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Sihono v Haken [2022] PGDC 47; DC9000 (16 August 2022)

DC9000

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

FISHERIES COURT

NFA 12, 14 of 2021
BETWEEN

EMIL SIHONO
Informant

AND

MAX HAKEN
Defendant

BUKA: BRUCE TASIKUL PM

2022: 16^th August

Criminal Law – Engaging in beche-de-mer activities such as transporting and processing without a valid license. Breach of section 46 (1) (d) & section 58 (1) (h) of the Fisheries Management Act, 1998.

Criminal Law-Penalties as specify under Section 58 –Fisheries Management (Amendment) Act 2015 Court must consider appropriate sentence take into count ability to pay fine. Plea of not guilty is not a aggravating factor in sentencing of defendant.

Cases Cited-
National Fisheries Authority v Nguyen Van Phuc [2017] PGDC 27
National Fisheries Authority v Huvi [2021] PGDC 240; DC8018 (1 December 2021)
National Fisheries Authority v Maito [2021] PGDC 239; DC8017
National Fisheries Authority v Wen Qing Chen
National Fisheries Authority v Ye Weixiong [2020] PGDC 27
National Fisheries Authority v Taihu [2020] PGDC 19
National Fisheries Authority v Margaret Harket [2020] PGDC 20

References
Section 46 & 58 Fisheries Management Act, 1998
Fisheries Management (Amended) Act 2015

Counsel

Bill Mohe, for the Fisheries

Fidelis Lugabai, for the Defendant

SENTENCING

1. B: TASIKUL- The defendant Max Hakena of Ieta village, Buka pleaded not guilty to four (4) counts under the Fisheries Management Act, 1998. A trial was conducted and I found the defendant guilty on two charges, while the other two charge were not guilty.
   
2. The two charges which he was found guilty are as follows:
   
   1. Being an natural person who without a valid and applicable license did engaged in fishing related activity namely transporting 1.308.92 kilograms Beche-de-mer fisheries products in Buka, Tsitalato Constituency, Autonomous Region of Bougainville, therefore being in breach of section 46 (1) (d) of the Fisheries Management Act 1998.
      
   2. Being an natural person who without a valid and applicable license did engaged in fishing related activity namely processing 1.417.72 kilograms Beche-de-mer fisheries products at Ieta village, Tsitalato Constituency, Autonomous Region of Bougainville, therefore being in breach of section 46 (1) (d) of the Fisheries Management Act 1998.
      
   3. Thereby contravening to section 58 (1) (h) of the Fisheries Management Act.
      
3. What does s. 58 (1) (h) say: (1) A person who commits an offence who (h) as specified in s.46 in relation to engaging in any activity for which a license is required, without a licence and is liable for the penalties set out in subsections (5) (6) (7) and (8).
   
4. Section 46 (1) (d) states: A person who, without a valid and applicable licenses engaged in any activity, of a kind or type, or at a time, or in a place or manner, for which a license is required under this Act, commits an offence.
   
5. Both the defence counsel and prosecution submitted each a brief oral submission on sentence. The defence briefly submitted that his client should not be given a higher fine as this cases does not warrant the maximum fine. Reference was make to the case of Fisheries V Pais Teahu GFC, Cr 31 & 32 of 2020 which was deliberate by brother Magistrate SPM Kokopo Lavutul.
   
6. The prosecution on the other hand submitted that a fine within the range of K50,000.00 would be appropriate as the penalty of such offences carry fine of K500,000.00. He contended that in Pais Teahu case, the defendant pleaded guilty, whereas in this present, case the defendant pleaded not guilty and court wasted time on the trial. The prosecution submitted for a fine of K50,000.00 on both counts.
   
7. The defendant in his allocutus ask the court to be lenient to him as this is his first time to commit such offence and promise not to do it again. He further told the court that this cases have taught him a lesson and he is willing to abide by the law in future.
   
8. What does the penalty provision of the Act say? Section 58 (5) (a) (b) (c) of the Fisheries Management Act 1998 prior to the 2015 Amendment stipulates;
   

The following penalties shall apply in respect of offences describe in subsection (1) (b), (c), (d), (f), (g) (h), (n), (p), (r), (x), (y), (z), (bb), and (cc)-

(a) In respect of a crew member, a fine of not exceeding K5,000.00; and
(b) In respect of a natural person, a fine not exceeding K100,00.00; and
(c) In respect of a corporation, a fine not exceeding K1,000,000.00

9. After the amendment of the Fisheries Management (Amendment) Act 2015 the following penalties were amended as: Section 58 (b) in subsection (5)
   • (i) deleting the word ‘’and’’ ...............
   • (ii) repealing paragraphs(a), (b), and (c) and replacing them with the following;
     • (a) in respect of a crew member, a fine not exceeding K25,000.00; and
     • (b) in respect of a natural person, a fine not exceeding K500,000.00 and
     • (c) in respect of a corporation, a fine not exceeding K5,000,000,00
       
10. My next question now would be. What would be the appropriate sentence this court should imposed on the defendant?
    
11. Offences under the FMA are prosecuted summarily before a Grade 5 Magistrate. (s57 (1). And they are very technical in nature. The penalties provided under the Act are very high. Therefore, one of the question that comes into my mind is, would an ordinary villager afford to pay a fine of K500,000.00 or K50,000.00 if the court ordered him/she to pay such amount. This is a very crucial factor that the court should also consider in making an appropriate decision.
    
12. It is therefore important that I should consider similar cases that were determined in the District Court jurisdiction. However, both the prosecution and defence counsel did not assist the court in citing and reported cases of similar nature apart from Pais Teahu case This leaves the court to do its own research.
    
13. I agreed with the defence council, that this is not the worst type of offence, that warrant the maximum penalty, however, an appropriate sentence must be imposed to deter others from carrying out illegal fishing.
    
14. But before I do so, let me consider what other Magistrates have imposed in similar cases. Firstly, I noted from my research, that there are not too many reported cases on fisheries offences.
    
15. I find the case National Fisheries Authority v Nguyen Van Phuc [2017] PGDC 27 DC3040. The defendant an expatriate was charge with three counts: did without a valid an applicable license caused other persons namely Tien Chanh and sixteen others (crews) to act on his behalf to harvest Sea cucumbers (Beche de mer) an activity for which a license is required under the Act (Fisheries Management) contrary to section 46 (1) (b) of the Fisheries Management Act 1998 and thereby contravening Section 58 (1) (b) of the Fisheries Management Act 1998
    
16. Secondly that being an Operator of Foreign Fishing vessel namely “QNG – 902335 TS” did use such vehicle to fish for Sea cucumber (Bech de mer) in PNG fisheries waters otherwise than under an access agreement and in accordance with a valid and applicable license contrary to Section 33 (2) of the Fisheries Management Act 1998 and thereby contravening Section 58 (1) (d) of the Fisheries Management Act 1998.
17. Thirdly, that being an Operator of Foreign Fishing vessel namely “QNG – 902335 TS” to engage in processing Sea cucumbers (Beche de mer) an activity for which a license is required under the Act (Fisheries Management) contrary to section 46 (1) (c) of the Fisheries Management Act 1998 and thereby contravening Section 58 (1) (h) of the Fisheries Management Act 1998.
18. The defendant was fined K50,000.00 each on the three counts totalling K150,000.00.
    
19. In National Fisheries Authority v Huvi [2021] PGDC 240; DC8018 (1 December 2021 a local fisherman from Bialla, West New Britain Province was charged and plead guilty for storing beche de mer without a license. He was fined K4000.00 or 12 months’ imprisonment.
    
20. In another case of National Fisheries Authority v Maito [2021] PGDC 239; DC8017 (1 December 2021) the defendant a village fisherman was fine K4000.00 or sentence to 12 months’ imprisonment, by the Kimbe District for storing beche de mer without a licence.
    
21. In one of my case National Fisheries Authority V Wen Qing Chen a foreign businessman from China pleaded guilty on four charges of storing, processing, fishing, and buying beche de mer without a license under the Fisheries Management Act, 1998. He was fined K10,000.00ecah a total of K40,000.00
    
22. In the National Fisheries Authority v Ye Weixiong [2020] PGDC the defendant a foreigner from Fujian, China pleaded guilty for four counts of buying, storing, buying of beche de mer without a license and refusing fisheries officers to conduct search in his premises. He was fined K10,000.00 each or sentence to 12 months by the Kokopo District Court.
    
23. In the most recent cases of National Fisheries Authority v. Taihu [2020] PGDC 19 the defendant pleaded guilty to two charges for buying and storing of bech-de-mer without a license. He was fined K15,000.00 each a total of K30,000.00 or imprisonment for 6 months each.
    
24. In National Fisheries Authority v. Margaret Harket [2020] PGDC 20 the defendant pleaded guilty to four counts of harvesting, engaged in processing, storing, cause her sons to fish without being licenced. She was also fined K3,000.00 on each charge a total of K12,000.00
    
25. My observation of the above cases, the court considered the quantity of catches, for example in Nguyen Van Phuc there were a total of 3158.85 KG or 3.15885 tonnes of catches. For Wen Qing Chen a total of i92.14, and Ye Weixiong had 192.14 KG of bech-de-mer, while for the other cases, there was no mention of how many KG or tonnes those defendants had illegally.
    
26. Let me now turn to your cases. To arrive at an appropriate sentence, let me consider first the following factors in your favour. They are:
    
    • You have no previous records of conviction,
    • You have express genuine remorse.
    • You have cooperated with the fisheries officers.
    • I also take into account that you have not benefited from those beche-de-mer product as they were seized by the National Fisheries officers.
      
27. Having said that I find against you that the amount of illegal beche-de-mer that were in your possession was very large quantity. Beche-de-mer is a very expensive commodity and it is now becoming scare. You did not have a valid licence to conduct such business. It is now becoming prevalent that fishermen and women don’t abide by the fisheries law, which people like you continued to, process and transport the product when you know very well that you don’t have a valid licence to do so.
    
28. The prosecution has submitted to the court that because you have pleaded not guilty which has waste much time of the court for trial as an aggravating factor, which to me I don’t think it is. Plea of not guilty must not be taken as aggravating factor in any case. I hold the view that we are paid to do our job and whether a defendant plead guilty or not guilty, the judicial process must see to be done.
    
29. I asked myself, if I imposed a K50,000.00 fine, would you be able to paid such fine. From those cases I have cited above, heavy fines were imposed on foreigners as they have the ability to pay. How about the ordinary village people? Taking into accounts all this factors, I hereby make the following orders.
    
30. On the first counts of transporting, I find the defendant guilty and fined him K5000.00 in default 12 months. On the second count of processing, I find the defendant guilty and fined him K5000.00. in default 12 months’ imprisonment. The total amount of K10,000.00 must be paid by the end of December,2022. Failure to pay he be sentence to 12 months’ concurrent sentence.