Republic v Tsai Ching Shan [1996] KIHC 67; HCCrC 22.96 (30 December 1996)

IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)

HCCrC 22/96

THE REPUBLIC

and

TSAI CHING SHAN

Mr D Sim for the Republic
Mr D Lambourne for the Accused

HCCrC 23/96

THE REPUBLIC

and

YANG XUEQIANG

Mr D Sim for the Republic
Mr D Lambourne for the Accused

SENTENCE

The two accused have each pleaded guilty and have been convicted of two charges, viz: entry by a foreign fishing vessel within the fishery limits without a permit and not being exempted under the purpose recognised by international law contrary to section 5(1)(a) of the Fisheries Ordinance Cap. 33 as amended and secondly fishing within the fishery limits without a permit contrary to section 5(1)(b) of the Fisheries Ordinance Cap. 33 as amended.

On Saturday the 16th of November 1996 the vessel "Ye Yuan Yu No. 517" registered in the People's Republic of China, of which the accused Yang Xueqiang was the master, was found fishing within Kiribati exclusive economic zone (EEZ) by the Police patrol boat RKS "Teanoai". Upon sighting the patrol boat, the fishing vessel sped off but was stopped and boarded after a short chase. Prior to speeding off, the line was either recovered or cut by the crew. Very soon after, the fishing vessel "Kuang Hsing 169" registered in Taiwan, of which the accused Tsai Ching Shan was the master, was also sighted by the patrol boat in the process of loading its fishing line.

When questioned later the two masters admitted that they were fishing inside Kiribati EEZ but claimed that the fishing charts they were using did not clearly show the boundary between the Marshall Islands and Kiribati. However, the fact that one of the boats attempted to flee indicates clearly that at least one of the masters knew that he was in prohibited waters. In any event, the fact that both the accused embarked on a commercial fishing venture without adequate fishing charts cannot possibly go towards mitigation of the offences.

Using figures supplied by Forum Fisheries Agency the value of the catch found on board the vessel "Kuang Hsing 169" Taiwan was $86,427.90 while the value of the catch found on board "Yue Yuan Yu 517" was $32,104.14 making a total catch value of $118,532.04. A valuation places the value of the vessel "Kuang Hsing 169" in the region of $323,000 and that of the vessel "Yue Yuan Yu 517" at $750,000. Although the vessels are registered in different countries, both are based at Majuro in the Marshall Islands.

Both accused have pleaded poverty. The accused Yang Xueqiang tells a story which would test the credulity of even the most gullible amongst us. He claims to be aged 50 and until four years ago he had led a subsistence lifestyle supporting a wife and 4 children. He would have the Court believe that four years ago he did a 4-month training course and was made captain of a vessel valued at $750,000 without any previous sea experience whatsoever. The owners have an arrangement with him that if the voyage made a profit he would receive a share. However, he tells the Court that not only did this voyage not make a profit, but that none of his voyages over the past four years has ever made a profit.

If I were to believe his story then I would have to conclude that in the whole of his life he has never made any money other than that necessary to survive. However I do not believe a word of what he has put to the Court.

The other accused Tsai Ching Shan is aged 36 years old and supports a wife and 4 children. He has worked on fishing boats for the past 13 years. Although he has been a captain for about 7 or 8 years, he claims to have no savings and no assets. I find this difficult to believe as well.

The Court of Appeal in 2 cases The Golden Key Petroleum Pty Ltd and Crane Ocean Shipping Line Ltd v The Republic, Criminal Appeal No. 1/91 and Byong Chol Im and Sam Song Industrial Co. Ltd v the Republic, Criminal Appeal 1/90 has sent out a clear message that severe penalties will be inflicted on those caught plundering the natural resources of Kiribati and that those severe penalties are necessary in order to deter others from committing similar offences. It is true that in one of those cases the fine imposed on the master was reduced from $150,000 to $5,000 and in the other case a fine of $6,000 was not appealed, but the Court of Appeal in both cases also confirmed very heavy fines of $200,000 imposed on the charterer in the first mentioned case and the owner in the second mentioned case. I do not believe that the message of those decisions is that the masters of ships have nothing to fear from our courts other than a comparatively minor fine. In those cases very severe fines were confirmed although not against the masters.

In the present cases however, only the masters have been apprehended. Therefore, if any deterrent is to be put into effect it can only be imposed against them. The legislature has not distinguished between the master, owner and charterer, each of whom is liable to a maximum fine of $250,000. The Republic of Kiribati has a vast EEZ covering 3.6m sq. km, the second largest EEZ in the Pacific Islands region. There is just one patrol boat. This means that a natural resource of great importance to Kiribati is highly vulnerable to foreign fishing vessels bent on illegally fishing there. It is therefore vital that when an offending vessel is caught heavy penalties be imposed as a deterrent. I note that in the two Court of Appeal cases which have been cited the accused pleaded not guilty and put the Republic to the expense of a trial. In the present case, the accused have pleaded guilty and appropriate allowance will be made for that but, nevertheless, the penalties that are to be imposed will be severe enough to act as a deterrent.

I think an appropriate penalty in the present case is that each of the accused be fined $100,000. Accordingly, each accused is fined $50,000 on each of the two charges against him, payable forthwith in default 3 years' imprisonment, making a total for each accused of $100,000 or 6 years' imprisonment in default. In addition, I order that both fishing vessels together with all fishing gear, instruments and appliances as well as all fish caught and all fish products seized shall be forfeited to the Republic of Kiribati. For the information of the accused I might add that under our law the imprisonment which is imposed in default of payment of a fine terminates whenever the fine is paid.

THE HON R B LUSSICK
CHIEF JUSTICE
(30/12/96)