Huang Ming Xian v Gisa Komangin [2001] PGSC 20; SC660 (21 February 2001)

SC660

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE AT WAIGANI]

SCA No. 21 of 1998

BETWEEN:

HUANG MING XIAN

Appellant

AND:

GISA KOMANGIN

Respondent

SCA No. 22 of 1998

BETWEEN:

CHIAHE JIA

Appellant

AND:

GISA KOMANGIN

Respondent

Waigani: Kapi DCJ, Sheehan J, Sevua J.

20 November 2000, 21 February 2001

APPEAL – Appeal from Appellate Jurisdiction of the National Court.

STATUTORY INTERPRETATION – Fisheries Act, s 57 – consideration of the elements and dishonest nature of the offences

Counsel:
Mr K. Yalo for the Appellants
Mr W.A. Kua for the Respondent

21 February 2001

BY THE COURT: This is an appeal from a decision of the National Court, whereby the National Court dismissed an appeal from the District Court sitting at Lorengau.

The Appellants were separately charged with four offences under the Fisheries Act 1994 in the District Court. They were found guilty of the four offences and each were fined K20,000.00 on each count and the two respective boats were forfeited to the State.

They appealed to the National Court against their convictions. They appealed against the order for imprisonment in default of payment of fines but this ground was abandoned. The National Court dismissed their appeals against conviction and they have appealed from this decision to this Court. The Appellants filed separate appeals and they have been heard together as they raise the same issues.

The appellants were masters of two vessels which entered PNG fisheries waters without a fishing license under the Fisheries Act. They were charged with the following four offences;

• For fishing in Papua New Guinea fisheries waters without a license under the Fisheries Act.
• For being in Papua New Guinea fisheries waters without a license under the Fisheries Act.
• For processing fish in the Papua New Guinea fisheries waters without a license under Fisheries Act.
• For failing to comply with a lawful requirement of an officer by not producing any ship’s log books.
  

The appellants have appealed against the decision of the National Court on a number of grounds. They have abandoned some of these grounds of appeal.

Counsel for the appellants first argued the ground that the learned judge erred in law by upholding the conviction of the Lorengau District Court whereby the appellants were convicted under s 27(2)(a) of the Act for processing fish and entering or being in Papua New Guinea fisheries waters without licenses granted pursuant to the Act when the Act does not prescribe licenses for processing fish and entry or being in there by convicting the appellants of offences not legislated or prescribed by law. Counsel for the appellants submits that under s 57(1) and 2(a) of the Fisheries Act there is only one license issued for purposes of entry, being in PNG fisheries waters fishing and processing fish. He submits in effect that there is only one offence as the Act only provides for one license for authorizing entry fishing and processing fish in PNG fisheries waters. He submits therefore that while all of these activities constitute one offence they cannot each constitute separate offences, namely, separate charges for entry and being in fisheries waters, fishing in fisheries waters and processing fish in fisheries waters. He therefore submits that separate informations with which the appellants were charged in the District Court are not prescribed by law and therefore they should be quashed.

Counsel for the respondent on the other hand submits that the appellants were correctly convicted of the separate offences as these are distinct offences prescribed under s 57(1) & (2) of the Fisheries Act.

Both Counsel did not cite any authorities to support the propositions they have put forward to the Court.

The issue posed by this ground of appeal is one of interpretation of the provision. We set out the relevant provisions of s 57 -

"FOREIGN BOATS IN FISHERIES WATERS

(1) No foreign boat shall enter, be in or be used for fishing or related activities in fisheries waters –

• (a) except for a purpose recognized by international law; or
• (b) unless it is authorized to do so by a licence granted under this Act.
  

(2) A person who –

• (a) on his own account, or as the partner, agent or employee of another person, causes or permits; or
• (b) causes or permits a person acting on his behalf to cause or permit,
  

a foreign boat to contravene Subsection (1) is guilty of an offence.

Penalty: In the case of a crew member – a fine not exceeding K25,000.00; and

In the case of any other natural person – a fine not exceeding K250,000.00; and

In the case of a corporation – a fine not exceeding K500,00.00."

This provision provides for acts which may constitute separate offences namely, no foreign boat shall enter, be in, be used for fishing or related activities in fisheries waters. These are distinct acts although the act of entry and being in fisheries waters may be regarded as one and the same. In our view, fishing or carrying out other related activities are quite distinct from each other. The only possible defenses set out under s 57 (1) is

(a) if the boat is in fisheries waters or purpose is recognized by international law; or

(b) the fishing boat has a licence granted under the Act.

In our view the appellants were correctly charged with the three
distinct offences under this section. There is no merit in this ground and we would dismiss it.

The counsel for the appellants next argued that the National Court erred in law and in fact by not accepting that the fishing gear was stored and secured in accordance with s 57(3)(a) of the Act. This ground of appeal is of no consequence in that the trial judge found that the fishing gear was stored and secured but he went on to find that they were wet. This evidence form part of the whole of the evidence upon which the appellants were convicted. We would dismiss this ground of appeal.

Counsel for the appellants further submits that the convictions by the Magistrate were against the weight of the evidence. We have reviewed the evidence given against the appellants in the District Court and the basis on which the trial judge rejected their appeals. We are not satisfied that the trial judge made any error in rejecting their appeals. We find that there was sufficient circumstantial evidence upon which the learned magistrate could have found them guilty of the offences.

The alternative ground of appeal is against the penalties imposed in that the fines are manifestly excessive. We note from the record that the appellants did not appeal against the fines imposed by the learned magistrate in their appeal to the National Court. The only ground of appeal which relates to the penalty was ground 6 that the learned magistrate erred in law by proposing to sentence imprisonment the appellants if the K80,000.00 was not paid. However the trial judge in his reasons for decision at page 236 notes that this ground was abandoned by the appellants in the National Court. In the circumstances the appellants have no standing to appeal against the sentence or the fines imposed by the District Court.

We dismiss the appeals with costs to the respondent.
_____________________________________________________________________
Lawyers for the Appellants: Karl Yalo & Associates
Lawyers for the Respondent: Solicitor General