Unreported National Court Decisions
N1632
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
AP. 89 OF 1992
WANG TANG TEONG - Appellant
GISA KOMAGIN - Respondent
Waigani
Jalina J
21-22 October 1997
APPEAL - District Court - Fishing Licence - Letter from Minister authorising fishing - whether Letter sufficient authority to fish - Letter is sufficient authority pending grant of Licence - Fisheries Act Ch. 214 s. 10 (2).
Counsel:
D Stevens for Appellant
No appearance for Respondent
22 October 1997
JALINA J:  The appellant was convicted by the Boroko District Court on 2nd April 1992 for transhipping fish between two boats namely JIA SHINE No. 12 and JIA WIN No. 1 without a licence and in doing so contravened s. 10 (2) (b) of the Fisheries Act Ch. 214.  He was fined K800.00 in default 5 months imprisonment in hard labour.  The boat, JIA SHINE No. 12, was forfeited to the State.  Section 10 (2) provides:
“(2)    Except with the consent of the Minister and subject to such conditions as the Minister thinks proper, or by virtue of an endorsement under s. 6 (4) (b), a person who, in any area of waters, tranships fish to or from a boat for which there is no licence in force under s.6(2)(b) is guilty of an offence.”
During the hearing a letter of authorisation dated 6 March 1991 from the Minister for Fisheries and Marine Resources was produced in evidence.
The letter is in the following terms:
“The Managing Director
PNG Fish and Cannery
PO Box 66
BOROKO NCD
Dear Mr Chan
SUBJECT:      LETTER OF AUTHORITY TO OPERATE DOMESTIC FISHING VESSELS.
This letter is to advise and authorize you to operate two vessels whose names appear here under to undertake these fishing activities respectively:
(1)      JIA WIN No.1 - SHARK TRAWLING
(2)      JIA SHINE No.12 - PRAWN TRAWLING
(3)      MAO HUA 606 - SHARK FISHING
This authority is granted on the basis that granting of formal licences has been delayed due to lack of quorum to endorse recommendations.  This authority will expire upon receipt of granting of formal licence.
Yours Sincerely,
HON. AKOKA DOI, CMG. MP.
Minister for Fisheries & Marine Resources”
The appellants grounds of appeal are as follows:
GROUNDS FOR APPEAL
“1.      The learned Magistrate erred in law and or in fact in holding that the Appellant did not have the fishing licence to tranship fish under Section 6(2)(b) of the Fisheries Act.
2.       That the learned Magistrate erred in law and or in fact in holding that Ministerial Authority in a form of letter did not amount to approval for extension of time for the Appellant to fish pending formal renewal of fishing licence.
3.       That the learned Magistrate erred in law and or in fact in holding that the Appellant transhipped fish from Jia Shine No. 12 to Jia Win No. 1 under Section 6(2)(b) and Contrary to Section 10(2) of the Fisheries Act.
4.       That the learned Magistrate erred in law and in fact in finding the Appellant guilty on the insufficient evidence before him for transhipment of fish from Jia Shine No. 12 to Jia Win No. 1 under Section 6 (2) (b) of the Fisheries Act, which the evidence clearly showed offence under Section 6 (2) (a) which was not the subject of the charge.
5.       That the learned Magistrate erred in law or in fact in holding that the fishing vessel Jia Shine No. 12 was a foreign fishing vessel thereby warranting the confiscation under Sections 15 and 16 of Fisheries Act respectively.
6.       That the sentence of Eight Hundred Kina (K800.00) fine in default five (5) months imprisonment was unreasonable and excessive.”
GROUND 1
The appellant submits that the learned magistrate erred in law and in fact in failing to find that the appellant had a licence or authority to fish.  He submits that the letter of authorisation from the Minister constitutes consent from the minister and as such falls within the ambit of the exception of s. 10 (2) in the Act.
I accept the appellant’s submissions.  The two vessels, namely JIA WIN No.1 and JIA SHINE No.12 being (expressly) specified in the letter of authorisation, meant that they could fish.  There are no conditions imposed by such letter.  Pending the grant of a formal licence, I am of the opinion that the letter served the purpose of a licence which gave the appellant, though his employer, legal authority to fish and tranship fish.
I find therefore that the learned magistrate erred in law in convicting the appellant.  I quash the conviction and order that the boat together with its equipment be returned to its owners.
In view of my decision is respect of the first ground, it is not necessary for me to deal with the other grounds.
Lawyer for Appellant: Maladinas Lawyers
Lawyer for Respondent: Solicitor General