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 is an Appeal and a Cross-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 guilty of the two charges and fined 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) being the Master of the Fu 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 without being authorised to do so by a licence granted under the Fisheries Act 1994.

b) being Master of the Fu Fa 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 being authorised to do so by a licence granted under the Fisheries Act.

The boat 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 Appellant itemised a number of grounds of appeal but these grounds can be summarised down to errors of law or against the weight of evidence in whether the vessel was a foreign vessel or properly registered in Papua New Guinea, 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 by the State is that the Magistrate erred in not forfeiting the boat to the State as forfeiture is mandatory under the Act.

THE OFFENCES

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

Section 66 Liability for Boats:

(1) In this section “primary offence” means an offence against this Act other than an offence against this section.

(2) The operator of a boat on which, or by the use of which, 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 procedural, see the heading of the Division 4, Procedure. It is submitted that the offences are under Sections 55 and 57 not Section 66 and therefore the charges are defective. But the wording of Section 66 (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 an operator of a boat can be guilty of an offence so where is the difficulty. It is submitted that it is confusing because the offences are in other sections and it is confusing to say those offences can be offences under this section. It is submitted that Parliament did not mean to create this confusion. Whilst it may appear that there is a duplication that does not mean there cannot be an offence against Section 66. Perhaps Section 66 was meant to cover situations 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. By referring to an operator the Act seems to be covering situations where the owner cannot be found such as where the owner or the employee may leave the jurisdiction and so the Parliament is trying to ensure that the boat itself can be liable through the person who is somehow in charge or operating the boat. Note the heading to the Section 66 “Liability for Boats.”

There is a clear provision in Section 66 (3) to ensure that a person cannot be charged twice for the same offence first by virtue of Section 66 and then under other sections referring to the particular offence.

Parliament has made the law, it means something and I find no confusion. I find no difficulty with Section 66 which states that an operator may be liable for an offence. It is not up to the Court to query why an operator or the Boat was not made liable more directly under Sections 55 and 57, perhaps there are 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 Magistrates 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 Guinea Fisheries waters being the offence referred to in Section 57 of the Act. It is submitted that the boat was not a foreign boat as it was a boat registered under the Merchant Shipping Act Ch 242. The evidence tendered to the Court included certain documents found on board the boat when it was accosted by Papua New Guinea authorities in PNG waters which showed that it was registered within the Republic of China and that registration was still current. These documents included a Certificate of Ships Registration, a Certificate of Ships Nationality, an International Tonnage Certificate, and a Certificate of Ships Survey all from the Republic of China. There was also a licence to fish in the South China Sea. It is submitted that the Magistrate did not give due weight to evidence of a provisional registration of the vessel under the PNG Merchant Shipping Act Ch 242. The evidence suggested that a provisional registration certificate had been issued for a boat called the Man Sheng No 2. The evidence on behalf of the appellant was that the boat the Fu Fa Chen No 13 was on its way to PNG to join a PNG Company and it was the boat that was to be the subject of the registration for the boat the Man Sheng No 2. and therefore 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 still required certain action to be taken by the persons seeking the registration which included, where the vessel was formerly a foreign vessel, to report the first arrival of the vessel at a port 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 before the Magistrate 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. Whilst there was evidence tendered of some joint-venture proposals for a fishing venture which would involve vessels to be brought into PNG and registered for such a venture and reference to registration of a company and 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. It is noted that on 20th October there was an oral application to the National Court for an interlocutory order over the fish on board the subject boat and in the ruling there was a finding on the identity of the boat. It is not clear how this 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 this court. Since then there has been the full hearing of the case and a full consideration of all the evidence. I find no errors in the Magistrate’s consideration of the nationality of the boat.

On the fishing charge the evidence for the appellant was that certain fishing licences had been applied for by a Company called Siwi Shipping Services for a number of vessels including a boat called the Man Sheng No 2. However the Magistrate found that following his finding on the registration of the Fu Fa Chen No 13 the vessel the subject of the charge had no licence to fish. Of course it goes without saying that if an activity requires a licence then you obtain that licence before you conduct that activity and the licence should be on display at all times when you are conducting such activity. It was part of the evidence 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 registered in that name and the 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 subject of 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 which did not have a licence even 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. The letter dated 17 August 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 found that the fishing licence had not issued and the vessel was not the Man Sheng No 2. I find no errors in the Magistrate’s assessment on the evidence on whether the appellant had a licence to fish.

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 boat;

(b) any net;

(c) fish on board.

The Magistrate fined the appellant and ordered forfeiture of the fish on board but failed to order forfeiture of the boat. The Magistrate said in his reasons that “the Fisheries Act does not clearly spell out the procedures involved upon conviction for such offences whether to forfeit the vessels involved and the fishing equipment, simply, 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 further applied an irrelevant consideration. Section 67 is 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 a foreign boat and it is one 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. However whilst the charges 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 the primary offence” therefore being offences under 55 and 57 they are clearly covered in the limiting words of Section 67 (2). There can be no doubt about 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 referred to other considerations to suggest he has a discretion. Those other considerations can only be a criticism of the intent of the Parliament and can have no bearing on the court. Parliament has clearly made it mandatory for the forfeiture of foreign boats found guilty of offences in PNG waters and as PNG is a sovereign State it has the full power and right to do this. I find no conflict with rights under the Constitution. This is also within the intent and purpose of the Fisheries Act as stated in the preamble to the Act. The section is clear, forfeiture is mandatory, the Magistrate has not erred in his convictions, therefore forfeiture must be part of the penalty. The Magistrate has clearly erred in failing to order forfeiture of the boat.

I dismiss the appeal of the appellant Hwang Sheng-Lih. I allow the appeal of the respondent Lamiller Pawut and vary the orders of the Magistrate by adding the further order that the boat the Fu Fa Chen No 13 be forfeited to the State.

Lawyer for the Appellant: S Madana

Lawyer for the Respondent: Solicitor General