Ministry of Agriculture and Fisheries v Yuan [2020] WSDC 11 (8 July 2020)

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU
Ministry of Agriculture and Fisheries v Yuan [2020] WSDC 11

Case name:	Ministry of Agriculture and Fisheries v Yuan
Citation:	[2020] WSDC 11
Decision date:	8 July 2020
Parties:	MINISTRY OF AGRICULTURE AND FISHERIES v CHEN PAO YUAN
Hearing date(s):
File number(s):
Jurisdiction:	Civil
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	JUSTICE FEPULEA’I A. ROMA
On appeal from:
Order:	On the charge of operating a sea cucumber fishery for export purposes without an approval, contrary to Section 10B Fisheries Act 1988, you are convicted and fined $2,000.00. On the charge of operating a fish processing establishment without a licence under section 10C Fisheries Act 1988, you are convicted and fine $1,000.00. The total sum of $3,000.00 must be paid by 2pm next Wednesday, 15 July 2020 in default, four months’ imprisonment.
Representation:	Q Sauaga for prosecution S Leung Wai for the Accused
Catchwords:	aggravating factors – mitigating factors – gravity of the offending–illegal processing of sea cucumber–maximum penalty – appropriate penalty – sentence
Words and phrases:	- operating a sea cucumber fishery for export purposes without approval - operating a fish processing establishment without a licence - holothurian scabra - accountable for the harm caused to the environment
Legislation cited:	Fisheries Act 1988 ss 10B, 10C
Cases cited:	National Fisheries Authority v. Nguyen Van Phuc [2017] PGDC 27; Rex v. Zhou [2014] TOSC 24; R v. Finau [2008] TOLawRp 21
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:
Mr. Q. Sauaga for Prosecution
Mr S. Leung Wai for the Accused

Sentence: 08 July 2020

ORAL SENTENCE OF JUSTICE ROMA

Charges

1. Defendant following a defended hearing in October 2016 and in a decision handed down in April 2019, I found you guilty of the following two charges under the Fisheries Act 1988.
   • (i) The first is operating a sea cucumber fishery for export purposes without approval contrary to section 10B;
   • (ii) The second is operating a fish processing establishment without a licence under section 10C.
2. Each offence carries a maximum penalty of a $5000 fine.

The offending

3. The charges arise out of a search operation for sea cucumbers involving the Fisheries division of the Ministry of Agriculture and Fisheries and the Maritime Unit of the Ministry of Police on the 2^nd February 2016, at two locations. Firstly, the Treasure Garden restaurant at Fugalei and secondly Treasure Garden Hotel at Savalalo, both of which establishments you owned.
4. At Fugalei, the officers discovered large quantities of sea cucumbers, some in bins and coolers being applied salt, some on trays in a cooking oven which appeared to be in the process of drying, some already dried and packed in plastic bags and some frozen in freezers.
5. At Fugalei the officers also found quantities of dried sea cucumbers being spread on the floor near the windows to catch the sun; dried sea cucumbers packed in six white chilly bins; and five packed chilly bins of processed sea cucumbers already wrapped in plastic bags.
6. The species were seized and together the seizure included eleven chilly bins of dried sea cucumbers, five boxes of dried sea cucumbers, and a large green rubbish bin and bucket full of species that had not been fully dried.
7. The dominant species was the holothurian scabra or sandfish. After being sorted, the twelve white chilly bins of process species weighed 431kgs, not including a large quantity that the officers considered small in size.
8. The evidence is that the main market for sea cucumbers is Asia, and that according to a study by the South Pacific Commission the market value for processed sea cucumbers in Hong Kong is not more than $800.00USD per kilogram.
9. Based on that study the value for the 431kilograms of processed species is not more than USD $344, 800.00

The aggravating factors

10. In relation to your offending these are the aggravating features:
    • (i) The detrimental impact on the environment and the water quality of Marine life. I have before me a victim impact report prepared by the Ministry of Agriculture and Fisheries, and I read part of the report which says:

“sea cucumbers play an important environmental role in the ecosystem, all sea cucumbers extract bacteria and organic matter from bottom sediments and some are responsible for bio-perturbation and oxygenation of sediments on the sea floor. Therefore intensive collection of sea cucumbers may cause changes to the condition and nature of sea floor sediments, impacts on related water quality and unknown impacts on other marine resources ...

Increased fishing and overharvesting means fewer reef areas retain sea cucumbers at densities high enough to reproduce successfully, and the remaining adults are becoming too scattered to produce the juveniles for recruitment.

The tragedy is that sea cucumber fisheries have the potential to maintain full security and supply consumption, as experienced in the Pacific and the Fishery had declined and collapsed in much of our region, as Marine product agents moved and opened new areas when traditional fisheries become less productive.”

(ii) The second aggravating feature is the impact of your offending on the resources. Again I read from the Victim impact report:

“the effect of illegally processing sea cucumber has resulted in the Ministry seeking resources and technical assistance from regional partners to conduct a nationwide assessment of the stock of sea cucumber. This had drained the Ministry’s funds that were earmarked for other development programmes as well as increasing staff costs involved with monitoring and surveillance of fishing activities around the country.”

(iii) The third aggravating feature relates to the large quantities of sea cucumbers seized. Of the seizure the processed species weighed 431 kilograms not including the large quantity of species considered small in size;
(iv) The fourth is your offending occurred for the purposes of gaining profit. Again 431 kilograms of processed species according to the evidence was worth not more than USD$345,000.00. That is very significant in value.

11. There are no aggravating factors personal to you as an offender.

The Mitigating factors

12. There are none in relation to the offending.
13. But personal to you as offender I take into account the plea by your counsel and the fact that you are a first offender.

Discussion

14. I am not aware of any previous sentencing decisions of the Courts of Samoa for this type of offending. This is also acknowledged by Prosecution in their Sentencing memorandum. But there is no doubt in my mind that the collection and processing of sea cucumbers in large quantities, has a huge detrimental impact on the environment in particular marine life.
15. As such, the sentence I impose must hold you accountable for the harm caused to the environment, it must denounce the conduct in which you were involved and deter you and other persons from committing the same offence.
16. Whilst there are no previous sentencing decisions on this type of offending, Prosecution has helpfully provided and relied on decisions from our Pacific neighbours Tonga and Papua New Guinea. The cases of National Fisheries Authority v. Nguyen Van Phuc [2017] PGDC 27; Rex v. Zhou [2014] TOSC 24; and R v. Finau [2008] TOLawRp 21.
17. Though not binding the cases show that illegal fishing and processing of sea cucumbers is common in the Pacific, and that the common penalty provided in the relevant legislation and imposed by the Courts is that of fines.
18. Again the maximum penalty under our Fisheries Act 1988 is a fine of $5,000.00 for each offence.
19. In your case Prosecution is seeking a monetary penalty of $1,000.00 on each charge.
20. I accept that a fine is the appropriate penalty.
21. I do not find however that $1,000.00 is the appropriate amount. Taking into account the gravity of your offending, the significant value of the sea cucumbers seized, its impact and the need for deterrence, I find that $1,000.00 recommended by Prosecution is too low.
22. In saying that I am also mindful that the maximum penalty under law is $5,000.00 for each offence.

Result

23. On the charge of operating a sea cucumber fishery for export purposes without an approval, contrary to Section 10B Fisheries Act 1988, you are convicted and fined $2,000.00.
24. On the charge of operating a fish processing establishment without a licence under section 10C Fisheries Act 1988, you are convicted and fine $1,000.00.
25. The total sum of $3,000.00 must be paid by 2pm next Wednesday, 15 July 2020 in default, four months’ imprisonment.

JUSTICE FEPULEA’I A ROMA