Woo Anthony v Singapore Airlines Ltd (Civil Aeronautics Administration, Third Party)

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 28 August 2003
• Neutral Citation: [2003] SGHC 190
• Docket Number: Suit No 1277 of 2002 (Registrar's Suits Nos 1061, 1278 to 1283, 1291, 1292, 1295 to 1297, 1299 to 1304, 1307, 1308, 1310 to 1313 and 1318 of 2002 (Registrar's Appeals Nos 237 to 261 of 2003)
• Date: 28 August 2003
• Published date: 03 October 2003
• Year: 2003
• Plaintiff Counsel: Loo Choon Chiaw, Lim Tong Chuan and Goh Hui Nee (Loo & Partners),Lee Wei Yung (Wee Ramayah & Partners)
• Citation: [2003] SGHC 190
• Defendant Counsel: Lok Vi Ming, Ng Hwee Chong and Delphine Ho (Rodyk & Davidson)
• Court: High Court (Singapore)
• Subject Matter: Third party proceedings against civil aviation authority of Taiwan,Whether court may grant immunity on ground that Taiwan is recognised de facto,State Immunity Act (Cap 313, 1985 Rev Ed),International Law,Aviation authority claiming immunity under State Immunity Act without certificate of recognition from Singapore Ministry of Foreign Affairs,Sovereign immunity

1 The defendant operates the airline known as Singapore International Airlines or, more commonly, ‘SIA’. They are being sued by a number of plaintiffs in respect of an accident in Taipei, Republic of China involving an aeroplane of the SIA. The defendant joined the Civil Aeronautics Administration of Taiwan (‘CAA’) as a Third Party to the actions. The CAA applied to set aside the third party proceedings on the ground that it, being a department under the Taiwan government is entitled to immunity from suit under s 3(1) read with s 16(1)(c) of the State Immunity Act, Ch 313. The application was heard by the learned assistant registrar who dismissed the third party’s application. The latter appealed before me on the narrow issue, here and below, that the CAA is immune from suit because it is part of the machinery of state, that is, the Republic of China, known as Taiwan.

2 It is not disputed that the third party is a department of the Ministry of Transportation and Communications of the government of the Republic of China. Under the Civil Aviation Law and the Statute for Organisation of the Civil Aeronautics Administration, Ministry of Transportation and Communications, the third party is charged with the administration of civil aviation in the Republic of China. The application herein was for a declaration ‘that the third party be immune from the jurisdiction of the Courts of Singapore by virtue of s 3(1) read with s 16(1)(c) of the State Immunity Act, Ch 313’. Section 3(1) reads as follows:

‘A state is immune from the jurisdiction of the Court of Singapore except as provided in the following provisions of this part.’

Section 16(1) provides as follows:

‘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,

but not to any entity (referred to in this section as a separate entity) which is distinct from the executive organs of the government of the state and capable of suing or being sued.’

It is also necessary to consider s 18 of the Act, which provision reads:

‘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.’

3 On 20 June 2003, the defendant wrote to the Ministry of Foreign Affairs and sought a certificate under s 18. The letter is important and I shall set out the relevant portions verbatim:

‘We are representing Singapore Airlines in Third Party actions against the Taiwan Civil Aeronautics Administration (CAA) arising from the SQ006 air crash in Taipei, Taiwan, on 30 October 2000. 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.’ (my emphasis)

The Ministry replied by letter dated 24 June 2003. The substantive passage in this reply reads:

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

The reply was signed on behalf of the Permanent Secretary of the Ministry. The third party had, similarly, applied for a s 18 certificate and was also given the same reply.

4 Mr Loo, counsel for the third party submitted that the Republic of China is a state under s 3 and must be so recognised. He submitted further that even if there is no official recognition of that state by the government of Singapore, I ought to follow the principles of international law and draw a distinction between ‘de jure and de facto recognition’. Counsel argued that based on the history of dealings between the government of the Republic of China and Singapore, the Republic of China had been given a de facto recognition by the government of Singapore. Accordingly, this court ought to adopt the de facto position accorded to the Republic of China. Counsel submitted that if the government of Singapore had not made its position clear, then the court is entitled to enquire and determine whether there is a de facto recognition of the Republic of China. Mr Lok, counsel for the defendant submitted that the inability of the parties to obtain a s 18 certificate means simply that the Republic of China is not recognised as a state by the government of Singapore for the purposes of the State Immunity Act. As a subsidiary argument, Mr Lok submitted that in the event that the government’s position is found to be ambiguous, then this court should refer the question back to the Ministry rather than decide on its own whether there is a de facto recognition of the Republic of China.

5 In support of his submission that this court ought to take into account the instances or circumstances relevant to the determination as to whether there is a de facto recognition of the Republic of China, Mr Loo set out a long history of the chronology of the landmark events in the relationship between the government of Singapore and the government of the Republic of China, including the signing of the double-taxation treaty to support his argument that there is a de facto recognition of the Republic of China. Mr Loo’s argument on the latter point was that a double-taxation treaty may only be signed by the government with another that is recognised de facto if not de jure.

6 Mr Loo cited various authorities for his propositions that a state or government would enjoy locus standi in the courts of the United Kingdom whether it is recognised de jure or de facto (see International Law, 3^rd Ed. Rebecca Wallace). The Government of the Republic of Spain v S.S. Arantzazu Mendi. [1939] AC 256 and Bank of Ethiopia v National Bank of Egypt and Liquori [1937] 3 AER 8, are examples of cases in which the courts in the United Kingdom have recognised a de facto state. It is true that in some cases, such as that in the Arantzazu Mendi the government may recognises the de jure as well as the insurgent de facto states. The recognition of statehood is a matter that requires a common stand to be taken by all the...