R v Anita [2018] SBHC 79; HCSI-CC 372 of 2017 (6 September 2018)

HIGH COURT OF SOLOMON ISLANDS

Case name:	R v Anita
Citation:
Date of decision:	6 September 2018
Parties:	Regina v Baddley Anita
Date of hearing:	4 September 2018
Court file number(s):	372 of 2017
Jurisdiction:	Criminal
Place of delivery:
Judge(s):	Mania PJ
On appeal from:
Order:	The Fisheries (Prohibition of Export of Dolphin ) Regulation 2013 is null and void The charge is dismissed and the Defendant is acquitted.
Representation:	Ms. Ramosaea S for the Crown Ms. Maelyn Bird for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Regulation 3 of the Fisheries 2013(Legal Notice No. 89) Fisheries Act 1998, Fisheries (Amendment) Act 2009, Fisheries Management Act 2015, General Provisions Act (chap 85)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CRIMINAL JURISDICTION

Criminal Case No.

REGINA

v

BADDLEY ANITA

Date of Hearing; 4 September 2018
Date of Judgment; 6 September 2018

Ms. Ramosaea S for the Crown
Ms. Maelyn Bird for the Defendant

RULING

Introduction

The information by the Director of Public Prosecution is the Defendant charged with one count of Unlawful capture or holding of dolphins in captivity contrary to Regulation 3 of the Fisheries (Prohibition of Export of Dolphin) Regulation 2013 (Legal Notice No. 89) (Regulation 2013)

And the Particulars of the Offence is that Baddley Anita of Ona Hill, North Malaita at Bungana Island in the Central Province on an date between 1st October 2016 to 30th November 2016 did operate a dolphin holding facility that held in captivity live dolphins for the purpose of exposing for sale or export of dolphins.

This Regulation 2013 which the defendant is charged with was made by the Minister of Fisheries in exercise of his powers conferred upon him by section 59 of the Fisheries Act 1998. And it was published as Supplement to the Solomon Islands Gazette of Wednesday 4th December 2013 – SI No. 52.

There is no hard copy of Regulation 2013 in my chamber and so I accessed the PacLII website and obtained a soft copy of that Regulation. I also obtained from the website the copies of Fisheries Act 1998, Fisheries (Amendment) Act 2009 (which made amendments to penalties on various sections under the 1998 Act) and Fisheries (Amendment) Act 2009 Thanks to the PacLII website to enable us and other Pacific Islands countries to access soft copies of our laws in short times.

To ensure the copies in my possession or if I am looking at the right or same Regulation 2013, I directed the counsel for the Crown to provide the copy of Regulation 2013, the Fisheries Act 1998 and any amendment of the Act for the court’s inspection. Counsel for the Crown provided a copy of the Regulation 2013 that confirmed or the same regulation accessed from PacLII website. However the Crown was not able to provide the copies of the Fisheries Act 1998 and any amendments of the 1998 Act or other related legislations.

From the copies on Fisheries laws or provisions in my possession, it seems that there is an ambiguity or vagueness in this Regulation 2013 at Clause 3 with the penalty and such is an issue on point of law.

The Minister has power to make regulations for carrying into effect the provisions of the Act under section 59 of the Fisheries Act 1998 and the penalty for the contravention of any regulation as stated in made sub-section (1) (XXV)of the Act, the fines may not exceed a fine of two hundred thousand dollars.

And in the Regulation 2013 at Clause 3, a prohibition was enacted and of breach provision a fine of not exceeding SBD$500,000 or to imprisonment for a term not exceeding 24 months or both.

The Fisheries Act 1998 has been repealed by the Fisheries Management Act 2015 and was assented on 8th May 2015, Extraordinary Gazette Legal Notice No. 2 and Wednesday 11th January 2017 was the commencement.

Ambiguity of the Regulation 2013

This case has been listed for two week’s trail and this ambiguity in the regulation or point of law needs to be firstly sorted out or determined by the court. Otherwise the court is spending a lot of effort, time and resources in the case which has no basis in law.

On that, I directed the counsels for the Crown and Defendant to make submission if section 59 of the Fisheries Act 1998, and in particular subsection (1) (XXV) of the section if it has been amended or the Minister may make regulation under section 59 of the Act for the penalties as done in Regulation 2013.

The Regulation 2013 which the Crown alleged the Defendant had committed offence was made by the Minister in pursuance of the powers under section 59 of the Fisheries Act 1998.

Crown’s Submissions

Counsel Ramosaea for the Crown in her submission provided the brief history of the Fisheries Laws from 1972 to 2017 and said that the penalties under the provision Fisheries Act 1998 was amended in the Fisheries Amendment Act 2009. And while there is no amendment to section 59 of the Act in the 2009 amendments, this Regulation 2013 on prohibition of dolphins is valid under the Fisheries Management Act 2015 which was repealed the Fisheries Act 1998.

In particular, counsel made reference to the repeal and saving provision in section 130 (2) (i) and (ii) of the Fisheries Management Act which states:

(a) “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.
(i) new regulations or orders made under this Act; and
(ii) the new regulations or orders repeal the regulations or orders made under the repealed Act,”

By the repeal and saving provision under the Fisheries Management Act, Counsel argued that the Regulation 2013 was validly made under the 1998 Act and consequent to the promulgation of 2017 Regulation on 11th January 2017 which expressly stated to repeal the Regulation 2013. Crown submitted it is not a valid regulation as from 11th January 2017. The offence previously provided for under the said regulation is now subsumed in Regulation 20(1) (a – e) 2017 Fisheries Regulations.

And counsel for Crown submitted that at the time of alleged offending by the Defendant, the Regulation 2013 was a valid regulation save by section 130 of the Management Act 2015.

Defendant’s submission

Counsel Bird for the Defendant submitted that the alleged offending happened between 1st October 2016 to 30th November 2016 and the Defendant is charged with one count of unlawful capture or holding of dolphins in captivity contrary to regulation/clause 3 of the Regulation 2013.

Counsel said that the principal Act is Fisheries Act 1998 and section 59 (1) (XXV) of the Act had placed the maximum fine of the offending at $200,000.00. The 1998 Act was amended in 23rd March 2009 however there was no amendment to section 59 and the only Act that came to into force that repealed the 1998 Act was the Fisheries Management Act 2015. And the First Schedule, Part A, it provide for the appropriate fine for such offending was $500,000.00.

Counsel for the defence stated that beside the preamble of the 2015 Act to repeal the 1998 Act, there is no mention to any further subsequent amendment to the principal Act 1998.

On that, it is submitted that the Regulation 2013 is void because it had no basis in the principal Act for such an increase in fines. It had no basis in law, the charge to be declared void and the Defendant be acquitted of that charge.

The Issue

The issues are on the power of Minister or he had erred in law to regulate the penalty in Clause 3 of the Regulation 2013 (Legal Notice No. 89) for penalty to liable on conviction to a fine of not exceeding SBD$500,000 or to imprisonment for a term not exceeding 24 months or both. And if the error is rectify by the Fisheries Management Act 2015 when it included in Regulation 20(1) (a – e) 2017 Fisheries Regulations.

The Law

The Fisheries Act 1998 gives power for the Minister responsible for Fisheries to regulate provisions for the effect of provisions under section 59 of the Fisheries Act. And section 59 of the Act provides:

“59. (1) The Minister may make regulations as may seem to him expedient for carrying into effect the provisions of this Act, and, without prejudice to the generality of the forgoing, such regulations may provide for all or any of the following purposes -

(Xxv) Penalties for the contravention of any regulation made under this section, which may not exceed a fine of two hundred thousand dollars;

The Fisheries (Amendment) Act 2009 (No. 6 of 2009) as appeared in the schedule of the Act amended penalties in the Fisheries Act but did not make any amendment to section 59 of the Act or any of penalties the Minister may regulate in exercise of his powers under the section.

Clause 3 of the Regulation 2013 provide in the following terms:

“Prohibition on ban on Dolphins
3. Any person who catches for sale, catches and detains in captivity for sale, expose for sale, export any live dolphin or operates a dolphin holding facility for the purpose of exposing for sale or export commits an offence and is liable on conviction to a fine of not exceeding SBD$500,000 or to imprisonment for a term not exceeding 24 months or both.”

The argument by the Counsel for the Crown that the Regulation 2013 made by the minister had been rectified by the Fisheries Management Act 2015 do not have merit or substances. It is so because the minister made the 2013 regulation under his powers in section 59 of the Fisheries Act 1998 which only provide for him to regulate any penalty or fine not exceeding $200,000.00

The Fisheries Management Act 2015 repeal the principal Act 1998 Act however it does not refer to any further subsequent amendment to the 1998.

Generally by section 24 (1) (d) of the Interpretation and General Provisions Act (Cap 85) which state that the repeal of an Act does not affect any penalty or punishment incurred in respect of any offence against the Act. It may be so or unless expressed by the repealing Act however for this 2013 Regulation, the Minister had acted beyond is powers or erred in law at the first occasion to regulate the penalty of $500,000.00 in the Regulation 2013 or beyond his powers as the Fisheries Act 1998 which authorized such or to regulate any penalty or fine not exceeding $200,000.00.

Regulation are creatures of statutes and they must comply with the principal statute, for this case is the Fisheries Act 1998 by section 59 (1) (XXV) it had placed the maximum fine of the offending at $200,000.00.

The 2017 Regulation which expressly state to repeal the Fisheries (Prohibition of Export of Dolphin) Regulation 2013 [Legal No. 89] regulation/clause 3 cannot rectify that error with penalty as it is not conformed to the requirement of Fisheries Act 1998.

This was a gross mistake or careless on part of the authorities and officers who had advised the minister of Fisheries on this Regulation 2013.

The Regulation 2013 that provide for liable or fine $500,000.00 and imprisonment has no legal basis and therefore it is null and void and the charge against the Defendant be dismissed at the stage.

ORDER

The Fisheries (Prohibition of Export of Dolphin) Regulation 2013 is null and void,

The charge is dismissed and the Defendant is acquitted.

THE COURT
...........................
Justice Leonard R Maina
Puisne Judge