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Lum v Milligan [1974] PNGLR 209 (17 July 1974)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 209 - Tung Cheeu Lum v Milligan

[1974] PNGLR 209

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

TUNG CHEEU LUM

V

MILLIGAN

Rabaul

Raine J

16-17 July 1974

IMMIGRATION AND ALIENS - Prohibited immigrants - Liability of masters of ships - Entry of prohibited immigrants - Migration Act, 1963-1969, s. 30 (1)[cclxxxvi]¹.

The master of a Taiwanese fishing boat, who anchored off Puili Island in the Carteret Group, and not far from shore on 16th May, 1974, was charged and convicted of an alleged offence under s. 30 (1) of the Migration Act 1963-1969. In evidence the master stated that he was on his way to Samoa, where he had a licence to fish but had suffered some engine trouble and had veered off his course and anchored at Puili. On appeal against conviction,

Held

(1)      Section 30 (1) of the Migration Act 1963-1969 is aimed at masters of vessels who place their vessel at some secret place, or some place where it is on the cards that they will not be seen, so that illegal immigrants may slip ashore: it does not set its sights on people like the appellant.

(2)      Accordingly the information laid was misconceived, the appeal should be allowed and the conviction and sentence quashed.

Appeal

This was an appeal against conviction and sentence for an alleged offence under s. 30 (1) of the Migration Act 1963-1969.

Counsel

K. Los, for the appellant (master).

B. Kidu, for the respondent (Crown).

17 July 1974

RAINE J: The appellant is the captain of a Taiwanese fishing boat. Apparently it is about the size of one of our Government trawlers. Including the appellant it carried a crew of seventeen.

On the 17th May, 1974 the boat was observed off Puili Island in the Carteret Group, and not very far from the shore, in fact at the mouth of the south west passage through the reef. Puili Island is within Papua New Guinea’s territorial waters.

The appellant said that he was on his way to Samoa, where he said he had a licence to fish, but he claimed that he suffered some engine trouble, and accordingly anchored off Puili on the 16th May. A Japanese map was found when the authorities inspected the ship, and it had pencil lines across it which the appellant agreed were the courses he set. The lines are in a south easterly direction and the line passing the Carterets is to the east of the Group, not a great distance off, but an appreciable distance. Thus it is quite clear that the appellant veered off his course, and his evidence and his record of interview make it equally clear that in veering to the westward he did so deliberately.

There was evidence, which the learned Magistrate accepted, that some of the crew were fishing over or off the reef. Some were swimming around, and the captain says the opportunity was taken by them to clean themselves up.

Section 30 (1) of the Migration Act 1963-1969 reads:

“30(1) The master of a vessel which has entered the Territory from overseas shall not suffer his vessel to enter a place other than a port unless under stress of weather or other reasonable cause.

Penalty: Five hundred pounds.

Section 5 (1) provides (inter alia):

‘port’ means a proclaimed port or a proclaimed airport.”

Mr. Los of counsel for the appellant appeals against the conviction, and also the sentence, which was a fine. His main submission, as to the conviction, was that the appellant, in all the circumstances, did not suffer his vessel to enter a place. He submits that the vessel did not enter the country at all, that it did not come or go into Papua New Guinea, or penetrate its environs, if one can apply that word to offshore water. He submits that the words “other than a port” make this even clearer, that the Legislature is plainly saying, in effect, “Come to ports where we can keep an eye on you, and have facilities for doing so, but do not enter bays or rivers, or lie off our beaches, where the same are unsupervised, or likely to be so, and are not proclaimed ports.”

I think there is a great deal in this submission, although it could lead to some very nice distinctions. Unfortunately the evidence is not very clear about it. It is true the vessel was only about four of five hundred yards from the shore. But distance will not always be decisive. In a place like Sydney Harbour, distance from the shore would not matter at all, once through the Heads you are in “(the) place”. But it could well be, off some of this country’s beaches, that a reef, or shallows, might force the master to anchor two to three miles off the shore. It seems to me that were he to do this, and then send a prohibited immigrant ashore in a small boat, that it could then be concluded that he “enter(ed) a place”. Then, in addition, I am not clear what significance there is in the relation of this vessel to the south west passage of the reef. I am in the dark as to this. Some reef passages, once entered, lead to the mooring buoys, or to the wharf. Some do not. Some might lead to a good, although undeveloped harbour, some might not.

Thus, had it not been for the matter I raised in argument, which I believe is decisive of the whole appeal, I would have sent the case back for rehearing.

But in my opinion the information that was laid was misconceived. There is no suggestion in the evidence that there was any invasion, or intended invasion, of this country by illegal immigrants. There is no suggestion that other nationals, unhappy in their homeland, planned to settle here, or stay here for a time, or that smugglers, or drug runners, desperate stowaways, or spies, were about to come ashore. What they could have gained, in such cases, by landing on one of the islands in the Carteret Group, needs the vivid imagination of the late Mr. Ian Fleming.

These Taiwanese were fisherfolk and sailors. There is no suggestion that they went ashore, or planned to set up a salting and canning operation on the not far distant coastline. In fact the learned Magistrate, in the reasons he gave in court when he convicted the appellant, said that he accepted that the vessel did have engine trouble, although he went on to say that it was still able to proceed, and should have gone to the port of Kieta.

When one reads the whole of the Migration Act, always a useful exercise, when construing a single section in a statute, it is not merely tolerably clear, but clear beyond peradventure, that the Legislature never had in mind minor, even casual, activities, such as those carried out by the appellant and his crew, even if they offended against the Fisheries (Licensing) Act, in the fullest sense, or merely technically.

Section 30 (1) is aimed at masters of vessels who place their vessel at some secret place, or some place where it is on the cards they will not be seen, so that illegal immigrants can slip ashore. It is a most important piece of legislation. Great embarrassment with a neighbouring country can be caused if a criminal, or a politically disgruntled person, gains illegal entry here. In addition, the Government, very naturally, does not want the country inundated with dishonest people, or idlers. This is what the whole Act, and s. 30 (1), is all about. But in my view the Act did not set its sights on people like the appellant. Sed quaere, however, whether there might not be a breach of s. 30 (1) where it was proved that a very real, and quite significant fishing operation was commenced, and continued, even though the participants did not step ashore. In other words, an offshore operation, where the vessel sat in our water, close enough to the land, and conducted fishing or other operations in a very real sense. Few vessels can actually run ashore, as in the case of landing craft with wheels, or hovercraft, or shallow bottom craft that can winch themselves off. Thus too much reliance should not be placed on the fact that the possible offender is anchored offshore. If he is, then he proceeds to the shore by small boats, or, if necessary, he can swim.

However, such a situation does not arise here. The facts are a long way from showing an offence against the Migration Act. The appeal is allowed, the Magistrate’s decision reversed, and the conviction and sentence quashed.

Appeal allowed. Conviction and sentence quashed.

Solicitor for the appellant: G. R. Keenan, Acting Public Solicitor.

Solicitor for the respondent: P. J. Clay, Crown Solicitor.