Language Assistance in Taiwanese

8/6/2019 Language Assistance in Taiwanese

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Language assistance in Taiwanese: Another reason of course for the

delay in this hearing taking place was created by the unavailability

of a suitable interpreter to assist this Accused at the trial and to

allow him to have his rights under the Constitution to understandand to take a full part in the trial with the assistance of an

interpreter. An interpreter was subsequently found from Papua New

Guinea and he attended the Court for the majority of the hearing to

assist the Accused and the delay to a large extent had been

because of the difficulty in obtaining a suitable interpreter.

Subsequent events have shown that perhaps a Mandarin interpreter

may have been sufficient, but based upon the information that was

known at the time, a Taiwanese interpreter seemed to be

necessary and was sought and obtained at no small expense.

Public Prosecutor v Chen Tsi Yi -

sentence [2005] VUSC 88; 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 TSAI YI

Coram: Justice Treston

Mr. Toa for Public Prosecutor

Mr. Sugden for Accused
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SENTENCE

The Accused Chen Tsi Yi is now for sentence on two counts of breach

of the Fisheries Act and Orders made under it. The counts are those

remaining from 9 original counts in an indictment alleging breaches

of the Act. The charges on which he now stands for sentence are

counts 4, to which he pleaded guilty during the course of trial and

which related to failing to ensure that whilst in Vanuatu waters all

parts of the call sign marking were clear and distinct, and count 7

which related to the Accused as master of the vessel, failing to

ensure that a licence or a certified copy of the licence was on board

the vessel and failing to produce it when required by an authorized

officer.

Each of these offences carries with it the potential of a fine not

exceeding VT5 million as provided by section 4 (5) of the Fisheries

Act.

The circumstances surrounding the offences and the convictions are

fully set out in a reserved judgment which was delivered in thisCourt earlier today.

The Prosecution submits that the maximum fine of VT5 million

should be imposed against this Accused in respect of each offence.

Various authorities concerning convictions for fishing in a closed

area were produced by the Prosecution to substantiate this

submission and to that extent those authorities are somewhat

unrelated and irrelevant to this particular sentencing exercisebecause the maximum penalty provided for in the Act for fishing in a

closed area is a fine not exceeding VT20 million. However, the

principles of sentencing can perhaps be extracted from the

decisions which have been produced.

In addition, under the Fisheries Act there is the potential of forfeiture

of the fishing vessel together with its gear, stores and cargo and fish

caught in the commission of the offences under the powers of

forfeiture contained in section 28 of the Fisheries Act. However, the
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Prosecution has accepted that it does not seek forfeiture in relation

these offences. The main ground for submitting that the fine should

be the maximum in each case is that there should be a deterrent

message sent, the Prosecution submits, to all other fishing boats tocomply with the conditions of their foreign fishing licences. It was

submitted that this exercise has caused the government of Vanuatu

great expense and the fine should be very heavy. It was submitted

that the fact that the fishing vessel had been under detention and

arrested and kept at a wharf in Port Vila for 8 months had no bearing

on the fine.

On behalf of the Accused, I was advised that he is a 51 year old

Taiwanese citizen with 3 children at home in Taiwan aged 18, 6

and 5. The Accused has not seen his family for 2 years although

only 10 months of that time can be attributed to this offending and

more significantly as a result of his detention in Vanuatu, the Court

is advised that the Accused has lost his job. He has had no income

to provide for his family since he has been in Vanuatu. He has

limited assets, limited, I am told, to a house in Taiwan worth about

700 to 800 Taiwanese dollars and I am not told of the

exchange rate. He has no savings and no car. He does not have any

liabilities.

Again, very significantly, his counsel submitted to this Court that the

Court should very much take into account that that at the

commencement of this Prosecution the Accused spent 10 days in

prison. The Prosecutor was unable to advise me as to the law in

Vanuatu concerning that but it seems extraordinary that someone

should be imprisoned for a matter which only attracts a fine as itsultimate penalty and the Defence submit that the time in prison

should be taken very much into account in this sentencing. Together

with that, the 10 months period spent in Vanuatu was a period

where he was able to converse with only two or three people and as

he has been unable to earn any income either for himself or his

family he has relied upon the charity and goodwill of others, in

particular, the Agent for the fishing vessel of which he was formally

the Captain.
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Furthermore, it was submitted that the Accused found himself in a

somewhat invidious position in his role as master of the vessel

because he had previously been the engineer and was virtuallypushed, it was submitted, into becoming the Captain when the

former Captain become ill with some kidney difficulties and had to

return to Taiwan. The Accused took over his duties having been not

fully informed of all that was required and had only been in his

position since the commencement of this voyage namely for less

than a month.

It was submitted that the call sign markings had been painted to be

clear before the vessel left Port Vila but because of their position

namely on the outside of the hull of the vessel, it was easy to

overlook that the paint may have worn off in a short time. The

outline although very indistinct of the call sign was there but it could

not be read from a very great distance and that led to the offence

and to the quite realistic plea of guilty during the course of the

hearing after the evidence had been given. I note that there appears

to be some criticism from the Prosecution that the Accused did not

plead guilty to that charge until the hearing had started but of

course there is no basis for such a submission because any Accused

is entitled to defend any charge and to put the Prosecution to proof

in any case and no Accused can be deprived of that right nor

criticized for taking advance of that right so I place no weight on the

submission made by the Prosecution that it was a late plea of guilty

to the contrary I give the Accused credit for pleading guilty when he

realized that the evidence against him having heard that evidence

was such that he could no longer realistically defend that charge.

As to the licence and the failure to have it on board and to produce

it or a certified copy, the submission was made that the Accused

was simply not informed by the previous captain that he should

have such a licence or copy licence and although the Prosecution

has submitted that it was incumbent upon him to make sure that he

knew of the requirements, of course, he had taken over the job at

short notice and had been told by the previous skipper, it seems,

that exhibit 7 was a fishing licence which would be sufficient for any


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purpose. The fact that that was not a sufficient licence, of course,

has led to his conviction on the charge but nevertheless, the

Prosecution could have looked at the matter in a more favourable

way bearing in mind that exhibit seven contained all the detailsrealistically needed which proved to be quite valid, including the

name of the vessel, the number of the licence, which was also quite

correctly painted on the side of the superstructure of the vessel and

the duration of the licence. It seems to me that with a little good

will, the Prosecution might have taken a more lenient view about

that particular charge although it is accepted that it was a technical

breach but it was not, as the Prosecution has submitted, a wilful or

deliberate breach because the vessel was licensed, the defence

submit, and the conditions were all complied with for its fishing and

in addition, as I have found in evidence, the Captain was careful not

to fish within closed areas.

It was submitted by the defence that the offences were rather more

of a minor nature than anything else and not deliberately or

intentionally committed but rather committed through inadvertence

and inexperience.

The defence submit to me that I ought properly to deal with this

Accused on both matters under section 42 of the Penal Code CAP

135, where it is provided that any offender may be convicted and

ordered to come up for sentence if called upon. The defence

submitted that the deterrent aspect in relation to these particular

charges was not a significant part of the sentencing process in the

circumstances because a heavy fine in relation to these breaches

would be out of all proportion to the seriousness of the breachesand would not have any particular deterrence on other licence

holders.

In response, the Prosecution submitted that these were serious

offences against the law incurring the potential of substantial fines

and that section 42 of the Penal Code was mainly used if pleas of

guilty had been entered and if the Court were to convict and order

the Accused to come up for sentence within a specified time, it

would be giving a licence to other fishermen to breach the
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conditions of their fishing licences.

I have very carefully considered what might be the appropriate

sentence in these matters. With the greatest respect to theProsecution, I think that the submission that these offences should

incur the maximum penalty is rather irresponsibly made in the

circumstances. The maximum penalty in any sentencing situation

must be reserved for the very worst offences of the kind that the

Court is called to deal with. By no stretch of imagination could these

offences be described as the very worst of their kind for breaches of

the conditions of a foreign fishing licence. I agree with what the

defence says, that they were largely caused by inadvertence in

relation to the call sign being unclear and indistinct, and by

inexperience and the invidious position that the Accused found

himself in, in relation to the licence, in relation to the failure to have

the licence on board and the failure to produce it to the authorized

officer involved when the boarding party went on board his vessel.

However, in saying that and while accepting that the Accused has

already suffered personally and significantly in being here in this

country for over 10 months and more particularly in being in

custody for 10 days, I still point out that there is a strong

responsibility to observe the law placed upon masters of foreign

fishing vessels who have the advantage of fishing within the

Exclusive Economic Zone of Vanuatu. It is my view that it would be

inappropriate to simply convict the Accused and order him to come

for sentence within a period of time. There must be a message sent

out to licence holders that they must comply absolutely with the law

and with the conditions of their foreign fishing licences because theability that they have to ply and fish the waters outside the closed

area of this country is a privilege and not a right and they must

comply absolutely with the conditions of their licences in so doing.

However, as I have already said, I do not consider that these

matters fall to be dealt with any where near the maximum penalty

made available by the law in this case.

Any fine that I impose would of course be a burden on the Accused


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but I draw some solace from the assurance that I have from the

defence that in fact, quite responsibly, the owners of the fishing

vessel have undertaken to allow any fine to be deducted from the

bond which they were required to pay for the release of their vesselfrom custody. The vessel was quite properly in my view kept in

custody for the period that it was, although it seems a rather

draconian course, for the 8 months that it was here, because at that

stage, on the face of it, the vessel faced serious charges and a

number of them, namely 9 in total, including fishing within the

closed area, so I do not consider that the vessel was wrongly

detained for that period, although having heard submissions from

counsel for the defence, this Court as presently constituted,

considered about 2 months ago that the time of detention had been

sufficient and that the vessel could be released on bond.

Another reason of course for the delay in this hearing taking place

was created by the unavailability of a suitable interpreter to assist

this Accused at the trial and to allow him to have his rights under

the Constitution to understand and to take a full part in the trial with

the assistance of an interpreter. An interpreter was subsequently

found from Papua New Guinea and he attended the Court for the

majority of the hearing to assist the Accused and the delay to a

large extent had been because of the difficulty in obtaining a

suitable interpreter. Subsequent events have shown that perhaps a

Mandarin interpreter may have been sufficient, but based upon the

information that was known at the time, a Taiwanese

interpreter seemed to be necessary and was sought and obtained at

no small expense.

So, as I say, there are significant mitigating factors in relation to this

Accused and the appropriate penalty that should be imposed. A

penalty in my view, must be sufficient to reflect the fact that the

Court, of course, regards breaches of Overseas Fishing Licences

seriously but nevertheless, that must be balanced against the

particular circumstances of this Accused, which I have already

outlined in some detail. It is important in my view, for the authorities

and for the government of this country to stress that breaches of

fisheries conditions will not be looked upon lightly, but I also as I say
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must strike an appropriate balance.

In all the circumstances I deal with the Accused in this fashion.

Having being convicted of each of the charges and although as the

defence submitted, the licence count could be marginally less

serious than the other, I treat them as equal, and I fine the Accused

VT100, 000, on each of these offences (a total of VT200, 000). The

Accused, just as for the conviction, has the right to appeal within 14

days.

I further order as follows: -

1. The bonds totalling VT14 million less the amount of the fines totalling

VT200, 000, a sum of VT13, 800, 000, must be forthwith paid to Mr.

Sugden, counsel for Accused.

2. All passports of the Accused and crew of the vessel Ching Fung Wa 1

must forthwith be released by the Police Maritime Wing to defence

counsel, Mr. Sugden, or his agent.

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

BY THE COURT

P. I. TRESTON

Judge

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Language Assistance in Taiwanese