State v Lee Lang [2010] FJHC 40; HAC137.2007S (5 February 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 137 OF 2007S

STATE

V

LEE I. LANG

Counsels: Mr. L. Fotofili for the State Mr. A. Seru for the Accused

Hearings: 1st, 2nd, 3rd and 4th February 2010
Summing Up: 5th February 2010

SUMMING UP

A. ROLE OF JUDGE AND ASSESSORS

1. Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.

2. Both Counsels have made submissions to you, about how you should find the facts of the case. That is in accordance with their duties as State and Defence Counsels. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.

3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.

B. THE BURDEN AND STANDARD OF PROOF

4. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.

5. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused’s guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty.

6. Your decision must be based exclusively upon the evidence which you have heard in this Court, and upon nothing else. You must disregard anything you might have heard about this case outside of this courtroom. You must decide the facts without prejudice or sympathy, to either the accused or the Fishery Ministry, who is tasked with the duty of overseeing Fiji’s exclusive economic zone. Your duty is to find the facts based on the evidence, and to apply the law to those facts.

C. THE INFORMATION

7. The accused, Lee I. Lang, was charged with two counts of "fishing within Fiji’s exclusive economic zone without a licence", contrary to section 16(1) of the Marine Spaces Act, Chapter 158A.

8. On the first count, it was alleged that, Lee I. Lang, being the master of the fishing vessel "Win Feng 136", registered in the Republic of China, between the 2nd and 5th December 2006, used the said vessel for the purpose of fishing, at Fiji’s EEZ, when the said vessel was not licensed in accordance with section 14 of the Marine Spaces Act, Chapter 158A. On the second count, it was alleged that, Lee I. Lang, repeated the same offence, between the 17th and 20th December 2006.

D. THE MAIN ISSUES

9. The following issues arises for determination:

(i) Did the accused, being master of the fishing vessel "Win Feng 136", which was registered in the Republic of China, between the 2nd and 5th December 2006, used the said vessel for the purpose of fishing, within Fiji’s exclusive economic zone, when the said vessel was not licensed in accordance with section 14 of the Marine Spaces Act, Chapter 158A?

(ii) Did the accused, being master of the fishing vessel "Win Feng 136", which was registered in the Republic of China, between the 17th and 20th December 2006, used the said vessel for the purpose of fishing within Fiji’s exclusive economic zone, when the said vessel was not licensed in accordance with section 14 of the Marine Spaces Act, Chapter 158A?

E. THE OFFENCES AND ITS ELEMENT

10. Section 16(1) of the Marine Spaces Act, Chapter 158A, reads as follows, "...If any foreign fishing vessel that is not licensed under the provision of section 14 is used for the purpose of fishing within the exclusive economic zone, the owner and the master of the vessel are each guilty of an offence..."

11. For the accused to be found guilty of the above offence, the prosecution must prove beyond reasonable doubt, each of the ingredients of section 16(1) abovementioned, that is;

(i) If

(ii) any foreign fishing vessel

(iii) that is not licensed under the provision of section 14

(iv) is used for

(v) the purpose of fishing

(vi) within the exclusive economic zone

(vii) the owner and the master of the vessel

(viii) are each guilty of an offence ...

12. Section 6(1) of the Marine Spaces Act, Chapter 158A defines "exclusive economic zone" as follows, "...the exclusive economic zone of Fiji comprises all areas of sea having, as their innermost limits the outermost limits of the territorial sea, and, as their outermost limits, a line drawn seaward from the baselines every point of which is at a distance of 200 miles from the nearest point of the appropriate baseline". For a visual map identification of the same, please, refer to Prosecution Exhibit No.9, that is, International Map Chart F604.

13. "Fishing" means the catching, taking or harvesting of fish, including any operation at sea in support of, or in preparation for, any such activity.

F. THE PROSECUTION’S CASE

14. The prosecution’s case was very simple. They alleged the accused was the master of the "Win Feng 136" fishing vessel, between the 2nd and 20th December 2006. They also said, the "Win Feng 136" was a foreign fishing vessel, registered in the Republic of China. The prosecution also alleged, the "Win Feng 136" does not have a licence from the Fiji Government to fish within its waters, including its exclusive economic zone (EEZ). They further alleged that "Win Feng 136" is a vessel, used solely for fishing in the seas.

15. Using its "Vessel Monitoring System" (VMS), based at the Fiji’s Naval Base at Walu Bay, including the accused’s Fish catch log book [Prosecution Exhibit No.7], the State alleged that, between the 2nd and 20th December 2006, the accused, while captaining the "Win Feng 136", was fishing within Fiji’s exclusive economic zone (EEZ).

16. The prosecution said, on board the "Win Feng 136" is a "Global Positioning System" (GPS). Captains use the GPS to locate their positions in the sea. Also, on "The Win Feng 136" is the "Automatic Location Communicator" (ALC). The ALC transmit the data obtained from the GPS to the satellites, which then transmit the data to Perth, Australia. At Perth is the "Land Base System", which processes the data, and transmit the same to the Forum Fishing Agency (FFA), based in the Solomon Islands. The FFA then transmit the same to Fiji, via its "Vessel Monitoring System" (VMS). There is only one VMS for Fiji, based at the Fiji Naval Base at Walu Bay.

17. The VMS’s computer printout, which are contained in Maps No.1 to 8, of Prosecution Exhibit No.6, show that "Win Feng 136" was fishing within Fiji’s EEZ between 2nd and 20th December 2006, without a Fiji Government’s fishing licence. Even the accused’s fish catch log book [Prosecution Exhibit No.7], show that "Win Feng 136" was fishing within Fiji’s EEZ on 18th and 19th December 2006. That was the case for the Prosecution.

G. THE ACCUSED’S CASE

18. The accused’s case was also simple. He gave evidence on oath. He did not deny that between the 2nd and 20th December 2006, he was the captain and therefore master of "Win Feng 136". He also did not deny that "Win Feng 136", was used solely for fishing, and that it was a foreign fishing vessel, egistered in the Republic of China [see Prosecution Exhibit No. 2]. He also did not deny that "Win Feng 136" had no licence to fish in Fiji’s waters, let alone it’s EEZ. He admitted he was on board the "Win Feng 136" between the 2nd and 20th December 2006, and was fishing, not within Fiji’s EEZ, but in the High seas. He denied the two allegations against him.

19. He said, although his fish catch log book may implicate him, with his entries on 18th and 19th December 2006, which said he was fishing within Fiji’s EEZ, he said he made a mistake. He admitted a working GPS and ALC system was on "Win Feng 136", at the material time. He acknowledged that captains use the GPS to locate their positions in the seas, and that the ALC transmit GPS data to satellites, which transmits the same to Perth’s (Australia) land base system, which in turn process the data and transmit the same to FFA in the Solomon Islands, who sends the data to Fiji via the VMS. The accused said, the VMS data was not correct. He maintained his position that he did not fish in Fiji’s EEZ, at the material time. That was the case, for the defence.

H. ANALYSIS OF THE EVIDENCE

20. In terms of the offence created by section 16(1) of the Marine Spaces Act, Chapter 158A, and after considering the evidence of the six prosecution witnesses, including that of the accused and the agreed facts, the following elements of the offence and material facts, are not disputed by the parties:

(i) that the "Win Feng 136" was a foreign fishing vessel, registered in Taiwan;

(ii) that "Win Feng 136" was not licensed to fish within Fiji’s EEZ;

(iii) that the accused was the captain and master of "Win Feng 136" in December 2006;

(iv) that, under the leadership of the accused, "Win Feng 136" was fishing from 2nd to 20th December 2006, and when it arrived at Suva Harbour on 12th February 2007, its total fish catch was confiscated, and sold for $108,000, the money being deposited with the Fiji government.

21. Because the above material facts are not disputed by the parties, as a matter of law, you as assessors and judges of fact, can take it that the above material facts has been proven by the prosecution beyond a reasonable doubt. The significance of the above is that the issues are narrowed down. In other words, the disputed issues are narrowed down, in terms of the offence, created by section 16(1) of the Marine Spaces Act, Chapter 158A.

22. In this case, the two issues for you to determine, as assessors and judges of fact, are:

(i) whether or not, the accused, as captain of "Win Feng 136", fished within Fiji’s EEZ between the 2nd and 5th December 2006?

(Count No.1).

(ii) whether or not, the accused, as captain of "Win Feng 136", fished within Fiji’s EEZ between 17th and 20th December 2006?

(Count No.2).

23. In order to prove its case against the accused beyond reasonable doubt, the prosecution essentially relied on two types of evidence. The first, is the evidence eminating from the accused’s own fish catch log book [Prosecution Exhibit No. 7 – tendered by consent of the parties]. The second, is the evidence eminating from the Fiji Navy’s VMS computer at the Naval Base, at Walu Bay. The VMS computer made a printout [ie. Prosecution Exhibit No.6 – tendered by consent of the parties], which appeared to say that the accused’s "Win Feng 136" was fishing within Fiji’s EEZ, at the material time. The prosecution appear to be contending that, when the two above evidence are put together, they prove beyond reasonable doubt the guilt of the accused, on the two counts.

24. Let us first discuss the accused’s fish catch log [Prosecution Exhibit 7]. In his evidence, the accused said, he is familiar with the GPS on the "Win Feng 136", and uses the same to plot his position in the sea. In his fish catch log, the accused has plotted his position from 2nd to 24th December 2006. When the same was double checked by naval officer, Timoci Natuva, he found that, given the accused’s own plotting, he was fishing within Fiji’s EEZ, on 18th and 19th December 2006. He put it to the accused, who was present at the time, and he agreed with Mr. Natuva, although he said he was mistaken when he gave evidence, on oath. Mr. Natuva said, the entries in the other parts of the catch log showed that the accused was fishing outside Fiji’s EEZ. Later on when cross- examined, he said he was not sure whether or not, in the other entries, the accused was fishing within Fiji’s EEZ, because he was told to concentrate on the 18th and 19th December 2006 dates only.

25. The second type of evidence relied on by the prosecution, to prove its case against the accused beyond reasonable doubt, is the computer printout eminating from the Fiji Navy’s VMS [ie. Prosecution Exhibit No.6 – tendered by consent of the parties]. In Prosecution Exhibit No. 6 are 8 maps, which found that "Win Feng 136" was fishing in Fiji’s EEZ from 2nd to 20th December 2006, which covered the times alleged in counts No. 1 and 2.

26. To accept the Fiji Navy’s VMS findings, one has to understand how the VMS system works. It is a combination of computers, satellites and machines at work. One cannot deny that we are living in the age of computers, satellites and machines. When we go to the banks, supermarkets, hospitals and at work, we are surrounded by computers etc. On every FFA registered fishing vessel is a GPS and ALC. Captains use the GPS to plot their positions in the seas. The ALC transmit the GPS data to the satellites, which then transmits the same to Perth, Australia, where the Land Base System, is situated. At Perth, the data is processed and the same transmitted to the FFA, in the Solomon Islands. The FFA then transmits the data to the member State’s VMS. Fiji’s VMS is with the Fiji Navy at Walu Bay.

27. According to Mr. Anare Rasumusumu, the Navy’s VMS operator of 12 years standing, he was told to track the "Win Feng 136" previous routes after it was boarded by fisheries government officials on 12th February 2007. He said, he picked up the name of "Win Feng 136" from the list on the VMS, and dragged it up to the map on his VMS computer. He traced the "Win Feng 136" position to December 2006. He listed his finding in 8 maps in Prosecution Exhibit No. 6. The result showed the "Win Feng 136" was fishing in Fiji’s EEZ from 2nd to 20th December 2006, which covered the dates alleged in counts No. 1 and 2. Mr. Rasumusumu said, they double checked their findings with the Forum Fishing Agency, which said that their data were consistent.

28. The accused, on the other hand, denied the allegations against him. He said, he did not fish in Fiji’s EEZ, at the material time. He said, he recorded his positions at sea, in his fish catch log. He said, he was fishing in the high seas, that is, in the international waters. He said, he disagreed with the correctness of Mr. Rasumusumu’s VMS findings, as recorded in Prosecution Exhibit No.6, although he understood that the VMS findings came from the "Win Feng 136" GPS and ALC, which was transmitted via satellite, Perth, FFA and to Fiji’s VMS. He said, he was fishing, at the material time, but only in the High seas.

I. SUMMARY

29. The resolution of this case, will in reality, depend on whether or not you accept Mr. Rasumusumu’s VMS findings, as contained in the 8 maps in Prosecution No. 6. You have heard the evidences of all the six prosecution witnesses, including that of the accused. You have visited Fiji’s VMS system at the Naval Base, at Walu Bay, and seen a demonstration from Mr. Rasumusumu of how it works. You have heard his evidence, and the evidence of Mr. Simione Cagilaba, on how the VMS system works. You have seen how each prosecution witness and the accused gave evidence in court. You have observed their demeanors in the courtroom – how they answered question – were they evasive or argumentative? How did they behave in the courtroom, in general? Given the above, my directions on the law, your life experiences and common sense, you should be able to decide which evidence are reliable and acceptable, and which evidence are not reliable and to be rejected.

30. If you are satisfied beyond reasonable doubt that Mr. Rasumusumu’s VMS findings in Prosecution Exhibit No. 6 are correct, in that the "Win Feng 136" was fishing in Fiji’s EEZ between 2nd to 20th December 2006, and you are sure of the accused’s guilt, you must find him guilty as charged on both counts. If you are not satisfied beyond reasonable doubt that Mr. Rasumusumu’s VMS findings in Prosecution Exhibit No. 6 are correct, and you are not sure of the accused’s guilt, you must find him not guilty as charged on both counts.

31. Your possible verdict are as follows:

(i) Count No. 1 - Guilty or Not Guilty

(ii) Count No.2 - Guilty or Not Guilty

You may now retire to deliberate. When you have reached your opinions, please advise the court clerk, so that we can reconvene to receive them.

Salesi Temo
Acting Judge

AT Suva
5th February 2010