R v Moreno [2025] TOSC 81; CR-VAV 2-4 of 2025 (21 November 2025)

IN THE SUPREME COURT OF TONGA
CRIMINAL JURISDICTION
NEIAFU REGISTRY
CR-VAV 2-4 of 2025

REX
-v-
IVAN MORENO
YANG PENG CHAO
WANG ZHI NING

SENTENCING REMARKS

BEFORE: HON. JUSTICE TUPOU KC
Appearances: Mr. L Vaea for Prosecution
Mr S Vaipulu for the Defendants
Date: 21 November 2025

The proceedings

1. On 10 November 2025, all 3 Defendants pleaded guilty to one count of unlawful possessions of beche-de-mer contrary to section 19(7) of the Fisheries Management Act when they had in their possession a total of 13,574 beche-de-mer while a moratorium on their fishing and processing was in place. They also pleaded guilty to one count of unlawful possession of sea cucumbers contrary to section 19(7) of the Fisheries Management Act when they had in their possession a total of 14,754 sea cucumbers while a moratorium on their fishing was in place.
   

The offending

2. On or about 13 February 2025, about 11:00am, Holeva Tu’iono a fisheries officer from the fisheries department in Vava’u received information that sea cucumbers were present at a residence at Talau.
3. At the time, a moratorium was in place on the harvesting and processing of sea cucumbers. A team from the fisheries department left for Talau and the residence in question.
4. The relevant residence belonged to the First Defendant. The fisheries team could hear burning stoves, repetitive pouring of water and could smell boiled sea cucumbers, before they entered the residence. When they called out at the residence, the Second and Third Defendants came out.
5. The Third Defendant led them to the house where a bucket containing sea cucumber intestines was seen at the parking area of the residence.
6. When they were led into the house, bins loaded with sea cucumber could be seen on the ground floor. Shortly thereafter, the First Defendant arrived at the residence and locked the ground floor.
7. The First Defendant was asked whether he was aware the harvesting of sea cucumbers was illegal. He said they could charge him and requested the Chinese gentlemen be left alone. When the officers requested to check the house, the First Defendant refused. He was informed that the officers had power to search the house and he opened the ground floor.
8. The First Defendant was present as the officers searched the house and found the sea cucumbers and beche-de-mer on the ground floor and in one of the rooms on the first floor of the residence. The First Defendant admitted the sea cucumbers and beche-de-mer belonged to him.
9. The Police was called and Police Inspector Hala’ufia responded. The First Defendant told Inspector Halaúfia that he was resident at the house and admitted the sea cucumber and beche- de-mer were his. The First Defendant was read his rights and then informed he would be arrested for unlawful possession of sea cucumbers. He was searched and nothing of relevance was found on him.
10. Photographs were taken and exhibits from the residence were seized by police and the First Defendant was arrested and remanded in custody by Police. He was charged on 14 February 2025.
11. The Second and Third Defendants were arrested and charged on the 15 February 2025. All Defendants exercised their right to remain silent. They did not cooperate with the Police and did not admit to the offending.

Crown’s submissions

12. The Crown submits that the aggravating features of the offending were:
    1. The penalty should reflect the seriousness of the offence, a fine not exceeding $100,000.
    2. The substantial quantity of beche-der-mer and sea cucumbers (in total of 28,328) possessed by the Accused indicates that this was for a commercial purpose.
    100. The Accused demonstrated a complete disregard of the moratorium designed to safeguard sea cucumbers and its sustainability.
    4. The Accused did not cooperate with the Police.
13. The Crown submits the following as mitigating features;
    1. The Accused’s early guilty plea; and
    2. First time offenders

Crown’s Position on Sentencing

14. The Crown submitted the following relevant comparable sentence:
    1. R v Afu [2021] TOSC 145 – the accused were found with 782 sea cucumbers during a moratorium period for the fishing of sea cucumber. The number of sea cucumbers suggested a commercial purpose. The accused were fined $2,400 payable within 2 months or 3 months’ imprisonment.
15. The Crown proposed a starting point of $7,500 for count 1 and $8,000 for count 2 to be reduced to $4,750 in respect of count 1 and $5,250 in respect of count 2 for each defendant for their early guilty plea and being first time offenders.
16. The Crown suggested the fines be paid within 3 months or 6 months imprisonment in default.

Defendant’s submissions

17. This morning I heard oral submissions from Mr. Vaipulu. He submitted that the First Defendant was not aware of the moratorium and he conducted the fishing at the request of others.
18. It was suggested that the unemployment status of the Defendants should be considered and a fine of $3,000 was suggested for the First Defendant and $2,000 for the Second and Third Defendants.

Pre-sentencing report
Ivan Moreno

19. The Defendant is 35 and is a Tongan citizen. His parents separated when he was 3 years old and was raised by his grandparents. He is separated from his wife and child and resides with his 78-year-old mother in Talau.
20. He is of good health and attends the Constitutional Free Church of Tonga where he is said to be actively engaged in church and community activities including contributions to their church’s events. The Church Minister was positive about the Defendant and believed he was capable of making positive changes in the future.
21. The Defendant has been employed since 2020 at Sam’s Restaurant here in Neiafu earning $500- $1000 TOP per week. His employer said the Defendant owed him money.
22. The Defendant admitted the offending and the summary of facts. He told the probation officer the intention was to export the beche-de-mer and sea cucumber to China.
23. He is not a first time offender and has been convicted of minor offences in the Magistrates court here in Vavaú. Accordingly, the Probation Officer placed him on the high risk end of re-offending.

Wang Zhin Ning

24. The Defendant is 37 and a citizen of the People’s Republic of China. He was living in the house where the beche-de-mer and sea cucumber were seized. He told the probation officer that the house was provided by Sam.
25. He told the probation officer his employment arrangements with Sam was completed in China before he left for Tonga. He was to run the daily operations at a new restaurant. He moved to Tonga in February while Sam was still away in China, on vacation. Sam organized accommodations for him through the First Accused.
26. Completion of high school is the highest academic education achieved. He arrived in Tonga on 4^th February, 2025. He said that several days before the incident he was ill and was sleeping when the policed forcibly entered his room and took him to the police station for questioning.
27. He is unemployed as his passport has been forfeited, restricting him from applying for a work permit.
28. As for the offending, the Accused denies seeing anything in the other rooms in the house.
29. He was assessed to be at a low risk of reoffending due to lack of prior convictions his cooperation and expressed intentions to comply fully with court directions and return to China upon fulfilling all requirements of the Court.

Yang Peng Chao

30. The Defendant is 35 and is a citizen of the People’s Republic of China also residing in Talau, Vava’u. He too moved to Tonga for work arriving in August 2024. Sam, also arranged for him to travel to Tonga to be a chef at his restaurant here in Vavaú. Sam paid for all his expenses to travel to Tonga. He completed middle school as his highest academic achievement in China.
31. He was employed at Sam’s restaurant and was earning $55 per week up to an inspection conducted by the police and immigration at his restaurant to verify his staff held valid visas. After that Sam advised the Defendant to stop working.
32. The Defendant disputes the summary of facts and told the probation officer that he did not give the fisheries officers permission to enter the residence. He was at the residence that day to collect Sam’s vehicle that was used by the First Defendant and the Second Defendant was sleeping when the Fisheries officers arrived. He denied knowing the presence of the “items” inside the residence and was there to collect the said vehicle.
33. The probation officer opined that the Third Defendant showed no remorse and was afraid for being arrested for no reason. He expressed his desire to return to China once the current proceedings finished.
34. He was considered by the officer at low risk of re-offending based on his clear criminal background. He was said to be totally dependent on his employer and would take a loan from him to pay any fine ordered by the Court.

Starting Point

35. The maximum statutory penalty for both counts is a fine not exceeding $100,000.
36. The hefty penalty demonstrate how serious Parliament consider this type of offending. The courts are obligated to treat them as such.
37. Although both counts carry the same penalty, the second count with the higher count of sea cucumbers is the more serious and therefore the headcount.
38. The aggravating factors here in my view is the total disregard for the moratorium in place and any consequential impact of the removal of that many sea cucumbers on its population or re-population, a significant part of the very purpose of a moratorium.
39. I have had regard to Mr. Vaipulu’s submissions but ignorance of the law excuses no one. Furthermore, imposing the suggested fine would be inconsistent with Afu who was fined $2,400 for being in possession of 782 sea cucumbers. The beche-de-mer and sea cucumbers in this instant was 36 times over.
40. In considering the aggravating factors discussed, the maximum statutory penalty, the comparable authority provided, the principles of punishment, denunciation and deterrence, I set a starting point of a fine of $7,500 for count 1 and $8,000 for count 2.

Mitigation

41. For their early guilty pleas I deduct $875 from count 1 for each Defendant resulting in a fine of $5,625. For count 2 I deduct $2,000 resulting in a fine of $6,000.
42. The First Defendant has prior but minor convictions and has expressed regret for his actions. Meanwhile, no police clearance were provided for the Second and Third Defendants from China and I have to accept that.
43. However, the Second and Third Defendants have both denied any involvement and have not expressed any remorse despite pleading guilty to the charges. I accept that the fisheries officers heard a burning stove and repetitive pouring of water and could smell boiling sea cucumbers. They further saw the Second and Third Defendants come out of the house when they called out.
44. In that light, I reject the Second Defendant’s claim that he was in bed, ill and the Third Defendant’s claim that he was there for the sole purpose of collecting a vehicle. The burning of the stove and repetitive pouring of water was carried out by someone and they were the only two in the house at the time.
45. For the Second and Third Defendants clean record and the First Defendant’s remorse I am prepared to reduce the fines to those suggested by the Crown, that is a final fine of $4,750 for count 1 and $5,250 for count 2.

Result

46. The First Defendant, Ivan Moreno is convicted on:
    1. count 1 and fined $4,750; and
    2. count 2 and fined $5,250
47. The total fine of $10,000 is to be paid within 6 months or face 3 months imprisonment in default for each count, a total of 6 months imprisonment pursuant to s.26(1) of the Criminal Offences Act.
48. The Second Defendant, Yang Peng Chao is convicted on:
    1. count 1 and fined $4,750; and
    2. count 2 and fined $5,250.
49. The total fine of $10,000 is to be paid within 6 months or face 3 months imprisonment in default for each count, a total of 6 months imprisonment pursuant to s.26(1) of the Criminal Offences Act.
50. The Third Defendant, Wang Zhin Ning is convicted on:
    1. count 1 and fined $4,750; and
    2. count 2 and fined $5,250.
51. The total fine of $10,000 is to be paid within 6 months or face 3 months imprisonment in default for each count, a total of 6 months imprisonment pursuant to s.26(1) of the Criminal Offences Act.
52. All of the beche-de-mer and sea cucumbers subject of these proceedings are to be forfeited to the Crown forthwith pursuant to s.83(1) of the Fisheries Management Act.
    

P. Tupou KC
NEIAFU: 21 November, 2025 J U D G E