Public Prosecutor v Chen Tsi Yi - sentence [2005] VUSC 88; CRC 046 2004 (7 July 2005)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

Criminal Case No. 46 of 2004

PUBLIC PROSECUTOR

–v-

CHEN TSAI YI

Coram: Justice Treston

Mr. Toa for Public Prosecutor
Mr. Sugden for Accused

SENTENCE

The Accused Chen Tsi Yi is now for sentence on two counts of breach of the Fisheries Act and Orders made under it. The counts are those remaining from 9 original counts in an indictment alleging breaches of the Act. The charges on which he now stands for sentence are counts 4, to which he pleaded guilty during the course of trial and which related to failing to ensure that whilst in Vanuatu waters all parts of the call sign marking were clear and distinct, and count 7 which related to the Accused as master of the vessel, failing to ensure that a licence or a certified copy of the licence was on board the vessel and failing to produce it when required by an authorized officer.

Each of these offences carries with it the potential of a fine not exceeding VT5 million as provided by section 4 (5) of the Fisheries Act.

The circumstances surrounding the offences and the convictions are fully set out in a reserved judgment which was delivered in this Court earlier today.

The Prosecution submits that the maximum fine of VT5 million should be imposed against this Accused in respect of each offence. Various authorities concerning convictions for fishing in a closed area were produced by the Prosecution to substantiate this submission and to that extent those authorities are somewhat unrelated and irrelevant to this particular sentencing exercise because the maximum penalty provided for in the Act for fishing in a closed area is a fine not exceeding VT20 million. However, the principles of sentencing can perhaps be extracted from the decisions which have been produced.

In addition, under the Fisheries Act there is the potential of forfeiture of the fishing vessel together with its gear, stores and cargo and fish caught in the commission of the offences under the powers of forfeiture contained in section 28 of the Fisheries Act. However, the Prosecution has accepted that it does not seek forfeiture in relation these offences. The main ground for submitting that the fine should be the maximum in each case is that there should be a deterrent message sent, the Prosecution submits, to all other fishing boats to comply with the conditions of their foreign fishing licences. It was submitted that this exercise has caused the government of Vanuatu great expense and the fine should be very heavy. It was submitted that the fact that the fishing vessel had been under detention and arrested and kept at a wharf in Port Vila for 8 months had no bearing on the fine.

On behalf of the Accused, I was advised that he is a 51 year old Taiwanese citizen with 3 children at home in Taiwan aged 18, 6 and 5. The Accused has not seen his family for 2 years although only 10 months of that time can be attributed to this offending and more significantly as a result of his detention in Vanuatu, the Court is advised that the Accused has lost his job. He has had no income to provide for his family since he has been in Vanuatu. He has limited assets, limited, I am told, to a house in Taiwan worth about 700 to 800 Taiwanese dollars and I am not told of the exchange rate. He has no savings and no car. He does not have any liabilities.

Again, very significantly, his counsel submitted to this Court that the Court should very much take into account that that at the commencement of this Prosecution the Accused spent 10 days in prison. The Prosecutor was unable to advise me as to the law in Vanuatu concerning that but it seems extraordinary that someone should be imprisoned for a matter which only attracts a fine as its ultimate penalty and the Defence submit that the time in prison should be taken very much into account in this sentencing. Together with that, the 10 months period spent in Vanuatu was a period where he was able to converse with only two or three people and as he has been unable to earn any income either for himself or his family he has relied upon the charity and goodwill of others, in particular, the Agent for the fishing vessel of which he was formally the Captain.

Furthermore, it was submitted that the Accused found himself in a somewhat invidious position in his role as master of the vessel because he had previously been the engineer and was virtually pushed, it was submitted, into becoming the Captain when the former Captain become ill with some kidney difficulties and had to return to Taiwan. The Accused took over his duties having been not fully informed of all that was required and had only been in his position since the commencement of this voyage namely for less than a month.

It was submitted that the call sign markings had been painted to be clear before the vessel left Port Vila but because of their position namely on the outside of the hull of the vessel, it was easy to overlook that the paint may have worn off in a short time. The outline although very indistinct of the call sign was there but it could not be read from a very great distance and that led to the offence and to the quite realistic plea of guilty during the course of the hearing after the evidence had been given. I note that there appears to be some criticism from the Prosecution that the Accused did not plead guilty to that charge until the hearing had started but of course there is no basis for such a submission because any Accused is entitled to defend any charge and to put the Prosecution to proof in any case and no Accused can be deprived of that right nor criticized for taking advance of that right so I place no weight on the submission made by the Prosecution that it was a late plea of guilty to the contrary I give the Accused credit for pleading guilty when he realized that the evidence against him having heard that evidence was such that he could no longer realistically defend that charge.

As to the licence and the failure to have it on board and to produce it or a certified copy, the submission was made that the Accused was simply not informed by the previous captain that he should have such a licence or copy licence and although the Prosecution has submitted that it was incumbent upon him to make sure that he knew of the requirements, of course, he had taken over the job at short notice and had been told by the previous skipper, it seems, that exhibit 7 was a fishing licence which would be sufficient for any purpose. The fact that that was not a sufficient licence, of course, has led to his conviction on the charge but nevertheless, the Prosecution could have looked at the matter in a more favourable way bearing in mind that exhibit seven contained all the details realistically needed which proved to be quite valid, including the name of the vessel, the number of the licence, which was also quite correctly painted on the side of the superstructure of the vessel and the duration of the licence. It seems to me that with a little good will, the Prosecution might have taken a more lenient view about that particular charge although it is accepted that it was a technical breach but it was not, as the Prosecution has submitted, a wilful or deliberate breach because the vessel was licensed, the defence submit, and the conditions were all complied with for its fishing and in addition, as I have found in evidence, the Captain was careful not to fish within closed areas.

It was submitted by the defence that the offences were rather more of a minor nature than anything else and not deliberately or intentionally committed but rather committed through inadvertence and inexperience.

The defence submit to me that I ought properly to deal with this Accused on both matters under section 42 of the Penal Code CAP 135, where it is provided that any offender may be convicted and ordered to come up for sentence if called upon. The defence submitted that the deterrent aspect in relation to these particular charges was not a significant part of the sentencing process in the circumstances because a heavy fine in relation to these breaches would be out of all proportion to the seriousness of the breaches and would not have any particular deterrence on other licence holders.

In response, the Prosecution submitted that these were serious offences against the law incurring the potential of substantial fines and that section 42 of the Penal Code was mainly used if pleas of guilty had been entered and if the Court were to convict and order the Accused to come up for sentence within a specified time, it would be giving a licence to other fishermen to breach the conditions of their fishing licences.

I have very carefully considered what might be the appropriate sentence in these matters. With the greatest respect to the Prosecution, I think that the submission that these offences should incur the maximum penalty is rather irresponsibly made in the circumstances. The maximum penalty in any sentencing situation must be reserved for the very worst offences of the kind that the Court is called to deal with. By no stretch of imagination could these offences be described as the very worst of their kind for breaches of the conditions of a foreign fishing licence. I agree with what the defence says, that they were largely caused by inadvertence in relation to the call sign being unclear and indistinct, and by inexperience and the invidious position that the Accused found himself in, in relation to the licence, in relation to the failure to have the licence on board and the failure to produce it to the authorized officer involved when the boarding party went on board his vessel.

However, in saying that and while accepting that the Accused has already suffered personally and significantly in being here in this country for over 10 months and more particularly in being in custody for 10 days, I still point out that there is a strong responsibility to observe the law placed upon masters of foreign fishing vessels who have the advantage of fishing within the Exclusive Economic Zone of Vanuatu. It is my view that it would be inappropriate to simply convict the Accused and order him to come for sentence within a period of time. There must be a message sent out to licence holders that they must comply absolutely with the law and with the conditions of their foreign fishing licences because the ability that they have to ply and fish the waters outside the closed area of this country is a privilege and not a right and they must comply absolutely with the conditions of their licences in so doing.

However, as I have already said, I do not consider that these matters fall to be dealt with any where near the maximum penalty made available by the law in this case.

Any fine that I impose would of course be a burden on the Accused but I draw some solace from the assurance that I have from the defence that in fact, quite responsibly, the owners of the fishing vessel have undertaken to allow any fine to be deducted from the bond which they were required to pay for the release of their vessel from custody. The vessel was quite properly in my view kept in custody for the period that it was, although it seems a rather draconian course, for the 8 months that it was here, because at that stage, on the face of it, the vessel faced serious charges and a number of them, namely 9 in total, including fishing within the closed area, so I do not consider that the vessel was wrongly detained for that period, although having heard submissions from counsel for the defence, this Court as presently constituted, considered about 2 months ago that the time of detention had been sufficient and that the vessel could be released on bond.

Another reason of course for the delay in this hearing taking place was created by the unavailability of a suitable interpreter to assist this Accused at the trial and to allow him to have his rights under the Constitution to understand and to take a full part in the trial with the assistance of an interpreter. An interpreter was subsequently found from Papua New Guinea and he attended the Court for the majority of the hearing to assist the Accused and the delay to a large extent had been because of the difficulty in obtaining a suitable interpreter. Subsequent events have shown that perhaps a Mandarin interpreter may have been sufficient, but based upon the information that was known at the time, a Taiwanese interpreter seemed to be necessary and was sought and obtained at no small expense.

So, as I say, there are significant mitigating factors in relation to this Accused and the appropriate penalty that should be imposed. A penalty in my view, must be sufficient to reflect the fact that the Court, of course, regards breaches of Overseas Fishing Licences seriously but nevertheless, that must be balanced against the particular circumstances of this Accused, which I have already outlined in some detail. It is important in my view, for the authorities and for the government of this country to stress that breaches of fisheries conditions will not be looked upon lightly, but I also as I say must strike an appropriate balance.

In all the circumstances I deal with the Accused in this fashion.

Having being convicted of each of the charges and although as the defence submitted, the licence count could be marginally less serious than the other, I treat them as equal, and I fine the Accused VT100, 000, on each of these offences (a total of VT200, 000). The Accused, just as for the conviction, has the right to appeal within 14 days.

I further order as follows: -

1. The bonds totalling VT14 million less the amount of the fines totalling VT200, 000, a sum of VT13, 800, 000, must be forthwith paid to Mr. Sugden, counsel for Accused.
   
2. All passports of the Accused and crew of the vessel Ching Fung Wa 1 must forthwith be released by the Police Maritime Wing to defence counsel, Mr. Sugden, or his agent.
   

Dated AT PORT VILA, this 07^th day of July 2005

BY THE COURT

P. I. TRESTON
Judge