The legal aspect of SAF’s armoured personnel carriers dispute with China

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By Tan Wah Piow

Almost a week into the seizure of nine Singapore's Terrex armoured Infantry Carrier Vehicles (ICVs) in Hong Kong, the Defence Minister Ng Eng Hen told the press that Singapore would commence legal proceedings for its recovery after the reasons for the detainment were made clear.

I find this requirement for “clarification” rather superfluous as the Hong Kong port authorities have already stated their legal position when the goods were seized, namely that the shipping agent was unable to provide the required "approval notices".

One week is a long time, especially when the Singapore Armed Forces (SAF) had dispatched its officers to Hong Kong immediately after the incident to "help with the investigation". If Singapore has a sound legal basis to challenge the seizure, the Defence Minister should by now be rushing to the Hong Kong High Court to seek the immediate release of the ICVs, and seek compensation at the same time.

All that is needed is for the Minister to waive the "approval notices" or to argue that such a shipment in transit is exempt by virtue of a bilateral treaty with China. Alternatively, if the minister’s case is that those items seized are mere cardboard replicas of the real thing, which I am sure they are not, then he can argue that those items are not strategic commodities under Hong Kong law. This should be the right approach to defeat the Hong Kong Customs and Excise department’s seizures of the goods if Singapore holds the requisite evidence in its favour.

An industry expert informs me that "it's a legal responsibility of exporter/shipper to ensure he has the right licences and custom permits to export/import military equipment of any kind.”  “Any military equipment is highly controlled,” she advised, “ and not easily transportable without government permits. That include transit permits.”

The expert, having examined the strategic trade control system of Hong Kong, advised that there are stringent licensing control of strategic commodities in transit. The Armoured Personnel Carriers would come under Schedule 1 of the Import and Export (Strategic Commodities) Regulations of Hong Kong as the Munitions List covers items specially designed for military use. Transit licence is therefore required regardless of whether the shipper/ exporter is a government or government body.

She further said “From online reports, Hong Kong customs seized the cargo on the basis of suspicion of arms trafficking. I am guessing it is based on the position of the cargo on the vessel (loaded below deck and surrounded by conventional shipping containers, giving the impression of an attempt at concealment.

The shipper APL (the shipper) is well established in the industry, she acknowledged. How this incident could happen is therefore intriguing as APL ought to know that anyone transhipping military goods via Hong Kong must produce a transit licence. The Singapore Armed Forces as the exporter should likewise be aware of such a legal requirement.

What has so far been asserted by the Defence Minister Ng Eng Heng, and the Major-General Melvyn Ong, unfortunately, do not amount to a legal defence against the seizures. The fact that the SAF has engaged APL to transport military equipments since the 1990s does not amount to a legal defence. Neither is the plea that “Hong Kong is a common international port of call used by military forces. There was nothing unnatural in APL using Hong Kong as a transit point" a valid legal argument.

When asked at a press conference two days ago if the SAF had the "approval notices", the   Major-General told The Straits Times that he was still “trying to seek confirmation on this". But such confirmation is only a phone call away. If the shipping company had applied for transit permission, the paper trail for this, and all previous shipments would be in the records of APL, the SAF and the foreign ministry. The inability to produce the paper work speaks for itself.

When the SAF responded to the seizure by asserting that the cargo had “no ammunition or sensitive equipment”, it sounded like a lame excuse rather than a serious legal defence. It is tantamount to an air passenger caught with a pistol when boarding a plane saying that it was not loaded.

If Singapore is in the same unfortunate situation as the air passenger, it is best to admit guilt and plea for goodwill. Crying foul or protesting that Beijing is using this incident to coerce Singapore to toe its line is futile and counter-productive.

Of course, Beijing would seek this opportunity to vent China’s displeasure at Prime Minister Lee Hsien Loong for taking a pro-US stance over the South China Sea issues. Unfortunately for Singapore, this is not just the classic case of ‘might is right’. When you are caught with your pants down, Beijing knows where to squeeze.

Having played the role as United States loudest cheerleader in the region, should Lee Hsien Loong now run to Donald Trump for help? Trump will no doubt deploy his most powerful weapon at Beijing: "Now stop it! Stop it!"

Hopefully, China will return the APC sooner rather than later. Once the dust has settled, Singaporeans may want their politicians to adopt a wiser strategy not to appear as the poodle for a faraway big power.