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National Fisheries Authority v Kong Chiong Lik [2018] PGDC 42; DC5002 (23 November 2018)

DC 4092

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS GRADE 5 CRIMINAL JURISDICTION]

GFC Cr. 20 of 2018
BETWEEN

National Fisheries Authority
Informant

AND

Kong Chiong Lik
Defendant

Kokopo: SLavutul

2018: 12^th, 14^th, 15^th November

CRIMINAL PRACTICE & PROCEDURE- Fisheries Breach Under the Fisheries Management Act of 1988- Section 58 (I) (h) – Without a Valid and Applicable Bechedemer (BDM) Buyers License Contrary to Section 46 (1) (a) FMA - Plea of Guilty –Submission on penalty – Mitigating and Aggravating Factors Considered.

CRIMINAL LAW- Fisheries Management (Amendment) Act-Offences, Penalties and Costs (Amendment of Section 58) - Increase in penalties-Maximum penalty in respect of a natural person, a fine not exceeding K500, 000.00. In default imprisonment for a term not exceeding five years- Sentence-Sentencing Guidelines discussed-Starting point-Relevant considerations are identified and considered.
Cases Cited
National Fisheries Authority –v- Peter Momona GFC 14/2017
State v Joe Sekin (2006) CR 1592 of 2000
Kenneth Andrew v Dennis Kokowei & 5 Ors NF 01-06 (5/02/16)
National Fisheries Authority v Nguyen Van Phuc, NFA 36/16
State v Jason Dungoia (13/12/00) N2038

References
NFA Act
Papua New Guinea National Fisheries Authority Judiciary Bench book 2015
The National Beche-De-Mer Fishery Management Plan
Criminal Code Act

Counsel

Senior Sergeant Patrick Mandrei Appeared for Prosecution.

Mr. Peter Waninara Appeared for Defendant.

SENTENCING
23^rd November 2018.

Samuel Lavutul, Principal Magistrate; The Information of Informant Darius Joshua, an authorised Fisheries Officer of the National Fisheries Authority in Papua New Guinea, laid on the 12^th day of November 2018 before the Kokopo District Court alleged that between the 17^th and 19^th of November 2018, in Pomio District of East New Britain Defendant Kong Chiong Lik, aged 53 years old, of Cebu, Sarawak, Malaysia and now residing at Masrau Logging Camp, Pomio District, East New Britain Province;

“Being a natural person on his own account did buy 105 kilograms of Bechedemer (BDM) fishery products at Masrau Logging Camp (Pulpul), without a valid and applicable Bechedemer (BDM) license, contrary to Section 46 (1) (a) of the Fisheries Management Act 1998”. Thereby contravening Section 58 (1) (h) of the Fisheries Management Act 1998.

2. On the 21^st of September 2018 Fisheries Officers and Police Officers at Pomio station acting on information received on illegal bech de mer activities by foreign nationals then proceeded to Masrau Logging Camp at Pulpul village in order to investigate it.

3. Through their investigations they discovered within the company’s Logging camp secluded premises Bech de mer fishery products which were processed and sun dried. It was revealed in their investigation that the fishery products were being bought, processed, stored and sun dried by the Camp Manager Mr. Kong Chiong Lik now defendant.

4. The Bech de mer Fishery Products were seized by the Fisheries and Police Officers whereby seizure receipt bearing the numbers ST00 16378 was issued to the defendant on the 21^st of October 2018.

5. The Statement of Facts clarifies that buying of sedentary class of fish which includes bech de mer (sea cucumber) when live and processed is restricted to Papua New Guineans citizens only and Prohibits Non –Citizens as per Gazettal Notice No: G57 dated the Thursday 04^th of April 2002 and as per Gazettal Notice No: G368 dated 06^th of June 2018 as the National Bech de mer Management Plan for the time being is in force.

6. The defendant was brought in for Record of Interview where he was formally informed of his charge as a Non-Citizen engaged in buying and processing bech de mer fishery products an act prohibited under the Fisheries Management Act 1998.

7. The defendant admitted to the charge on the 14^th of November 2018 and a guilty verdict was pronounced against him.

8. The defendant is of Malaysian origin, employed by Tzen Niugini and based at Masrau Logging camp and married with 5 children. Defendant has no prior conviction. Defendant is employed and earns about K3, 000.00 plus a fortnight.

9. In addition the defendant filed in his favour an affidavit dated 12^th of November 2018. I will take this as his Allocutus. The defendant stated in his written affidavit at paragraph 5 he claims he first entered into the country of PNG and specifically East New Britain Province 1984 with Putput Logging Company as a mechanic and has been in East New Britain Province for over 33 years, working with various Logging Companies. In paragraph 6 he added...he does not have any criminal records both in Papua New Guinea and Malaysia and this being his first incident that had him on the wrong side of the law and regrets what he had gotten himself into.

9. Counsel for the defendant submits for the court to take judicial notice for the court to use its wisdom in deliberating the case of the National Fisheries Authority –v- Peter Momona GFC 14/2017 and impose the same penalty of K5 000.00 on defendant Kong Chiong Lik for the offence thus stated. Counsel also refers the court to section 22 of the District Courts Act which stipulates the court’s General Ancillary Jurisdiction.

10. Counsel further submits that there was a combination of an economic need by the local individuals and the availability of a venue for satisfaction of this economic need through a normal exchange of monetary value for goods and thereafter satisfying both ends. Unfortunately such a transaction was more specifically required authorization from the relevant government authority in order to be completed, a matter of fact that in the ignorance of both parties to the transaction.

11. Counsel added, it is unfortunate that only one party to the transaction is left to deal with the consequences of the regulation in spite of the defendant’s expansion of more than K10, 000.00 and deterioration of goods seized, to this effect. Counsel submits that for the court to consider the fact that as stated in the defendant’s affidavit the purchase of the fishery products was not for commercial purposes but rather for consumption and health supplements for the defendant and his subordinates.

12. Finally, counsel submits in spite of the defendant’s apprehension, charge detainment and heavy bail, he has been very cooperative in his efforts to rectify an offence that resulted from his ignorance of the law.

13. Counsel for the defendant submits for the court to give consideration to its recent case precedent and impose the following;

1. That the defendant be convicted and fined K5, 000.00 in default 2 years in hard labour.
2. That the defendant be given until the end of December, 2018 to pay his fine.
3. That the defendant’s bail be refunded.
   

14. In its brief submission prosecution reiterated the defendant had admitted to the charge that he had engaged in the Beche-de-mer trade. Prosecutions points out to the court the penalty for such an offence pertaining to the Fisheries Management of 1998 is K500, 000.00. In view of the penalty prosecutions urges the court to consider a penalty that would deter not only the defendant but others as well.

15. In mitigation, the defendant is aged 53 years old of Malaysian origin and a first offender, a married man with 5 children and currently employed here in East New Britain and has been here for over 33 years, without any prior convictions in this court and any other courts in Papua New Guinea. The defendant admitted to committing the offence and has also expressed remorse as he regrets what he has gotten himself into. Thus this are matters which stands out favouring the defendant.

16. In aggravation, the defendant committed an offence which carries a maximum penalty of a fine up to K500, 000. 00 with an imprisonment term of up to 5 years maximum. He bought a large quantity of Beche-de-mer fishery products weighing 105 kilograms without a valid license or permit for such purposes. He conducted the transactions in the remote Pomio District of East New Britain province in my view monitoring and policing is a difficulty. Thus this are matters which stand out against the defendant.

17. In considering an appropriate penalty against the defendant I adopt the view of Cannings J in the matter of the State v Joe Sekin (2006) CR 1592 of 2000 in which his Honour did set out the following questions as considerations;

Step 1: What is the maximum penalty?

Step 2: What is a proper starting point?

Step 3: What is the head sentence for the offence?

Step 4: Should the pre-sentence period in custody be deducted from the term of imprisonment?

Step 5: Should all or part of the sentence be suspended?
STEP 1: WHAT IS THE MAXIMUM PENALTY?

18.The maximum penalty for the offence for which the defendant has been found guilty of pursuant to section 58 (1) (h) of the Fisheries Management (Amendment) Act: - in respect of a natural person, a fine not exceeding K500, 000.00 in default imprisonment for a term not exceeding five years.

STEP 2: WHAT IS A PROPER STARTING POINT?

19. For the purposes of uniformity and consistency in sentencing I restate the persuasive comments of my brother magistrate now Acting Justice John Kaumi in a similar fisheries matter of Kenneth Andrew v Dennis Kokowei & 5 Ors NF 01-06 (5/02/16), he stated “Again here I am handicapped by the paucity of appropriate relevant sentencing guidelines, trends and proper starting points in our jurisdiction which would be very helpful in terms of what I should consider as pertinent considerations in contemplating what sentence would best befit this crime. And the predicament I find myself in is largely due to the failure, reluctance or sheer indifference by courts in our jurisdiction to appreciate the importance of such aspects of sentencing and publish judgments in like offences if for two reasons, UNIFORMITY AND CONSISTENCY in sentencing! I am for the want of a better phrase “left to my own devices” so to speak”.
20. In the matter before me my starting point would be K5, 000.00 in default one (1) year in hard labour to K30, 000.00 in default two (2) years and six months in hard labour based on the facts and evidence before me. Thus the mid-point would be K15, 000.00 in default two (2) in hard labour.

21. In similar cases; in Kokopo the District Court in the matter of National Fisheries Authority v Peter Momona, GFC 14/2017 which I have dealt with; the defendant was found guilty and fined K5, 000. 00 in default two (2) years for trading 26.4 kilograms of Beche-de –mer to the value of K1190. Likewise the Waigani District Court in the matter of National Fisheries Authority v Nguyen Van Phuc, NFA 36/16, the defendant was found guilty and fined K50, 000.00 in default four (4) years in hard labour for harvesting Beche-de- mer in Papua New Guinea waters weighing 3158.85 tonnes to the commercial value of K1, 438, 606.10 equivalents to $467, 079.90 US dollars in which Beche –de-mer species were specified and valued which resulted in the above total in cash and weight.

22. In the matter before me the defendant Ye Weixiong traded for 36. 2 kilograms of Beche – de –mer and 1.15 kilograms of shark fin unfortunately National Fisheries Officers did not specify the value of the fishery products that were confiscated from the defendant in order to assist the court in this regard. I refused to do an estimate due to my lack of knowledge on the different species of Beche – de mer and shark fin on the current market value. It would be of great help to this court should due diligence in calculation of monetary value of the products be done against the weight of the total fishery products confiscated in order to secure a desired penalty. I suggest NFA officers in East New Britain should pay attention to this.

STEP 3: WHAT IS THE HEAD SENTENCE FOR THE OFFENCE?

23. In arriving at what the head sentence should be for the offence I take into consideration matters I consider to be aggravating in nature.

24. The defendant Kong Chiong Lik stated in his affidavit in paragraph 8; “On or about the times mentioned in paragraph three (3) I was working at our camp site in Pulpul village Masrau when I was in formed by nationals through wantoks on site that they were selling BDM. At this time I thought that license to buy the product was open and was further license was only required where the buyer intended to engage in the exportation of BDM”.

25. At this juncture I take interest in the defendant’s statement in paragraph 8 of his affidavit particularly the second sentence which states, “At this time I thought that license to buy the product was open and was further license was only required where the buyer intended to engage in the exportation of BDM”. Despite his advances through his counsel that he was not aware of such law relating to the beche-de-mer trade I find the defendant to have fully understood that you need a license to purchase beche –de-mer. I also note the defendant have worked in East New Britain province since 1984 for a total of 33 years in which I am convinced he was fully aware of the laws relating to such activities. Which basically means ignorance of the law is no excuse.

26. I also consider the fact that the offence was committed in the remote district of Pomio where policing and monitoring of such activity is a difficulty. With such circumstantially one may wonder how many others are involved in similar activities as the defendant without being noticed by authorities of government.

27. Moreover the defendant stated in affidavit in paragraphs 9 & 10 and I quote, “...what I very much knew about was the health qualities of this food in lessening high blood pressure, diabetes, and other blood related diseases. I am also aware that this appetite is also a major diet in most Asian countries both for its delicacy and health qualities...” Obviously the defendant is of Asian origin and is fully aware of the health qualities and health benefits associated with Beche-de-mer fishery and with this fact there is a tendency of other likeminded Asians who are contracted in the remote Pomio District of East New Britain either in the logging industry or oil palm industry could venture into the illegal trade of Beche-de-mer and could go unnoticed.

28. In comparison of the weights of the Beche-de-mer products in the following cases is that in the matter of NFA v Peter Momona, GFC 14/17 against the current case of NFA v Kong Chiong Lik, Defendant Momona was convicted and fined K5, 000.00 in default 2 years for a total weight of 26.4 kg which four (4) times less than the current case. In the current case defendant Kong Chiong Lik purchase a total of 105 kilograms of Beche- De –Mer which is four (4) times more than in the matter of NFA v Peter Momona. Likewise in the matter of NFA v Nguyen Van Phuc was convicted and fined K50, 000.00 in default 4 years in hard labour for a total weight of 3158.85 kg of Beche-de-mer products. In weight comparisons it is 119 times more the matter of NFA v Peter Momona and 30 times more than NFA v Kong Chiong Lik.
29. I am of the view a head fine of K15, 000.00 is appropriate or in default two (2) years imprisonment with hard labour would stand as a deterrent against the defendant and other would be offenders.

STEP 4: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM TERM OF IMPRISONMENT?
30. It may not apply in this matter as the defendant Kong Chiong Lik was allowed on K20, 000.00 police bail and currently on bail

STEP 5: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?
31. The defendant is currently on a K20, 000.00 police bail in the event the court orders a fine equivalent or less than the bail it may not warrant part of or the sentence to be suspended.
32. I am guided by the view in State v Jason Dungoia (13/12/00) N2038 Kandakasi. J stated that “The usual purpose of criminal sentencing such as deterrence, restitution or rehabilitation are also relevant factors for consideration and so are requirements to carefully consider and take into account the factors for and against a prisoner before sentencing him or her”.
33. I have given careful consideration to the respective submissions and I consider a fine would best suit the offence defendant Kong Chiong Lik is charged with.
Sentence

1. Therefore the defendant Kong Chiong Lik is convicted and fined K15, 000. 00 in default two (2) years in hard labour.

2. That the fine of K15, 000.00 is to be paid before 4.00 pm today

3. That the defendant’s bail of K20, 000. 00 is to be refunded.

...................
Mr. Patrick Mandrei of Police Prosecution Section, Kokopo, ENBP
Mr Peter Waninara of Kandawalyn Lawyers, Hohola Port Moresby, NCD