State v Kim [2003] FJHC 115; HAA0024J.2003S (24 June 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0024 OF 2003S

Between:

THE STATE
Appellant

And:

MEONG YEONG KIM
Respondent

Counsel: Mr. N. Nand for State
Mr. T. Fa for Respondent

Hearing: 11th June 2003
Judgment: 24th June 2003

JUDGMENT

This is an appeal against acquittal. The Respondent was charged in the Suva Magistrates’ Court, of the following offences:

FIRST COUNT

Statement of Offence

OBSTRUCTING FISHERIES OFFICERS IN THE DUE EXECUTION OF LAWFUL DUTY: Contrary to Section 20(1)(a) of the Marine Spaces Act Cap 158A.

Particulars of Offence

MEONG YEONG KIM, on the 4th day of August 2002 on board the Fishing Vessel South Star at Princess Wharf, Suva in the Central Division, obstructed the Fisheries Boarding Officers whilst carrying out their lawful duty.

SECOND COUNT

Statement of Offence

OBSTRUCTING FISHERIES OFFICERS IN THE DUE EXECUTION OF LAWFUL DUTY: Contrary to Section 20(1)(a) of the Marine Spaces Act Cap 158A.

Particulars of Offence

MEONG YEONG KIM, on the 6th day of August 2002 at Suva in the Central Division, obstructed the Fisheries Officers whilst carrying out their lawful duty.

The Respondent pleaded not guilty and the trial proceeded on the 21st of October 2002. On 10th January 2003, the learned Magistrate acquitted the Respondent on both counts. The Director of Public Prosecution appeals against the acquittals on the following grounds:

(a) That the learned trial Magistrate erred in law and in fact when he acquitted the Respondent.

(b) That the learned trial Magistrate erred in law and in fact in failing to take into consideration the evidence of first prosecution witness giving evidence with respect to the first count of obstruction.

(c) That the learned trial Magistrate erred in law and in fact in failing to take into consideration the evidence of third prosecution witness giving evidence with respect to the second count of obstruction.

(d) That the learned trial Magistrate erred in law and in fact in finding that the accused did not have the necessary mens rea even though on the evidence as adduced before the learned trial Magistrate it was found that the accused had committed the actus rea of the offences at all material times as alleged by the prosecution.

The evidence

The prosecution evidence was that fisheries enforcement officers had a duty to enforce Fiji’s fisheries laws. This included the checking of ships and their log books. On 4th August 2002, Mr. Simione Cagilaba, a fisheries officer boarded the “South Star” and informed the Captain that he was there to “clear” the boat. He asked for the vessel documents. The Captain and his agent, one Mr. Kim Junior were present, and after Mr. Cagilaba insisted, the Chief Officer (the Respondent) brought the catch log book. He would not let Mr. Cagilaba look at it and took it away to the Captain’s cabin.

Mr. Cagilaba, another fisheries officer, Mr. Wainiqolo and the Respondent then went down to the freezer. While Mr. Cagilaba was conducting a survey of the freezer, Mr. Wainiqolo called out saying that the freezer door was being shut from outside.

Mr. Wainiqolo’s evidence was that he had to crawl out of the bottom door of the freezer to get out. His evidence reads:

“We went to survey the ship’s freezer, with the accused, to do the volumetric survey of the same. We called out to the accused, he didn’t answer. There were 2 rooms in the freezer downstairs. The accused was with us in the freezer. After that we called accused to stay with us as we do the survey. He did not respond. I realised they want to lock us in the freezer. I climb up the ladder. I saw the freezer door already shut. The door can be open from the outside. I saw the door. The top part of the freezer door was locked. I ran towards the door. I kicked the bottom part of the door and it opened. I tried to open the top part of the door, but it was locked. The two doors can’t be opened from the inside. I struggled out of the bottom door of the freezer to come outside. I managed to get out. I saw the accused outside. The accused was holding the metal door (main door) and in the process of locking us inside. PW1 was in the bottom part of the freezer. I shouted to PW1 to come up as the accused tried to lock us in the blast freezer. I stood beside the door. The freezer was very cold. I did not complete the survey.”

On 6th August 2002 Filipe Viala, a fisheries officer responsible for the transit of fish from ships to containers, asked for the catch log book of the “South Star”. The Respondent came with the book and Mr. Viala took it from him. Whilst he was checking the log, the Respondent grabbed the book from the table and spoke to Mr. Viala in an aggressive and abusive manner. Mr. Viala was unable to continue his work. Later they went to the vessel to check the ship’s log book. Whilst in the vehicle the Respondent again grabbed the catch log book from the dashboard. He was reprimanded by the fisheries officers. At the naval base, the Respondent again grabbed the book although he gave it back to Mr. Viala on request.

In his statement to the police, the Respondent said in relation to the catch log:

“since that book which you call the catch log and I call it the Captain’s Personal Record Book, I cannot give it to them because it does not belong to the boat, but personally belongs to the Captain.”

He denied behaving in an abusive or obstructive manner and said that the Captain had instructed him to give the Fisheries Officers the catch log book. He said, of the incident on the 6th of August:

“I denied that I behave in an abusive manner or I had obstructed the Fisheries Officers in any manner whatsoever. One of the officers who was holding the Captain’s personal record book was rough in turning the pages which were coming off. I couldn’t see this happen to the Captain’s Record Book so I took it from the officer and gave it back to him at the Fisheries Office.”

He further told the police that he did not know that Fisheries Officers had powers to search ships. He said he did not intend to lock the officers into the freezer. He said he just closed the door of the freezer to prevent the temperature from fluctuating thus spoiling the fish inside. He said the door was closed, not locked and that the officers could open it from inside. In his two interviews, he said nothing about having difficulties understanding the Fisheries Officers.

In court however the Respondent in his sworn evidence said that he did not understand what the Fisheries Officers were saying. He said the Captain told him to get the fish log book and he obeyed. He showed it to the Fisheries Officer and then took it back to the Captain’s room. He said he then took the officers to the freezer at their request and closed the doors. He said he did not lock the door and that they could open it by pushing from the inside. He said that on 6th August 2002 he did grab the fish log from the table because he wanted to protect it from clumsy handling.

In his judgment, the learned Magistrate accepted the Respondent’s denial that he ever intended to obstruct the Fisheries Officers. He accepted that there was a communication problem between the Respondent and the Officers and said, at page 8:

“...... Because of the language difficulties, and the lack of an interpreter, when the accused was communicating with PW1, PW2, and PW3, at the material time, and given what Defence counsel mentioned on page 13 and 14 of his written submission, I find it difficult if not impossible to conclude that the accused had the necessary mens rea or guilty intent at the time the various above-mentioned “actus reus” were committed. On oath, the accused said through a Korean interpreter that he understood very little, or no English at all.”

He further found as a matter of fact:

“It could be observed that the accused did not have the intention to obstruct PW1, PW2 and PW3, in their official duties, at the material time. He was merely trying to safeguard and protect the ship’s fishing log. Furthermore, he did not intend to lock PW1 and PW2 in the ship’s freezer. The language difficulties between the accused and PW1, PW2 and PW3 was largely the cause of the problem.”

The Respondent was acquitted accordingly.

The appeal

The decision of the learned Magistrate is, according to State counsel, perverse and contrary to the evidence. Firstly, he submitted, in his caution statement, the Respondent said nothing of having difficulties understanding what the Fisheries Officers wanted. Secondly, in his sworn evidence the Respondent’s evidence was not that he did not understand, but that he knew what the Fisheries Officers wanted but had a duty to protect the book despite their requests. Thirdly, he submitted, the learned Magistrate failed to consider the cumulative nature of all the acts of the Respondent.

There is some force in his submissions. A reading of the evidence at the trial reveals a continuing course of unco-operative behaviour on the part of the Respondent. His defence was not “I did not understand what they wanted”, but appears to have been “I know what they wanted but had a duty to protect the Captain’s book and the fish, and never intended to obstruct them.”

Counsel for the Respondent however lays the problem at the door of the Fisheries Officers who should, he said, have taken a Korean interpreter to the ship.

Neither counsel was able to address me on whether “intent to obstruct” was a necessary element of the offence. Section 20(1)(a) of the Marine Spaces Act Cap 158A provides inter alia:

“Any person who –

(a) obstructs or hinders any fisheries officer or any person assisting him in the exercise of any of his powers under this Act .... shall be guilty of an offence and liable on conviction to a fine not exceeding five thousand dollars.”

There is no requirement of proof of “wilful” or “unlawful” which is often an element of the offence of obstructing public officers. In the submissions of defence counsel in the lower court, it was never submitted that there was a need to prove an intent to obstruct. At the hearing of this appeal, there was no submission made that the fisheries officers were not acting in the due execution of their duties.

In the lower court State counsel referred to the case of Ricketts –v- Cox (1982) Crim. L.R. 184 which defined the offence of obstructing police officers in the execution of their duty. In that case two police officers were looking for youths responsible for an assault. They approached the defendant and another man in the course of their investigations. The defendant acted in an abusive and unco-operative manner, using obscene language. The magistrate found that his conduct constituted an obstruction. On appeal, the Queen’s Bench Divisional Court held that on the facts, there was no doubt that the defendant had obstructed the police, and the only question was whether he had any lawful excuse for so acting. Since he did not, he was properly convicted.

In Hinchcliffe –v- Sheldon (1955) 1 WLR 1207 the court defined obstruction as “the doing of any act which makes it more difficult for police to carry out their duty.” However the English statute required proof that the obstruction was “wilful” which meant that there should be no lawful excuse for the obstruction. In Rice –v- Connolly (1966) 2 QB 414, a man refused to answer questions when approached by police, and refused to accompany the officers to the police station unless he was arrested. Since the man was acting within his legal rights, he could not be said to be obstructing the police officers.

In a commentary of the Ricketts –v- Cox decision (supra) the Criminal Law Review (1982) 184 said of the definition of an obstruction:

“While it should not be forgotten that the act complained of need not be “unlawful” independently of its operation as an obstruction according to Dibble –v- Ingleton (1972) 1 QB 48, a proposition which is clearly also correct, it seemed to be reasonably clear before the decision in the present case that what was required was some conduct which was positively misleading, impeding or interfering and which could not in law be justified.” (my emphasis)

Although section 20 of the Marine Spaces Act provides no reference to the word “wilful” or “unlawful”, wilful conduct and conduct which has no basis in any legal right (such as the right to remain silent) appear to have become part and parcel of the offence of obstruction. This is not to say that there must be an intention to obstruct. It is enough that the accused wilfully acted in a way which actively misled the officers, or physically prevented them from doing their lawful duty.

Certainly, on the prosecution’s version of the facts, there was such a physical prevention. The Respondent’s acts prevented them from inspecting the freezer on the 4th of August, from inspecting the log book on the same day, and delayed its inspection on the 6th of August. The use of hostile and abusive language could have led to a conclusion on the part of the court, that here was an accused who went beyond the merely unco-operative, to the obstructive. That was a possible, and I accept, a logical conclusion which could have been drawn from the prosecution case.

However the learned magistrate did not accept that the Respondent was obstructive or even hostile. Instead he found that he was caught in a misunderstanding exacerbated by difficulties in communication. Of course this defence was contrary to the Respondent’s caution statement, and indeed to the prosecution case. However, on the facts of the case, I cannot say that this was not a possible conclusion that the learned Magistrate could have drawn from the Respondent’s evidence. Further, although the learned Magistrate erred in looking for evidence of an intent to obstruct, when no such proof is required in law, he did not err when he found that the Respondent’s belief that he was acting properly to protect the Captain and the book, was relevant to the question of whether there was an obstruction. In concluding that the Respondent’s conduct arose not from an obstructive conduct, but from suspicion and lack of understanding, the learned Magistrate made a decision he was entitled to make on the facts of this case.

It follows that although the learned Magistrate did not adequately consider the inconsistencies in the Respondent’s defence, and erroneously directed himself on the need for proof of an intent to obstruct, he did not err in finding that there was no obstruction. This was a finding of fact which was open to him on the evidence. It is a finding that any appellate court must be loathe to interfere with.

For these reasons the grounds of appeal must fail. The appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
24th June 2003