Sangwon, The (Dong Myong)

JurisdictionSingapore
Judgment Date17 November 1999
Date17 November 1999
Docket NumberCivil Appeal No 141 of 1999
CourtCourt of Appeal (Singapore)
The “Sangwon”

[1999] SGCA 82

L P Thean JA

and

Chao Hick Tin JA

Civil Appeal No 141 of 1999

Court of Appeal

Admiralty and Shipping–Admiralty jurisdiction and arrest–Ownership of vessels–Whether arrested vessel and alleged sister ship beneficially owned by same entity under North Korean law–Section 4 (4) High Court (Admiralty Jurisdiction) Act (Cap 123, 1985 Rev Ed)

The respondent was the owner of cargo shipped on board the vessel Dong Myong.The cargo was never delivered and the respondent instituted an action by way of an admiralty writ in rem for the undelivered cargo. On 3 July 1999, an alleged sister vessel, the Sangwon, was arrested by the respondent. The respondent's case was that the claim fell within s 3 (1) (g) and/or s 3 (1) (h) read with s 4 (4) of the High Court (Admiralty Jurisdiction) Act (Cap 123, 1985 Rev Ed). It was alleged that the appellant was the beneficial owner of the Dong Myong and was the person liable to the respondent in personam under the claim. It was further alleged that the appellant was also the beneficial owner of the Sangwon.

On 13 July 1999, the appellant filed an application to set aside the writ and warrant of arrest on the ground that the admiralty jurisdiction had been wrongly invoked. The shipping agents of Sangwon in Singapore gave evidence that the legal and beneficial owner of Sangwon was Yuson Shipping Co Ltd (“Yuson”). On the other hand, Dong Myong was legally and beneficially owned by Korea Dongmyong Shipping Co (“KDSC”). Each ownership was evidenced by the respective certificate of registration of the vessel issued by the relevant authority of the Democratic People's Republic of Korea (“DPRK”). It was submitted that Yuson and KDSC were co-operative organisations established under the laws of DPRK and that they were distinct and separate legal entities from each other as well as from the State of DPRK.

The respondent based its case on the opinion of a North Korean law expert, Prof Chin, who opined that all North Korean-flagged vessels could only be beneficially owned by the State of DPRK. Relying on Arts 21, 34 and 35 of the DPRK Constitution, Prof Chin founded his opinion on two fundamental premises: (a) everything in DPRK was owned by the State and there was no true ownership other than by the State; and (b) foreign trade was wholly within the purview of the State. He was of the view that Yuson and KDSC were transport establishments and thus state enterprises, and were not co-operative organisations.

The appellant's expert, Dr Ho, refuted Prof Chin's opinion. He pointed out that the DPRK Constitution allowed and provided for ownership of properties in the DPRK other than by the State. Dr Ho also said that Prof Chin failed to take into account the provisions of Art 22 of the DPRK Constitution and Art 37 of the DPRK Civil Law. Finally, Dr Ho claimed that Prof Chin also failed to consider the specific DPRK Law of Social Cooperative Organisations under which it was provided that social co-operatives might own, inter alia, ships and might also “possess, use and dispose” of their properties.

The assistant registrar granted the appellant's application and set aside the writ. On appeal by the respondent to a judge in chambers, the High Court allowed the appeal and restored the writ. The appellant appealed to the Court of Appeal.

Held, allowing the appeal:

(1) In the face of Arts 22 and 36 of the DPRK Constitution and Art 37 of the DPRK Civil Law, the two fundamental premises upon which the respondent's expert founded his opinion were flawed. These articles clearly recognised ownership by co-operative organisations and allowed co-operative organisations to carry out international trade: at [18] and [19].

(2) The burden was on the respondent to prove that Yuson was not a co-operative organisation and, even if it was, that such a co-operative organisation could not under the law of the DPRK own ships. The respondent had failed to discharge that burden: at [22].

(3) The respondent's case rested entirely on the opinion of its expert, which was incomplete as he failed to take into account the other provisions of the DPRK Constitution and Civil Law, as well as the DPRK Cooperative Organisations Law. Consequently, the respondent failed to show that at the material times, the vessels Dong Myong and Sangwon were beneficially owned by the same entity, the State of DPRK: at [24].

High Court (Admiralty Jurisdiction) Act (Cap 123, 1985 Rev Ed) s 4 (4) (consd);ss 3 (1) (g), 3 (1) (h), 4 (4) (b)

Civil Law Art 37 (Democratic People's Republic of Korea)

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4 cases
  • The ‘Bunga Melati 5’
    • Singapore
    • High Court (Singapore)
    • 23 August 2011
    ...The [2003] 2 SLR (R) 117; [2003] 2 SLR 117 (refd) Rainbow Spring, The [2003] 3 SLR (R) 362; [2003] 3 SLR 362 (refd) Sangwon, The [1999] 3 SLR (R) 919; [2000] 1 SLR 321 (refd) Schwarz & Co (Grain) Ltd v St Elefterio ex Arion (Owners) (The St Elefterio) [1957] P 179 (folld) Seaconsar Far East......
  • The "Bunga Melati 5"
    • Singapore
    • High Court (Singapore)
    • 23 August 2011
    ...(5)(b) of s 4(4) had to be proved on a balance of probabilities. Although Tay JC’s decision was reversed on appeal (see The Sangwon [1999] 3 SLR(R) 919), this was because the Court of Appeal disagreed on the facts, and not, as far as I could tell, because it took a different view of the law......
  • The “Min Rui”
    • Singapore
    • High Court (Singapore)
    • 5 September 2016
    ...SLR(R) 105; [1975–1977] SLR 252 (folld) Raftland Pty Ltd v Federal Commissioner of TaxationUNK [2008] HCA 21 (refd) Sangwon, The [1999] 3 SLR(R) 919; [2000] 1 SLR 321 (refd) Saudi Prince, TheUNK [1982] 2 Lloyd's Rep 255 (refd) Skaw Prince, The [1994] 3 SLR(R) 146; [1994] 3 SLR 379 (refd) Te......
  • The "Chem Orchid"
    • Singapore
    • High Court (Singapore)
    • Invalid date
    ...has been validly terminated. Support for this position may be found in the decision of the Singapore Court of Appeal in The Sangwon [1999] 3 SLR(R) 919 which applied North Korean law to determine whether the party who would be liable in personam was the beneficial owner of the arrested vess......
3 books & journal articles
  • Admiralty, Shipping and Aviation Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2010, December 2010
    • 1 December 2010
    ...for example, The Kapitan Temkin [1998] 2 SLR(R) 573) and has proved to be surprisingly resilient since (see, for instance, The Sangwon [1999] 3 SLR(R) 919 and The Halla Liberty [2000] 1 HKC 659). 2.41 This case involved the arrest of an Indonesian flagged vessel, the Makassar Caraka Jaya Ni......
  • Comment
    • Singapore
    • Singapore Academy of Law Journal No. 2017, December 2017
    • 1 December 2017
    ...at [47]. 68The Andres Bonifacio[1993] 3 SLR(R) 71 at [35]. 69The Andres Bonifacio[1993] 3 SLR(R) 71 at [36]. 70[1998] 2 SLR(R) 537. 71[1999] 3 SLR(R) 919. 72The Kapitan Temkin[1998] 2 SLR(R) 537 at [5]; The Makassar Caraka Jaya Niaga III-39[2011] 1 SLR 982 at [9]. 73The Makassar Caraka Jaya......
  • Admiralty and Shipping Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2000, December 2000
    • 1 December 2000
    ...LAW Beneficial ownership Of the 3 most recent decisions touching on this point, the most important is undoubtedly The Sangwon[2000] 1 SLR 321. It raises the question of how to determine beneficial ownership of vessels owned by communist states which by virtue of socialist political ideology......

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