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Republic v Tong [2010] KIHC 94; Criminal Case 23 of 2010 (12 October 2010)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO

High Court Criminal Case 23 of 2010

THE REPUBLIC

V

ELIZABETH TONG

For the Republic: Ms Pauline Beiatau
For the Accused: Ms Kiata Kabure

Date of Hearing: 11 October 2010

JUDGMENT

The accused, Elizabeth Tong, a lady of 27, married with three children, is charged with an offence under s.19(4) of the Shipping Act, "Engagement in Near-coastal voyage by a vessel registered outside Kiribati".

Particulars

During the months of November and December 2008, at Abaiang island in the Republic of Kiribati, Elizabeth Tong, used a vessel namely Wah Lam, a vessel which was registered outside Kiribati and was engaged in Near-coastal voyage without a prescribed licence granted by the Director of Marine and without paying a prescribed fee.

The relevant parts of sections 18 and 19 of the Act:-

Licence fees for vessels registered outside Kiribati

18. Every vessel which is registered outside Kiribati and is engaged in Near-coastal voyage shall take out a licence in the form which may be prescribed and pay such fee as ay be prescribed.

Licence for vessels employed in trading

19(1) Without prejudice to section 18, no vessel shall engage in a Near-coastal voyage unless there is in force at that time a licence in the form which may be prescribed granted in respect of that vessel by the Director of Marine under this section and such fee as may be prescribed for such licence has been paid:

Provided that the Minister may by notice exempt any vessel from the restriction imposed by this subsection. .....

(4) Any person who uses a vessel in contravention of this section or of any term or condition contained in a licence granted under this section commits an offence and shall be liable on conviction to a fine not exceeding $20,000 and to imprisonment for a term not exceeding 2 years or to both such fine and imprisonment.

Before the defendant was arraigned Ms Beiatau applied to amend the charge to add an alternative offence under the Penal Code.
Ms Kabure objected, telling the Court that she received notification of the amendment only this morning. On 27 August, the hearing was set for yesterday: about six weeks ago. It was far too late to apply to amend and prejudicial to the accused. The application was refused.

On arraignment the accused pleaded not guilty.

The prosecution called three witnesses, to the effect that Marine had not issued a licence and that the vessel, Wah Lam, had been observed transferring catch to another vessel.

Mr Moote Kabure is a marine surveyor:-

If approved seaworthy we can give a trading licence – can then load cargo and passengers. Not aware of Wah Lam – no information at Marine. No licence issued. No certificate of seaworthiness.

Mr Taramon Korere is Fisheries Assistant in the Ministry of Fisheries and Marine Resources Development:-

I was on mothership – saw Wah Lam loading fish on to mothership. Abaiang – between 9-10 January 2009. I watched – recorded number of fish – 12 tons – te kuau – te karon.

Mr Teitioma Ukenio is Senior Fisheries Assistant. His evidence is vague. He said he remembered seeing Wah Lam some time in 2008 off Nonouti and transhipping live fish. More relevantly, in cross examination he identified the letter dated 24 January 2008 which he wrote (Exhibit D1):-

Director of Marine

Marine Division MCTTD

Betio

Dear Madam/Sir

Confirmation of PROSPER MARINE EXPORTS as a Registered Local Marine Exporter

The above company have applied for its local marine exporter licence and is intending to export live reef fish which includes all species of groupers of family Serranidae family. For the company's operation of transshipment and exportation of such marine live commodities, there is a need for a fishing/carrier vessel for these purposes.

Prosper Marine Export have arranged to charter two foreign vessel namely Wong Ah Shing a carrier vessel for transshipment and transportation/exportation of these live reef fish to Hong Kong, and Wah Lam to carry out fishing operation and to be based in Kiritimati. With the need of this company the Fisheries Division of the Ministry of Fisheries and Marine Resources Development strongly support the charter of the vessel for a full operation of this wholly locally owned company.

Prosper Marine Exports (Elizabeth Tong) will be liable for any other information of the vessel and the company.

Elizabeth Tong gave evidence, producing a fisheries licence (Exhibit D2) issued to her by the Fisheries Division on 3 October 2008 and valid until 31 December 2008. She paid $2,675 for it. She admitted she had no trading licence:-

I had asked Teitioma if I need to go to any other Ministry. He said probably Marine, "I will write a letter for you".

She said she delivered the letter (Exhibit D1) personally to Marine and had expected they would be in touch with her but they never were.

The charge is proved but in the light of the evidence I regard the offence as merely a technical one. In the circumstances there will be a conviction without penalty.

Dated the 12th day of October 2010

THE HON ROBIN MILLHOUSE QC
Chief Justice