Republic v Euihyeong [2009] KIHC 11; Criminal Case 17 of 2009 (23 March 2009)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Criminal Case 17 of 2009

The Republic

v

No Euihyeong
Athena Shipping Pte Limited

For the Republic: Mr Birimaka Tekanene
For the Accused: Mr Banuera Berina

Dates of Hearing: 23 March 2009

SENTENCE

No Euihyeong: you have pleaded guilty to 19 counts of unlawful unloading of fuel. These are offences under S.5(1)(d) of the Kiribati Fisheries Ordinance. Your lawyer, Mr Berina representing as well Athena Shipping Pte Limited, the owner of the vessel of which you are the master, MT Hai Soon 28, has entered pleas of guilty for the company on all same counts.

On 21 February 2009 Hai Soon 28 was seen within the fishery limits of Kiribati unloading fuel to a fishing vessel. No permit to do so had been granted under Kiribati law. The vessel was boarded and brought back to the port of Betio where it has remained under arrest ever since. An examination of the log book you had very properly kept shewed this was the 19th time since 13 November 2008 that a fishing vessel had been refueled.

Mr Berina says you were surprised to have been accused of acting unlawfully in doing this. Hai Soon 28 owned by a company in Singapore is registered in Kiribati and when caught was flying the Kiribati flag. You thought and Mr Berina said the owner thought, that by being registered in Kiribati Hai Soon 28 would be regarded as a local fishing vessel and not need a permit. You are a master mariner and not a lawyer. I accept you did not realize you were breaking the law. As for the owner, perhaps Athena Shipping did think that registration in Kiribati would be a neat and cheap way of fishing lawfully without paying for a permit. Yet Athena Shipping is a Singaporean company. In Singapore it had available to it legal advice equal to the best in the world. Apparently the company either did not look for legal advice or was prepared to take the risk and not follow the advice it was given.

Mr Berina has now made a late submission that the authorities in Kiribati should have known what you were doing because your vessel monitoring machine was turned on all the time. I reject that submission for two reasons. First I doubt if we have the equipment here to take advantage of the signals. Secondly and far more relevant the responsibility for observing the law was yours and the owners: the authorities in Kiribati owed no duty to inform you you were breaking the law.

Under the Fisheries Ordinance you must be fined at least $20,000 on each count and may be fined as much as $100,000 on each. Athena Shipping the owner must be fined at least $100,000 on each count and may be fined as much as $500,000 on each.

As well an order may be made to forfeit Hai Soon 28 to the Republic of Kiribati. I have decided, after thinking about it, not to order forfeiture but rather to impose a fine on Athena Shipping well above the minimum. I also take into account that, different from the earlier cases to which I have been referred, Hai Soon 28 was not fishing illegally and only two of the fishing boats refuelled were not licensed to fish within the fishery limits. To the contrary, I must remember that Courts both here and in Australia and New Zealand have said that severe penalties must be imposed to deter the breaking of fisheries laws.

On each of the 19 counts you will be fined the minimum of $20,000. That is a total of $380,000.

On each of the 19 counts Athena Shipping will be fined $250,000. That is a total of $4,750,000.

I allow you three months in which to pay the fines, $380,000 in all. In default of payment of your fines you will be imprisoned for one year but may be released earlier when the fines are paid in full. Your passport will be returned to you on full payment.

I allow Athena Shipping three months in which to pay its fines, $4,750,000. If not paid within that time I may reconsider the forfeiture of the vessel.

The vessel Hai Soon 28 will remain under arrest until the full amount of all fines, $5,130,000 (yours and those of Athena Shipping) has been paid into the Registry of the High Court. Application for its release may then be made to the Court.

Dated the 23rd day of March 2009

THE HON ROBIN MILLHOUSE QC
Chief Justice