Republic v Yamazaki [2009] KIHC 65; Criminal Case 51 of 2009 (23 November 2009)

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

HIGH COURT CRIMINAL CASE 51 OF 2009

THE REPUBLIC

V

KIYOSHI YAMAZAKI
ZAKKINE MARITIME CO. S.A.

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

Date of Hearing: 23 November 2009

SENTENCE

The defendants have pleaded guilty to three counts of unlawful loading of fish contrary to s.5(1)(c) of the Fisheries Ordinance and to three counts of unlawful unloading of supplies contrary to s.5(1)(d) of the Ordinance.

The offences are alleged to have occurred on 26, 27 and 29 October in the port of Betio.

The FC "Tunastates" came to Betio and loaded fish from three fishing vessels and unloaded various supplies on to the fishing vessels. Such procedures require a permit and there was none.

The Fisheries Ordinance:-

5. Entry and fishing by foreign vessels within the fishery limits

(1) No foreign fishing vessel shall –

(c) load, unload or transship any fish within the fishery limits; or

(d) load or unload any fuel or supplies within the fishery limits;

Unless authorized to do so under a permit granted under this Ordinance.....

(7) When any foreign fishing vessel is used in contravention of any of the provisions of this section –

(a) The fishing master and master of such vessel shall each be liable on conviction –

• (i) In the case of a contravention of subsection (1), to a fine of not less than $20,000 but not more than $100,000 and in default to a term of imprisonment of one (1) year; .....
  

(b) The owner and charterer of such vessel shall each be liable on conviction –

• (i) In the case of a contravention of subsection (1), to a fine of not less than $100,000 but not more than $500,000 and in default to a term of imprisonment of two (2) years; -----
  

These are heavy penalties. Under the Ordinance, the Court has no discretion to reduce the penalties below the minima.

To establish the facts a number of affidavits was tendered in relation to the allegations: five by the prosecution and two by the defendants.

Mr Berina applied to cross examine two of the deponents of affidavits tendered by the prosecution.

In his affidavit Taremon Korere, Fisheries Assistant in the Ministry of Fisheries and Marine Resources Development, deposed:-

2. I was part of the Boarding Team that cleared the FC TUNASTATE;

3. I recall that while on the said vessel, I asked the Captain about his Licence and the Captain told me that he did not have the permit with him he then refer me to an Agent;

4. I told the Agent to get the Licence and to have it affixed or exhibited on the vessel. I further told them that they should not do anything until they get the permit or licence; or until the Captain received the permit or licence.

5. I did not tell the Captain to carry out any work without the licence or permit.

Under cross examination by Mr Berina:-

I attended boarding on Sunday but on Tuesday I left on patrol boat: on Monday I was on standby. I didn’t hear of transhipments. Captain does understand some understanding of English. No misunderstanding. There are four of us. At least two others could have watched this ship. I didn’t speak to any of my colleagues.

In her affidavit Lucy Taukoriri, Agent Clerk with CPPL, deposed:-

2. One of my responsibilities is to assist fishing vessels and fish carriers vessels with their needs;

3. I am aware of the case involving the FC TUNASTATE as I was part of the boarding that boarded the said vessel when it was cleared;

4. I remember that Mr Taremon Korere asked me about the vessel’s licence and I told him that I did not know anything about it;

5. I also what to confirm that I did not make any statement to the captain or the master that there is no problem if they load or start loading because that is not responsibility.

Under cross examination by Mr Berina:

I heard from Taremon tht I must arrange a licence. CPPL agent of charterers. I told my boss, Burentoun ..... The agent is to do everything to facilitate the vessel to carry its job ..... I don’t know if anything more were done.

In his affidavit Iannang Teaioro, the General Manager of CPPL:-

2. CPPL was acting as an agent for FC Tunastate. And as agent we only provide assistance to the vessel upon request. FC Tunastate did not lodge any request regarding the processing of her licence.

Mr Tekanene did not apply to cross examine either deponent of affidavits tendered for the defendants, Mr Tomokazu Namai representing the charterers and Capt Kiyoshi Yamasaki.

It is clear from Mr Namai’s affidavit that the charterer of FC Tunastates kept its agent, CPPL, informed of the movements and intentions of the vessel. The email of 21 October:-

DEAR IANNANG SAN

FOLLOW DIRECT TRANSHIPMENTS JUST DECIDED TO BE DONE IN PORT OF TARAWA DUE TO F/VESSEL’S REQUEST.

ORYONG-708 LOAD F/TUNA ABT 160 TONS UNLOAD AS PER ATTACHED

ORYONG-716 180

ORYONG-712 170

ORYONG-717 200

ORYONG-718 160

CHUNGYONG-55 170

PLS NOTE & HANDLE ACCDNGLY

BEST RGDS

T. KOJIMA

Mr Tekanene submitted that the captain was told and understood that he was not to load or unload until he had a licence. I doubt it. Taremon gave evidence in Kiribati so I could not gauge his competence in English, the only language in which, I assume, the two could converse. It was quite obvious, observing Captain Yamazaki in Court, that he has a poor grasp, if any at all, of English: Mr Namai sitting next to him in the dock had to translate everything. I could not be confident that the Captain grasped what he was told either by Taremon or by any member of the boarding party. [I assume that his affidavit was prepared on his instructions, translated from Japanese and translated back to him before he swore to it.] I accept Mr Berina’s submission that the unlawful incidents were as a result of misunderstanding.

Mr Berina in his written submission:-

To obtain a permit to load and unload in Kiribati waters, a vessel is required to pay a fee of US$1,500.00 only. There was a huge difference in the fee payable for a fishing licence – it ranges from over US$200,000.00 per annum. It is very unfortunate therefore that an offence for unlawful loading and unlawful unloading is the same with the offence for unlawful fishing. It is so submitted as unfortunate because the level of loss to Kiribati from unlawful fishing as compared to unlawful loading or unloading is not identical.

Captain Kiyoshi Yamazaki deposed:-

18. I would be out of my mind to start the transshipment and make the vessel liable to forfeiture and other penalties if I knew I did not have the consent to do what I did.

Both the Fisheries authorities and the agent, CPPL, could have acted to avoid the commission of the offences. Why Taremon even if on standby on the Monday could not have kept an eye on what was happening is not in evidence. Even if he could not he had colleagues whom he could have warned to watch to see that no offences were committed and to interfere immediately if offences were being committed. I reject, especially in the light of Nei Lucy’s evidence, Iannang Teaioro’s assertion, "as agents we only provide assistance to the vessel on request". To make sure a vessel for which CPPL is agent does not break the law is surely one of the obligations of an agent. Yet CPPL did nothing.

What should the penalty be? Under the Fisheries Ordinance heavy fines must be imposed: so heavy in the light of the circumstances and the seriousness of the offences as to be quite unjust. The Court should not impose unjust penalties, penalties which are out of proportion to the offences. The present case is a good illustration of how unjust minimum penalties may be, taking away as they do the discretion of a court.

The only alternative is to use s.38 of the Penal Code:-

(1) Where, in any trial, the court thinks that the charge against the accused person is proved but is of opinion that, having regard to the character, antecedents, age, health or mental condition of the accused, or to the trivial nature of the offence or to the extenuating circumstances in which the offence was committed, it is not expedient to inflict any punishment, the court may, without proceeding to conviction, make an order dismissing the charge, either absolutely or conditionally.

This is a trivial offence and there are extenuating circumstances which justify the use of the provision.

A real doubt that the Captain understood what he was told by the boarding party – if indeed he were told not to load or unload until he had a permit.

The owners, according to Mr Berina’s submission (which was not challenged by Mr Tekanene) have already lost over $500,000 through the detention of the vessel. There has been no harm to the fisheries in Kiribati waters. This is a purely technical offence. The fines are out of proportion to the cost of obtaining a permit - $1,500.

The Court has a choice – either to impose unjustly heavy fines or none at all.

How I wish I had the jurisdiction to impose fines much less than the minimum Parliament has directed!

I have no discretion except to make a choice.

I hope it goes without my having to say more that I reject Mr Tekanene’s submission that pursuant to s.15 of the Ordinance the vessel be forfeited.

Pursuant to s.38 of the Penal Code, there will be no convictions on any charges: all charges against both defendants are dismissed.

THE HON ROBIN MILLHOUSE QC
Chief Justice