R v Wong Chin Kwee [1983] SBHC 2; [1983] SILR 78 (14 April 1983)

(1983) SILR 78

HIGH COURT OF SOLOMON ISLANDS

Criminal Case No. 3 of 1983

R -v- WONG CHIN KWEE AND OTHERS

Before: Daly C.J.

14th April 1983

Criminal law-Ille-Illegal fishing, proof of - status offence-strict liability-section 7 Fisheries Act 1972-sections 9 and 10 Penal Code.

Facts:

The three accused were charged under section 7(5) Fisheries Act 1972 with being the master , owner and charter respective of a foreign fishing vessel illegally fishing in Solomon Islands waters and which did not have its fishing gear stowed as prescribed by law. It was sought to raise defences of mistake (section 10 Penal Code) and that the offence occurred independently of the will (section 9 Penal Code).

Held:

Section 7(5) creates a "status offence" that is the prosecution had to prove:

(a) that the foreign fishing vessel had contravened section 7; and

(b) that the accused had the status of master, owner or charterer of the vessel at the time contravention took place; and further

(c) that any mental element to be proved need be directed only to the question of status set out in (b).

Cases considered:

R. -v- Ngena (1983) S.I.L.R. 1
Hunt -v- Maloney (1983) Q.B.R. 164
Anderson -v- Nystrom (1941) St. R. Qd. 56
Brimblecombe -v- Duncan (1958) Qd. R. 19
Fraser -v- Dryden’s Carrying and Agency Co. Ltd [1940] VicLawRp 71; (1941) V.L.R. 103

For Crown: L. Holt
For 1st Accused)
For 2nd Accused) R. Gumbert
For 3rd Accused: A. Nori

Daly CJ: In this case following initial pleas of Guilty the First Accused (Wong Chin Kwee) and the Third Accused (Nestor Bele) have had pleas of Not Guilty entered and have sought a court’s preliminary ruling on a point of law. The Crown having concurred in this course being adopted I have heard argument on the point and now give my judgment upon it.

Both accused are each charged with two offences; one against section 7(5)(a) of the Fisheries Act 1972 ("the Act") and the other against section 7(5) (b) of the Act. Section 7(5) provides as follows:-

"Where any foreign fishing vessel contravenes any of the provisions of this section, the master, owner and charterer, if any, of such vessel shall each be guilty of an offence and liable-

(a) in the case of a contravention under subsection (1), to a fine of two hundred and fifty thousand dollars; and

(b) in the case of a contravention under subsection (4), to a fine of twenty-five thousand dollars."

The first accused is charged under that subsection as master of a vessel; the third accused as charterer of the vessel or present purposes it is unnecessary to consider the facts in detail but it is alleged that the vessel of which the accused are said to be master and charterer was in breach of section 7(1)(b) of the Act and there was, in relation to vessel, a breach of section 7(4) of the Act.

Section 7(1) is, I am told, in a common fisheries legislation and reads:-

"(1) No foreign fishing vessel shall-

(a) enter within the fishery limits except for a purpose recognized by international law;

(b) fish or attempt to fish within the fishery limits;

(c) load, unload or tranship any fish within the fishery limits; or

(d) load or unload any fuel or supplies within the fishery limits,

unless authorised to do so under a permit granted under this section."

In this case section 7(5)(b) is relied upon. Section 7(4) reads:-

"(4) The fishing gear of any foreign fishing vessel which is prohibited by this section from fishing within the fishery limits shall, while the vessel is within those limits, be stowed in such manner as may be prescribed."

The question raised in the preliminary point was expressed as are the offences with which these accused are charged of strict liability? It may be, as we shall see, that this is not the best formulation of the question but, nevertheless it has raised some difficult and important questions on liability for conviction of a statutory offence in Solomon Islands.

Counsel for the two accused and the Crown have argued on the basis of general common law authorities. They have cited to me cases decided in courts of the United Kingdom which illustrate the difficulties which flow from arguments as to whether or not a particular offence is of "strict liability" and the tests to be applied to legislation to ascertain whether the Parliament of the United Kingdom has created such an offence. I am grateful to counsel for so doing, but, as I suggested in the course of argument, the starting point in Solomon Islands in considering questions of general criminal liability must be our own Penal Code ("the Code"). The time has come when we must grapple with the terms of the Code and not rely upon common law doctrines which may have been replaced by it.

Part IV of the Code deals with General Rules as to Criminal Responsibility. In the codes of Queensland and Western Australia where similar provisions occur, express provision has been made (section 36 in each code) to apply these General Rules "to all persons charged with an offence against the Statute Law. We, in common with Tasmania, have no such provision. However in view of the wide terms of the provisions in Part IV and the fact that the word "offence" (earlier defined as "an act, attempt or omission punishable by law": see section 4) is used in a number of sections, the only reasonable interpretation is that Part IV applies to all offences against the law. Again there is no provision making the Penal Code exclusive, such as is contained in section 2 of the Criminal Code Act 1899 Queensland . However as this Court held in the preliminary ruling in R. v. Ngena (Cr. Case No. 14 of 1982: 1st Feb. 1983), the Penal Code is a comprehensive statute of Solomon Islands and Schedule 3 of the Constitution provides that received law shall, in the case of received statute be "subject" to a Solomon Islands statute (Para. 1) and, in the case of the

principles and rules of common law and equity, shall apply-

"Save in so far as

(a) they are inconsistent with ... any Act of Parliament or

(b) they are, inapplicable to or inappropriate in the circumstances of Solomon Islands from time to time...." (Para. 2(1)).

In my judgment where there is a comprehensive Code of Solomon Islands dealing with matters such as general rules as to criminal responsibility even, if there is no direct inconsistency, it is incumbent on the Court to apply that Code instead of relying on the common law rules on the basis that the common law rules are "inapplicable or inappropriate" in the circumstances of Solomon Islands. Adapting what this Court said in Ngena (ab. cit at p. 6), it is the intention of the Constitution that the common law rules should "wither away" when the Solomon Islands legislature has legislated for Solomon Islands in relation to any subject. Parliament so legislated comprehensively in relation to the criminal law when it enacted the Penal Code. Thus I also find that the Penal Code is exclusive in relation to the matters dealt with therein, including general rules as to criminal responsibility.

What then are the rules relevant to this case? They are contained in sections 9 and 10 and read as follows:

"9.Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which, occurs independently of the exercise of his will, or for an event which occurs by accident.

Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act or to form an intention is immaterial so far as regards criminal responsibility.

10. A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist."

Identical provisions can be found in sections 23 and 24 of the Queensland Code and almost identical provisions in sections 23 and 24 of the Western Code. I should perhaps record a regret that we do not have available to us in full the cases on those codes. I have, however, had the advantage of the cogent summary of the law and erudite, commentary on these provisions contained in Professor Colin Howard’s book Criminal Law 4th Edition and his article in Vol. 25 Modern Law Review at p. 190. I feel we should make every effort to expand our law library to provide counsel and the courts with the appropriate authorities. We must, however, keep one foot in England as section 3 provides for interpretation of the Code as follows:

"3. This Code shall be interpreted in accordance wit the Interpretation and General Clauses Ordinance and the principles of legal interpretation obtaining in England and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith."

In view, however, of the circumstances of near neighbours with similar Code is may be that an opportunity should be taken to amend this provision. But that is for Parliament to decide.

On the basis, then, that sections 9 and 10 apply to all offences against any law (and I should; perhaps emphasize that because of the way the case was developed before me I have heard little or no argument on the scope and applicability of these sections), I express some hesitation as to whether the description "strict liability" is a particularly apt expression to use in Solomon Islands. The difficulty with such an expression is that it infers that consideration must be given to the development of the concepts of strict liability in the United Kingdom Courts which do not have a comprehensive Penal Code. In relation the provisions in section 9 on the Queensland Code it has been said:-

"On this view the effect of the first part of section 23 is to create a structure of criminal responsibility closely similar to the present common law, although not in all respects identical with it. One difference is that Queensland and Western Australian rules necessarily exclude strict responsibility."

(Professor Howard Criminal Law at 387).

The same learned author reviews the authorities at 25 MLR 190 an article titled "Protection of Principles under Criminal Code." Of course Parliament retains the power, subject to the Constitution, to legislate to exclude the operation of any provision of a general act in relation to a subsequent special act. This was recognized in Hunt v. Maloney (1959) Qd. R 164. Although that case was a case concerned with vicarious responsibility it lends useful support to the proposition that, in considering the operation of section 9 in a particular case, common law tests are of little assistance. As Stanley J said at pp 170-171:-

"... the problem involved is to my mind simple - Do the Health Acts expressly or by necessary implication exclude the operation of section 23? If so, do they prevail as later special Acts over an earlier general one? ... I wish to make plain that I do not agree with the submissions pressed upon this court by counsel for the Crown in this case (qua section 23) and in other cases (some of which I have just cited) - qua section 24 - that alleged offenders are necessarily excluded from the benefit of these sections of the Code by the objects of the Act which has imposed a penalty allegedly incurred by them. No doubt prosecutors would have their tasks made easy if no defence were possible; but the desirability (if it be desirable) of such a state of affairs has not yet been recognized as a principle of interpretation of statutes".

That case also supports the proposition that, for section 9 to be excluded by Parliament, it must do so by clear words or by necessary implication, a proposition with which I respectfully agree. As to the exclusion of section 10 (which is expressly permitted by the second part of that section) the Queensland courts have held in relation to the identical provision in section 24 that this must be done clearly. In the case of implied exclusion there must, in the view of the Queensland courts, be "plain repugnancy" (See Anderson v. Nystrom (1941) St. R. Qd. 56, Brimblecombe v. Duncan (1958) Qd. R. 19). So far such plain repugnancy has not been found. Arguments relating to the subject matter of the statute nave been given short shrift and it has been suggested that express exclusion is the only answer. As Philp J said in Anderson (ab. cited) at p. 72:-

"It seems to me that legislation enacting offences should be made as certain as possible, and if the Legislature intends to exclude the rule in question it would best be done by an express provision to that effect so the subject will be in no doubt as to his liability."

I find these views cogent and convincing. In my judgment a similar approach should be adopted to arguments that the legislature in Solomon Islands has excluded the operation of sections 9 and 10 of the Penal Code.

To return to the present case, the basic question is what was the burden that Parliament imposed upon the prosecution when it created the offence set out in section 7(5) of the Act? In view of the conclusion I have already reached about the applicability of Part IV of the Penal Code to all offences, part of that consideration must be how does the offence created by section 7(5) of the Act interlock with those provisions? In, the final analysis, then, as so often with the law, one comes back to an interpretation of the specific statutory provisions which are before the court. Decisions by other courts on different provisions can be most useful in indicating lines of approach but cannot supplant a full consideration of the exact words used by our own Parliament.

I have already set out the relevant parts of section 7 of the Act. It is a curious section in that section 7(1) at fir sight appears to create a situation in which a fishing vessel can itself perform an act. But on second sight what Parliament is doing is to impose upon the prosecution a duty of proving that a foreign fishing vessel is, by human control, the means of committing an act set out in that subsection when there is not a permit so to do granted to that ship. The reason for this is, no doubt, that the actual person performing the act can rarely be identified but the ship can be identified. Equally whether or not that ship is licensed is susceptible of easy ascertainment and proof which might not be the case with individuals. Hence the departure from the usual phraseology "any person who performs (the specified act) commits an offence" and so on.

Nevertheless, as Mr Gumbert rightly points out, only persons with legal existence can commit an offence. It is then that one turns to section 7(5) in which the master, owner and charterer of the vessel which is proved to be in breach of section 7(1) are said to commit an offence punishable by a fine On any view the burden on the prosecution is to prove that a person before the court can be so described as the master, owner or charterer.

The nub of this preliminary point is, must the prosecution prove more than this and in particular must they prove a state of awareness in relation to the breach of section 7(1) or 7(4) on the part of the master, owner or charterer? The argument for the First Accused is that he is entitled to raise a lack of awareness that the vessel was fishing without a permit as he asserts that he made an honest and reasonable but mistaken belief that his permit covered the fishing being carried on. He therefore seeks to rely upon section 10 of the Penal-Code. The Third Accused seeks to rely upon section 9 of the Code and asserts that the fishing without a permit occurred independently of the exercise of his will as did the non-storage of the gear. If it were necessary for the prosecution to prove a mental element in relation to the fishing without a permit and the failure to stow fishing gear applicable to master and charterer then, say the accused, it would be for the prosecution to exclude these assertions. This submission would be sound if it were necessary for the prosecution to prove such a mental element.

But is it necessary for the prosecution to prove such a mental element? I have already indicated that there must be proof of one element n relation to the vessel itself under section 7(1) and one element in relation to the accused under section 7(5), that is, that they are respectively master and charterer of the vessel in relation to which the first element has been established. There are no words which carry the import that the master, owner or charterer must have knowledge of the contravention but, only that there has been a contravention and the person accused has the status alleged. In my judgment therefore we are concerned here with what have been called status offences. Professor Howard describes such offences in this way at page 380 of his Criminal Law:

"A status offence is one which attaches criminal responsibility to D by reason only of his status, capacity or physical situation dispensing with the usual need for at least either an act or an omission as a prerequisite for conviction. An instance is Fraser v. Dryden’s Carrying and Agency Co, Ltd [1940] VicLawRp 71; (1941) V.L.R. 103 where the defendant company was charged with being the owner of a vehicle driven in breach of the conditions of its operating licence. The company’s status as owner of the vehicle at the time when it was operated in breach of the licence did not depend on anything done at that time by anyone. Either the company was the owner or it was not. No question of scope of employment could arise on the ownership issue although ownership was the basis of the company’s liability to conviction."

The decision referred to in that passage is entirely appropriate to our present case.

Section 9 and 10 of the Code apply to this offence but to the limited extent that "the act" (using those words in a wide sense to include the act of acquiring a certain status) with which the offence is concerned and to which the exercise of will or the belief must be directed. Is the act of being the master or charterer of the vessel, which is in breach of section 7(1) of the Act, at the time of that breach. It maybe that a situation could exist where a person became, for example, an owner of a vessel involuntarily by operation of law. This may enable him to raise section 10. Or it may be that a charterer could claim that he honestly and reasonably, but mistakenly believed he chartered vessel X instead of vessel Y when vessel Y is proved to be in breach of section 7(1).

Mr Nori suggests that a failure to impose a burden of proving awareness of the breach of section 7(1) on the part of a charterer or owner may lead to injustice. This seems to me, however, from the wording of the statute to be exactly the situation in which Parliament has said a person engages in the business of being master of, owning or chartering foreign vessel in and around Solomon Islands waters at his peril. If the ship is found to transgress section 7(1) of the Act then an owner and a charterer as well as the master is at risk. The learned DPP has touched upon the reasons why it is obvious that Parliament has considered this severe course the only way available to it to protect this important natural resource of the Solomon Islands against those, who fish illegally in our waters. As I have said, the courts in Queensland tend to disregard such arguments and to concentrate, as I have done, on the terms of the Act. Nevertheless perhaps I may be permitted to add that those reasons seem to me to be cogent and, although my function is simply to interpret the words of the statute, I am reinforced in the. conclusion I reach by the knowledge that what appears to be the intent of the Act has been achieved by the words used.

I find therefore that the burden on the prosecution is to prove the following elements:

(a) that a foreign vessel has contravened section 7(1) or section 7 (4) as the case may be; and

(b) that an accused had the status of master, owner or charterer of that vessel for the purposes of section 7(5) at the time the contravention took place; and

(c) that any mental element to be proved such as voluntariness or recklessness need be directed only to the question of status set out in (b).

INCOMPLETE!!!