Public Prosecutor v Lin Shiow Her [1994] VULawRp 2; [1980-1994] Van LR 695 (24 January 1994)

[1980-1994] Van LR 695

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CRIMINAL JURISDICTION

Criminal Case No. 2 of 1994

PUBLIC PROSECUTOR

v

LIN SHIOW HER
WANG DER MING
WU A MING
TU JUN CHANG

Coram: Chief Justice Vaudin d'Imecourt

Prosecutor: Mr S Ngaunga
Defence: Mr D Hudson for Lin Shiow Her
Mrs S Barlow for Wang Der Ming, Wu A Ming and Tu Kun Chang

JUDGMENT

[CRIMINAL LAW - aiding and abetting contempt - defence of Superior Orders considered]

In this case as in every other criminal case in this jurisdiction, I am both the Judge of law and the judge of facts. It is therefore incumbent upon me to direct myself as to the law in such a way that the defendants should know that I have addressed my mind properly to the issues of law as apply to their case and, so that if I have made an error of law, then they should be able to appeal to another court to have the matter rectified. I also have the duty to give a brief summary of the facts so that all should know that I have tried the defendants on the evidence as presented before me and that I have applied those facts to the law as I have stated it to be.

This is a criminal trial and as in every criminal trial in this country, it is for the prosecution who brings the charges to prove them. It is for the prosecution to prove each and every allegation of facts in this case. There is no burden on the defence whatsoever. Furthermore, the burden which rests upon the prosecution is a very heavy one. Before I can convict any of these defendants of any of the charges brought against them by the prosecution, I must be sure of their guilt, nothing less will do. That is the same as saying that the prosecution must prove their guilt beyond reasonable doubt. If the prosecution fails to discharge the very heavy burden that rests upon them on any or all of the counts as against any or all of the defendants, to the standard that I have stated, then any of those defendants as against whom any of those charges have not been provided are entitled to be acquitted. In other words, if at the end of the day I am left with a reasonable doubt as to any of these defendants' guilt, then they would be entitled to the benefit of that doubt and to be acquitted.

I bear in mind that there are four defendants in this case. I have the duty to look at the case against each of them quite separately in order to return a separate verdict as against each of them. That is a far cry from saying that I cannot look at the overall picture as painted by the evidence in the case. I must also bear in mind that Mr Lin Shiow Her faces charges upon four counts in this indictment, and that I have the duty to look at the evidence upon each of those charges quite separately in order to return quite separate verdicts on each of them as against him. It may be that the prosecution would have proved his guilt to the required standard upon one or more of the counts, or upon none at all. It does not follow that if this defendant is guilty on one count that he is guilty of all of them, not any more than that if he is innocent of one count that he is innocent of all. The same principle applies to each and every one of the defendants. It does not follow that if one defendant is guilty or innocent that they are all guilty or innocent. I must look at each count quite separately and at the evidence as against each defendant quite separately in order to return quite separate verdicts.

Each defendant in this case has made one or more statements under caution. These statements were made by each of these defendants in the absence of the others. I bear in mind therefore that each of these statements can only be evidence in the case of the defendant who made it. Where it seeks to implicate another defendant it cannot be evidence at all against that other defendant because it was made in his absence. It has no value as against that other defendant whatsoever, for he was not present to accept or refute it. A very different principle applies of course where a defendant goes into the witness box and repeats it. Then I would be entitled to listen to it and to give weight to it, as it would be evidence in the case as a whole. Furthermore, the defendant as against whom it is given would be present in court and would have the opportunity of challenging it.

Each and every one of these defendants has given evidence in this case. I have the duty to look at their evidence and to judge it in the same manner as I would the evidence of any other witness in the case, irrespective of whether he be a prosecution witness or a witness for the defence. A defendant who chooses to give evidence in his case becomes just another witness in the case and must be judged according to the same standard, no better and no worse. Indeed in this jurisdiction no defendant is forced to give evidence. He can choose to do so or not as he pleases and as Section 88 of the Criminal Procedure Code Act CAP 136 which was read out to the defendants, makes clear, no adverse inferences can be drawn from their silence. I do bear in mind, nevertheless, that a defendant who gives evidence in a criminal case against himself is bound to be nervous and not to feel at ease in the witness box and I make every allowance for that in judging their evidence.

These defendants are all men of good character, save for Lin Shiow Her, who was convicted on the 3rd December last of fishing illegally in Vanuatu's Territorial Waters and was fined. What is the relevance of a defendant's good character? Primarily a defendant's good character goes to his credibility as a witness and furthermore, the defendants' good character may be a relevant factor when considering whether they were the kind of men who were likely to have behaved in the kind of way that the prosecution alleged.

Conversely, the fact that a defendant has previous convictions is relevant only to his credibility, but it certainly does not show that he is likely to have committed the offence with which he is charged. As the judge of fact, I may take such previous convictions into consideration, but there is certainly no obligation upon me to do so. At the end of the day it must be born in mind that a man's good character can no more be proof of his innocence than a man's previous bad character be evidence of his guilt. It goes without saying that if it were not so, nobody would ever be convicted of an offence, as we are all born with good characters. Some of us keep that good character all our lives and others loose it.

One further point of law which I feel I ought to mention at this stage is, what if any evidential value should be or can be attached to a lie, if any is found by me to have been uttered in this case. The first principle of law is that the mere fact that a defendant has told lies does not prove guilt because there are many reasons why a person will lie. But one is entitled to consider it as part of the whole of the evidence in the case and to draw such irresistible inferences as one can draw therefrom. But it must be born in mind that a lie certainly does not prove that a defendant is guilty.

These defendants are charged in an indictment now containing 5 counts. Counts 1, 3, 4, 7 and 8. I will deal first with count 3, as that is the only charge which is faced by the defendants Wang Der Ming, Wu A Ming and Tu Kun Chang. Under that count all 3 defendants are Charged as follows:

"Aiding and Abetting Contempt of Court contrary to Section 30 Penal Code Act CAP 135 and Section 23 Courts Act Cap 122. It is alleged that they being the crew of the Lih Peng, sometime on 5th January 1994, helped Captain Lin Shiow Her to disobey a Supreme Court order that he should not leave Vanuatu until his fines and costs were fully paid up."

Section 23 of the Courts Act gives the Supreme Court the power to punish summarily anyone who has committed a contempt of court.

Section 30 of the penal Code Act states as follows:

"Any person who aids, counsel or procures the commission of a criminal offence shall be guilty as an accomplice and may be charged and convicted as a principal offender."

In order to prove this offence against each of these three defendants, the prosecution must show beyond reasonable doubt as follows:

(i) That the court did make an order that Captain Lin Shiow Her should not leave Vanuatu before payment in full of the fines and costs imposed upon him.
(ii) That Captain Lin Shiow Her committed a contempt of that order.
(iii) That the defendants knew of that order.
(iv) That the defendants knew that the order had not been complied with, and
(v) That with that knowledge, the defendants nevertheless aided, counselled or procured the commission of a contempt of the court's orders by the Captain.

Bearing in mind that in the context of this case, a contempt of court would be any steps intending to interfere with the administration of justice. Therefore here if the prosecution are able to prove beyond a reasonable doubt each and everyone of the elements mentioned in (i), (ii), (iii), (iv) and (v) above then the defendants would be guilty of the offence as charged unless they have proved on a balance of probabilities that they have a legal defence to the charge. It should be noted that Section 11(2) and (3) of the Penal Code Act CAP 135 states as follows:

"11(2) In all cases in which it is necessary for the accused to have knowledge of certain facts in order to form a criminal intention, the burden shall rest upon the prosecution to prove that the accused was aware of such facts.
11(3) In the absence of direct evidence thereof, such knowledge may be proved by inference from other facts or circumstances."

Of course, I bear in mind that the degree of proof referred to above by which it is necessary for the prosecution to discharge their burden remains always beyond a reasonable doubt.

Here each of the defendants have also raised as a defence "Superior Orders". Section 22 of the Penal Code Act CAP 135, provides as follows:

"No criminal responsibility shall attach to an act performed on the orders of a superior to whom obedience is lawfully due, unless such order was manifestly unlawful or the accused knew that the superior had no authority to issue such order."

The burden on the defendants to establish their defence is on a balance of probabilities: see Section 10 of the Penal Code CAP 135. If they have established it to that degree, then the burden shifts back to the prosecution and it then becomes the duty of the prosecution to disprove the same beyond a reasonable doubt. If the prosecution fails to do so then the defendants are entitled to be acquitted; see Section 9 of the same Act. So to recap, if the prosecution has proved (i), (ii), (iii), (iv) and (v) above, the defendants are guilty unless they have proved on a balance of probabilities that they acted under superior orders, when it would be incumbent upon the prosecution to disprove that defence beyond reasonable doubt, but if the defence have failed to discharge the burden that rests upon them on a balance of probabilities then they are Guilty, as the prosecution would have proved their case and would have no need to displace any burden at all.

The case for the prosecution is that the captain of the Lih Peng, Lin Shiow Her was convicted on 3rd December last of fishing unlawfully in Vanuatu's territorial waters. That on that occasion he was fined a total of 25 million vatu and ordered to pay 10 million vatu prosecution costs. That on that occasion the ship's catch was forfeited to the State of the Republic of Vanuatu and that it was ordered that Lin Shiow Her does not leave the jurisdiction of this court until such fine and costs be paid in full. The prosecution further alleges that on the night of 5th January last or the early hours of 6th January, the Lih Peng with all these defendants on board left the Star Wharf where they were docked and headed out towards the high seas. They allege that they did so in the early hours of the morning with all lights off and in such a way that it could be inferred that all those who participated in its departure knew that they were not supposed to leave and that nevertheless they aided and abetted the captain to commit a contempt of the court's order not to leave the jurisdiction of this court. They say that in order to incapacitate the ship, the authorities had removed the fuel lines, 6 altogether and that new ones were manufactured and replaced by the ship's engineer without the knowledge and consent of the authorities. They say that the three defendants were the "officers" of the ship responsible for the sailing of the Lih Peng. That they played essential roles in the departure of the ship. The gist of the prosecution's case is that this ship cannot be sailed on its own. That in order to leave Vanuatu, the captain would have needed the assistance and willing participation of the three defendants. As against Wang Der Ming and Wu A Ming they say that they were needed to let off the ship from its tethers, which they did by cutting off the ropes by which they were attached to the dock. That in itself, as well as the surrounding circumstances of the ship's departure, the prosecution say, show that they knew that they were not allowed to leave Vanuatu and that they aided and abetted the captain to do so. They rely particularly upon the whole of the circumstances of the ship's departure and more particularly upon these two defendants' own admissions to establish that fact. As against Tu Kun Chang the prosecution relies not only upon the circumstances of the departure but upon the fact that this ship could not have sailed and manoeuvred without his assistance. He was the engineer on board. Not only, says the prosecution, that he replaced the fuel lines in the middle of the night, but he must of necessity have been in the engine room assisting in the departure of the ship. Without him the prosecution say that the ship could not have departed. Indeed a visit to the ship established that the commands from the bridge were such that they were of the "telegraphic" variety. That implies that any command from the bridge could only have been executed by the engineer in the engine room. He and he alone could cause the ship to move by operating the engine. The prosecution say that the manner in which the ship was brought to Vanuatu originally and the fact that the captain was removed from the ship by the police added to the fact that the ship remained in harbour for so long, together with the covert manner in which the ship departed Vanuatu in the early hours of the 6th January, added to the fact that this was a small ship in which the "officers" as opposed to the men, would all have been very close, go to show that those who participated in its departure must have known and been consenting parties to its departure. Indeed, they say that the visit to the ship by the court established that by the very nature of their living quarters, as opposed to the quality of those occupied by the rest of the crew, these three defendants were the "officers" of the ship and the close confidants of the captain, those in whom the captain would have to rely in order to execute such an escape and without whose help it could not possibly have succeeded. These the prosecution say, were not just minions who would senselessly obey orders, but the lieutenants upon whom the captain would have to depend to manoeuvre out of the harbour in the dead of night without any lights on.

Mrs Barlow who acts for those three defendants on the other hand, submits that there is no evidence that these men knew of the plan to depart. Indeed she submits, they did not even know that the captain had been arrested for unlawfully fishing in the territorial waters of Vanuatu, let alone that the courts had ordered the ship to remain in harbour until payments of fines and costs. These defendants she submits, were in blissful ignorance of the reasons why they had remained in Vanuatu for so long. She further submits that it is for the prosecution to prove that these defendants knew that the captain had been ordered to remain in Vanuatu until payment of the fines and costs, and that the prosecution have failed completely to prove the same. Alternatively, she submits that these defendants were in any event following superior orders. That they were the sort of men used to obeying superior orders without asking any questions and would therefore fall under the ambit of Section 22 of the Penal Code Act in the manner that I have already described. If she is right in her submissions or could be right, then these three defendants would, of course, be entitled to be acquitted. If on the other hand, I am satisfied by the whole evidence in this case that each and every one of them were, on the contrary, willing and consenting parties to the departure of the ship and that they assisted in its departure, then applying the law as I have stated it to be, these defendants would be guilty.

The captain, Lin Shiow Her is charged under four counts. Under count 1 with Theft contrary to Section 125(a) of the Penal Code Act CAP 135, in that when he left Vila Harbour on 5th January last he stole 75 tons of fish of various description, the property of the Government of Vanuatu. Theft is defined as follows:

"A person commits theft who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof."

In order to prove this offence the prosecution must prove to the standard that I have already mentioned the following, namely that the captain:

(i) Without the consent of the owner, who was the State of Vanuatu;
(ii) Took and carried away;
(iii) Property capable of being stolen (fish is certainly property capable of being stolen);
(iv) With intent at the time of the taking permanently to deprive the owner thereof;
(v) That he had no claim of right to the property; and
(vi) That he was acting fraudulently, i.e. that he was acting dishonestly in so doing.

If the prosecution prove each and every one of those elements to the standard required of them, then the defendant is guilty. On the other hand, if they fail to prove any single one of these elements, then the defendant would be entitled to be acquitted. Here the captain's defence is that he did not know that the fish had been confiscated. In other words, he made a mistake of fact. In order for a mistake of fact to be a defence it must fall within the definition of Section 12 of the Penal Code Act CAP 135 which states as follows:-

"A mistake of fact shall be a defence to a criminal charge if it consists of a genuine and a reasonable belief in any fact or circumstance which, had it existed, would have rendered the conduct of the accused innocent."

As I have already stated, wherever a defendant has the burden of establishing a defence, then he discharges that burden on a balance of probabilities. If he has succeeded in so discharging his defence, then it is for the prosecution to disprove it beyond reasonable doubt. But where the prosecution has proved all the elements of the offence and the defendant fails to establish his defence, if indeed he seeks to establish a particular defence, on the standard that is required of him, then he is guilty since the prosecution would have done all that is required of them.

On count 4, Lin Shiow Her is charged with Contempt of Court. I have already defined all the elements of this offence, and need not repeat it here. Again his defence is that he made a mistake of fact and again the same principles of law with regards to mistakes of fact apply to this count as to any others where such a defence is raised. I have already mentioned them and need not repeat them again.

Under count 7, this defendant is charged with piloting a ship without side light or riding light, contrary to Section 1 of the Harbour Lights Act CAP 2. The particulars being that when this defendant left Port Vila Harbour in the early hours of the morning of the 6th he did so without any lights on as required by the Act. The Act states as follows:-

"1. (1) All vessels in movement or at anchor in Port Vila Harbour shall carry sidelights or a riding light between sunset and sunrise as hereinafter provided.
(2) All .... boats lying in Port Vila Harbour which have not been hauled up on the beach shall during the period aforesaid carry a white light placed in the bows thereof, provided that in vessels having one or more masts the light shall be suspended from such mast or from the foremast when more than one at a height of not less than 15 feet from the deck or if the mast is not of sufficient height from the top of such mast."

This is a strict liability offence. All the prosecution need prove is that the vessel was not one that was hauled up on the beach and that it was not carrying any lights or any lights within the definition of the regulation. The defendant claims that he was carrying a light. The issue is a matter of fact for the tribunal to determine according to the evidence that it has heard.

Finally the defendant is charged with the unlawful importation of a dog, contrary to Section 2 of the Animal Importation and Quarantine Act CAP 201. The fact being that he brought into Vanuatu a dog without the necessary import permit. Section 2 states as follows:-

"2 (1) No person shall import or introduce any animal ... to Vanuatu-
(a) without a permit issued under this Act."

The Interpretation Act CAP 132 says that "import" means to bring or cause to be brought into Vanuatu, and "Vanuatu" means the Republic of Vanuatu.

Again this Section creates an strict liability offence. All that the prosecution need prove is that the defendant imported into Vanuatu a dog without the requisite permit. Nor does it require that the animal should be landed onto the land of Vanuatu. Here the defendant claims that he made a mistake of fact in that he had misunderstood the quarantine officer. He claims that he thought that the officer had authorised him to bring the dog on shore as opposed to ordering him to keep it on board. But the offence is that of importing without a permit. It is a strict liability offence. Either the defendant had a permit or he did not. If he had one, he has a defence, if not he is guilty unless he can establish a defence under Section 12 of the Penal Code Act CAP 135. Anything else may go to mitigating the offence, but cannot be a defence.

On behalf of Lin Shiow Her it is submitted as follows by Mr Hudson: that the prosecution has not established that the Lih Peng was arrested within Territorial Waters, and that the defendant in order to be triable for these present offences must have been arrested within territorial waters, because otherwise he submits, they would have been brought back illegally to the jurisdiction of this court and should not therefore be tried by the court. He refers to no principle of law to support that contention. It is nevertheless a well known fact that there is a right of hot pursuit. In any event the manner in which a defendant is returned may breach the laws of another country or even international law. It does not exculpate the defendant of the original offence nor does it provide him with a defence. There is here in any event clear evidence from the captain of the Tukoro that the defendant was arrested 6.75 nautical miles from Hat Island, therefore within Vanuatu's territorial waters. Secondly it is submitted that what the defendant did was not theft but an act of necessity, it being part and parcel of the departure of the defendant from Vanuatu because he feared going to jail and that in any event there had been no order that the fish should remain on board. I am not told why in that event the fish was not removed from the boat before its departure, if the departure was indeed a lawful one, or at least believed to be a lawful one. His defence to the contempt of court is that he had not understood that he was not to leave Vanuatu before the payment in full of the fines and costs. In other words a mistake of fact. In defence to the Harbour Lights offence, it is submitted on behalf of the captain that he had given evidence that there was some light on the boat when it departed. That is of course a matter of fact for the tribunal of fact to determine. As to the importation of the animal, the submission is that he had made a mistake and thought that he had been given permission to keep the dog with him wherever he went. I have already explained the defence of mistake of fact and need not go into that again.

I will summarise the evidence as follows:-

The first witness to give evidence was Mr Willie Mark, a security officer who works on board of the Princess 2. He was on board the Princess 2 when he heard the engines start on board the Lih Peng and he saw them leave. The ship, he told us had no lights on. It was about a quarter to one on the 6th. He went to warn Kalrong, the man in charge of the wharf that the ship had left. He did so he said because he knew that the ship was under arrest.

He was cross examined by Mrs Barlow, and told us that he shone his torch at the ship and saw people on the ship, but could not recognise them.

Marcel Kelo (or Kalrong) next gave evidence. He told us that he was the guard at the Star Wharf. He had been at a party on the evening of the 5th on board the Cap des Pins. One of the boats at the wharf was the Lih Peng. He left the party at 10.30 p.m. and went home. He lives at the wharf. He was woken up at 1.30 am on the 6th January by Willie Mark, who told him that the Taiwanese ship had run away. He looked in the direction of the harbour and could not see it, although he could hear its engine. He then contacted the Tukoro and told them about it. He was not cross-examined.

Mrs Doris Day Kenneth next gave evidence. She is the Deputy Director of Fisheries. She produced the logs of the Lih Peng, which showed that it had 75 tons of fish on board. She was able to tell us that the value of the fish on board when the Lih Peng left was 23 million Vatu.

Steven William Pointing next gave evidence. He is a veterinary district officer working for Vanuatu. He said that he visited the ship on the 27th November last. He served a quarantine notice on the ship and he produced the same as Exhibit 1. He was cross-examined by Mr Hudson and said that he had given the notice to a man on board and explained to him that the dog should remain on board. The dog was about 4 months old and an Alsatian type breed.

Tari Tamata, the captain of the Tukoro next gave evidence. He told us that he was called for at his house at about 2 a.m. by Corporal Jack Karia, who told him of the escape of the Lih Peng. He collected his men and went down to the Tukoro. They left after the Ligh Peng at about 3.30 a.m. They had 12 crew men on board at the time. He said that the sea was really rough at the time. They saw the Lih Peng at 4.32 am. At the time it was 6.75 nautical miles off the coast. At 5.35 they got close to the Lih Peng and were manoeuvring around it. They gave the usual warning sign manually at 5.39 am by raising the international call sign flag SQ1, that is a sign he told us, known to all sea captains. When they received no response, they fired the first warning shot at 5.46 am across their bow. This was not responded to and he fired another two warning shots across their bow at 6.05 and at 6.15. The Lih Peng still did not respond. They then used 50 mm calibre at 6.52 and fired across their bow again. They fired again across their bow at 7.02, still there was no response. At 7.13 they fired again across their bow, and again at 7.22 and having still had no response, they fired at the foremast at 7.39. Having had no response they fired above the bridge where the radios were at 8.05. Having had no response at 8.14 they fired again at the same area and again at 8.26 am. Finally at 8.30 the Lih Peng altered her course and returned to Vila, arriving here at 12.04 pm.

Cross-examined by Mr Hudson, he said that he had seen no one move about on the ship, but that he had seen someone on the bridge.

Andy Whitwell gave evidence next. He is the Plant Protection Officer employed by the Agriculture Department. He checked the Lih Peng shortly after its first arrest on the 27th November. He found a dog on board and indicated to the crew that it had to remain tied up on board. He went on board the same day at 4 pm, with a team from N.Z., one of whom spoke some Chinese. He told him to tell the crew and the captain that the dog had to remain tied up on board at all times. On the 12th December, he spotted the dog with a member of the crew some 300 yards from the ship and pointed to him that the dog should be on board. Later on the same day, he went on board and saw the rope to which the dog should have been tied but not the dog. He went on shore and saw the dog with its owner on shore and took photographs of the dog with its owner. Finally the dog was taken on board and tied up. He produced the photographs as exhibit 2. He was not cross-examined.

Sgt Malokle gave evidence next. He said that he spoke to the ship's engineer in broken English on the 6th January. He told us that the engineer could speak broken English. He spoke to him about the fuel lines. The engineer had told him that the captain had given him fuel lines to fit on. And that he had only followed his captain's orders. He was cross-examined by Mrs Barlow and said that the crew were not on board when he had spoken to the engineer, who had been left on board to look after the generators because of the fish.

Inspector John Mark Bell gave evidence next. He is the assistant navigator on board the RVS Tukoro. After the arrest of the Lih Peng on the 6th he had spoken with the engineer of the Lih Peng with Sgt Malokle. They spoke in broken English.

Henry Worek gave evidence next. He is the acting chief engineer on board the Tukoro. He told us that he disconnected the 6 fuel lines on board the Lih Peng when it was first arrested on the 27th November and that they were the only ones on board. He produced them as exhibit 6. After the second arrest on the 6th December they went on board and disconnected a second set of fuel lines.

Sgt Toara who gave evidence next, was the officer who interviewed the defendants under caution, and took statements from them. He produced all the statements in court, and read them out. He was cross-examined by Mr Hudson, and told us that he interviewed the Captain and the other defendants through an interpreter. He felt that the interpreter was being understood easily by the defendants. He said that the defendants had their statements translated to them by the interpreter and that they then signed them. The interpreter also signed the statements.

The interpreter Mr Simon Kuo next gave evidence. He said that he was a business man and that on the 6th January he acted as interpreter for the police in the defendants' interviews. He saw each of the interviews in this case and identified them by the presence of his signature that appeared on them. He recalled explaining the contents of each to their maker and said that he was satisfied that they all understood their statements and signed them. He was cross-examined by Mr Hudson and told us that he was a Taiwanese and that he spoke both Taiwanese and Mandarin. He was satisfied, he said that the defendants understood him. He said that the Captain spoke Taiwanese which was his mother tongue.

DEFENCE CASE

The defence made the following admission under Section 84 of the Criminal Procedure Code CAP 136:-

1. That Lin Shiow Her was convicted of illegally fishing within Vanuatu's Territorial waters on 24th November 1993.
2. That an order was made by the Supreme Court for Mr Lin Shiow Her to pay 25 million vatu in fines and another 10 million vatu prosecution costs.
3. That the ship's catch be forfeited to the State of Vanuatu.
4. That Mr Lin Shiow Her does not leave this jurisdiction until such time as the fines and costs are fully paid.

Each of the defendants then next chose to give evidence.

The first to do so was Wang Der Ming. He said that he was a member of the crew of the Lih Peng. He claimed to have been just a fisherman. That he had been on that ship for the last 5 years. He had known the captain for 18 months. He said that he remembered making two statements to the police, one on the 6th and one on the 13th January and that their contents was the truth. These were read out in court and I need not repeat them here. He said that in the early hours of the 6th he had been asleep when the captain woke him up and told him to cut the ropes but told him nothing else, nor why he wanted the ropes cut. He used a knife to cut the ropes and did nothing else. He said that it was his usual job on board to untie the ship and that on this occasion he cut the 3 ropes that tied the rear of the boat. Although he was aware that the captain had been to court the first time, he was not aware why. Nor had he talked to the other members of the crew as to why the captain had been to court. He said that he thought he had been here between November and January on holiday. In cross-examination he said that he had not refused to obey the orders of the captain to cut the copes because on board the captain is number one.

Wu A Ming gave evidence next. He too said that he was a member of the crew a fisherman. He claimed that he took no part in the operation of the ship. He had been aboard this ship 2 years and has known this captain about two years. He said that he did not know how his vessel happened to be in Vanuatu because they are not told where they are going when they leave base. The gist of it being that he did not know that the ship had been arrested in November last. He agreed that he had made two statements to the police. He could not remember being asked about escaping, nor could he recall what questions he was asked. He too claimed to have been asleep shortly before departure and that he was awoken by the captain who had asked him to cut the ropes. He said that he did so without question and went back to sleep straight away. He said that he did not know why he cut the rope but that it was usually his duty to let the ropes off when they leave. He said that he did not know on their first arrival in Port Vila that the captain had to go to court. Nor had he apparently discussed their reason for being in Port Vila with other members of the crew. He said that he did not know that the captain was escaping. In cross-examination by Mr Hudson he said that it was the captain who asked him to cut the ropes. He said that he did not know if the captain was under the influence of alcohol and that he had not seen the captain drinking the previous night. Cross-examined by the prosecution he said that he too was obeying superior orders. That although they are two usually to let go the ropes, he had not seen Wang Der Ming that night.

The next defendant to give evidence was Tu Kun Chang. He is the ship's engineer and the only engineer on board. He told us that he had been on board the Lih Peng for just over a year. He was on board when the ship set sail on the 6th, but he played no role in it he said. He said that the engine was running because the cyclone season had begun. He saw the fuel lines and told us that they had been put back on the day the vessel sailed. He was the one who fixed the fuel line back on having got them from the captain. He said that he fixed them on at 12 midnight Fiji time, in other words 11 pm our time. It had taken him about 15 minutes to fix them on. He claimed that he did not know what had happened to the previous fuel lines. He had removed them and had handed them to the captain. He claimed that this was normal practice when they reached port. He said that when they first arrived in Port Vila, they had not been escorted by any vessel, but had been on tow from a towing vessel. He did not apparently know that the ship had been apprehended. He said that he thought that the captain had decided to come here for repairs and maintenance. He said that as the ship's engineer he would know if the ship was not working properly. That it had not and that he had told that to the captain who had contacted a ship to tow them in. He said that the thing that was wrong with the ship and needed repair as the engine starter and that was the reason why they had come to Vila in November. Apart from the repairs and maintenance he did not why the Lih Peng was tied up at the wharf in November last. He said that he was a Taiwanese but was able to say a few words of English. He said that he did not know how the ship got released. That night the captain came and gave him the fuel lines which he put on and then went back to sleep. The captain he said, had said nothing about the lights. It is normal practice, according to him for the lights to be off while the ship is in harbour. He claimed that in his interview he had not said to the police that the captain had told him to turn the lights off. It must have got into his statement as a result of an error of translation. He claimed that the captain had set sail quite alone without the help of any one. Cross-examined by Mr Hudson he said that he had not seen the captain drink alcohol that night. He said that he normally took instructions from his superiors. Cross-examined by the prosecution, he said that the captain had told him that he had got the new fuel lines from a previous engine. He had been interviewed by the police on the 13th January and had no idea why the police had taken them away.

Lin Shiow Her gave evidence next. He said that he was the captain of the ship and that he came from Taiwan. He had been the captain for only three months but had been the acting captain for over a year. He had been on fishing boats for 4 years. Although he was arrested in November last, he says he was not very sure why they had been arrested. He had been brought to court. He had apparently been told that if he pleaded guilty he would remain in Vila only a short time and be fined only a small sum, on the other hand if he pleaded not guilty he would be here a very long time. He said that it was the representative of the South Pacific Fishing Company who had told him that. He does not know if he had understood the court's order when it passed sentence on him on the 3rd December. No one apparently had told him. He decided to leave because he had been stranded here for so long, he had no money and was depressed and because he had some whisky. He has a family back in Taiwan. He had decided to go because he was under financial pressure and so was the company who did not have the money to pay the fine. He had contacted the company and they did not have the money to pay the fine. "I was worried that I would go to jail." On the 5th he had 2 full glasses of whisky in his cabin. He is not normally a heavy drinker. He was confused and scared of going to jail, so he decided to set sail. It was after he had the drink that he decided to set sail. He apparently had his drink alone in his room. He gave the fuel lines to the engineer which he had got from his room. He set sail without any navigation lights on, having ordered the engineer to start the engine. Lights he said, were only turned on during fishing operations. He claimed that he sailed the ship alone. The engineer switched on the engine and left it on full speed and he then sailed it on his own, and left the harbour. He then said that he was not at full speed when he first left. It was after he had left the harbour that he went up to 4 or 5 knots. He first knew that the Tukoro was near them when he heard the shots. When back in Vila he made three statements to the police. He disagreed with the 3rd answer in his 1st statement. In the statement of the 7th he said that he had never said that he knew that he should not leave Vila. He left because of the fear of punishment. "I ran away because I feared punishment and I took the risk to go." He claimed that he did not know that the catch had been confiscated by the courts. He then said that he did not know that he had to stay. He said that when he first came in November he was not under arrest. When they first arrived something had been done to the fuel line, although he did not know what or by whom. He said that he did not know that the fuel lines had been taken by the police and that he was the one who had given the new lines to the engineer to replace them. The dog on board belonged to him. They apparently gave him a piece of paper about the dog but did not explain it to him. He had understood that he could not give it away or sell it and that when he came off the boat the dog had to be with him. Finally, he said that when interviewed by the police he had answered all their questions. He was then cross-examined by Mrs Barlow. He claimed that between the time that he had arrived here in November and his departure in January, he had not discussed what had happened to him in Vanuatu with anyone on board. "They did ask me when we were going to sea again, I did not tell them as it would make them scared." "I just arranged for the ropes to be chopped, on board I just give instructions and they follow it." "The engineer just started the engine, I did not tell him anything. I just gave him the fuel pipe lines told him to fix it but told him nothing." I had a feeling that the engineer had fixed the fuel line. I asked the engineer to start the engine and he did so and I gave him no other instruction. He then said that he could see into the engine room from the bridge. "it is not necessary to sail the vessel for the engineer to be in the engine room. He could apparently accelerate the engine from the bridge. He was then cross-examined by the prosecution. He disagreed that he had set sail without the navigation lights on. "I switched on the lights on the bridge otherwise I cannot see." He said that he had made three statements to the police but could not recall if he had been asked if anyone had helped him to escape. He said that he was asked why he had escaped and had given the answer which had been recorded in the statement. But he does not recall saying that the Lih Peng was under arrest in his statement of the 13th January. He then said that if he had not been forced to come to Vila he would not have brought the dog in.

That completed the defence evidence. Each defendant made one or more statements under caution. Although I do not read them out again now, they have been read out in full to the court, and I have read them all with care and considered them with care in coming to my decision.

As the judge of facts in this case, I have considered the facts as regards each defendant with great care and have applied the law as I have stated it to be to the case of each of the defendants. I have considered the evidence of each defendant and listened to the whole of their evidence with care.

Having considered the case for and against Wang Der Ming with care, I am satisfied beyond reasonable doubt that he is guilty of count 3.

I have considered the case for and against Wu A Ming with care, I am satisfied beyond reasonable doubt that he is guilty of count 3.

I have considered the case for and against Yu Kun Chang with care, I am satisfied beyond reasonable doubt that he is guilty of Count 3.

I have considered the case for and against Lin Shiow Her on Count 1 with care, I am satisfied beyond reasonable doubt that he is guilty on count 1.

I have considered the evidence for and against Lin Shiow Her on Count 4 with care, I am satisfied beyond reasonable doubt that he is guilty of count 4.

I have considered the evidence for and against Lin Shiow Her on Count 7 with care, I am satisfied beyond reasonable doubt that he is guilty on Count 7.

I have considered the evidence on Count 8 for and against Lin Shiow Her with care, I am satisfied beyond reasonable doubt that he is guilty of Count 8.

24 January 1994

CHIEF JUSTICE

CHARLES VAUDIN D'IMECOURT