Republic ats Chen Ta Chang [1999] KIHC 38; Criminal Case 17 of 1999 (30 August 1999)

IN THE HIGH COURT OF KIRIBATI
(BEFORE DAVID LAMBOURNE, COMMISSIONER)

High Court Criminal Case 17 of 1999

THE REPUBLIC

-ats-

CHEN TA CHANG

For the Republic: Titabu Tabane, Director of Public Prosecutions
For the Accused: Joanne Fleer, People's Lawyer

Date of Hearing: 30 August 1999

SENTENCE

The accused has pleaded guilty to two offences of failing to properly maintain a log book recording the daily activities of the ship for which he is Master, the Fong Kuo 736, contrary to s.5(5A) of the Fisheries Ordinance (Cap. 33). The sub-section contravened, which was inserted in 1997, requires the Masters of all foreign fishing vessels to maintain a log book on a daily basis while the vessel is within the fishery limits, in which the date, time and nature of every activity of the vessel is to be recorded.

The Fong Kuo 736 is a vessel operated by the Fong Bau Fishery Co. Ltd of Taiwan. The accused is a Taiwanese national and has been the Captain of this vessel since May of this year. I am informed that the Fong Bau Fishery Co. Ltd operates 33 vessels which are licensed to fish in Kiribati waters. The Fong Kuo 736 is one of those vessels. Her licence took effect from 20 October 1998 and is due to expire on 19 October 1999.

On 24 August this year the vessel was boarded by a Fisheries Officer and an officer of the patrol boat, after she was sighted during routine surveillance by the patrol boat RKS Teanoai. A check of the vessel's records revealed what purports to be a log book and a log sheet required to be kept by the Forum Fisheries Agency. The details included on these papers can only be described as sparse. As far as the log book is concerned a distinction is made between days on which fish are caught and days on which no fishing is done. When engaged in fishing the entry records the time at which fishing commenced, the vessel's coordinates and the size of the catch. On days when the vessel is not fishing, only her coordinates at noon on that day are recorded.

By reference to the separate Forum Fishery Agency log sheet, it can be ascertained that the vessel was, on 23 August, searching for fish, and, on 24 August, in transit. It is conceded by the accused that the data recorded by him in the log book in respect of the subject days falls short of the requirements of sub-s.5A.

There is no allegation that the vessel was engaged in any illicit activity other than that charged and apparently the fishing vessels of this company have an impeccable record.

Sub-section 5A of s.5 is undesirably vague in its requirements. There is no indication that its provisions were ever brought to the attention of either the accused or his employers. This, of course, cannot be a mitigating factor although one would hope that the authorities ensure that all vessels licensed to fish in Kiribati are made aware of the provisions of our Fisheries Ordinance. However, with 33 vessels licensed to fish in Kiribati waters, it is also incumbent upon the operators of this vessel to make themselves aware of the relevant legislation.

The accused is aged 39 and is married with 2 young children. He has been at sea for 8 years. I am informed that he earns US$2,000 per month. He has been in custody for 5 days pending determination of this matter. His employers have lost a week's fishing time.

The Republic seeks no order for forfeiture pursuant to s.15 of the Ordinance and the Director of Public Prosecutions submits that a fine will suffice. I agree that a fine is in order but I cannot agree with the Director's submission that the fine in the vicinity of $17,000 is appropriate. Although the maximum fine payable for an offence under this sub-section is $50,000, the breaches in this instance must be regarded as both technical and trivial.

In my opinion the circumstances of this case are best met by the imposition of a fine of $100 for each offence, payable forthwith, in default 1 week's imprisonment. I further order that, pursuant to s.5A of the Fisheries Ordinance, the Principal Immigration Officer is empowered to prevent the accused from leaving Kiribati until the full amount of the fine is paid. The exhibits are ordered to be returned to the accused.

For the avoidance of doubt, the total fine payable is $200, in default of payment of which the accused is to be imprisoned for 2 weeks.

Counsel are to be commended for assisting with the speedy determination of this matter.

DAVID LAMBOURNE
COMMISSIONER
30 AUGUST 1999