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Police v Qinping Yan [2024] WSDC 2 (3 July 2024)

IN THE DISTRICT COURT OF SAMOA
Police v Qinping Yan [2024] WSDC 2 (03 July 2024)


Case name:
Police v Qinping Yan


Citation:


Decision date:
03 July 2024


Parties:
POLICE (Plaintiff) v QINPING YAN (Defendant)


Hearing date(s):



File number(s):
D1258/20, D1259/20


Jurisdiction:
CRIMINAL


Place of delivery:
District Court of Samoa, Mulinuu


Judge(s):
Judge Mata’utia Raymond Schuster


On appeal from:


Order:
Illegal export
  • The defendant is convicted and ordered to pay a fine of SAT$130,000 such amount shall be paid and evenly distributed to the Ministry of Customs and Revenue and MAFF.
Bribery
  • The defendant is convicted and ordered to serve six (6) months in prison less time in custody.
  • Upon release from prison, the defendant will immediately be deported and declared a prohibited immigrant pursuant to section 29(1) and 30(1)(g) of the Immigration Act 2004. The defendant will remain a prohibited immigrant for a period of five (5) years from the date of the order by the responsible Minister of Immigration should the Honourable Minister see fit and appropriate.
  • Preparations and finalization of payment of fine and deportation shall be completed whilst the defendant serves his time in prison
  • However, should the defendant be unable to pay or complete payment of his fine on the last day of his 6 month imprisonment term, the deportation will be deferred and the defendant will be remanded in custody to appear before this court for further sentence. The indicative sentence will be a further imprisonment term for the prohibited export charge.
  • For certainty, should the defendant complete payment of the fine but after the expiration of the time ordered above, the payment out of time will not exonerate the defendant from his imprisonment term under section 249(3)(a) of the Act. It will be imposed as a combination of the 2 penalties available to the court.


Representation:
Ms Iliganoa Atoa for Prosecution
Ms Muriel T. Lui for the Defendant


Catchwords:
Charges, personal characteristics of the Defendant, the offending, aggravating and mitigating features of the offending, prosecution sentencing memorandum, tariff in other jurisdictions, discussion, sentence


Words and phrases:


Legislation cited:
Customs Act 2014 ss. 92(1)(b); 249(1)(b); (3)(a), Crimes Act 2013 ss. 137(2); 138.


Cases cited:
Ministry of Agriculture and Fisheries v Chen Pao Yuan [2019] WSDC 9 (9 April 2019);
Police v Van Dung [2019] WSDC 14 (27 November 2019);
Fields v R [2011] NZSC 129 which cites the following cases: National Prosecution Office v Stowers [2016] WSCA 6; Police v Samau WSSC 12 November 2010 (unreported); Police v Feepo [2011] WSSC 123; Police v Tausili [2015] WSSC 70; R v Noone [2016] NZHC 2970;
Police v Ah Tran Thi [2020] WSDC 1 (27 January 2020 - Judge Kerslake);
R v Afu [2021] TOSC 145 (Tonga);
R v Finau [2008] Tonga LR 106;
National Fisheries Authority v Nguyen Van Phue [2017] PGDC 27;
National Fisheries Authority v Taihu [2020] PGDC 19;
National Fisheries Authority v Peter Momona GFC 14/2017;
National Fisheries Authority v Kong Chiong Lik GFC Cr 20/2018;
National Fisheries Authority v Ye Weixiong GFC 06, 07 & 09/2020;
National Fisheries Authority v Weng Qing Chen DC 406/2020;
Regina v Do Van Va [2017] SBHC 118; HCSI-CRC 185 of 2017 (14 July 2017).


Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU


BETWEEN:


P O L I C E


Informant


A N D:


QINPING YAN male and temporary resident of Vaimoso and the Peoples
Republic of China


Defendant


Counsel: Ms. Iliganoa Atoa for Prosecution
Ms. Muriel T. Lui for the Defendant


Sentence: 03rd July 2024


SENTENCING DECISION OF JUDGE SCHUSTER

Charges

  1. The accused appears for sentencing following guilty pleas on two (2) charges. The first is in relation to unlawful exportation pursuant to section 92(1)(b), section 249(1)(b) and 249(3)(a) of the Customs Act 2014 (hereinafter referred to as the Act) which states:
  2. Section 249(4) makes it clear that a defense that the defendant was not aware or had no reasonable cause to believe that the goods were prohibited from export was not available under this provision:
  3. The first charge is worded:
  4. The second charge relates to bribery pursuant to section 137(2) of the Crimes Act 2013 (hereinafter referred to as the CA2013) which states:
  5. The second charge is worded:

Personal characteristics of the Defendant

  1. The Defendant at the time of the offending was a 34 years old male, a citizen of China from Fujian Province and temporarily resident in Samoa on a work permit. He is married with one (1) child and both the wife and child live in China. He’s parents operate a brick making business and he has one brother and a sister in China of which he is the middle child. He is well educated having attended Jimei University in Fujian majoring in computers, software and networks.
  2. The Defendant arrived in Samoa in 2017 and continues to reside here. The Defendant is employed as a manager of a business called Best Value in Samoa.

The Offending

  1. The Defendant over a period of time that is not stipulated by the Prosecution acquired a large amount of valuable sea food species for the purpose of export. These species are detailed in the table below provided by the Prosecution:
Samoan name of species
English name of species
Weight in kg
Estimated USD value per kg in Guangzhou
Total USD value in Guangzhou
Susuvalu uliuli
Black Teat fish
103.5
161.00
16,663.50
Fugafuga
Brown Sand fish
730.05
55.00
40,152.75
Loli Aau
Deepwater Black fish
1416
77.00
109,032.00
Maisu
Greenfish
45.85
100.00
4,585.00
Fa’atafa
Prickly Red fish
1
107.00
107.00
Mama’o
Red Surfish
2998.64
72.00
215,902.08
Ulutunu
Tiger fish
948.45
63.00
59,752.35
  1. The summary of facts state that on the 23rd of April 2020, a 20-foot container namely TEMU 3398980 under the name of “Tom” was presented obtaining goods for export. This container was confiscated by the Ministry of Customs and Revenue (MoCR) suspicious that the contents contained prohibited sea animal species.
  2. In an effort to clear the container for export, the defendant made all attempts to meet with the Chief Executive Officer (CEO), Mrs Avalisa Viali-Fautualii via mobile phone calls and text messages. The defendant offered for a dinner meeting where a “meaalofa” was to be passed on to her in return for her help.
  3. The CEO rejected the defendants offer but he persisted and went to the CEO’s home at Vailele. It was at Vailele that the defendant blatantly handed the CEO SAT$5,000 cash in an envelope for her assistance to avoid examination of the container. The CEO held on to the money and handed it in to the Customs investigation team the next day 24th April 2020.
  4. The Customs Officers and Officers of the Ministry of Agriculture and Fisheries (Quarantine Division) opened the confiscated container and found 202 sacks of sea cucumbers and other similar species. The large number of sacks is evidence that this operation must have been done over a substantial period of time.
  5. After some time whilst awaiting sentence, counsels for the Prosecution and Ms Lui for the Defendant agreed to a total weight of 6,214.79 kilograms. Counsels further agreed to the value of the prohibited goods to be as that estimated in the China market specifically Guangzhou USD$446,194.68 as opposed to Hong Kong which is USD$876,935.15.

Aggravating features of the offending

  1. Bribery to facilitate the exportation of prohibited goods is a serious offence that attacks and threatens the very fabric of any society whether democratic or not. Although charged separately under two different legislations, I approach the charges in sentencing as complementary and holistic. This means that the act of bribery was necessary to facilitate influence on the officials to turn a blind eye and allow the export of prohibited goods to pass through the usual checkpoints. This would require the officials to make false entries about the goods being exported.
  2. In respect of the accused’s offending, the prosecution submits seven (7) aggravating features as highlighted in their sentencing memorandum. These are:

Manipulation of the system – the defendant was adamant that the offering of large amounts of money with reckless disregard of the impact on society as a whole was going to open doors. This was especially evident in a society where the offering of gifts sometimes in monetary form was seen as culturally acceptable and he took the opportunity to manipulate that practice;

The seriousness of the offending - Parliament has assigned seven (7) years imprisonment for bribery and $300,000 maximum fine or six (6) years imprisonment for prohibited export. The penalty alone suggests of the seriousness of the offence in order to deter persons from this type of offending and to protect Samoan wild life species and its’ ecosystem;

Quantity and value of species – such large amounts acquired by one offender has alarming consequences for the sustainability and continued existence of the different species and will also negatively impact on Samoa’s marine ecosystem;

Impact on the environment and the water quality of marine life – sea cucumbers extract bacteria and organic matter from the bottom sediments where some are responsible for bio-perturbation and oxygenation of sediments on the sea floor. The removal of large amounts of sea cucumbers will change the condition and nature of the sea floor sediments which will affect the sea water quality in low lying reef areas;

Undermining Samoan border control – the defendant was willing to test the resolve of Samoa’s border control in a way that would undermine its’ integrity without regard to the consequences that may befall on the future, career and livelihood of the border control officers;

The impact of the offending on the Ministry of Revenue – the Ministry has incurred costs in relation to man hours investigating this matter as well as the storage fees for the detained species. Furthermore, the Ministry must now also incur costs as to deal with the confiscated species whether by auction depending on whether the items can be consumed or to discard as unsafe for public consumption;

The need for deterrence – this seems to be the first case of this kind where a large quantity of sea species was presented to Customs knowing the goods to be prohibited for export for the purpose of gaining considerable profit in the Asian market. In 2016[1], a local businessman was convicted and fined SAT$2,000 for operating a sea cucumber fishery for export purposes without a licence. The goods weighed 431 kilograms with a value of USD$800 per kilogram bringing the total value to USD$344,000. It seems a relaxed monitoring system and lenient penalties may not deter like-minded persons from continuing this illegal activity in future given the financial rewards.

  1. Ms Lui for the defendant does not dispute any of the aggravating factors but primarily focus on the penalty.
  2. Although the defendant suggests in his affidavit of 1st July 2022 that he may not have understood prior to and during the offending that his actions were a serious breach of the law in Samoa, the quantity of prohibited goods and cash amount offered as a bribe is evidence that he knew the risk was high but the reward made it financially worthwhile. It logically follows the intent of the defendant was not only to influence the CEO but through the CEO influence other Customs and Quarantine officials to be parties to the defendant’s illicit plan. The bribe therefore was not just the CEO but potentially to all the other officials who were to be part of the chain clearing the container.
  3. It was fortunate in this case that then CEO possessed the integrity and resolve to resist the bribe and investigate the matter. Her actions are commendable and an example to all monitory and regulatory officers in order to deter future offenders.

Mitigating features of the offending

  1. There are no mitigating factors of the offending.

Aggravating factors of the offending

  1. This is pre-meditated offending inspired purely by the desire for a huge financial pay out on goods acquired from a small island state that has limited resources to offer the world. It is reasonable to infer that the defendant knew that a substantial amount of cash had to be made available to open doors enabling the passage of the prohibited goods to be exported.
  2. With this type of offending inspired by greed and riches, offenders have no or very little regard to the sustainability of the resource, the people who rely on it, the environment and the government that manages overall.

Mitigating factors of the offending

  1. The prosecution acknowledge that the previous good character of the defendant and his guilty plea to the charge are mitigating factors in favour of the defendant.

Previous sentencing Tariff on bribery of an officer or an official

  1. The law as to official corruption and bribery in relation to sections 137 and 138 of the Crimes Act 2013 is well settled in Samoa[2] as well as the standard for sentencing. The sentencing policy is imprisonment unless there are very special circumstances that speak in favour of an offender and warrant a sentence other than imprisonment.
  2. In a recent case of Police v Ah Tran Thi[3], the accused, a 24 years old Vietnamese national went through Customs checkpoint at Faleolo International Airport on her way to American Samoa. She was found with tablets that were later confirmed to be narcotics. During the search, she offered USD$50 to the Customs officers to avoid searching her bags. When subsequently questioned by Police, she offered USD$1,000 if the police officer would help her.
  3. She was charged with two (2) counts of corruption and bribery of law enforcement officers pursuant to section 137(2) of the Crimes Act 2013.
  4. His Honour Judge Kerslake took six (6) months’ imprisonment as the starting point. For the USD$1,000 bribe, two (2) months was deducted for the defendants’ guilty plea and a further one month for her remorse, prior good character and personal factors. The defendant was convicted and sentenced to three (3) months’ imprisonment less any time remanded in custody. For the bribe of USD$50, the defendant was convicted and sentenced one (1) month imprisonment to be served concurrently with the three (3) months sentence.
  5. The defendant was further ordered to be deported immediately upon release.

Prosecution sentencing memorandum

  1. The prosecution recommends for the bribery matter that the defendant be convicted and the two (2) weeks he was held in custody be time served.
  2. In relation to the prohibited export charge, the prosecution revised sentence recommendation suggests:

Tariff in other jurisdictions

  1. Ms Lui has offered alternative tariffs from Tonga and Papua New Guinea tabled below. The last case was from the Solomon Islands.
Case name
Facts
Sentence
R v Afu [2021] TOSC 145 (Tonga)
The accused was found with 784 sea cucumbers worth T$24,000 in breach of the Fisheries Management (Conservation) Regulation and section 102 of the Fisheries Management Act. The penalty is a maximum fine of T$250,000
The offending was commensurate with a starting point of 10% of the market value of the goods. The accused was fined T$2,400 (SAT$2,809.68) in default 3 months imprisonment.
R v Finau [2008] Tonga LR 106
The accused was charged attempting to export 9000 sea cucumbers contrary to the Fisheries Management Act 2002 which carries fine of T$500,000 or 1 year imprisonment or both
The accused was fined T$1,000 (SAT$1,170.70).
National Fisheries Authority v Nguyen Van Phue [21017] PGDC 27
The defendant was charged with 3 offences: (i) harvesting, (ii) processing and (iii) fishing for sea cucumbers without an access agreement in PNG waters in contravention of the Fisheries Management Act 1998. The total combined weight of sea cucumbers was 3158 kgs valued at USD$467,079.90 or K$1,438,606.10. The defendant pleaded guilty to all 3 charges. The maximum penalty is K$500,000.
The court rated the seriousness of the offending on the high end of 8/10. The starting point was determined at K250,000 or three years was considered consistent with the rating. The defendant was fined K$50,000 (SAT$35,648.90) for each charge in default 4 years imprisonment. The fines or default imprisonment were to be concurrent.
National Fisheries Authority v Taihu [2020] PGDC 19
The defendant was charged with 2 charges: (i) buying 379.59 kg of sea cucumbers and (ii) storing in contravention of the Fisheries Management Act 1998 and the Fisheries Managements (Amendment) Act 2015. The market value was USD$189,789 or K$649,583.66. Maximum fine was K$500,000
Principal Magistrate Lavutul took a starting point of K5,000 in default 2 years in prison and six months hard labour. The mid-point would be K15,000 in default 2 years in hard labour. The defendant was fined K15,000 (SAT$10,943) for each charge in default 1 year and 6 months hard labour. Sentence to be concurrent.
National Fisheries Authority v Peter Momona GFC 14/2017
The defendant was trading 26.4 kg of Beche-de-mer to the value of K$1,190
Convicted and fined K5,000 (SAT$3,564.89) in default 2 years in prison.
National Fisheries Authority v Kong Chiong Lik GFC Cr 20/2018
Dealt with 100 kg of Beche-de-mer
Convicted and fined K15,000 in default 2 years in prison
National Fisheries Authority v Ye Weixiong GFC 06, 07 & 09/2020
The defendant was trading 36.4 kg of Beche-de-mer
Fined K10,000 (SAT$7,129)
National Fisheries Authority v Weng Qing Chen DC 406/2020
4 charges of Possession of Beche-de-mer total weight of 194.12 kg
Fined K10,000 for each count in default 2 years hard labour; fine and imprisonment concurrent.
Regina v Do Van Va [2017] SBHC 118; HCSI-CRC 185 of 2017 (14 July 2017)
Count 2: The defendants using foreign fishing vessels were charged under s13A of the Fisheries (Amendment) Regulations 2009 for selling and catching beche-de-mer which carries maximum penalty of SBD$100,000 or 4 months prison

Count 4: (i) For the offence of buying, selling, storage and processing of fish and fish products for export (fish processing activities without an export licence) contrary to section 44(1)(a) of the Fisheries Management Act 2015 which carries a penalty of SBD$5 million or 5 years in prison
Count 2: They were fined SBD$50,000 (SAT$16,517) in default to serve a sentence of 4 months imprisonment.
(ii) Direct that the fine is payable within thirty (30) days herewith failing which the default period of 4 months is to be served concurrent to the sentence in count 1.
Count 4: impose a fine of $2,500,000.00 (SAT$825,838) in default to serve a sentence of imprisonment of 2 years.
(ii) Direct that the fine is payable within thirty (30) days and the default period is to be served concurrent to counts 1, 2 and 3.
  1. Ms Lui submits that a starting point for the prohibited export charge be set at SAT$150,000 as appropriate. Relying on the case of National Fisheries Authority v Nguyen Van Phue as a guide, Ms Lui recommends:
  2. As for the bribery charge, Ms Lui agrees with the prosecution that a conviction and the two (2) weeks spent in custody would suffice as time served.

Discussion

  1. Although the limited number of sentencing cases available for illegal export of sea species poses a challenge when balancing the mitigating and aggravating factors that must be considered, it does not follow that this necessarily leaves a void that handicaps judges from arriving at a fair and reasonable sentence. Even with the minimal number of previous sentencing precedents, I am assisted by the offending and penalty provisions of the legislation as well as expert insight from the MoCR and the Ministry of Agriculture and Fisheries (hereinafter referred to as MAFF) who are the experts that monitor and regulate this industry.
  2. The Papua New Guinea cases and Solomon Islands case assist greatly in considering the vast array of sentencing options especially as to what the starting point may be. What is consistent is the fact that in all three jurisdictions, the maximum monetary penalty for illegally exporting sea cucumbers and like species are significantly high: T$500,000 in Tonga, K$500,000 in PNG and SBD$5 million in the Solomons. However, only Samoa and the Solomons have complementary imprisonment terms of 6 years and 5 years respectively. Samoa, of the four, has the lowest maximum monetary fine.
  3. The only two cases that provided a starting point were National Fisheries Authority v Nguyen Van Phue and National Fisheries Authority v Taihu. In Van Phue, Principal Magistrate Kaumi rated the seriousness of the offending at 8 out of 10 for a total of 3158 kgs of sea cucumbers and other like species valued at USD$467,079.90 or K$1,438,606.10. Kaumi PM took the starting point of K$250,000 fine which was 50% of the maximum fine or 3 years in prison. The defendant was fined K$50,000 for each of the 3 charges concurrent of harvesting, processing and fishing sea cucumbers.
  4. In Taihu, Lavutul PM considered a starting point of K$5,000 or 2 years in prison for 379.59kgs of sea cucumbers valued at K$649,583.66. The defendant was convicted and fined K$15,000 or 1 year 6 months in prison.
  5. There seems to be no clarification as to the formula or rationale upon which the starting point was arrived at. This is not a criticism but just goes to show the complexity in dealing with sentencing offences of a commercial nature (get rich quick) and where the expertise of the regulating ministries would be of great assistance.
  6. I note the MAFF’s letter dated 28th September 2022 to the CEO of MoCR (a copy was disclosed to defense counsel) stating that sea cucumber stocks in Samoa remain below established regional healthy reference densities and have not improved since monitoring began in 2005. There were multiple reasons for the decline but one significant factor was the illegal and excessive harvesting which seems to be the most likely cause of the stock depletion. The Ministry prayed for robust monitoring of illegal exports to assist the conservation of local stocks.
  7. The depletion of stock is a major concern as well as the fact that sea cucumbers and like species add value to the quality of the water and sea floor. This factor, from a national and wholistic perspective, must in my view take the highest regard. All other consequential factors flow from a healthy or depleting stocks: primary food for local consumption, small or large farming enterprise, employment, etc.
  8. As a matter of deterrence, it seems logical to approach sentencing from a commercial perspective to deal with the greedy potential offender both at the high and low end enterprises. The overseas market value of the species is measured by weight and given the unsatiable appetite of the Asian markets for these types of sea species, the value is unlikely to decline. Therefore, the value is a given to be factored together with the weight.
  9. The current sentencing precedents appear to follow two formulas. The first is that the penalty is measured according to the value and weight of the species. The second is based on a percentage of the maximum fine.
  10. It follows that a table can be tabulated to set out certain financial penalties according to differing weights and value of export prohibited marine species. This may assist the issue of setting starting points for every case that comes to the courts for sentencing given the table provides a minimum and maximum ceiling depending on the weight of the goods, the maximum fine and personal circumstances of each case.
  11. Momona (26.4kg) and Ye Weixiong (36.4kg) cases involved lesser weights of marine species. The defendants received fines of K$5,000 and K$10,000 respectively in PNG. Like Van Phue and Taihu, the courts starting point was a percentage of the monetary fine. However, in Tonga, the entry point in the Afu and Finau cases was measured based on the market value of the products. The Court took a starting point of 10%. I consider the Momona and Ye Weixiong sentences, in my view, cover the lower end offending for a first offender.
  12. MAFF via the Office of the Attorney General provided two formulas for calculating the appropriate penalty which follows the Tongan model. What is important to note is that both the defendant and prosecution have agreed that the total weight of the marine species was 6,214.79kg and the total value being USD$446,196.68 or the equivalent of SAT$1,182,421.20. This means that the value per kilogram was USD$71.80 in the Guangzhou market. This is the equivalent of SAT$190.27 the value of the US dollar generally being SAT$2.65 in 2020, the year of this offending.
  13. In considering this table, I am attracted to the formula where the penalty is calculated based on the market value of the marine species as it was done in the Afu and Finau cases. This in my view would highlight the message of deterrence. The high demand and value of the marine species is the very reason offenders, especially foreigners, and like-minded persons are lured to participate in this illegal activity to the detriment of the Pacific small island local governments and its people.
  14. In developing this table, the increase in weight (which incorporates the market value) will correspond with the increase in financial penalty. As a starting point, I have taken monetary blocks of SAT$5,000 value assigned to every 50kgs of marine species. Therefore, the first and each ascending block is roughly about 50% - 52% of the market value of the marine species.
  15. I note that MAFF have suggested that their ‘Desired Market Value’ for sentencing would be 20% of the total actual market value of the goods in question and 10% of the actual market value would be the minimum starting point. That means the monetary penalty would be limited to just 10% within the minimum market value of 10% and the maximum desired value of 20%. Respectfully, I am of the view that this will hinder the desired effect of sentencing for this type of offence. Furthermore, I am of the view that setting a desired market value for sentencing below 50% of the market value would not be consistent, inter alia, with the deterrence factor of sentencing for this offending in this region especially.
  16. For ease of reference, I set out the table as follows:
Weight & value included
Desired Market value in Tala
Weight & value included
Desired Market Value in Tala
50kg or less
$5,000
551kg – 600kg
$60,000
51kg – 100kg
$10,000
601kg – 650kg
$65,000
101kg – 150kg
$15,000
651kg – 700kg
$70,000
151kg – 200kg
$20,000
701kg – 750kg
$75,000
201kg – 250kg
$25,000
751kg – 800kg
$80,000
251kg – 300kg
$30,000
801kg – 850kg
$85,000
301kg – 350kg
$35,000
851kg – 900kg
$90,000
351kg – 400kg
$40,000
901kg – 950kg
$95,000
401kg – 450kg
$45,000
951kg – 1000kg
$100,000
451kg – 500kg
$50,000
1001kg+
$100,001 +
501kg – 550kg
$55,000

  1. In applying this table, 50kgs or less of marine species will attract a maximum of $5,000 fine. The particular circumstances of each case will influence the consideration of what the appropriate and reasonable starting point shall be within and confined to the maximum $5,000 value. Where the offending exceeds 50kgs and not more than 100kgs in weight, the starting point shall not be less than $5,001. This rationale applies throughout the different weight classes right up to cases involving a maximum of 1000kgs of marine species.
  2. Where the weight of marine species exceeds 1000kgs, the formula does not change except for the fact that there will be a wider range for judicial discretion from $100,001 - $300,000 being the maximum fine for setting a starting point. In this category, the starting point shall not be less than $100,001.
  3. I note the concern from Ms Lui that applying such a mathematical formula where for example 10% of the total weight and market value may be taken as a starting point will eventually exceed the maximum fine based on the value of the marine species. This is the reason for capping the weight and corresponding value at 1000kgs to allow and envisage for that circumstance. There must be flexibility on the sentencing judge for sentencing and at the same time fair to both the offender and the interests of the State.
  4. I take into account that many of the previous cases involve weights below 1000kgs. Finau involved 9000 beach cucumbers but did not state the weight. This may be the trend and would most likely continue as higher volume may be too risky and obvious for detection. However, in the absence of harsh penalties, an attraction for higher volume catches despite the penalties may most certainly increase given the price the Asian markets are prepared to pay.
  5. This case by all means does not set a sentencing formula for offences of this nature in stone but a guide. It is highly likely that an even better approach may be put forward in future. I note that the MAFF are reviewing under regulations pursuant to the Fisheries Management Act 2016 a formula that may assist enforcement officers and judges in sentencing for this jurisdiction.

Sentence

Illegal export

  1. The defendant appears for sentence in relation to 6,214.79kgs of marine species destined for export to the Guangzhou market despite its legal prohibition. In giving effect to the act of illegal export, the defendant bribed the then CEO of the Ministry of Customs and Revenue $5,000.
  2. The gravity of this offending fall at the high end given the volume of the marine species involved. This would have conjured up great human effort, commitment, time and money. It could only be the rewards of a big payout over a short period of time that would inspire such motivation. In doing so, the defendant must have been prepared to do anything to ensure that he gets his financial reward.
  3. This being the first case with such a high volume of its kind in Samoa, bearing in mind that there is no ceiling to the human desire to always go a volume higher and test the limits, taking into account the gravity of the offending, the aggravating and mitigating factors, I set a starting point of $150,000 of the total value of the marine species (about 12%). I deduct 10% ($15,000) for the defendants’ guilty plea and 5% ($7,500) for his good character and personal circumstances.
  4. The defendant is convicted and ordered to pay a fine of SAT$130,000 such amount shall be paid and evenly distributed to the Ministry of Customs and Revenue and MAFF.

Bribery

  1. In relation to the bribery charge, this is a serious charge on its own as indicated earlier in this decision that cannot be considered trivial. The increase of such offending with ease and the amount of monies involved especially where our monitoring and regulatory ministries are targeted warrant harsh penalties particularly if it is to have the effect of deterrence. This goes for both the person who initiates a bribe and the receiver of a bribe.
  2. The most recent cases before the District Court it seems Asian foreigners were the prominent offenders. There is a suggestion from the defendant and the prosecution that this may be a common practice, but I suspect not condoned by law, in Asia. If that is the case, it is unfortunate that these foreign visitors are bringing such a practice here. That is not to say that bribery and corruption does not exist in Samoa but the line seems to be blurred between what is customary gift giving and giving for a specific return. The majority cases involving election petitions is testament to that particular issue. The bottom line must be made clear and therefore the warning and message from this case will not be blurred.
  3. I have considered the consensus by counsels for the prosecution and Ms Lui emphasizing the illegal export charge and minimizing the bribery charge. Respectfully, I disagree. Such leniency, as I would interpret it to be in my view, will send the wrong message to like-minded persons especially when the court has already dealt harshly with much lesser amounts in cases referred earlier in this decision.
  4. Corruption and bribery are a festering sore on any nation. It is judicially noted that the Samoan government has just endorsed its’ anti-corruption and bribery national policy. This policy may, in the near future, come into operation via legislation. This is indicative of the intention of the Samoan government to put a stop to corruption and bribery as it hinders on the democratic and economic development of this nation.
  5. Therefore, let this be a warning to like minded persons and government officials alike. If a person or persons participates in this offending in future especially where our regulatory ministries are involved, they should expect an imprisonment term.
  6. In this case, an imprisonment term is unavoidable unless there are exceptional circumstances to defer from that course. There are no exceptional circumstances. I take a starting point of 12 months’ imprisonment inclusive of the gravity of the offending. I deduct 2 months for the defendant’s guilty plea and another 2 months for his good character. I further deduct another 2 months as an act of mercy given the defendant is a foreigner, his personal circumstances and that the matter has been delayed for some time. The defendant is convicted and ordered to serve six (6) months in prison less time in custody.
  7. Upon release from prison, the defendant will immediately be deported and declared a prohibited immigrant pursuant to section 29(1) and 30(1)(g) of the Immigration Act 2004. The defendant will remain a prohibited immigrant for a period of five (5) years from the date of the order by the responsible Minister of Immigration should the Honourable Minister see fit and appropriate.
  8. Preparations and finalization of payment of fine and deportation shall be completed whilst the defendant serves his time in prison.
  9. However, should the defendant be unable to pay or complete payment of his fine on the last day of his 6 month imprisonment term, the deportation will be deferred and the defendant will be remanded in custody to appear before this court for further sentence. The indicative sentence will be a further imprisonment term for the prohibited export charge.
  10. For certainty, should the defendant complete payment of the fine but after the expiration of the time ordered above, the payment out of time will not exonerate the defendant from his imprisonment term under section 249(3)(a) of the Act. It will be imposed as a combination of the 2 penalties available to the court.

JUDGE MATA’UTIA RAYMOND SCHUSTER

[1] Ministry of Agriculture and Fisheries v Chen Pao Yuan [2019] WSDC 9 (9 April 2019)
[2] Police v Van Dung [2019] WSDC 14 (27 November 2019) Fields v R [2011] NZSC 129 which cites the following cases: National Prosecution Office v Stowers [2016] WSCA 6; Police v Samau, WSSC 12 November 2010 (unreported); Police v Feepo [2011] WSSC 123; Police v Tausili [2015] WSSC 70; R v Noone [2016] NZHC 2970.
[3] [2020] WSDC 1 (27 January 2020)

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