State v Kyeong [2003] FJHC 132; HAA0026J.2003S (12 September 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0026 OF 2003S

Between:

STATE
Appellant

And:

PAEK KYEONG
Respondents

Hearing: 9th September 2003
Judgment: 12th September 2003

Counsel: Mr. S. Leweniqila for State
Mr. S. Valenitabua for Respondent

JUDGMENT

On the 26th of May 2003, the Respondent was charged with the following offences:

FIRST COUNT

Statement of Offence

TAKING FISH WITHOUT A LICENCE FROM FIJI FISHERIES WATERS: Contrary to Section 5(3) and 10(1) of the Fisheries Act, Cap 158.

Particulars of Offence

PAEK KYEONG, on the 14th day of February 2003 took fish using a vessel in Fiji Fisheries waters by way of trade or business without being authorized by a licence to take fish under the provisions of the Fisheries Act.

SECOND COUNT

Statement of Offence

TAKING FISH WITHOUT A LICENCE FROM FIJI FISHERIES WATERS: Contrary to Section 5(3) and 10(1) of the Fisheries Act Cap 158.

Particulars of Offence

PAEK KYEONG, on the 15th day of February 2003 took fish using a vessel in Fiji Fisheries waters by way of trade or business without being authorized by a licence to take fish under the provisions of the Fisheries Act.

THIRD COUNT

Statement of Offence

TAKING FISH WITHOUT A LICENCE FROM FIJI FISHERIES WATERS: Contrary to Section 5(3) and 10(1) of the Fisheries Act Cap 158.

Particulars of Offence

PAEK KYEONG, on the 16th day of February 2003 took fish using a vessel in Fiji Fisheries waters by way of trade or business without being authorized by a licence to take fish under the provisions of the Fisheries Act.

FOURTH COUNT

Statement of Offence

TAKING FISH WITHOUT A LICENCE FROM FIJI FISHERIES WATERS: Contrary to Section 5(3) and 10(1) of the Fisheries Act Cap 158.

Particulars of Offence

PAEK KYEONG, on the 17th day of February 2003 took fish using a vessel in Fiji Fisheries waters by way of trade or business without being authorized by a licence to take fish under the provisions of the Fisheries Act.

FIFTH COUNT

Statement of Offence

TAKING FISH WITHOUT A LICENCE FROM FIJI FISHERIES WATERS: Contrary to Section 5(3) and 10(1) of the Fisheries Act cap 158.

Particulars of Offence

PAEK KYEONG, on the 22nd day of February 2003 took fish using a vessel in Fiji Fisheries waters by way of trade or business without being authorized by a licence to take fish under the provisions of the Fisheries Act.

SIXTH COUNT

Statement of Offence

TAKING FISH WITHOUT A LICENCE FROM FIJI FISHERIES WATERS: Contrary to Section 5(3) and 10(1) of the Fisheries Act Cap 158.

Particulars of Offence

PAEK KYEONG on the 23rd day of February 2003 took fish using a vessel in Fiji Fisheries waters by way of trade or business without being authorized by a licence to take fish under the provisions of the Fisheries Act.

SEVENTH COUNT

Statement of Offence

TAKING FISH WITHOUT A LICENCE FROM FIJI FISHERIES WATERS: Contrary to Section 5(3) and 10(1) of the Fisheries Act Cap 158.

Particulars of Offence

PAEK KYEONG, on the 8th day of March 2003 took fish using a vessel in Fiji Fisheries waters by way of trade or business without being authorized by a licence to take fish under the provisions of the Fisheries Act.

EIGHTH COUNT

Statement of Offence

TAKING FISH WITHOUT A LICENCE FROM FIJI FISHERIES WATERS: Contrary to Section 5(3) and 10(1) of the Fisheries Act cap 158.

Particulars of Offence

PAEK KYEONG, on the 9th day of March 2003 took fish using a vessel in Fiji Fisheries waters by way of trade or business without being authorized by a licence to take fish under the provisions of the Fisheries Act.

NINTH COUNT

Statement of Offence

TAKING FISH WITHOUT A LICENCE FROM FIJI FISHERIES WATERS: Contrary to Section 5(3) and 10(1) of the Fisheries Act Cap 158.

Particulars of Offence

PAEK KYEONG, on the 10th day of March 2003 took fish using a vessel in Fiji Fisheries waters by way of trade or business without being authorised by a licence to take fish under the provisions of the Fisheries Act.

TENTH COUNT

Statement of Offence

TAKING FISH WITHOUT A LICENCE FROM FIJI FISHERIES WATERS: Contrary to Section 5(3) and 10(1) of the Fisheries Act Cap 158.

Particulars of Offence

PAEK KYEONG, on the 11th day of March 2003 took fish using a vessel in Fiji Fisheries waters by way of trade or business without being authorized by a licence to take fish under the provisions of the Fisheries Act.

On the same day he pleaded guilty on all counts. The facts were read out on the 29th of May 2003. They were that on the 14th of May 2003 a Fisheries Enforcement Officer reported to the police that he had detained a fishing vessel called the “Sun 5” for fishing without a licence. A police investigation commenced. It revealed that on ten separate days the vessel had entered Fiji waters. The prosecution said that the total value of the catch was $20,261.30. This was disputed by the defence which said that the catch had been worth about $17,000.00. The Respondent was a first offender.

Counsel’s mitigation on behalf of the Respondent was not on the court record but after a successful application to supplement the court record, a copy of it was submitted to me.

The Respondent came to Fiji to work as Captain of the “Sun 5”, which is a vessel registered in Fiji. It was licensed to fish in Fiji waters in 2002 and an application for a licence for 2003 was made in January 2003. It appears to have been misplaced by the Fisheries Department and a fresh application was made on the 13th of February. In mitigation, it was said that the Respondent thought that the application was about to be granted.

Sentence was delivered on the 5th of June 2003. The learned Magistrate said:

“I have considered the plea of guilty, the mitigation and that this accused is a first offender. I have noted in mitigation, this accused had lodged an application for renewal of the licence in January 2003, and it was misplaced by the officers in the Fisheries Department. They then made a fresh application on 13/02/2003. Those are the mitigating features.

The aggravating feature is that the accused is about 45 years old, a captain should know that he cannot go out to sea, without being issued a licence.

From the above and because this accused is a first offender and has pleaded guilty to all counts, I therefore order that the accused be fined $250.00 on each count a total of $2,500 in all.”

On the 6th of June 2003, on the defence application, the vessel was released. The record was also supplemented to show that the prosecution made an application for forfeiture of the vessel under section 10(7) of the Fisheries Act. It appears that the learned Magistrate did not consider this application.

The appeal

The Director of Public Prosecutions appeals against the sentences on the following grounds:

“a. That the sentence imposed by the learned Magistrate on the ten counts was wrong in principle;

2. That the aforesaid sentence was manifestly lenient in all the circumstances of the case;
   

100. That the learned Magistrate erred in law when he failed to rule on the application for forfeiture under section 10(7) of the Fisheries Act, Cap 158.”
     

The fines

In his submissions, State counsel referred to a number of comparable cases of fishing in Fiji waters without a licence, and said that the fines imposed individually and in total were inadequate. In particular he said that similar cases had resulted in fines ranging from $2,000 to $7,000 per offence. He said that the value of the total catch far outweighed the total fines, and that therefore the level of the fines had no deterrent effect at all.

Counsel for the Respondent said that the fines on each count fell below the statutory maximum for each offence and that other cases in Fiji had been for prosecutions under the Marine Spaces Act which carried heavier statutory penalties. He further submitted that because the Fisheries Act was intended for the local fisherman who fished without a licence, and because the Respondent was fishing on a locally registered vessel, the lower fines were quite reasonable.

In State –v- Jang Dong Myeong Criminal Case HAC0019 of 2002S, I reviewed sentences passed in the region for offences of fishing without a licence in Fiji waters. I considered the cases of Munin –v- Chen Sung Chizu and Hung Shang Yi (Magistrates Court, Northern Territories), Public Prosecutor –v- Lin Shiow Her (Supreme Court of Vanuatu) 1993, Ministry of Agriculture and Fisheries –v- Dubchak & Others (1994) NZ High Court and Chun Woong Kim –v- MacDonald (1980) Auckland Supreme Court, and I found that the sentence tariff for foreign fishing vessels fishing without a licence within a country’s exclusive economic zone, ranges from $2000 to $7000 per offence. In Jang Dong Myeong (supra) however I sentenced the accused to $2000 fine on each count after taking into account his limited means.

In State –v- Chen Chaolin Crim. Case No. HAC0010 of 2003S, the accused was ordered to pay a fine of $4000 on one count of fishing without a licence. In State –v- Zhang Jian Chuan Crim. Case HAC0009 of 2003S, I made a similar order for one offence of fishing without a licence.

However, those were cases of breaches of section 16 of the Marine Spaces Act, in respect of which the maximum fine is $100,000. It is an offence in respect of foreign fishing vessels fishing in local waters.

Section 5(3) of the Fisheries Act Cap. 158 provides:

“No person shall take fish in Fiji Fisheries waters by way of trade or business or as an employee of a person carrying on the trade or business of a fisherman unless such person is authorised by a licence to take fish:

Provided that –

(a) a person who takes fish with a line from the shore or with a spear shall not be required to obtain such a licence;

(b) the Minister may by regulation exempt any person from the necessity of possessing such a licence.”

Section 10(1) of the Act provides:

“Any person who, being required to be the holder of a licence, takes or attempts to take fish in Fiji fisheries waters or is in possession of fishing apparatus in such circumstances as to satisfy the court before which he is tried that he intended to use the apparatus for the purpose of taking or destroying fish without being licensed under this Act shall be liable to imprisonment for three months or to a fine of $500 or to both such penalties.”

Section 10(7) of the Act provides:

“The court may order the forfeiture to the Crown of any vessel, apparatus or catch or the proceeds of sale on any catch detained ...... employed in the commission of, or derived from any act proved to be an offence under this Act or any regulation thereunder.”

Clearly the tariff identified for offending under the Marine Spaces Act cannot be applicable to offending under section 10(1) of the Fisheries Act. Further whilst the total value of the illegal catch is relevant to the total sentence, where the catch is worth more than $5000 (the maximum possible on ten counts), that relevance is less compelling. Instead the value of the catch ought to be considered instead in the discretion to order forfeiture of the vessel, apparatus and catch.

The aggravating features in this case are, the persistent nature of the offending, the knowledge that a licence had not been obtained for fishing in Fiji waters and the value of the catch. The mitigating features are the guilty plea, the fact that an application had been made, and the Respondent’s previous good character. In all the circumstances the fines of $250 per count are neither excessive nor lenient. The statutory maximum under section 10(1) should normally be reserved for the worst type of cases.

The fines of $250 on each count are not wrong in principle and grounds (a) and (b) of the appeal are unsuccessful.

Forfeiture

Counsel for the Respondent submitted that this is not an appropriate case for forfeiture of the vessel because section 10(7) does not apply to locally-registered vessels and because in any event it would be unfair to make such an order.

State counsel submitted that the learned Magistrate erred in failing to rule on the State’s application for forfeiture, and that because this was a case of deliberate fishing without a licence forfeiture ought to have been ordered.

Section 10(7) of the Fisheries Act is very clear. It provides that the court may order forfeiture of vessel, apparatus or catch “employed in the commission of, or derived from, any act proved to be an offence under this Act or any regulation thereunder.” An order of forfeiture for fishing apparatus used in an offence committed by foreign fishing vessels is mandatory.

I therefore do not share counsel’s view that section 10(7) does not apply to locally registered vessels. It clearly applies to all vessels involved in offences under the Act or the regulations. The section is sufficiently clear and unambiguous not to require a perusal of Hansard. However, even if such perusal were indicated, the concern expressed by the European nominated member of the Legislative Council of 12th June 1941, when the Bill was debated, was a concern that the discretion to order forfeiture should apply to foreign vessels as well as locally registered vessels. That is precisely how the section reads – it refers to both categories. The court clearly had a discretion to order forfeiture in this case.

State counsel referred to Mitchell –v- Abas and Others (1998) 100A Crim. R. 103, R –v- Director of Public Prosecutions, ex parte Lawler (no citation given) 9 March 1994, High Court of Australia, and Cheatley –v- R [1972] HCA 63; (1972) 127 CLR 291 in support of his submissions.

In Mitchell Abas (supra) the Master of a New Zealand fishing vessel was charged with illegal fishing in Australian waters. He was fined $9,000 and forfeiture of the vessel was ordered. The owner of the vessel sought relief against forfeiture, arguing, inter alia, that the seizure was unconstitutional. It was held by the High court, that a fine alone could never be an adequate deterrent in respect of illegal fishing, and that even where the owner was innocent, forfeiture was a necessary part of fisheries management.

Brennan J, at page 6.6 said:

“The forfeiture of things by which offences are committed goes back to the law of deodards, but the modern statutes which provide for the forfeiture of property owned by an innocent person are justified on the footing that the liability to forfeiture enlists the owner‘s participation in ensuring the observance of the law and precludes future use of the thing forfeited in the commission of the crime.”

McHugh J, in considering the purpose of the provision under the Australian Fisheries Management Act 1961 said, at p.6.20:

“Protection of the nation’s fishing grounds is a matter of high importance. If protection is to be achieved, drastic deterrents may be needed. If the means selected are reasonably proportionate to the purpose of protection, it is for Parliament and not this Court to say whether they should be used. In weighing the proportionality of Parliament’s response in this particular field, the utility of deterrent measures is of paramount importance. Illegal fishing in the vast expanse of the Australian territorial waters is difficult to detect and expensive to combat. The forfeiture of vessels engaged in illegal fishing not only sends a persuasive message to potential wrongdoers, it also prevents further illegal use of the vessels and renders the illegal behaviour of the masters and crews unprofitable.”

In Cheatley (supra) a foreign boat was found fishing in Australian waters. The master was fined $50 and the boat was ordered to be forfeited to the Crown. The Supreme Court of the Northern Territory quashed the order. On appeal to the High Court the original order for forfeiture was upheld. Barwick CJ said that the purpose of the provision was to protect Australian fishing grounds from exploitation by foreign vessels, and that such exploitation called for “drastic measures” in order to afford effective deterrence. Thus the complicity of the owner (or his innocence) was irrelevant.

Mason J said (at p.311):

“Section 13AA is the central provision of a licensing scheme regulating fishing by foreign boats in proclaimed waters in the declared fishing zone extending twelve miles seaward from territorial limits. The legislature plainly viewed a contravention of its provisions as a very serious matter. The difficulty of enforcing compliance along the length of the Australian coastline called for a stern deterrent if observance of the provisions was to take place.”

The principles relevant to the order for forfeiture were discussed in Mitchell –v- Abas (per Wallwork J). In that case five foreign fishing vessels were found fishing in Australian waters. The magistrate who heard the case at first instance, decided not to order forfeiture of the vessels. On appeal to the Supreme Court of Western Australia, it was held that these were commercial fishing vessels, found fishing in a prohibited area. It was further held that the magistrate had failed to sufficiently consider the need to deter owners of such vessels who allowed them to be used in this way. Nor was sufficient weight put on the need to conserve fishing grounds. The vessels were ordered to be forfeited to the Crown.

Applying those principles to this case, the facts show me that this was not a case of a fisherman who inadvertently fished on one occasion in Fiji waters without a licence. This was a case of ten separate incidents of fishing without a licence. Further the vessel had been subject to a licence in 2002 and therefore there was a deliberate and systematic flouting of the law. The sizes and values of the catches are also relevant. There is no doubt at all that the owners of the vessel benefited from the illegal fishing.

This was not a case of a small-time fishing vessel owned locally and fishing to supply the Suva market. The vessel, although locally registered is owned by a company called Blue Ocean International Trade Limited with an address in Samabula. It is a long line vessel 2250 metres in length. A supplementary affidavit of Company Director Lee Kyung Sang dated 6th June 2003, and which was filed in the Magistrates’ Court states that he is a member of an association called “Prison Fellowship Korea”. He said he worked on the rehabilitation of Fijian ex-prisoners and that the Company Deep Sea Fishing Company Ltd. operated the Sun 5 to help these ex-prisoners to find employment. Annexures to his affidavit include a letter from the Fiji Prison Fellowship stating that Mr Lee Kyung Sang is a regular visitor to the prisons where he conducts counselling and Bible study classes, a newspaper cutting showing that he donated a mirror to the Women’s Prison with a promise to donate more in the future.

I accept that Mr. Lee Kyung Sang has been doing commendable work in the prisons of Fiji. I also accept from the material filed that he knew that the licence to fish in Fiji waters had not been renewed. However I cannot accept that the philanthropic work of one of the directors of the company can justify a decision not to forfeit the vessel and its fishing apparatus. On no less than 10 separate occasions the vessel took part in unlawful fishing activities. If the crew is indeed made up of ex-prisoners, these illegal activities are hardly likely to encourage rehabilitation and respect for the law.

In this case, the deliberate flouting of the law, and the persistent nature of the offending must lead to an order for forfeiture. In 2003 alone, the Suva High Court has dealt with 3 cases of illegal fishing in Fiji waters. I am not aware if the other courts have experienced such a sudden surge of offending under the Marine Spaces Act and the Fisheries Act. Finally, the fact that this is a locally registered vessel, does not persuade me that it ought not to be forfeited. The vessel is clearly intended for commercial use and the owners of the boat (despite the charges payable after detention) have benefited from the illegal fishing activity.

For these reasons I order that the vessel “Sun 5” be forfeited to the State, together with all its fishing apparatus.

Result

The appeal against the fines is dismissed. An order for the forfeiture of vessel and fishing apparatus is made. The State’s appeal succeeds to this extent.

Nazhat Shameem
JUDGE

At Suva
12th September 2003