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Shao Jun Sun v Rex [2010] TOCA 2; AC 01 of 2010 (14 July 2010)

IN THE COURT OF APPEAL OF TONGA
CRIMINAL JURISDICTION
NUKU’ALOFA REGISTRY APPEAL

NO. AC 01 of 2010

BETWEEN:

SHAO JUN SUN
Appellant

AND:

REX
Respondent

Coram: Burchett J
Salmon J
Moore J

Counsel: Mr. Niu for the Appellant
Mr A. Kefu and Ms Finau for the Respondent

Date of Hearing: 8 July 2010
Date of Judgment: 14 July 2010.

JUDGMENT OF THE COURT

Beche-de-mer, also known as Sea Cucumber, Sea-slug and Trepang, is a marine animal prized particularly by the Chinese as a luxury. A species of Beche-de-mer, Sandfish, is found in Tongan waters. The present appeal concerns what Laurenson J. held to be an illegal operation involving the processing of Beche-de-mer.

By s.33(4)(a) of the Fisheries Management Act 2002, it is provided:

"Any person who –

1. Operates or allows to be operated any fish processing establishment without a licence granted under this section ... shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $500,000 or imprisonment for a term not exceeding one year or to both such fine and imprisonment and shall be liable to a fine not exceeding $5,000 for every day the offence for which he is convicted continues."
   

What is meant by a "fish processing establishment" is made clear by s.2 which defines the expression as referring to "any land, premises or other place on or in which fish are processed or stored for the purposes of processing for sale outside Tonga or for sale primarily by wholesale in Tonga".

The indictment upon which the Appellant went to trial was in these terms:

"Shao Jun Sun is charged with the following offence:

Statement of Offence

(Count 1)

Operating a fish processing establishment without a licence, contrary to Section 33(4)(a) of the Fisheries Management Act (26/2002).

Particulars of Offence

(Count 1)

Shao Jun Sun, on or about 22 January 2005 at Nuku’alofa, you did operate a fish processing establishment without a licence for the purposes of processing for sale primarily by wholesale in Tonga, and such establishment consisted of 2 freezers with sandfish inside, 6 bins of sandfish, 4 drying racks and 5 cooking drums."

During his consideration of the matter, and in subsequent discussion with counsel, the learned judge observed that the particulars did not include the purpose of "sale outside Tonga", nor did they refer to the alternative operation expressed in s.2 by the words "or stored". The particulars were accordingly amended by substituting for the words "for the purposes of processing for sale primarily by wholesale in Tonga" the words "for the purposes of processing or storing for sale outside Tonga or primarily by wholesale in Tonga". The making of this amendment was entirely in keeping with the principle stated in Halsbury 4 ed. Vol 11(2) para. 937, but as Mr Kefu candidly pointed out, when the amendment was reduced to writing the important words "without a licence" were somehow omitted. That was plainly not intended, the amendment proposed and discussed with counsel being limited to the addition of alternatives. In any case, the absence of a licence, although accidentally omitted from the particulars, remained an allegation made in the indictment itself.

The evidence showed that the Appellant made arrangements with a diver, and upon a number of other divers hearing about it, with them also, to dive for beche-de-mer on his behalf. He purchased a boat for some $20,000 for the purpose, and work commenced immediately it was delivered, that is, on 20 January 2005. The sandfish were taken to the Appellant’s house at Houmakelikao, where they were put in a freezer. The divers were paid. The same operations took place the next day. But on the third day, 22 January 2005, the returning fishing party was met by a fisheries officer to whom these activities had been reported. At that time, two freezers in the house contained a total of 1650 sandfish. Outside the house were two large metal racks suitable to have trays placed on them and five large cut-down drums suitable for boiling fish. The catch obtained on 22 January had not been removed from the boat before the fisheries officer intervened, but it was obviously intended to be dealt with in the same way as the two earlier catches, and would have brought the total number of sandfish caught to 2435.

The evidence showed that the Appellant’s arrangement with the divers was that he would provide the boat and would pay them $2.50 for each sandfish, as well as meeting the cost of fuel and food. In these circumstances, the trial judge convicted the Appellant.

On the appeal, counsel conceded "there was evidence of storing of the fish for the purpose of processing". The sole ground raised against the conviction was an argument that the indictment did not clearly state the offence charged, thereby contravening cl. 11 of the Constitution. The suggested defect was in the failure of the particulars contained in the indictment to state the location of the fish processing establishment more precisely than by the words "at Nuku’alofa", and in the fact, so the Court was informed, that strictly speaking the Appellant’s house was outside Nuku’alofa, being at Houmakelikao which is in the district of Ma’ufanga, although the area may in common parlance be referred to as within Nuku’alofa.

In our opinion, there is no substance to this point. No lack of clarity in that respect was apparent to counsel who appeared for the Appellant at the trial. Clause 11 simply requires the offence to be identified. The indictment did this. Even if, which we doubt, it was necessary to have recourse to the particulars to ascertain whether cl.11 was met, they are adequate. The reference to Nuku’alofa appears in the particulars, together with details of the fish processing and storing apparatus in question. It is impossible to imagine the Appellant was in doubt what was alleged, and it is not asserted, nor has it ever been, that there was any confusion as to what was meant, in the context, by the words "at Nuku’alofa". In fact, as counsel conceded, there is legislation in which the area where the appellant’s house is situated is referred to as part of Nuku’alofa, provision being made in respect of "pigs or goats within the boundaries of Nuku’alofa (including Ma’ufanga)": see Town Regulations Act c 44, s.10 (1). It will be observed that this provision does not employ the familiar device of a deeming clause, which would be appropriate if Ma’ufanga were unambiguously not seen as being within Nuku’alofa.

After his conviction, the appellant came up for sentence before Ford CJ on 23 February 2010, that is more than five years after the three days during which the fish processing establishment operated. He was sentenced to six months imprisonment and in addition he was fined $10, 000, to be paid within 30 days, in default a further four months imprisonment. These penalties must be seen in the light of the maximum fine for this offence of $500, 000 and the maximum term of imprisonment which may be imposed, alternatively or additionally, of one year imprisonment.

The appellant appeals against the sentence only in one respect – he seeks to have the six months imprisonment suspended for three years. He is aged 47 years, married with one child, and has no prior convictions. The 5 years delay in his trial has allowed him to demonstrate he has learned his lesson by avoidance of any further illegal conduct. He is in steady employment, earning 1000 pa’anga per month.

His counsel, Mr Niu, points out that the penalties in the Fisheries Management Act, a number of which relate to offences generically similar to this one, reveal a reliance on heavy fines as a primary deterrent. The maximum number of years of imprisonment as a proportion of the maximum fine is quite small, and particularly so in the instant case under s 33(4). But it may also be noted that s 16(3) ("catching protected species"), s 21 ("fishing without authorization"), s 35(5) ("exporting fish without licence"), s 40(1) ("breaching conservation requirement"), s 64(1) ("breaching international conservation measure") and s 67 ("driftnet" violations) are all sections imposing very heavy fines, but no term of imprisonment at all. It is perhaps in keeping with this approach that s 33(4), when it turns to the problem of a persistent repeat offender, deals with it by a daily fine of $5,000.

On the evidence, the appellant’s operation was rather naïve and amateurish as a venture in crime. He engaged one diver, not in a remote place, but near Nuku’alofa, and made so little attempt at concealment that within three days numbers of others were involved and the news reached the authorities. Nevertheless, the national fisheries are far too important to allow even such an operation to be treated as other than very serious. Certainly, in the absence of exceptionally strong personal grounds, anyone who sets out to contravene s 33, or those comparable provisions that permit the imposition of imprisonment, must face a real prospect of incarceration.

However, justice in the individual case requires us to consider whether the appellant comes precisely within the category of persons for whom the suspension of a sentence is an appropriate course. The circumstances of the case relatively clearly raise for consideration the question of suspension. It was a matter the sentencing judge should have addressed and he erred in not doing so, particularly having regard to the deterrent weight of the substantial fine imposed. In R v Petersen [1994] 2 NZLR 533 at 537, Eichelbaum CJ, speaking for himself and Hardie Boys and Henry JJ, said of the New Zealand provision for suspension of a sentence:

"[It] affords the Court an important additional discretionary power in attempting to meet the often conflicting demands requiring consideration on sentencing. It is we think plain that the principal purpose of the new provision is to encourage rehabilitation and provide the Courts with an effective means of achieving that end, by holding a prison sentence over the offender’s head. Put another way it enables the Court to give the offender one last chance in a manner which clearly spells out the consequences if he offends again. It is available to be used in cases of moderately serious offending but where it is thought there is a sufficient opportunity for reform, and the need to deter others is not paramount. Although not so limited, it may be particularly useful in cases of youthful offenders."

Later in the judgment (at 539), the Court considered some of the categories of cases where suspension might be appropriate, saying:

"Thomas [Principles of Sentencing: the sentencing policy of the Court of Appeal Criminal Division (2nd ed, 1979)] at pp 245-247 lists certain categories of cases with which suspended sentences have become associated, although not limited to them. We do not propose to repeat those in detail since broadly all can be analysed as relating either to the circumstances of the offender, or alternatively the offending. In the former category may be the youth of the offender, although this does not mean the sentence is necessarily unsuitable for an older person. Another indicator may be a previous good record, or (notwithstanding the existence of a previous record, even one of some substance) a long period free of criminal activity. The need for rehabilitation and the offender’s likely response to the sentence must be considered. It is clear that the sentence is intended to have a strong deterrent effect upon the offender; if the latter is regarded as incapable of responding to a deterrent the sentence should not be imposed. As to the circumstances of the particular case, notwithstanding the gravity of the offence, as such, there may be a diminished culpability, arising through lack of premeditation, the presence of provocation, or coercion by a co-offender. Cooperation with the authorities can be another relevant consideration. All the factors mentioned are by way of example only and are not intended as an exhaustive or even a comprehensive list. The factors may overlap and more than one may be required to justify the suspension of the sentence in any particular case. Finally, any countervailing circumstances have to be considered. For example, in a particular case the sentence may be regarded as failing to protect the public adequately."

In our opinion, the appellant’s unblemished character (apart from this offence), at his age, marks him out as likely to take advantage of an opportunity to rehabilitate himself. The appeal should be allowed to the extent of the suspension of the six months term of imprisonment for three years.

Burchett J
Salmon J
Moore J