FSM SUPREME COURT TRIAL DIVISION

CRIMINAL CASE NO. 2021-502

FEDERATED STATES OF MICRONESIA,
Plaintiff,

vs.

WU MING KUO (master of the vessel), LAI HSIU
SHENG (captain of the vessel), and CITYPRO
MANAGEMENT LIMITED (owner of the vessel
Queen Isabella 88),
Defendants.
_________________________________________

ORDER DEFERRING CONSIDERATION

Larry Wentworth
Associate Justice

Decided:  November 22, 2021

APPEARANCES:

For the Plaintiff:		Jeffrey S. Tilfas, Esq.
FSM Assistant Attorney General
P.O. Box PS-105
Palikir, Pohnpei FM 96941

For the Defendants:	Stephen V. Finnen, Esq.
P.O. Box 1450
Kolonia, Pohnpei FM 96941

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HEADNOTE

Bail; Criminal Law and Procedure - Interpretation of Rules
Criminal Procedure Rule 43(c)(2) provides that the court, with the defendant’s written consent, may permit the defendant to appear through counsel only when the prosecution is for a crime punishable by a fine or by imprisonment for less than one year.  Rule 43(c)(2)’s purpose is that appearance in court may require considerable travel, resulting in expense and hardship not commensurate with the charge’s gravity, if a minor infraction is involved and a small fine is eventually imposed, but when, the potential fines are quite substantial, ranging up to $250,000 for some of the charges, it is difficult to consider that only minor infractions are involved.  In such cases, the defendants’ bail amounts may need to be increased, or some other assurances or security provided, before a Rule 43(c)(2) motion is granted.  FSM v. Wu Ming Kuo, 23 FSM R. 450, 451 (Pon. 2021).

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COURT’S OPINION

LARRY WENTWORTH, Associate Justice:

The defendants, Wu Ming Kuo and Lai Hsiu Sheng, have moved to appear only through counsel at trial.  For this they rely on Criminal Procedure Rule 43(c)(2), which provides that the court, with the defendant’s written consent, may appear through counsel only when the prosecution is for a crime punishable by a fine or by imprisonment for less than one year.  The charges in this case are only punishable by fines.  The charges do not carry possible jail sentences.

The purpose of Rule 43(c)(2) is that “appearance in court may require considerable travel, resulting in expense and hardship not commensurate with the gravity of the charge, if a minor infraction is involved and a small fine is eventually imposed.”  3B Charles Alan Wright & Peter J. Henning, Federal Practice and Procedure § 721, at 10 (4th ed. 2013).

In this case, the potential fines are quite substantial, ranging up to $250,000 for some of the charges.  Under that circumstance, it is difficult to consider that only minor infractions are involved.  In such cases the defendants’ bail amounts may need to be increased, or some other assurances or security provided, before a Rule 43(c)(2) motion is granted.

Now therefore it is hereby ordered that the court denies the motion without prejudice.  Wu Ming Kuo and Lai Hsiu Sheng may renew it if they address the court’s concerns mentioned above.

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