Sangwon, The (Dong Myong)

• Jurisdiction: Singapore
• Court: Court of Three Judges (Singapore)
• Judgment Date: 17 November 1999
• Date: 17 November 1999
• Docket Number: Civil Appeal No 141 of 1999

[1999] SGCA 82

Court of Appeal

L P Thean JA

and

Chao Hick Tin JA

Civil Appeal No 141 of 1999

The “Sangwon”

Sin Lye Kuen (Khattar Wong & Partners) for the appellant

Belinda Ang Saw Ean SC and Gan Seng Chee (Ang & Partners) for the respondent.

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)

Constitution Arts 21,22, 34, 35, 36 (Democratic People's Republic of Korea)

Law of Social Cooperative Organisations (Democratic People's Republic of Korea)

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...