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Pawut v Lim Men Bee [1996] PGLawRp 731; [1996] PNGLR 26 (18 March 1996)

PNG Law Reports 1996

[1996] PNGLR 26 - Lamiller Pawut v Lim Men Bee

[1996] PNGLR 26

N1411

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

LAMILLER PAWUT

V

LIM MEN BEE

Waigani

Andrew J

12 March 1996

18 March 1996

APPEAL - Right of appeal to the National Court by the State against sentence - District Courts Act Ch 40 ss 132, 219.

FISHERIES - Prosecutions under Fisheries Act - Observations on purpose and intention of the Fisheries Act - Master of foreign vessel - Conditional release not sufficient.

APPEAL - Mandatory provisions for forfeiture of foreign boats - Sentencing principles for fisheries offenders - Section 67(2) Fisheries Act 1994.

Facts

The respondent pleaded guilty to a charge of illegally being inside PNG Fisheries Water under s 57(2)(a) of the Fisheries Act 1994 in the District Court. By exercising his discretion under s 132 of the District Courts Act Ch 40, the Magistrate did not proceed to conviction and conditionally released the defendant upon his entering into recognisance with surety of K10,000 for a period of 12 months.

Held

N1>1.       Section 219 of the District Courts Act Ch 40 does not bar the State’s right to appeal against sentence from the District Court to the National Court.

N1>2.       The offence of a foreign vessel being illegally inside PNG Fishing waters under s 57 of the Fisheries Act 1994 is a serious offence hence the intention of the provision is to severely and comprehensively deal with illegal fishing activities in PNG’s Fisheries waters. Cheatly v R [1972] CLR 291 and MAF v Dubchack [1994] 12 CRNZ 576 referred to.

N1>3.       That the order of the District Court was manifestly inadequate given the fact that this was a serious offence and not a trivial one and given the clear intention discernible in the Fisheries Act to impose severe penalties to ensure detterence for illegal fishing activities for the protection of the nation’s natural resources. per Andrew J.

N1>4.       Under the circumstances where the respondent has been found guilty, as a master of a foreign boat, he should have been ordered to pay a fine of up to K250,000 as required under s 57(2)(a) Fisheries Act 1994. Further, the District Court should then have ordered the forfeiture of the foreign boat under s 67(2) Fisheries Act 1994 as that is mandatory.

N1>5.       Appeal allowed. Orders of District Court quashed and substituted.

Cases Cited

Papua New Guinea cases cited

Ada v Bean and Others [1996] PNGLR 172.

Liu v Pawut Unreported decision of the National Court 1st December 1995.

Other cases cited

Cheatley v R [1972] CLR 291.

MAF v Dubchack [1994] 12 CRNZ 576.

Counsel

J Kawi, for the appellant.

A David, for the respondent.

18 March 1996

ANDREW J: This is an appeal from the District Court following charges under the Fisheries Act 1994 and orders made by the District Court on the 23rd February 1996.

The informant at the District Court was an officer of the National Fisheries Authority and the defendant was initially charged with two offences under s 57 of the Fisheries Act 1994 (‘The Act’]. The defendant initially pleaded not guilty to both charges but one was withdrawn and he then pleaded guilty to the first charge under s 57(2)(a) of the Act namely:

“Being Master of LIEN FA TSAIR 6, a foreign boat, did on his own account cause the said LIEN FA TSAIR NO. 66 to be in Papua New Guinea Fisheries waters at position lalitude 01 degree o3 minutes south. Longitude 147 degrees 38 minutes East, without the said LIEN FA TSAIR No. 66 being authorised to do so by a licence granted under the Fisheries Act 1994.”

Following the defendant’s plea of guilty to this charge the District Court proceeded to pass sentence and made the following order:

“The defendant be conditionally discharged on his entering into recognizance with surety in the sum of K10,000 for a period of twelve (12) months at which time and or at any other time he may be called to be convicted.”

Although it is not expressly stated in the order, the District Court proceeded not to convict the defendant by exercising its discretion under s 132 of the District Courts Act and conditionally released the defendant upon his entering into a recognisance with surety in the sum of K10,000 for a period of twelve months.

The appellant raises three gounds of appeal as follows:

N2>“1.      His Worship erred in law having wrongly exercised his discretion under s 132 of the District Courts Act when he found the defendant guilty of being in PNG fisheries s 57(2)(a) of the Fisheries Act 1994, thus failing to take into account the fact that the offence of being in fisheries waters is not a trivial offence to warrant such an order.”

N2>2.       His Worship erred in law having found the defendant guilty of an offence under section 57(2)(a) failed to convict and enforce forfeiture of the fishing boat which is a mandatory requirement under s 67(2) of the Fisheries Act 1994 when it is an offence under s 57.

N2>3.       His Worship wrongly exercised his discretion under section 132 of the District Courts Act by failing to have regard to gravity of the offence and the legislative intention of the Fisheries Act .”

Counsel for the respondent has submitted at the outset that the appeal should be dismissed on the basis that the District Court proceeded under s 132 of the District Courts Act and did not convict the defendant. Accordingly it is said there can be no appeal against conviction or sentence.

In dealing with this submission I think it is necessary to first ascertain the standing of the appellant and whether this is an appeal against the dismissal of an information or against sentence. The informant at the District Court, who is the appellant in these proceedings, is an officer of the National Fisheries Authority. For the reason expressed in appeal no 63 of 1996 Ada v Beau and Others, [1996] PNGLR 172, I am satisfied that the National Fisheries Authority is an agent of the State. The appeal is therefore brought by the State. If the appeal is against the dismissal of an information then the appeal would have to be brought by the Secretary for Justice with the leave of the court under s 219(3) of the District Courts Act. Under s 219(4) of the District Courts Act the Public Prosecutor may appeal against any decision of the District Court as to sentence in respect of any indictable offence triable summarily under s 420 of the Criminal Code. The offence here however was not in that category as it is an offence under the Fisheries Act triable summarily (s 65 of the Act). I am satisfied that s 219(3) of the District Courts Act creates an exception to s 219(2) (which prohibits the State from appealing against the dismissal of an information) and is confined to the issue of an appeal by the State against the dismissal of an information. There is therefore no restriction in s 219 on an appeal against sentence from the District Court to the National Court by the State and that right can be inferred generally from s 219(1), whereby a person aggrieved by a conviction order or adjudication of the District Court, may appeal to the National Court.

In this matter the defendant pleaded guilty to the charge. The District Court then proceeded to sentence the defendant and it did so under s 132 of the District Courts Act. That section provides that in certain circumstances the Court may, without proceeding to conviction, make an order dismissing the charge or discharging the offender conditionally. The defendant had to enter into a recognisance and he was ordered to pay a surety of K10,000. In my view a Magistrate who proceeds to exercise a discretion under s 132 of the District Courts Act, following the charge having been proved, is exercising a discretion in relation to sentence i.e, he is imposing a punishment. When he, without proceeding to conviction, makes an order either dismissing the charge or discharging the offender conditionally, this is the exercise of the court’s discretion and it cannot be said that it cannot be subject to appeal because there is no conviction. There is a right of appeal under section 219 against the order or adjudication. I am satisfied that this is an appeal against an order or adjudication and that the appeal is properly instituted by the State and that no leave to appeal is required in the circumstances.

The first ground of appeal is that the District Court wrongly exercised its discretion under s 132 of the District Courts Act in that it failed to take into account the fact that the offence of being in fisheries waters is not a trivial offence. Under s 132, the court may exercise its discretion in relation to sentence having regard to -

N2>(a)      the character, antecedents, age, health or mental condition of the person charged; or

N2>(b)      the trivial nature of the offence; or

N2>(c)      the extenuating circumstances under which the offence was committed.

The learned magistrate in his reasons on sentence took into account the fact that the defendant had pleaded guilty and of the time and money which this had saved the State. He took into account the fact that he was 62 years of age with no prior convictions and that the charge was “for simply being in PNG waters and none other”. That discloses that there has been a proper consideration of the defendants age, character and antecedents and would appear to imply that the offence was not regarded as particularly serious and possibly trivial. In my opinion the offence is a serious one and is certainly not trivial. The Fisheries Act 1994 is designed, inter alia, to manage, develop and protect the Nation’s fisheries resources and marine, coastal and aquatic environments in such a way as to conserve and replenish them as an asset for future generations. There have been many statements in relation to the importance of a nation’s fisheries resources, eg: “The protection of the fishing grounds of the nation from foreign exploitation is somewhat akin to the protection of the country from smuggling. Drastic action in protection of the country’s interest in each instance may be regarded as warranted, indeed, if not to be expected. Each is an area where pecuniary penalties are unlikely to provide adequate protection”, per Barwick C.J in Cheatley v R [1972] CLR 291 at 296. Further in MAF v Dubchack [1994] 12 CRNZ 576 at 587:

“As this case has shown plainly enough its Act is far from easy to enforce. New Zealand’s economic zone is vast, there are many taking large quantities of fish from it under licence or illicitly. The economic stakes are high, and the integrity of the resource is always at state. Surveillance is difficult and expensive.”

Those statements are equally applicable to the circumstances of Papua New Guinea. To give effect to the intentions of the Fisheries Act various actions are considered offences in order to safeguard the nation’s fisheries resources. Section 57 of the Act prohibits foreign boats to enter, be in, or fish in fisheries waters of Papua New Guinea except for a purpose recognised by international law (ie the right of free passage) or as authorised by a fishing licence. The seriousness of the offences under s 57 are reflected by the penalties imposed, namely K25,000 for a crew member, K250,000 for any other natural person, which includes the master and K500,000 in the case of a corporation. Section 57 creates the offence of a foreign vessel being in fisheries waters and the intention of the Act is to make this a serious offence and the intention of the section is to severely and comprehensively deal with illegal fishing activities in Papua New Guinea’s fisheries waters.

Ground 3 of the appeal may be equated with Ground 1, in that it is also relevant to the manifestly inadequate nature of the order of the District Court.

I am satisfied that the order of the District Court was manifestly inadequate given the fact that this was a serious offence and not a trivial one and given the clear intention discernible in the Fisheries Act to impose severe penalties to ensure detterence for illegal fishing activities for the protection of the nation’s natural resources.

Ground 2 of the appeal is that the District Court erred in law in that having found the defendant guilty of an offence under s 57(2)a), it failed to convict and impose forfeiture of the fishing boat which is a mandatory requirement under s 67(2) of the Fisheries Act when it is an offence under s 57.

In this case the defendant pleaded guilty to causing the vessel LIEN FA TSAIR No. 66, also known as LIEN FA TSAIR No. 6, to be in PNG fisheries waters without any lawful excuse and that was an offence under s 57. I have already found that the order of the District Court was manifestly inadequate. The defendant, having been found guilty of the offence should then have been ordered to pay a fine under s 57(2)(a) of the Act; that is as master of a foreign boat, a fine up to K250,000. Further, the District Court should then have ordered the forfeiture of the foreign boat under s 67(2) of the Act. This section is in mandatory terms as follows:

“Section 67(2); where a court convicts a person of an offence against Section 55, 56(2) or (3), 57 or 59, or such other offences as may be prescribed for the purposes of this subsection in the commission of which a boat that was a foreign boat was used or otherwise involved, the court shall order the forfeiture of:

N2>(a)      the boat; and

N2>(b)      any net, trap or other equipment that was on the boat concerned at the time of the offence; and

N2>(c)      fish on board at the time of the offence, or, where the fish has been sold under section 61 - the proceeds of the sale of the fish.”

Thus, where a foreign boat has been used in the commission of an offence under s 57 of the Act, it must be forfeited under s 67(2) of the Act. Parliament has clearly made it mandatory for the forfeiture of foreign boats found guilty of offences in PNG waters and as PNG is a sovereign State it has the full power and right to do this (See Appeal 362 of 1995. Kwang Sheng - Liu v Lamiller Pawut Unreported decision of the National Court of the 1st December 1995).

I therefore uphold the appeal and quash the order of the District Court.

Under s 230 of the District Courts Act, the National Court on an appeal from the District Court may substitute or make a conviction, order or adjudication which ought, on the evidence before the National Court, have been made by a District Court.

I make the following orders:

ORDERS

N1>1.       The appeal in this matter is allowed and the order of the District Court is quashed.

N1>2.       The master of the foreign boat LIEN FA TSAIR 66 also known as LIEN FA TSAIR 6, i.e LIM MEN BEE is fined the sum of K20,000 under the provisions of s 57 of the Fisheries Act 1994.

N1>3.       The foreign boat LIEN FA TSAIR 66 also known as LIEN FA TSAIR 6, is forfeited to the State.

Lawyer for the appellant: The Attorney-General.

Lawyer for the respondent: Davids Lawyers.