Police v Faoa [2001] WSSC 6 (23 February 2001)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA

IN THE MATTER OF reservation of a question of law by way of case stated
pursuant to section 111(5) of the Criminal Procedure Act 1972.

AND IN THE MATTER OF section 21 (5) of the Fisheries Act 1988.

BETWEEN

POLICE
(Prosecution)

AND

AFIOA’E TAUPAU FAOA
of Salua, Manono-tai, Fisherman.
(Defendant)

Counsel: M Leung Wai for police
H J Schuster for accused

Hearing: 6 February 2001
Judgment: 23 February 2001

JUDGMENT OF SAPOLU CJ

The accused is a 49 year old fisherman of Salua, Manonotai. On Tuesday, 29 August 2000 at around 5 am, he went in his canoe to the small island of Nuulopa, situated between the islands of Manono and Apolima where he exploded a dynamite near a school of mullets. The explosion killed many mullets which the accused gathered into his canoe. The accused sold most of the mullets for $300, leaving a few which were consumed by his family and neighbours. He was subsequently apprehended by the police to whom he confessed catching the mullets with the use of dynamite. The police charged him under sections 4(1) and 21(5) of the Fisheries Act 1988 for using an explosive, namely, a dynamite, to catch fish.

On 19 September 2000, the accused pleaded guilty in the District Court to the charge against him. The learned District Court Judge who dealt with the case, then adjourned it to 17 October for a probation report, summary of facts and sentencing. Ong. On that day, the District Court Judge further adjourned the case for sentencing and ordered Mr Leung Wai, the Principal Legal Officer of the Ministry of Agriculture, Forests and Fisheries to take over the prosecution from the police and to make legal submissions on the construction to be given to section 21(5) of the Fisheries Act 1988 which is the penalty provision under that Act. On 7 November 2000 the District Court Judge accepted Mr Leung Wai’s submission that the fine of $1,000 provided in section 21(5) is mandatory. However, His Honour, by way of case stated, reserved for the opinion of this Court the question of law whether or not the term of imprisonment further provided in section 21(5) is mandatory and is to be imposed in addition to the fine of $1,000 prescribed in the same provision.

Relevant provisions of Fisheries Act 1988

Section 4(1) of the Fisheries Act 1988, which is the offence provision under which the accused was charged, provides:

4. Prohibited Fishing Methods – (1) No person shall:

(a) Permit to be used, use or attempt to use any explosive, poison or other noxious substance for the purpose of killing, stunning, disabling or catching fish, or in any way rendering fish more easily caught; or

(b) Carry or have in his possession or control any explosive, poison or other noxious substance in circumstances indicating an intention to use such explosive, poison or other noxious substance for any of the purposes referred to in the preceding paragraph.

As the accused was charged with the use of an explosive, namely, a dynamite to catch fish, it would appear that the provision the police were relying on is section 4(1)(a).

The penalty for an offence under section 4(1) is provided in section 21(5) which provides:

“Any person who contravenes section 4(1) commits an offence and shall be liable on conviction to a fine of $1,000 and imprisonment for a term not exceeding 2 years, except that no sentence of imprisonment shall be imposed under this subsection for an offence committed in the exclusive economic zone.”

Submissions for police

Mr Leung Wai for the police presented well prepared written legal submissions on the question reserved in the case stated, that is, whether or not imprisonment provided in section 21(5) of the Act is mandatory and is to be imposed in addition to the fine of $1,000 prescribed in the same provision. The gist of his submissions is to be found in the last page where he submits that imprisonment under section 21(5) of the Act is not mandatory in addition to the fixed fine of $1,000 for the reasons:

(a) the way the term of 2 years imprisonment is expressed in section 21(5) clearly suggests that it is a maximum penalty and therefore it is not mandatory; and

(b) the absence of any minimum term of imprisonment further suggests that imprisonment is not mandatory; and

(c) the wording of section 21(5) is ambiguous and continues to remain ambiguous despite the application of section 5(i) of the Acts Interpretation Act 1974, so that the less harsh interpretation shall be applied in accordance with the principle against doubtful penalisation.

Resolution of issues

I am of the clear view that the term of 2 years imprisonment provided in section 21(5) of the Fisheries Act 1988 is a maximum penalty and therefore not mandatory. This is clear from the way the penalty of imprisonment is expressed in section 21(5) itself, which is that “imprisonment is for a term not exceeding 2 years.” This is also the usual way a maximum penalty of imprisonment is expressed in an offence or penalty provision.

If support be needed for that obvious conclusion, I refer to the case of Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561 which was cited by counsel for the police. In issue in that case was section 54(2) of the Fauna Conservation Act 1974 (Q) which was amended by section 5 of the Fauna Conservation Act and Another Act Amendment Act 1976 (Q). In its then amended state, section 54(2) provided:

“A person who commits an offence against this section is liable to a penalty of $2,000, and in addition to a penalty of twice the royalty payable on each fauna in respect of which the offence is committed.”

Section 54(2) was then further amended by section 11 of the Fauna Conservation Act and Another Act Amendment Act 1984 (Q) by substituting the words “not exceeding” for the word “of” before the words “twice the royalty payable.” In his judgment, Deane J said:

“It should be mentioned that the provisions of section 54(2) of the Act were further amended in May 1984 which was after the commission of the offence in the present case (February 1984). That amendment (Fauna Conservation Act and Another Act Amendment Act 1984 (Q), section 11), by the substitution of the words ‘not exceeding’ for the word ‘of’ before the words ‘twice the royalty’, made it expressly clear that the reference in the sub-section to a penalty of double the amount of royalty payable should be construed as a reference to a maximum and not a mandatory amount.”

I therefore accept the submission by counsel for the police that the penalty of imprisonment provided in section 21(5) of the Fisheries Act 1988 is a maximum penalty and therefore not mandatory.

I would also accept that if a minimum term of imprisonment was provided in section 21(5) in addition to the maximum term of imprisonment, that would have been a clear indication that imprisonment is mandatory as an additional remedy to the primary remedy of $1,000. The absence of a minimum term of imprisonment, however, would appear to leave the position unclear and doubtful whether imprisonment is mandatory as an additional remedy.

The next question, which is really the question raised in the case stated, is whether in terms of section 21(5) the Court has a discretion to impose or not to impose a term of imprisonment as an additional penalty to the prescribed fine of $1,000, already accepted by the District Court Judge as a fixed penalty, and not in issue in these proceedings. It was ably argued by counsel for the police in his well prepared submissions that the Court has a discretion to impose or not to impose imprisonment as an additional penalty to the fixed fine of $1,000 which is the primary penalty. Counsel’s submissions seem to imply that the Court only has a discretion to impose or not to impose imprisonment in addition to the fixed fine and that is the end of the matter and no more. He came to that conclusion after taking, what I consider, to be a lengthy and indirect route.

I accept that the Court has a discretion to impose or not to impose imprisonment under section 21(5) as an additional or secondary penalty to the primary penalty of $1,000 fine. But the matter does not stop and end there. The reason is that the Court may go further and impose a term of probation instead of imprisonment. Section 7(1) of the Offenders Probation Act 1971 provides:

“Where any person is convicted of any offence punishable by imprisonment, the Court may in its discretion, instead of sentencing him to imprisonment, release him on probation for a period specified by the Court, being a period of not less than one year nor more than 3 years.”

An offence under section 4(1) of the Fisheries Act 1988, which is the provision under which the accused was charged, is clearly an offence “punishable by imprisonment” by reason of the penalty provisions of section 21(5). Thus section 7 of the Offenders Probation Act 1971 applies, and the Court has a discretion not to impose imprisonment under section 21(5) but impose probation within the range of one year to three years. I do not think this interpretation of section 21(8) is out of line with the spirit of what Dixon J said in Byrne v McLeod [1934] HCA 61; (1934) 52 CLR 1, cited by counsel for the police, where His Honour said at p. 8.

“The principles of interpretation require that, in case of doubt, that meaning shall be adopted which will avoid harshness and will give the Courts authority to do what appears just in each particular case.”

No discourtesy is intended to counsel for the police, if the Court does not deal in detail with his submissions. But it appears to the Court that what counsel was really concerned about is that the imposition of a term of imprisonment in this case, in addition to the prescribed fine of $1,000, would be too harsh. Such a concern, on the part of counsel, if justified, could be met by the imposition of a term of probation instead of imprisonment.

As for the submission that there is an ambiguity in section 21(5) because of the absence of the words “in addition” (or words to like effect) immediately after the word “and” where it is used for the second time in section 21(5), I wish to turn to a dictionary definition of the word “and”. In Websters New Universal Unabridged Dictionary 2^nd edition, the word “and” is defined to mean, inter alia,;

“1. also, in addition, moreover, as well as.

2. plus, added to, as six and two makes eight.”

This dictionary definition would suggest that even in the absence from section 21(5) of the words “in addition”, the presence and use of the word “and” in the same provision could perform the same function and achieve the same meaning as the words “in addition”.

Furthermore in Byrne v McLeod [1934] HCA 61; (1934) 52 CLR 1 and Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561, cited by counsel for the police, the penalty provisions with which the Court had to grapple in those two cases, did not provide for an additional penalty of imprisonment which could have attracted the provisions of a legislation on probation or other lesser penalties. On that basis the penalty provisions in those two cases are quite different from the penalty provision in the present case.

For the foregoing reasons, the answer to the question of law posed in the case stated is that imprisonment is not mandatory but discretionary, and the Court in the exercise of its discretion may not impose imprisonment in addition to the fine of $1,000 prescribed by section 21(5) of the Fisheries Act 1988, but may impose probation in terms of section 7 of the Offenders Probation Act 1971.

CHIEF JUSTICE

Solicitors:
Ming Leung Wai for police
Fepuleai & Schuster Law Firm for accused