Ministry of Agriculture and Fisheries v Chen Pao Yuan [2019] WSDC 9 (9 April 2019)

IN THE DISTRICT COURT OF SAMOA
Ministry of Agriculture and Fisheries v Yuan [2019] WSDC 9

Case name:	MAF v Yuan
Citation:	[2019] WSDC 9
Decision date:	09 April 2019
Parties:	MINISTRY OF AGRICULTURE AND FISHERIES v CHEN PAO YUAN
Hearing date(s):	03 & 04 October 2016
File number(s):	D3492/16, D3493/16
Jurisdiction:	Criminal
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Fepuleai Ameperosa Judge Roma
On appeal from:
Order:	(i) On the charge of operating a sea cucumber fishery for export purposes without approval in contravention of 10B of the Fisheries Act 1988 (D3492/16), I find the accused guilty of the charge; (ii) On the charge of operating a fish processing establishment without a licence under section 10C of the Fisheries Act 1988 (D3493/16), I also find the accused guilty of the charge.
Representation:	Ms L. Su’a – Mailo & Ms L. Sio for Prosecution Mr S. Leung Wai for the Accused
Catchwords:	charges – evidence – relevant law – discussion - result
Words and phrases:
Legislation cited:	Fisheries Act 1988 s10B, s10B(5), s10C, s10C(1), s10C(3) Criminal Procedure Act 1972 s16; Acts Interpretation Act 2015 s3;
Cases cited:	Beckwith v. R [1976] HCA 55; 12 ALR 333 and Massey v. Boulden [2002] EWCA Civ 1634; [2003] 2 All ER 87
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

MINISTRY OF AGRICULTURE AND FISHERIES
Informant

AND

CHEN PAO YUAN
Accused

Counsel: Ms L. Su’a – Mailo & Ms L. Sio for Prosecution

Mr S. Leung Wai for the Accused
Hearing: 3 & 4 October 2016
Submissions: 14 & 18 October 2016
Decision: 9 April 2019

DECISION OF JUDGE ROMA

INTRODUCTION

1. This is a long outstanding matter. The delay in handing down this decision is regretted. I apologise to the parties involved.
2. At around 10am on the 2^nd February 2016, the Fisheries Division of the Ministry of Agriculture and Fisheries (MAF) and Maritime Unit of the Ministry of Police conducted a search operation for sea cucumbers at the Treasure Garden restaurant and hotel at Fugalei and Savalalo.
3. The operation followed an investigation by the Division into a complaint received by MAF of an alleged processing of sea cucumbers at both locations. The operation discovered and seized large quantities of sea cucumbers.

CHARGES

4. The accused is owner of the Treasure Garden Restaurants. He is charged under the Fisheries Act 1988 as follows:
   • (a) Operating a fish processing plant for sea cucumber fishery for export purposes in violation of s10B;
   • (b) Operating a fish processing plant for sea cucumber fishery without a licence in violation of s10C.
5. The offences are alleged to have been committed between November 2015 and February 2016 at Savalalo and Fugalei.

EVIDENCE

Witnesses

6. The prosecution called 7 witnesses. Yohni Fepulea’i, Lui Bell, Michael Forsyth are officers of the Fisheries Division of MAF. Joyce Samuelu Ah Leong was ACEO of the Division during the operation but at the time of the hearing, she was no longer working for MAF. The other witnesses were Faafou Saumani, Maioa Amosa and Talia Nukulaelae of the Police Maritime Unit.
7. Their evidence is that about 29 January 2016, the Fisheries Division received information regarding the processing of sea cucumbers at Fugalei. Following interviews with an unnamed informant, Mr Fepulea’i compiled a report which formed the basis of the operation that followed. The objective was to investigate claims by the informant.

Operation and Seizure of Sea Cucumbers

8. The Fugalei team was led by Mr Fepulea’i and included Mr Forsythe and Mr Amosa. They were met by a Chinese lady at reception who told them the accused was at the back. When he came to the front, Mr Fepulea’i introduced his team and explained to the accused that they had received reports regarding the processing of sea cucumbers at both Fugalei and Savalalo, and that they were there to investigate. The accused understood and accompanied the officers during the inspection and confirmed that there were in fact, sea cucumbers in the kitchen. The team also spoke to a Chinese and 2 Samoans inside who confirmed that there were sea cucumbers in the restaurant.
9. Photos of what was found during the inspection were taken by Mr Forsythe and produced as Exhibit P1 for prosecution. The photos show:
   • (i) 5 of 14 packets of frozen sea cucumbers found in the kitchen freezer;
   • (ii) a half full plastic bag of processed and dried sea cucumbers in a chilly bin found on a counter;
   • (iii) a cooler full of sea cucumbers which appeared moist and salted. The cooler was found between the kitchen and toilets of the restaurant;
   • (iv) a green rubbish bin which was ¾ full of sea cucumbers which also appeared moist and salted. The bin stood next to the white cooler;
   • (v) 6 trays filled with processed sea cucumbers inside a cooking oven. The oven was in a separate room behind the kitchen;
   • (vi) A bucket half filled with sea cucumbers which also appeared moist and salted. The bucket was found next to the white cooler and green bin.
10. When asked about the large quantities, the accused’s reply was that the sea cucumbers were used as ingredients in a meal that was sold in the restaurant. The dish was not listed on the menu for the general public but for his Chinese customers. The accused produced the Chinese menu (Exhibit P2) and pointed out an item on it which was subsequently confirmed by a Chinese colleague of the Fisheries Officers to mean sea cucumbers.
11. Following the inspection, the accused was asked to go with the team and his workers to the Fisheries office for further interview. The Savalalo team then arrived and after discussions between the officers, they decided to seize all sea cucumbers found in both locations and keep them in the custody of the Fisheries division.
12. The Savalalo operation was led by Mr Saumani and included Mr Faasili, Mr Bell and Mr Nukulaelae. They explained their purpose to a female worker and carpenters and proceeded to inspect the premises. On the second storey, they found sea cucumbers spread across the floor near a clear window to catch heat from the sun. In one room, Mr Saumani and Mr Faasili found white chilly bins and paper boxes labelled to contain eggs. The boxes in fact contained processed sea cucumbers in plastic bags sealed with tape and appeared to be ready for transportation somewhere.
13. Mr Bell took photos of all sea cucumbers found at the Savalalo premises (Exhibit P1). They show:
    • (i) Dried sea cucumbers found spread on the floor of the second storey near the clear windows to catch the sun;
    • (ii) 6 white chilly bins and 1 paper box containing dried sea cucumbers;
    • (iii) A paper box full of dried sea cucumbers that was taped and appeared ready to be transported;
    • (iv) One of 5 packed and sealed white chilly bins found in one of the rooms. When opened, it contained processed sea cucumbers wrapped in a plastic bag;
14. The boxes and chilly bins were loaded onto the vehicle before they joined the team at Fugalei. From there, they headed to the Fisheries Office with the sea cucumbers seized, the accused and another Chinese worker.
15. The seizure included 11 white chilly bins and 5 boxes of dried sea cucumbers; and a large green rubbish bin and bucket full of species that had not been fully dried. The dominant species identified using the SPC chart was the holothurian scabra or sandfish. The species were sorted and weighed. The 12 white chilly bins (Exhibit P1) weighed 431kg, not including a sack and a large basin of species which the Officers considered small scale in size.
16. The evidence of Mr Fepulea’i is that the main overseas market for sea cucumbers is Asia, and according to a study conducted by SPC, the market value for processed sea cucumbers in Hong Kong is not more than USD$800.00 per kilogram.
17. Because of the large quantities of sea cucumbers found, how it was processed and sealed in plastic bags and packed in bins and boxes to preserve quality, the Officers became suspicious and determined that the processing were for commercial and export purposes.

Process regarding Licences

18. The process for obtaining a licence to operate a fish establishment is explained in the evidence of Mr Fepulea’i and Ms Samuelu Ah Leong. The Fisheries Division receive applications for different licences under the Fisheries Act, and make recommendations to the Minister to approve or decline the application. One of such licence applications is for fish processing units or facilities. Where the fish or species are to be used for commercial and export purposes, such units or facilities are required.
19. In relation to sea cucumbers, an applicant is required to set up his own farm or hatchery. When MAF is satisfied that the quantity available is sufficient to meet the demand, the applicant then looks to setting up a processing facility. Under the guidelines, only those who farm may and are allowed to export.
20. The processing of sea cucumber for commercial use is known as the Bech-de-mer fishery. It involves collecting sea cucumbers, boiling and cooking, applying salt and drying, packaging for export or use locally. The process is regulated by the Ministry because of the commercial nature of the fishery and with the demand in overseas markets, overfishing has had an impact on its sustainability. The fishery therefore requires a licence. According to Ms Samuelu Ah Leong, only 2 licences had been issued for bech-der-mer fishery in Samoa, one at Laulii and one at Apolima, both of which have their own farming facilities.

Accused’s interview

21. The accused elected not to give or call evidence. But he was interviewed by Mr Fepulea’i in the presence of Mr Faasili, Mr Saumani, Mr Amosa and Ms Stella Tuuau who recorded the interview. A typed record of the audio recorded interview was produced as Exhibit P4 and so was the record (Exhibit P5) taken by Ms Tuuau.
22. In response to questions from Mr Fepulea’i, the accused explains in the record of the interview that for about 2 months since December 2015, 3 men had brought in 5 to 6 sacks of sea cucumber for $60.00 to $80.00 a sack. The species are then processed by cooking, applying salt and drying either naturally or using an oven. The processed species are then packed in plastic bags and boxes to prevent moist and stored for use in the restaurant. The workers responsible for processing include the accused, a Chinese chef named Feng Mo, a Samoa male named Mu and female named Maiena.
23. The accused denies that the species are processed for export or use elsewhere. He says that they were used as ingredient in a dish available only on their Chinese menu at $90.00 to many Chinese who come to Samoa to visit. Following the interview, the Officers with the accused’s knowledge and consent obtained copies of receipts (Exhibit P6) from the restaurant of purchases made for the sea cucumber dish on the Chinese menu. The 10 receipts, dates unknown show the quantity and price of the sea cucumber dish sold to the Chinese customers. The total sum paid for the 10 different purchases made according to the Summary is $510.00.

RELEVANT LAW

24. Section 10B of the Fisheries Act 1988, governs the export and import of fish. The section relevantly states as follows:

“(1) The Minister ... may prescribe the categories of fish or fish products which shall not be exported from Samoa;

(2) The Minister may impose conditions relating to the export of fish or fish products, and conditions that may relate to:

(a) Species or types of fish or fish products which require approval from the Chief Executive Officer before export;
(b) ...
(3) The Minister may make provision for the issuance of certificates regarding compliance with the terms and conditions governing the export of fish;
(4) The Minister may delegate in writing to the Chief executive Officer any or all of his powers to impose conditions relating to the export of fish or fish products;
(5) No person shall import or export, any live fish from Samoa without the permission in writing of the Minister;
(6) A person who contravenes this section commits an offence and is liable to a conviction to a fine not exceeding 50 penalty units.”

25. As framed and to sustain the charge, prosecution must satisfy the Court beyond reasonable doubt of the following ingredients:
    • (a) The accused;
    • (b) Operated a fish processing plant for sea cucumber fishery;
    • (c) For export purposes;
    • (d) Without approval from the Chief Executive Officer
26. Section 10C relates to the operation of fish processing establishments. It provides as follows:

“(1)The Minister may grant to any person, a licence upon such conditions as the Minister thinks fit and taking particular account of the potential impact on the environment to operate a fish processing establishment on payment of such fee as may be prescribed;

(2) A person who operates or allows to be operated any fish processing establishment, except under a licence granted under this section and under the conditions of that licence, commits an offence and is liable on conviction to a fine not exceeding 50 penalty units;
(3) In this section, “fish processing establishment” means any land, premises or other place on or in which fish are canned, dried, gutted, salted, iced, chilled, frozen or otherwise processed for sale in or outside Samoa.”

27. To sustain the charge as framed under this section, prosecution must prove beyond reasonable doubt the following ingredients:
    • (a) The accused;
      • (b) Operated a fish processing establishment for sea cucumber fishery;
    • (c) without a licence;
28. As to the sufficiency of the particulars contained in an information, section 16 of the old Criminal Procedure Act 1972 provides as follows:

“16(1) Every information shall contain such particulars as will fairly inform the defendant of the substance of the offence with which the defendant is charged.

(2) The particulars of the nature of the alleged offence shall, so far as is possible, use the words of the enactment creating the offence, and may refer to any portion of that enactment, and, in estimating the sufficiency of any such information, the Court shall have regard to such words or reference.

...

(4)) Except as hereinbefore provided, no information shall be held to be defective for want of form or substance.”

DISCUSSION

Charges

29. It was submitted by the defence that the 2 information disclose no offence. They say that there is ambiguity in the wording of the charges in relation to sections 10B and 10C of the Act and that in accordance with the principles in determining the meaning of penal statutes in Beckwith v. R [1976] HCA 55; 12 ALR 333 and Massey v. Boulden [2002] EWCA Civ 1634; [2003] 2 All ER 87, the wording of the information must be strictly construed in favour of the accused.
30. The first ground for the submission is that the words ‘sea cucumbers’ in the information are not included in the definition of ‘fish’ under section 2 of the Act. Whilst the terms ‘holothurian (beche-de-mer) or other echinoderm’ are stated, the defence argues that because there are numerous varieties and types of species, it is imperative that the correct prohibited aquatic animal be stated in the definition and accordingly in the information.
31. I do not agree. The evidence of Ms Samuelu Ah Leong is that sea cucumbers (fugafuga) is the general term used and refers to about 300 different species found in tropical Pacific. The most common of the species discovered in the operation were ‘maisu’ (greenfish) and scabra (sandfish) as identified using an SPC Chart (Exhibit P7). The Chart itself is headed ‘Echinoderms – Sea Cucumbers’. Ms Samuelu Ah Leong further says that the term beche-de-mer fishery refers to the process of collecting, boiling and drying sea cucumbers. The words ‘holothurian’ (beche-de-mer) or other echinoderm’ in the definition therefore in my view, ordinarily includes ‘sea cucumbers’ as stated in the 2 information.
32. The second ground is that both information state a ‘fish processing plant’ whereas the charging provisions of sections 10B and 10C state a fish processing ‘establishment’. I do not think the difference in the words ‘plant’ in the information’ and ‘establishment’ in the charging provisions should render the information defective. The allegation is that the accused had carried out a process of collecting, boiling, drying and packing sea cucumbers at his restaurant and hotel premises. Whether the operation involves the use of plant or machinery is immaterial. The significant factor is the process and that it was, as alleged, being carried out on the accused’s land or premises. Such is consistent with the definition under section 10C. Prosecution also refer to the term ‘fish processing establishment’ in their closing submissions. I find that there is no ambiguity in the wording of the Act and information. The use of ‘fish processing plant’ instead of ‘fish processing establishment’ in the information does not render it defective.
33. Defence also seem to suggest that in relation to section 10B the only prohibition is that under s10B(5) relating to the export or import or attempted import or export of live fish from Samoa without approval of the Minister, so that the only offence that could properly be brought under s10B is where there is non compliance with s10B(5). If such as I understand is the defence view, then I do not agree. Section 10B governs the export and import of fish. Subsection (1) gives the Minister power to prescribe the categories of fish which shall not be exported from Samoa; (2) allows for the imposition of conditions relating to the export and import of fish; (3) provides for the issuance of certificates regarding compliance with terms and conditions imposed and (4) allows the Minister to delegate his powers to impose conditions to the Chief Executive Officer. Subsection (6) then provides that “a person who contravenes this section commits an offence and is liable on conviction to a fine ...”
34. The clear reference under subsection (6) relating to which part of section 10B needs contravention to constitute an offence is ‘this section’, meaning section 10B. No specific reference is made to any subsection including s10B(5). It follows therefore that where a person contravenes any conditions imposed under s10B, a charge may properly be brought under this section.
35. In my view, the particulars on both information so far as possible refer to and use the words of the enactment, and fairly inform the accused of the substance of the offences.

Wrong Defendant

36. It is further argued by the defence that the accused is the wrong defendant. They refer to section 3, Acts Interpretation Act 2015 which defines ‘person’ as including “a corporation sole or a body of persons whether corporate or unincorporated” and suggest in view of the evidence of the 2016 Treasure Garden Co Ltd business licence (Exhibit D2), restaurant menu (Exhibit P2) and receipts (Exhibit P6), that if any person should be charged, it is the company that owns the restaurant, not the accused.
37. It is trite law that a company is a separate legal entity from its shareholders and directors. But just because the sea cucumbers were processed and found on the company’s restaurant premises does not mean that the company should be the proper defendant. The issue is whether the evidence supports a finding that the accused person is the proper defendant. In this case, the accused identified himself as owner of the restaurant and hotel businesses; he was sent for when the team arrived; he met with the team and showed them around inside the restaurant where the species were processed and stored; he dealt with the people who collected and sold to him the sea cucumbers and never denied being the owner of the sea cucumbers. In fact, he admits to being the owner in the record of the interview (Exhibit P5). When asked who owned the fugafuga (sea cucumbers), his reply was “E tusa o matou o ona mea, o a’u e ona.”
38. On that evidence, I do not find that the accused is the wrong defendant.

Information D3492/16

(i) The accused

39. For the same reasons in paragraph 37 above, I find proven that the accused is the proper defendant.

(ii) Operated a fish processing plant for sea cucumbers

40. I also find proven that the accused had carried out the processing of sea cucumbers at both Savalalo and Fugalei. There is overwhelming and undisputed evidence of sea cucumbers being collected and sold to the accused, boiled, salted, dried, wrapped and packed in plastic bags, boxes and chilly bins and stored at the accused’s premises. The process is also explained in detail by the accused in his statement to the investigating officers.

(iii) For export purposes

41. Sections 10B(1) to (4) relate to conditions that the Minister or Chief Executive Officer may impose on the export of fish. In his statement to the investigating officers, the accused denies that the sea cucumbers were for export. He says that the species were processed and packed for use in the restaurant as ingredients for a dish available only on a separate Chinese menu and for their Chinese customers.
42. There is no evidence that the accused had sold or exported any sea cucumbers. But prosecution rely on the evidence of large quantities found at the premises; the way they were processed and packaged; and the known demand for sea cucumbers in Asian markets, and argue that the only reasonable inference is that they could not have been processed, packed and stored for use locally but overseas export.
43. I am inclined to accept the submission by prosecution. There was a significant amount of sea cucumbers found on the accused’s premises, all in different phases of processing. The seizure included 11 chilly bins and 5 boxes of dried sea cucumbers; a large green rubbish bin and bucket full that had not been fully dried. The 12 chilly bins (Exhibit P1) weighed a significant 431kg, not including a sack and a large basin of species which the Officers considered small scale in size. Most had been fully processed and were carefully packed in plastic bags and boxes and stored.
44. It is not disputed that sea cucumbers are a popular delicacy amongst Asians. But despite the large quantities seized, the accused says that their only use was in the form of ingredients for a meal that is sold at the restaurant at $90.00 per dish and to some of their Chinese customers only. I do not find reliable that part of the statement by the accused. I find that the quantities collected and processed are significantly huge compared to a demand for use in meals that were available to only some of the Chinese customers. The packaging as the accused explains was to prevent the sea cucumbers from moist and preserve its quality. There is no evidence that the processed sea cucumbers were being sold locally and it is not disputed that the main market is in Asia. The only reasonable inference that the Court can draw is that the sea cucumbers found on the accused’s premises were for export purposes.
45. I therefore find proven this element of the charge.

(iv) Without approval from the Chief Executive Officer

46. I also find proven this element. The clear evidence of Ms Samuelu Ah Leong is that at the time of the operation, only 2 applications for beche-de-mer fishery were approved and granted licences. These were located at Laulii and Apolima, both of which have farming facilities. No application was received from and / or approved for the accused.
47. I am satisfied therefore that the prosecution has proven the charge of operating a sea cucumber fishery for export purposes without approval in contravention of 10B of the Fisheries Act 1988.

Information D3493/16

(i) The accused

48. For the same reasons in paragraph 37 above, I find proven that the accused is the proper defendant.

(ii) Operated a fish processing establishment for sea cucumber fishery

49. Section 10C(3) defines a ‘fish processing establishment’ as “any land, premises or other place on or in which fish are canned, dried, gutted, salted, iced, chilled, frozen or otherwise processed for sale in or outside Samoa.”
50. The undisputed evidence is that at both Savalalo and Fugalei, large quantities of sea cucumbers were boiled, salted and dried. Some were frozen but most were carefully wrapped in plastic bags, then packed in boxes and chilly bins and sealed with tape.
51. For the reasons in paragraphs 41 to 44 above, I find that the sea cucumbers were processed for sale outside Samoa.
52. I find therefore proven the second element

(iii) Without a Licence

53. It is also not disputed that the accused’s operation was without a licence required under section 10C(1).
54. I also find proven the charge of operating a fish processing establishment without a licence under section 10C of the Fisheries Act 1988.

RESULT

55. For the foregoing reasons, I have reached the following conclusions:
    • (i) On the charge of operating a sea cucumber fishery for export purposes without approval in contravention of 10B of the Fisheries Act 1988 (D3492/16), I find the accused guilty of the charge;
    • (ii) On the charge of operating a fish processing establishment without a licence under section 10C of the Fisheries Act 1988 (D3493/16), I also find the accused guilty of the charge.
56. I note that in the past when this matter was scheduled to be called for the Court to deliver its decision but further adjourned, the accused has not made an appearance. The advice by Counsel is that he had been and is also currently overseas. Counsel was unaware that he had travelled and no application was ever made by the accused for leave to leave the jurisdiction. A warrant of arrest is issued for his non appearance. I also order that upon the accused’s return and execution of the warrant, he is to remain in custody and brought before the Court to assign a sentencing date.
57. I again apologise for the long delay in handing down this decision.

JUDGE FEPULEAI A ROMA