CL Lim on Chinese Citizenship and the Hong Kong Booksellers Affair (LQR)

"The Sino-British treaty and the Hong Kong booksellers affair"
CL Lim
Law Quarterly Review
October 2016, Issue 132, pp 552-556

Recent events in Hong Kong raise questions which recall the post-war prosecution of the famous Nazi propaganda broadcaster, William Joyce (Joyce v DPP [1946] A.C. 347; [1946] 1 All E.R. 186). Joyce was an American citizen who had acquired a British passport by stating, be it by deliberate misrepresentation or simple mistake, that he had been born a British subject. Pleading his alien status was his strongest defence to a charge of treason committed outside the realm for it would then need to be asked how an alien could be guilty of treason in these circumstances. However, since he had for long lived within the realm and acquired a valid British passport, that defence did not save him. Lord Jowitt L.C., who wrote for the majority in the House of Lords, considered that the true question was not where treason can be committed but by whom (at 357). Their Lordships held that acquiring a British passport, by whatever means, entitled Joyce to the Crown’s protection and thus having sought such protection he owed a reciprocal duty of allegiance to the Crown. The majority of their Lordships considered that this duty of fidelity was owed for as long as the passport remained valid. Lord Porter dissented on the ground that it was for the jury to determine whether William Joyce had renounced British protection by that time, for, while it was assumed that he had entered Germany with it, the passport was never found, and Joyce himself claimed that by then he had decided to become a German citizen. The trial judge had instead directed the jury that the question of Joyce’s continuing allegiance was an issue of law, and because of that Lord Porter would have allowed Joyce’s appeal on the ground that the jury had been misdirected (at 374–382). 

      A similar issue now arises in Hong Kong under Chinese law, in respect of those Hong Kong Chinese residents whom China has for long considered to be "Chinese Hong Kong compatriots". In the recent Hong Kong booksellers affair, the police had received various reports last year concerning an eventual total of five missing persons who had disappeared in the period between October and December. All five were connected to the same Hong Kong bookstore. Allegedly, three had disappeared while present on the Chinese mainland, one while in Thailand and, in the final case of Mr Lee Po, from Hong Kong itself. The whole affair received global press coverage amid ample public speculation that Mr Lee in particular had perhaps been unlawfully removed to the mainland by the Chinese authorities. Mr Lee denies this but his case culminated in the British Foreign Secretary’s report to Parliament in February this year that, although "the full facts of the case remain unclear", "our current information indicates that Mr. Lee was removed to the mainland without any due process under HKSAR law". Mr Hammond concluded that "this constitutes a serious breach" of the Sino-British Joint Declaration (Secretary of State for Foreign and Commonwealth Affairs, Six Monthly Report on Hong Kong, July to December 2015, 11 February 2016, at p.3)... Full article available on Westlaw.