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Teong v Komagin [1998] PNGLR 427 (22 October 1997)

[1998] PNGLR 427

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WANG TANG TEONG

V

GISA KOMAGIN

WAIGANI: JALINA J
21-22 October 1997

Facts

The Minister for Fisheries and Marine Resources had written a letter authorizing the employer of the appellant to undertake fishing activities in the waters of Papua New Guinea. On the basis of the letter the appellant carried out fishing activities.

However, the appellant and his employer’s fishing vessels were impounded and the appellant charged for illegal fishing. The District Court found that the appellant did not have a valid licence as required under the Fisheries Act, Ch 214 to conduct the fishing activities. He was fined K800.00 and his boat was forfeited to the State.

Held

1. The Minister was empowered under the Fisheries Act Ch 214 to issue fishing licences to successful applicants.
   
2. The letter of the Minister for Fisheries and Marine Resources authorizing the appellants’ employer to conduct fishing activities using the specified fishing vessels is deemed to be a licence under the Fisheries Act Ch 214.
   
3. The letter is however, a temporary licence which will expire upon the receipt of the formal licence.
   

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 trans-shipping 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. No. 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, transships 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 three vessels whose names appear hereunder 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 appellant’s 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 transship fish under s 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 transshipped fish from Jia Shine No. 12 to Jia Win No. 1 under s 6(2)(b) and contrary to s 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 transshipment of fish from Jia Shine No. 12 to Jia Win No. 1 under s 6 (2)(b) of the Fisheries Act, which the evidence clearly showed offence under s 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 ss 15 and 16 of the 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, through 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.