State v Jang Dong Myeong [2003] FJHC 191; HAC0019.2002S (28 April 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0019 OF 2002S

STATE

-v-

JANG DONG MYEONG

Hearing: 9th April 2003
Sentence: 28th April 2003

SENTENCE

The assessors gave their unanimous opinions that you are guilty on each count of the Information. The maximum sentence under Counts 1, 3, 5, 7, 9 and 11 is $400 fine. The maximum sentence in respect of Counts 2, 4, 6, 8, 10 and 12 is $100,000.

The aggravating factors in this case are that you obstructed the Fisheries officials when they tried to obtain the catch log from you, and that the breaches were several. Further I accept as a matter of fact that this was not a case of an honest mistake of law. If you had been honestly of the view that you had not been in Fiji’s EEZ, you would not have tried to hinder the investigations, nor would you have falsely told the investigators that the co-ordinates at which the South Star was, were those of the Winfull vessels. Nor do I accept that a seaman of 23 years experience in a responsible position would have used Exhibit 4 to check his position. I find that Exhibit 4 has too small a scale for accuracy and certainly could not have provided you with reliable data about the EEZ. As Captain of the South Star you must take full responsibility for these breaches of Fiji’s laws. These are the aggravating factors in respect of all counts.

In respect of the offence under Regulation 18, whilst I do not accept that this Regulation was never enforced, I do accept that the failure to notify the authorities of your trips to the EEZ was far less serious than the acts of fishing in Fiji waters without a licence. The statutory maximum sentence is a reflection of this.

Under section 16 of the Marine Spaces Act the maximum sentence of $100,000 per breach is quite understandable. Fish is a precious resource in Fiji on which the livelihood of many depends. The uncontrolled depletion of these resources by foreign fishing vessels is obviously a very serious matter indeed particularly when Fiji’s EEZ is hard to police. The amount of fish caught in this case was large.

In your favour however is that you did not personally benefit from the fish caught and that it may well be that your shipping agents are partly responsible for the position you are now in. Also in your favour are the strong mitigating factors advanced by your counsel.

They are that you have been out of a job since August 2002 that your daily living expenses are now being met by other Korean friends in Fiji and that your wife is now supporting your family in Korea. However, despite my request for documentary evidence of means, such evidence has not been provided to me. In particular I requested details of your salary or wages whilst employed, and whether you hold shares or a financial interest in CKP Fishing or any other company. In the circumstances, all I have is the information relayed to me by counsel that you have no financial means to pay more than $10,000 in fines.

No fine can be imposed until the court has conducted an examination of the defendant’s means. This is because a defendant is liable to serve a period of imprisonment if he does not pay his fine, and a fine cannot be imposed which is so excessive that it is tantamount to imposing the default period of imprisonment.

I accept that you have limited means certainly in Fiji. In other circumstances I would have ordered forfeiture of the vessel under section 18 of the Marine Spaces Act. However I am advised that civil proceedings by a creditor company in Korea have already been brought in the High Court’s Admiralty jurisdiction, and that an order has been made by Singh J for arrest of the South Star including the fishing equipment and chattels found on board. It appears that when the Order was made, his Lordship may not have known that the South Star had already been arrested by the Ministry of Fisheries under section 17 of the Marine Spaces Act. However the Order for arrest of the vessel pre-dated the convictions in this case and although I gave the State time to set this order aside, the Order continues in force. I consider that I therefore cannot order forfeiture of the vessel or of the fishing equipment as part of my sentence in this case.

The fish found on board however is a different matter. It was sold under section 17(6) of the Act and the funds are held pending the determination of this case. I order that the total sum of $14,598.53 from the sale of the fish be forfeited to the State under section 18 of the Marine Spaces Act. Further any further sums obtained by the Fisheries Department from the sale of fish found on the South Star in August 2002 must also be forfeited to the State.

State Counsel has helpfully referred me to a number of authorities from the Pacific region. In Munin –v- Chen Sung Chizu and Hung Shang Yi (Magistrates Court, Northern Territories (undated)), Gillies S.M. imposed a $6000 fine on one count of fishing without a license in Australian waters in a case where the value of the catch was $108,000 and the statutory maximum was $250,000. In Public Prosecutor –v- Lin Shiow Her Supreme Court of Vanuatu (1993) the illegal catch was in excess of $180,000 and the fine imposed was Vatu 20 million with forfeiture of the vessel and costs of Vatu 10 million to be paid to the prosecution. In Ministry of Agriculture and Fisheries –v- Dubchak & Others (1994), the defendants, the Master, was fined $7000 for illegally fishing in New Zealand waters. The maximum sentence was $10,000 per offence, the judge finding that the tariff ranged from $2000 to $7000 per offence. The total fine imposed on the Master was $7000.

A fine of $10,000 was imposed on the Master of a fishing vessel fishing illegally in New Zealand waters in Chun Woong Kim –v- McDonald (1980) Auckland Supreme Court. The vessel was also forfeit. The maximum fine at that time was $50,000.

Taking all factors into account especially the fact that I find you committed the offences knowing very well what you had done, and the seriousness of the offences, the sentence I might have imposed might have been in the range of $5,000 - $7,000 for Counts 2, 4, 6, 8, 10 and 12 and $200 on each of the remaining counts. However it appears that you would be unable to pay the total sum, which would have been in excess of $31,000. Taking into account your limited means therefore I sentence you as follows:

Count 1 - $200 in default 5 days imprisonment

Count 2 - $2,000 in default 20 days imprisonment

Count 3 - $200 in default 5 days imprisonment

Count 4 - $2,000 in default 20 days imprisonment

Count 5 - $200 in default 5 days imprisonment

Count 6 - $2,000 in default 20 days imprisonment

Count 7 - $200 in default 5 days imprisonment

Count 8 - $2,000 in default 20 days imprisonment

Count 9 - $200 in default 5 days imprisonment

Count 10 - $2,000 in default 20 days imprisonment

Count 11 - $200 in default 5 days imprisonment

Count 12 - $2,000 in default 20 days imprisonment.

The total fine of $13,200 is to be paid in full within 30 days. I order forfeiture of all sums of money held from the sale of fish and bait found on the South Star, to the State.

Nazhat Shameem
JUDGE

At Suva
28th April 2003