[2007] Tonga LR 52

IN THE SUPREME COURT OF TONGA

R

v

Lata

Supreme Court, Nuku'alofa
Ford J 
CR 97/2006

10 and 11 May 2007; 16 May 2007 

Fisheries – undersized lobster – not required to prove they were alive – accused had control of lobsters and knew they were undersized – convicted  

The accused was charged with possession of undersized lobsters contrary to regulation 13(2)(b) of the Fisheries (Conservation and Management) Regulations 1994 and with using threatening language towards an Authorised Officer contrary to section 75(c) of the Fisheries Management Act 2002.  On 13 January 2006 an off duty fisheries officer, Mr Finetupou, went to Vuna wharf with his brother to purchase lobsters.  He purchased six lobsters and his brother called him to come to where he was buying another lobster from the accused.  The brother paid over his money and the accused then opened an icebox and indicated to the brother to take a lobster.  At the same time Mr Finetupou saw that the lobsters were undersized and he told the accused to return the money because the lobsters were undersized otherwise he would seize them.  An altercation then took place between the accused and Mr Finetupou during which the latter seized four of the lobsters.  The accused threatened Mr Finetupou and he then asked him if he had some ID.  Just as the officer was about to go to his vehicle to obtain his ID the accused pulled the four lobsters from out of his hands.  Mr Finetupou then went to the police station to obtain assistance and when he arrived back a short time later with three police officers he was told that the accused had thrown the lobsters into the sea.  Mr Finetupou recovered the four lobsters from the water which he established were all dead and undersized.  Issues arose over whether dead lobsters could be the subject of a prosecution having regard to the Tongan version of regulation 13(1) which appears to define lobster as "a living thing"; whether the lobsters could be said to be in the possession of the accused and whether he knew they were undersized; whether Mr Finetupou was an Authorised Officer given that he was off duty and whether Mr Finetupou was acting in the execution of his duties after finding what appeared to him to be a breach of the regulations. 

Held: 

1. To the extent that the English and Tongan versions of regulation 13 differed in meaning the court should be guided by the true meaning and intent of the Tongan version -- see section 21 of the Interpretation Act (Cap 1).  As a matter of interpretation, to require the prosecution to prove that the undersized lobsters were alive would be to give the language in the regulation a capricious or irrational or absurd operation.  Declining to follow R v Lata and Tovo [2006] TOSC 17, the court held that the prosecution was not required to prove that the lobsters in question were alive. 

2. The accused had control of the lobsters when he offered them for sale and his later action in recovering possession of them from Mr Finetupou showed an intention to exercise control. 

3. The accused must have known that the lobsters were undersized because he had been told by an experienced fisheries officer that they were undersized and there was no other sensible reason why he had endeavoured to dispose of them.

4. Mr Finetupou came within the definition of an authorised officer under section 2 of the Fisheries Management Act 2002. 

5. Although Mr Finetupou was not acting in the execution of his duty when he first went to Vuna wharf he was lawfully executing his duty when he intervened having come across an offence being committed when he was off duty. The accused was convicted on both counts.   

Cases considered: 
Beckwith v R (1976) 135 CLR 569; (1976) 12 ALR 333 
Bishop v Deakin [19361 Ch 409 
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; (1981) 35 ALR 151 
Dean v Wiesengrund [1955] 2 QB 120 
R v Lata and Tovo [2006] TOSC 17 
Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231 

Statutes considered: 
Fisheries Management Act 2002 
Interpretation Act (Cap 1) 
Police Act (Cap 35) 

Regulations considered: 
Fisheries (Conservation and Management) Regulations 1994

Counsel for the Crown : Mr Kefu 
Counsel for the accused : Mr Tu'utafaiva 

Judgment

Introduction

[1] The accused, Mr Lata, had pleaded not guilty to two charges: 

(a) Being in possession of an undersized lobster contrary to regulation 13(2)(b) of the Fisheries (Conservation & Management) Regulations 1994, (the Regulations) and 

(b) Using threatening language towards an Authorised Officer contrary to section 75(c) of the Fisheries Management Act 2002 (the Act). 

The facts 

[2] A Fisheries Officer, Mr Sione Finetupou, went to Vuna wharl at Nuku'alofa about 7 am on 13 January 2006 with his brother to purchase lobsters. Mr Finetupou was off duty at the time. He purchased six lobsters. His brother called for him to come to where he was buying another lobster. 

[3] Mr Finetupou went over to where his brother was standing with the accused. His brother paid over his money and the accused then opened an ice box and indicated to the brother to take a lobster. Mr Finetupou then saw that the lobsters were undersized. He therefore told the accused to return the money because the lobsters were undersized otherwise he would seize them. 

[4] The accused told him to go away and not interfere. He was again told to give the money back or they would be seized and taken to the police station if found to be undersized following measurement. 

[5] Mr Finetupou then took 4 lobsters and held them behind his back, two in each hand. At this point the accused told him to give them back or, "he was going to assault me." Mr Finetupou then held the lobsters in front of him whereupon the accused tried to take them from him. He was told to give the money back and they would go to the police station. 

[6] The accused replied saying, "give them to me or I will assault you." He then asked Mr Finetupou if he had some ID. Mr Finetupou replied, "yes, in the van, wait and I will go and get it." The accused did not reply. Instead, he pulled the lobsters away from Mr Finetupou who did not resist because of the spikes on the lobsters and because he thought that if he did, the acóused would assault him. 

[7] Mr Finetupou then left the scene and went to the police station for assistance. He arrived back a short time later with three police officers to find the accused had left. He spoke to some people in the area where he and the accused had been previously. He was told that the accused had thrown the lobsters into the sea and then left in a vehicle. He went to his home, came back with his goggles and flippers and entered the water where directed by those on the wharf. He found 4 lobsters in an area measuring roughly 5 m square about 10 m from the foreshore, 15 from the edge of the reef and 3 m from the edge of the wharf. The water was about I m deep and clear. Two of the lobsters had had their tails removed. Lobsters are not normally found in this particular area. 

[8] Mr Finetupou said he was able to identify these lobsters as being the same he had previously taken from the accused. They were the same size and colouration. They were still fresh i.e. no smell and they had not started to change colour. They were taken to the Ministry of Fisheries office where he measured them with calipers, confirmed they were undersized, and then labelled them. They were later placed in a freezer in a locked room at the Ministry of Fisheries.

[9] Mr Finetupou said that he had been employed by the Ministry of Fisheries for 26 years. Under cross-examination he said that he had been involved in checking on illegal fishing for 16 years during which time he had found nine breaches. His other duties involved him as the assistant to one of the senior officers in the Ministry. 

[10] He said that he had previously dealt with the accused checking his catches in 2005. He conceded that the accused may not have known his name but he was certain, because of the previous dealings, he knew who he was and that he was a Fisheries Officer. Furthermore, they both live in the same area. 

[11] A Mrs Vaea was also at Vuna wharf on the 13th of January 2006. She was sitting in her car about 1 1/2 metres away and she saw and heard the accused and Mr Finetupou having a "misunderstanding". She was acquainted with both of them. She said that they were about 6 inches apart. Mr Finetupou didn't want the accused's lobsters because they were small. 

[12] She heard the accused threaten to assault Mr Finetupou twice. She recalled Mr Finetupou held 4 lobsters in one hand. The two men separated. She heard Mr Finetupou say that he was going to the police station. Next thing she could recall was seeing the accused throw 4 lobsters into the sea. She described an overarm action. He then picked up something and left in a vehicle. 

[13] Mr Finetupou then returned with police officers. She heard other people saying the accused had thrown lobsters into the sea. He left came back with goggles and flippers. He entered the water, looked around then found 4 lobsters. 

[14] Mr Fa'anunu, the Department Secretary of Fisheries, gave evidence of his qualifications in marine biology. He identified the 4 lobsters as all being of the genus Panulirus. Two were of the penicillatus species and two from the longipe's species. He confirmed too that Mr Finetupou is a Fisheries Officer. 

Count 1 

[15] Regulation 13(2)(b) states: 

"(2) No person shall harm, take, have in his possession, sell or purchase: 

(a) ... 

(b) any lobster the carapace of which is less than 7.5 centimetres when measured along the midline from immediately behind the rostral horns to the rear edge as illustrated in Schedule 3 to these Regulations." 

[16] Count 1 in the indictment alleges that the accused had taken undersized lobsters in waters from Matahau Village. All the evidence and submissions had been directed to the issue as to whether the accused was in possession of undersized lobsters at Vuna wharf. This anomaly came to my attention after the completion of the case. I therefore raised it with counsel in Chambers on 14 May 2007. (Emphasis added) 

[17] Counsel then explain to me that Count 1 had been laid on the basis of a written confession by the accused that the lobsters in question had been taken by him from waters in Matahau Village. Prior to trial the Crown file which contained the confession had been destroyed in the events of 16 November 2006. Thereafter both counsel had proceeded on the basis that the charge would relate to the alleged possession of the lobsters at Vuna wharf. As already noted, all the evidence, including cross-examination and submissions were directed to this issue. I therefore directed, with the consent of counsel that Count 1 in the indictment should be amended accordingly.

[18] Counsel identified the following issues in relation to Count 1: 

(a) There was no dispute that the 4 lobsters produced as Exhibit C 1,2,3 and 4 were of the genus Panulirus. 

(b) They were all undersized. 

(c) The lobsters seen in the accused's possession were all dead and hence, following R v Lata & Tovo [2006] TOSC 17, they could not be made the subject of an offence. 

(d) The Crown had not proved that the lobsters produced as exhibits were in the possession of the accused. 

[19] Can dead lobsters be the subject of a prosecution? In 2006 the accused and another man, Tovo, had been tried for being in possession of lobsters carrying eggs (see Lata & Tovo (supra). At page 2 of that decision, the Judge held: 

"In general I also accept the other points raised by Mr Tu'utafaiva for the defence about the failure to prove that the articles in question were indeed lobsters within the definition. He submitted that in the Tongan version of Regulation 13(1) the reference was to "me'a mo'ui", meaning a living creature; and he referred to section 21 of the Interpretation Act, which provides: 

"Application of English or Tongan versions in criminal trials.

21. If upon the trial of any person for an offence against any law of Tonga it is manifest that the Tongan and English versions of the section which the accused person is charged with violating differ in meaning, then, in deciding the question of the accused person's guilt or innocence the court shall be guided by what appears to be the true meaning and intent of the Tongan version. (Amended by Act 28 of 1978)" 

I accepted that the English and Tongan versions differed in meaning and that I should accordingly be guided by the true meaning and intent of the Tongan version, i.e. that Regulation 13 referred to living lobsters. There was no evidence that the lobsters were 200 alive, indeed the context of the evidence suggested that they were not live.

[20] Mr Tu'utafaiva submitted that the same interpretation applied in the present case, namely, that because the evidence had disclosed that the lobsters in question were dead at all material times, the prosecution had not proved they were lobsters as defined in the Regulation. 

[21] The English version of Regulation 13(1) states: 

"In this regulation "lobster" or "uo" means a crustacean of the genus Panulinis." 

[22] The Tongan version of Regulation 13(1) includes the following as being the definition of a crustacean (there being no Tongan word for crustacean):

"me'a mo'ui 'oku e'i ai hano nga'asi" or in English: "a living thing which has a shell." 

[23] On the face of it, the Tongan definition appears to add to (and hence differs from) the English definition of lobster by the adoption of the words me'a mo'ui ("a living thing"). Thus, in accordance with section 21 of the Interpretation Act (see [19] above), "the court shall be guided by what appears to be the true meaning and intent of the Tongan version." 

[24] Essentially, there are two issues raised:

(a) Do the two versions in fact differ? 

(b) What is the true meaning and intent of the Tongan version? 

[25] As to the first issue, I consider there is no essential difference between the two versions. There is no specific Tongan word for crustacean. The Shorter Oxford English Dictionary, third edition, defines "Crustacea" as: 

"A large class of arthrodopos animals mostly aquatic, characterised by a hard, close fitting. chitinous shell or crust which issued periodically comprising crabs, lobsters . . . 

The word "animal" is defined as: 

"A living being endowed with sensation and voluntary motion". (My emphasis).

[26] On analysis it can therefore be argued that both the Tongan and English definitions import the element of "living". Either directly as in Tongan or indirectly as in English. The explanation in my view for the use of the word living is simply to distinguish between a normally animate "thing" as opposed to an inanimate "thing". The description is, therefore, intended to describe the normal state of that "thing". i.e. living or animate as opposed to inanimate. If a normally animate thing e.g. a lobster, is dead i.e. not in its normal state, it is nevertheless still a lobster. Therefore, on this analysis, proof that the lobster is alive is not essential. 

[27] There remains the second issue, namely, what is the true meaning and intent of the Tongan version containing as it does the word "living". If it was indeed the intention that the regulation should only apply to dead lobsters then this means that the whole object of the regulation is effectively nullified. Persons wishing to take, sell etc lobsters would in this event be able to do so with impunity providing they were able to kill the lobster before it was even removed from the sea. Such a result would be directly contrary to the stated purpose of the regulations as stated in the title i.e. (conservation & management). I have no doubt that this is the very last thing the legislature would have intended. 

[28] Finally, on this issue, I consider it can be resolved as a matter of statutory interpretation. I refer in this respect to Statutes (2nd ed) by-A I MacAdam T M Smith, at p 266:

"It is clear, however, that the courts will not be prepared to modify the language of a statute merely because its literal interpretation will lead to some anomaly. More than that is required. As noted above by Lord Wensleydale there must be "some absurdity, or some repugnance with the rest of the instrument". In this regard see Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231, Case 100 below. This requirement should not be confused with the principle that where consistent with the wording of a statute, there are two or more interpretations that are reasonably open, it is a perfectly valid rule of interpretation to choose the one that avoids anomalies that might be said to give the statute a capricious or irrational or absurd operation. In this regard see in particular the comments of Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; (1981) 35 ALR 151, Case 103 below. Similar principles are found elsewhere in this book in cases such as Beckwith v R (1976) 135 CLR 569; (1976) 12 ALR 333, (cap case 91); Bishop v Deakin [19361 Ch 409, (cap case 48); and Dean v Wiesengrund [1955] 2 QB 120, (cap case 42)." 

[29] In this case if the regulation is interpreted so that the prosecution is required to prove that a lobster is alive then to do so would be to give the statute a capricious or irrational or absurd operation. 

[30] For the above reasons, I decline to follow R v Lata & Tovo and find that the prosecution is not required to prove that the lobsters in question were alive. 

[31] Were the lobsters in the possession of the accused? Here it was submitted that the Crown had to prove beyond reasonable doubt that: 

(a) there were undersized lobsters involved;  

(b) the accused had control of the same;

(c) he had an intention to exercise control of them;

(d) he knew they were undersized. 

[32] The principal issue here is the factual issue whether the 4 lobsters found in the sea by Mr Finetupou with the same lobsters previously taken from the accused on the wharf and then recovered by him before being thrown into the sea. Looking at the evidence I am satisfied beyond reasonable doubt that it can be properly inferred they were. The key witness was Mrs Vaea. Mr Finetupou had deposed that he took 4 undersized lobsters from the accused on the wharf. Mrs Vaea heard the "misunderstanding". She saw Mr Finetupou hold 4 lobsters. She didn't know what happened to them but she did see the two men separate and Mr Finetupou go off to the police station. Whilst she did not see the accused take the lobsters she saw him throw 4 lobsters into the sea after Mr Finetupou left. She then saw the accused leave. She saw Mr Finetupou enter the sea and recover 4 lobsters from the area where she had seen the accused throw 4 lobsters. They were in an area where, according to Mr Finetupou, lobsters were not usually found. Putting these circumstances together, I am satisfied beyond reasonable doubt that the lobsters found by Mr Finetupou were the lobsters taken by him and then retaken by the accused earlier. The fact that two of them were found without their tails does not dissuade me from this conclusion. This is an interesting but not determinative fact capable of a number of explanations none of which detract from the principal conclusion. 

[33] If one accepts this finding then I also find the Crown has proved not only the identity of the particular lobsters but also: 

(a) the accused had control of them when he offered them for sale to Mr Finetupou's brother; 

(b) his actions in offering to sell them and later recover possession of them from Mr Finetupou clearly show an intention to exercise control; 

(c) he must have known they were undersized for the following reasons: 

(I) he had been told by Mr Finetupou an experienced fisheries officer that they were undersized; 

(II) if they were not undersized there is no other sensible reason why he would have endeavoured to dispose of them. 

[34] For the foregoing reasons, I find that the Crown has proved the accused guilty on the first count. 

Count 2 

[35] Section 75(c) of the Act provides: 

"Any person who – 

(a) 

(b) 

(c) uses threatening language or behaves in a threatening manner or uses abusive language towards an authorised officer while in the execution of his duties, or any person lawfully acting under the order of the authorised officer or in his aid; 

... 

shall be guilty of an offence and shall be liable to a fine not exceeding $500,000 or imprisonment not exceeding three years or both." 

[36] In relation to this count, Mr Tu'utafaiva submitted:

(a) The Crown had not proved that Mr Finetupou was an Authorised Officer at all relevant times. 

(b) Mr Finetupou was not lawfully in the execution of his duties at the relevant time. 

(c) The Crown had not proved that the accused knew Mr Finetupou was an authorised officer. 

(d) It was conceded that the accused's language was threatening. 

[37] Authorised officer 

This term is defined in section 2 of the Act: 

"authorised officer means any fisheries officer, any member of the police force, any member of the Tonga Defence Services, or any other person designated by the Minister under section 70." 

Section 70(1) states: 

"The Minister may, by Notice in the Gazette, designate any Government officer or any category of Government officers or any person who the Minister considers suitable to be authorised officers for the purposes of this Act." 

[38] Mr Tu'utafaiva submitted that any authorised officer had to be designated by the Minister under section 70. Mr Kefu submitted that on a plain reading of the definition in section 2 this was not so. I agree. This definition refers to four separate categories of authorised officer: 

(a) any fisheries officer; 

(b) any member of the police force; 

(c) any member of the Tonga Defence Services; 

(d) any person designated by the Minister under section 70. 

If it had been intended by the legislature that the first three categories were subject to specific designation under section 70 then the definition would simply have referred to persons designated under section 70. Absent the definition in section 2, the power to designate under section 70 would have enabled the Minister to designate any of the first three categories under the head of Government Officer or any category of Government Officer. The fact that the first three categories are mentioned specifically is in my view a clear indication that persons in those three categories were to be authorised officers and that there is to be a fourth category, i.e. that referred to in section 70. The use of the word "or" before "any other person" is a further indication that this is the case. 

[39] I therefore find that because Mr Finetupou is a fisheries officer, he is by definition under section 2, an authorised officer. 

[40] While in execution of duties

Clearly Mr Finetupou was not on duty when he first went to Vuna wharf. The question is whether he could assume his duties as a fisheries officer on finding what appeared to him to be a breach of the regulations which he as a fisheries officer could enforce. There is nothing in the Act which corresponds to section 20(b) of the Police Act (Cap 35) which states: 

"Every police officer shall-  

(a) 

(b) be deemed to be on duty at all times and it may be posted to any part of the Kingdom." 

Reading this section as a whole, I consider it has been enacted to ensure that a police officer can be called upon at any time to go anywhere in the Kingdom. 

[41] In my view, the submission has no merit. It involves the proposition that if a fisheries officer whilst off duty witnesses a breach of the Act or regulations then he is powerless to intervene. If a fisheries officer comes upon an offence being committed when he is off duty, I cannot conceive that the legislature would ever intend such a situation. If, however, it was intended to be the case that an authorised officer could only exercise his powers during his normal daily hours of duty, then, this is the sort of restriction which would almost certainly be referred to specifically in the Act. The Act contains no such provision. 

[42] The legislature does, however, make one stipulation under section 74 which states: 

"74. An authorised officer in exercise any of (sic) the powers conferred on him by this Act shall on demand produce identification to show he is an authorised officer under this Act." 

[43] In this case it was submitted that Mr Finetupou failed to do so. When called upon by the accused to produce his ID, Mr Finetupou was able and willing to do so. His ID card was in his vehicle about 15 yards away. He asked the accused to wait while he got it. The accused's response was to grab the lobsters from him. Mr Finetupou was then in a difficult situation. He was half expecting to be assaulted -- he was concerned that the accused would make off, he therefore opted to go to the police for help. In my view, the exigencies of the situation excuse the failure to produce the ID when, if the accused had acted reasonably, it would have been produced without any problem. 

[44] I therefore find Mr Finetupou was lawfully executing his duty at all relevant times. 

[45] Did the accused know Mr Finetupou was a fisheries officer? I have no doubt he did and for the following reasons: 

1. Mr Finetupou had had dealings with him as a fisheries officer in 2005 at which time he was displaying his ID card. 

2. They both lived in the same area. 

3. Most significantly, I can see no reason why the accused would have thrown four fresh lobsters into the sea and then made off if he had not known Mr Finetupou was a fisheries officer. There is to my mind no other reasonable explanation. 

[46] For the above reasons, I find that the Crown has proved the accused guilty on the second count.