Civil Aeronautics Administration v Singapore Airlines Ltd

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 14 January 2004
• Neutral Citation: [2004] SGCA 3
• Citation: [2004] SGCA 3
• Defendant Counsel: Lok Vi Ming, Ng Hwee Chong and Joanna Foong (Rodyk and Davidson)
• Published date: 20 January 2004
• Plaintiff Counsel: Michael Hwang SC (instructed), Loo Choon Chiaw, Lim Tong Chuan and Goh Hui Nee (Loo and Partners)
• Date: 14 January 2004
• Docket Number: Civil Appeal No 92 of 2003
• Court: Court of Appeal (Singapore)
• Subject Matter: International Law,Ministry of Foreign Affairs' refusal to issue s 18 certificate under State Immunity Act,Taiwanese civil aviation authority applying to set aside third party proceedings, claiming immunity under the State Immunity Act (Cap 313, 1985 Rev Ed),Whether court competent to determine on other evidence if Taiwan is state within State Immunity Act,Approach of courts where answers from Ministry of Foreign Affairs unclear or Ministry of Foreign Affairs fails to give an answer,State Immunity Act (Cap 313, 1985 Rev Ed),Sovereign immunity,Whether entity within scope of State Immunity Act (Cap 313, 1985 Rev Ed),Whether entity has capacity to be sued in Singapore courts,Entity not recognised by Singapore government as state under State Immunity Act (Cap 313, 1985 Rev Ed),Whether court may grant immunity on ground that Taiwan is recognised de facto as a state

14 January 2004 Judgment reserved.

Chao Hick Tin JA (delivering the judgment of the court):

Background

2 The circumstances giving rise to this appeal fall within a narrow compass. On 31 October 2000, flight SQ 006, operated by Singapore Airlines (“SIA”), a company incorporated in Singapore, crashed upon taking off, en route to Los Angeles, at the Taipei Chiang Kai Shek International Airport. Many passengers either perished or were injured. A number of actions were instituted in Singapore by either the injured passengers or their families (for those who had perished). SIA joined CAA as a third party to those proceedings on the ground that CAA is liable for contribution or indemnity because CAA, being the authority in control of the facilities at the airport, was wholly or partly responsible for the accident.

3 It is not in dispute that CAA is a department under the Ministry of Transport and Communications of the government of Taiwan. Under the laws of Taiwan, some of the functions of CAA are:

(a) planning, supervising and monitoring air traffic control;

(b) planning and construction of civil airports and navigation aids facilities; and

(c) planning, coordinating and promoting the civil aviation information systems.

4 CAA, upon service of the third party notice and after entering provisional appearance, applied to set aside the third party notice on the ground that it is a department of the government of Taiwan and as such is immune from the jurisdiction of the Singapore courts pursuant to the Act. The application first came before the assistant registrar who dismissed it. On appeal, Choo Han Teck J affirmed the decision of the assistant registrar. Being dissatisfied, CAA has appealed to this court.

Statutory provisions

5 The Act sets out the regime relating to state immunity and the relevant provisions are the following:

3.—(1) A State is immune from the jurisdiction of the courts of Singapore except as provided in the following provisions of this Part.

16.—(1) The immunities and privileges conferred by Part II apply to any foreign or Commonwealth State other than Singapore; and references to a State include references to —

(a) the sovereign or other head of that State in his public capacity;

(b) the government of that State; and

(c) any department of that government,

…

18. A certificate by or on behalf of the Minister for Foreign Affairs shall be conclusive evidence on any question —

(a) Whether any country is a State for the purposes of Part II, whether any territory is a constituent territory of a federal State for those purposes or as to the person or persons to be regarded for those purposes as the head or government of a State; …

There is no definition of “State” in the Act.

Communications with Foreign Affairs Ministry

6 Clearly, it was on account of s 18(a), that both CAA and SIA wrote separately to the Singapore Foreign Affairs Ministry (“MFA” or “the Ministry” as may be appropriate) to ask for a certificate under that provision. In order to better appreciate the sense of the reply from the Ministry, it is necessary that we set out in extenso the contents of the requesting letters. In CAA’s solicitors’ letter of 30 May 2003, they wrote:

We have been instructed to request for a certificate under Section 18 of the SI Act certifying that Taiwan (the Republic of China) is a STATE for the purpose of Part II of the SI Act. In this connection and for your easy reference, we enclose an extract of Section 18 of the SI Act. [emphasis added].

7 This letter was followed by a second letter of 2 June 2003 from CAA’s solicitors which reads:

Further to our letter of 30 May 2003 …

We confirm that we act for the Civil Aeronautics Administration (the “CAA”) of the Ministry of Transportation and Communications (“MOTC”), Taiwan, the Republic of China, relating to a claim by the Singapore Airline Limited (“SIA”) against the CAA for indemnity and/or contribution in respect of the legal proceedings between the families of the deceased passengers and SIA arising from the SQ006 Air Accident occurred in Taipei on 31 October 2000.

We have been instructed by the CAA (and the MOTC) to request for a Certificate pursuant to Section 18 of the SI Act certifying that Taiwan (the Republic of China) is a State for the purpose of Part II of the SI Act …

[emphasis added]

8 After several reminders, MFA eventually replied to CAA on 24 June 2003 as follows:

Further to our interim reply of 5 June 2003 in response to your letter of 30 May 2003, I regret to inform you that we are unable to accede to your request for a certificate pursuant to Section 18 of the State Immunity Act.

9 As regards the request made by SIA’s solicitors, the contents of their letter dated 20 June 2003 are as follows:

We are representing Singapore Airlines in Third Party actions against the Taiwan Civil Aeronautics Administration (CAA) … The CAA made an interlocutory application to set aside the action on the basis that, as a department of the Ministry of Transport and Communication of the Republic of China, it is immune from the jurisdiction of Singapore courts pursuant to section 3 of the State Immunity Act (Chapter 313) (“the Act”).

Under section 18 of the Act, a certificate by or on behalf of the Minister for Foreign Affairs is necessary to conclusively indicate whether any country is a “state” for the purposes of Part II of the Act. Enclosed herewith are extracts of Part II and section 18 of the said Act for your easy reference.

In a similar application by CAA before the Canadian court, the Department of Foreign Affairs and International Trade of Canada has informed our Canadian counterparts that a certificate cannot be issued to establish that Taiwan is a foreign state for the purpose of the Canadian State Immunity Act. A copy of the Canadian State Immunity Act and the response from the Canadian Department of Foreign Affairs and International Trade are also annexed for your reference.

We would be required to appraise the Court at the hearing of the application whether your Ministry is prepared to issue a certificate confirming Taiwan (the Republic of China) is indeed a state for the purposes of the State Immunity Act.

[emphasis added]

10 The Ministry’s reply dated 24 June 2003 was brief and to the point, stating:

I wish to inform you that we are unable to issue the certificate pursuant to section 18 of the State Immunity Act.

11 From both sets of correspondence, it will be seen that the request was for a certificate under s 18 stating that Taiwan is a State for the purposes of the Act and the reply in each instance was specific to the request, namely, that the Ministry was unable to issue the certificate requested for. To our mind, the effect of the negative answer from the Ministry is clear, ie, Taiwan is not a State for the purposes of the Act. If she is, the certificate would have been issued by the Ministry. The Act does not lay down the form in which the certificate should take. It could well take the form of a letter, as in the present case. In each reply, the Ministry has made a statement. Pursuant to s 18, the two replies by the Ministry to the parties are therefore conclusive on the point in issue, that is, that Taiwan is not a State to which the Act would apply. Thus, we agree with the judge who stated at [7] of his judgment (see Woo Anthony v Singapore Airlines Ltd [2003] 3 SLR 688) that:

[T]he application for a certificate under s 18 was made in very explicit terms leaving the reader no doubt as to what was sought and why. The reply to that application, couched in polite and diplomatic terms, was nonetheless equally clear. It said “no” in effect. There is no ambiguity in the answer from the Ministry of Foreign Affairs that the Republic of China is not a state, whether de facto or de jure, for the purposes of the Act. No reasons were given and none is required under the Act. There being no ambiguity, in my view, there is therefore no need to proceed further, either to make a determination on the court’s own accord, or to refer the matter back to the Ministry.

12 CAA argued that the reply was ambiguous. It said that if the Ministry had intended its reply to have the meaning attributed to it by the judge, the Ministry would have expressly stated that Taiwan is not a State for the purposes of the Act. While we agree that the reply from the Ministry could have been worded differently and in the way CAA suggested, the answer must be viewed in the context of the request. When so viewed, the meaning is clear. Nourse LJ observed in GUR Corporation v Trust Bank of Africa Ltd and the Government of the Republic of Ciskei [1986] 2 Lloyd’s Rep 451 at 464:

The rule that the judiciary and the executive must speak with one voice presupposes that the judiciary can understand what the executive has said. … [W]here there is a doubt, the judiciary must resolve it in the only way they know, which is to look at the question and then construe the answer given. It is not for the judiciary to criticize any obscurity in the expressions of the executive, nor to enquire into their origins or policy. They must take them as they stand.

13 We do not share the view that the answers indicated that the Ministry was unable or unwilling to take a position. The Ministry was effectively saying that it would not certify that Taiwan is a State for the purposes of the Act. The only logical conclusion from that is that Taiwan is not a State within the meaning of the Act. We do not see how it could be asserted that, in refusing to issue a “positive” s 18 certificate, what MFA was saying was that the matter was one for the court to decide.

14 The principle on sovereign immunity is based on mutual respect and international comity which requires that every sovereign State should respect the independence and dignity of every other sovereign State and should decline to exercise by means of its courts, territorial jurisdiction over, for example, the person of any sovereign and the...