State v Freesoul Real Estate Development (Fiji) Pte Ltd [2022] FJHC 201; HAC282.2021 (28 April 2022)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 282 OF 2021

STATE

V

FREESOUL REAL ESTATE DEVELOPMENT (FIJI) PTE LIMITED

Counsel: Mr M Vosawale for the State

Mr D Toganivalu for the Offender

Date of Hearing: 1 March & 28 March 2022
Date of Sentence: 28 April 2022

SENTENCE

[1] This case is about environment, criminal responsibility and punishment.

[2] The offender, Freesoul Real Estate Development (Fiji) Pte Ltd is a legal business entity. The director of the company is one Mr Dick Peng. The registered office is at 1 Vanua Arcade, Suva.

[3] Following a trial in the Magistrates’ Court, the offender was convicted of two counts of undertaking unauthorized developments contrary to section 43(1) of the Environment Management Act 2005. Upon the prosecution’s application, the case was transferred to the High Court for sentence.

[4] Environmental crimes are unique category of offences. Any act which breaks environmental law and causes major harm or risk to the environment or human health is considered an environmental crime. The offences can range from littering to discharging or dumping dangerous waste.

[5] In 2005, the Parliament enacted the Environment Management Act (the Act) “for the protection of the natural resources and for the control and management of developments, waste management and pollution control and for the establishment of a national environment council and for related matters”.

[6] The Act defines "environment" as:

(a) air, land or water;

(b(b) all layers of tmosphere;

(c) all organic or inorganic matter or living organisms; or

(d) the interacting natur humanhuman systat in components referreferred to in paragraphs (a)& to (c)<(s 2)

[

[7] Part 6 of the Act imputes nal liability for a range of conduct.

[8] Sect Section 43 (1) of the Act in particular criminalizes a conduct of undertaunauted dements wnts withouithout firt first carrying out an environmental impact assessment. The section reads:

43.-(1) A person who carries out any development activity or undertaking which is subject to the EIA process without an approved EIA report, commits an offence and is liable upon conviction to a fine not exceeding $750,000 or to a term of imprisonment not exceeding 10 years or both.

[9] “Environmental Impact Assessment" or "EIA" means the environment impact assessment of a development proposal approved in accordance with Part 4 of the Act (s 4).

[10] "Development activity or undertaking" means any activity or undertaking likely to alter the physical nature of the land in any way, and includes the construction of buildings or works, the deposit of wastes or other material from outfalls, vessels or by other means, the removal of sand, coral, shells, natural vegetation, sea grass or other substances, dredging, filling, land reclamation, mining or drilling for minerals, but does not include fishing (s 4).

[11] The facts are that between 2017 and 2018 the offender was involved in a tourism development project at Malolo Island in the Western Division. While carrying out the development, the offender dug a channel in the sea and cleared mangroves from the shore, without first carrying an environmental impact assessment, in order to access the land leased by the offender for the purpose of development.

[12] The offender was granted approval for land based development after an environmental bond was paid to the Department of Environment, but not for any foreshore development. Any development to the foreshore or the sea were subject of separate EIA approvals from the Department.

[13] When the Department of Environment discovered that the offender had carried out unauthorized developments to the foreshore, they issued a Prohibition Notice on 1 June 2018 and stopped the development project.

[14] At trial, the offender did not dispute that a channel was dug and mangroves removed, but argued that they were not responsible. This contention was rejected by the learned trial magistrate, because after the offender was issued with the Prohibition Notice on 1 June 2018, Mr Peng wrote to the Department of Environment, apologizing for ‘all that has transpired’ and promising to take rehabilitative measures.

[15] By pleading not guilty to the charges, the offender elected to exercise a right to trial. That means the offender cannot claim any credit for remorse.

[16] The land based tourism project if completed may have benefited the community, but the harm that the offender has caused to the environment has diminished the benefits of that development.

[17] The offender had no regard for the marine life and corals that existed in the area where the channel was dug. The structural damage done to the area is irreversible. The affected area cannot be restored to its original state, but the damage can be mitigated by stabilizing the channel by installing Geofabric and Geogrid and putting boulders on the edge of the reinstated area (seaside only). The estimated cost of channel revetment stabilization is about $830,000 VIP (PE 2).

[18] Similarly, the offender had no regard to the marine life affected by the removal of the mangroves from an area of about 1.9 hectares. A detailed assessment of the impact of this conduct is contained in the report of the Marine Ecology Consultant, Ms Sykes (PE 4). The affected area cannot be restored to its natural state but the damage can be mitigated by carrying out restoration works which may cost about $479,600.00.

[19] There is no comparable case in Fiji for the purpose of sentence, but the Director, Environment in her evidence has said that the harm that was caused to the environment by the unauthorized development was significant. The overseas guidelines for sentencing of environmental crimes are based on different sentencing regimes.

[20] In the other local case, DPP v China Railway First Group (Fiji) Limited, Criminal Case No 788 of 2017, the offender was sentenced to a fine of $10,000.00 after pleading guilty to undertaking unauthorized development by constructing an asphalt plant and access road without first carrying out an environmental impact assessment as required by the Act. In that case there was no impact to the environment by the construction of the asphalt plant and access road.

[21] I am bound by the Sentencing and Penalties Act when exercising my sentencing discretion. The Sentencing and Penalties Act provides for a number of purposes of sentence. They are deterrence, rehabilitation and denunciation of the crime (s 4 (1)). Ultimately the sentence must be just in all the circumstances.

[22] The hefty fine and imprisonment term indicate the offences of unauthorized developments are to be treated seriously. The main aim of the sentence ought to be deterrence. In this particular case, general deterrence is more relevant than special deterrence because this is the offender’s first offence.

[23] Imprisonment is out of question because the offender is a corporation. There is no suggestion that the offender does not have means to comply with monetary sanctions.

[24] The offender’s previous clean record mitigates the offence. The aggravating factor is that the offender had caused substantial harm to the environment. The monetary cost of rehabilitating the environment for the harm done is about $1.4m.

[25] The total fine that this court can impose for the two counts ($750,000 per count) is $1.5m. Although the offending is not the most serious type, the offender’s culpability is high. The offender was involved in a large scale tourism development for economic gain, causing damage to the environment. The sentence must reflect the community’s disapproval of the offender’s lack of respect for the environment.

[26] After taking all these matters into consideration, I make the following orders:

(a) The offender is fined an aggregate sum of $1m for two counts of carrying out unauthorized developments.

(b) The offender is to post a refundable environmental bond of $1.4m with the Department of Environment and rehabilitate the affected areas to the satisfaction of the Department of Environment at its own expenses. Once the affected areas have been rehabilitated to the satisfaction of the Department of Environment the bond may be refunded to the offender.

(c) It is a matter for the Department of Environment to lift the Prohibition Notice that was issued to the offender on 1 June 2018.

(d) There will be no order for costs.

. ...........................................
Hon. Mr Justice Daniel Goundar

Solicitors:
Office of the Director of Public Prosecutions for the State
Toganivalu Legal for the Offender