Juan Ysmael and Company v SS Tasikmalaia
| Jurisdiction | Hong Kong |
| Date | 15 September 1952 |
| Docket Number | Case No. 94 |
| Court | Supreme Court (Hong Kong) |
(Reece J.)
Diplomatic Immunities — Subordinate Officials — Couriers — Immunities of.
Consuls — Immunities of — Consul-General Performing Occasional Diplomatic Functions — Claim to Diplomatic Immunity — Subjection to Civil Jurisdiction — Liability to Cross-Examination on Affidavit Evidence — Diplomatic Immunity — Minor Officials — Status of Diplomatic Courier — The Law of Hong Kong.
The Facts.—The circumstances giving rise to this case formed the subject of an Admiralty action in the Supreme Court of Hong Kong, in which Yuan (or Juan) Ysmael and Company, Incorporated, claimed the immediate possession of the vessel Tasikmalaja (ex the S.S. Cristobal and the S.S. Haleakala) from persons in possession of the ship who claimed to hold it on behalf of the Government of Indonesia. A second Admiralty action was brought against the Tasikmalaja by Anthony Loh, trading as A. W. King. In both these actions the Indonesian Government filed a motion seeking to set aside the writs in Admiralty on the ground that they impleaded a foreign sovereign State. The main issues concerning the immunity of a sovereign Government in the courts of law of a foreign State were carried to appeal, first to the Court of Appeal in Hong Kong and finally to the Judicial Committee of the Privy Council.1 However, in the course of the action in first instance, the rights and privileges in relation to the local jurisdiction of the Consul-General of Indonesia in Hong Kong and of a diplomatic courier of Indonesia were raised, and these issues having been decided by the Court of First Instance (following the intervention of the Attorney-General for
Hong Kong), they were not appealed against. They form the subject of this separate reportThe facts giving rise to the proceedings in the Supreme Court and the subsequent orders and judgments of that Court were as follows. On June 27, 1952, the plaintiffs in the original action (the respondents in the subsequent appeals), issued a writ in Admiralty in the Supreme Court of Hong Kong, claiming possession of the vessel Tasikmalaja, which was then in the harbour of Hong Kong and in the possession—as it transpired—of agents of the Government of Indonesia. On the same day the plaintiffs filed a praecipe for a warrant for the arrest of the vessel, whereupon the Head Bailiff, acting under the directions of the Court, arrested the ship, but permitted it to remain, while in the custody of the Court, in the de facto control of the master, who, thereafter, held it on behalf of the plaintiffs until he was obliged to go ashore on July 5. On June 30, the Consul-General of Indonesia (Mr. Kwee Djee [or Djie] Hoo), acting on the instructions of his Government, purported, by a letter, to dismiss the master. Subsequently, certain members of the crew intimidated the master and obliged him, as he alleged, to leave his ship on July 5. In consequence of this action the plaintiffs obtained a motion for the arrest of the members of the crew concerned, on the ground that their action constituted a contempt of court in that it interfered with the custody of the Bailiff. This motion was heard on July 11, and judgment upon the motion was delivered on July 18, when an order was made restraining the crew from further acts of interference with the custody of the Bailiff.
On July 7, the Government of the Republic of Indonesia entered a conditional appearance to the plaintiffs’ writ of June 27, and on July 19 applied by motion to have the writ set aside on the grounds that (1) the action impleaded a sovereign State, namely, the Republic of Indonesia, which was unwilling to submit to the jurisdiction of the Court, (2) that the steamship Tasikmalaja, the subject of the action, was the property of the Government of Indonesia, (3) that further, or alternatively, the vessel was at all material times in the possession of the Government of Indonesia by its duly authorized agents, and (4) that the Government of Indonesia was at all material times entitled to possession of the vessel. This motion was supported by the affidavit evidence of the Consul-General and of a diplomatic courier (Major Pamoerhardjo). The plaintiffs then applied for an order directing the Consul-General and the courier to attend before the Court to be cross-examined upon their affidavits. At the hearing of the motion the Consul-General and the courier sought the discretion of the Court to refuse leave to order their cross-examínation, On August 25, however, the Court made an order for cross-examination on the ground that these officers were not entitled to the immunities customarily accorded to dipomatic agents. On August 27, the Court held that by international law these officials were not entitled to diplomatic immunity. At a resumed hearing of the case, in which the Attorney-General of Hong Kong intervened on behalf of Her Majesty's Government, the Court (on September 15) found itself unable to alter its decision.
Held (on August 27, 1952): that neither the Consul-General nor the diplomatic courier were entitled to immunity from the jurisdiction of the Court, and that since neither was entitled to immunity neither could waive his immunity in any manner. Reece J. said:
“… The substance of Mr. Kwee's claim as set out in his affidavit is that he is the only direct channel of communication between his Government and the Government of Hong Kong and that he has on many occasions communicated on matters of a diplomatic nature with the Government of Hong Kong on behalf of his Government, the Government of Indonesia. And he claimed that he had to perform duties usually performed by diplomatic officers, one such duty being the claim for immunity on behalf of the Government of Indonesia in the action now before the Court.
“It seems convenient to mention here that Mr. McNeill directed the Court's attention to two Gazette Notices published in the Hong Kong Government Gazette of August 18, 1950, and October 6, 1950, respectively, the former of which reads as follows:—‘H.E. the Officer Administering the Government, under instructions from the Secretary of State for the Colonies, has been pleased to recognize Mr. Kwee Djee Hoo, provisionally and pending the issue of His Majesty's Exequatur, as Consul-General for Indonesia at Hong Kong.’
“The latter notice, No. 1156, of October 6, 1950, reads thus: ‘It is hereby notified that the King's Exequatur empowering Mr. Kwee Djee Hoo to act as Consul-General for Indonesia at Hong Kong has received His Majesty's signature.’
“These two notices show clearly that Mr. Kwee Djee Hoo had been appointed to act as Consul-General for Indonesia in Hong Kong and that His late Majesty had granted recognition to him in that capacity.
“It is contended for Mr. Kwee Djee Hoo that he is entitled to diplomatic privileges. First I will consider the law regarding the status of consuls generally and then examine the cases which have been cited to support the contention that Mr. Kwee Djee Hoo is entitled to diplomatic privileges. It is of interest to note that Counsel engaged have...
To continue reading
Request your trial