Rex v Nam [2005] TOSC 37; CR 111 2004 (2 June 2005)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NUKU'ALOFA

CR 111/04

BETWEEN:

REX
Prosecution

AND:

NAM AND OTHERS
Accused

BEFORE HON JUSTICE THOMAS

Counsel: Mr Pouono for Crown and Mr Niu for Accused

Date of Trial: 16 May, 2005

Submissions in Writing

Date of Judgment: 2 June, 2005

JUDGMENT

The accused Kim Kil Nam, James Cho and G and J Fisheries Company Limited are each charged with 3 offences pursuant to the Fisheries Act 1989. These are Fishing without a Local Fishing Vessel Licence contrary to Section 5(1) and (5); Undertaking Marine Scientific Research without Authorisation contrary to Section 14(4)(a); and Operating a Fish Processing Establishment without a Licence contrary to Section 24(2). The penalties range from a $500.00 fine to a fine of $100,000.00 together with forfeiture of the vessel and fishing equipment.

There is no real dispute about the basic facts in respect to these alleged offences. The vessel Toko III, which is a local Tongan fishing vessel, was apprehended by a patrol boat operated by the Kingdom of Tonga fishing in the North Minerva reef in early February 2004. That vessel did not have a local Fishing licence nor did it have an authority to undertake Marine and scientific research. In addition it was plainly carrying out fish processing in terms of the definition in the statute. The Crown are able to rely on four certificates issued pursuant to sections 51 of the Fisheries Act which have not been challenged and therefore remain conclusive proof of their contents. These include elements of the offences but in particular that the company and vessel had no authority or license and that it was boarded in position 23° 39.48 minutes South and 178o 54.51 minutes West. That position is clearly within the reef. The company operates the vessel, Mr Nam is the master of the vessel and Mr Cho is the managing director of the company.

In the circumstances it was agreed that the Court would have a hearing on the mixed question of fact and law which requires the Crown to prove beyond reasonable doubt the true position of the island of Teleki Tokelau in order to establish the definitive scope and limitation of the 12 mile fishing limit. Mr Niu reserved his position in respect to the effect of the 1972 Proclamation upon which the Crown relies to support its contention that the fishing vessel was fishing within the territorial waters of Tonga.

At the hearing on the 16th of May the Crown called four witnesses. Mr Francis Latu is a surveyor employed by the Ministry of Lands Survey and Natural Resources. He produced a copy of the 1981 Australian Naval survey as Exhibit 1. This established the coordinates of the island at 23o 39 minutes 16.75 seconds South and at 178o 58 minutes 20.22 seconds West. After a request from the Court he produced the original hard covered volume held in the office of the Ministry and from which the copy was extracted. His evidence was that the records were available for inspection by anybody who wished to clarify the true coordinates of various points within any portion of Tongan territorial waters.

Miss 'Ana Tuholo is part of the monitoring and surveillance section of the Ministry of Fisheries. She produced an internal memorandum which indicated an electronic monitoring of the position of the vessel which eventually anchored at 23o 39.28 minutes South and 178o 54.32 minutes West. This on the seventh of February 2004.

‘Ofa Fakahau is also employed by the Ministry of Fisheries. He was with the patrol vessel which apprehended the Toko III. He confirmed the vessel did not have a fishing licence and that it was fishing within the Minerva reef. He produced a photograph of the GPS plotted position of the vessel which he confirmed as accurate with the master of the vessel on the day. He also agreed that he did not know the coordinates of the island itself and that all he saw was reef and no island. He was asked about public notification of the coordinates of the island but his response was quite clear that in his view after the Royal Proclamation in 1972 it was public knowledge that this reef area was Tongan.

'Ulunga Fa'anunu is sometimes the acting Secretary for the Ministry of Fisheries. He confirmed that the waters within and around the Minerva reef are part of Tonga by virtue of the Royal Proclamation of 1972. Any person wishing to fish in those waters requires licences and authorities from the Ministry of Fisheries and that includes local Fishing vessels. He was cross-examined about public knowledge of the coordinates of the island. In addition it was put to him that the Minister himself had granted permission to the Company for the vessel to go to the reef but he had no knowledge of that. His evidence was that when he was contacted by the manager of the company the manager was told that the company needed a licence first before going to fish at the reef.

This was the evidence called by the Crown. On the strength of that evidence I am satisfied beyond reasonable doubt that the vessel Toko III was fishing within 12 miles of the coordinates of the artificial island of Teleki Tokelau.

On that basis Mr Niu sought time to file written submissions in support of his contention that there was no case to answer. These submissions were filed and served in a timely fashion and the Crown responded also in a timely fashion.

Mr Niu raised an issue in respect to the proof of ownership. I will defer that issue for further oral argument if necessary although I do note that Certificate No 1 of 2004 of the Minister refers to the company being the owner and operator of the fishing vessel.

The submission is that the Crown has not proved that the North Minerva reef where the Toko III was fishing is in fact included within the "fisheries waters" of the Kingdom of Tonga. He acknowledges that the coordinates of the island of Teleki Tokelau were established by the evidence. He then referred to the 1972 Proclamation which purported to include the reef as part of the Kingdom and to include the waters within 12 miles of the artificial island. He referred me to the relevant authority which is the decision of Ward CJ on the 9th of December 2003 in R v Kim [2003] TOSC 55, CR 348/03. That prosecution was dismissed because of the failure of the Crown to establish the coordinates of the island and given the evidence that the island itself was no longer physically prominent at high tide. Nonetheless the court indicated that the Proclamation still had effect even though the “island had been destroyed by the forces of nature”.

Mr Niu submitted that that interpretation was wrong. He submits that the wording of the proclamation itself is specific to the islands and if there is no island existing then there is no point from which the 12 mile radius can be measured. The proclamation cannot be interpreted to mean a set of coordinates may be substituted for the islands. If that were the case then there should have been a further Gazette notice. He also noted the ratification of the United Nations convention which provides that an artificial island is not entitled to territorial waters. Also that it would be a violation of the principles of the rule of law that the accused could be convicted of offences based on the existence of an island which was not in fact in existence at the time of the alleged offences. The latter point does not seem to me to be relevant in a situation of an absolute liability offence.

Mr Pouono for the Crown submitted that I should follow the interpretation of Chief Justice Ward in the Kim decision. On the basis that geographic coordinates have now been established the Court was entitled to the view that there is a valid point from which to measure the extent of the fisheries waters. In other words as the Chief Justice said “the Kingdom's claim in that Proclamation still has effect”. The rationale for that view appears to be that that was the intention and purpose of the Proclamation in 1972 and the mere disappearance of the islands should not have any legal effect on that intention and purpose.

So far as the United Nations Convention issue is concerned the Crown submits that it does not apply in this case because the provision was adopted after the Fisheries Act 1989 was enacted. I accept that there appears to have been no effort to have included the provision in respect to any prosecutions under that Act. I accept the Crown position.

I have no doubt that the intent and purpose of the 1972 Proclamation was to ensure that at international law the reefs known as North Minerva reef and South Minerva reef were part of the fisheries waters of the Kingdom of Tonga. That factual and legal status has certainly been accepted in the Courts in Tonga. The Proclamation certainly is specific in its reference to the islands created at that time. Presumably the coordinates were known at that time but the evidence called was the result of a 1981 survey by the Royal Australian Navy. These are absolute liability offences and normally a statute would be interpreted strictly on that basis. However what we are dealing with is the interpretation of the Proclamation. Should the intention of the Proclamation be defeated merely because the islands no longer apparently exist when the coordinates are known and can be established as can the extent of the 12 mile fishing limit. I do note that there has been a special management area order gazetted on the 29th of October 2004 which does declare the coordinate points for each of the islands and reefs. Any prosecution under the new Act would therefore not have the same difficulty.

Any island artificial or otherwise has a known geographical point which can be established by evidence. While there is some attraction to the submissions for the accused nonetheless it is not sufficient reason to disagree with the opinion of Chief Justice Ward in the Kim decision.

In these circumstances therefore I am satisfied beyond reasonable doubt that the Toko III was fishing within the fisheries waters of Tonga in February 2004 when it was boarded at North Minerva reef.

As previously indicated this determination should really have disposed of all three prosecutions but Mr Niu has raised the issue of ownership in respect to the accused James Cho. On that basis the file will be adjourned for call at 9 am on Tuesday the 7th of June 2005.

Ian Thomas
JUDGE

NUKU'ALOFA: 2nd June 2005