National Fisheries Authority v Ye Weixiong [2020] PGDC 27; DC4094 (13 October 2020)

DC 4094

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS GRADE 5 CRIMINAL JURISDICTION]

GFC Cr. 06, 07, 08 & 09 of 2020
BETWEEN

National Fisheries Authority
Informant

AND

Ye Weixiong
Defendant

Kokopo: SLavutul

2020: 10^th, 15^th, 22^nd September, 01^st, 06^th October
      

CRIMINAL PRACTICE & PROCEDURE- Buying of fishery products without a valid and applicable License – Breach of section 46 (1) (a) FMA 1998/Amended 2015 – Storage of fishery products at an unlicensed premises, an act for which a valid and applicable license is required in breach of section 46(1) (d) of the FMA 1998/Amended 2015 – Refusal to search premises in breach of section 55 (1) (b) of the FMA 1998/Amended 2015

CRIMINAL LAW- Fisheries Management (Amendment) Act-Offences, Penalties and Costs (2015Amendment of Section 58) - Increase in penalties-Maximum penalty in respect of a natural person, a fine not exceeding K500, 000.00. In default imprisonment for a term not exceeding five years- Sentence-Sentencing Guidelines discussed-Starting point-Relevant considerations are identified and considered.
Cases Cited

1. National Fisheries Authority v Nguyen Van Phuc [2017] PGDC 27; DC 3040 (03 March 2017)
2. State v Joe Sekin (2006) CR 1592 of 2000
3. Kenneth Andrew v Dennis Kokowei & 5 Ors NF 01-06 (5/02/16)
4. National Fisheries Authority v Peter Momona, GFC 14/2017
5. NFA v Kong Chiong Lik, GFC Cr.20/ 2018
6. State v Jason Dungoia (13/12/00) N2038
   

References

National Fisheries Management Act 1998.
National Fisheries Management (Amendment) Act 2015
Papua New Guinea National Fisheries Authority Judiciary Bench book 2015

Counsel

Mrs Elizabeth Munap for Prosecution

Mr Paul Yange for Defendant

SENTENCING
13^th October, 2020.

Samuel Lavutul, Principal Magistrate; The defendant is Ye Weixiong age 37 years old from Fujian Province, People’s Republic of China. The defendant is currently employed as the Supermarket Manager with Hongland Enterprises Limited at Kerevat, Gazelle District, East New Britain Province, Papua New Guinea.

2. The defendant was charged with four (4) counts under the Papua New Guinea Fisheries Management Act of 1998/ Fisheries Management (Amendment) Act 2015. He was charged with the following counts;

(1) It was alleged the defendant did on the 21^st of August 2020 at Hongland Enterprises Limited at Kerevat being a foreign national did on his own account buy 36. 4 kg of beche- de-mer fishery products, an act for which a valid and applicable license is required in breach of section 46 (1) (a) of the Fisheries Management Act 1998/Amended 2015. Thereby contravening section 58 (1) (b) of the Fisheries Management Act/Amended 2015
(2) It was alleged the defendant did between the 21^st and 24^th day of August 2020 at Hongland Enterprises Limited, Kerevat being a foreign national did on his own account store 36.4kg of bech-de-mer fishery products in an unlicensed premises, an act for which a valid and applicable license is required in breach of section 46 (1) (d) of the Fisheries Management Act 1998/Amended 2015. Thereby contravening section 58(1)(h) of the Fisheries Management Act/Amended 2015
(3) It was alleged the defendant being a foreign national did on his own account buy 1.15kg of shark fin fishery products, an act for which a valid and applicable license is required in breach of section 46 (1)(d) of the Fisheries Management Act 1998/Amended 2015. Thereby contravening section 58(1) (h) of the Fisheries Management Act 1998/Amended 2015.
(4) It was alleged the defendant did on the 24^th of August 2020 at Hongland Enterprises Limited, Kerevat being a foreign national did refuse to allow a search to be made on the company close circuit television authorized by a Search Warrant in breach of section 55(1) (b) of the Fisheries Management Act 1998/Amended 2015. Thereby contravening 58 (1) (n) of the Fisheries Management Act.

3. The defendant was arraigned on the 06^th of October, 2020 on all four (4) counts and he pleaded guilty to all four (4) counts through his counsel. And a guilty verdict was prounced respectively for each count.

Law

4. Section 58 (5) (a) (b) (c) of the Fisheries Management Act 1998 prior to the 2015 Amendment Act stipulates;

“The following penalties shall apply in respect of offences described in Subsection (1) (b), (c), (d), (f), (g), (h), (n), (p), (r), (x), (y), (z), (bb) and (cc):-

(a) in respect of a crew members, a fine not exceeding K5, 000.00; and
(b) in respect of a natural person, a fine not exceeding K100, 000.00; and
(c) in respect of a corporation, a fine not exceeding K1, 000, 000.00”

5. And as per the Fisheries Management (Amendment) Act 2015 under which the defendant is charged the above penalties were amended and increased in the following;

Section 58 (b) in subsection (5)

(i) ...
(ii) repealing Paragraphs (a), (b) and (c) and replacing them with the following;

• (a) in respect of a crew member, a fine not exceeding K25, 000.00

and

(b) in respect of a natural person, a fine not exceeding K500, 000.00
(c) in respect of a corporation, a fine not exceeding K5, 000, 000.00” ; and

6. Defence in its submissions on sentence seeks the court to give consideration to the following;

(1) The defendant is a first offender

(2) The defendant pleaded guilty to all charges

(3) From instructions the defendant the marine products from strangers who came to sell those items and the defendant decided to buy them for their own consumption by himself and his Chinese friends and families. These were not for commercial purposes and that he was not aware that it was illegal to buy own consumption as well without a license.

(4) The defendant had shown remorse and that he was sorry for breaking the law and that he will not reoffend.

(5) The defendant seeks the court to pay a fine in the range of K10, 000.00 to K20, 000.00 for the three (3) counts for the offences under Section 58 (1) (h) FMA Act 2015 totalling a sum of 30 to K60, 000.00 for the three (3) charges and a fine in the range of K5, 000.00 to K10, 000.00 for the one count of the offence under Section 58 (1) (n) of FMA Act 2015.

(6) The defendant pleaded in all he seeks the court if he could pay a fine in the range

of K35, 000.00 to K70, 000.00 for the four charges.

(7) Counsel on behalf of the defendant urges the court they were unable to find any reported case but a District Court decision by Magistrate Kaumi as he was then , now Justice Kaumi at Waigani between the National Fisheries Authority v Nguyen Van Phuc [2017] PGDC 27; DC 3040 (03 March 2017 reports a situation where the defendant who was the captain of a shipping vessel was charged for harvesting sea cucumbers or beche –de-mer without an appropriate license and another related charge, both bearing a maximum penalty of K500, 000.00 each. Magistrate Kaumi among other orders ordered the defendant therein to pay a fine of K50, 000.00 on each counts of the offences he was charged with. Counsel added on behalf of the defendant urge the court this was the worst type of case.

(8) Counsel urges the court that given the circumstances of this case, the submissions to the penalties in the range of K35, 000.00 to K70, 000.00 is in order and as pointed out above, had the matter gone to trial, the outcome could have been different. Counsels added nonetheless based on the defendant’s own wishes and instructions, ‘Guilty Plea’ was taken and humbly endorse the penalty sum proposed by the defendant and accordingly submit for the court’s consideration. And seeks the court that the bail of K12, 000.00 paid by the defendant to be included in the payments towards the fine.

7. However Prosecutions in its submissions submits that despite the defendant having pleaded guilty to three (3) counts charged with under section 58 (1) (h) respectively and one (1) count under section 58 (1) (n) of the Fisheries Management (Amendment) Act 2015 which carries a penalty for a natural person at a maximum fine of K500, 000.00; in that the defendant is a foreign national and had lived and work in the country and particularly East New Britain Province for a period of nine (9) years. The defendant dealt with fishery products which require a trading license as specified under the Fisheries Management Act 1998/ Amendment Act of 2015.

8. Prosecution added the defendant dealt with shark fins and an endangered species of bech-de- mer (white Teet) of high quality totalling 37.55 kgs and also under the threat of extinction if not protected. And it submits for a penalty in fines for all counts to stand as a deterrent against the defendant and also those who would be likely offenders.

Deliberations

9. I have given careful consideration to both submissions and in considering an appropriate penalty against the defendant I adopt the view of Cannings J in the matter of the State v Joe Sekin (2006) CR 1592 of 2000 in which his Honour did set out the following questions as considerations;

Step 1: What is the maximum penalty?

Step 2: What is a proper starting point?

Step 3: What is the head sentence for the offence?

Step 4: Should the pre-sentence period in custody be deducted from the term of imprisonment?

Step 5: Should all or part of the sentence be suspended?
STEP 1: WHAT IS THE MAXIMUM PENALTY?

10.The maximum penalty for the offence for which the defendant has been found guilty of pursuant to section 58 (1) (h) (n) of the Fisheries Management (Amendment) Act: - in respect of a natural person, a fine not exceeding K500, 000.00 in default imprisonment for a term not exceeding five years.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. For the purposes of uniformity and consistency in sentencing I restate the persuasive comments of my brother and former magistrate now Justice John Kaumi in a similar fisheries matter of Kenneth Andrew v Dennis Kokowei & 5 Ors NF 01-06 (5/02/16), he stated “Again here I am handicapped by the paucity of appropriate relevant sentencing guidelines, trends and proper starting points in our jurisdiction which would be very helpful in terms of what I should consider as pertinent considerations in contemplating what sentence would best befit this crime. And the predicament I find myself in is largely due to the failure, reluctance or sheer indifference by courts in our jurisdiction to appreciate the importance of such aspects of sentencing and publish judgments in like offences if for two reasons, UNIFORMITY AND CONSISTENCY in sentencing! I am for the want of a better phrase “left to my own devices” so to speak”.

12. In the matter before me my starting point would be K5, 000.00 in default two years in hard labour to K30, 000.00 in default two (2) years and six months in hard labour based on the facts and evidence before me. Thus the mid-point would be K15, 000.00 in default two (2) years in hard labour.

13. In similar cases; in Kokopo the District Court in the matter of National Fisheries Authority v Peter Momona, GFC 14/2017; the defendant was found guilty and fined K5, 000. 00 in default two (2) years for trading 26.4 kilograms of Beche-de –mer to the value of K1190. Likewise the Waigani District Court in the matter of National Fisheries Authority v Nguyen Van Phuc, NFA 36/16, the defendant was found guilty and fined K50, 000.00 in default four (4) years in hard labour for harvesting Beche-de- mer in Papua New Guinea waters weighing 3158.85 tonnes to the commercial value of K1, 438, 606.10 equivalents to $467, 079.90 US dollars in which Beche –de-mer species were specified and valued which resulted in the above total in cash and weight.

14. In the matter before me the defendant Ye Weixiong traded for 36.4 kilograms of Beche – de –mer and shark fins at 1.55 kilograms unfortunately National Fisheries Officers did not specify the value of the fishery products that were confiscated from the defendant in order to assist the court in this regard. I refused to do an estimate due to my lack of knowledge on the different species of Beche – de mer and its current market value. It would be of great help to this court should due diligence in calculation of monetary value of the products be done against the weight of the total fishery products confiscated in order to secure a desired penalty. I suggest National Fisheries Authority officers in East New Britain Province should pay attention to this.

STEP 3: WHAT IS THE HEAD SENTENCE FOR THE OFFENCE?

15. In arriving at what the head sentence should be for the offence I take into consideration matters I consider to be aggravating in nature.

16. The defendant Ye Weixiong traded for the fishery products without a valid license and he was unlicensed to trade for fishery products. He traded for a total of 37. 55 kilograms of beche-de-mer and shark fins respectively. The species of beche –de-mer which the defendant purchased were identified by the Fisheries Officers as of high grade white tee fish species and listed under the Convention on International Trade as an endangered species and I am of the view its population will quickly diminish through illegal trade by people such as the defendant. I am also of the view such illegal trade would also encourage citizens to sell fishery products on the black market as in the case of the defendant and such poses a threat to the fishery products population.

17. I also consider the fact the defendant had lived in East New Britain Province for over nine (9) years, which fairly enough time to get himself acquainted with the laws of this country. In such cases basically means ignorance of the law is no excuse.

18. I also consider the fact that the offence was committed in the Kerevat area of the Gazelle District of East New Britain province where policing and monitoring of such activities by National Fisheries Officers is a difficulty. With such circumstantially one would wonder how many others who are there that are involved in similar activities such as the defendant without being noticed by authorities of government.

19. Moreover the court is also mindful of the fact that this appetite is also a major diet in most Asian countries both for its delicacy and health qualities. Obviously the defendant is of Asian origin and is fully aware of the health qualities and health benefits associated with Beche-de-mer fishery. And with this fact there is a tendency by other likeminded Asians including nationals who live and work in the remote Districts of East New Britain province either in the logging industry, oil palm industry and supermarket industry could venture into the illegal trade of Beche-de-mer go unnoticed.

20. In comparison of the weights of the Beche-de-mer products in the following cases which I have dealt with including that of Magistrate Kaumi as he then is that in the matter of NFA v Peter Momona, GFC 14/17 and the case of NFA v Kong Chiong Lik, GFC Cr. 20 of 2018. Defendant Momona was convicted and fined K5, 000.00 in default 2 years for a total weight of 26.4 kg which four (4) times less than the current case. In the case of NFA v Kong Chiong Lik the defendant purchase a total of 105 kilograms of Beche- De –Mer which is four (4) times more than that in the matter of NFA v Peter Momona. Likewise in the matter of NFA v Nguyen Van Phuc was convicted and fined K50, 000.00 in default 4 years in hard labour for a total weight of 3158.85 kilograms of Beche-de-mer products. In weight comparisons it is 119 times more the matter of NFA v Peter Momona and 30 times more than NFA v Kong Chiong Lik, GFC Cr. 20 of 2018

21. In the current case of NFA v Ye Weixiong the defendant purchased a total of 37.55 kilograms of fishery products which would be 11.15 kilograms more than that in the case of NFA v Peter Momona GFC 14/2017, Kokopo District Court and 67.45 kilograms less than that of NFA v Kong Chiong Lik. And the case of NFA v Nguyen Van Phuc is 3, 121.3 kilograms more than the current case of NFA v Ye Weixiong
22. I am of the view a head fine of K10, 000.00 is appropriate for each count or in default twelve (12) months imprisonment with hard labour for each count would stand as a deterrent against the defendant and other would be offenders.

STEP 4: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM TERM OF IMPRISONMENT?

23. It may not apply in this matter as the defendant Ye Weixiong was allowed on K12, 000.00 police bail and currently on bail

STEP 5: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

24. The defendant is currently on a K12, 000.00 police bail in the event the court orders a fine equivalent or less than the bail it may not warrant part of or the sentence to be suspended.

25. I am guided by the view in State v Jason Dungoia (13/12/00) N2038 as Kandakasi. J stated that “The usual purpose of criminal sentencing such as deterrence, restitution or rehabilitation are also relevant factors for consideration and so are requirements to carefully consider and take into account the factors for and against a prisoner before sentencing him or her”.

26. I have given careful consideration to the respective submissions and I consider a fine would best suit the offence defendant Ye Weixiong is charged with.

Orders

1. Therefore the defendant Ye Weixiong is convicted and fined K10, 000. 00 for each count in default twelve (12) months for each count in hard labour.
   
2. Sentences to be served concurrently

3. That the defendant is to pay a total of K40, 000.00 in fines to be paid before
4.00 pm today the 13^th of October, 2020.

4. That the defendant’s bail of K12, 000. 00 is to be refunded.

...................

Mrs. Elizabeth Munap of Kokopo Police Prosecution

Mr. Paul Yange of Islands Legal Services