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High Court of Tuvalu |
IN THE HIGH COURT OF TUVALU
Appellate jurisdiction
Criminal Appeal Number: 2 of 2011
BETWEEN
THE CROWN
Appellant
AND
JI HEEJUN
First respondent
FIORE MARINE LTD
Second respondent
AND
BETWEEN
JI HEEJUN
First appellant
FIORE MARINE LTD
Second appellant
AND
THE CROWN
Respondent
D Gorman for the Crown
K Muaror for the defendants
Date of judgment: 12th July 2011
Judgment
[1] On 26 February 2011, the fishing vessel K Camellia was arrested by the MTSS Mataili for fishing within the Tuvalu EEZ without a valid and applicable permit. It appears the vessel had entered the EEZ on 9 February 2011 and had taken 19 tonnes of fish before its arrest. The actual quantity of fish is disputed; the Master, Ji Heejun, admits only15 tonnes.
[2] The Master of the vessel, (the first defendant) and the owner, Fiore Marine Ltd, (the second defendant) appeared before the Senior Magistrate's Court on 5 April 2011. The first defendant was charged under section 13(6) (a) and (b) and the second defendant under section 13 (6) (b) and (7) of the Marine Resources Act, 2006. On 7 April 2011, both defendants pleaded guilty and the case was adjourned for sentence to 11 April 2011. On that day each defendant was fined $200,000 and the vessel and all its fish, gear, equipment, stores and other appurtenances forfeited.
[3] The prosecution appealed that day and sought leave to file an amended notice of appeal on 28 April 2011. I grant leave and will proceed on the amended grounds. In the meantime, on 27 April 2011, the defendants filed their own appeal.
[4] It appears that both appeals have been given the same number. This should not have happened. They should have been numbered separately. The result has been a series of submissions in which, confusingly, each party is referred to variously as appellants and respondents. I shall deal with both appeals together and, to avoid confusion, refer to the respondents in the Crown's appeal and the appellants in the defendants' appeal as the defendants and the other party in both cases as the Crown.
[5] Both parties have agreed that the Court should deal with the appeal on the papers and have complied with a timetable I set for the filing of submissions.
[6] The Crown appeals on two grounds:
1. That the learned Senior Magistrate erred in law in finding that he was able to award less than the mandatory minimum penalty of US$ 1 million prescribed by section 13 (6) of the Marine Resources Act.
2. That the learned Senior Magistrate erred in law in interpreting the mandatory minimum penalty as applying only to section 13 (6) (c) of the Marine Resources Act.
[7] The defendants appeal on 14 grounds which are repetitive and can conveniently be summarised as challenging the validity of the charges themselves and the consequences of the suggested invalidity, the jurisdiction of the Senior Magistrate to try these offences and to pass sentence and the validity of the pleas of guilty. They also submit that the sentences were unlawful and excessive and that the Senior Magistrate had no jurisdiction to order a bond when the defendants sought, on 16 April 201, the release of the vessel pending appeal.
The Crown's Appeal
[8] I deal first with the Crown's appeal.
[9] Section 13 (6) of the Marine Resources Act provides that anyone who, without a valid and applicable permit, engages in any of the various activities listed in subsections (a), (b) or (c) is liable on conviction to a fine of not less than US $1 million. The Crown's case is that the clear wording of the section means that the Senior Magistrate had no right to order a fine below that figure. The respondents submit that section 13 (6) does not create an offence and that the only power to order such a penalty lies with the Minister using his powers under section 96 of the Act.
[10] The Senior Magistrate accepted that the section creates an offence but read it as restricting the sentence to an offence contrary to paragraph (c). In his sentencing judgment, having considered the case of Federated States of Micronesia v Cheng Chia-W (II) [1995] FMSC 36, 27 July 1995, the Senior Magistrate explained:
"For this case in Tuvalu before this Court, the Court finds a different view in particular, the construction of section 13 (6) (c) of the Marine Resources Act of Tuvalu.
If you have a look into the Act, where there is a section that imposes a penalty, there is always a separate subsection to that effect. However, that is not the position in section 13(6)(c) of the Act.
So my reading of section 13 (6)(c) of the Act only applies to itself.
The Court finds two difficulties-
That leaves the Court to have a choice either to find a relevant section in the Act and adopt its penalty subsection, or made up any figure the Court thinks that is reason to the offence committed.
The Court finds Part V of the Act in particular section 27 (4) of the Act relevant to this situation. Subsection (4) provides-
27 General Requirements of Foreign and Domestic-Based Fishing Vessels
(4) Where any vessel is used in the contravention of subsection (1), the operator of that the vessel commits an offence and upon conviction shall be fined not more than $1,000,000."
[11] The Magistrate then considered the aggravating and mitigating factors and continued:
"Therefore, the Court fines the 1st accused for Aust$200,000. The 2nd accused is fined also Aust$200,000. A total fine of Aust$400,000."
[12] The basis upon which the learned Magistrate comes to that conclusion is not clear. He appears, as I have stated above, to accept section 13(6) creates an offence but limits the power to order a penalty to an offence contrary to paragraph (c). For reasons I shall give below, I do not accept that contention but, even if it was correct so that there is no penalty for a breach of paragraphs (a) and (b), the court has neither the power to search for some other penalty in the Act nor to make up any figure and then to apply either to section 13 (a) and (b).
[13] The defendants take it further and submit that the omission of the words "commits an offence" from section 13 means that no offence has been created and therefore the charges brought against the defendants, which were stated to be contrary to section 13 (6) and (7) were bad on their face. In consequence, they argue, the court should not have accepted them for filing or, having accepted them, the Senior Magistrate should have quashed them.
[14] Counsel for the defendants explains his contention by submitting that subsections (6) and (7) "are not offence provisions. Although section 13 (6) attempts to set out the potential liability of an accused person, it is not in itself an offence provision. In other words, a purported contravention of section 13 (6) and (7) does not in itself amount to an offence in law."
[15] Unfortunately for the defendants the term "offence", as defined in other legislation, does not support that argument. The Constitution defines it as "a contravention of or a failure to comply with the law of Tuvalu"; Schedule I, section 2(1). The definition under section 10 of the Interpretation and General Provisions Act is that it is "a crime, felony, misdemeanour or contravention or other breach of, or failure to comply with, a written law, for which a penalty is provided". Clearly, by the wording of section 13 (6), a failure to comply with the written requirements of the subsection will make the person involved liable to conviction and the penalty prescribed. I am satisfied that section 13(6) creates the offences with which the defendants were charged.
[16] In reaching his conclusion about the scope of the penalty under that subsection, the Magistrate, perfectly reasonably, bases his decision on the subsection printed in the Official Revised Edition of the Laws of Tuvalu, 2008, which is in the following form:
(6) Any person who, without a valid and applicable permit:
(a) on his own account, or as the partner, agent or employee of another person, engages in;
(b) causes or allows a person acting on his behalf to engage in; or
(c) uses a vessel to engage in, any activity of a kind or type, or in a place or manner for which a permit is required under this Act, shall be liable on conviction to a fine of not less than US$1 million and to 3 years imprisonment, and in addition any vessel used in the offence and all its fish, gear, equipment, stores, and other appurtenances, or any fish processing establishment involved in the offence and all its equipment, stores, and items, vessels and vehicles used in its operations, shall be subjected to forfeiture."
[17] The learned Magistrate accepted that an offence was created by that provision but concluded that the reference to the penalty was part of paragraph (c) and, therefore, only applied to that paragraph. The references, in the passage set out above from his sentencing judgment, that, "where there is a section that imposes a penalty, there is always a separate subsection to that effect" and that Section 13 (6) of the Act "only applies to itself" would appear to have been based on the form of the subsection in the Revised Laws.
[18] Mr Gorman, for the Crown, has taken the trouble to check the original copy of the Act which was assented to by the Governor General. It is clear that, in the original Act, paragraph (c) simply reads "uses a vessel to engage in," and the remainder of the passage starts on another line:
"(c) uses a vessel to engage in,
any activity of a kind or type, or in a place or manner in which a permit is required under this Act, shall be liable on conviction to a fine of not less than US $1 million ..."
He points out that there is clearly a typographical error in the Revised Edition of the Laws and I accept that is the situation.
[19] In his submissions, Mr Gorman properly directs the Court's attention to section 12 (1) of the Tuvalu Law Revision Act whereby the revised edition "shall be deemed to be, in all courts of justice and for all purposes whatsoever, the sole authentic edition of the laws of Tuvalu, in respect of the law contained in it and in force on the revision date."
[20] He seeks to rely on section 6 (1) (a) of the same Act which provides that a revised edition shall contain "all laws passed or made in Tuvalu" and section 16 (1) of the Interpretation and General Provisions Act that "a construction of a written law which promotes the general legislative purpose underlying the provision in question is to be preferred to a construction that does not". He points out that one could hardly have a clearer indication of the legislative purpose than a copy of the form of the Act as assented to by the Governor General. Similarly, the assent is the final stage in the passing or making of a law.
[21] I accept that is correct. However, such rules of interpretation are only needed when there is ambiguity in the provision and, whilst I accept the form in the revised laws is an error and should be corrected, I do not accept that there is any ambiguity. Although it is divided into three lettered paragraphs, subsection (6) is a single sentence albeit containing numerous subordinate clauses. If it is read in that manner, it is perfectly clear that the penalty applies to the whole of the preceding content:
"Any person who, without a valid and applicable permit on his own, or as a partner, agent or employee of another person, engages in; causes or allows a person acting on his behalf to engage in; or uses a vessel to engage in, any activity of a kind or type, or in a place or manner in which a permit is required under this Act, shall be liable on conviction to a fine of not less than US $1 million..."
[22] Read in that manner, I see no ambiguity but, as I have stated, if it had been necessary to interpret the provision, I accept Mr Gorman's contention that the version to which the Governor General assented clearly indicates the legislative purpose and that would have been my preferred construction.
The Defendants' Appeal
[23] The first nine grounds of the defendant's appeal challenge the validity of the charges and the manner in which they were considered by the learned Senior Magistrate. Counsel's fundamental premise is that the legislation is drafted in such a way that the general requirements are contained in the Act and regulations need to be drafted under section 96 for the purpose of carrying out the provisions of the Act. In particular counsel relies on section 96 (d) and (p):
" The Minister may make regulations for the purpose of carrying out the provisions of the Act, and without prejudice to the generality of the foregoing, may regulate the following matters: ...
(d) the conditions and procedures to be observed by foreign vessels and other vessels carrying out activities related to fishing while within the fishery waters; ...
(p) the provision of penalties for contraventions of such regulations, such penalties not to exceed imprisonment for a period of up to six months or a fine not exceeding $100,000 ..."
[24] I do not accept the defendants' contention as to the effect of section 96. That section gives the Minister the usual powers to make regulations for the purpose of carrying out the provisions of the Act. It specifies, without prejudice to the generality of that power, some particular aspects and paragraphs (d) and (p) are two such provisions.
[25] The defendants emphasise the opening words of section 96:
"The Minister may make regulations for the purpose of carrying out the provisions of the Act...". Counsel advised the Court that the Minister has already done so by LN 17 2009, in which he made the Conservation and Management Measures (PNA Third Implementing Arrangement) Regulations, 2009 and suggests that, as he has not made any regulations in respect of section 13, there is no offence created and therefore no penalty.
[26] The defendants' submission on paragraph (p), that the Minister's power to impose penalties of up to six months and fines not exceeding $100,000 is the only way any penalties can be provided for breaches of the provisions of the Act, is clearly incorrect. Paragraph (p) gives the Minister power to provide penalties only for contravention of the regulations and it does not give the Minister power to order penalties for offences created under the Act itself. Similarly, as defence counsel accepts, there are penalties already in the Act such as in section 27(4) and 54 (7) which were not the result of any ministerial intervention under section 96 – although it is correct, as the defendant's point out, that each of those is specifically stated to be an offence, in contrast to section 13(6). However, as I have stated above, I find no significance in the omission of the word 'offence' from section 13(6).
[27] That argument also ignores the power of the legislature to create offences and impose any penalties it wishes in the statute as it has done in the Marine Resources Act. The regulation making power of the Minister cannot override the principal provisions of the Act and the submission has no substance.
[28] In further support of their submission, the defendants suggest that, even if section 13 (6) does provide a penalty, the provisions of section 69 of the Interpretation and General Provisions Act, properly applied, mean that the provisions of section 13 (6) must be read as providing a fine not exceeding US $1 million. Mr Muaror relies on subsection (1) which provides:
"Where in a written law a penalty is prescribed for an offence, the offence is punishable by a penalty not exceeding the penalty prescribed."
[29] In response, the Crown points to subsection (3):
"Where in a written law a maximum penalty and a minimum penalty are prescribed in respect of an offence, the offence is punishable by a penalty not less than the minimum nor greater than the maximum."
[30] Mr Muaror submits that the wording of section 13 (6) refers only to one penalty and therefore subsection (1) must apply. Subsection (3), he contends, can only apply when both a maximum and a minimum penalty are prescribed.
[31] I cannot accept that is the proper interpretation of section 69. It is clear that subsection (3) confirms that a reference to a minimum penalty places a lower limit on the penalty and, in the same way, a maximum penalty places an upper limit. Whilst I accept that the majority of penalties in our law simply state a figure above which the sentencing court cannot go, I do not accept that subsection (1) means that, when there is a single penalty clearly stated to be the minimum, the court must apply subsection (1) and read it as meaning it is the maximum.
[32] For the reasons I have given in response to the Crown's submissions, I do not accept the defendant's challenge to the validity of the charges under section 13(6) and that covers grounds 1 – 9.
[33] The defendants also appeal against my Order giving jurisdiction to the Senior Magistrate to try these offences (grounds 10 and 11). They suggest that section 25 (3) of the Magistrates Court Act, under which I made the Order, cannot be relied upon to enlarge the jurisdiction of the Senior Magistrate in this case. The submission continues that it was the intention of Parliament to restrict the matters to which such enlargement could be applied and an unfettered enlargement such as that that made in this case "does not promote the general legislative purpose underlying the provision in question".
[34] The "provision in question" is section 25 which, in general, limits the jurisdiction of the magistrates. Subsection (1) prescribes the jurisdiction of the Senior Magistrate and places a limit on the maximum punishment that court may impose. Subsection (3) provides:
"(3) Notwithstanding the provisions of the preceding subsections, ... the Chief Justice, by order under his hand and the seal of the High Court, may invest the Senior Magistrate's Court and any magistrate's court with jurisdiction to try summarily any offence which would otherwise be beyond its jurisdiction."
[35] The Order I made by LN 2 of 2011 was made under that subsection and I do not accept there has been any further legislative restriction placed on its scope and extent.
[36] Ground 12 of the defendants' appeal challenges the validity of the pleas of guilty entered by the defendants. The submission relies on the previous grounds relating to the validity of the charges which I have rejected and this ground is similarly rejected. It is not, as I understand it, a suggestion that the pleas were equivocal but, if that is the defendants contention, this Court will only act if there is evidence of equivocation on the record and there is none.
[37] Ground13, that the sentences imposed were unlawful and excessive, similarly relies on the arguments raised in the previous grounds. I have rejected the suggestion that the penalty provision in section 13 (6) should be read as providing for a fine not exceeding $100,000. I have also ruled that the minimum penalty must be US$ 1 million as stated in section 13(6) and the suggestion that the sentence passed is unlawful and excessive must fail.
[38] The last ground brought by the defendants challenges the right of the Senior Magistrate to stipulate a bond of Aus$1 million for the release of the K Camellia pending the appeal . Although it appears from the record that there was an application for the release of the vessel which was countered by the Crown's suggestion that, if so, there should be a bond ordered, in the event it was not ordered. The issue is hypothetical and I do not deal with it.
The Result
[39] The appeal by the Crown is allowed and the sentence ordered against each of the defendants is quashed. I have read the record of the aggravating and mitigating factors taken into account by the Senior Magistrate and I note the manner in which information was conveyed to the Tuvalu authorities by the first defendant throughout the period the vessel was in Tuvalu waters. That suggests he had no intention to act surreptitiously which I take as mitigating the penalty.
[40] On the other hand, I also note that the Senior Magistrate was told that the company did not realise the license had expired but Mr Gorman, in his submissions, states that the Fisheries Department in Fiji notified the first defendant, on 2 February 2011, of the expiration of its permit. The record does not indicate that was brought to the attention of the Magistrate nor do I know the source or the accuracy of that information. I disregard that in determining the penalty.
[41] These appeals have delayed the release of the K Camellia and the disposal of its cargo of fish. That unproductive delay, in itself, becomes an added penalty and, considering the whole circumstances, I see no reason to impose a penalty above the minimum. I therefore order a fine of US$ 1 million on each defendant.
[42] The Magistrate also ordered that the vessel should remain in Tuvalu until the fines are paid but, inconsistently, ordered "in addition the vessel used in the offence and all its fish, gear, equipment, stores, and other appurtenances, are to be forfeited".
[43] I quash that order and substitute an order that the fish shall be forfeited and disposed of by the Tuvalu authorities and that the vessel, its gear, equipment, stores, and other appurtenances are to remain in Tuvalu until the fines are paid but may then be released.
[44] The defendants sought their costs and that is refused. Although successful, the Crown has not asked for its costs and I make no order.
Gordon Ward
Chief Justice
Delivered on the 12th day of July 2011.
Registrar of the High Court
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