Rex v Kim [2003] TOSC 51; CR 348 & 349 2003 (9 December 2003)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY

NO. CR.348-9/2003

BETWEEN:

REX
Prosecution

AND:

1. DAUG BOK KIM
2. VAILELE TAUKITOKU
Accused

BEFORE THE HON CHIEF JUSTICE WARD

Counsel: Mr Kefu for prosecution
Mr Tu’utafaiva for both accused

Date of Hearing: 1 and 2 December 2003
Date of Judgment: 9 December 2003

JUDGMENT

The accused are each charged with one offence of Fishing without a Foreign Fishing Vessel Licence contrary to section 11(1) of the Fisheries Act 1989. The charges relate to a vessel, the Sandra 1 Avala ‘oe Tau. Daug Bok Kim is charged with being the owner of the vessel and allowing it to be used for fishing and Vailele Taukitoku is charged with using it for fishing.

The prosecution case is that the Navy patrol boat, Voea Savea, was alerted to the possibility that the Sandra 1 was fishing on the Minerva Reefs without a licence. The patrol boat left Nuku’alofa on 13 May 2003 and, the next day, located the vessel inside South Minerva Reef. When the vessels had closed to about 20 metres, a boarding party was sent across.

They found 5 men on board the fishing vessel and the officer leading the boarding party, Lt Lokotui, introduced himself to the skipper, the accused Mr Taukitoku. The two men went to the bridge and fixed and agreed the vessel’s position by GPS. It was marked on a chart and was clearly within the eastern section of the Reef due east of the passage at Herald Bight.

The accused was asked for his licence and told the officer that he did not have one but that the owner of the vessel had told him it had all been arranged by him and was in order. The naval officer told the court there was no logbook but there was a diary in which information had been recorded. It has not been produced but it would appear, effectively, to be the ship’s log. The court was told it showed that, when the vessel left Nuku’alofa it had gone to Savusavu in Fiji and, from there, directly to the Minervas where it fished the North Reef first.

At the time of boarding, there was a considerable quantity of bêche de mer being processed and dried on racks on the after deck and a number, already processed, stored in two domestic chest freezers on deck. There were various species of bêche de mer all of which the Fisheries Officer in the boarding party could identify as occurring in the Minervas but none of which, to the best of his knowledge, was exclusive to that area.

The vessel carried a total complement of 13, the balance of whom were out diving for more bêche de mer from a small boat. They returned within an hour of the boarding and their boat contained some hundreds more live bêche de mer. The Fisheries Officer directed that they should be put back in the sea and this was done.

The skipper was then told he would be escorted back to Nuku’alofa and the two vessels arrived at the naval base at Touliki the next day.

The prosecution called evidence to show that the vessel had been registered in the name of the Naufahu Fishing Company Ltd but, on 9 May 2003, the accused, Mr Kim, delivered a letter from that company confirming that ownership of the Sandra 1 had been transferred to a Mr Dong Bok Kim, which is accepted to be the accused. Attached to that letter on the Ministry file is a business card headed First Co Ltd with a Post Office box number and naming D B Kim as Director. The email address is kdbok. A Certificate of Registration under the Shipping Act, Cap 136, was issued the same day naming Mr Dong Bok Kim as the owner. It describes him as Korean nationality and the vessel is registered to have a crew of ten.

However, the acting Registrar of Shipping at the time, Sione Ikavuka, issued a Certificate of Deletion of the Sandra 1 from the register dated 12 May 2002. In evidence, he told the court it had been issued on 12 May 2003 and that is clearly the case because it states the owner was Mr Dong Bok Kim and I accept he did not acquire the vessel until May 2003.

The Certificate of Deletion names the owner as Mr Dong Bok Kim, First Company Ltd, Poutasi, Taufa’ahau Rd, and gives the same telephone and mobile numbers as were on the business card. The Section headed ‘Registry Observations’ states: "The abovementioned ship is permanently cancelled from the Tonga Registry of Ship due to: as per owner’s request."

When the police interviewed Mr Taukitoku, a copy of the conditions of his employment was produced. They are on First Co Ltd letterhead and are signed by Mr Kim for the employer under the appellation "Company: First Co Ltd. Name: Dong Bok Kim". In the body of the document each reference to the owner appears as, "... the owner (First Co. Ltd.)..."

The evidence of a Principal Fisheries Officer, Viliami Petelo, was that the Sandra 1 had never been given a fishing licence although he later said he was unsure whether one might have been issued in the past. However, the Naufahu Fishing Company had made two licence applications and both had been rejected. No licence had been issued to Kim and he had never applied for one.

The prosecution also called one of the crew from that voyage. He confirmed that the sea cucumbers on board the vessel had all been collected from the Minervas and there had been no fishing anywhere else. He was the assistant engineer on the trip but he had needed to start working on the vessel before this trip because half the engine was full of water.

The skipper was interviewed under caution by the police. He stated that he did not know if the owner was Sandra Naufahu or Mr Kim and he did not know it was a foreign vessel. He knew there was no fishing licence but had been told by another Korean man who works with Mr Kim that it was no problem.

Mr Kim was also interviewed and agreed he was the owner of the vessel but declined to answer further questions.

Neither accused gave evidence or called witnesses and Mr Tu’utafaiva has based the defence on five points.

The first is to challenge the form of the charge laid against Kim. The indictment charges him as follows:

Statement of Offence

Fishing Without a Foreign Fishing Vessel Licence, contrary to section 11(1) of the Fisheries Act 1989.

Particulars of Offence

Daug Bok Kim of Busan, South Korea, currently residing at Tofoa, on or about 5^th to 14th of May 2003 at Minerva Reef, while being the owner of the foreign fishing vessel Sandra-I-Avala ‘oe Tau you did allow that foreign fishing vessel to be used for fishing in the fisheries waters without a foreign fishing vessel licence.

Counsel submits that there is no such offence as allowing a vessel to be used. The only offence is being the owner and using the vessel.

Section 11(1) states as far as is relevant to this case, that no foreign fishing vessel shall be used for fishing or related activities in the fisheries waters without the appropriate licence under the Act.

Subsection 6 provides:

"(6) Where a foreign fishing vessel is used in contravention of subsection (1), the master, owner and charterer shall each be guilty of an offence ..."

It is clear from that subsection that the offence is not, as Mr Tu’utafaiva suggests, being the owner and using the vessel; it is being the owner of a vessel that is used. It is equally clear that the offence does not require the owner to allow the fishing to take place as is stated in the particulars of offence.

The particulars of offence would have been better worded by replacing the words ‘...while being ...’ with ‘...you were...’ and the words‘...you did allow that foreign fishing vessel to be...’ with ‘...which was...’ However, I am satisfied that the offence of being the owner of a vessel that is used in contravention of subsection (1) exists and the wording of the charge sufficiently stated it.

Section 54 (1) also provides that, for the purposes of any proceedings under this Act, the act or omission of any member of the crew of a fishing vessel while aboard that vessel or on a boat or aircraft from that vessel shall be deemed to be also that of the master, owner and charterer of the vessel.

The second point is that the prosecution has failed to prove that the Sandra 1 is a foreign fishing vessel.

By section 2 of the 1989 Act, a fishing vessel is any vessel used for fishing or related activities and a foreign fishing vessel is any fishing vessel other than a local fishing vessel. By the same section it is clear that fishing covers the taking of holothurians as was the case here.

A local fishing vessel is defined as any fishing vessel:

(a) Wholly owned by the government of Tonga or by any statutory body established by or under any law of Tonga; or

(b) Wholly owned by one or more natural persons who are Tongan subjects or permanent residents of Tonga; or

(c) Wholly owned by any company, society or other association of persons incorporated or established under the laws of Tonga, of which at least 51% of the voting shares are owned by Tongan subjects.

The prosecution evidence was that this vessel had been registered and then deregistered under the Shipping Act. That Act provides for the registration of Tongan ships (which include every Tongan cargo ship, fishing vessel or pleasure craft of 15 metres or more in length) and any Tongan ship required by the Act to be registered which is not registered under the Act shall not be recognised as a Tongan ship. The prosecution witnesses variously described her as 15 and 18 metres in length but either brings her within the requirement of registration.

It is clear from the evidence in this case that the Sandra 1 was a Tongan ship up to 12 May 2003 and, from that day, was not. However, that did not make her a foreign fishing vessel under the Fisheries Act. In this case the prosecution has the burden of proving that she was and, in order to do that in terms of the definition in that Act, has to prove she was not a local fishing vessel.

Mr Tu’utafaiva challenges the suggestion by the prosecution that Mr Kim is the owner. There is some evidence that it is the First Co Ltd, which owns the vessel. I am satisfied beyond reasonable doubt that the information on the Certificates of Registration and Deletion is evidence of the ownership and overrides the statements in the conditions of employment. Such evidence is rebuttable but I do not consider the latter document rebuts the evidence of those two certificates and the admission of the accused when he was interviewed by the police.

In those circumstances, the prosecution must prove that the vessel is not wholly owned by one or more persons who are Tongan subjects or permanent residents of Tonga. It is clear that Kim gave his nationality as Korean when the vessel was registered in his name and I am satisfied he is not a Tongan subject. The question therefore is whether the evidence has proved beyond reasonable doubt that he is not a permanent resident of Tonga.

Neither counsel has been able to point to any definition of a permanent resident of Tonga in any statute. The expression is used in the Immigration Regulations but is not defined there or in the principal act. Without a definition, the court is in a difficult position because the only certain proof whether or nor residence is permanent will occur when the person involved leaves Tonga or dies. It is a term requiring knowledge of the future for its determination. The term is used in many jurisdictions but, because of that difficulty, is defined usually by a statement of the length of time needed to show prima facie permanency or of some other matter which can be used to determine the status.

Mr Kefu points out that the accused told the police that he had been coming to Tonga for some years and had resided here since 1999. If that is correct it shows a change that may appear to go towards permanency but it is far from probative either way. However, the burden is on the prosecution to prove the elements of the case to the criminal standard. No evidence of the status of the accused has been called such as the type and length of permit under which he entered Tonga, whether he owns his home here, whether he has family here or abroad or any other such evidence upon which the court may decide.

If he is a permanent resident then the vessel Sandra 1, of which the evidence satisfies me he is the owner, is a local fishing vessel under the Act and, whilst it would, as such, have needed a local fishing vessel licence, it would not have needed a foreign fishing vessel licence. The proof of any particular fact normally lies on the person who wishes the court to believe in its existence. Here the prosecution case is that the Sandra 1 is a foreign fishing vessel. The definition in the Fisheries Act means it has to prove it is not a local fishing vessel. That does not shift the burden to the defence and I am not satisfied that has been proved to the standard required in a criminal case.

That disposes of the case against both accused but, as other points were raised which may be relevant in future prosecutions, I shall deal with them also.

The third point raised was that the prosecution has failed to prove that the Sandra 1 was engaged in fishing. Mr Tu’utafaiva suggests that section 11 creates two distinct offences based on the two distinct activities that are prohibited under that section, namely fishing and related activities. The definition of related activities in the Act includes ‘storing, processing or transporting fish taken from the fishery (sic) waters up to the time it is first landed’. Counsel is correct that the section creates two distinct offences and the prosecution has properly only charged one, namely, fishing.

The evidence has proved clearly that what the boarding party found on the Sandra 1 was processing of bêche de mer that had already been fished. The fishing seen by the prosecution witnesses was carried out by the small boat from which the divers operated and Mr Tu’utafavia suggests that is not evidence that the Sandra 1 was engaged in fishing. The evidence of the crew member answers that submission from an evidential point of view but, in any event, I cannot accept that the fact a small boat was used for the actual operation of fishing prevents the Sandra 1 from being included in the fishing. Whether the divers entered the sea directly from the vessel or from a boat which is, and was proved to be, part of the vessel’s equipment is immaterial.

I am satisfied beyond any doubt that the Sandra 1 was engaged in fishing for bêche de mer, the use of the small boat was part of that operation and the fish being processed was further evidence of fishing.

The fourth point was whether the prosecution has proved that this fishing took place within the fisheries waters. These are defined in section 2 as meaning:

"..The territorial waters of the Kingdom, internal waters, including lagoons, and such other waters over which the Kingdom of Tonga from time to time claims sovereign rights or jurisdiction with respect to the marine fishing resources by legislative enactment or by Royal Proclamation."

The terms ‘territorial waters’ and ‘internal waters’ are not further defined in the Fisheries Act. Previously, they were defined in the Fisheries Protection Act 1973 as two areas; one proclaimed by King Tupou I (frequently referred to as the Tonga rectangle) and one proclaimed by the present King on 15 June 1972 affirming and proclaiming Teleki Tonga and Teleki Tokelau part of the Kingdom. The 1973 Act was repealed by the 1989 Act and Mr Tu’utafaiva suggests the Proclamation has also gone with the repeal. As he points out, the Legislative Assembly did pass a Territorial Sea and Exclusive Economic Zone Act in 1978 but it has never been brought into effect.

Mr Kefu points out that the Proclamations still stand and, under the definition in the 1989 Act, effectively define the fisheries waters. I accept that is correct.

Mr Tu’utafaiva seeks to distinguish the 1972 proclamation because it is stated to be made by His Majesty in Council. He points out that the Government Act gives Privy Council the power to make ordinances when the Assembly is not sitting but they need to be confirmed by the Legislative Assembly once it convenes.

That power and the consequential requirement of confirmation do not apply to Royal Proclamations. I am satisfied that, whether stated to be in Privy Council or not, this was a Royal Proclamation and as such is clearly to be considered in determining the definition of fisheries waters in the Act.

That means the prosecution must prove that the South Minerva Reef where the fishing was seen to occur in this case was within the fisheries waters of the Kingdom. Mr Kefu relies on the 1972 Royal Proclamation:

PROCLAMATION

His Majesty King Tuafa’ahau IV in Council DOES HEREBY PROCLAIM: -

WHEREAS the Reefs known as North Minerva Reef and South Minerva Reef have long served as fishing grounds for the Tongan people and have long been regarded as belonging to the Kingdom of Tonga; AND WHEREAS the Kingdom of Tonga has now created on these Reefs islands known as Teleki Tonga and Teleki Tokelau; AND WHEREAS it is expedient that we should now confirm the rights of the Kingdom of Tonga to these islands; THEREFORE do we hereby AFFIRM and PROCLAIM that the islands of Teleki Tonga and Teleki Tokelau and all islands, rocks, reefs, foreshores and waters lying within a radius of twelve miles thereof are part of our Kingdom of Tonga.

Made at Nuku’alofa the 15^th day of June 1972.

TAUFA’AHAU TUPOU IV.

Mr Tu’utafaiva suggests that Proclamation does not satisfy the requirements of the definition because it fails to state it is made in respect of "the marine living resources’. I am satisfied it is clear that the purpose of the Proclamation was to preserve Tonga’s claim to the Reefs as traditional fishing areas and, as such, is made in respect of those resources.

He also suggests that the evidence did not prove where the divers in the small boat were fishing and they could, therefore, have been fishing outside the 12 mile limit. As the diving was part of the fishing operation being carried out from the Sandra 1 which was within Reef, that does not help him. Further the evidence was that the bêche de mer were creatures of shallow water. At the direction of the Fisheries Officer, they were returned to the sea by the Sandra 1 which is shown by the position marked on the chart to have been in a depth of approximately 12 fathoms. The Fisheries Officer pointed out that they would have returned to the shallower waters in order to survive.

The chart shows that the depths of the sea immediately outside the reefs is more than 200 fathoms, i.e. more than 1200 feet. I am satisfied the evidence has proved that these animals could not live at such depths nor could the divers have recovered them from such a depth. They must therefore have been gathered from the shallower waters of the reef areas.

Finally defence counsel points out that the prosecution has failed to prove the location or, indeed, the existence of the two islands Teleki Tonga and Teleki Tokelau. Without that, it is not possible to prove that the fishing was within a 12 mile radius.

The only evidence was that of Lt Lokotui who produced the 1972 Proclamation and said that he therefore regarded the Minervas as belonging to Tonga. When asked about Teleki Tonga and Teleki Tokelau in cross-examination, he stated that he understood the two islands are the two Minervas.

He also described the structure of the two Reefs. He said that North Minerva had no rocks showing above the surface at high tide. South Minerva had some which still showed on most high tides but which were all submerged at the highest astronomical tides.

The Proclamation refers to the North and South Minervas as having long been regarded as belonging to Tonga and then describes the creation of two artificial islands named Teleki Tonga and Teleki Tokelau on these Reefs. The remainder of the Proclamation is related to these two islands as the basis of the claim. The area contained within a radius of 12 miles is measured from those islands and not from the reefs, presumably because they were the only areas permanently above sea level and the problem, as Mr Tu’utafaiva points out, is the location of the centre of the 24 mile circle. It would seem obvious that one island was created on each of the reefs but there is no evidence of that. They are not marked on the chart although it has been corrected four times since the Proclamation. The dimensions of the reefs as shown on the chart are such that if one island was on each reef, each reef would be contained within its own 12 mile limit but the chart equally shows that, if both islands were created on one reef, the other would not fall within that limit.

If an island is an area of land permanently exposed from the sea, the evidence of Lt Lokotui is that there are no longer any islands on either reef. Clearly at the time of the Proclamation there were two such islands and this Court accepts that the Kingdom’s claim in that Proclamation still has effect even if they have, since 1972, been destroyed by the forces of nature. The circles proclaimed as part of the Kingdom of Tonga remain as part of the Kingdom and its fisheries waters but they can only be ascertained by knowing the position of the islands which form their centres.

The court has been given no evidence of the positions of those two islands. Lt Lokotui’s belief they were the same as the reefs does not prove their location. No doubt the exact bearings of those two islands have been recorded and it would have been a simple matter to prove but the court has not been given any such evidence. Neither does it appear the prosecution attempted to use the procedures provided in sections 51 - 53 of the Act. In those circumstances, the prosecution has failed to prove that the South Minerva Reef where this offence is alleged to have taken place is within a 12 mile radius of either Teleki Tonga or Teleki Tokelau.

The fifth point raised by the defence is that the offences under section 11 are not offences of absolute liability and so the court should consider the state of mind of the two accused. I can deal with this shortly.

There is a fundamental presumption that an essential ingredient of a criminal offence is that the perpetrator must be proved to have had a guilty mind (or mens rea). However, a statute may create an offence which does not require such an intention and imposes an absolute liability on any one who performs the act. Whether or not such an offence is one of absolute liability will depend on the wording of the statute.

I am satisfied that the terms of section 11 of the Fisheries Act imposes an absolute prohibition on the use of a foreign fishing vessel for fishing or related activities in the fisheries waters without the requisite licence. Subsection (6) of that section and section 54 (1) make it an offence of absolute liability in respect of the master, owner and, if there is one, the charterer. The prosecution does not have to prove mens rea in such cases.

As a result of the matters I have referred to as the second and fourth points, the prosecution has failed to prove beyond reasonable doubt that this was a foreign fishing vessel or that it was being used for fishing in the fisheries waters and both accused are acquitted.

NUKU’ALOFA: 9 December 2003

CHIEF JUSTICE