MURIA CJ:
This is an application by way of Motion by the 2nd accused, ITO
TUTOMU, seeking to quash the charges brought against him by the Director of
Public Prosecutions. Under the
Information filed against the three accused,
the second accused faces three charges as contained in counts 3, 4 and 5 in
the Information. No pleas have yet been taken in respect of the charges.
Background to the application
The second accused, Ito Tutomu, was theer of the foreign fishing ving vessel
"Yung You No. 102." The first accused,
Yamase Masayuki was the Master of the
foreign fishing vessel "Hsiang Chan No. 132." The third accused was the
company in Solomon Islands who chartered the two foreign vessels for their
fishing venture.
class="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
Following the arrest of the accused, the Director of Public ProseProsecutions
charged all three accused and were committed
by the Magistrates Court on
26 November 1998 to stand trial at the High Court.
On the 27 November the DPed an Information in the Hihe High Court charging
all three accused with offences for which they
were committed to stand trail
at the High Court, although in that Information, the third defendant was
charged with one
extra offence as contained in Count 7 in the Information.
At 9.20 am on 30 March 1999 the DPP filed what is clearly an amended
Information in place of the one filed on 27 November 1998. No doubt that amended Information had not yet
reached the lawyers for the accused because at
3.40 pm on the same
30 March 1999,
Counsel for the second and third accused filed their Notices of Motion
seeking to quash the charges brought against
their clients as contained in
the Information filed on
27 November 1998.
The DPP informed the Court that he was withdrawing the charges in the
Information filed on 27 November 1998 and will
proceed on the new
Information. Ms. Wilson of Counsel for the second accused, however,
maintains her client's challenge
to the charges brought against her client
as contained in Counts 3, 4 and 5 in the new Information.
In her submission, Ms. Watson urged the Court to quash the charges brought
ht
against her client on the ground that
the charges were made under the
repealed Act and therefore when the charges were laid in November 1998, the
Fisheries
Act 1972 having been repealed on 2 October 1998 and new Fisheries
Act having been appointed to come into operation as from
1 October 1998,
there was no longer any offence known to the law in respect of the acts of
the accused as complained
of. The acts of the accused stated in the charges
were said to have been done on 24 October 1998, well after the 1972 Act was
repealed. The learned DPP's argument is that despite the repeal of the 1972
Act under which the accused was issued with
the fishing licence, the licence
itself together with the conditions imposed under the licence were preserved
by section
61 of the new Fisheries Act 1998. The learned DPP therefore,
argued that the accused could still be prosecuted for breaches of the
licence and its conditions.
There is no dispute that the Fisheries Act 1972 was repealed oled on 2 October
1998 by virtue of the operation of section
25(1) of the Interpretation and
General Provisions Act which provides that where an Act is expressed in the
Act to expire, lapse or cease to have effect on a particular day or day
to
be appointed, then it expires lapses or ceases to have effect at the
beginning of the day following the particular
day or day so appointed.
Despite the repeal of the 1972 Act, section 61 of the 1998 Act preserved the
licences and conditions
under which they were issued for the period of the
licence. It also preserves regulations and orders made under the repealed
Act. The section provides:
&q1 (1) The Fisheries Act 197t 1972, (hereinafter referred to as the "repealed
Act") is hereby repealed.
(2) Notwithstanding suchal from and after the date date of coming into
operation of this Act-
(a) any licence granted under the rthe 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."
Thus ction (2) (a) clearly preserves the validity of the licencecence
together with the terms and conditions provided
therein. It follows from the
DPP's argument that since the licence issued to the accused on 12 February
1998 for one year was still valid at the
time of the alleged breaches of its terms and conditions on
24 October 1998, the accused could be properly
prosecuted for the offences stated in the Information.
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In support of her contention that at the time of the alleged acts done by
the accused which were said to be in breach
of his licence, there was no
offence in existence in law, Ms. Wilson relied on a number of English Courts
decisions,
including R -v- Maywhort [1955] 2 All E.R. 752 which
concerned the procedure for bringing a motion to quash an indictment which
the Court held that it could and should
be taken before the plea was taken.
R -v- Lamb [1969] 1 All E.R. 45 which found that where the offence
purported to have been committed was not known to the law, the alleged
committal of
the accused on such offences was a nullity., and R -v-
Thomson & Clien [1975] 2 All E.R. 1028 where it was stated that an
indictment could only be preferred on the basis of one committal.
The que to my mind in this case is not so much as to the validity dity of
the licence and its terms and conditions being
saved by section 61 of the
1998 Act, but rather whether the acts of the accused said to have been done
on 24 October
1998 constitute an offence in law. The alleged offences
preferred against the accused are:
"Count 3 Statement of Offence
Breach of fishing permit, cit, contrary to section 7(6) of the Fisheries Act.
Particulars of Offence
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ITO TUTOMU, on
24 October 1998,
in Solomon Islands, being the Master of the Foreign Fishing Vessel YUNG YU
NO. 102, breached condition 1 of Fishing
Permit No. (11/97) by failing to
display the said Fishing Permit or certified copy of it on board his said
vessel.
Count 4
;Sent of Offe Offence
Breach of fishing permit, contrary to section 7(6) 7(6) of the Fisheries Act.
Particulars of ces
ITOMU, on
14 October, 1998,
in Solomon islands, being the Master of the Foreign Fishing Vessel YUNG YU
NO. 102, breached condition 2 of Fishing
Permit No. 11/98, by fishing within
the territorial waters on South Guadalcanal.
;Sent of Offe Offence
>
Breach of fishing permit, contrary to section 7(6) 7(6) of the Fisheries Act.
Particulars of Offences
ITO TUTOMU, on
24 October, 1998,
in Solomon Islands, being the Master of the Foreign Fishing Vessel YUNG YU
NO. 102, breached condition 10 of Fishing
Permit No. 11/98, by failing to
keep up to date Daily Catch Record (SI Catch log Sheets) on board his said
vessel."
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As I have mentioned earlier, these offences are contained in then the Information
filed by the DPP on 27th November 1998 which was later withdrawn and now
contained in the Information filed on
30th March 1999. Notably the offences were all brought
pursuant to section 7(6) of the Fisheries Act, 1972. The basis for that, the
DPP
submitted, was that although the 1972 Act was repealed by the 1998 Act,
the licence and its terms and conditions were saved
by the 1998 Act. With
respect, I am not attracted to that argument for the following reasons.
Firstly, there is the basic
principle in criminal law that criminal
liability accrues as at the date of the commission of the relevant offence.
Section
10(4) of the Constitution provides:
"No person shall be held to be guilty of a criminal offence on account of
any act or omission that did not, at the
time it took place, constitute such
an offence, and no penalty shall be impose(] for any criminal offence that
is severer
in degree or description than the maximum penalty that might have
been imposed for that offence at the time when it was committed".
That provision lays down firmly the principle of law which I have just
mentioned, that is that criminal liability is to
be determined by the law in
force at the time when the acts constituting the offence were done. That law
in this case
is the Fisheries Act, 1998 and not the Fisheries Act 1972 which
was long repealed by 24th October 1998. Secondly, no corresponding provisions to section
7(6) of the 1972 Act could be found in the 1998 Act nor were the accused's
acts said to be contrary to any of the provisions of the 1998 Act. Thirdly,
by reason of the repeal, the section 7(6)
of the 1972 Act had gone and the
right or the power to enforce that section had been destroyed and cannot be
revived.
What section 61 of the 1998 Act does is to save the acts already
done under the old Act so that those who had been issued with
licences under
the repealed Act would continue to enjoy the validity and rights granted
under those licences until they
expire. Section 24(1) of the Interpretation
and General Provisions Act is also relevant here where it provides, inter
alia, that the repeal of an Act does not affect the previous operation of
the Act, or anything duly done or suffered under it. But the right and power
to enforce the compliance with the terms and
conditions of the licences
cannot be done under section 7(6) of the old Act which had already ceased to
exist. That now
has to be done under the 1998 Act. So that, as In this case,
the accused's acts which were said to breach the terms and conditions
of his
licence, must be those occurred on
24th October 1998.
It follows ahat if acts complained of constitute an offence under the
the
1998 Act, then the accused must be charged
under the relevant provision of
that law. To charge the accused, as done in this case, under section 7(6) of
the old
Act is clearly charging him for a non - existent offence as was the
case in R -v- Lamb (supra). It is also a clear violation
of section 10(4) of
the Constitution. It must follow that not only that the charges brought
against the accused in the
Information before the Court were a nullity, the
committal of the accused on those charges was also a nullity because it was
so done in respect of a nonexistent offence. The charges against the accused
ITO TUTOMU, contained in counts 3, 4 and
5 in the Information must be
quashed.
here are other argument raised by Counsel regarding sectionction 10(2) of the
Constitution, sections 233 and 257 of the Criminal Procedure Code. I do not
think they matter any more, suffice to say that in so far as the argument on
section 10(2) of the Constitution
is concerned, about the right to be
afforded adequate time and facilities for the accused to prepare his
defence, the
strength of that argument has plainly diminished by reason of
the circumstances of this case since 1st April 1999. Between
1st April 1999
and
16th April 1999,
there must obviously be enough time for the accused who is represented by
able and competent counsel to prepare his
arguments in relation to the
information filed by the DPP on 30th March 1999.
n so far as section 251(2), CPC is concerned, that provisiovision deals with
amendment of the Information to meet the circumstances
of the case as the
court thinks necessary. This provision applies where the Information before
the court has been properly
brought but the defect in the Information can
easily be cured by amendments to meet the circumstances of the case. The
provision does not apply to a situation such as in this case, where the
charges are a nullity from the start.
At the commencement of the hg on 1st April 1999, when lhen learned Director
of Public Prosecutions said that he simply
withdrew the Information filed on
27th November 1998 under section 190(2)(b)(ii), the effect of
which was to discharge the accused, Ms. Watson argued that the learned
DPP
could only withdraw with the consent of the court and that it should be done
at the Magistrates Court during the
Preliminary Inquiry. It is the
prosecution who may seek to withdraw the charges either before the
Magistrates Court or
before the High Court but when he decides to do so he
is required to obtain the consent of the Court. DPP -v- Clement Tom
[1988-89] SILR 118. In this case, the court enquired of the DPP as to what
he intended to do with the Information filed on 27th November
1998, to which the DPP replied that he was simply withdrawing that
Information. As I am satisfied that withdrawal
should be granted, and as it
was before the accused was called upon to make his defence, I must decide
which order under
section 190(2)(b) is the appropriate order to make.
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This is a case where I have alreadyd that the accused has been been charged
with non-existing offences and that those
offences should be quashed. This
not a case where amendments would cure the defect. As such an order to
simply discharge
the accused under subsection (2)(b)(ii) would be
inappropriate. The proper order would be that made pursuant subsection (2)(b)(i).
Further in the light of my finding the charges were a nullity, the inherent
power in this Court to prevent abuses of
its process and to control its own
procedure entitles the Court to safeguard the accused from any prejudice and
to order
that he be acquitted of the present charges. See Connelly -v-
DPP (1964) 48 Crim App. R 183.
The order of the court in this case is that Counts 3, 4 and 5 in the
Information against the accused are a nullity and
are quashed. The accused
is acquitted of the charges in those counts.
Sir John Muria)
CH CHIEF JUSTICE
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