State v Zhang Jian Chuan HAC009J.03S - Law Fiji

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 009 OF 2003S
STATE
-v-
ZHANG JIAN CHUAN
Mr N. Nand for State
Ms R. Lal for Accused
S E N T E N C E
Zhang Jian Chuan, you have pleaded guilty to, and have
been convicted on the following charge:
Statement of Offence
USING UNLICENSED FISHING VESSEL: Contrary to
Section 16(1) of the Marine Spaces Act.
Particulars of Offence
ZHANG JIAN CHUAN, on the 16 th day of August,
2002 used for the purpose of fishing within
the Republic of the Fiji Islands exclusive
economic zone a foreign fishing vessel not
licensed under the provision of the Marine
Spaces Act for the purpose.
The facts are that you are Captain of a Foreign
Fishing Vessel called “Fu Yuan Yu 388.” On the 16 th of
August 2002 you were fishing in Fiji’s exclusive economic
zone without a fishing licence.

2
The maximum fine for an offence under section 16(1) of
the Marine Spaces Act is $100,000. A consideration of
comparable cases in the Pacific region indicates a range of
fines from $2,000 per count to $10,000. The Supreme Court
of Vanuatu in Public Prosecutor –v- Baek (1995) VUSC9 Crim.
Case No. 44 of 1995 the captain of a foreign fishing vessel
was charged with 3 counts of offences under the Vanuatu
Fisheries Act. One count was for fishing without a licence
the maximum sentence for which is Vatu 20,000,000. The
catch was worth Vatu 2.5 million. The captain was
sentenced to a fine (on one count) of Vatu 10,000,000 which
is, I am told, the equivalent of $100,000 Fiji dollars.
The catch was forfeited.
The Kiribati Court of Appeal in Xueqiang –v- The
Republic and Shan –v- The Republic (1997) KICA 16 reduced a
fine of $100,000 for a similar offence, to $6,000.00 after
a consideration of the limited means of the appellant. In
State –v- Jang Dong Myeong Crim. Case HAC 019 of 2002S I
imposed total fines of $13,200 on 12 counts of offences
under the Marine Spaces Act. I imposed $2,000 on each
count of fishing in Fiji’s EEZ without a licence, scaling
my sentence down from $5,000 (which would have been
considered appropriate in the circumstances) because of the
accused’s plea of limited means. In that case after
considering the cases of Munin –v- Chen Sung Chizu and Hung
Shang Yi Mag. Ct. Northern Territories, Public Prosecutor
–v- Lin Shiow Her Supreme Court of Vanuatu (1993), Ministry
of Agriculture and Fisheries –v- Dub chak and Others (1994)
I considered an appropriate fine to be in the range of
$2,000 to $7,000 per offence.

3
I take into account your plea of guilty, your cooperation
with the authorities and your sincere apology to
the court. I also accept that this is a case of an
isolated breach brought about by inadequate navigation
resources.
In this case, the catch was $850 in value, which is
not a large amount. In Jang Dong Myeong (supra) I fined
the accused $2,000 per offence but was able to order the
forfeiture of catch and bait which added significantly to
the weight of the penalty. Such an order is not possible
in this case. Despite your limited means, I must pass a
sentence, which adequately reflects the public's concern
about the rape of Fiji's marine resources.
In all the circumstances I order that you pay a fine
of $4,000 to be paid within 28 days in default 6 months
imprisonment. The bonds you paid in the Magistrates’ Court
must be returned to you. I make no orders for forfeiture
of the boat.
……………………………………………………………
Nazhat Shameem
JUDGE
At Suva
26 th June 2003