Kwang Sheng-Liu v Pawut [1995] PGNC 45; N1391 (1 December 1995)

Unreported National Court Decisions

N1391

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL 362 OF 1995
KWANG SHENG-LIU - APPELLANT
V
LAMILLER PAWUT - RESPONDENT

Kavieng

Woods J
23 November 1995
1 December 1995

FISHERIES - operator of foreign fishing boat - identification - provisional registration under Merchant Shipping Act Ch 242 - offences under Fisheries Act 1994 - forfeiture mandatory.

Counsel

Mr S Madana for the Appellant

Ms M Nidung for the Respondent

1 December 1995

WOODS J: This isppeal and a Cross-Aoss-Appeal following charges under the Fisheries Act 1994 and orders made by the District Court whereby the appellant as Master of the boat Fu Fa Chen No 13 was found guiltyhe two charges and fined K2ed K25,000 and the catch on board was forfeited to the State.

The charges were laid by virtue of Section 66 (2) of the Fisheries Act 1994 and were that:

a) bting ase M oferhe Ft Fa C Fa Chen No 13 a foreign boat did on his own account cause the said Fu Fa Chen No 13 to be in Papua New Guinea Fisheries Waters wi beinhoris do sa licgrantder the Fthe Fisherisheries Aies Act 19ct 1994.

b) being M sterhef t FaFuhen Chen No 13 a foreign boat did on his own account cause the Fu Fa Chen No 13 to fish in Papua New Guinea Fisheries Waters without beuthorto doy a le graunderFisherieseries Act. Act.

Th

The boae boat thet the Fu Fa Chen No 13 was arrested by officers of the PNG Defence Force on 25th August 1995 in the area generally described as between New Ireland and Buka. The Apnt itemised a numberumber of grounds of appeal but these grounds can be summarised down to errors of law or against the weight of evidence in whether the vessela foreign vessel or properly registered in Papua New Guineauinea, whether there was a valid fishing licence issued under the Fisheries Act, and that charges were laid under the wrong provisions of the Act. The Cross-Appeal e State iate is that the Magistrate erred in not forfeiting the boat to the State as forfeiture is mandatory under the Act.

THE OFFENCES

Thrges were laid under Section 66 (2) of the Fisheries Act.

Section 66 Liability for Boats:

(1) ҈ is thctisection &#8n “primary offence” means an offence against this Act other than an offence against this sec

)ټ The operator of a boat onhwhich, or by the use ofse of whic which, anh, an offence against this Act is committed, is guilty of an offence against this section punishable on conviction as if it were the primary offence.

The particular offences referred to in the charges are the offences described in Section 55 Fishing without a Licence and S. 57 Foreign Boats in Fisheries Waters.

It is submitted that Section 66 (2) does not declare an offence, it is only dural, see the heading of g of the Division 4, Procedure. It isitted that the offencffences are under Sections 55 and 57 not Section 66 and therefore the es are defective. But the wording ofion 66 ( 66 (2) s(2) seems quite clear, “The operator of a boat on which an offence against this Act is committed, is guilty of an offence against this section”. It states that anator of a of a boat can be guilty of an offence so where is the difficulty. It is submitted thais conf confusing because the offences are in other section it is confusing to say those offences can be offences unde under this section. It is submitted thatiamentament did not mean tote this confusion. Wh0; Whilst it maear that that there is a duplication that does not mean there cannot be an offence against on 66. Perhaps Section 66 was meant to cover situatiouations not exactly covered in the other sections. For example a different word is used as to whom is liable, namely an operator, which may cover more than an owner or a part-owners, or an employee. Berrinan operator the Act Act seems to be covering situations where the owner cannot be foue found such as where the owner or the emp may leave the jurisdiction and so the Parliament is trying to ensure that the boat itself self can be liable through the perso is somehow in chargeharge or operating the boat. Note the heado the Sectionction 66 “Liability for Boats.”

Parliament has made the law, it means something and I find no confusion. I find no difficulty wectiSection 66 which states that an operator may be liable for an offence. It is not up to the to quto query why an operator or the Boat was not made liable more directly under Sectionsnd 57, perhaps there are otre other permutations and possibilities which are not before the Court in this case today.

The Appellant was charged under 66 (2) for offences against the Act namely the offences of fishing and being in fisheries waters and if found guilty could be, in the words of Section 66, “punishable on conviction as if it were the primary offence”, and that is what the Magistrate has done. I find no error in the Mraistrates consideration of the procedure used and the application of the section under which the charges were laid.

One of the charges relates to a foreign boat being in Papua New Guinsheries waters being the ofhe offence referred to in Section 57 of the Act. It is submitted tha boat woat was not a foreign boat as it was a boat registered under the Merchant Shipping Act Ch 242. The evidence tendered to ohe Court included certain ents found on board the boat when it was accosted by Papua apua New Guinea authorities in PNG waters which showed that it was registeithin the Republic of China and that registration was stillstill current. These documents inclu Cert Certificate of Ships Registration, a Certificate of Ships Nationality, an International Tonnage Certificate, and a Certificate of Ships Survey all from thublic of China. There was also ence to fiso fish in t in the South China Sea. It is submitted the Magistagistrate did not give due weight to evidence of a provisional registration of the vessel under the PNG Merchant Shipping Act Ch 242. The evidenggestat a provisrovisional registration certificate had beed been issued for a boat called the Man Sheng No 2. The evidence on f of ppellppellant was that the boat the Fu Fa Chen No 13 was on its way to PNG to join a Pn a PNG Company and it was the boat that w be the subject of the registration for the boat the Man Sheng No 2. and therefore itre it had a proper registration as a PNG vessel under the law of PNG and therefore was not a foreign boat. However this was only a provisional registration which stequired certain action to b to be taken by the persons seeking the registration which included, where the vessel was formerly a foreissel, to report the first arrival of the vessel at a port oort of registry where the appropriate proof and certification can be confirmed and this would of course include the identity of the boat and the cancellation or lapse of any other nationality or registration. The evidence beforeMagistrgistrate was quite clear that the vessel was the Fu Fa Chen No 13 and was still registered within the Republic of China and there was no evidence to satisfy the magistrate that that registration had been cancelled and that the vessel had changed its name to comply with the provisional registration within PNG. W there was evidence tendetendered of some joint-venture proposals for a fishing venture which would involve vessels to be brought into PNG and registered for suventure and reference to registration of a company and a Lo a Long line Fishing proposal it appears from the lack of definite dates and the state of the proposals that they were still in the formative stages, for example there was no date in the Joint Venture Agreement, and none of these documents make any reference to a boat the Fu Fa Chen No 13. Inoted that on 20th Octobectober there was an oral application to the National Court for an interlocutory order over the fish on board the subject boat and in thing there was a finding on the identity of the boat. 160; It isclear how this ahis application came to the National Court midway during the hearing before the District Court however it seems to have been only an interlocutory ruling and does not bind thist. Since then there here has been the full hearing of the case and a full consideration of all the evidence. I find no errors e Magistrgistrate’s consideration of the nationality of the boat.

On the fishing charge the evidence for the appellas that certain fishing licences had been applied for by a Compalled Siwi Shippihippihipping Services for a number of vessels including a boat called the Man Sheng No 2. However the Magistraund thnd that following his finding on the registration of u Fa Chen No 13 the vessel ssel the subject of the charge had no licence to fish. Of course it goes ut sayinsaying that if an aty requires a licence then then you obtain that licence before you conduct that activity and the licence should be on display at all when you are conducting such activity. It was part oart of theencidence that an application had been made for a licence in the name of the Man Sheng No 2 and a fee paid, but no vessel had yet arrived in PNG or yet existed in PNG fitting that name or regid in that name and the lice licence was still apparently being held by the National Fisheries Authority pending the arrival and registration or whatever of such a boat. The vessel the subjecthis this charge may have been going in the future to be the vessel to receive this licence but at the time of the incident the appellant was the master of the vessel the Fu Fa Chen No 13 whichnot have a licence even thon though as the Magistrate suggested it may have been travelling through PNG waters to obtain the necessary documents and maybe to have its name changed, but he was travelling and fishing in PNG fisheries waters as the Fu Fa Chen No 13 and was not licenced. Thter dated 17 August 1995 1995 from the PNG National Fisheries Authority to Siwi Shipping Services with reference to the application for Tuna Longline vessels specifically states that boats to be registered in PNG must satisfy all the domestic requirements and procedures. The Magistrate that the fthe fishing licence had not issued and the vessel was not the Man Sheng No 2. I findrrors in the Magistrgistrate’s assessment on the evidence on whether the appellant haicence to fish.

I fi>I find no errors in the Magistrate’s findings and conviction of the appellant of the two charges as laid under Section 66 (2).

The Respondent on behalf of the State is cross-appealing that the Magistrate erred in his application of the penalty provided for and failed to order forfeiture of the boat which is mandatory under Section 67 (2) of the Act.

Section 67(2)

Where a court convicts a person of an offence against section 55, 56 (2) or (3) 57 or 59 or such other offence as may be prescribed for the purposes of this subsection, in the commission of which a boat that was a foreign boat was used or otherwise involved, the court shall order the forfeiture of:

(a) ҈& the boae boat;

;

(b) any net;

(c) &ـ fish onsh on boardboard.

The Magistrate fined ppellnd ordered forfeiture of the fish on board but faut failed iled to order forfeiture of the boat. Tgistrate said in his reas reasons that “the Fisheries Act does not clearly spell out the procedures involved upon conviction for such offences whether to forfeit the vessels involved andfishing equipment, simply, ply, is it mandatory or discretionary. This case is different in that though it is a foreign vessel it came here to do business and an exception here is a must”.

The Magistrate has clearly misread the Act, and furthplied an irrelevant consideration. Section 67 is quit quite clear: in subsection (1) there is a discretion to order forfeiture of fish and fishing equipment; and in subsection (2) the court shall order forfeiture, it is mandatory if the offence involves aign boat and it is one of t of the offences stated in the subsection.

It is submitted that as the charges were laid under Section 66 then the mandatory penalty under 67 cannot apply. Hr whilst the charges were were laid under Section 66 the offences were the offences referred to in Sections 55 and 57 and as Section 66 states is “punishable on conviction as if it were rimary offence” theretherefore being offences under 55 and 57 they are clearly covered in the limiting words of Section 67 (2). There can be no doubt aboit this especially as Section 66 clearly suggests in its heading that there is a liability for boats, and that must mean any person who may be liable and also that the boat has some liability, and if it is one of the listed offences the liability is forfeiture. The Magistrate has referr d to other considerations to suggest he has a discretion. Thoser considerations can can only be a criticism of the intent of the Parliament and can have no bearing on the court. amentclearde it m it mandamandatory for the forfeiture of foreign boats found guilty of offencesences in PNG waters and as PNG is a soveretate it has the full power and right to do this. I find no confwith rights ghts underunder the Constitution. This is also withe intent tent and purpose of the Fisheries Act as stated in the preamble to the Act. The sectioclear, forfeitureitureandatthe Magistrate hate has not erred in his convictions, therefore forfeiture must be part of t of the penalty. The Magistrate hasrly ein d in failing to order forfeiture of the boat.

I dismiss the appeal of the appellant Hwang Sheng-Lih. I allo appe the respondentndent Lamiller Pawut and vary the orders of the Magistrate by adding thng the further order that the boat the Fu en No 13 be forfeited to the State.

Lawyer for the Appellant: S Madana

Lawyerawyer for the Respondent: Solicitor General