Yang Xueqiang v Republic [1997] KICA 16; Criminal Appeal 10 of 1996 (25 March 1997)

IN THE COURT OF APPEAL OF KIRIBATI
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. 10 OF 1996

BETWEEN

YANG XUEQIANG
Appellant

AND

THE REPUBLIC
Respondent

CRIMINAL APPEAL NO. 11 OF 1996

BETWEEN

TSAI CHING SHAN
Appellant

AND

THE REPUBLIC
Respondent

Date of Hearing: 17 March 1997
Delivery of judgment: 25 March 1997

Mr D Lambourne for the Appellants
Mr D Sim for the Respondent

JUDGMENT OF THE COURT
(Gibbs V.P, Connolly and Ryan JJ.M

These two appeals were heard together.

The appellant Yang Xueqiang pleaded guilty to two charges. The first was that being the master of a foreign fishing vessel on 16 November 1996 he entered the fishing limits of the Republic of Kiribati without a permit contrary to s.5(1)(a) of the Fisheries Ordinance and not being exempted under a purpose recognised by international law. He was convicted and fined $50,000 payable forthwith in default three years' imprisonment. The second was that he fished within the fishing limits of the Republic of Kiribati without a permit contrary to s.5(1)(b) of the Fisheries Ordinance. On this charge also he was convicted and fined $50,000 payable forthwith in default three years' imprisonment. The result was that he was fined a total of $100,000 or six years' imprisonment in default. On non-payment of the fines forthwith, lie was committed to prison.

In the case of Tsai Ching Shan, the same charges were laid, he pleaded guilty to them and the same penalty was imposed as in the case of Yang Xueqiang. They have appealed on the ground that the sentences imposed on them were manifestly excessive.

The vessels of which the two appellants were the masters were both sighted conducting illegal fishing within the Kiribati exclusive economic zone without licences by a police patrol boat on 16 November 1996. The vessel of which Tsai Ching Shan was the master is registered in Guang Zhou, Peoples Republic of China. The vessel was chased and was stopped, and a boarding party was put onboard. The other vessel of which Yang Xueqiang was the master is registered in Taiwan and was boarded while in the process of loading in its fishing line.

A valuation of the vessel registered in Taiwan estimates its value at $323,000 and the value of the catch on board at $86,427,90. The vessel registered in the People's Republic of China is valued at $750,000 and its catch at $32,104.14. An order was made that both fishing vessels together with all fishing gear, instruments and appliances as well as all fish caught and all fish products seized were to be forfeited to the Republic of Kiribati.

Section 5 (7)(a) of the Fisheries Ordinance provides that where any foreign fishing vessel is used in contravention of any provision of that section, the master, owner and charterer, if any, of such vessel is liable on conviction, in the case of a contravention of subsection (1), to a fine of $250,000. It was pointed out by this court in its Judgment in Byong Chol Im and Sam Song Industrial Company Ltd v The Republic, Criminal Appeal No. 1 of 1990, that although the legislature provides the same maximum penalty for the master, owner and charterer if any of a vessel, that does not mean that the same penalty must necessarily be imposed. In that case, this Court confirmed the imposition of a fine of $200,000 against the owner of a fishing vessel. It stated:

"The forfeiture of the ship, and the fine of $200,000 imposed on the second appellant, together amount to a heavy penalty. However the offence is understandably viewed seriously by the Legislature of Kiribati as the penalties provided by the Legislature show. Kiribati is a nation with few natural resources, and the fish within its exclusive economic zone form an important part of these resources. It thus is necessary, when an offending vessel is caught systematically fishing in these waters for commercial purposes that heavy penalties be imposed in order to deter others from plundering the resources of Kiribati".

However, this court allowed an appeal by the first appellant, the captain, against the imposition of a fine of $150,000 and in lieu thereof ordered that lie be fined $5,000.

In the instant case, a severe penalty has been imposed on the owners of the ships as a consequence of the orders made for the forfeiture of the ships and their catch. The sole question for our consideration is whether the penalties imposed on the masters were manifestly excessive.

We were informed that in each case statements were made on behalf of the appellants which were unchallenged. It appears from the sentencing remarks of the learned Chief justice that both pleaded poverty, but lie did not believe what they said. There is however nothing to indicate that either appellant is a person who has a substantial income or assets. There is nothing to indicate that they were able to pay the very heavy fines imposed on them and it is wrong in principle to impose imprisonment on persons who lack the means to pay a fine. If the penalty imposed by the Legislature for an offence is a fine, it is appropriate to imprison one who has the capacity to pay the fine but refuses to do so. But to imprison one who lacks the ability to pay the fine is to change the penalty in such a case to imprisonment rather than a fine, and to do so on the ground of the lack of means of the offender. Imprisonment is designed to secure payment of the fine, and lasts only until the fine is paid; it is not designed to be a substitute for a fine. While the primary penalty for an offence remains a fine, it is not proper for a court to impose a fine without regard to the ability of the offender to pay it.

It would be wrong to interpret this as implying that masters who breach the Fisheries Ordinance have little to fear from the courts. The offences are extremely serious, and fines tip to the maximum may properly be imposed on masters who commit the offence specified in s.5 of the Fisheries Ordinance, provided it appears that they have the means to pay the fines.

It is no justification for the imposition oil the appellant of fines in the amount of $100,000 and a lengthy period of imprisonment in default of payment that they were the only persons apprehended and that any deterrent could be imposed only against them They are to be punished for their own acts, and not because of an inability to impose penalties on the owners of the vessels, apart from the orders for forfeiture.

Leave to appeal against sentence is granted to each appellant, and the appeal by each appellant against sentence is allowed. In each case, the order that the appellant be fined $100,000 and in default be imprisoned for six years is set aside. In lieu thereof, it is ordered that each appellant be fined $6,000 payable forthwith in default that he be imprisoned for nine months.

SIGNED BY
Gibbs V.P, Connolly and Ryan JJ.M