National Fisheries Authority v Hi Jian Ping [2020] PGDC 65; DC5067 (10 January 2020)

DC5067

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS GRADE 5 CRIMINAL JURISDICTION]

GFC Cr. 20 of 2018
BETWEEN

National Fisheries Authority
Informant

AND

Hi Jian Ping
Defendant

Kokopo: SLavutul

2020: 09, 10^th January
      

CRIMINAL PRACTICE & PROCEDURE- Sexual Harassment of a Female Observer On Board a Licensed Fishing Vessel by a male Crew whilst at sea- – Guilty Plea – Vulnerability of Observers especially Female Observers – Consideration of Deterrent Penalty & Award of Sufficient Compensation/Restitution.

CRIMINAL LAW- Fisheries Management (Amendment) Act-Offences, Penalties and Costs (Amendment 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
State v Jason Dungoia (13/12/00) N2038

References

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

Counsel

NFA Prosecutor Mohe Appeared for NFA.

Defendant Appeared in Person

Held:

1. That the Defendant is convicted and fined K15, 000.00 in default two (2) years in hard labour
2. That the Defendant pays to the victim the sum of 3, 000.00 US Dollars as compensation/restitution in default 12 months in hard labour which will stand as a deterrent against the Defendant and any would be offenders.
3. That the Court Fine and Compensation/Restitution be paid forthwith.
4. That in the event of default by the Defendant a Warrant of Commitment for a total of three (3) years be issued forthwith.

SENTENCING
10^th January, 2020.

Samuel Lavutul, Principal Magistrate; The Information of Informant Leonard Jahak, an authorised Fisheries Officer of the National Fisheries Authority in Papua New Guinea, laid on the 09^th day of January 2020 before the Kokopo District Court alleged that between the 19th of November 2019 and the 03^rd of January 2020, within Papua New Guinea’s Exclusive Economic Zones; He Jian Ping, age 53, a foreigner from Zhejiang Province, Chinese Republic, China;

“Being a crew on board a licenced Fishing Vessel to wit Hsieh Feng No. 788 did sexually harassed namely Ms. Mwarii Teeta, a female fisheries observer on board the said vessel between the 16^th and 30^th of December 2019 inside PNG Fisheries Waters an act which does not comply with the vessel’s license conditions contrary to Section 46 (2) (d) of the Fisheries Management Act, 1998. Thereby contravening Section 58 (l) (h) of the Fisheries Management Act 1998.

2. It was alleged that between the 19^th of November, 2019 and the 03^rd of January, 2020 the Defendant namely, He Jian Ping was working as a crew aboard a fishing vessel to wit Hsieh Feng No. 788 as the 01st Engineer. The Fishing Vessel License No PNG567 flagged to Taiwan with its International Radio Call Sign (IRCS) of BL2121.

3. The victim Ms. Mwarii Teeta was a female Observer on the said Fishing Vessel and she hails from Kiribati. Her roles and responsibilities were to collect fisheries data and monitor the activities on-board the said Fishing Vessel and furnish a report to the fisheries management. The report furnished by her would assist management to make decisions in relation to the conservation of the Tuna Stock in the Pacific Region and she was all the time on the said Fishing Vessel at sea.

4. It was alleged that whilst at sea, she was sexually assaulted by the Defendant on two (2) different occasions. The first incident occurred on the 16th of December 2019; he harassed the victim verbally by asking her using the common Asian slang to wit, “Chikichiki” a common expression used when requesting sexual favour. The Defendant then followed through by physically touching the victim’s thigh without her consent. The victim noted the incident on her Observer Trip Journal. This incident occurred inside Papua New Guinea waters at Latitude 02 degrees 12’ 658S, Longitude 153 degrees 12’ 367E at 1730 hours.

5. The second incident alleged to have occurred on the 30^th of December 2019. This occurred after the victim had reported a faulty light in her room to the Radio Operator. Whilst the victim was in her room the Defendant came into her room to fix the light in her room. The Defendant alleged to have again harassed the victim by kissing her on her left cheek in her room in the pretext of fixing the light in her room. The victim claimed she did not give consent to the Defendant to do what he did to her. She noted the second incident in her Observer Journal. The second incident occurred inside the Papua New Guinea Waters at Latitude: 07degrees 56’ 239S and Longitude: 154 degrees 04’ 713E at about 1347 hours. The victim claims she then alerted the Fish Master and reported to him what had happened to her.

6. On the 01^st of January, 2020 Taiwanese Authorities requested that the vessel go to the nearest port and have the Observer disembarked as her safety had already been compromised. The fishing vessel made a port call in Rabaul on the 03^rd of January 2020 after only spending four (4) days at the fishing grounds.

7. This Observer’s critical incident report was brought to the attention of the Papua New Guinea National Fisheries Authority Compliance Officers on the 40^th of January 2020 where investigations were carried out where the Defendant was found to have breached a condition of its PNG Fishing license and the Western and Central Pacific Fisheries Commission (WCPFC) Conservation and Management Measure on the safety of Fisheries Observers.

8. I note for the records the Defendant is a Chinese national and does not speak either English or pidgin. An Interpreter by the name of Mr. Nick Guo a Chinese national who is employed by Islands Superstore in Rabaul Town was engaged with the approval of National Fisheries Officers to interpret in court for the Defendant.

9. The Defendant pleaded guilty to the charge on the 09^th of January 2020. The Defendant told the court he totally agreed with the statement of facts and charge which was put to him and interpreted by Mr. Nick Guo in Chinese. He did not raise any objections or defence.

10. A guilty verdict was then prounced against the Defendant Hi Jian Ping based on his admission to the charge.

11. In his antecedent the Defendant is 55 years old, employed as the first engineer on-board the Fishing Vessel License No PNG567. The Defendant earns 1, 400 US Dollars in a fortnight and his married with one child and a first time offender.

12. In his allocotus the Defendant told the court through his Interpreter he did not have anything to say or address the court on.

13. Prosecutions in its submission on sentence urged the court to consider the fact that the victim was a female Fisheries Observer and that the court should consider the maximum penalty for the crime he has committed. In addition Prosecution hinted to the court that the Defendant did what he did twice to the victim and it was premeditated sexual harassment.

14. Prosecution further submits for the court to consider the fact that this is Papua New Guinea’s first ever recorded sexual harassment case against a female Observer or crew at sea. Prosecution moreover submitted for a deterrent penalty for such an offence not only against the Defendant but also against other would be offenders. The penalty would stand as a deterrent against the abuse of female Observers on board fishing vessels. Prosecution therefore submitted for the court to impose a fine of K15, 000.00 or a term of imprisonment up to 3 years in hard labour.

Deliberations

15. In determining the appropriate penalty I give careful consideration to both the mitigating and aggravating factors before me. I am also indebted to and 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 note in mitigation the Defendant is 53 years old, employed, married with one child, a first offender without any prior convictions, he willingly pleaded guilty to the charge which saves the court time from running a trial.
27. I further note the aggravating factors in the following;

(a) The Defendant committed a crime against an officer who could not communicate with him or any other members of the crew on board the same vessel in a common language. He was in breach of section 46 (2) (d) and thus contravening section 58 (1) (h) of the Fisheries Management Act of 1998 and read together with the Fisheries Management (Amendment Act) 2015.
(b) The Defendant was in a position of trust as the 01st Engineer on board the said vessel and he was no ordinary crew. He was in position of trust to ensure the safety of other crew members including the only female Observer on board the ship.
(c) The place of occurrence of the offence was off land and the risk in terms of safety was very high. I also raise analogy from the facts the Defendant was fully aware of this risk and used it to his advantage by advancing on the victim.

28. Prior to handing down sentence I wish to note for the records, despite the fact the Defendant is a first offender and that he has admitted to the offence; the aggravating factors outweighs the mitigating factors. I also wish to state for the records the Fishing Industry in Papua New Guinea, the South Pacific and the world over is now gradually encouraging the employment and engagement of female crews and in this case female observers on board fishing vessels. These are women who have gone against the ordinary and have taken a bold step to take on the challenge to be engaged in an industry where the risk is very high, both man made and what nature poses. Once upon a time this job was left to the men folk and was viewed risky for the opposite sex.

29. As a direct result of this current case, I intend to sound a warning and as a deterrent to not only the Defendant but including any would be offenders who intend to use the remoteness and risky circumstances at sea to take advantage of female crews and other vulnerable crew members. I would impose an adequate monetary fine and monetary restitution against Defendant He Jian Ping as a deterrent.

Orders

1. That the Defendant is convicted and fined K15, 000.00 in default two (2) years in hard labour
2. That the Defendant pays to the victim the sum of 3, 000.00 US Dollars as compensation/restitution in default 12 months in hard labour which will stand as a deterrent against the Defendant and any would be offenders.
3. That the Court Fine and Compensation/Restitution be paid forthwith.
4. That in the event of default by the Defendant a Warrant of Commitment for a total of three (3) years be issued forthwith.
   

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