Deporting Ho Chi Minh

The spark igniting the civil unrest in Hong Kong which has been going on for the last seven months was the introduction of an extradition bill, felt by many people to be a threat to the rule of law in the Territory. Some protestors in early demonstrations waved the Union Jack flag, not, one speculates, to indicate a desire for a return of colonialism, but as a symbol of a time when, despite a democratic deficit, they believed that civil rights were respected.

This brings to mind an extradition cause célèbre in the then British Crown Colony which took place between 1931 and 1933. The wishes of the executive of the day were thwarted by legal process, instigated by a Hong Kong-based English lawyer, Francis Loseby, on behalf of his Vietnamese client, Nguyen Ai Quoc (‘Nguyen the Patriot’). The client used several aliases throughout his life. He was known in the legal proceedings by the Chinese name of Sung Man Cho. He is known to posterity by his final alias, Ho Chi Minh (‘He Who Enlightens’).

Ho was born in 1890 in Annam, central Vietnam, then part of French Indochina, the son of a minor government official. He left Indochina in 1911 and travelled the world undertaking various menial jobs to support himself. By 1919, he was living in France and, together with other Vietnamese there, petitioned the participants in the Versailles peace talks to press for greater civil rights for the people of Vietnam. This earned him the attention of the French authorities. He started calling himself Nguyen Ai Quoc and pamphlets calling for independence were published under that name. He became involved with various socialist groups and in 1920 was a founding member of the French Communist Party. In 1923 he moved on, studying in Moscow, probably at the Communist University of the Toilers of the East, a training school for Asian communists established by the Communist International (Comintern). He then travelled to southern China and South-east Asia, avoiding Indochina. He reached Hong Kong from Siam (now Thailand) in 1930, where he was instrumental in bringing together several groups to found the Communist Party of Vietnam (later Communist Party of Indochina). After a brief sojourn in Siam, Ho returned to Hong Kong in 1931.

In October 1929, Nguyen Ai Quoc had been sentenced to death in absentia by the Court of Vinh, in Annam, for revolutionary activity. The British and French colonial authorities operated an informal mutual co-operation policy, keeping an eye out for, and sharing information on, those they regarded as subversives in their respective territories. In April 1931, a French Comintern agent was arrested in Singapore and his premises searched. Among his papers was correspondence with alleged communist agents, including ‘Nguyen Ai Quoc’ in Hong Kong. The Hong Kong police were duly informed (along with the French Sûreté Nationale) and obtained a warrant under the Seditious Publications Ordinance, searching the address in Kowloon given for Nguyen Ai Quoc on 6 June 1931. Ho was arrested, but no seditious material was found. On 12 June, Ho was re-arrested then detained under legislation known as the Deportation Ordinance.

Ho, who was using the name Sung Man Cho and claiming to be Chinese, denied being Nguyen. He was kept in detention while the authorities worked out what to do next. Friends of his contacted a British solicitor, Francis Loseby. He was known in the Vietnamese community in Hong Kong, having successfully prevented a Vietnamese defendant from being extradited in an earlier case. Funding for Loseby was apparently arranged, through the Comintern, by International Red Aid and the League Against Imperialism, organisations which provided funds for anti-colonial activists.

The news of the arrest of the agitator ‘Nguyen Ai Quoc’ was reported in the French and Indochinese newspapers. This began to excite local and then international press interest. On 23 June, Hong Kong’s main newspaper the South China Morning Post reported that

Nguyen Ai Quoc, the supreme leader of the Annamite revolutionists, has been arrested in Hong Kong. His arrest constitutes a big political coup for the French administration in Indochina, in as much as Nguyen has been the object of considerable attention for many years.

On the same date, in London the Times reported the arrest, commenting that it was at the request of the French authorities and was of the person ‘alleged to have been responsible for the recent revolt in Indochina’.

Hong Kong’s governor, Sir William Peel, wanted to help the French, but the publicity surrounding Ho’s arrest meant that doing so quietly was out of the question. Due process had to be followed. The French were aware, however, that an application for Ho’s extradition was unlikely to be successful. There is a distinction between extradition, which is a pull by the jurisdiction wanting the person in question, and deportation, which is a push by a jurisdiction wishing to expel someone. At the time, the terms for extradition came under a Franco-British treaty annexed to the British Extradition Act, which, even if the French could demonstrate that ‘Sung’ was ‘Nguyen’, did not permit extradition on political grounds. Sung or Nguyen had not infringed any Hong Kong law, so Peel concluded that the best option was deportation, a matter for his very wide discretion, on the simple basis that Ho’s presence in Hong Kong was undesirable, even though deportation ordinarily permits the deportee some leeway in choice of destination. Peel sought confirmation from London that he should simply deport Ho.

The French authorities had been delighted with Ho’s detention and wanted him placed in their custody. The French Consul in Hong Kong advised the Quai d’Orsay (Foreign Ministry) in Paris of the governor’s difficulties and suggested direct liaison between Paris and London. Contemporary French Colonial Office memoranda refer to expectations of reciprocity because of French assistance to the British in returning fugitives in West Africa and India. The Quai d’Orsay lobbied the Foreign Office in London to come to some accommodation with them, resulting in the Foreign Secretary, Arthur Henderson, directing his officials to write to the Colonial Office (the Ministry overseeing Britain’s colonies). In a memorandum to the Colonial Office dated 1 August, an official wrote:

As Ngu Yen [sic] Ai Quoc has been identified as a native of Annam … Mr. Henderson would suggest, for the consideration of Lord Passfield [the Colonial Secretary] that his deportation should be effected to Annam … In view of the representations made by the French Ambassador … he considers that it would be embarrassing to have to explain to the French Government that of the various alternatives available His Majesty’s Government has selected the one least calculated to meet their wishes.

Some civil servants in the Colonial Office nevertheless had serious misgivings – there was concern that to deport Ho to Indochina would be equivalent to signing a death warrant on a charge that would not be capital in British Territory. ‘We cannot it seems to me insist on [Ho] going to Indochina’, wrote one official, ‘any more than if we had occasion to deport an ex-official of the Tsar’s Gov. we could or should insist on his going to Soviet Russia.’ He added a curt postscript: ‘Communism is not a crime known to our law – any more than Monarchism is.’       

Passfield, however, agreed with Henderson. The Colonial Office told Peel that Ho should be deported ‘to Indo-China … the French government consider him to be a danger to all European possessions in the Far East and expressing the hope that you would be advised to come to a decision such as would facilitate the task of the Governor General of Indo-China’.

Henderson, a trade unionist by background, and Passfield (better known as Sidney Webb, an early Fabian and co-founder of the London School of Economics) were ministers in a Labour administration. Why would they have been so sympathetic to the French colonial authorities? There are a mixture of reasons. Britain, like the rest of Europe, was in the middle of a financial crisis, putting a premium on stability, including as good relations with France as possible. Mutual support aimed at preventing insurrection in their respective Far East colonies was also seen as important. At the time, moreover, there was general indifference to, and little appreciation of, the rights of colonial peoples – even among those of a progressive political outlook (as Ho had found in his dealings with French socialists). Finally, the minority Labour government was weak and distracted. Prime Minister Ramsay MacDonald resigned on 24 August. Although he was persuaded to stay in office and put together an emergency national government, Passfield and Henderson did not retain their positions.      

Loseby meanwhile had applied on behalf of ‘Sung Man Cho’ for a writ of habeas corpus, a procedure where someone who is unlawfully detained can petition the court to be released. Despite the petition, on 6 August, Governor Peel, following the guidance from London, issued an order that Ho be deported on a ship bound for French Indochina, due to sail on 18 August.

The matter came before the court on 14 August 1931, with Loseby instructing a senior counsel, F.C. Jenkin. The court consisted of the Chief Justice of Hong Kong, Sir Joseph Kemp, and another judge. Jenkin highlighted various irregularities in the original deportation order but this had been anticipated and a second, proper order had been drawn up and served on Ho while he was in detention. The immediate issue for the court was whether an order can be validly served on someone if they are unlawfully detained. Based on the terms of the Deportation Ordinance, the court found that it could. In his decision (which is reported in the official Hong Kong Law Reports for 1931), the Chief Justice dismissed concerns that the order was an extradition order dressed up as ‘sham’ deportation order. As an aside, he added that the Ordinance did not give a deportee a choice of destination. What fate awaited him, wherever he was sent, was of no concern to the court once the deportee left Hong Kong territorial waters. 

Loseby immediately arranged for an appeal to the Privy Council in London, the final court of appeal for Britain’s colonies. While Ho awaited the outcome of his appeal, he remained incarcerated in Victoria Prison in Hong Kong, becoming something of a celebrity. He was regularly visited by Mrs Loseby and her daughter Patricia, sometimes accompanied by Mrs Southorn, wife of the Colonial Secretary (the second most senior position in the colonial government). They took him food, books and some writing materials. Conditions were dire – Ho was locked up most of the time in a small, airless cell. Suffering from tuberculosis and dysentery, his connections helped get him transferred to slightly better conditions in the prison hospital.

Loseby needed a London-based barrister for the appeal. He hired Denis Nowell Pritt, a successful senior counsel, who later became a radical Labour MP (and, in the opinion of George Orwell, the most effective pro-Soviet publicist in Britain). The Colonial Office, representing the Hong Kong government, hired Sir Stafford Cripps, a Labour MP, and recently Solicitor General in the Labour government. Cripps was the nephew-by-marriage of Sidney Webb. A further coincidence (or perhaps not) was that Pritt and Cripps were school contemporaries at Winchester College. Their legal careers had followed a similar trajectory, both ‘taking silk’ (being elevated to senior counsel status) on the same day. 

Cripps told the Colonial Office that the ‘sham’ nature of the order, being extradition dressed up as deportation, reflected badly on the British and Hong Kong governments, so it would be better to settle the matter quietly outside court. The newly appointed Colonial Secretary, Sir Phillip Cunliffe-Lister, questioned Cripps’ motives. He wanted the appeal to be defended – as he wrote later, ‘I felt at the time and I still feel that [Cripps’] objections were as much political as legal, and it really raises an impossible position for us if counsel are to object to arguing points of law … because they object to the politics of the case.’

But the Colonial Office lawyers did not wish to continue in the light of Cripps’ advice. Before the matter came up for hearing, Cripps approached Pritt, who had no hesitation to agreeing an arrangement: the appeal would be withdrawn if Nguyen agreed to leave Hong Kong, with a proviso that he would not be obliged to be sent to French Territory or put on a French ship. Based on this agreement, on 21 July 1932, the date the appeal came up for hearing, it was formally dismissed by the Privy Council and the legal proceedings came to an end.

Ho, still unwell, remained in prison. Upon his recovery and release, Loseby arranged for him to stay at the YMCA, where he kept a low profile, pretending to be a Chinese traveler; he and his advisors remained concerned that the Sûreté would be looking for him. Rumours were instigated and it was reported that ‘Nguyen Ai Quoc’ had died from his illnesses. A berth was later found for him on a ship going to Amoy in China. Disguised in the robes of a Chinese Mandarin scholar, especially tailored for him by Mrs Loseby, and accompanied by Loseby’s clerk playing the role of the scholar’s servant, he quietly left Hong Kong in January 1933.

After spending time in the Soviet Union and China, Ho finally returned to Vietnam in 1940, founding the Viet Minh (League for Independence of Vietnam). In 1945, following the Japanese surrender, Ho declared independence on behalf of the Democratic Republic of Vietnam, with himself as president. War ensued and the French were eventually defeated in 1954. At the Geneva Peace Accords, Vietnam was split into two parts, leading to insurrection and war over the next two decades. Ho died in 1969.

Ho stayed in touch with the Losebys, albeit irregularly given his clandestine and guerilla existence. He invited them to Hanoi in 1960 for a reunion and photographs show the couple and their daughter, as visiting dignitaries, attending receptions and exchanging gifts with President Ho.

An article in the South China Morning Post of 10 August 1932, entitled ‘The Rule of Law’ noted general public satisfaction with the result of the case. ‘It might be better if political refugees were not sheltered: certainly in Hongkong’s case it would be better for China,’ the writer opined. But, he went on to say, the

important principle at stake is the absolute rule of law … better that the authorities be handicapped than that the public be subject to maltreatment. The alternative is a state of affairs placing all in peril, cowing the public, leaving us at the mercy of any jack in office, making of our British freedom a mockery.

Tom Vaizey is a solicitor based in South-east Asia.