National Fisheries Authority v Pan Jian Lai [2022] PGDC 31; DC8042 (1 February 2022)

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CRIMINAL PRACTICE & PROCEDURE- Criminal acts – 1. Failure to secure vessel gears – 2. Use of vessel to engage in fishing related activity within PNG EEZ without a licence – 3. Failure to provide Notice of vessel’s entry into PNG EEZ - Falsifying Entries onto the Vessel’s (FFV Yong FA Yun 10) Engine Logbook –Pleas of Guilty- Consideration of Deterrent Penalty – Mitigating & Aggravating factors Considerations.

CRIMINAL LAW-1. Fisheries Management Act as amended -Offences, Penalties and Costs - Section 58 (1) (f), (g), (h), of the Fisheries Management (Amendment) Act 2015) Increase in penalties-Maximum penalty in respect of a natural person, a fine not exceeding K5000, 000.00. In default imprisonment for a term not exceeding five years- Sentencing Guidelines discussed-Starting point-Relevant considerations are identified and considered

2. Forfeiture of vessel, its catches & its gears under Section 39 (2) stipulates; “Any vessel used in contravention of Subsection (1) of the FM ACT 1998 as amended may be subject to forfeiture in accordance with Section 62”. Section 62 of the FM Act 1998 as amended stipulates further;

“FORFEITURE – (1) Subject to Subsection (3), where a court convicts a person of an offence against this Act, the court may order the forfeiture of any or all the following:-

(2) Where a court convicts a person of an offence against this Act, or such other offences as may be prescribed for the purposes of this Subsection, in the commission of which a foreign fishing vessel was used or otherwise involved, the court shall order the forfeiture of-

(b) any gear and other equipment that was on the vessel concerned at that time of the notice; and

(c) all fish or fish products on board the vessel at the time of the offence, or where the fish or fish products have been sold, the proceeds of the sale.
(3) The items forfeited in accordance with this section may be sold and the proceeds shall be deposited in accordance with Section 22 (1) (d).

3. Fisheries Management Act 1998 as amended -Offences, Penalties and Costs- Section 58 (1) (u)) of the Fisheries Management (Amendment) Act 2015) - Increase in penalties-Maximum penalty in respect of a crew, a fine not exceeding K10, 000.00. In default imprisonment for a term not exceeding five years- Sentence-Sentencing Guidelines discussed-Starting point-Relevant considerations are identified and considered.

4. Section 58 (1) (11) of the Fisheries Management Act 1998 as amended stipulates, “a Court or a panel in determining the level of penalty in a particular case may have regard to the need to ensure that any penalty imposed must be adequate in severity to discourage further offences, and where possible should deprive the offenders of the benefits accruing from the unlawful activity”

Cases Cited
State v Jason Dungoia (13/12/00) N2038
Kovi v the State SC789
State v Joe Sekin (2006) CR 1592 of 200.
Kenneth Andrew v Dennis Kokowei & others NF 01 – 16
Lamiller Pawut vs Lim Men Been, N1411
National Fisheries Authority vs Nguyen Van Phuc [2017] PGDC 27; DC 3040 (3 March, 2017)
NFA vs Haket [2020] PGDC 20; DC4076 (12 November 2020)
NFA vs Kong Chiong Lik [2018] PGDC 42; DC5002 (23 November, 2018)
Cheatley –vs- R (1972) CLR 291
MAF –v- Dubchack [1994] 12 CRNZ 576 at 587
Geda Kairi v State (2006) SC831,
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
Counsel Anlus Iwais Appeared for NFA as Prosecutor
Counsel for Defendants Mr. Jerome Fongenmale

Samuel Lavutul, Principal Magistrate; I will deal with the respective charges of Defendant Captain (Master) & Operator Pan Jian Lai and Chief Engineer Jiang Zhi Ao together despite the fact they were charged and arraigned separately. I will deal with their respective charges in this judgment as all charges rose out from the same set of facts.

2. Firstly, for the records Defendants Pan Jian Lai and Jiang Zhi Ao are Chinese nationals and both speak neither English nor Pidgin. In the initial stage of the proceedings the National Fisheries Authority and the Defendants agreed for a Chinese national, namely Mr. Steven Chen of Portion 495, Williams Road, in Kokopo to be the Interpreter.

3. However the court preferred for a Papua New Guinean national who speaks Chinese fluently and who is able to translate from Chinese to English fluently and vice versa. The court through the National Fisheries Authority engaged a Papua New Guinean national namely, Ms. Annemarie Komboi to be the Interpreter. Ms. Komboi is a private citizen and had previously been engaged by the National Fisheries Authority and National Maritime and Safety Authority to interpret on their behalf in such similar circumstances. There were no objections by the Defendants or their counsel, and the matter was adjourned to the 07^th of December, 2021 in order for the Interpreter to be flown in from Port Moresby.

4. For the records, I have jurisdiction to summarily preside over these matters sitting as a District Court Principal Magistrate pursuant to Section 56 (1) & Section 57 (1) of the Fisheries Management Act 1988 as amended respectively which stipulates;

“Section 56(1); Any act or omission in contravention of any of the provisions of this Act, in such places and to such persons to which this Act applies in accordance with Section 3, shall be dealt with and judicial proceedings taken as if such act or omission had taken place in Papua New Guinea within the jurisdiction of the District Court.” And;

Section 57 (1); An offence against this Act shall be prosecuted summarily before a Principal Magistrate, except where administrative proceedings are taken in accordance with Part VII.”

5. Defendant Pan Jian Lai, Captain/Master & Operator of the said vessel FFV Yong FA Yun 10 was charged with the following 3 counts;

Count No 1 - That between the 20^th -26th of October 2021, in the Papua New Guinea Exclusive Economic Zone; the said Pan Jian Lai, of Le Feng Town, Quan Zhou City, Fujian Province, of the People’s Republic of China; being the captain of the FFV Yong FA Yun 10, which was not authorized to fish in PNG waters, did fail to ensure the vessel gears, namely winch also known as vessel derricks or booms, are stored or secured in such manner that is not readily available to fish, whilst the vessel was inside the PNG Exclusive Economic Zone (EEZ), breaching Section 38 of the Fisheries Management Act 1988 as amended.

Thereby contravening Section 58(1) (f) of the Fisheries Management Act 1988 as amended.

Count No.2 -That between the 20^th -26th of October 2021, in the Papua New Guinea Exclusive Economic Zone; the said Pan Jian Lai, of Le Feng Town, Quan Zhou City, Fujian Province, of the People’s Republic of China; being the captain of the FFV Yong FA Yun 10,did used the said vessel to engaged in a fishing related activity whilst inside PNG Exclusive Economic Zone namely having its derrick unstowed and communicating with fishing operators and vessel company on its activities, all whilst having no valid and applicable licence in breach of Section 46 (1) (d) of the Fisheries Management Act 1998 as amended.

Thereby contravening Section 58 (1) (h) of the Fisheries Management Act 1988 as amended.

Count No.3 - That between the 20^th -26th of October 2021, in the Papua New Guinea Exclusive Economic Zone; the said Pan Jian Lai, of Le Feng Town, Quan Zhou City, Fujian Province, of the People’s Republic of China; being the master and operator of the FFV Yong FA Yun 10,did fail to provide Notice of the vessel’s entry into PNG Exclusive Economic Zone, being a requirement for foreign fishing vessels that enter into fisheries zone for any purpose in breach of Section 39 (1)(b) of the Fisheries Management Act 1988.

Thereby contravening Section 58 (1) (g) of the Fisheries Management Act as amended.

6. And Defendant Jian Zhi Ao, who is the Chief Engineer, was charged with one (1) count in that;

“On the 27^th of October 2021, in the Papua New Guinea Exclusive Economic Zone; Jian Zhi Ao, a male adult, from Zhe Jiang Province, of the People’s Republic of China; the Chief Engineer of vessel the FFV Yong FA Yun 10 did knowingly made false entries in the vessel’s engine Logbook in that the engine was shut down on the 23^rd of October 2021 due to high temperature when at the material time there was no such entries in the Logbook when Fishery Officers boarded and inspected the engine Logbook on the 26^th of October 2021.

7. By way of background the statement of facts reveals that on the 26^th of October, 2021 the foreign fishing vessel, FFV Yong FA Yun 10, a Chinese Flag Carrier and a Refrigerated Carrier, with 25 crews on board was apprehended by the PNG Navy Patrol Boat HMPNGS Rochus Lokinap within the Papua New Guinea Exclusive Economic Zone (EEZ) about 81 nautical miles north of the Mortlock Islands within the Autonomous Region of Bougainville (AROB).

8. The facts revealed the PNG Navy Patrol Boat was doing routine fisheries surveillance patrol within the PNG EEZ adjacent to the AROB and New Ireland waters when it came across the said foreign fish carrier vessel. On board the naval ship there were two (2) Fisheries Officers and 22 Naval Officers. The joint fisheries surveillance exercise was a regional effort with 17 Pacific Islands Forum Fisheries Agency (FFA) members aimed at combating illegal, Unreported and Unregulated (IUU) fishing and related activities within the Western and Central Pacific region.

9. At around 2104 hours local time on the said date when the navy ship was tracking north at 00 degrees, whilst the weather was good with the night so still, the said vessel was sighted having its lights on, and 8 derrick or booms stretched out on 4 ship’s mask on main deck indicating the vessel was ready to conduct a fishing related activity or had completed conducting a fishing related activity.

10. At around 2230 hours and at position Latitude of 03degrees 45.4409’South and Longitude of 156degrees 45. 4409 East, the said vessel was boarded by 7 boarding officers consisting of 2 fishery officers and 5 naval officers.

11. Whilst during the boarding and inspection of the said vessel, it was established through the inspection of the vessel’s documentation that the vessel had no Fishing License nor was it licensed to fish in PNG Fisheries Waters. That it was also established the said foreign fish carrier vessel entered PNG Fisheries waters on the 20^th of October, 2021 and was inside the fisheries waters till it was sighted and boarded on the 26^th of October, 2021. It was also established that it had on aboard 233 metric tonnes of tuna including 19 pieces of shark fins left out to dry that night. It was discovered the said vessel has valid fishing licences from the Republic of Kiribati, the Republic of Marshall Islands and the Federated States of Micronesia

12. The facts also revealed that when Fishery Officer Joseph Kendo who was a member of the boarding party enquired with the captain of the vessel as to why they were inside the PNG Fisheries waters without a PNG Fishing License and with the vessel gears not properly stowed, the captain said they drifted because of engine problem since 23^rd of October 2021 and was undergoing maintenance.

13. The facts further revealed when the fishery officer verified his response against the vessel’s engine log book for the dates, 23^rd, 24^th, 25^th and 26^th of October, 2021, there was barely any entry at all not even any mentioned of engine maintenance issue recorded in the Engine Log Book. It was noted such entry is a common requirement for all navigating vessels to record the engine performance, maintenance and any malfunctions. The pages of the Log Book for the dates specified were photographed by the officer confirming that there were no entries concerning any engine issues or engine maintenance. It was also noted in their daily communication between the captain and the vessel owners did not mention anything about the engine problem.

14. Thus resulted in the vessel being ordered into the Port of Rabaul for full investigations to be carried out as to the vessels presence in the PNG Exclusive Economic Zone without a license and without notice of its presence with its derricks or winch not stowed.

15. Following their apprehension and arrival at Rabaul Port, the vessel’s Log Book, Engine Log Book and Radio Log Book were seized as subjects of the investigation. It was noted after seizure, that the vessel Log Book has entries stating that the vessel was drifting in the high seas for the days, 20^th, 21^st 22^nd, 23^rd, 24^th, 25^th and 26^th of October, which were false as it was confirmed from the various sources, that is the vessel’s own Global Positioning System (GPS) positions in the Log Book, Forum Fisheries Agency (FFA) Vessel Monitoring System (VMS) and the vessel’s own Automatic Identification System (AIS), that the vessel was inside the PNG Exclusive Economic Zone on the above mentioned dates.

16. In addition, it was also revealed that the entries were made in the engine Log Book for 24^th of October, 2021 stating some maintenance works were done on the engine due to high temperature. It was noted this entry in the engine Log Book was recent and only after the vessel was boarded and ordered into Rabaul Port. It was further noted those entries were recent as there was no such entries in the Engine Log Book for the 24^th of October, 2021.

17. It was concluded from the findings that the entries made in the Engine Log Book for the 24^th of October, 2021 regarding engine maintenance issue was fabricated entries after the fact to avoid facing the consequences of the vessel’s illegal presence in the PNG Exclusive Economic Zone for 7 days. It was discovered that the vessel’s captain’s communication to his company for that day did not even cite or report of any engine issue. It was confirmed by the NFA Licensing Division that the vessel was not licensed to fish in PNG waters for the period 20, 21, 22, 23, 24, 25 and 26 October, 2021 and it did not give any Notice of Entry and presence within the PNG Exclusive Economic Zone.

18. It was further discovered that these new entries made by the vessel’s Chief Engineer, Jian Zhi Ao after boarding was done on the 26^th of October, 2021 which were false and misleading. It was revealed the Chief Engineer when queried, he replied he did not make any entry on the 24^th of October, 2021 as he was busy that is why he only made the entry on the 27^th of October, 2021. Thus resulting in the arrest and charging of the Defendants respectively.

19. Both Defendants after their respective charges were put to them and through Interpreter, Ms. Annemarie Komboi each entered a provisional plea of guilty to each of their charge (s) and each added they apologized with remorse for their respective actions.

20. Upon each of the Defendant’s admission to their respective charges and acceptance of the content and nature of the statement of facts which was put to each of them; and with confirmation from their counsel, the court confirmed and affirmed their respective provisional pleas of guilty and pronounced the charges were proven on plea and each of the Defendant was found to be guilty as charged.
In addition both counsels sought the court for an adjournment for sufficient time in order to file written submissions to address sentence.

21. Section 38 of the Fisheries Management Act 1998 in relation to the first count which the Defendant Pan Jian Lai is alleged to have breached stipulates;

“The Operator of any foreign fishing vessel transiting the fisheries waters shall ensure that all gear on board is at all times stowed or secured in such a manner that it is not readily available for fishing unless the vessel is authorized to engage in fishing in that area of the fisheries waters in accordance with this Act and an applicable access agreement”

22. Thus the Defendant is alleged to have contravened Section 58 (1) (f) of the Fisheries Management Act as amended which stipulates;

Subsection (1),(b),(c),(d), (e), (f), (g), (h), (n), (p), (r), (x), (y), (z), (bb) and

23. Section 46 (1) (d) of the Fisheries Management Act 1998 in relation to the second count the Defendant is alleged to have breached stipulates;

“A person who, without a valid and applicable licence -...engages in any activity, of a kind or type, or at a time, or in a place or manner, for which a licence is required under this Act, commits an offence”.

24. Thus the Defendant is alleged to have contravened Section 58 (1) (h) of the Fisheries Management Act as amended which stipulates;

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

25. Section 39 (1) (b) of the Fisheries Management Act 1998 in relation to the third count the Defendant is alleged to have breached stipulates;

“The operator of a foreign fishing vessel shall - ...(b) provide such notice and other reports as may be prescribed or required by the Managing Director from time to time; and”

26. Thus the Defendant is alleged to have contravened Section 58 (1) (g) of the Fisheries Management Act as amended which stipulates;

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

27. For the records Defence filed three (3) different sets of submissions addressing the respective three (3) charges against the Defendant Pan Jian Lai. I will take note and restate what I consider necessary so as to avoid repetition. Firstly in addressing sentence on behalf of Defendant Pan Jian Lai counsel submits they are relying on the following case authorities;

28. Defence refers to and seeks the court to apply the principles set out in the Supreme Court Judgement of Kovi v the State SC789 which emphasizes the following considerations;

29. Defence submits as to the Defendant Pan Jian Lai’s first count under Section 38 of the FM Act 1998 as amended, which provides in summary; “the operator of any foreign fishing vessel shall ensure that all gears on board is at all times stowed or secured in such a manner that is not readily available to for fishing unless is authorized to engage in fishing in that area”, in that the offence the Defendant is charge with is not the worst type of case whereby the maximum penalty should be imposed.

30. In summary defence submits that the court gives consideration to the reasons given by the Defendant that they were inside PNG waters due to engine problem since 23^rd of October 2021 and was undergoing maintenance. Thus including the justifications for why the booms of the vessel were not stowed away as per the corroborative and honest responses between the Captain and Chief Engineer during their respective interviews. It further urges the court that there were no ill motives or illegal fishing activities as it was for their convenience.

31. Defence submits that the actions of the Defendant as operator and captain in failing to ensure that the gears were not stowed or secured for convenience for their operations outside of PNG waters, it should not be categorized as the worst type of case.

32. Defence poses to the court on what would be the appropriate fine for a breach under Section 38 of the FM Act 1988? It refers the court to apply the guidelines set out in the case of Joe Sekin v State as it has been applied in various cases involving breaches under the Fisheries Management Act 1998 as amended. These are the following guidelines;

33. Defence further poses the maximum penalty for the offence the Defendant is charged with carry a maximum fine of K500, 000.00 in respect of him as the captain in his capacity as a natural person. Defence submits for the court to consider the views in Kenneth Andrew v Dennis Kokowei & others NF 01-16 as it does not have any case to compare the sentencing range as to the particular charge.

34. For the first count Defence submits the court to consider the facts and mitigating factors and impose a fine between the range of K5000.00 and K10, 000.00 for this charge. It added this is not a worse case to attract the maximum fine of K500, 000.00 and submits that the head fine should be at K10, 000.00 and to be paid within 7 days.

35. In summary; in relation to Defendant Pan Jian Lai’s second count for a breach under Section 46 (1) (d) of the FM Act 1998 as amended provides; “a person who without a valid applicable licence engages in any activity of a kind or type or at a time or in a place or manner for which a licence is required commits an offence”.

36. Defence submits that this matter also is not the worst case where the maximum penalty should be imposed. And it further submits that the Defendant did not intend to be engaged in a fishing related activity in PNG waters as the vessel encountered an engine problem and drifted.

37. Defence draws the court’s attention to its view for consideration regarding the proper starting point, it submits that this is not the worst category of case hence the proper starting point should be K5, 000.00. Defence submits the following cases and their facts to justify the present case should not be categorized as a worst case as the Defendant did not intend to be engaged in a fishing related activity in PNG waters;

38. Defence submits in the above three cases, the Defendants had the intention to be engaging in an activity which they ought to have a licence. They knew what they were doing was illegal. In Nguyen v Van Phuc the crew tried to escape with BDM while in Rakum v Payac, the Defendant admitted that its vessel actually transhipped three brails of fish to another ship. In Kong Chiong Lik admitted to buying BDM without a valid licence. Defence added the Defendants in the above cases possess the intention hence these are worst category of cases. In the present case, it submits that the Defendant Pan Jian Lai did not intend to enter PNG waters but the vessel was a drift into PNG waters due to engine problem as such the starting point of a fine should K5, 000.00 and thus the head sentence to be K10, 000.00 taking into account all factors would be appropriate and to be paid within 7 days.

39. In relation to the Defendant’s third count it was in breach of Section 39 (1) (b) of the FM Act 1998 to wit; “the operator of a foreign fishing vessel shall provide such notice and reports as may be prescribed or required by the Managing Director from time to time”. Defence submits this is not the worst type of case where the maximum penalty should be imposed.

40. Defence submits that the Defendant did not intend to be engaged in a fishing related activity in PNG waters. The vessel drifted into PNG waters and had no licence to operate in PNG as no Notice was given. Again it referred the court to consider the guidelines set out in the matter of Joe Sekin v State including the matter of Rakum and Payac where the court imposed a fine of K80, 000.00 for transhipment at sea. It submits for a fine of K10, 000.00 and to be paid within 7 days.

41. Now despite the submissions to impose a fine for the breach of Section 39 (1) (b) of the FM Act 1998 above; Defence filed a supplementary submission on the 14^th of December 2021 with the intent to assist the court in its deliberations and decision on penalty.

42. Defence expressed that in addition to the submissions prepared and filed for the Defendants in these proceeding; they wish to further submit as to the charges under Section 39 (1) (b) of the FM Act 1998 as amended.

43. Defence expressed that the offence in Section 39 (1) (b) of the FM Act 1998 is intended to be read together with subsections (a) & (c) and not to be disjointed from each other. This is owing to the usage of the connecting word “and” in each of the subsections. It added if it was to be disjointed then the subsections ought to have been separated by the use of the word “or” to create singular or separate offences in each of the subsections. It further added even Section 39 (1) makes reference to Section 39 (1) offence as a whole without separating the sub subsections. And so when reading Section 39 (1) as a whole, what is the context of the offence? Section 39 (1) reads;

44. Defence urged the Court in that before dealing with Section 39 (1), “Transhipment” is interpreted in Section 2 of the FM Act 1998 to mean, “the transfer of fish or fish products to or from any vessel, and may include the transfer of fish or fish products from a fishing vessel to a land based facility, but does not include the transfer of fish or fish products when buying from artisanal fishers in accordance with a licence issued under this Act; and “tranship” has a corresponding meaning; In summary: “Tranship” mean to transfer fish or fish products from one vessel to another vessel or from a vessel to a land based facility.

46. Defence continued to urge the Court to take note in that when reading both sections 2 and 39 (1) together, the legislative framework points to transfer of fish and fish products (from vessel to vessel or to land based facility) the requirements for notices by foreign vessels for such transfers in PNG waters or to a land based facility. It further submits that the allegation has to be about transhipment or about transfer of fish or fish products from the particular merchant vessel to another vessel or to a land facility and that there was no notice for the transhipment.

47. Defence raised the question are foreign fishing vessels not permitted to travel or sail through PNG waters or waters of PNG which includes the PNG Exclusive Economic Zone? It further stressed that the answer is yes in that Section 14 of the Maritime Zones Act 2015 permits foreign vessels of all States to pass through PNG Waters including the EEZ so long as their passage does not affect the laws of PNG. Section 14 (5) (f) states that a “Passage of a foreign vessels is considered to be prejudicial to the peace, good order or security of Papua New Guinea”

48. Defence states all foreign vessels of any state in the world is permitted to pass through waters of PNG or Territorial seas so long as they do not caught in any circumstances set out in Section 14(5) of the Maritime Zone Act 2015. It also noted paragraph (f) of Section 14 (5) MZ Act relates to unlicenced or unauthorized fisheries activities on territorial waters.

“Passage shall be continuous and expeditious, but may include stoppage and anchorage;

50. It added that the above means that foreign vessels can stop or be anchored in PNG waters if it encounters any of those circumstances and “ordinary navigation” has wide meaning and application and among them is engine or mechanical or other problems to vessels. So 10 days stoppage at sea alleged is not unusual or is not illegal. Besides it has to be understood that this vessel is a Reef Carrier only. The Summary of facts and charges confirm that this vessel was a Reef Carrier and not a fishing vessel.

51. Defence raised considering section 14 of the Maritime Zones Act and all of the circumstances of the charge, the questions and answers in the Record of Interview and all other evidence are available, it is Defence submission that the charge under section 39 (1) (b) FM Act 1998 as amended as regards to the allegation that no notice was given to enter the PNG EEZ is a misapprehension of the law. The charge ought to be struck out, though the Defendant pleaded guilty to it.

52. Moreover, Defence stated nonetheless, to save costs, time and resources of the court and all of the parties involved, the Defendant maintains the guilty plea while submitting that the court should not consider any submissions by the prosecutions in relation to forfeiture of the subject vessel Yong Fa Yun 10 to the state under Section 39 (2) of the FM Act 1998. Such a submission by the NFA would lack sound legal basis and we submit this on the strength of all of the points of arguments herein.

53. Defence ultimately submits that in the circumstances of the case, the monetary fine submitted earlier is maintained. Defence expressed that a guilty plea is taken during arraignment; the court would thereafter enter a provisional guilty plea and invite the prosecution to hand up all of the District Court depositions/file including the Record of Interview. Once that is done the court would peruse all of the materials consider whether the evidence or ROI supports of the guilty plea made. Once the Court is satisfied with the materials, it confirms the guilty plea and would find the Defendant/Accused guilty of the offence he /she is charged with. This process includes the perusal of the record of interview and considering the answers to see the answers given supports the guilty plea, etc, etc. Defence added the Supreme Court case of Geda Kairi v State (2006) SC831, discusses a case in which the court had set the principle that “guilty plea” made by the accused ought to be set aside by the trial Court if the accused raises a defence during the Allocutus.

54. Defence alluded to the fact that in the three (3) cases the Defendant has denied committing any offence and such would warrant a trial. However since the Defendants are desirous not to waste any more time and resources, they have opted to plead guilty and bring the case to an end and this happened through a plea bargaining process of (which 3 out of the 7 charges were dropped).

55. Defence hinted to the court in any event, the Defendants maintain the submissions filed on the 14^th of December 2021 and repeat the monetary penalties made. It further submits to the Court that I consider my own decision in the case of NFA v Ye Weixiong (06 October 2020) DC4094 generally on the Sentencing Guidelines discussed and applied in that case. The principal promotes the need to avoid a quantum leap considered in that case should be applied herein. This particular case is in the lowest scale of the similar type of cases discussed so far.

56. Defence reminded the Court in that I had ordered K40, 000 fines in the Ye Weixiong case which involved 4 charges of unlicenced fishing and charges related commercial buying of forbidden fisheries products. It added the circumstances discussed in Rakum v Payac [2005] DC422 is even worse but the Defendant was penalised with K80, 000.00 and vessel forfeited (for using the vessel in illegal fishing business with serious aggravating factors discussed therein including the captain and crew)

57. Defence urged the Court to view this case has is definitely nowhere near the Rakum case; the 4 charges are administrative offences only. Defence maintain their submission that K35, 000. 00 fines for all four charges is sufficient penalty (with no order to forfeit the vessel) along orders for bail to be refunded.

58. Section 58 (1) (u) of the Fisheries Management Act as amended the Defendant is alleged to have breached stipulates;

“A person commits an who ...(u) knowingly makes or causes to be made any entry or writing that is false, incorrect or misleading in any material particular, in any book, log, record, return, declaration or statement required by this Act to be kept, made or given; or

59. Thus the Defendant is alleged to have contravened Section 58 (1) (u) of the Fisheries Management Act as amended which stipulates;

“The following penalties shall apply in respect of offences described
in subsection (1) (a), (i), (j), (k), (l), (m), (o), (q), (s), (t), (u), (v) and (aa);

60. In addition Section 58 (7) and (8) of the Fisheries Management Act 1988 as amended stipulates;

“(7) In addition to the penalty determined under Subsection (5) or (6), and any
other amount as may be provided under this Act, or where the penalty is
not paid, the court may order imprisonment for a term not exceeding
five years, except where the offence involves a weapon or threatens a
Fishery Officer or Observer in which case a term of imprisonment shall
not exceed 10 years.”

“(8) In addition to the penalty determined under Subsection (5) or (6), the court
may order a default penalty for non- payment of fines, not exceeding
K5, 000.00 per day.”

61. In regards to Defendant Jian Zhi Ao’s sentence, Defence submits they are relying on the following case authorities in the matters of Kovi v The State SC789 & State v Joe Sekin CR 1592 of 2000.

62. It reiterated they seek to apply the principles set out in the Supreme Court Judgement of Kovi v The State SC789 which are as follows;

63. Defence referred the court to Defendant’s responses as in Question 39 to 48 of the Record of Interview. Defence reiterated the Defendant did not make the entries on the 23, 24, 25, & 26 of October, 2021 because these were the days; he was attending to fix the engine. It added the Defendant was merely trying to find out the problem that is why he did not record or make any entries in the engine Log Book. Defence claims the Defendant fixed the engine on the 26^th of October, 2021 before the vessel was boarded and made the entries on the 27^th of October, 2021. The Defendant made the entries after he knew what to enter as he found out the problem. Defence submits that the Defendant’s reasons for not making the entries in the Engine Log Book are genuine. As such the penalty should be minimum as this is not the worst case.

64. In mitigation Defence stated the Defendant Jian Zhi Ao is 58 years old, married with 5 children, a first time offender and he was very cooperative with the NFA officers since his arrest. Defence added the Defendant was remorseful and has accepted his mistake resulting in the breach of the Fisheries Management Act 1998 when the charge was made know to him in the language he understood. His early plea saves the court time. Defence submits for a minimum fine to be imposed on the Defendant as the entries made were genuine.

65. Defence further suggested for the Court to apply the sentencing guidelines set out in the case of Joe Sekin v State which has been applied in various cases involving breaches under the Fisheries Management Act as follows;

66. Defence reminded the Court the maximum penalty provided under Section 58 (1) (u) of the FM Act 1998 as amended in respect of the Defendant Engineer as categorized as a crew member is a fine not exceeding K10, 000.00. And it proposed the proper starting point as per the view in Kenneth Andrew v Dennis Kokowei & 5 others NF 01 -16 for this particular charge and submits that this is not the worst category of case hence proper starting point should be K5, 000.00. It further submits that this case should not be categorized as a worst case so as to attract the maximum penalty as the Engineer’s reasons for not making the entries was genuine.

67. And Defence submits that the head fine should be K5, 000.00 taking into account all other factors and it submits for the fine to be paid within 7 days and any orders the court deems fit.

68. On the contrary, Prosecution in its submissions referred the court to the provisions of the Papua New Guinea National Constitution in particular the National Goals and Directive Principles No.4 which speaks of the country’s Natural Resources and Environment in that;

“We declare our fourth goal to be for PNG’s Natural Resources and environment to be conserved and used for the collective benefits of us all, and be replenished for the benefit of future generations.

4.1 Wise use to be made of our natural resources and the environment in and on the land or seabed, in the sea, ...in the interests of our development and in trust for future generations; and

4.2 All necessary steps to be taken to give adequate protection to our valued birds, animals, fish, insects, plants and trees”.

69. In addition, Prosecutions re-emphasized the maximum penalty of the three (3) offences Defendant Pan Jian Lai is charged with is a fine up to K500, 000.00 in default 5 years imprisonment and an in default penalty of K5, 000.00 per day, which may be imposed by the court for non- payment of fine (s). Whilst for the offence Defendant Jiang Zhi Ao is charged with carries a fine up to K10, 000.00 in default 5 years imprisonment and an in default penalty may be imposed by the court for non – payment of fine (s).

70. Prosecution in its submission referred the court to consider principles regarding sentencing set out in the following cases;

71. In addition, Prosecution reiterated in absence of established guidelines to deal with fisheries penalty considerations, they will utilise the guidelines used by the Courts in fisheries matters as followed by Kaumi PM (as he was then) in the case of NFA vs Nguyen Van Phuc and subsequently followed by His Worship Lavutul in NFA vs Haket and NFA vs Kong Chiong Lik. Whilst these cases deal with Bechedemer as compared to the current case involving foreign fish carrier vessel the principles and guidelines followed is a good guide to follow.

72. Prosecution further poses the question what is the seriousness of this offence? It argued one need not to go far to realize that fisheries violations are serious issue or at least that is the view of the people through their elected leaders passing the Fisheries Management Act 1998 and the Fisheries Management (Amendment) Act 2015 to reflect the people’s concern for the proper protection, management and utilization of the fisheries resources. It added the Fisheries Management Act 1998 as amended is the only legislation dealing with a natural resource that is very focused on the strict regulation of all aspects of fisheries management and development.

73. It added for instances a vessel fishing illegally can render the fish and those involved or dealing with that illegal act along a value chain or supply chain to be liable. The law is such that any person along the chain can be made liable for prosecution whether it be taking, harvesting, buying, selling, receiving, causing, processing, storage, transporting, exporting etc. All these charges or violations have the same maximum fines allowed under law.

74. Secondly Prosecution reiterated it is the only resource law that permits or grants a District Court Grade 5 Magistrate the powers to deal with and impose fines and penalties up to and including K5 million and an unlimited value in terms of forfeiture of properties and items used in relation to violations committed against the provisions of the fisheries legislation.

75. Thirdly Prosecution urges; the intent of the people through parliament is clear that they want increase penalties for fisheries violations by passing specific amendment to the Fisheries Management Act 1998 [Fisheries Management (Amendment) Act 2015] in particular Section 58 dealing with penalties and offences with the penalties increased and compliance process strengthened to enable rigid safe guard and protection of fisheries resources.

76. It added, the seriousness and intent of the Parliament for severe penalties can be noted from the way Parliament had gone about to amend certain provisions of the Fisheries Management Act 1998 on penalties. For instance, prior to the Fisheries Management (Amendment) Act 2015, the maximum penalty prescribed for such offence as this against the Engineer was K2, 000.00. This was repealed and replaced with the new maximum fine of K10, 000.00 under the 2015 Fisheries Management (Amendment) Act. Similarly in the three (3) matters against the Captain Pan Jian Lai was previously a maximum fine of K100, 000.00 in respect of a natural person which now have been increased to K500, 000.00 in default five (5) years imprisonment.

77. Prosecution insisted that they point this out to show the seriousness of parliament’s intent in protecting PNG fisheries resources by making clear its intent that violators must be penalized with hefty fines as a way to discourage illegal usage of fisheries resources. Thus to monitor and control illegal and unregulated fisheries activities such as those carried out by the Defendants.

78. Moreover Prosecution stresses that the global citizens are concern over illegal and unregulated fisheries activities and PNG being a member of the global fisheries community has the obligation to take measures to help discourage and ultimately rid such illegal and unregulated fishermen and their activities. It added PNG has through the enactment of the Fisheries Management Act 1998 as amended has made its intentions very clearly that it is committed to take its place in the global community and take measures with its capabilities to rid illegal and unregulated fishermen and their illicit activities with severe fines and penalties imposed.

79. Prosecution is calling upon the Court to take and put into action the State’s intention to deal severely with illegal and unregulated fishermen and fishing activities so as not only discourage them from carrying on their activities but rid the world of such people and their illicit activities with reference to the view of Andrew J (as he then) in the case of Lamiller Pawut vs Lim Men Bee N141, that in the view of Barwick C.J in Cheatley –v- R [1972] C.L.R. at Page 296 and in MAF –v- Dubchack [1994] 12 CRNZ 576 at 587.

80. In conclusion, Prosecution submits for the Court to impose the maximum penalty of K10, 000.00 against Defendant Chief Engineer Jian Zhi Ao pursuant to Section 58 (1) (u) of the Fisheries Management Act 1998 as amended for his criminal act in that he knowingly made false entries into the Engine Log Book of the vessel FFV Yong FA Yun 10 on the 27^th of October, 2021.

81. It also submits that in deciding what the appropriate sentence or penalty to be imposed it referred the Court’s attention to the intent of the people as expressed in the Fisheries Management Act 1998 as amended. It further refers the Court to the persuasive view expressed by Principal Magistrate Kaumi as he was then in the matter National Fisheries Authority vs Nguyen Van Phuc [2017] PGDC 27; DC 3040 (3 March, 2017) as it should be an indication of the intent and the expectation under for severity of penalties in which he stated;

“Sanctions applicable in respect of violations shall be adequate in severity to be effective in securing compliance and to discourage violations where they occur and shall deprive offenders of the benefits accruing from their illegal activities”

82. It further urges the Court to give effect to Section 58 (1) (11) of the Fisheries Management Act 1998 as amended which stipulates, “a Court or a panel in determining the level of penalty in a particular case may have regard to the need to ensure that any penalty imposed must be adequate in severity to discourage further offences, and where possible should deprive the offenders of the benefits accruing from the unlawful activity”

83. Moreover, Prosecution pressed that the intent of legislation is very clear, there must be severe sentence, adequate to protect the fisheries resources and discourage and deter illicit, unscrupulous violators. It reiterated the seriousness of dealing with violations under the fisheries legislations can be seen throughout the provisions and scheme of the Fisheries Management Act as amended, this was specifically on ensuring tougher actions were taken to eradicate IUU activities; the other provisions of the FMA 1998 as amended such as S41 A, Section 41B and Section 58 (9) & (10) also points to the seriousness of dealing with violations.

84. Finally, prosecution re-emphasized the above by referring this Court to the view by Barwick CJ in the case of Cheatley –vs- R (1972) CLR 291 and furthered in the case of MAF –v- Dubchack [1994] 12 CRNZ 576 at 587 which was adopted and applied by Andrew J as he was then in the Papua New Guinean case of Lamiller Pawut –vs- Lim Men Bee which states;

"The protection of the fishing grounds of the nation from foreign exploitation is somewhat akin to the protection of the country from smuggling. Drastic action in protection of the country’s interest in each instance may be regarded as warranted, indeed, if not to be expected. Each is an area where pecuniary penalties are unlikely to provide adequate protection", per Barwick C.J in Cheatley -v- R [1972] C.L.R 291 at 296. Further in MAF -v- Dubchack [1994] 12 CRNZ 576 at 587:

"As this case has shown plainly enough its Act is far from easy to enforce. New Zealand’s economic zone is vast, there are many taking large quantities of fish from it under licence or illicitly. The economic stakes are high, and the integrity of the resource is always at state. Surveillance is difficult and expensive."

85. Prosecutions reiterated that on the basis of the seriousness of the fisheries violations and the intent of the law for an adequate severity of fines as expressed in the foregoing paragraphs, it submits for the following penalties to be imposed as against each Defendant for each of the charges;

Charges	Fines
Fail to stow gears contravening Section 58 (1) (f) FM Act 1998 as amended.	Maximum fine of K500, 00.00 be imposed.
Engaged in fishing related activity without a valid and applicable fishing licence.	K400, 000.00
Fail to provide notice of entry into the PNG EEZ contravening Section 58 (1) (g) of the FM Act 1998 as amended.	K300, 000.00 fine be imposed

Charges	Fine
Making a false entry in the Engine Log Book. Contravening Section 58 (1) (u)	K10, 000.00 maximum be imposed

86. Prosecutions added Section 58 (7) & (8) of the Fisheries Management Act 1998 as amended provides for default penalties for non - payments of fines. That is what the consequences be falls a defendant who fails to pay fines or penalties within time ordered by the court.

87. Moreover Prosecutions highlighted that Section 58 (7) provides for default prison term of not more than five years in hard labour except where an offence involves weapons or threat to Fishery Officer or a Fishery Observer, in which case the default term is not more than 10 years. Default prison term is however not available under rules of international law which requires that penalties imposed on a foreign personal for violations inside the EEZ shall not include prison terms.

88. Prosecution clarified in that on the other hand, Section 58 (8) provides that the Court may order additional penalty of not more than K5, 000.00 per day for non-payment of fines. Prosecution submits that on the basis of this that the Court to order a default penalty of K5, 000.00 per day for each Defendant in the event that they default in paying the imposed penalties.

89. Prosecution further highlighted there are aggravating circumstances in that this case as alluded in the above paragraphs which we outline relevant mitigating and aggravating factors, the nature of the vessel and its operations as a fish carrier vessel entering PNG without a license, without notifying authorities and having with its gears, (beams/derricks) not stowed should go against the Defendant and warrants a penalty higher than the penalty imposed on the Defendant as in the case of Lamiller Pawut –v- Lim Men Bee and the National Fisheries Authority –v- Vguyen Van Phuc
90. Now regarding the vessel, gear and equipment forfeiture Prosecution draws the attention of the Court pursuant to Section 62 (2) of the Fisheries Management Act 1998 as amended the foreign Fishing vessel Yong Fa Yun 10 be ordered forfeited to the National Fisheries Authority. It added Section 62 (2) provides that where the Court convicts a person of an offence against this Act, in the commission of which a foreign vessel was used or involved, the Court shall order forfeiture of the vessel, its gears and equipment that were on the vessel, all fish products on board the vessel at the time of the offence.

91. It added that the forfeited vessel, its equipment and gears products become the property of the National Fisheries Authority (Section 63 (1) of the FM Act 1998) who shall have the liberty to deal with it according to Section 63 (2) of the Fisheries Management Act 1998 as amended should the Court rule in their favour.

92. It also clarified that Section 58 (3) of the Fisheries Management Act 1998 as amended provides that the owner or the charterer of the vessel shall bear any costs or expenditure incurred by the State, as determined by the Court in accordance with law upon conviction and by application of the State in connection with (a) seizure of a foreign vessel for an offence against this Act, and (b) the prosecution for an offence in accordance with this Act.

93. Prosecution further submits that pursuant to Section 58 (3) of the FM Act 1998 as amended that all expenses incurred by the State in the apprehension and subsequent prosecution be reimbursed by the owners or Masters of the vessel prior to any further dealings with vessel.

94. Prosecutions in concluding their submission highlighted the following for consideration by the Court;

2.1. K500, 000.00 for the offence of failing to stow gears
2.2. K500, 000.00 for the offence of engaging in fishing
related activities without a licence.
2.3. K3000, 000.00 for the offence of failing to give notice of its
entry into PNG EEZ.

95. Apart from submissions the above Prosecution wish to add and note for the records it’s response Defence supplementary submission on sentencing filed by the Defence on the 14^th of December, 2021 raising issues of law relating to interpretation and application of Section 39 of the Fisheries Management Act 1998 as amended and in particular regarding the charges of failing to provide notice for transhipment. This supplementary submission was not served on the prosecution and were not aware of it until it was enquired by the court through the Clerk of Court whether prosecution will be responding to the same.

(2). Any vessel used in contravention of Subsection (1) may be subject
to forfeiture in accordance with Section 62.

97. Prosecution reiterated the following terms and its definition as per the FM Act 1998 as amended;

“fishing vessel” is defined in the Fisheries Management Act 1998 as amended to mean any boat, ship or other craft which is used for, equipped to be used for or of a type normally used for fishing or related activities;

98. Prosecution explained from the definition cited above, any boat ship or craft equipped to be used for fishing or elated activity is a fishing vessel, a related activity is defined in the FM Act 1998 as amended to include such activities as storing, transhipping, transporting fish or fish products, supplying fishing equipment or other activities in support of a fishing vessel.

99. Prosecution emphasized and explained, the vessel Yong Fa Yun 10 is not only a vessel equipped to carry out related activities such as transhipment, transporting, refuelling or supplying other fishing vessels such comes under the definition of a fishing vessel but licenced to provide such fishing related activity within the waters of neighbouring Pacific states namely Kiribati, Marshall Islands and Federated State of Micronesia and is on record of both the Western and Central Pacific Fisheries Commission (WCPFC) and the Forum Fisheries Agency (FFA).

100. Prosecution reiterated the statement of facts read to the Defendants during arraignment was accepted by them states that the said vessel’s last port of call was at the port of Tarawa in Kiribati transhipping fish from another vessel and was transporting it when it entered and was apprehended in the PNG EEZ. The vessel Yong Fa Yun 10 is a fishing vessel within the meaning of a fishing vessel as defined by the Fisheries Management Act 1998 as amended.

101. Prosecution further argued the first thrust of argument by the defence is that the charge for breach of Section 39 (1) (b) of the FM Act 1998 as amended is a misapprehension of law and such must be struck out. (paragraph B) of the Defence supplementary submission). They have based their arguments on trying to combine application of Section 39 of the FM Act 1998 as amended and section 14 of the Maritime Zones Act 2015.

102. Prosecution pointed out that the first obvious error is that Section 14 of the Maritime Zone Act 2015 relates to right of passage within the Territorial seas of PNG. The vessel and its crew were sighted and apprehended not in PNG’s Territorial sea but within the EEZ of PNG which is outside of the Territorial sea. Section 14 of the Maritime Zone Act 2015 expressly refers to the right of passage within the Territorial sea.

103. Prosecution went on to clarify in that Article 55 of the United Nations Convention on the Law of the Sea (UNCLOS) defines the specific legal regime of the exclusive economic zones as being an area beyond and adjacent to the Territorial Sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of coastal state and the rights and freedoms of other states are governed by the relevant provisions of the convention.

104. The Part VIII of the Maritime Zones Act 2015 deals with regime of EEZ specifically sections 27, 28 & 29. Within the EEZ and under international law [UNCLOS, Article 58 (1) & (3) every person and state have right to freedom of navigation. The limitation to this right is that it must have regard to rights and duties of coastal states and in particular applicable laws of the coastal states. In respect of the FM Act as amended is such a law.

105. In the case of the Yong Fa Yun 10, it is not so much of an issue of innocent passage but an issue of compliance with provisions of the applicable law which is in his case is the requirement under the Fisheries Law for fishing vessels or vessel equipped for fishing or related activity such as transhipment, transportation, bunkering etc to give notice of entry into a coastal state’s fisheries waters or fishing zones which includes the EEZ” by definition. The issue of whether a vessel is actually engaged in fishing or related activities is not relevant so far as it relates to the requirement to give notice to enter a coastal state fisheries zone or fisheries waters.

106. It further stated the FFA member states have made the requirement for giving notice a minimum standard required of any vessel engaging in fishing or related activities with fisheries water of the FFA member states, (Article 12 of Harmonized minimum Terms and conditions). It added the relevant issues concern here again is not so much of the issue of innocent passage but that of requirement of compliance to provisions of the Fisheries Management Act 1998 as amended such a provisions dealing with licence and licence conditions, provisions on requirement of entering and maintaining accurate information etc.

107. Prosecution reiterated on the issue of transhipment or lack of it as submitted by the Defence, we do not agree to this and opposed such conclusion. We refer courts attention firstly to the vessel Yong Fa Yun 10 and its activity. The vessel is licenced fish carrier, transhipping, carrying and transporting fish including their other related activities such as supply and provisions to fishing vessel operations. That is the vessel’s role and capability.

108. Prosecution further explained; the evidence summarized in the statement of facts read out and accepted by the Defendants specified that the vessel goes to and from transhipping fish from other vessels and carrying or transporting fish to factories. And on this particular voyage it went to the port of Tarawa in Kiribati and engaged in transhipment of fish and on its customs exit form as well as exit notice to Kiribati fisheries authorities it specified its next destination to be the high seas. This vessel’s activity during this trip was specific to engaged in transhipment, it tranships fish from Kiribati and headed straight into the PNG EEZ not because of mechanical problem etc but on own power and on steady course with all its gears namely beams and derricks all not stowed but out indicating readiness to engaged in activity. The beams and derricks are the vessel’s main gears used for transhipment and or transfer of supplies etc to and from other vessels whether it’s in port or at sea.

109. Prosecutions continued that at the time of sighting and boarding, whole of vessel’s beams or derricks were not stowed but out indicating readiness for use, Section 38 of the Fisheries Management Act 1998 as amended is precise,

“The operator of any foreign fishing vessel transiting the fisheries waters shall ensure that all gear on board is at all times stowed or secured in such a manner that is not readily available for fishing unless the vessel is authorized to engage in fishing in that area of the fisheries waters in accordance with this Act and applicable access agreement”

110. Prosecution stressed that in this instance the vessel’s gears were in a position of readiness to be used out at sea. The vessel’s main role is to carry out transhipment and transporting of fish. Its gears were out indicating readiness to carry out its specified and specialised activity of transhipment, it is therefore required to give notice firstly of its presence in PNG waters or EEZ and also for transhipment etc as required under section 39 (1) of the FMA.

111. Prosecution further stressed that the charges laid under section 39 are therefore not misapprehension of the law but are correct application of the full extent and intent of the requirement and intent of the FMA 1998 as amended covering operations and presence of fishing vessels inside PNG’s fisheries waters so as to protect the nation’s fisheries resources.

112. Prosecution in response to Defence submission regarding the Hand up brief it clarified the issues of hand up brief is not necessary required except that a statement of facts is read out upon the entry of a provisional plea of guilty. It is only upon agreement by the Defendant to the statement of facts put to him or her that conviction is confirmed and Defendant consequently is convicted. In addition, this was the basic summary process followed. Statement of facts was read to the Defendants and they accepted and agreed to and were accordingly convicted. Prosecution reckons it futile to come out at this time to attend to raise this issue. If there was a defence for the Defendants than they should have maintain their innocence and a trial conducted. There is none whether in law or of facts such process followed leading to courts convicting the Defendant is proper. Prosecution reiterated there is no error.

113. In conclusion Prosecutions submits that the penalty of forfeiture is mandatory, where there is conviction for an offence involving a foreign fishing vessel, then forfeiture of the vessel and its gears etc are mandatory. Charges laid are proper and that due process was employed in court confirming and convicting the Defendants.

114. In determining the appropriate penalties in relation to the respective charges laid against Defendants Captain & Operator Pan Jian Lai and Chief Engineer Jiang Zhi Ao; I have given careful consideration to the respective submissions by both counsels. I have also given careful consideration to the respective case laws relied upon by both counsels with the intent to guide this court in order to arrive at a just and appropriate penalty against each charge laid against each Defendant.

115. I have given 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. DCJ 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”. I am also mindful of the following considerations emphasized by Defence in its submission in the Supreme Court case of Kovi v the State SC789; that is in relation to; (i) Seriousness of the offence, (ii) Gravity or otherwise of the offence, (iii) Personal circumstances of the defendant which aggravate or mitigate the punishment & (iv) Community interest. So the issue before me is what would be the appropriate penalty to be imposed against the each Defendant as per their respective charges?

116. I will first deal with the three (3) charges laid against Defendant Captain and Operator Pan Jian Lai. Defendant Pan Jian Lai was found guilty on the three (3) following counts on the 09^th of December 2021 in that;
Count 1. An offence against Section 58(1) (f) of the Fisheries Management Act 1988 as amended.
Count 2. An offence against Section 58 (1) (g) of the Fisheries Management Act 1988 as amended.
Count 3. An offence against Section 58 (1) (h) of the Fisheries Management Act 1998 as amended. All three (3) counts carry a maximum fine of K500, 000.00 in respect of a natural person and a maximum imprisonment term up to 5 years in hard labour.

117. Firstly, I noted in mitigation, Defendant Pan Jian Lai is married with five (5) children. He is a first time offender. He cooperated well with NFA officers throughout the investigation through to his arrest and detention. Defendant entered an early plea of guilty on all his 3 counts which saved the court time from running a trial. And he had shown remorse for the offences he has committed and did not raised any defence in his Allocutus.

118. Secondly, in aggravation, the Defendant committed 3 offences which carry maximum fines up to K500, 000.00 with an imprisonment term up to 5 years maximum. The Defendant Pan Jian Lai was the captain and operator of the vessel FFV Yong FA Yun 10 when he committed the offences. He was no ordinary crew; he was in a position of trust and in total control of no ordinary vessel but that of a reef carrier which provides support to other fishing vessels and for related purposes.

119. As per the statement of facts as the operator and captain he totally failed to observe and adhere to the legal requirements pertaining to the securing of the vessels beam and derricks whilst inside PNG Exclusive Economic Zone. This is a mandatory requirement under Section 38 of the Fisheries Management Act 1998 as amended.

120. I am of the view the Defendant was fully aware the said vessel was a reef carrier vessel including the requirements under its licence. In addition, the Defendant captain was fully aware and well equipped with the facts that the said vessel he was in total control of was licenced to fishing grounds of the Republic of Kiribati, the Republic of Marshall Islands and the Federated States of Micronesia and not Papua New Guinea.

121. I also noted from the statement of facts the Republic of Kiribati, the Republic of Marshall Islands and the Federated States of Micronesia are also member nations including Papua New Guinea amongst the 17 Pacific Forum Fisheries Agency (FFA) Members with a common aim in combating illegal, unreported, and unregulated (IIU) fishing and related activities within the western and central pacific. I raise analogy from the facts the Defendant Pan Jian Lai having equipped himself with valuable information failed to use it to his advantage as a stern warning instead of wondering off and engaging in other suspicious illegal activities within the Papua New Guinea Exclusive Economic Zone.

122. Further still the Defendant Pan Jian Lai was fully aware of the fact that the vessel he was in charge of was fully fitted and equipped with state of the art and sophisticated vessel monitoring systems or equipment as indicated and confirmed from the statement of facts such as;

123. The Defendant and his crew could have used the above equipment to alert other vessels in the area or the vessel owners including PNG authorities that they were in distress due to the alleged engine problem as they had alleged to have drifted and were in the PNGEEZ for 7 days and in order to erase any suspicions from PNG authorities; and also in order to demonstrate they had a genuine reason to be within the PNGEEZ. I fail to understand why the Defendant did not attempt any sensible and responsible options by advising his vessel owners to make contact with PNG National Fisheries Authorities of their plight and for assistances from its nearest port. There was no justification or reasons given why they had failed to advise the vessel owners of their plight despite the fact they were in contact with them between the 20^th to the 26^th of October 2021 as confirmed by the statement of facts before the court. I also raise analogy from the fact that whilst the Defendant was in contact with the vessel owners for the period they were present within the PNGEEZ and based on the fact the vessel was fitted with a GPS it would have made it possible for the owners to be fully aware of the location of their vessel FFV Yong FA Yun 10 including their activities for the period between the 20^th of October to 26^th of October 2021.

124. The facts indicated the vessel was found within the PNGEEZ with its lights on and 8 derrick or booms stretched out on 4 ship’s mask on main deck indicating the vessel was ready to conduct a fishing related activity or had completed conducting a fishing related activity. It draws suspicion as to why they were not fully secured as per the legal requirements for such vessels when you are not licence to conduct such activities within the PNGEEZ. I am of the view it would have been circumstantially correct the Defendant captain and his crew members were up to something illegal or could have conducted an illegal fishing related activity prior to being caught.

125. Now before I go on to give considerations to the appropriate penalties for both Defendants I wish to first settled the following two (2) issues raised by the Defence in its supplementary submission;
i). the issue with the wording of the 3^rd charge laid against Defendant Pan Jian Lai under Section 39 (1) (b) of the FM Act 1998 as amended is alleged by Defence that it does not meet the intent of the law in that;
“Defence expressed that the offence in Section 39 (1) (b) of the FM Act 1998 is intended to be read together with subsections (a) & (c) and not to be disjointed from each other. This is owing to the usage of the connecting word “and” in each of the subsections. It added if it was to be disjointed then the subsections ought to have been separated by the use of the word “or” to create singular or separate offences in each of the subsections. It further added even Section 39 (1) makes reference to Section 39 (1) offence as a whole without separating the sub subsections”.
ii). the second issue is in relation to innocent passage by foreign fishing vessels in PNG waters – Defence raised the question are foreign fishing vessels not permitted to travel or sail through PNG waters or waters of PNG which includes the PNG Exclusive Economic Zone? “Defence contended section 14 of the Maritime Zones Act and all of the circumstances of the charge, the questions and answers in the Record of Interview and all other evidence available, it is Defence submission that the charge under Section 39 (1) (b) FM Act 1998 as amended as regards to the allegations that no notice was given to enter the PNGEEZ is a misapprehension of the law. Thus the charge ought to be strucked out, though the Defendant pleaded guilty to it. Defence referred the court to consider the view in the Supreme Court case of Geda Kairi v State (2006) SC831, which discusses and sets out the principle that “guilty plea” made by the accussed, ought to be set aside by the trial Court if the accussed raises a defence during Allocutus.”

126. I am of the view it is unfortunate for the Defence to raise the above possible defences on behalf of his clients at this stage of the proceedings. These were issues which could have been amicably settled by counsel and his clients taking into consideration of all factors pertaining to their respective charges. I wish to note for the records all matters before this court were proceeded with summarily. In a summary proceeding an Information containing the charge is read and explained to the Defendant in a language which he is able to converse in and understood. After the charge is read and explained to the Defendant and if the Defendant enters a provisional plea of guilty, then the facts concerning the charge (s) would be read to him or her by the prosecutor. If he or she fully accepts the nature of the statement of facts but raised no defence then the provisional plea would be confirmed and the court would pronounced a guilty verdict. However even if the court has pronounced a guilty verdict but at Allocutus stage and the Defendant raises a lawful defence on his or her behalf then the court must vacate/set aside the guilty verdict and enter a not guilty plea and set the matter for trial to a later date. In the Supreme Court case, Geda Kairi v State (2006) SC831, the trial judge in the National Court failed to set aside the guilty plea at Allocutus stage after the accused raised a defence in law. In the matter before me the Defendants never raised any defence at Allocutus stage but decided to remain silent with confirmation from their counsel. I am of the view it would be an error on my part and it would be an abuse of process should I strike out the case and discharged Defendant Pan Jian Lai from his 03^rd charge under Section 39 (1) (b) of the FM Act 1998 as amended. The Defendant’s third count under Section 39 (1) (b) is to remain as filed and I will proceed to sentencing.

127. In the matters before this court concerning the Defendants Pan Jian Lai and Jiang Zhi Ao the Statement of facts were read to them respectively; and they accepted and agreed to it and were accordingly convicted. I agree with prosecution it is futile for the Defence to come out at this time and attempt to raise these issues. If there was a defence (s) for the Defendants than they should have maintain their innocence and a trial conducted. I am of the view there was no error committed by the court throughout this summary proceeding.

128. In regards to the charge against Defendant Chief Engineer Jiang Zhi Ao, he was found guilty to his only charge under Section 58 (1) (u) of the FM Act 1998 as amended for knowingly made false entries in the vessel’s Log Book that the vessel the FFV Yong FA Yun 10 had engine problem and they were adrift for 7 days within the PNGEEZ due to engine problem.

129. In mitigation I note Defendant Engineer Jiang Zhi Ao is 58 years old and married with one (1) child. He is a first time offender and has been very cooperative with NFA officers since his arrest. The Defendant was remorseful and has accepted his mistake resulting in the breach of the FM Act 1998 as amended when the charges were made known to him. And his early plea of guilty saved the court time from running a trial.

130. In aggravation, the facts revealed that Defendant Jiang Zhi Ao attempted new entries on the vessel Engine Log Book which were false and misleading. It was indicated by falsifying entries in that the vessel was adrift on the high seas for the days, 20^th, 21^st, 22^nd, 23^rd, 24^th, 25^th and 26^th of October, 2021. It was later confirmed from the vessel’s GPS positional readings including that of the FFA VMS and the vessel’s own AIS that the vessel was inside the Papua New Guinea Exclusive Economic Zone not the high seas. As per the facts; entries in the vessel’s engine Log Book is a common practice and requirement for all navigating vessels in order to record the engine performance, maintenance and malfunctions.

131. I am of the view the Defendant Jiang Zhi Ao is not a honest man. I also note the Defendant was no ordinary crew but was the Chief Engineer and was in a position of trust; he was placed by the vessel owners in a position of trust, in order to ensure the vessel engines were working well with record keeping whilst the vessel was at sea. He also failed including his Captain Pan Jian Lai in order to report the issue with the vessel’s engines to the vessel owners despite it was on record they were in contact whilst they were present in the PNG Exclusive Economic Zone. I am sure they were both fully aware of the consequences of their actions in the event they would be caught.

133. At this juncture I would pose the question are fisheries cases/offences trivial or serious in nature? Defence submits that the offences the Defendants are charged with do not fall in the worst type category of cases whereby the maximum penalty should be imposed. In the Lamiller Pawut v Lim Men Bee, N1411 the court in determining an appeal by the Informant Lamiller Pawut on behalf the state was of the opinion that fisheries cases are not trivial but serious. Which states and I quote the comments by Andrew J as he then; “In my opinion the offence is a serious one and is certainly not trivial. The Fisheries Act 1994 as it was then was designed, inter alia, to manage, develop and protect the Nation’s fisheries resources and marine, coastal and aquatic environments in such a way as to conserve and replenish them as an asset for future generations. There have been many statements in relation to the importance of a nation’s fisheries resources, e.g.: “The protection of the fishing grounds of the nation from foreign exploitation is somewhat akin to the protection of the country from smuggling. Drastic action in protection of the country’s interest in each instance may be regarded as unwarranted, indeed, if not to be expected. Each is an area where pecuniary penalties are unlikely to provide adequate protection”, per Barwick. C.J in Cheatley –v- R [1972] C.L.R291 at 296. Further in MAF –v-Dubchack [1994] 12 CRNZ 576 at 587:
“As this case has shown plainly enough its Act is far from easy to enforce. New Zealand’s economic zone is vast, there are many taking large quantities of fish from it under the licence or illicitly. The economic stakes are high, and the integrity of the resource is always at state. Surveillance is difficult and expensive.”

“Those statements are equally applicable to the circumstances of Papua New Guinea. To give effect to the intentions of the Fisheries Act various actions are considered offences in order to safeguard the nation’s fisheries resources. Section 57 of the 1994 Fisheries Act prohibits foreign boats to enter, be in, or fish in fisheries waters of Papua New Guinea except for a purpose recognized by international law (i.e. the right of free passage) or as authorized by a fishing licence. The seriousness of the offences under s.57 (as it was then) are reflected by the penalties imposed, namely K25, 000.00 for a crew member, K250, 000 for any other natural person, which includes the master and the K500, 000.00 in the case of a corporation. Section 57 (as it was then) creates the offence of a foreign vessel being in fisheries waters and the intention of the Act is to make this a serious offence and the intention of the section is to severely and comprehensively deal with illegal fishing activities in Papua New Guinea’s fisheries waters”.

134. Thus the above has been re-emphasized through the enactment of the Fisheries Management (Amendment) Act of 2015 with an increase in the monetary penalties which would stand as a deterrent and indication to violators that fisheries offences are not trivial but are of serious nature in Papua New Guinea.

135. To reaffirmed the intentions of the people of Papua New Guinea through our elected leaders Prosecutions draws the court’s attention to the National Constitution in particular our National Goals and Directive Principles No. 4 which speaks of and promotes the protection and wise use of our natural resources both on land and sea, and its sustenance for future generations.

136. In determining what penalties to impose against Defendant Pan Jian Li and Defendant Jiang Zhi Ao 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 4: Should the pre-sentence period in custody be deducted from the term of imprisonment?

137.The maximum penalties for the 3 offences for which the defendant Pan Jian Lai has been found guilty of pursuant to section 58 (1) (f) (h) and (g) of the Fisheries Management (Amendment) Act 2015 - in respect of a natural person, a fine not exceeding K500, 000.00 in default imprisonment for a term not exceeding five years. I wish to place on record and warned myself against a quantum leap but to seek assistance and guidance from the persuasive views in the matters of NFA v Nguyen Van Phuc, Rakum v Payac, NFA v Kong Chiong Lik, NFA v Ye Weixiong Lik & NFA v Haket. I also place on record the current stand out precedent is the matter of Lamiller Pawut v Lime Men Bee., as it has a similar fact situation to the case before me. We would realise from the current district decisions on record the Lamiller case were never mentioned or referred to in the previous cases. I find it to be the only case with a similar facts situation to the matters before me. I suppose it may have been an oversight by previous prosecutors, defence counsels including the court. In this case Andrew J as he was quashed a previous District Court Decision and ordered a fine of K20, 000.00 against the master of the vessel/boat and ordered for the forfeiture of the foreign boat to the State. However despite imposing a fine of K20, 000.00 and forfeiting the boat Andrew J’s passing comments was “the protection of the country’s fisheries resources and fishing grounds from foreign exploitation is somewhat akin to the protection of the country from smuggling. Drastic action in protection of the country’s interest in each instance may be regarded as warranted”.

138. 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”.

139. In the matter s before me in regards to the three (3) charges against Defendant Pan Jian Lai which each carry a maximum fine of K500, 000.00 in default 5 years each my starting point would be K20, 000.00 in default two years in hard labour to K50, 000.00 in default two (2) years and six months in hard labour based on the facts before me. I also mindful of the fact that all three (3) matters were plea matters. Thus my mid-point would be K25, 000.00 in default two (2) years in hard labour.

140. I give consideration to the persuasive view 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.

141. In the matter before me Defendant Pan Jian Lai has been found guilty to three (3) counts, there is no direct evidence of fishing however circumstantially based on the facts the vessel’s derrick and boom were not secured whilst being present within the PNG Exclusive Economic Zone with a possibility and likelihood the Defendant and his crew were preparing to or have just concluded a fishing related activity.

142. In arriving at what the head sentence should be for the three (3) offences against Defendant Pan Jian Lai I take into consideration matters I consider both to be aggravating and mitigating in nature.

143. Despite the fact I have set my starting point in court fines at K20, 000. 00 to K50, 000.00 for each count in all fairness I would settle for K25, 000.00 each as head fines for each of the three (3) offences in default 12 months each in hard labour to be served concurrently. Total fines of K75, 000.00. Therefore Defendant Pan Jian Lai is convicted and fined K25, 000.00 each in default 12 months in hard labour for each count. Fines to be paid within the next 14^th days by the 18^th of February 2022. And a further default penalty of K3, 000.00 per day will apply should the fines remain unpaid after the 18^th of February, 2022.

144. I invoked powers conferred to me by section 62 (2) of the FM Act 1998 as amended to order forfeiture of –

(a) The vessel FFV Yong FA Yun 10 to the State under the management of the National fisheries Authority, and

(d) I further order pursuant to section 58 (3) of the FM Act as amended that the Owners or charterer of the said vessel shall bear the cost or expenditure incurred by the State, in connection with (a) the seizure of the foreign vessel FFV Yong FA Yun 10 and; In addition in the matter of NFA against Defendant Jiang Zhi Ao is convicted and fined K8, 000.00 in default 12 months IHL.
STEP 4: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM TERM OF IMPRISONMENT?

144. It may not apply in this matter as the defendants are on OR Bails with their passports being kept in the court’s custody.

145. Both Defendants Pan Jian Lai and Jiang Zhi Ao are out on their own recognizances.

1. That Defendant Pan Jian Lai is convicted and fined K25, 000.00 for each of the 3 counts and in default 12 months in hard labour for each count to be served concurrently.

2. The total fine of K75, 000.00 is to be paid by the 18^th of February 2022 in default 12 months imprisonment in hard labour to be served concurrently.

3. A further default penalty of K3, 000.00 per day will apply should the fines remain unpaid after the 18^th of February 2022.

4. The foreign fishing vessel Yong FA Yun 10, together with its gears, equipment and all fish and fish products on board are forfeited forthwith to the National Fisheries Authority.

5. That the Defendant’s passport remains in the custody of the Court until the fines are completely and satisfactorily settled by the Defendant.

6. The vessel owner is to pay for the costs and expenses incurred by the National Fisheries Authority in connection with the seizure of the vessel and the prosecution of the Defendant.

7. The costs and expenses are to be settled within 21 working days as of the 02^nd of February 2022.

1. That Defendant Jiang Zhi Ao is convicted and fined K8, 000.00 in default 12 months in hard labour. The fine of K8, 000.00 is to be paid by 18^th of February, 2022.

2. A further default penalty of K3, 000.00 per day will apply should the fine remain unpaid after the 18^th of February, 2022.

3. The vessel owner is to pay for costs and expenses incurred by the National Fisheries Authority in connection with the seizure of the vessel and the prosecution of the Defendant.

4. The costs and expenses are to be settled within 21 working days as of the 02^nd of February 2022.

5. The Defendant’s passport remains in the custody of the Court until the fines are completely and satisfactorily settled by the Defendant.

Mr. Anlus Iwais of Zilong –EM Lawyers, Room No1 – Albert Bare House Martin Luther Seminary Campus, LAE, MP.

Mr. Jerome Fongemale –Chesterfield Lawyer, Unit A1 -3, First Floor, Middleton Square, 8 Mile, National Capital District.

Papua New Guinea District Court

National Fisheries Authority v Pan Jian Lai [2022] PGDC 31; DC8042 (1 February 2022)