Chow Hung Ching v The King [1948] HCA 37

High Court of Australia Latham C.J. Starke, Dixon, McTiernan and Williams JJ. Chow Hung Ching v The King [1948] HCA 37

ORDER Appeals dismissed.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 6 Latham C.J.

The appellants are two Chinese who were convicted in the Supreme Court of the Territory of Papua-New Guinea, upon charges of assaulting on 25th January 1948 a native named Pondranei, and doing bodily harm to him and unlawfully detaining him in a hut against his will. The offences were alleged to have been committed at Manus in the Admiralty Islands in the Territory of New Guinea. The appeal is against the convictions on the ground that the Supreme Court of Papua-New Guinea did not have jurisdiction to try the charges, inasmuch as the offences, if committed, were committed by members of an armed force of a friendly foreign power admitted with the consent of the Government of the Commonwealth into territory under the government of the Commonwealth. Alternatively, the appellants appealed against the sentences of three months' imprisonment upon the charge of assault and of six months' imprisonment upon the charge of detention, as being too severe.

Under the New Guinea Act 1920, s. 14, the Laws Repeal and Adopting Ordinance 1921 was enacted, and s. 13 of that ordinance made applicable to the Territory of New Guinea The Criminal Code Act 1899 of Queensland. Subsequent legislation has not made any relevant alteration. The offences charged were offences against ss. 339 and 355 of The Criminal Code.

These appeals are brought before this Court as appeals as of right, and the question was raised whether it was not necessary to obtain the leave of this Court before an appeal could be heard and determined.

Under the Judiciary Ordinance 1921-1938 N.G., s. 24, it was provided that appeals from the Supreme Court of New Guinea to the High Court should be by leave of the High Court. The jurisdiction of the High Court to entertain such appeals was established in Mainka v. Custodian of Expropriated Property [1] ; Porter v. The King; Ex parte Yee [2] ; and see Jolley v. Mainka [3] .