Sibanganei v Cubo [2004] PGDC 66; DC498 (10 February 2004)

DC498

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE]

DCCi NO 67, 68 AND 69 OF 2004

BETWEEN

TERRY SIBANGANEI
Complainant

AND

MUDIADIN CUBO
Defendant

Madang: C BIDAR, PM
2004: 10 February

Fisheries Management Act - Sections 46 and 58 – Fishing without licence – Use of vessel to engage in long line fishing for sharks – Fishing of a type which licence is required – Fisheries Management Act 1988 s41, 46, 58

Fishing – Artisinal Fishing – Meaning of – Whether long line fishing for sharks of a type artisinal fishing – Fisheries Management Act 1998 s 2 (1)

Cases Cited
There are no cases cited in the Judgment

Legislation
National Fisheries Management Act, 1998

Counsel
J. Agaru, for National Fisheries Authority

W. Akuani for the defendant

BIDAR C PM: The defendant Mudiadin Cubo, an Indonesian national is charged that between 4 to 6 July 2004, being a Captain of a foreign vessel, Diplomat Jaya IV use the said vessel to engage in long line fishing for sharks, contrary to s46(1)(c ) of Fisheries Management Act, thereby contravening s58(1)(i)(h) of the said Act.

2. The defendant is also charged that between 17 to 31 July 2004, being a captain of a foreign vessel, Diplomat Jaya IV, used the said vessel to engage in long line fishing for sharks, contrary to s46(1)(c ) of Fisheries Management Act, thereby contravening s58(1)(h) of the said Act.

3. The defendant is again charged that between 27 and 28 October 2004, being a captain of a foreign vessel Diplomat Jaya IV used the said vessel to engage in long line fishing for sharks, contrary to s46(1)(c ) of the Fisheries Management Act, thereby contravening s58(1)(h) of the said Act.

4. The trial of these cases took place over a number of days. Both prosecution and defence adduced evidence, which consisted of both oral sworn and documentary.

5. The prosecution case consisted of the evidence of Terry Sibanganei, Max Balim, Rodney Rakum and Thomas Amepou.

6. Terry Sibanganei’s evidence is that, he was the Fisheries Officer involved in the investigation of illegal fishing when he learnt about it. He was the officer who boarded the vessel Diplomat Jaya IV, which defendant was the captain or master. He discovered long line fishing gear, dead sharks lying on the bow of the vessel, sized certain documents and questioned the defendant. He ordered the vessel to sail into Madang Port. Later on he interviewed the defendant. Basically, his evidence is straight forward of what he did.

7. In cross-examination defence put certain aspects of its case to him, including contract for sale of vessel. Some of the matters put to him, he could not answer simply because he had no knowledge of those matters. In his evidence he also tried to explain what artisinal fishing was all about.

8. Max Balim’s evidence is basically confirming that, he was the corroborator to record of interview between Terry Sibanganei and the defendant.

9. Rodney Rakum’s evidence is that he was involved in boarding the vessel on 28 October 2004. When he boarded the vessel Diplomat Jaya IV he took
photographs of the vessel, fishing gear, sharks caught on the day. He also took photographs of two traditional Indonesian outrigger canoes Raka Jaya one (1) and Raka Jaya two (2). Finally, he stated that, his checks with National Fisheries Licensing Manager as to whether the vessel Diplomat Jaya IV had a licence, revealed that no licence was issued to the said vessel.

10. Thomas Amepou’s evidence is that he had written letters to National Fisheries Authority and Mr Michael Kabae regarding activities of Diplomat Jaya IV. His evidence also covered aspects of storage and export. Finally, he gave evidence of writing a letter to Mr Michael Kabae to order the vessel to cease fishing until the matter of licence was sorted out.

11. Basically, the prosecution case is that the defendant is a foreign national. The vessel Diplomat Jaya IV is a foreign vessel which was engaged in long line fishing activities the defendant was involved in was of a kind or type which licence was required under the Fisheries Management Act. The fishing activities the defendant was engaged in, i.e. long line fishing under the provisions of Fisheries Management Act.

12. The defence case which consisted of defendant’s oral evidence, as well as that of Michael Kabae. Defendant’s evidence basically is that, he agreed with Michael Kabae for hire of his vessel Diplomat Jaya IV. He told court of his entry into Bogia and his fishing activities in Bogia waters. His relationship with Michael Kabae as workman/employee or partner. He gave evidence that Michael Kabae arranged everything including his entry into PNG and his fishing activities.

13. Michael Kabae’s evidence is basically in support of the defendant. He told the court that, he is the Managing Director of Kabae Enterprises Ltd, and the business activities Kabae Enterprises was involved in. He told of his desire to get involved in bigger activities (fishing) activities.

14. His attempt to get assistance (financial) within the country got him nowhere so he had to secure assistance offshore. It is his evidence that the Managing Director National Fisheries Authority authorized entry of four traditional Indonesian built fishing canoes. The vessel Diplomat Jaya IV was one of the canoes approved. It is also his evidence that these canoes were to be used for artisinal fishing. Mr Kabae’s evidence does not give the names of all four canoes. It is also his evidence that, he obtained multiple visas for the foreign crew he engaged.

15. Nowhere in Mr Kabae’s evidence or evidence of the defendant is there mention of work permits for foreign crew. I say this because the approval given by Managing Director at the time for entry of four traditional Indonesian built fishing canoes at paragraph two which states "I therefore allow you to bring the canoes into PNG, subject to meeting other Government requirements including work permits for the foreign crew."[Emphasis Mine] All I want to say is that, it is not only a requirement but also requirement of law, namely, Employment of non Citizens Act.

16. The relevant issues to resolve in my view are these:

1. Whether or not the fishing activities, the defendant, a foreign national was involved in using foreign vessel diplomat Jaya IV and foreign crew was illegal fishing or fishing without a licence.

2. Whether fishing activities of a kind, i.e. using long line fishing for sharks artisinal fishing within the meaning of the Act.

17. There are other minor issue, which arise, but in my view issues stated are the major issues for resolution by Court.

THE LAW

18. The relevant law is under Part IV of the Fisheries Management Act 1989.

19. Section 41 provides for grant and issuance of licence.

S 41 is in this terms:

"1) The Board may, upon recommendation of the Managing Director, grant licences in accordance with this Act for any purposes which may be prescribed.

2)Upon a decision by the Board to grant a licence, the Managing Director shall issue such licence, which shall be subject to such terms and conditions required under s 43 or otherwise authorized under this Act.

3) Each licence shall be issued on a form approved by the Managing Director."

20. Section 46 provides for Fishing etc without a licence, non compliance with terms. In other words, this provision defines fisheries offences and the actual offences and penalties are provided under s 58 of the Act.

21. Section 46 of Fisheries Management Act creates two general kinds of offences. Fishing without licence and fishing in breach of conditions of licence. The defendant is charged with three counts, which allege that he fished during those periods mentioned without licence.

22. The intent of the Act is, inter alia is to regulate, control, manage the fishing industry in Papua New Guinea and the fisheries resources are to be developed in accordance with licensing guidelines and the management principles and objectives of the Act.

23. The defendant, an Indonesian national does not deny fishing in Papua New Guinea waters, particularly the inshore waters around Bogia District. Defendant has raised a number of possible defences. First, he argues that the fishing activities he was involved, i.e. long line fishing for sharks was artisinal fishing and therefore licence was not required under s 41 of the Fisheries Management Act.

24. Secondly, he contends that, if the fishing activities he was engaged in was not artisinal fishing then he had permission or authorization from the Managing Director of National Fisheries Authority, which satisfies or comes within the definition of the word licence.

25. The other argument defendant tried to raise is a defence of mistake of fact under s 25(1) of the Code. The Court however, referred the defence counsel to s 46(4) of Fisheries Management Act, which specifically excludes the operation of that defence, for an offence under s 46.

26. The other minor contention was that, the Managing Director by his letter of approval to export three hundred (300) kilograms of shark fins dated 27 August 2004, which was "one off arrangement", impliedly commercialised the fishing activity the defendant was engaged in.

27. Before I deal with the issues, it is necessary at this juncture to look at different forms of fishing under the Fisheries Management Act. First is the phrase "artisinal fishing". Artisinal fishing under the Act means, fishing by indigenous inhabitants in fisheries waters where they are entitled by customs or law to fish, where

(a) The fish are taken in a manner that, as regards the boat, the equipment and the method used, is substantially in accordance with their customary traditions; and

(b) The fish are taken for household consumption, barter, domestic market trade or sale to a person licensed as a fish buyer under this Act.

28. "Customary fishing" means fishing by indigenous inhabitants, in waters where they are entitled by custom to fish, where

(a) The fish are taken in a manner that, as regards the boat, the equipment and the method used, is substantially in accordance with their customary traditions; and

(b) The fish are taken for household consumption, barter or customary social or ceremonial purposes.

29. Commercial Fishing: means any fishing resulting or intending or appearing to result in selling or trading any fish which may be taken during the fishing operations and does not include artisinal or customary fishing.

30. I revert to the issues raised. In relation to the first issue, it is quite clear and I accept that defendant is a foreign national. The vessel he used to engage in fishing activities, Diplomat Jaya IV is also a foreign vessel. The fishing activities i.e. long line fishing for sharks and fins dried on the vessel, such fish products were clearly intended for sale or trading at Indonesian Market. There is absolutely no evidence of any licence issued in respect of such fishing activities, except defendant’s contention that, there was permission or authorization by Managing Director to bring in four Indonesian built canoes. The traditional Indonesian build canoes, as shown by evidence, Raka Jaya 1 and Raka Jaya 2 are quite different from Diplomat Jaya IV. I am unable to accept that Diplomat Jaya IV is a canoe.

Clearly, the defendant had no licence at all, and the authorization to bring in the canoes, in my view, does not come within the meaning of the word licence or other form of authorization within the Act. I am satisfied, the fishing activities the defendant was involved in was illegal or without licence.

31. In respect to the second issue, clearly, the defendant, the vessel and gear used in the fishing activities he was engaged in, do not come within the meaning of artisinal fishing. First of all defendant is not an indigenous inhabitant. Indigenous habitant is defined as a citizen or national. The vessel Diplomat Jaya IV, and gear, long line with 100 to 150 hooks cannot be method used in accordance with customary traditions of indigenous inhabitants of Papua New Guinea.

It is quite obvious that such use of vessel with long line fishing for sharks and having shark fins dried for sale at Indonesian markets, is commercial fishing.

32. In all the circumstances, I am satisfied that the fishing activities the defendant was involved in cannot and could not possibly be artisinal fishing, under the Act.

33. Having considered all the evidence and the submissions and based on the reasons given, I am satisfied beyond reasonable doubt, that the fishing activities the defendant was engaged in during the relevant periods was illegal or that he had no licence to do so. I therefore, find the defendant guilty of all three charges.

VERDICT: GUILTY to all three charges.

Legal Officer National Fisheries Authority, for the Complainant
William Akunai Lawyers, for the Defendants