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Chen Zhen Co Ltd v Iomea [2018] SBHC 61; HCSI-CC 514 of 2017 (27 April 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:
Chen Zhen Co Ltd v Iomea


Citation:


Date of decision:
27 April 2018


Parties:
Chen Zhen Company Limited , Zhang Tongzi and Chen Zhen, Solomon FVC New Process import & Export Limited, CI Frank Sheng Song, Oceanic International Limited Xu Qiang v Ricky Iomea Magistrate, Commissioner of police.


Date of hearing:
19 March 2018


Court file number(s):
514 of 2017


Jurisdiction:
Civil


Place of delivery:



Judge(s):
Brown J


On appeal from:


Order:
court is satisfied S. 13A falls to be considered as one made under the 1998 Act and continued in force in the absence of specific repeal by S. 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.


Representation:
J. Sullivan QC with E.Soma for the Claimant
The Solicitor General for the Defendant


Catchwords:



Words and phrases:


Legislation cited:
Civil Procedure Rules 2008, Rule 12.11
Fisheries Management Act 2015, Fisheries Act 1972, Fisheries 1998, General Provision Act, Repeal Act, Fisheries (Amendment) Regulations 2009


Cases cited:
Tausinga v Attorney General [2007] SBCA 9
Zalao v Attorney General (supra
Jordan CJ in Beaumont v Yeomans
Mathieson v Burton
Parks Holdings Pty Ltd v Chief Executive Officer of Customs

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION
Civil Case No.514 of 2017


CHEN ZHEN COMPANY LIMITED
Claimant


RICKY IOMEA MAGISTRATE
Defendant


Date of Hearing: 19 March 2018
Date of Judgment: 27 April 2018


J. Sullivan QC with E. Soma for the claimants
The Solicitor-General for the defendants

Preliminary questions of law and fact in relation to the legality of particular search warrants issued in relation to claimed offences under Fisheries Regulations relating to the harvesting of Beche-de-mer.

Brown J:

The court has been given a statement of agreed facts for purposes of preliminary issues. Solomon Islands Courts (Civil Procedure) Rules 2008, Rule 12.11 provides for a court to hear argument on such preliminary issues of fact or law, which if resolved, may shorten the proceedings without trial or substantially reduce the cost of the proceeding.

The Statement follows. The use of [ ] refers to the document number in the schedule of documents attached to the statement. Such statement has been approved by counsel for the claimants and the defendants.

  1. “On 18 October 2017, the First Defendant issued three search warrants directed to all police to search the business and residential premises of the Second, Fourth and Sixth Claimants and to seize any sea cucumbers (beche de mer) found therein.[1] [2] [3] (“the Search Warrants”)
  2. The Search Warrants were each issued on the complaint of Sergeant Raymond Togapada, Criminal Investigation Department, Royal Solomon Islands Police, and on the basis of the affidavit of the said police officer sworn on 18 October 2017. [4] (the Affidavit”).
  3. The Affidavit was further supported by an “information to Ground Search Warrant” sworn by Sergeant Togapada on 18 October 2017. [5] (“the information)
  4. The Information, at paragraphs 1-10, made a number of allegation of fact concerning the illegal harvesting of between 200 and 700 bags of sea cucumbers (beche de mer) said to have been harvested by “locals” in Ontong Java at the instigation of the Second, Fourth and Sixth Claimants or their agents during the “banned period’, which period was not specified.
  5. The information, at paragraph 11, then alleged that the alleged “illegal harvesting of sea cucumbers during the ban period” constituted a contravention of s.13A of the Fisheries Regulations 2009.
  6. No contravention of any other law was alleged in any of the Search Warrants, the Affidavit or the Information.
  7. On 19 October 2017, officers of the Second Defendant executed the Search Warrants at the premises of the First and Second Claimants, the Third and Fourth claimants and the Fifth and Sixth Claimants respectively.
  8. In the course of such execution of the Search Warrants, the officers of the Second Defendant seized various bags of sea cucumbers (beche de mer) exceeding 300 bags in aggregate.
  9. By Order made on 31 October 2017. The High Court ordered that the seized sea cucumbers (beche de mer) be released to the respective Claimants, who would be entitled to process and prepare the same for export, but who would not be permitted to export the same save by further order of the Court and any appropriate export authority.
  10. The seized sea cucumbers (beche de mer) have subsequently been processed and prepared for export by the respective Claimants. They have not been exported and remain in the possession of the respective Claimants.
  11. By Order made on 30 November 2017 (perfected 6 December2017), the Court has set the matter down for the determination of preliminary question of Law.

SCHEDULE OF DOCUMENTS

  1. Search Warrant for premises of Zhang Tongzi (Chang Zhang)/Chen Zhen (Second Claimants) dated 18 October 2017.
  2. Search Warrant for premises of Frank Sheng Song (Fourth Claimant) dated 18 October 2017.
  3. Search Warrant for premises of Xu Qiang (Sixth Claimant) dated 18 October 2017
  4. Affidavit for Warrant to Search Premises by Raymond Togapada, dated 18 October 2017.
  5. Information to Ground Search Warrant, dated 18 October 2017.”

The material question 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 S. 101 of the Code it follows such warrants shall be quashed and the return of property seized, ordered.

To address such question, preliminary questions of law were posed;

  1. “Whether the Fisheries Regulations 1972 as amended were repealed in their entirely by the Fisheries (Protection of Sea Cucumbers) Regulations 2006?” (As the Crown contends and the Claimants deny)
  2. 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).
  3. 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)
  4. Whether the Fisheries (Amendment) Regulations 2009 (including Regulation 13A therein) constituted a separate and independent regulation? (As the Crown contends and the Claimants deny)
  5. Whether the Fisheries Regulations 1972 as amended (including Regulation 13A were repealed by the Fisheries Management Regulations 2017? (As the Claimant contend and the Crown denies)
  6. Whether the Fisheries (Amendment) Regulations 2009 (including Regulation 13A) remain in force? (As the Crown contends and the Claimant deny)”

The court has been assisted by both counsel who have made well-reasoned submissions on the preliminary issues. The claimants, after referring the court to the Magistrates power to issue search warrants under S. 101 of the Criminal Procedure Code went on to say;

“3. Section 101 must be strictly complied with for search warrants issued pursuant to that section to be valid.[1] If its requirements are not met, then the warrant will be void.[2]
4. Section 101 can only be invoked if an offence known to law has been committed.[3]
5. It is not necessary that the statement of the offence suspected to have been committed be as precise as would be required in an indictment. Nevertheless, there must be reasonable suspicion that an offence known to law has been committed.[4]
6. The fact that warrant mentions that wrong statutory provision or failed to precisely identify the offence does not invalidate the warrant, but the facts stated must be sufficient to identify broadly the alleged offence.[5]”

The submission directs the courts attention to the Information sworn to support the Magistrates grant of the warrants, where by paragraph 11, the Information states;

“The illegal harvesting of sea cucumbers during the ban period clearly depicted that section 13(A) [sic] of the Fisheries Regulations 2009 was contravened by those responsible.”

There would appear to be no dispute the wording of the Information read with the warrants would leave no doubt in the minds of those concerned, of facts sufficient to identify broadly the alleged offence. For by Reg. 13A of the Fisheries (Amendment) Regulations, 2009 [into force on 8 May 2009];

“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.”

Whilst not explicitly included in the issues, the court is satisfied the Information and Warrant make plain what alleged offence the police were investigating.[6]

The claimants argue the regulation was an invalid regulation not in force at the time of the alleged activity and consequently, since S. 101 of the Code may only be invoked if an offence known to law has been committed, these particular search warrants were invalid.

The Solicitor-General has argued to the contrary. The Crown contends that the court must support its position. The Fisheries (Amendment) Regulations 2009 is still in force and Reg. 13A is still applicable [hence gives rise to the offence alleged in the warrants] “because it accords with the legal policy, objectives and principles enshrined in the Fisheries Management Act 2015.”

The claimant’s submissions addressing the legislative history of the Fisheries Act 1972 and subsidiary legislation with its footnotes have been included in these reasons for they are useful in following the regulatory changes to date, changes going to the particular questions of law. The conclusions drawn by the claimants in these submissions should not be deemed to be the courts findings, rather only are those forming part of the submissions.

“Legislative History

  1. The seminal legislation is the Fisheries Act 1972, initially the Fisheries Ordinance 1972(1972 Act). After minor amendments in 1977 and 1978, the 1972 Act was consolidated as at March1996 under the Revised Edition of Laws Act 1995 as the Fisheries Act (cap.38). It is not in dispute that beche de mer are “fish” as defined in s.2.
  2. ” Section 23 of the 1972 Act contained the Minister’s regulation making power. This included a power to regulate for the “conservation and protection of fish or any particular species of fish,”[7] for the “establishment of closed seasons”,[8] as well as various powers to regulate fish processing.[9]
  3. The Fisheries Regulations 1972, (LN76/1972) Regulation), were regulations made under s.23. There were concerned mostly with licensing issues and there were no specific regulations relating to beche de mer. Again after various amendments, the 1972 Regulations were also consolidated as at March 1996. By that time there were various regulations for the protection of various fish, including turtles, coconut crabs, oysters and clams, but none for the protection of beche de mer.
  4. The 1972 Act was repealed by the Fisheries Act 1998 (1998 Act). The regulations making power was contained in s.59. This now included the power to regulate for “fisheries management conservation measures,” including “closed season,”[10] as well as fish processing and storage.[11]
  5. However, s.61(2)(b) of the 1998 Act provided that all regulations and orders made under the repealed Act and then in force shall continue until such time new regulations or orders are made under the 1998 Act.
  6. It follows that the 1972 Regulations continued in force.
  7. The first regulations directed specifically to the protection of beche de mer were the Fisheries (Protection of Sea Cucumbers) Regulations 2006 (2006 Regulations) which came into force on 16 August 2006 and are expressed to have been made under s.59 of the 1998 Act. The effect of these regulations was to prohibit harvesting, buying, selling and exporting beche de mer, except for local consumption by indigenous persons or for scientific research. Penalties for breach were imposed.
  8. The Crown contends that the effect of the 2006 Regulations was to revoke the 1972 Regulations, either in toto or in so far as it applied to the harvesting and dealing in sea cucumbers. For the reasons set out below that is incorrect.
  9. The Fisheries (Protection of Sea Cucumbers) (revocation) Regulation 2007 (2007 Regulations) then revoked the 2006 Regulations.
  10. The fisheries (Amendment) Regulations 2009 (2009 Regulations) then came into force on 8 May 2009. These were stated to be made under s,59 of the 1998 Act, but went on to state that “ The Fisheries Regulations are amended by adding” the new Regulation 13A[12]
  11. Reg. 13A states-

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.

  1. Reg. 13A thus imposes an absolute ban on harvesting and exportation of beche de mer.
  2. The 2009 Regulations were amended later that year by the Fisheries (Amendment) Regulations by inserting reg.13A which provided in effect a 90 day open season for bech de mer from 26 August 2009 subject to one obtaining written authorization from the Director.
  3. In 2012 the Fisheries (Export of Beche-de mer) Regulations 2012 provided for confiscation and disposal of beche de mer harvested in breach of reg.13A.
  4. Reg.13A was suspended for 90 days expiring at the end of May 2013, thereby creating an open season during that period.[13]
  5. In 2014, the Fisheries (Beche-de-mer) (Amendment) Regulations 2014 (2014 Regulations), introduced the Solomon Island National Sea Cucumber Fishery Management Development Plan. The 2014 Regulations also suspended reg.13A for an open period between December 2014 and March 2015 and regulated what was to be done during that period.[14] That open period was extended to the end of May 2015 by the Fisheries (Beche-de-mer) (Amendment) Regulations 2015 (2015 Regulations).
  6. The 1998 Act was then repealed by the Fisheries Management Act 2015 (2015 Act). Extensive regulatory powers were given to the Minister under s.129, including in relation to management and control of fishing and processing of fish.[15]
  7. However, pursuant to s.130(2)(b) of the 2015 Act provides

130(2)(b) all regulations and orders made under, or continued by the repealed Act are subject to such modifications and adaptions as may be necessary for conformity under this Act and continued in force 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 made under this repealed Act.
  1. On 11 January 2017, the Fisheries Management Regulations 2017 (2017 Regulations) were published in the Gazette.
  2. The 2017 Regulations expressly repealed the 1972 Regulations.[16]
  3. The 2017 Regulations are silent in respect of beche-de-mer, save to the extent that beche-de-mer are “fish” and thus covered by various licensing provisions.

The court accepts the 2006 Regulations were the first to regulate the harvesting of beche-de-mer [per se].

The Crown argued they were new regulations in the sense that they introduced a specific regime for the harvesting of beche-de-mer aligned with the broader protective regime provided by the 1998 Act. The Crown argued the 2006 regulations revoked the 1972 regulations but went on to say the Fisheries (Protection of Sea Cucumbers) Regulations 2006 as extended by the Fisheries (Amendment) Regulations 2009 were not regulations that were issued under the 1972 Act nor did they amend the Fisheries Regulations 1972. They have modified or adapted the 1972 Regulations insofar as they were applicable to the harvesting of beche-de-mer, but they were clearly regulations issued under the 1998 Act because the 1972 Act (and its regulation making power) had been repealed.

The claimants argue the proper construction of the repeal and savings provision in

S. 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 licensing regime is substituted for it. If S. 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. For that, the claimants say, is the only rational outcome consistent with all basic principles of statutory construction.

“S. 61 (2)(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 adaptions 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.”

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. This acceptance accords with the reasoning of Gibbs J who addressed the question of what is or is not a repealing provision, after having referred to the earlier judgment of Jordan CJ in Beaumont v Yeomans ((1934) [1934] NSWStRp 48; 34 SR (NSW) 562 at 569) where the Chief Justice’s judgment made plain whether an Act has been repealed or amended was a matter of substance and not one of form only. Gibbs J in Mathieson v Burton[17] said;

“Whether or not the judgment of Jordan CJ requires qualification in other respects, it was correct in suggesting that the addition of words to a section is an amendment rather than a repeal. In my opinion, where a later statute provides for the addition of particular words to an earlier section, which otherwise remains unaffected, the earlier section is thereby amended but cannot be said to have been repealed.”

Since the reference, above relates to an Act, it may not be differentiated from delegated or subordinate legislation when it comes to a matter of construction. Goldberg J said in Parks Holdings Pty Ltd v Chief Executive Officer of Customs[18]; “an instrument of delegation is not legislation but, in principle, the manner in which it is construed is guided by the authorities regarding statutes. There is no reason to construe an instrument of delegation more strictly.”[19]

The Question 1 is answered in the negative.

Question 2- Not necessary to answer.

By parity of reasoning, the claimants say the 2009 Regulations, which added Reg. 13A, were a further amendment of the 1972 Regulations. And are to be cited as amendment regulations[20] and expressly state the “Fisheries Regulations are amended” by the addition of Reg. 13A.[21] (The “Fisheries Regulations” to be cited as such, was subsidiary legislation made pursuant to Chapter 38 of our Laws (Fisheries) under section 23).

It is here that the effect of the amending provision by extending the ambit of the Fisheries Regulations to include, under Reg. 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 S. 3(2)-“the objective of Fisheries management and development in Solomon Island shall be to ensure the long-term conservation and sustainable utilization of the fishery resources of Solomon Islands for the benefit of the people of Solomon Islands.”

Reg. 13A is clear in its intent and this court need not strain to find the regulation goes to purpose. The regulation is expressed to have been made reliant on the powers set out in S. 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 Reg. 13A is validly made under the Fisheries Act 1998 and independent of the earlier repealed Fisheries Act 1972. In these circumstances, there is no need to have regard to the Interpretation and General Provisions Act, (Cap 85) S. 68(1) (c) for the purpose of the regulation is clear and legitimately within power of the 1998 Act. [Section 68 (1) (c) does not apply in this instance for the claimants submission that S. 13A has been repealed is not accepted].

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.

When addressing question 4 the claimants say Reg. 13A, [the sole subject matter of the 2009 Regulations], cannot be a standalone provision, but must be an amendment to the existing more general Fisheries Regulations.

This specific regulation addressing a particular offence may amend the earlier general regulations still in effect, but power expressly conferred on the Minister under S. 59 of the Act and exercised in this instance by creation of penal offence accords with the purpose of the 1998 legislation. Whilst it may be read together with other Fisheries Regulations to which the claimants refer, as those 1972 regulations, S. 13A came into effect on the 7 May 2009 and may only be repealed by express provision or necessary implication from subsequent amending legislation or executive act. The court will address the amending legislation relied upon by the claimants later in these reasons.

The Crown makes the point the 2009 Regulations are expressed to have been made under the Fisheries Act 1998, where by section 59 (1)(xviii) the Minister is empowered to make regulation prohibiting or regulating the export of specified species of fish, other aquatic organisms and fish products. (It is conceded beche-de-mer fall within the definition of “fish” for the purposes of these proceedings).

Question 4 is answered in the affirmative.

The Fisheries Management Regulations 2017 came into effect on Wednesday 11 January 2017 by publication in the Gazette. By S. 70- Repeal and Savings, particular regulations are repealed.

The Crown argues these regulations did not repeal the 2009 Regulations, relying on the effect of the Fisheries Management Act 2015.[22]

The claimants contend “that the 2017 Regulations come within S. 130(2) (b) (i) and (ii) of the 2015 Act. This is because (i) the 2017 Regulations are a regulation made under the 2015 Act, and (ii), the 2017 Regulation expressly repeals the 1972 Regulations (it follows that the ellipsis mentioned above has no consequence in this case), which necessarily includes its amendments, including the 2009 Regulations and Reg. 13A.”

Section 130 of the 2015 Fisheries Act, as well as repealing the earlier 1998 Act, provided, (notwithstanding such repeal);

“S. 130(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-

The court has found S. 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 S. 70 repeal particular [earlier] regulations.

“S. 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 (LN89/2013); and the following legal notices:

Nowhere does this section 70, repeal LN 33/2009, which contains S. 13A. The court is satisfied S. 13A falls to be considered as one made under the 1998 Act and continued in force in the absence of specific repeal by S. 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 Legal Notice numbering in S. 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. S. 13A (LN 33/2009) is not one of them.

Question 5 is answered in the negative.

Question 6 is consequently answered in the affirmative.

The court will adjourn the proceeding for a short time to enable counsel to consider further proper directions.

__________________
BROWN J

[1] Tausinga v Attorney General [2007] SBCA 9
[2] Zalao v Attorney General (supra)
[3] Zalao v Attorney General [1997 SBCA 6, Solomon Islands National Provident Fund v Attorney General [1999]SBHC 25
[4] Zalao v Attorney General (supra)
[5] Rano v Commissioner of Police [2016] SBCA 19
[6] Rano’s case, above
[7] 1972 Act s.23(d)
[8] 1972 Act s.23(e)
[9] 1972 Act s.23 (m)(n)(o)(p)(q) and (r)
[10] 1998 Act s.59(1)(iv)
[11] 1998 Act s.59 (1)(xix)(xx)(xxi) and (xxiv)
[12] 2009 Regulations r.2
[13] Fisheries (Beche-de-mer) Amendment) Regulations 2013 rr.2 and 3
[14] 2014Regulations reg 3(1) and (2)
[15] 2015 Act s.59(1) a)
[16] 2017 Regulations reg.70(1) (a)
[17] (1971) 124 CLR 1
[18] (2004) FCA 820
[19] Statutory Interpretation in Australia; 8th ed. DC Pearce, RS Geddes-LexisNexis Butterworths, Australia 2014
[20] 2009 Regs., reg. 1
[21] 2009 Regs., reg. 2
[22] Part XVI Interpretative Principles (General); Bennion Statutory Interpretation (2nd Ed.), at 531

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