National Fisheries Authority v Wen Qing Chen [2020] PGDC 5; DC4067 (12 August 2020)

DC4067

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

FISHERIES COURT

NFA of 2020
BETWEEN

NATIONAL FISHERIES AUTHORITY
AND

WEN QING CHEN
Defendant

BUKA: TASIKUL PM

2020: 12^TH August
      

Criminal-

Cases Cited

References

Counsel

Decision on sentence

1. TASIKUL: The defendant Wen Qing Chen 53 year of Fuji, China pleaded guilty to four charges and was convicted on the 27^th July, 2020.
2. His first charge is between 13^th May 2020 and 16^th May, 2020 at Happy Sound Enterprises Ieta village, being a natural person on his own account did engage in storing 194.12 of dried bech de mer products of substantial value an act prohibited by the National Gazette no G368 for the time being in force contrary to section 31 (2) (a) of the Fisheries Management Act 1998. Contravening section 58 (1) (b) of the Fisheries Management Act
   
3. Secondly, that between 13^th May, 2020 and 16^th May, 2020 at Happy Sound Enterprises, Ieta village, being a natural person on his own account did engaged in the processing of 192.14 kilograms of dried bech de mer products of substantial value, an act prohibited by National Gazette No G368 for the time in force contrary to section 31 (2) (a) of the Fisheries Management Act. Thereby contravening section 58 (1) (b) of the Fisheries Management Act.
   
4. Thirdly, that between 13^th May 2020 and 14^th May 2020 and 16^th May, 2020 at Happy Sound Enterprises Ieta village, being a natural person, on his own account did cause Jethro Tuilani to engaged in beche de mer fishing related activities, an act prohibited by National Gazette No 368 for the time being in force contrary to section 31 (2) (b) of the Fisheries Management Act, 1988. Contravening section 58 (1) (b) of the Fisheries Management Act.
   
5. The fourth charge that between 13^th May, 2020 and 16^th May, 2020 at Happy Sound Enterprises Ieta village, being a natural person, on his own account did buy dried bech der mer products, an act prohibited by National Gazette No G368 for the time being in force contrary to section 31 (2) (a) of the Fisheries Management Act, Contravening section 58 (1) (b) of the Fisheries Management Act.
   
6. The facts related to the four charges are as follows; the accused was previously licenced by the National Fisheries Authority to buy and export bech de mer fisheries products in the Autonomous Region of Bougainville between 01^st July 2018 to December, 2018 during the fishing season.
   
7. The bech de mer fishing in Papua New Guinea is currently closed to date [prohibiting the harvesting, processing having in possession exporting, and any aspect of the bech de mer fishery] as of 01^st January, 2020 after National Fisheries Authority Board decision to close the fishery as management measure for sustainability by way of gazettal No G368.
   
8. The accused is the Manager of Happy Sound Enterprises located in Noru village, Ieta, Buka Island. Between the 13^th and 16^th May, 2020 the accused directed Jethro Tuilani to collect and buy bech de mer products from local fishermen in Buka.
   
9. On the 13^th May 2020, the accused directed Jethro Tuilani to received 40 kilograms of bech de mer from Israel Kitata at CP boat stop before giving it to co accused Mr Wen Qing Chen at the premises of Happy Sound.
   
10. On the 14^th May 2020 the Mr Wen Quing Chen did caused his employee to received bech der mer products from a fisher namely; Alphones Purupuru at the CP boat stop before giving it to co-accused Mr Wen Qiug Chen at the happy Sound premises at Ieta village
    
11. On the 16^th May,2020 Mr Weng Quig Chen did caused his employee Jethro Tuilani to received and had in his possession 40 kilogram of bech de mer fisheries products in a taxi cab UAC 329 transported to Happy Sound premises at Ieta village.
    
12. The co-accused was apprehended at the front gate of Happy Sound as soon as he was entering the premises Fisheries officers had reasons to believe the premises held storage of bech der mer products.
    
13. Then on the 26^th May, 2020 the defendant was invited to the Department of Primary Industry fisheries directorate office for a formal record of interview and to which he admitted to casing Jethro to engage in bech der mer fishing related activities. He was formal charge.
    
14. The defendant was asked if he accept the statement of facts read to him and he responded that he accepted all as true and correct. I confirm his plea of guilty.
    
15. The issue now is what would be the appropriate sentence to impose on the defendant?
    
16. The maximum penalty for offences under section 58 (1) (b ) of Fisheries Management Act, 1998 is for a natural person, a fine not exceeding K500,000.00 in default imprisonment for a term not exceeding five years.
    
17. I have conducted a search for published judgments on sentences with respect to offences contrary to s.58 (1) (b) of the Fisheries Management Act, 1998 in our jurisdiction that would assist the court in terms of clear guide lines as to what appropriate consideration to be taken on board in arriving at a sentence. I found nothing.
    
18. However, I have been privilege to attend a workshop organised by the National Fisheries Authority in 2015, which they have given magistrates copies of the National Fisheries Authority Bench book 2015. The National Fisheries Authority Judiciary Bench book, 2015 was part of the reform aimed at ensuring PNG meets its international legal obligation to prevent illegal, unregulated, and unreported fishing. Its provide the Courts with reference and guide the court on fisheries management matters in which the court may not be familiar with, and to assist the court in determining appropriate level of penalties for offences on fisheries matters which are uncommon.
    
19. In arriving to what would be the appropriate sentence, I take into the account several factors, the antecedent report, submission , allocutus, mitigating factors and the aggravating factors.
    
20. The prosecution have through its submission asked the court to impose an appropriate sentence. I have considered the prosecution submission which does not assist the court at all.
    
21. The defendant in the allocutus told the court that he is sorry for what he did. He said he bought the bech der mer because he felt sorry for fishermen who came to sell the bech der mer products due to this economic crisis. He further told the court that he has been helping fishermen to earn some money.
    
22. I think this is an unreasonable excuse as the law is very clear that harvesting of bech der mer is still close, throughout the country. The National Fisheries Authority is the regulator of this fishing activity and they are the authority who gives permission when to lift the ban.
    
23. The mitigating factor of the prisoner is; he pleaded guilty which serves times and has express remorse. He is married to a Bougainville woman and they have four children. He has cooperated well with the police and the National Fisheries Authority.
    
24. The aggravating factor is; the offence committed is very serious under the National Fisheries Management Act. The offence carries heavier penalties of K500, 000.00 for a natural person(s). Buying and processing bech der mer products when there is a ban is very serious. As your action also encourages fishermen to continue illegally harvesting this bech der mer product as they know you will buy it from them.
    
25. The total harvest is 192.14 KG was bought and process illegally. There is still a ban on for Bech der mer fishing, buying and processing. No respect for the laws.
    
26. It is important the court must imposed heavy penalty for people who don’t respect the law of the country.
    
27. Having considered all of the above factors I hereby make the following orders;
    
28. For the first charge between 13^th May 2020 and 16^th May, 2020 at Happy Sound Enterprises Ieta village, being a natural person on his own account did engage in storing 194.12 of dried bech de mer products of substantial value an act prohibited by the National Gazette no G368 for the time being in force contrary to section 31 (2) (a) of the Fisheries Management Act 1998. I find you guilty and ordered that you pay a fine of K10, 000.00 in default be sentence to two years imprisonment.
    
29. For the second charge that between 13^th May, 2020 and 16^th May, 2020 at Happy Sound Enterprises, Ieta village, being a natural person on his own account did engaged in the processing of 192.14 kilograms of dried bech de mer products of substantial value, an act prohibited by National Gazette No G368 for the time in force contrary to section 31 (2) (a) of the Fisheries Management Act. I also find you guilty and ordered you pay a fine of K10, 000.00 in default be sentence to two years imprisonment.
    
30. For the third charge that between 13^th May 2020 and 14^th May 2020 and 16^th May, 2020 at Happy Sound Enterprises Ieta village, being a natural person, on his own account did cause Jethro Tuilani to engaged in beche de mer fishing related activities, an act prohibited by National Gazette No 368 for the time being in force contrary to section 31 (2) (b) of the Fisheries Management Act, 1988. I also find you guilty and ordered that you pay a fine of K10, 000.00 in default two years imprisonment.
    
31. And for the fourth charge that between 13^th May, 2020 and 16^th May, 2020 at Happy Sound Enterprises Ieta village, being a natural person, on his own account did buy dried bech der mer products, an act prohibited by National Gazette No G368 for the time being in force contrary to section 31 (2) (a) of the Fisheries Management Act, Contravening section 58 (1) (b) of the Fisheries Management Act. I also find you guilty and ordered you pay a fine K10, 000.00 in default be sentence to two years imprisonment.
    
32. The defendant to pay a total of K40, 000.00 court fine forthwith. All sentence be serve concurrent to each other.
    
33. All bech der mer confiscated by the National Fisheries Authority weighing 192.14 KG be forfeited to the State, [National Fisheries Authority]
    
34. Bail refunded