(4) Where this Order confers a power to make any rules, regulations,
or orders, the power shall, unless a contrary intention appears, be
construed as including a power exercisable in the like manner and subject
to the like consent and conditions, if any, to rescind, revoke, vary, or
amend the rules, regulations, or orders.
.' (5) This Article shalt apply to the construction of any rules, regulations,
or orders made under this Order, unless a contrary intention appears.
5. 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 subh.
matters and things, that is to say:-
(1) British subjects, as herein defined, within the limits of this
Order,
(2) The property and all personal or proprietary rights and liabilities
within the said limits of British subjects, whether such subjects are
within the said limits or not.
(3) Foreigners in the cases and according to the conditions specified in
the Order and not otherwise,





(4) Foreigners, with respect to whom any State, King, Chief, or
Government, whose subjects, or tinder 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.

(5) British ships with their boats, and the persons and property on
board thereof, or belonging thereto, being within the limits of this
Order.
6. All His Majesty's jurisdiction exercisable in China for the hearing
and determination of criminal or civil matters, or for the maintenance of
order, or for the control or administration of persons or property, or in
relation thereto, shall be exercised under and according to the provisions
of this Order, and not otherwise.

29. Any of His Majesty's Courts in China may cause any suninions,
order, or judgment issuing from the Supreme Court of Hongkong, inany
civil proceeding, and accompanied by a request in writing under the seal
of that Court, to be served in China or Corea.

50. Where a British subject is accused of an offence the con-Inizance
whereof appertains to ally Court established tinder this Order, and it is
expedient that the offence be inquired of, tried, determined, and punished
in a British possession, the accused may (under the Foreign Jurisdiction
Act, 1890, section 6) be sent for trial to Hongkong or to Burnia; and the
Supreme Court of Hongkong and the Sessions Court at Mandalas- shall
respectively be the authorised Courts for the purposes of that enactment.

The Court may, where it appears so expedient, by warrant under the
hand of a Judge and the seal of the Court, cause the accused to be sent
for trial to Hongkong or to Mandalay accordingly.

'The warrant shall be sullicient authority to any person to whom it is
directed to receive and detain the person therein named, and to carry
him to and deliver him up at Hongkong or Mandalay, according to the
warrant.
Where any person is to be so sent to Hongkong or to Burma, the Court
before which he is accused shall take the preliminary examination, and,
if it seems necessary and proper, shall bind over such of the proper
witnesses as are British suojects in their own recognizances to appear
and give evidence on the trial.
51.-(1) If a British subject, having appeared as prosecutor or witness
at. a preliminary examination, refuses to enter into a recognizance to
appear at the trial to prosecute or give evidence, the Court may send him
to prison, there to remain until after the trial, unless in the meantime lie
caters into a recognizance.





(2) But if afterwards, from want of sufficient evidence or other cause
the accused is discharged, the Court shall order that the person imprisoned
for so refusing be -also discharged.
(03) Where the prosecutor or witness is not a British subject, the Court

may require. him either to enter into a recognizance or to give other
security for his attendance at the trial, and if he falls to do so may in its
discretion dismiss the charge.
52. Subject to Rules of Court made under this Order, the Court may
order payinent of allowances in respect of their reasonable expens es to
any complainant or witness attending before the Court on the trial of any
criminal case by a jury or with assessors, and also to jurors, assessors,
interpreters, medical practitioners, or other persons employed in or in
connection with criminal cases.

66.-(1) Where an offender is sentenced to imprisonment, and the
Supreme Court thinks it expedient that the sentence be carried into
effect within His Majesty's dominions, and the ofielider is accordingly
under section 7 of the Foreign Jurisdicton Act, 1890, sent for imprison-
ment to a place in His Majesty's dominions the place shall be elther
Hongkong, or a place in sonie other part of His Majesty's dominions, the
Government whereof consents that offenders may be sent thither under
this Article.
(2) The. Suprerne Court may, by warralit under the hand of a Judge
and the seal of the Court, cause the offender to be sent to Hongkong,
or other such place as aforesaid, in order that the sentence may be there
carried into effect accordingly.
(3) The warrant. shall be sulficient authority to any person to whoin it
is directed to receive and detain the person therein named, and to carry
him to and deliver him up at the place nanied, according to the warrant.

Autliority within 100 miles of coast.
80.-(1) Where a British subject, being in China, is charged with
having committed, either before or after the commencement of this Order,
any offence within a British ship at a distance of not niore than 100 miles
from the coast of China, or within a Chinese ship at such a distance as
aforesaid, or within a ship notentitled to claim the protection of
the flag of any State, at such. a distance as aforesaid, ally of His Majesty's
Courts in China within the jurisdiction whereof he is found may cause
him to be apprehended and brought before it, and may take the prelim-
inary examination and commit him for trial.
(2) If the Court before which the accused is brought is- a Provincial
Court, the Court shall report to the Supreme Court the pendency of tho
case.





The Suprellic Court shall thereupon direct in what mode, and where
the case shall be heard and determined, and (notivithstanding anything
in this Order) the case shall be sn heard and determined accordingly
(3) The provisions of this Order relative to oFtelices, and proceedings
in criminal matters, shall in all respects, as far as may be, extend and
apply to every such case, in like manner as if the offence had been com-
mitted in China.
81. Where a British subject, being in llon gkong, is charged with hay-
ing committed, either before or after the commencement of this Order,
any crime or offence within any British or Chinese ship at such a distance
as aforesaid, the Supreme Court at Flongkong shall have and inaY exercise
authority and jui.isdiction with respect to the crirne or offence as fully as
if it had been committed in Hongkong.
82. His Majesty's Minister in China, all Judge of the Supreme Court,

any Consular officer in China, or the Governor of Hongkong, on receiving
satisfactory information that any soldier, sallor, marine, or other person
belonging to any of His Alajest's military or naval forces, has deserted
therefrom, and has concealed himself in any British ship at such a dis-
tance as aforesaid, may, in pursuance of such information, issue his
warrant for a search after and apprellensioll of such deserter, and oil
being satisfied on investigation lhat any persoli so apprehended is such a
deserter, shall cause him to be, with all convenient speed, taken and
delivered over to the nearest military station of His Majesty's forces, or
to the officer in conlinand of a ship of war ol His Majesty serving in
China as the case may require.

Deportation

83.-(1) Where it is proved that there is reasonable ground to appre-
hend that a British subject is about to commit a breach of the public
peace-or that the acts or conduct of a British. subject are or is likely to
produce or excite to breach of the public peace-the Court may, if it
thinks fit, cause him to be brought before it ' and require him to give
security to the satisfaction of the Court, to keep the peace, or for his
future good behaviour, as the case may require.
(2) Where a British subject is convicted of all offence before the Court
the Court may, if it thinks fit, require him to give security to the satis-
faction of the Court for his future good behaviour, and for that purpose
may (if need be) cause him to be brought before the Court.
(3) In either of the foregoing cases, if the person required to give
security fails to do so, the Court may order that he be deported from
China to such place as the Court directs.
. (4) The place shall be a place in seine part (if ally) of His Majesty's
dominions to which the person belongs, or the Government of which con-
rents to the reception of persons deported under this Order.





(5) A Provincial Court shall report to the Supreme Court any order of
deportation made by it and the grounds thereof, before the order is
executed. The Supreme Court may reverse the order, or may confirm it
with or without variation, and in case of confirmation, shall direct it to
be carried into effect.
(6) The person to be deported shall be detained in custody until a fit
opportunity for his deportation occurs.
(7) He shall, as soon as is practicable, and in the case of a person
convicted, either after execution of the sentence or while it is in course
of execution, be embarked in custody under the warrant of the Supreme
Court on board one of His Majesty's ships of war, or, if there is no such
ship available, then on board any British or other fit ship bound to the
place of deportation.
(8) The warrant shall bc sufficient authority to the commander or
master of the ship to receive and detain the person therein named, and
to carry him to and deliver any up at the place namaed according to the
Warralit.
(9) The Court may order the person to be deported -to pay all or any
part of the expenses of his deportation. Subject thereto, the expenses
of deportation shall be defrayed in such manner as the Secretary of
State, with. the concurrence of the Treasury, may direct.
(10) The Supreine Court shall forthwith report to the Secretary of
State any order of deportation made or confirnied by it and the grounds
thereof, and shall also inform His Majesty's Minister in China.
(11) If any person deported under this or any fornier Order returns
to China -without perinission in writing of the Secretary of State (which
permission the Secretary of State may give), he shall be deemed guilty of
a grave offence against this Order; and lie shall also be liable to be
forthwith again deported.

[Order in Council, 11th February, 1907.]

84. Where any persen is deported to any place to which lie
can most conveniently be sent through Hongkong, and it is neces-
sarY to land arid trarisship him at Hongkong, lie shall, on his
arrival there, be delivered, with the warrant under which lie is
deported, into the custod of a Magistrate of Police at Hongkone,

who, on receipt of the person deported and of the warrant, shall
detain him, and shall forthwith report the case to the Governor of
Hongkong, who shall, by warrant, cause the person so deported
to be detained in custody until a convenient opportunity occurs
for sending him to the place to which he has been deported, and
shall then send him to that place.





Fugitive Offenders. '
88. The Fugitive Offenders Act, 1881, and the Colonial Prisoners
Removal Act, 1884, shall apply to China as if that place were a British
possession and part of His Majesty's dominions
Subject as follows
(a) His Majesty's Minister in China, is hereby substituted for the
Governor or Government of a British possession; and
(b) The Supreme Court is hereby substituted for a Superior Court of
a British possession.
(c) The Supreme Court and each Provincial Court is hereby sub-
stituted for a Magistrate of any part of His Majesty's dominions.
(d) For the purposes of Part 11 of the Qaid Act of 1881, and of this
Article in relation thereto, Cbina, Wei-hai-Wei, and Honghong shall be,
deemed to be one group of British possessions.

Criminal Procedure.
123. Whenever under this Order any -person is to be taken. for trial
or imprisonment or by way of deportation or for any other purpose,
to the Supreme Court or elsesvhei.e in China or to Hongkong England,
or elsewhere, the Court or other authority bY this Order authorised to
cause him to be so taken, may for that purpose (if ilecessary) cause him
to be embarked on 'board one of His Majesty's ships of war, or if there is
no such ship available, then on board anY British or other fit ship, at
any port or place whether Within or beyond the particular jurisdiction or
district of that Court or authority, and in order to such embarkment
may (if necessary) cause him to be taken, in custody or otherwise, by
land or by water, from any place to the port or place of embarknient.

The writ, order, or warrant of the Court, by virtue whereof any person
is to be so taken, shall be sufficient authority to every constable, officer,
or other person acting thereunder, and to the commander or master of
any ship of war, or other ship (whether the constable, officer, or other
person, or the ship or the commander or master thereof is named therein
or not), to receive, detain, take, and deliver up such person, according to
the writ, order, or warrant.
Where the writ, order, or warrant is executed under the immediate
direction of the Court or authority issuing it, the writ, order, or warrant
shall be delivered to the constable, officer or other person acting there-
under, and a duplicate thereof shall be delivered to the commander or
master of any ship in which the person to whom. the writ, order, or
warrant relates is embarked.
Where.the writ, order, or warrant issues from the Supreme Court, and
is executed by a Provincial Court, a copy thereof certified under the,





seal of the Court executing the same shall be delivered to the constable,
officer, or other person acting thereunder, and to the commander or
master of any ship in whick the person taken is embarked ; and any such
copy shall be for all purposes conclusive evidence of the order of which
it purports to be a copy.
124. Subject to the other provisions of this Order, all expenses of
removal of prisoners and others from or to any place in China or from
or to Hongkong, and the expenses of deportation and of the sending of
any person to England, shall be defrayed in such manner as the
Secretary of State from time to time directs.

Any master of a British ship when required shall be bound to take
such persons for a reasonable remuneration, to be determined by a Judge
of the Supreme Court, and in case of non~compliance shall be liable to a
penalty not exceeding

Mortgages.
131. If a deed or other instrument of mortgage is not registered at the
Consulate aforesaid within the respective time following (namely)
(1) Within fourteen days after its execution. where it is executed in
the Consular district wherelil the property mortgaged is situate;
(2) Within two months after its execution, where it is executed. in
China elsewhere than in that Consular district, or in Wei-hai-Wei or
Hongkong
(3) Within six months after its execution, where it is executed else-
where than in China, Wei-hai Wei or llongkong
then, and in every such case, the mortgage debt secured by the deed or
other instrument and the interest thereon shall not have priority over
judgment or simple contract debts contaracted before the registration 'of
that deed or other instrument.

Bills of Sale.
136. A bill of sale conforming, or appearing to 'conform, with the
foregoing rules, may be registered, if it is intended to affect chattels in
China, at the Supreme Court or at the Consular district wherein the
chattels are, within the respective time following, and not afterwards
(namely) :-
(1) Within fourteen days after its execution, where it, is executed in
the Consular district wherein the chattels are
(2) Within two months after its execution, where it is executed in
China or elsewhere than-in that Consular district, or in Wei-hai-Wei,
or Hongkong;





(3) Within six months after its execution, where it is executed else-
where than in China, Wei-hai-Wei, or Hongkong.

Miscellaneous.

168.-(1) A printed copy of this Order shall be always kept
exhibited in a conspicuous place in each Consular office and in each
Court-house.
(2) Printed copies shall be sold at, such reasonable price as the
Supreme Court directs.
(3) Judicial notice shall be taken of this Order, and of the commence-
ment thereof, and of the appointment of Consuls, and of the constitution
and limits of the Courts and districts, and of Consular seals and signa-
tures, and of any Rules made or in force under this Order, and no proof
shall be required of any of such matters.
The provisions of the Evidence Act, 1851 (14 & 15 Vict., cap. 99),
secs. 7 and 11, relating to the proof of judicial and other documents,
shall extend and be applied for all purposes as if the Courts, districts,
and places to which this Order applies were in a British Colony.

LETTERS PATENT

[as to pardons by the Governor of Hongkong of persons sent to Hong-
kong from China for imprisgument:-now under arts. 66 and 80 of
the China Order in Council, 24th October, 1904.]
22nd October, 1866.

VICTORIA BY THE GRACE OF GOD of the United Kingdom of
GREAT BRITAIN AND IRELAND Queen Defender of the Faith To Our Trusty
and well-belovedGovERNOR AND COMMANDER IN CHIEFin and over thecolony
of HONGKONe and its Dependencies or in his absence to Our Lieutenant
Governor or the Officer administering the Government of the Colony and
Dependencies aforesaid for the time being, Greeting: WHEREAs by certain
Letters Patent bearing date at Westminster the 13th day of October, 1863,
in the 27th year of Our Reign We did give and grant unto Our Governor
Lieutenant Governor or Officer administering the Government of Our
said Colony of Hongkong and its Dpendencies during Our pleasure
power and authority to grant to any British Subject undergoing im-
prisonment in the Common Gaol of Our said Colony in respect of any
offence commmitted in China or within One hundred miles of the Coasts
thereof a free and unconditional pardon or a pardon subject to such con-





ditions as therein are referred to, Now KNow You that WO have revoked
and determined and by these presents do revoke and determine the said
recited Letters Patent and every clause article and thing therein contain-
ed: AND WHEREAS by an Order in Council bearing date at Windsor on the
9th day of Alarch, 1865, in the 28th year of Our Reign provision was
fnade for the Government of Our Subjects in China and in Japan and
within One hundred miles of the Coasts of China and it was ordered that
Offenders convicted before a Court in China or Japan and sentenced to
sufF6r imprisonment might in certain cases be sent for imprisonment to
Our Colony of Hongkong, Now Know You that We reposing especial
trust and confidence in the prudence courage and loyalty of you Our
Governor, Lieuteli-ant Governor, or Officer administering the Govern-
ment of Our Colony of Horigkong of Our especial grace certain knowledge
and rnere motion do hereby give and grant unto you during Our plea-
sure full power and authority -as you shall see occasion in Our name and
on Our behalf to any Brifish Subject suffering imprisonment in
Our said Colony in respect of any such conviction as aforesiidt a free and
unconditional pardon or a pardon subject to such conditions as may be
thereto annexed by virtue of any Law or Ordinance in force in Our said
Colony at the tinie of the granting of any such pardon Subject never-
theless to such instructions as shall be given to you in that behalf under
Our Sign IMIanual and Signet or by Our Order in Our Privy Council or
by Despatch through one of Our Principal Secretaries of State. INWITNESS
whereof We have c aused these Our Letters to be made Patent. WITNESS
Ourself at Westminster the 22nd day of October in the 30th year of
Our Reign.

t It seenis probable that the construction of this sentence is that it relates to persons
convicted (under Art. 80 of the China Order oi 1901) of ofiences committed within 100
miles of the coast of China, and sent to Hongkong (under art. 66) for imprisonment.
53 & 54 Vict. C 37. Limits of Order. Interpretation. 57 & 58 Vict. C 60. 53 & 54 Vict. C 37. Rules of construction. Extent of jurisdiction. Exercise of jurisdiction. Process of Supreme Court of Hongkong. Trial before Court in His Majesty's dominions. 53 & 54 Vict. C 37. Refusal to enter into recognizance. Expenses of witnesses, jurors, &c. Imprisonment in His Majesty's dominions. 53 & 54 Vict. C 37. Offences within 100 miles of coast. [as to pardon by Governor of Hongkong see Letters Patent, 22nd October, 1866 post p.80.] Jurisdiction of Supreme Court of Hongkong. Apprehension of deserters. Deportation. Dealing with deported person at Hongkong. Fugitive offenders 44 & 45 Vict. C 69. 47 & 48 Vict. C 31. Conveyance of accused persons. Expenses of removal. Time for registration of mortgage. [ie of the Consular district wherein the property mortgaged is situate; art. 129.] Time for registration of bill of sale. Publication of Order.

53 & 54 Vict. C 37. Limits of Order. Interpretation. 57 & 58 Vict. C 60. 53 & 54 Vict. C 37. Rules of construction. Extent of jurisdiction. Exercise of jurisdiction. Process of Supreme Court of Hongkong. Trial before Court in His Majesty's dominions. 53 & 54 Vict. C 37. Refusal to enter into recognizance. Expenses of witnesses, jurors, &c. Imprisonment in His Majesty's dominions. 53 & 54 Vict. C 37. Offences within 100 miles of coast. [as to pardon by Governor of Hongkong see Letters Patent, 22nd October, 1866 post p.80.] Jurisdiction of Supreme Court of Hongkong. Apprehension of deserters. Deportation. Dealing with deported person at Hongkong. Fugitive offenders 44 & 45 Vict. C 69. 47 & 48 Vict. C 31. Conveyance of accused persons. Expenses of removal. Time for registration of mortgage. [ie of the Consular district wherein the property mortgaged is situate; art. 129.] Time for registration of bill of sale. Publication of Order.

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