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State v Yang Shui Xing [2004] FJHC 267; HAC0041J.2004S (29 November 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0041 OF 2004S

THE STATE

v.

YANG SHUI XING

Hearing: 26th November 2004
Sentence: 29th November 2004

Counsel: Mr. Ridgway for State
Mr. S. Valenitabua for Accused

SENTENCE

Yang Shui Xing, you have pleaded guilty to two offences of being master of a foreign fishing vessel being used for the purpose of fishing within the Exclusive Economic Zone without a licence. According to the information you committed the offence on the 5th of July 2004, and again between the 16th and 20th of July 2004.

The maximum penalty for this offence is $100,000. The tariff for the offence is between $2000 and $7000 per offence. The facts in this case are that you are the master of Zhong Shui 607 a foreign fishing vessel registered in China. The vessel is equipped with a navigational system called a Global Positioning System and has a transmitter which allows for precise monitoring by the Navy and the Fisheries Department, using the Vessel Monitoring System. Using this system, the prosecution has plotted your movements on a sketch which shows that although you were fishing just inside the Exclusive Economic Zone, you were proceeding along the boundaries for some time. I do not accept, that equipped with the sophisticated Global Position System, you accidentally drifted into Fiji waters. There is some dispute about the value of the catch obtained in Fiji waters. However there is no dispute about the quantity of the fish caught. On the 5th of July your vessel fished 420kg of Albacore, 70kg of Bigeye Tuna, 120kg of yellow fin, and 10kg of Wahoo. Between the 16th to the 20th of July your vessel obtained a total of 2140kg of Albacore, 375kg of Bigeye, 342kg of yellow fin and 16kg of other species. The defence says that this catch was only worth about $15,000. Even at the defence estimation, this value is a considerable sum and must be taken to be an unlawful removal of Fiji’s precious resources for commercial purposes. I consider this offending to be serious and consider a fine of $6000 to be an appropriate starting point. After adjusting for the guilty pleas, the good character, the co-operation with the authorities, the sale of the catch before apprehension and the detention of the vessel, I arrive at a fine of $5000 (a total of $10,000) on each count to be paid within 7 days in default 30 days imprisonment.

I now turn to the question of forfeiture. Section 18 of the Marine Spaces Act allows the court to “forfeit the fishing vessel and any fish, fishing gear, apparatus, cargo and stores found therein or thereon.” In the past, a decision not to forfeit was made where the case was one of an isolated breach (Jang Jian Chunan HAC0009.2003S) or where there was a prior civil claim in respect of the boat before another judge. Another reason not to make a forfeiture order was where the catch was minimal in value (Chen Chaolin HAC0010 of 2003S).

In this case, you are not the owner of this vessel. The owner is a company registered in China, called the China National Fisheries (Group) Corporation. Power of Attorney in relation to the Company vests in the China Fisheries (Fiji) Holdings Company Ltd. Counsel for the accused is also counsel for the owner of the boat, and he urged me not to order forfeiture as it would be too harsh a penalty in the circumstances. I do not agree.

In Cheatley v. The Queen [1972] HCA 63; (1972) 127 CLR 291, the High Court of Australia considered forfeiture of a foreign vessel under the Fisheries Act. Barwick CJ said that forfeiture, which was part of the penalty provisions of the section, was not inappropriate simply because a breach was accidental. However, a deliberate breach should lead inexorably to forfeiture. In Chiou Yaou Fa v. Morris Supreme Court Northern Territories [1987] NTSC 20; [1987] 46 NTR 1, 28, Asche J explained the rationale behind the forfeiture order thus:

“The fishing industry can and often does yield large profits and there is always a temptation to those involved in it to go where the fish are plentiful, even if that means trespassing upon the fishing grounds of other nations. A nation desiring to protect itself from such depredations must make it very plain that the game is not worth the candle i.e. that the risk of heavy penalties if caught outweighs the profit that might be available. Fines, even heavy fines against individuals will not usually suffice, since the individual may either not have the wherewithal to pay or it may be difficult or impossible to follow such assets as he had into another company. In any event a heavy fine may work an injustice on an individual who will often be acting under orders. The real offender is usually the foreign owner who will almost certainly have no funds in this country to pay the fine imposed. Hence, save where there are special mitigating circumstances, forfeiture is the only effective way to see that the policy of the Act is carried out. Indeed, if it became known that Australian courts treated offences against this Act only by fines, this would be to a substantial degree counter-productive, since many more foreign ships would venture into Australian waters to the great detriment of the Australian fishing industry.”

I agree with, and adopt the principles set out in this passage. There are no special mitigating circumstances in this case which might justify non-forfeiture. Although counsel tells me that the owner will pay the fines, the profit made from the unlawful catch outweighed the total value of the fines even on defence counsel’s assessment. I do not consider that this was an isolated accidental breach caused by bad navigation. The presence of the Global Positioning System, and the transmitter for the Vessel Monitoring System suggest the existence of accurate and sophisticated navigational equipment. In these circumstances, forfeiture is the only way to ensure that the purpose of the Marine Spaces Act is given effect to by this court. It is hoped that this will act as a deterrent to other foreign fishing vessels, which fish here without licences, confident in the belief that our enforcement is inadequate, and the penalties imposed, of little pecuniary value.

As I have said before, Fiji’s fish resources are precious and must be protected from uncontrolled and unlicensed exploitation. A forfeiture order in this case will assist in so protecting those resources.

I order forfeiture of the fishing vessel Zhong Shui 607, its apparatus, fishing gear, cargo and stores to the State under section 18 of the Marine Spaces Act.

Nazhat Shameem
JUDGE

At Suva
29th November 2004