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Feng Sea Shipping Pty Ltd v R [2023] SBCA 15; SICOA-CRAC 19 of 2022 (28 April 2023)

IN THE SOLOMON ISLANDS COURT OF APPEAL


Case name:
Feng Sea Shipping PTY Ltd v R


Citation:


Decision date:
28 April 2023


Nature of Jurisdiction
Appeal from Judgment of the High Court of Solomon Islands (Bird, J)


Court File Number(s):
19 of 2022


Parties:
Feng Sea Shipping, Quebec Shipping Limited and Solfish Shipping Limited v Rex


Hearing date(s):
18 April 2023


Place of delivery:



Judge(s):
Goldsbrough P
Palmer CJ
Wilson JA


Representation:
Ward J Junior and Taupea A for Appellant
Suifa’asia M for Respondent


Catchwords:



Words and phrases:
Leave to Appeal. Appeal rights. Appeal against decisions made in inherent jurisdiction.
Shipping Act 1998 SS 209 and 210
Correct process for laying information
Shipping (Marine Pollution) regulations 2011


Legislation cited:
Shipping Act 1998 S 210 (3) (a) and 210 (4), S 210 (2) (b), S 209 (4)S 210 (2), S 210 (3) Court of Appeal Rules r25, r29 (4), r 29 (2), Court of Appeal Act cap 26 S 20, S 22 (1),Administration of Justice Act 1960 (UK), Constitution S 76


Cases cited:
R v McVitie [1960] 2 QB 483, R v Manai [2019] SBCA 8, Maetia v Reginam [1994] SBCA 8, McCluskey v Attorney General (Unreported High Court Solomon Islands, Palmer J 27 August 1993), Mani v R [2022] SBCA 5, George v Rockett [1990] HCA 26; [1990] 170 CLR 104


ExTempore/Reserved:
Reserved


Allowed/Dismissed:
Allowed


Pages:
1-15

JUDGMENT OF THE COURT

  1. This matter has a somewhat tortured background, which is understandable when the difficulties encountered with the legislation are considered. We express our thanks to counsel for their written submissions.

Background facts

  1. On 18 January 2022, a Director of the Solomon Islands Marine Authority (SIMSA) signed and filed an unsworn document purporting to be an “information”. It concerned the discharge, on 20 January 2021, of between 500-1000 litres of oil from a vessel known as the MV Quebec, which was then anchored at Graciosa Bay, Lata in the Solomon Islands. The vessel was registered in Panama and owned by the first appellant (a British Virgin Islands incorporated company). They entered into a shipping management agreement with Feng Sea Shipping Limited (a Singaporean incorporated company). In turn, it operated the ship through its agent, Solfish Shipping Limited (a Solomon Islands incorporated company).
  2. As a matter of background, it is to be noted that by information filed on 11 February 2021, the master of the MV Quebec at the time of the incident was charged with a number of breaches of the Shipping (Marine Pollution) Regulations 2011 (‘the pollution regulations’). He pleaded guilty to five of the nine charges laid, the balance being abandoned by the Crown. He was duly sentenced on 26 March 2021.
  3. On 2 March 2022 the Registrar of the High Court, in reliance upon the purported information signed on 18 January, issued a summons pursuant to s 210(3)(a) and s 210(4) of the Shipping Act 1998, charging the appellants.
  4. The appellants, by way of Amended Notice of Motion to Quash the Information, dated 11 May 2022, challenged the validity of the information and this document was filed on the same day. Initially it was given a civil number, and orders were sought pursuant to the inherent jurisdiction of the High Court that the information laid by the director be quashed for want of jurisdiction and/or abuse of process.
  5. In a decision given on 15 June 2022, Bird J dismissed that application with a further order that the director of SIMSA file “an amended information” on or before 22 June 2022 for the intended purpose of correcting the defects in the earlier information signed 18 January 2022.
  6. On 4 July the appellants sought leave to appeal the order of Bird J, which was refused by the learned President on 18 August 2022. That application for leave was apparently treated as made pursuant to The Court of Appeal Rules r 25 and determined pursuant to r 29(2). The President’s decision no doubt turned on s 20 of the Court of Appeal Act cap 6 whereby appeals from the High Court under Part IV of that Act may be brought only where there has been a conviction.
  7. There then followed a change of representation, and on 3 November 2022 the appellants renewed their application for leave to the Full Court pursuant to r 29(4). That was given a civil appeal number (19 of 2022). At some stage, without explanation, that has turned into both a criminal case and a criminal appeal. We are unclear how this change was made by the registry.
  8. From this Court’s perspective, the matter was listed as an application for leave before the Full Court. It has morphed into an appeal against the substance of the decision of Bird J, and it appears both parties have accepted that and filed submissions accordingly. We proceed on the basis that leave of the Full Court is still required to proceed with this appeal.
  9. It appears that, when the matter was before the President, the appeal was a very convoluted one. Subsequently it was refined to its essential elements by those now acting. In the circumstances, we are satisfied we need to consider the substance of the appeal.
  10. We again note, for the sake of completeness, that the further document filed on 3 November 2022 is given a civil appeal number and is said to be an Appeal from a High Court civil case which is a Notice of Renewal of Application to the Full Court. It then seeks leave to appeal from a ruling of Bird J in “criminal proceeding CRAC 19 of 2022 (Substantive Appeal)”. The grounds are that it is in the public interest as to certainty in relation to prosecutions brought pursuant to the Shipping Act and the failure of the learned President to provide reasons as to his decision to refuse leave to appeal. We do not see it is necessary to respond to the second ground.

The purported information of 19 January 2022

  1. This information alleged three offences, as follows:

Count 2 – Statement of offence

Failing to comply with operational requirements of the International Convention for the Prevention of Pollution from Ships (MARPOL) 1973/1978 contrary to regulation 8(1) and (2)(a) of the Shipping (Marine Pollution) Regulations 2011.
Particulars of offence
That Feng Sea Shipping Pty Limited and Quebec Shipping Limited, being the owners of the vessel MV Quebec 9044425 at Graciosa Bay, Lata in Temotu province on 20 January 2021 failed to comply with MARPOL 73/78 operational requirements (namely not to discharge into sea oil or oily fixtures from a ship of 400 gross tonnage except when all the conditions of MARPOL annex 1 regulations 15.2 were satisfied).
Count 3 – Statement of offence
Failure to report discharges contrary to regulation 16(1) (a) and (4) (a) of the Shipping (Marine Pollution) Regulations 2011
Particulars of offence
That Feng Sea Shipping Pty Limited and Quebec Shipping Limited, being the owners of the vessel MV Quebec 9044425 at Graciosa Bay, Lata in the Temotu province on or about 20 January 2021 failed to immediately report to the Director of the Solomon Islands Maritime Authority and to the Permanent Secretary for the Environment, Climate Change, Disaster Management and Meteorology the discharge of oil from the vessel into Solomon Islands waters at Graciosa Bay (Lata) in the Temotu province.
  1. This document was unsworn but signed by the director of SIMSA and when it was lodged in High Court it led to the usual process of the issue of summonses to commence the prosecution process.
  2. As noted, the application pursuant to the Court’s inherent jurisdiction was heard by Bird J on 20 May 2022. A large part of her decision relates to territorial jurisdiction, the appellants then arguing that, because they had no presence in the Solomon Islands, they could not be prosecuted. Very sensibly, with the change of counsel, this ground was no longer proceeded with. The Judge considered ss 209 and 210 of the Shipping Act. The Judge said the first defect complained of is that the information was not shown on oath as required under s 210(3) (a). At 17 of the ruling, the Judge said:[1]
  3. The Judge went on to then consider the possibility of amendment of the information pursuant to s 210(2)(b) of the Shipping Act, which extends the time limit where a vessel or person has departed the jurisdiction of the country. She said this was applicable to these appellants.
  4. Her Ladyship concluded there was a defect on the face of the information, set out for future reference the way in which the procedure for filing informations under the Act should be pursued, and noted she saw no evidence that prejudiced or embarrassed the appellants by any omission on the information. She, therefore, considered that this was a case where an amendment was available to overcome the defects, because the information was defective and imperfect rather than “a bad indictment”.[2]

Submissions

  1. Mr Ward who appeared with Mr Taupea for the appellants properly accepted that s 210(3)(a) was capable of two interpretations – (1) that the information must be sworn before the Registrar, and (2) that the information must be sworn and the sworn document must be placed before the Registrar. He continued that, whatever interpretation is placed on it, the information must be on oath. It was common ground this did not occur: it was simply signed by the chief executive of SIMSA.
  2. He submitted that this was penal legislation and referred to authorities to the effect that where a meaning of a penal statute is ambiguous or susceptible to other meaning, the Court must accept the meaning more favourable to the person affected.[3]
  3. He also made submissions on the purpose of requiring the information to be on oath, but we do not consider it necessary to explore that particular matter.
  4. Mrs Suifa’asia who appeared for the respondent submitted there was no right of appeal against the decision made by Bird J. She submitted that appeals must authorised by statute.[4] In her submission this is a criminal matter. The appellants not having been convicted on a trial before the High Court, the prerequisites for a criminal appeal in s 20 of the Court of Appeal Act had not been met. Nor were the appellants appealing against a decision of the High Court on appeal from the Magistrates Court.[5] She submitted that the provisions of s 209(4) of the Shipping Act were inapplicable because this proceeding was not an Admiralty matter and because the appellants were not exercising a right of appeal under the Shipping Act.
  5. Counsel for the respondent did not question that the application to quash was properly brought pursuant to the inherent jurisdiction of the Court.

Discussion

  1. We propose to deal with the substantive point before we consider whether or not any right of appeal exists from Bird J’s decision. Finally, we will address the question of leave.
  2. It is appropriate to set out the relevant legislation as follows:[6]
  3. This application to quash the information was brought in the inherent jurisdiction of the High Court. Counsel for the respondent did not suggest that the High Court had no jurisdiction to quash the information. Nothing in the ruling suggests otherwise. As noted, this matter has caused some confusion for the Court’s Registry, as at various stages these proceedings have been assigned both civil and criminal numbers, both in the High Court and the Court of Appeal.
  4. The first point to consider is the effect of s 210(3) (a) of the Shipping Act. Effectively, the Judge agreed with the appellants’ submission that the appropriate procedure requires the information to be made on oath before the Registrar. And on a literal reading of subsection 3(a) on its own, that is an available interpretation. However, we are satisfied that a different interpretation needs to be applied looking at context and the provisions following subsection 3(a). Subsection 3(a) deals with the information having to be on oath. By subsection 3(b) it must contain sufficient particulars to fairly inform a defendant of the substance of the offence. Subsections 4, 5 and following deal with the filing of the information in the Court, the issuing of summons and matters of service - in other words the administrative steps required to initiate the prosecution process in the High Court.
  5. While there is force in Mr Ward’s submission, made in reliance on George v Rockett,[7] that the legislation recognises the need for the supervisory role of the Registrar, we think there are significant differences here. That case dealt with search warrants where, before the issue of a warrant, a Justice had to satisfy himself that there were reasonable grounds for suspecting and reasonable grounds for believing the respective matters mentioned in s 679. We note there is no specialist Admiralty Registrar in the Solomon Islands, and nothing has been put before us to suggest what a proper supervisory role of the Registrar in Admiralty matters in the Solomon Islands might be.
  6. Rather, we are satisfied that the requirement is that the information is on oath and the Registrar must be satisfied of that. That could be before a Commissioner for Oaths or, currently, the Registrar as we understand she is also a Commissioner for Oaths. The latter course accords with the previous cases referred to by Bird J. We interpret s 210 (3) (a) in this way because the subsequent subsections set out the administrative steps that need to be taken by the Registrar to initiate the criminal procedure process.
  7. We are satisfied this is the correct interpretation of the Shipping Act, but stress that there need to be legislative amendments to ensure that the Shipping Act, the pollution regulations, the Criminal Procedure Code and the Court of Appeal Act operate in an integrated, harmonious fashion. We trust that this can be considered at an early date.
  8. Thus, a sworn information (which may be sworn in front of the Registrar if that person is a Commissioner for Oaths) must be shown to the Registrar, who then initiates the procedure under the subsections that follow s 210(3)(a).
  9. We turn to consider whether this was a matter that could be cured by the amendment that was ordered by Bird J.
  10. Section 210(2) of the Shipping Act is clear on its face. The information must be laid within 12 months from the date on which the offence is alleged to have been committed.[8] By s 210(3) an information must be sworn for it to be valid. Neither essential step was taken in this case. We are satisfied these failures cannot be cured by allowing an amendment as ordered by the Judge.
  11. The Judge relied on R v Manai,[9] and noted the distinction in the English Court of Appeal in McVitie[10] between a bad indictment disclosing no offence known to law and an indictment which is simply defective or imperfect. That was a case of misstating the correct provision of the Penal Code. This case is well removed from such a minor defect. The Shipping Act provides a statutory time frame in which to lay an information. Parliament has seen fit not to provide a procedure to extend that time. It is not a matter of form or a mere defect. It is a fundamental time bar to prosecution.
  12. Unless an information is sworn, there is no information - it is a mandatory requirement that the information be sworn, as set out above. It follows that there was no valid information filed within the time allowed by the legislation. We are quite satisfied that in those circumstances the information should have been quashed.

Is there a right of appeal?

  1. This is a matter that raises difficulties. Counsel for the respondent referred to s 209(4), set out above. She submitted that there is no right of appeal given specifically under this Act, and that that is an end to the matter. However, this application is pursuant to the inherent jurisdiction of the Court and is not in reliance on any right of appeal in the Shipping Act.
  2. Reference was also made to s 20 of the Court of Appeal Act as providing that in a criminal matter an appeal may be brought only after a conviction. If applied literally in this case, that would lead to serious injustice and public concern. If the Judge’s decision had been to quash the information, SIMSA would have had no right to challenge that decision. Equally, as in this case given our finding on the substantive point, there would be the charade of a trial being required before there was any right of appeal.
  3. The Court of Appeal Act is silent as to the right of appeal in matters determined in the inherent jurisdiction of this Court, either in criminal or civil matters.
  4. There is some confusion, as we have already noted, whether this is a criminal or civil matter, with both assignations being made. It is hard to think an application to quash an information is not in the criminal jurisdiction of the Court. We are satisfied this is a criminal matter. We are also satisfied that there is a lacuna in the Court of Appeal Act which we find is covered by the Administration of Justice Act 1960 (UK). In our view, that legislation continues to apply in Solomon Islands in the limited circumstances of this case.

That Act, where relevant, reads:

1. (1) Subject to the provisions of this section, an appeal shall lie to the House of Lords, at the instance of the defendant or the prosecutor from -

(a) from any decision of a Divisional Court of the Queen's Bench Division in a criminal cause or matter;

(b) from any decision of the Court of Criminal Appeal on an appeal to that court.

(2) No appeal shall lie under this section except with the leave of the court below or of the House of Lords; and such leave shall not be granted unless it is certified by the court below that a point of law of general public importance is involved in the decision and it appears to that court or to the House of Lords, as the case may be, that the point is one which ought to be considered by that House.


For it still to apply in this country the starting point is s 76 of the Constitution, which provides where relevant -

76. Until Parliament makes other provision under the preceding section, the provisions of Schedule 3 to this Constitution shall have effect for the purpose of determining the operation in Solomon Islands -

(a) of certain Acts of the Parliament of the United Kingdom mentioned therein;


Schedule Three to the Constitution provides -

  1. Subject to this Constitution and to any Act of Parliament, the Acts of the Parliament of the United Kingdom of general application and in force on 1st January 1961 shall have effect as part of the law of Solomon Islands, with such changes to names, titles, offices, persons and institutions, and as to such other formal and non-substantive matters, as may be necessary to facilitate their application to the circumstances of Solomon Islands from time to time.

The Administration of Justice Act 1960 (UK) was in force at 1st January 1961 and does not conflict with any Solomon Islands legislation that has been brought into force by the Parliament of Solomon Islands. With appropriate modifications relating to the names of respective Courts it is still applicable law in this country.

Leave to appeal is granted. The information against the three appellants is quashed, and they are acquitted.


...................................................
Hansen Acting President


...................................................
Palmer CJ


...................................................
Wilson JA


[1] High Court, Solomon Islands, CRC 11 of 2022-1.
[2] R v McVitie [1960] 2 QB 483.

[3] Maetia v Reginam [1994] SBCA 8; CA-CRAC 002 of 1994 (21 October 1994); McCluskey v Attorney-General (Unreported, High Court, Solomon Islands, Palmer, J, 27 August 1993).
[4] Mani v R [2022] SBCA 5.
[5]Court of Appeal Act s 22(1).
[6] Shipping Act 1998 Amended Consolidated Version 01-01-2021.
[7] [1990] 170 CLR 104.
[8]Subsection 210(2)(b) does not apply in this case.
[9] Manai v R [2019] SBCA 8; SICOA-CRAC 4 of 2019 (18 October 2019).
[10] Supra, n 2.

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