Police v Shine Year Maritime S.A. Chin Shih Hsu [2003] CKHC 5; Cr 508-509.2002 (22 January 2003)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(Criminal Division)

NO: 508/2002, 509/2002

BETWEEN

THE POLICE
Informant

AND

SHINE YEAR MARITIME S.A.
CHIN SHIH HSU
Defendants

Mr T Elikana for Police
Mr T Arnold for First Defendant
Mr N George for Second Defendant

Hearing: 22 January 2003

REASONS FOR SENTENCE OF GREIG C.J.

Dated the 31^st day of January 2003

1. On the pleas of guilty the Defendants were each fined CI$150,000.00 and each ordered to pay CI$150.00. Court costs and CI$250.00 for costs of the prosecutor. No order was made as to forfeiture. Leave was reserved to the Defendants to apply for release from the seizure of the vessel and contents. I now give my reasons for the sentence.

2. The first Defendant was charged as owner of a foreign fishing vessel the FV Shang Yih #6 that it used the vessel between 1 and 3 December 2002 for fishing or related activities in the fisheries waters of the Cook Islands without a valid license issued under the Marine Resources Act 1989 ("the Act"). The second Defendant was charged as Captain or Master of the vessel with the same offence.

3. The charges were laid pursuant to s. 12(1) (b) and (6) of the Act. The maximum penalty for that offence is $500,000.00. In addition under s.43 of the Act the Court in addition to any other penalty may order the forfeiture of the vessel and its gear equipment stores and cargo. This is a discretionary punishment. There are no provisions in the Act which specify or limit the exercise of the discretion.

4. The Act, as its long title states, is to provide for the management and development of fisheries and related matters. Part I provides for that management and development in local fishing. Part II under which these prosecutions were brought controls foreign fishing in fisheries waters defined to include the territorial waters and the exclusive economic zone of the Cook Islands. This part sets out the prohibitions against unlicensed fishing and the regime for the issue of fishing licenses. Part III empowers authorized officers to stop board and seize vessels and to carry out inspection and investigation of suspected unlawful fishing by foreign fishing vessels. Part IV sets out the provisions for forfeiture the sale and release of seized items. Part V deals with jurisdiction and creates a number of evidential rules and presumptions to aid in the apprehension and prosecution of offenders. These include provisions making certificates of authorized officers and in some cases the Minister either sufficient or conclusive evidence of the facts averred in them. Similar rules apply to photographic evidence and the data produced from observer devices.

5. Section 57 presumes the truth of certain facts. These include the presumption that all fish found on board a vessel used in the commission of an offence was caught in the commission of that offence. The records such as the logbook of any enforcement vessel are evidence of the place where an event has taken place. There are presumptions that acts of crewmembers and records in the foreign fishing vessel are those of the master. Furthermore by s. 59 the master is guilty of any offence committed by any person on board the vessel. The onus of proof of any license or authorization is on the defendant.

6. I accept that illegal uncontrolled fishing is a worldwide problem. Fishing resources are an important asset of island nations. Control by the Act is an essential requirement for the protection of the Cook Islands fishing resources. Tuna is one of the valuable parts of those resources. The Cook Islands are spread over a large area of sea. As a result it has a very large territorial sea and EEZ. It is not rich country. Its policing and detection assets are small. Policing illegal fishing is difficult even with substantial resources in ships aircraft and personnel. It is extremely difficult for the Cook Islands.

7. The consequence is that offences ought to be punished severely by way of deterrence and to have an economic impact on the offender. The Act provides a substantial maximum penalty for offences. In addition forfeiture may be imposed which has a very severe impact on the offender. What is of particular importance to me is that for some offences under the same section as applied here committed by members of the crew the minimum penalty is $100,000.00. That seems to indicate a legislative intention that that minimum should be a guide as to the minimum for offences committed by the master and the owner who must be treated as having a higher responsibility that a mere member of the crew.

8. I was referred to a number of cases in other jurisdictions to support on either side the submissions as to the appropriate penalty in this case. There has been no case in this jurisdiction under the Act. I have read all the cases referred to me and listened with attention to the oral submissions of Counsel. There is clearly a difficulty, if not a danger, in applying the decisions of other jurisdictions to this. The legislation differs. In some cases forfeiture is mandatory and that affects the Courts considerations as to the monetary penalty. Maxima are not identical. The facts of each case vary widely. What is common is the requirement of a deterrent sentence.

9. The facts of this case are that on Monday 2 December 2002 the Police Patrol boat located a longline in the sea at a point some 30 nautical miles inside the EEZ of the Cook Islands. Later the fishing vessel in question came up to the line. The police closed on the vessel and boarded it. At this time the crew cut loose the longline and gear. The position was as before about 30NM inside the EEZ. This was confirmed on the fishing vessels own GPS instruments. Indications were clear that the crew were fishing. There was a quantity of fresh fish on the deck and in the freezer on board. The electronic navigation system was in working order as was the vessel itself including its steering gear. When a full examination was carried out at Rarotonga it appeared that entries in the catch logbook had been removed. There was an absence of data on the electronic computer equipment which it was submitted indicated that a deliberate effort had been made to hide the record of the activities of the vessel. The master challenged this but only on the ground that the police had not attempted to prevent any such tampering which rather confirms than refuted the police submission. It was also said that the Master had been unco-operative but that it was claimed was because he did not speak English.

10. The vessel has since been seized and berthed at Avatiu. The cargo of some 13 tonnes of albacore tuna have been kept chilled on board. The master and crew have remained at large on the island.

11. There was an early plea of guilty. There is a single offence although there is clear evidence of fishing activity. It is a commercial enterprise but save the statutory presumption it cannot be said that all the fish on board is the result of illegal fishing. Neither defendant has been recorded as committing any offence previously. I accept that there is no evidence that the owner deliberately intended to offend. The incursion into the EEZ is not large. But it is difficult to believe that with modern navigation tools the incursion was not known at least by the master. The owner can be classed as failing to take proper care to insure the day to day position of the vessel when in the vicinity of the Cook Islands. The alleged lack of posting of the boundaries of the EEZ is no excuse.

12. The master may not have deliberately offended but again he has the best modern navigation facilities and knew that he was some distance from Penrhyn but failed to note his proximity to Rakahanga. There is evidence of concealment including the cutting of the line when accosted the absence of paper and computer records. It is difficult to believe that the master did not know where he was fishing. There is further confusing material about the flag under which the vessel sails, its current registration and its proper call sign. This all tends to reinforce the concealment aspect and does not mitigate the offence actually before the Court.

13. There is a dispute about the value of the vessel but it is of the order of US$1.5 to US$1.8 million. The cargo of fish is said to be worth some US$24,330.00.

14. Neither the owner or the master are of substantial means but there is clearly some substance in the vessel itself. The master has a relatively modest income from fishing but he must bear the main responsibility in the offence. While the means of an offender are of relevance the over-riding aspect of this offending is the need for a deterrent concluded that forfeiture would be too severe in the particular circumstances but decided that the sum of CI$150,000.00 for each offender was proper to mark the deterrent and punitive aspects.

LM Greig CJ

NOTE: The cases referred to were Ministry of Agriculture and Fisheries v Lima [AP 146/93 Auckland Fisher J 26 August 1993]; Ministry of Agriculture and Fisheries v Equal Enterprises Ltd [AP 232/93 Wellington Barker and Heron JJ 21 February 1994]; United Fisheries Ltd v Ministry of Agriculture and Fisheries [AP 78/98 Christchurch Chisholm J 18 June 1998]; Ministry of Agriculture and Fisheries v Dubehuk [DC Wellington Keane DJ 17 August 1994]; Re Director of Prosecutions: exparte Lawler [High Court of Australia 9 March 1994]; Yang Xueqiang v The Republic [Kiribati Crim. App.10/1996 Gibbs VP Connolly and Ryan JJA 25 March 1997]; Federated States of Micronesia v Cheng Chia-W [25 July 1995 Amaraich CJ]; Public Prosecutor v Lin Shiow Her [Vanuatu d’Imecourt CJ 3 December 1993]