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State v Lee Lang [2010] FJHC 42; HAC137.2007S (12 February 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 137 OF 2007S

STATE

V

LEE I. LANG

Counsels: Mr. L. Fotofili for the State Mr. A. Seru for the Accused

Hearings: 1st, 2nd, 3rd and 4th February 2010
Summing Up: 5th February, 2010
Judgment: 5th February, 2010
Sentence: 12th February, 2010

SENTENCE

1. Lee I. Lang, you were charged with two counts of "fishing within Fiji’s EEZ without a licence", contrary to section 16(1) of the Marine Spaces Act, chapter 158A. After a trial lasting approximately four days, the three assessors returned with an unanimous verdict of guilty as charged on both counts. They found that, you, as captain of "Win Feng 136", a foreign fishing vessel, fished within Fiji’s exclusive economic zone, without a licence, between the 2nd and 20th December 2006. The court accepted the assessors’ verdict, found you guilty as charged on both counts, and convicted you accordingly.

2. The brief facts of the case were as follows. You were the captain and master of "Win Feng 136" between the 2nd and 20th December 2006. "Win Feng 136" was a foreign fishing vessel, registered in Taiwan. You had a crew of 13. On 29th November 2006, "Win Feng 136" left Fiji to fish in the open seas. You didn’t have a licence to fish in Fiji’s waters, let alone its exclusive economic zone. "Win Feng 136" has the navigational equipment called the Global Positioning System (GPS) and the Automatic Location Communicator (ALC), which enabled the Fiji Navy and the Fisheries Department to monitor the movements of your vessel through the Vessel Monitoring System (VMS).

3. Through the VMS, "Win Feng 136" was located fishing within Fiji’s exclusive economic zone between the 2nd and 20th December 2006. When "Win Feng 136" returned to Fiji on 12th February 2007, it was boarded by officials of the Fisheries Department. The fish onboard and bait were sold for $108,642, which was paid into court. The "Win Feng 136" was impounded at Walu Bay, and is now estimated to be worth $164,000.

4. The maximum sentence for this offence is a fine of $100,000. The tariff is a fine between $2,000 to $7,000 per offence: The State vs. Yang Shui Xing, Criminal Case No. HAC 0041 of 2004S, High Court, Suva. I note the accused is a first offender. I have carefully considered your written plea in mitigation. I note you are married with 2 children, now aged 30 and 25 years old. I note you’ve being waiting for this case to be resolved in the last 3 years.

5. In terms of the Marine Spaces Act, chapter 158A, I view the offending in this case as a serious matter. Captains of foreign fishing vessels illegally fishing in Fiji’s waters must be forewarned that hefty fines will be imposed on them, if they are found guilty of a similar offence. I start with a fine of $8,000. Given the accused being a first offender, his co- operating with the authorities, the sale of his catch and the detention of his vessel, I reduce the fine to $6,500 per count - a total of $13,000 on both counts. The accused is fined $6,500 on each count, making a total of $13,000, to be paid in 14 days, in default, the court reserve its right to imprison the accused.

6. I now consider the question of forfeiture. Section 18 of the Marine Spaces Act, reads as follows,"... On conviction of the owner, master or licensee of an offence under section 16, the court may also order the forfeiture to the Crown of the fishing vessel and any fish, fishing gear, apparatus, cargo and stores found therein or thereon ..." The Prosecution has made submissions for the forfeiture to the State of the fishing vessel "Win Feng 136" and all its content, valued at $164,000; and the sum of $108,642.16 deposited in court, which were the proceeds of the sale of "Win Feng 136"’s fish and bait. When this was put to defence counsel, they said, they had no grounds to oppose the forfeiture application.

7. In Chiou Yaou Fa vs. Morris Supreme Court Northern Territories [1987] NTSC 20; [1987] 46 NTR 1, 28, Asche J, when explaining the rationale behind forfeiture orders, said:

"The fishing industry can and often does yield large profits and there is always 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 overweighs 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."

8. Her Ladyship Justice Shameem agreed with the above, and adopted it in The State v Yang Shui Xing (supra). I do likewise in this case. The above principles are very much applicable to Fiji. The intent of the Marine Spaces Act, chapter 158A must be given effect to, and a warning to owners and masters of foreign fishing vessel must be given, that they risk forfeiture of their vessels, fish, fishing gear, stores etc., if they are caught fishing illegally in Fiji’s waters. I order forfeiture of the fishing vessel "Win Feng 136" and all its contents worth $164,000 to the State. I also order the forfeiture to the State the sum of $108,642.16 deposited in court, which is the proceed of the sale of "Win Feng 136"’s fish and bait.

Salesi Temo
ACTING JUDGE

AT Suva
12th February 2010