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State v Chen Chaolin [2003] FJHC 169; HAC0010J.2003S (26 June 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0010 OF 2003S

STATE

-v-

CHEN CHAOLIN

Mr N. Nand for State
Ms R. Lal for Accused

SENTENCE

Chen Chaolin, you have pleaded guilty to, and have been convicted on the following charge:

Statement of Offence

USING UNLICENSED FISHING VESSEL: Contrary to Section 16(1) of the Marine Spaces Act.

Particulars of Offence

CHEN CHAOLIN, on the 16th day of August, 2002 used for the purpose of fishing within the Republic of the Fiji Islands exclusive economic zone a foreign fishing vessel not licensed under the provision of the Marine Spaces Act for the purpose.

The facts are that you are Captain of a Foreign Fishing Vessel called “Fu Yuan Yu.” On the 16th of August 2002 you were fishing in Fiji’s exclusive economic zone without a fishing licence.

The maximum fine for an offence under section 16(1) of the Marine Spaces Act is $100,000. A consideration of comparable cases in the Pacific region indicates a range of fines from $2,000 per count to $10,000. The Supreme Court of Vanuatu in Public Prosecutor –v- Baek (1995) VUSC9 Crim. Case No. 44 of 1995 the captain of a foreign fishing vessel was charged with 3 counts of offences under the Vanuatu Fisheries Act. One count was for fishing without a licence the maximum sentence for which is Vatu 20,000,000. The catch was worth Vatu 2.5 million. The captain was sentenced to a fine (on one count) of Vatu 10,000,000 which is, I am told, the equivalent of $100,000 Fiji dollars. The catch was forfeited.

The Kiribati Court of Appeal in Xueqiang –v- The Republic and Shan –v- The Republic (1997) KICA 16 reduced a fine of $100,000 for a similar offence, to $6,000.00 after a consideration of the limited means of the appellant. In State –v- Jang Dong Myeong Crim. Case HAC 019 of 2002S I imposed total fines of $13,200 on 12 counts of offences under the Marine Spaces Act. I imposed $2,000 on each count of fishing in Fiji’s EEZ without a licence, scaling my sentence down from $5,000 (which would have been considered appropriate in the circumstances) because of the accused’s plea of limited means. In that case after considering the cases of Munin –v- Chen Sung Chizu and Hung Shang Yi Mag. Ct. Northern Territories, Public Prosecutor –v- Lin Shiow Her Supreme Court of Vanuatu (1993), Ministry of Agriculture and Fisheries –v- Dub chak and Others (1994) I considered an appropriate fine to be in the range of $2,000 to $7,000 per offence.

In this case I take into account your plea of guilty, your co-operation with the Fisheries Department and police, your limited means and your apology. I also accept that you did not commit the offence systematically and that this was a case of an isolated breach.

In this case, the catch was below $500 in value, which is not a large amount. However unlike the case of Jang Dong Myeong (supra) the catch was sold and the proceeds paid to the Company who owns the boat. I cannot therefore order forfeiture of the catch or its proceeds. In Jan Dong Myeong (supra) although I fined the accused $2,000 on each count, the total was $13,200 despite the accused’s limited means. In this case a sentence which you are able to pay and which reflects the seriousness of the offending must reflect the importance of protecting our marine resources in our island country. In all the circumstances I order that you pay a fine of $4,000 to be paid within 28 days in default 6 months imprisonment. The bonds you paid in the Magistrates’ Court must be returned to you. I make no orders for forfeiture of the boat.

Nazhat Shameem
JUDGE

At Suva
26th June 2003