Regina v JP Enterprises Ltd [1999] SBHC 94; HC-CRC 298 of 1999 (20 September 1999)

HIGH COURT OF SOLOMON ISLANDS

HC-CRC NO: 298 OF 1999

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J. P. ENTERPRISE LIMITED

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)
CRIMINAL NO.: 298 OF 1999

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HEARING: 16TH SEPTEMBER 1999
SENTENCE: 20TH SEPTEMBER 1999

DIRECTOR OF PUBLIC PROSECUTIONS FOR THE CROWN
P. WATTS REPRESENTING THE DEFENDANT DANT COMPANY

PALMER J.: This case was forwarded to this Court for for sentence by the Magistrates Court pursuant to section 208(1) of the Criminal Procedure Code. The Defendant Company had entered a guilty plea in the court below on a charge of removal of timber from Araka customary land at Mount Austin contrary to section 4(1)(d) as read with section 5(1)(c) of the Forest Utilisation Act (Cap. 40) (hereinafter referred to as "the Act").

Section 4(1) of the Act mak it an offence inter alia, for any person to remove any timber from any land for tfor the purpose of sale thereof unless that person has a valid licence issued under section 5 of the Act. It is not in dispute the Defendant Company does not have valid licence to remove timber from Araka customary land.

The set of facts surrounding the commission ofoffence as agreed to by Mr Watt, an officer of the Co Company, can be summarised as follows. The activities of the Defendant Company, in Araka customary land initially began in a small way. Mr Watt claims the customary land owners held milling licence. Small quantities of logs were initially sold to the Defendant Company but as time passed, the landowners offered to sell more logs to the Defendant Company. This totalled 1,000 pieces of logs for the sum of $400,000-00.

Mr Watt claimed the Office of the Commissioner of Forests was contacted and advice sought about the proposed operations at the said land. He claimed after receiving what he believed to be a positive response from the Office of the Commissioner of Forests, he proceeded with the operations. He claimed in fact it was closely supervised by an officer from the Office of the Commissioner of Forests.

Mr Watt also pointed out in his mitigation on behalf of the Defendant Companat only 419 pieces had been been exported for the sum of USD94,097-08. This came to about SBD396,681.63. After numerous expenses had been paid including Government Duty of SBD78,964-94, the amount now remaining stands at SBD108,693-47 as at 2^nd December 1999. Mr. Watt points out 286 pieces remain at the Defendant's Company bush yard whilst 280 pieces still lie in the bush.

Mr Watt asked the Court to take into account that there were other operators involved iilar operations at Mtat Mt. Austin but for some reason or another, it seems, his company had been singled out. He also lashes out at what he regards as undue delay in the prosecution of his case by those responsible, bearing in mind the offences were committed in January of 1999 and investigations, would have been expected to have been completed earlier. He felt aggrieved justice delayed had meant justice denied in his case. The learned Director of Public Prosecutions had graciously conceded that the file in this matter was forwarded to him only in the last week.

This case highlights certain extent in my respectful view, a wrongly held belief by some in the log logging circles, whether deliberate or not I cannot say, that a logging operator may remove logs after purchase from the right land owners. This belief stems from the assumption that a landowner is entitled to do what he wants with logs in his land. Unfortunately, the Forest Resources and Timber Utilisation Act spells out in clear terms that certain procedures had to be complied with before a licence can be issued for the commercial removal of logs felled in any customary land. There is no short-cut cut to such matters and if the Office of the Commissioner of Forests can be consistent and clear about this matter, would perhaps save those seeking to short-cut the system to be law abiding. This issue had already been canvassed to some extent and highlighted in the case Forest & Another v. Mahlon Ali & Attorney-General, Civil Case No. 1/94, judgment delivered on 12 April 1994. The then Acting Commissioner of Forests at the said time should have been aware of this judgment as he was actually one of the parties to that case and therefore should have made the position very clear to this Defendant Company. It is unfortunate the Office of the Commissioner of Forests has not been seen to be vigilant, clear and certain about its responsibilities and duties in the administration of the Act. A number of cases have come before this Court in which this uncertainty and lack of vigilance in the due discharge of their duties has become quite obvious.

class="MsoNoMsoNormal" style="margin-top: 0; margin-bottom: 0"> When queries were made, in the initial stages of the operations, I fail to see how the Office of the Commissioner of Forests should have not been in a position to fully and clearly explain to the Defendant Company what the position was regarding their queries. If there was confusion or uncertainty about the position, the Office of the Attorney-General should have been contacted to give advice about this matter. Had the said Office discharged its simple duties, the Defendant Company may have averted the commission of the offences it now is charged with under the said Act. As the facts stand before this Court, regrettably and unfortunately, it can be said the Office of the Commissioner of Forests at the said time, could be seen to have aided the commission of the offences by giving approval to the operations or to have condoned the offences, by not taking appropriate action earlier enough, until the matter had well proceeded to export stage, before there was intervention. It would seem also that intervention was only made after a new Commissioner of Forests had been appointed to replace the then Acting Commissioner of Forests.

The Defendant Companythe same would have been deemed to have been aware of that judgment and the ram ramifications flowing from it, as well as the law in any event.

I point out however, that whatever the actions of the Acting Commissioner of Forests or any of his Officers at the said time, does not alter the fact that according to section 4(1) of the Forest Resources and Timber Utilisation Act it is an offence to remove timber from any customary land for commercial use without a valid licence duly given under section 5 of the said Act. I do take into account the submissions of Mr Watt that perhaps the matter was compounded by the positive response and conduct received from the Office of the Commissioner of Forests with regards to the proposed operations of the Defendant Company.

I take into account the fact that this is the first time Company has been charged under this Act and that thet the Management of the Company had co-operated with investigations. I also give due credit for a guilty plea.

class="MsoNoMsoNormal" style="margin-top: 0; margin-bottom: 0"> I take into account this Company had expended substantial sums of money at it erroneously tho thought was a lawful operation. There is no evidence before me to suggest that the logs purchased were not from the right landowners and that their ownership at this stage may even have been the subject of any land dispute between competing landowners. For all purposes therefore due consideration had been paid for those logs. The only problem which the Company faces is that of a valid licence to have them removed for purposes of sale. I also take into the delay complained of by Mr Watt which has on the facts not been satisfactorily explained to this Court.

Sect4 gives this Court power to have inter alia, "...... all forest produce ......&q..." liable to be forfeited by order of the Court. I considered carefully the submissions raised in mitigation by Mr Watt, and after balancing all relevant factors surrounding the commission of this offence, whereas it would have been normal for this Court to order forfeiture of the forest produce after a conviction has been entered in other cases, it is my respectful and considered view that a forfeiture order would not be appropriate in the peculiar circumstances of this case. Rather, instead of allowing those 286 logs to lie in the bush yard and rot away, the Defendant Company should be permitted to have them removed forthwith, for purposes of export or sale, on condition that export duty or whatever taxes or charges are due, is duly paid to Government.

For avoidance of doubt, the remaining 280 pieces of logs still remaining in the bush ma be removed by the Dehe Defendant Company without due licence obtained pursuant to section 5 of the Forest Resources and Timber Utilisation Act.

I also order that the seized logs trust account be released to the Defendant Company less the fine to be imposed.

As regarding the maximum fine prescribed by the said Act, it is my respectful the said maximum is now ow grossly inadequate. Appropriate authorities should now consider an increase.

class="MsoNoMsoNormal" style="margin-top: 0; margin-bottom: 0"> The Defendompany is convicted under section 4(1)(d) of the Forest Resources and Timber Ut Utilisation Act and fined $3,000-00 to be paid immediately.

THE COURT