Chen Zhen Co Ltd v Iomea [2018] SBCA 26; SICOA-CAC 13 of 2018 (12 October 2018)

IN THE SOLOMON ISLANDS COURT OF APPEAL

Case name:	Chen Zhen Company Limited v Iomea
Citation:
Decision date:	12 October 2018
Nature of Jurisdiction	Appeal from Judgment of The High Court of Solomon Islands(Brown J)
Court File Number(s):	CA 13 of 2018
Parties:	Chen Zhen Company Limited, Zhang Tongzi, Solomon FVC New Process Import & Export Limited, CI Frank Sheng Song, Oceanic international Limited, Xu Qiang v Ricky Iomea, Commissioner of Police
Hearing date(s):	3 October 2018
Place of delivery:	High Court of Solomon Islands-Court Room Six(6)
Judge(s):	Goldsbrough President Ward JA Lunabek JA
Representation:	J. Sullivan QC, E. Soma for the 1st, 2nd , 5th, and 6th Appellant S. Banuve for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Fisheries Act 1998, Fisheries Regulation 2009, Fisheries (Amendment) Regulation 2009,Fisheries (Amendment) Regulation 1993, Fisheries Management Regulation 2017, Repealed Act, Fisheries Management Act 2015, Fisheries Management Regulation, Fisheries Principle Regulation 1972
Cases cited:
ExTempore/Reserved:	Reserved
Allowed/Dismissed:	The appeal is Allowed
Pages:	1-13

JUDGMENT OF THE COURT

1. On 18 October 2017, the first respondent issued three search warrants authorising the police to search the business and residential premises of the second, fourth and sixth appellants and to seize any sea cucumbers they found. The application for the warrants was supported by an information to ground them sworn by the police officer in which various allegations of fact were made concerning illegal harvesting of between 200 and 700 bags of sea cucumbers. They were said to have been harvested in Ontong Java at the instigation of the second, fourth and sixth appellants or their agents during the “banned period”, which period was not specified. The information stated that the alleged “illegal harvesting of sea cucumbers during the ban period constituted a contravention of section 13A of the Fisheries Regulations 2009”.
2. The search warrants were executed the next day on premises of all the appellants and the officers seized various quantities of sea cucumbers exceeding 300 bags in aggregate. On 31 October 2017, the present respondents filed a claim for various declarations, orders and damages in respect of the warrants and seizure.
3. In order to preserve the sea cucumbers, they have, on an Order of the High Court made on 31 October 2017, been processed and prepared for export by the respective appellants and retained in their possession pending further Order of the Court.
4. Those facts have been taken from a statement of agreed facts ordered by the Court on 30 November 2017 for use in the determination of preliminary issues under Rule 12.11 of the Civil Procedure Rules 2007. The learned judge acknowledged that the material issue in the proceedings “goes to the legality of search warrants issued under the Criminal Procedure Code for, were the Court to declare following hearing that the warrants did not comply with section 101 of the Code, it follows such warrants shall be quashed and the return of property seized ordered”.
5. This appeal is from the decision of the High Court on those preliminary issues which were in the form of six questions:
   • (a) Whether the Fisheries Regulations 1972 as amended were repealed in their entirety by the Fisheries (Protection of Sea Cucumbers) Regulations 2006? (As the Crown contends and the Claimants deny)
   • (b) In the alternative, whether the Fisheries Regulations 1972 as amended were repealed by the Fisheries (Protection of Sea Cucumbers) Regulations 2006 insofar as they applied to the harvesting of sea cucumbers (beche de mer)? (As the Crown contends in the alternative and the Claimants deny)
   • (c) Whether the Fisheries (Amendment) Regulations 2009 (including Regulation 13A therein) had the effect of amending the Fisheries Regulations 1972 by inserting regulation 13A into those Regulations? (as the Claimants contend and the Crown denies)
   • (d) Whether the Fisheries (Amendment) Regulations 2009 (including Regulation 13A therein) constituted a separate and independent regulation? (As the Claimants contend and the Crown denies)
   • (e) Whether the Fisheries Regulations 2009 as amended (including Regulation 13A) were repealed by the Fisheries Management Regulations 2017? (As the Claimants contend and the Crown denies)
   • (f) Whether the Fisheries (Amendment) Regulations 2009 (including Regulation 13A) remain in force? (As the Crown contends and the Claimants deny)
6. On 27 April, after the Rule 12.11 hearing, the learned judge answered the questions as follows:
   • ❖ Question 1 is answered in the negative.
   • ❖ Question 2. Not necessary to answer.
   • ❖ Question 3 is answered in the affirmative with the proviso that Regulation 13A is validly made under the Fisheries Act 1998 and independent of the earlier repealed Fisheries Act 1972
   • ❖ Question 4 is answered in the affirmative.
   • ❖ Question 5 is answered in the negative.
   • ❖ Question 6 is consequently answered in the affirmative.
7. The Fisheries legislation has seen a number of changes over the period in question and the Court adopted the account, provided by counsel for the claimants, of the legislative history. It is instructive to set out the relevant parts.
8. The Fisheries Act 1972 started as the Fisheries Ordinance 1972. Section 2 defines “fish” to include sea cucumbers (beche de mer). The Act covers a wide range of relevant topics and includes, in section 23, the Minister’s power to regulate for the “conservation and protection of fish or any particular species of fish” [23(d)] and for the “establishment of closed seasons” [23(e)]
9. The Fisheries Regulations under that Act were largely directed at licencing issues and there was no regulation specifically directed at sea cucumbers. In 1993 the Act was amended by the addition of specific regulations for the protection of several marine species including turtles, coconut crabs, oysters and clams; Fisheries (Amendment) Regulations 1993. Sea cucumbers per se were not included.
10. The 1972 Act was repealed by the Fisheries Act 1998 section 59 of which enacted the Minister’s regulatory powers providing, inter alia:
    • ❖ 59.(i) The Minister may make regulations as may seem to him expedient for carrying into effect the provisions of this Act, and, without prejudice to the generality of the foregoing, such regulations may provide for all or any of the following purposes
    • ❖ (ii) the licensing, regulation and management of any fishery and the conservation of particular species of fish or other aquatic organisms;
    • ❖ (iv) prescribing fisheries management conservation measures, including limitation on the amount of fish authorised to be caught from any fishery, closed season, closed areas, prohibited methods of fishing;
    • ❖ (xviii) prohibiting or regulating the export of specified, species of fish, other aquatic organisms and fish, of other aquatic organism products and fish products.
11. Section 62(1) of the 1998 Act repealed the 1972 Act and subsection (2) made provision for the saving of existing Regulations:
    • ❖ 61 (1) The Fisheries Act 1972, (hereinafter referred to as the “repealed Act”) is hereby repealed.
    • ❖ (2) Notwithstanding such repeal from and after the date of coming into operation of this Act-

(a) any licence granted under the repealed Act shall continue to be valid on such terms and conditions of approval for the period stipulated therein; and

(b) all regulations and orders made under the repealed Act and in force at the date of commencement of this Act shall subject to such modifications and adaptations as may be necessary to bring them into conformity with this Act continue until such time as new regulations or orders are made under this Act.

12. The first regulations specifically directed at protection of sea cucumbers were the Fisheries (Protection of Sea Cucumbers) Regulations 2006 but they, in turn, were repealed by the Fisheries (Protection of Sea Cucumbers) (Revocation) Regulations 2007.
13. The next provision specifically to protect Sea Cucumbers was the Fisheries (Amendment) Regulations 2009:
    • ❖ “1. These Regulations may be cited as the Fisheries (Amendment) Regulations 2009
    • ❖ 2. The Fisheries Regulations are amended by adding the following regulation

13A. A person who catches and retains, sells, exposes for sale, exports or is in possession for export, any beche-de-mer commits an offence and is liable on conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 4 months, or both.

14. The 1998 Fisheries Act was repealed by the Fisheries Management Act 2015. Section 2 of the latter defined fish:
    • “fish” means any water-dwelling aquatic or marine animal or plant, alive or dead, and includes their eggs, spawn, spat and juvenile stages, and any of their parts.”
15. Section 129 sets out the Minister’s power to make regulations and section 130 provides:
    • ❖ 130, 1) The Fisheries Act 1998 is repealed.
    • ❖ 2) Notwithstanding such repeal, upon the coming into operation of this Act
      • ❖ a). any valid licence or authorisation issued under the Fisheries Act 1998 (“the repealed Act”) continues to be valid under the terms and conditions and for the period originally stated in it, and may be varied, suspended, cancelled or renewed in accordance with this Act;
      • ❖ (b) all regulations and orders made under, or continued by, the repealed Act are subject to such modifications and adaptations as may be necessary for conformity with this Act and continue until such time as
        • ❖ (i). new regulations or orders are made under this Act; and
        • ❖ (ii) the new regulations or orders repeal the regulations or orders made under the repealed Act.
16. Regulations under the 2015 Fisheries Management Act were published and came into effect in January 2017 as the Fisheries Management Regulations 2017. Regulation 70(1) repeals a number of earlier regulations including, at (1) (a) “Fisheries Principle Regulations 1972”.

However sub-regulation (2) further provides:

• “(2) Despite the repeal under sub-regulation (1), any licence, permit or authorisation issued and fees paid under the Fisheries Regulations 1972 prior to the commencement of these Regulations remain valid on such terms and conditions of approval for the period stipulated under the Fisheries Regulation 1972.”

The critical issue in the interpretation of the effect of this provision is whether the repeal of the 1972 Regulations by the 1998 Fisheries Act also effected repeal of regulation 13A.

17. The judge answered question 1 in the negative on the ground that the 2006 Regulations did not repeal the 1972 Regulations. In so doing he accepted the Claimants’ reasoning that, by adding restrictions specifically addressed to the protection of sea cucumbers in the same manner as other species had been protected by amendments added to the 1972 Regulations by the Fisheries Amendment Regulations 1993, the 2006 regulations only amended the 1972 Regulations.
18. The judge explained:
    • “The court accepts the 2006 Regulations should not be read to reduce the ambit of the earlier provisions of the Fisheries Regulations (the 1972 Regulations as amended from time to time) rather the section extends the ambit of the Fisheries Regulations to now include beche-de-mer.”

There is no challenge to that finding.

19. Passing to question 3, the learned judge appears to accept the logic of the claimants’ submission:
    • “By parity of reasoning, the claimants say the 2009 Regulations, which added regulation13A, were a further amendment of the 1972 Regulations. And are to be cited as amendment regulations and expressly state the “Fisheries Regulations are amended” by the addition of Regulation 13A “
20. However, he then continues:
    • “It is here that the effect of the amending provision by extending the ambit of the Fisheries Regulations to include, under regulation 13A a prohibition affecting beche-de-mer need be distinguished to determine whether it corresponds with the purpose of the Fisheries Act 1998. That purpose is set out in Part II of the Act where, by section 3(2)
    • “the objective of fisheries management and development in Solomon Islands shall be to ensure the long term conservation and sustainable utilisation of the fishery resources of Solomon Islands for the benefit of the people of Solomon Islands.”
    • Regulation 13A is clear in its intent and this court need not strain to find the regulations goes to purpose. The regulation is expressed to have been made reliant on the powers set out in section 59 and does not fail as a “standalone provision”, the implied intent of the claimants argument. For whilst particular parts of the Fisheries Regulations continue in effect, [with the earlier amending regulation 2006 since it extended the ambit of those regulations] such Regulation 13A is validly made under the Fisheries Act 1998 and independent of the earlier repealed Fisheries Act 1972.
    • Question 3 is answered in the affirmative with the proviso set out above, the regulations extend the ambit, by amendment rather than fall to be subsumed within the Fisheries Regulations.”
21. We do not accept the judge’s reasoning is correct. The Fisheries Act 1972 was clearly repealed by section 61(1) of the 1998 Act but its effect continued in the terms provided in Subsection (2).
22. In his reasons the judge sets out the Claimants’ argument:
    • “The claimants argue the proper construction of the repeal and savings provision in Section 61(2)(b) of the 1998 Act is that it contemplates the entire repeal of the 1972 Regulations [as amended] only when a new substantive regulatory fisheries licencing regime is substituted for it. If Section 61(2)(b) is so construed, the 2006 Regulations, which dealt only with beche-de-mer, constituted an amendment of the 1972 Regulations by adding another species, beche-de-mer, to the protected list.”
23. That is clearly the correct interpretation of the effect of the relevant sections of the 1998 Act when answering question three. Section 61 provides for the complete repeal of the 1972 Act but only when the orders and regulations under it have been replaced by new regulations.
24. The same reasoning must supply the answer to question 4. The 2009 Regulations amended the 1972 Regulations by inserting regulation 13A to become part of the 1972 Regulations which were still in force as amended.
25. The judge answered question 4 in the affirmative. We are satisfied that his reasoning was defective and inconsistent with his reasoning in respect of the preceding question and it must be answered in the negative.
26. The learned judge’s concern about the propriety of the search warrants is answered by the answers to questions 5 and 6. The judge approached these questions from the standpoint that he had answered the previous question in the affirmative - a decision we have found to be wrong:
    • “The court has found section 13A to be a valid regulation made pursuant to the Fisheries Act 1998 and shall continue in force unless new regulations are made under the 2015 Act and can be shown to repeal the regulations under the 1998 Act.
    • Fisheries Management Regulations 2017 did, by section [sic] 70 repeal particular [earlier] regulations.
    • ’70. (1) The following Regulations are repealed:
      • (a) Fisheries Principle Regulations 1972 (LN 76/1972)
      • (b)
      • (c)
      • (d)
      • (e) Fisheries (Prohibition of Export of Dolphins) regulations 2013 (LN 89/2013; and the following notices:
        • ❖ (i) LN 21/1997
        • ❖ (ii) LN 95/1997
        • ❖ (ii) LN 7/2004
        • ❖ (iv) LN 32/2013
        • ❖ (v) LN 94/2013
        • ❖ (vi) LN 12/2014.
    • Nowhere does this section 70, repeal LN 33/2009, which contains Section 13A. The court is satisfied section 13A falls to be considered as one made under the 1998 Act and continued in force in the absence of specific repeal by section 70(2)(b). The court accepts the Crown argument that not only statutory instruments but executive instruments are to be considered by a contextual approach to this interpretation. The use of the particular numbering in section 70 is clear and unambiguous. It does not name LN 33/2009. Care can be seen to have been exercised by the legislative draftsperson to particularize the regulations to be repealed. Section 13A (LN 33/2009) is not one of them.
    • Question 5 is answered in the negative.
    • Question 6 is consequently answered in the affirmative.”
27. We are satisfied that the judge is wrong. We accept he was lead astray in effect by his incorrect answer to question 4 but, after many pages of clearly expressed reasons, this passage, in an almost throwaway style uncharacteristic of the learned judge, repeatedly confuses sections and regulations.
28. Similarly, the significance the judge attaches to the omission of LN 33/2009 makes no reference and sees no significance in the omission of other related and relevant notices nor does it give any reason for his acceptance of the Crown submission of the use of a contextual approach to statutory interpretation and its significance to the present case.
29. We are satisfied that the answer we make to question 4 must lead to an affirmative answer to question 5 and, therefore, a negative answer to question 6. The 1972 Regulations were clearly amended by the 2009 regulations and were, in consequence, repealed when the whole of the 1972 Regulations were repealed.

We direct that the questions are answered in the following manner:
Question 1 in the negative
Question 2 not answered
Question 3 in the affirmative
Question 4 in the negative
Question 5 in the affirmative
Question 6 in the negative; and the appeal is allowed to that extent.
Costs in the cause

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Goldsbrough P
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Ward JA
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Lunabek JA