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Public Prosecutor v Chen Tsi Yi - judgment [2005] VUSC 89; CRC 046 2004 (7 July 2005)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Criminal Jurisdiction)

Criminal Case No. 46 of 2004

PUBLIC PROSECUTOR

–v-

CHEN TSI YI

Coram: Justice P I Treston

Mr. Toa for Prosecution
Mr. Sugden for Defence

Date of Hearing: 20, 21, 22, 23, 24, 27, 28, 29, 30 June, 1, 4, 5 July 2005
Date of Judgment: 7 July 2005

JUDGMENT

CHARGES

The Accused first faced 9 counts of alleged offences contrary to the Fisheries Act CAP 158 and various orders of that Act.

During the course of the hearing, count 3 was withdrawn by leave and the Accused pleaded guilty to count 4 which was a breach of a foreign fishing licence in that the Accused being the master of the foreign fishing vessel "CHING FU WHA No.1" ("the vessel") failed to ensure that whilst in Vanuatu waters all parts of the call sign marking was clear and distinct.

After a no case to answer submission, the Accused was found not guilty on counts 1, 2, 6, 8 and 9 and, as a result, there remains 2 counts for decision namely counts 5 and 7. The Court held that there was a case to answer under count 5 and the Accused conceded that there was a case to answer under count 7.

Count 5 alleged that on or about 26 August 2004, the Accused, being the master of the vessel, operated it in contravention of its foreign fishing licence in that he conducted fishing within a closed area.

Count 7 alleged that the Accused at the same time failed to comply with a requirement of his licence in ensuring that the licence or a certified copy of it was carried on board the vessel at all times whilst it was within Vanuatu waters so as to produce it on request of an authorized officer.

FACTS

One Li Hung Li Chu is the holder of a Foreign Fishing Licence number VAN 059/2004 for the vessel (see exhibit 16). The licence authorizes the vessel to fish within the Vanuatu Exclusive Economic Zone, between 16 July 2004 and 15 July 2005 by the long line fishing method and the target species was to be tuna and tuna like species.

The vessel is shown in various exhibits particularly exhibit 1 and according to the evidence was a traditional long liner. The method of long line fishing employed was that the vessel would set long lines which consisted of a main line with branch lines from it. The lines were set with floating bouys and floating radio beacons so that they could be recovered. Hooks were set on the branch lines. The Accused gave evidence that it would take approximately 7 to 8 hours to set all the long lines across an area of about 45 nautical miles and that they would then wait 7 to 8 hours before pulling them in again which would take them approximately 12 hours if there were no fish on the lines and longer if there were fish on the hooks. In setting the lines, the vessel would travel from 7 to 8 knots and when pulling them in, if fish were on the lines, they would travel at 2 to 3 knots and 7 to 8 knots if there was no catch. The Accused said that the vessel appeared to be travelling at about 5 to 6 knots in the photographs shown in exhibit 1.

At approximately 0935 hours on 26 August 2004, commander Tari Tamata, a Superintendent of Police, looking after the Police Maritime Wing, was on board a New Zealand Orion aircraft which made contact with the vessel and a photographer took various photographs of it. (Produced as exhibit 1). Superintendent Tamata observed the vessel visually and checked his observations with the digital camera operated by a crew member of the Orion.

As a result of the initial contact by the Orion, the vessel "RVS Tukoro" was dispatched to intercept the vessel, which it did at 1651 hours on the same day. That was approximately 7 1/2 hours after the initial sighting by the Orion. A party from the "Tukoro" boarded the vessel and inspected it and found various unfrozen sharks carcasses in the freezers and Inspector Collin Ioan, executive officer of the Tukoro, who was in charge of the boarding party, spoke to the Accused whose identity and status was not in issue, and asked him to show him his fishing licence. The Accused opened a chart drawer and brought out exhibit 7, a Certificate of Outward Clearance and gave it to the Inspector. Also produced were various other documents. The Inspector said the Accused used broken English and that his Chief Engineer helped translate and after some discussion concerning the number of crew, the Accused also gave the Inspector a fax which he said was his fishing licence (see exhibit 10) when asked whether that was the fishing licence, the Accused said it was and pointed to it.

The officers on the "Tukoro" then required the vessel to accompany them back to Port Vila and over a period of about 1 1/2 hours after the first radio beacon was located, the vessel recovered the lines which it had set which included two radio beacons and, according to the evidence of the Accused, a catch of two sharks one large and one small and one mau mau.

The "Tukoro" then escorted the vessel back to Port Vila and subsequently officers boarded the vessel on 28 August 2004 and 30 August 2004 and a statement were taken from the Accused which I ruled inadmissible for reasons that have already been given.

LAW

Fishing is defined in the interpretation section of the Fisheries Act CAP 158 as meaning "Fishing for or catching or taking or killing fish by any method or the placing or (sic) any fish aggregating device".

A fish aggregating device means "Any man made or partly man made floating device, whether anchored or not, intended for the purpose of aggregating fish, and includes any natural floating object on which a device has been placed to facilitate its location".

Legally, those definitions would include long lining as I have described it.

In relation to count 5, the Notice of General Conditions for Foreign Fishing Vessels and Locally Based Foreign Fishing Vessels provides in paragraph 2 (1) that a foreign fishing vessel must not fish within a closed area in the Republic of Vanuatu. For the purposes of the prosecution, the closed area prohibited for fishing is set out in that notice and it is common ground that the point where the vessel was located and photographed by the Orion aircraft was within the closed area for fishing and the point where it had set its lines and recovered them after apprehension by the "Tukoro" was outside the closed area.

As to count 7, the General Conditions provide, in clause 2 (2) that "The licence (or a certified copy of the licence) must be carried on board a vessel at all times while the vessel is in Vanuatu waters and must be produced at the request of an authorized officer". There is no issue that Inspector Yoan was an authorized officer being a police officer not below the rank of sergeant (see Fisheries Act Interpretation Section).

I remind myself that it is the judge's responsibility to decide all questions of fact and to decide what evidence I will accept or reject or what weight I will give to any part of the evidence. I remind myself that I must come to my judgment solely upon the evidence, which is placed before me in this court, and I must consider all of the evidence when considering my judgment. When I consider the oral evidence I must take into account not only what has been said but how it had been said because how I assess the demeanour of a witness can be a valuable aid in judging his or her reliability and credibility. I must be objective and reach my decision without being influenced by prejudice or sympathy. It is the judicial responsibility to be impartial and to apply common sense and knowledge of human nature.

Under section 81 of the Criminal Procedure Code [CAP 136] I am mindful that the accused is presumed to be innocent unless and until the Prosecution has proved guilt beyond reasonable doubt. There is no onus upon him to prove his innocence and if at the end of the trial any reasonable doubt exists as to his guilt, the accused will be deemed to be innocent of the charge and will be acquitted. The section was read out to the accused before the Prosecution case.

Section 8 (1) of the Penal Code provides that no person shall be convicted of any criminal offence unless the Prosecution shall prove his guilt according to the law and beyond reasonable doubt by means of evidence properly admitted; the determination of proof of guilt beyond reasonable doubt shall exclude consideration of any possibility which is merely fanciful or frivolous.

Proof beyond reasonable doubt simply means that the court must be sure or satisfied of guilt before a judgment of guilty can be entered.

I have already ruled and the defence have already accepted that there was a prima facie case made out against the accused in relation to counts 5 and 7 and I ensured that section 88 of the Penal Code was complied with, indicating to the accused that he was entitled to give evidence on his own behalf in addition to calling other people as witnesses. The accused was advised that he was not obliged to give evidence and could elect to remain silent but that if he did not give evidence that would not lead to inference of guilt against him. the accused elected to give evidence and to call a witness.

Ignorance of the law is no defence to a criminal charge.

In all cases in which it is necessary for the accused to have knowledge of certain facts in order to form a criminal intention, the burden rest on the Prosecution to prove that the accused was aware of such facts. In the absence of direct evidence thereof such knowledge may be proved by inference from other facts or circumstances.

I remind myself that I am entitled to draw inferences or conclusions from facts which have been proved to me in evidence. Conclusions are not guesses rather they are logical, reasonable and fair deductions from facts which have been proved. In this case the Public Prosecutor has asked the Court to draw conclusions from the circumstances that have been proved. I will advert to that later.

I remind myself that I am not here to speculate nor to guess.

PROSECUTION SUBMISSIONS

The Prosecutor submitted that when the vessel was inspected, the catch in the freezer was found to be sharks, unfrozen with soft flesh and fresh blood (see exhibit 12). When documents were handed over they did not include the licence or a certified copy of it.

The Prosecutor submitted that the pencil markings that the Accused had admitted to making on the chart, exhibit 9 when being spoken to by Inspector Ioan and Fishery officer Wesley Obed with the assistance of interpreters indicated that the accused deliberately gave a false indication of his course prior to the interception by "MV Tukoro" and that was done with full knowledge of what he was doing and was an attempt to mislead the authorities. It was submitted on behalf of the Prosecution that the Accused did not want to say that he was passing through the closed area for fishing.

In addition, the Prosecution submitted that exhibit 1 showed ten places in racks for storage of radio beacons were empty and that some bouy storage on top of the stern area was empty and that there were empty fishing baskets both for main lines and branch lines in the well area at the forward end of the vessel which indicated that fishing was been carried out.

It was submitted that the white tipped and black tipped sharks seen on the vessel were mainly caught in shallow waters and in particular in an area described by the defence witness Mr. Augustine Pheu, as an area where sharks abounded and could be caught on sea mounts one of which was contained in the general vicinity of where the vessel had been located by the Orion.

In addition, the Prosecution submitted that the photographs in exhibit 1 showed the crew wearing in blue raincoats both in the well area, where the evidence was long lines were retrieved, and in the stern area, where the evidence was that long lines were set from. Under re-examination the Accused had said that the crew were not allowed to wear raincoats when they were off duty. The Prosecution submitted that all these factors indicated that the vessel was involved in fishing in a closed area, in catching black and white tipped sharks.

In relation to count 7, the Prosecution submitted that the Accused failed to have a licence or a certified copy of the licence on board and that exhibit 10 produced to Inspector Ioan was neither the licence nor a certified copy of it.

DEFENCE SUBMISSIONS

Mr. Sugden on behalf of the Defence submitted that when the Captain was asked to produce his licence on 26 August 2004 by the boarding party, the Court could not be satisfied beyond reasonable doubt that he understood what he was being asked about although he eventually did produce exhibit 10 which apparently had the name of the vessel and certainly had the licence number and the duration for which the licence had been issued, but an indication of his lack of understanding was that, when first asked for licence, he produced exhibit 10 the Certificate of Outward Clearance.

The defence submitted that as there was no translation of the Mandarin Part of exhibit 10, the Court could not be sure beyond reasonable doubt that exhibit 10 itself was not a certified copy of the licence.

In relation to count 5, defence submitted that the biggest problem for the Prosecution was the unchallenged evidence about the time that it took to set lines and pull them in again.

Evidence had been given by the Accused that most of the radio beacons and bouys were not visible to be seen by the Orion crew because, as the Captain had said, they were all stored below deck which was in accordance with the requirements of General Condition (2) (4).

As to the crew being on deck in blue raincoats, the defence pointed to the evidence of the Accused that the crew were required to carry out duties other than fishing and that the wearing of raincoats could not prove beyond reasonable doubt that the crew fishing and not carrying out those other duties.

Significantly, the defence submitted that there were no photographs or observations of any buoys or radio beacons in the water at the time when they Orion located the vessel and that it was physically impossible for the vessel to have travelled from the point of the contact by the Orion to the point of interception by "Tukoro" and to pick up lines, ten radio beacons and buoys as well. It was submitted that it took 2 1/2 hours to retrieve 3 lines and two radio beacons after the apprehension by "Tukoro" and that if ten beacons and associated lines and buoys had been set, it would have taken 12 hours or so for the vessel to retrieve its lines which did not give sufficient time for it to travel between the point of observation by the Orion and the point of interception by Tukoro, and to set 3 additional lines as well.

The defence submitted that very much evidence had been directed towards the freezers and how long it took to freeze the sharks. The evidence of the defence should be preferred because it was the Accused who is most familiar with the operation of the freezers and he said that there was no blast freezer on the vessel and that it took two and a half days to freeze sharks and that there had even been some fish on the vessel which had come from Tonga. There was no evidence, the defence said, that the vessel was fishing in the closed area.

FINDINGS

As to count 5, I am not satisfied beyond reasonable doubt that the accused was fishing in the closed area. A careful analysis of the facts and figures indicates that the Orion observed the vessel at 0925 hours on 26 August 2005 and that the vessel was apprehended and intercepted by "Tukoro" at 1651 hours which was a time difference of 7 hours and 26 minutes. The distance between the point of observation by the Orion and the point of interception and apprehension by "Tukoro" on the chart exhibit 4 is 33.25 nautical miles. At 6 knots the voyage of the vessel between those two points would have taken 5.5 hours. The Accused, whose evidence I accept having seen and heard the witnesses, said that he set his lines outside the closed area at approximately 3pm. The time between the two points at 6 knots meant that he would have arrived in the general vicinity of the interception point by "Tukoro" at 3pm which accords precisely with the evidence of the accused when he said the three drums of lines were set.

I agree with the defence submission that it would have been a physical impossibility for the vessel to have recovered ten radio beacons with associates buoys and lines near where the vessel was sighted by the Orion as well as travelling to the area where it had set its nets outside the closed area near where it was intercepted by "Tukoro". Retrieving the beacons, lines and buoys, as the Prosecution alleged, would have to take at least 12 hours, which would not allow the vessel time to make the journey and end up where it was when it was intercepted by "Tukoro".

That finding effectively, disposes of the count in favour of the Accused.

For completeness, I refer to other parts of the evidence. As to the freezers, I accept the evidence of the Accused that it would take 2 to 2 1/2 days to freeze the sharks which accorded again precisely with his evidence of having caught sharks outside the closed area earlier and I am satisfied that there was no blast freezer on the vessel. While the presence of fresh and bloodied sharks in the freezers on the vessel, was highly suspicious and while there are other aspects of the evidence which also might be thought to be suspicious, suspicion plus suspicion can only ever equal suspicion and can never amount to proof beyond reasonable doubt.

In addition, there were no photographs or observations of the door to the well area being open which was necessary to retrieve lines and no radio beacons or buoys were ever observed in the water. The vessel was not travelling slowly as it would have to do to retrieve lines and to the contrary appeared to me to be travelling in a steady, purposeful way at cruising speed consistent with it crossing the closed area.

As to the other aspects which the Prosecution relies upon by way of circumstantial facts, there is simply no direct evidence of fishing within a closed area and it is my view that a combination of all the circumstantial facts has not satisfied me beyond reasonable doubt that the Prosecution has proved its case in relation to count 5.

The evidence about the markings on the chart, exhibit 9, are not as damning as the Prosecution would have it. In my view, the Accused was not marking his course on the chart, even with the assistance of the interpreters, but was responding to a request from the officers that if he traveled in this direction what would his course be. The Accused drew some lines upon the chart but I am satisfied that he did not intend those lines to represent his course from the time that he was last fishing up until the time when he was apprehended by "Tukoro". As the Prosecution has said, that would have been an impossibility and would have required the vessel to travel at approximately 49 knots. I am satisfied that the Accused would not have been quite so stupid as to indicate that that was his course. I accept his evidence that his true course was South of Ambrym and South of Malekula in passing through the closed area where he was observed by the Orion.

I also accept his evidence that he was asleep at the time of contact and did not even see the aircraft and I accept that he was not fishing in the closed area in Vanuatu waters.

Accordingly, I find the accused not guilty of count 5.

In relation to count 7, although the Accused has little or no English, I am satisfied beyond reasonable doubt that he understood the request of Inspector Toan, who led the boarding party onto his vessel, to produce his licence. Clearly, the document produced as exhibit 10 was not the licence or a certified copy of it and although the Prosecution was remiss in not having the Mandarin portions of exhibit 10 translated, I cannot see that that could ever be a certified copy of the licence which was produced as exhibit 16.

I find that the Prosecution has proved beyond reasonable doubt that a licence or a certified copy of the licence was not carried on board the vessel at all times while it was in Vanuatu waters and that it was not produced at the request of an authorized officer.

VERDICTS

The Accused is found not guilty and is acquitted on Count 5.

The Accused is found guilty and is convicted on Count 7.

The Accused has 14 days to appeal.

Dated AT PORT VILA, this 07^th day of July 2005

BY THE COURT

P. I. TRESTON
Judge