Do Thanh Nhan & 22 Others v Malaysia Maritime, 18-11-2015

• Judge: YA DATUK MAIRIN BIN IDANG @ MARTIN
• Judgment Date: 18 November 2015
• Court: High Court (Malaysia)
• Appellant: DO THANH NHAN & 22 OTHERS
• Record Number: MYY-41A S-1/8-2015
• Respondent: MALAYSIA MARITIME,ENFORCEMENT AGENCY

MYY-41A S-1/8-2015

M A L A Y S I A

IN THE HIGH COURT OF SABAH AND SARAWAK AT MIRI

CRIMINAL APPEAL NO: MYY-41A S-1/8-2015

BETWEEN

DO THANH NHAN & 22 OTHERS … Appellant

AND

MALAYSIA MARITIME

ENFORCEMENT AGENCY … Respondent

IN THE MAGISTRATES’ COURT AT MIRI

IN THE STATE OF SARAWAK

CRIMINAL CASE NO: MYY-87EG-1/4-2015

BETWEEN

MALAYSIA MARITIME

ENFORCEMENT AGENCY … Complainant

AND

DO THANH NHAN & 22 OTHERS … Accused

BEFORE THE HONOURABLE JUDICIAL COMMISSIONER

YA DATUK MAIRIN BIN IDANG @ MARTIN

IN OPEN COURT

RULING

[1] I shall refer the 23 Appellant as the Accused and the Respondent as the Prosecution.

[2] The Accused who were all Vietnamese were charged under section 15(1)(a) Fisheries Act 1985 read together with section 34 of the Penal Code punishable under section 25(a) of the same Act (Act 317).

[3] The charge read as follows:

“That all you Do Thanh Nhan together with 22 others (as in Appendix A) on April 6, 2015 at approximately 2130H on fishing vessel registration number KG94004TS positioning at Latitude 04⁰13.540 North and Longitude 113⁰ 13.540 East at a distance of approximately 43 nautical miles from the coast of Miri, Sarawak within Malaysian Fisheries Waters found to have been engaged in fishing activity without any permit issued by the General Director of Fisheries Malaysia which cause such act to be an offence under section 15(1)(a) Fisheries Act 1985. As such, you are hereby found to have committed an offence under section 15(1)(a) Fisheries Act 1985 read together with section 34 of the Penal Code which is punishable under section 25(a) of the same Act (Act 317).

Punishment:

“Section 25(a) to a fine not exceeding one million ringgit (RM1,000,000.00) each in the case of the owner or master, and one hundred thousand ringgit (RM100,000.00) in the case of every member of the crew.

Section 52(1)(a)(i): The court shall, in addition to any order penalty that may be imposed for an offence under section 15(1)(a)(i) order the vessel (including its equipment, furniture, appurtenances, stores cargo and fishing appliance), vehicle, article or thing used in the commission of such offence or in relation to which such offence has been committed be forfeited.

Section 52(1)(a)(ii): order that any fish caught in the commission of such offence or the proceeds of sales of the fish or other article of a perishable nature and any explosive, poison, pollutant, apparatus or prohibited gear used or intended to be used in the commission of such offence be forfeited.”

[4] The Accused were represented by Mr. CM Sundram (Mr. Sundram) while Pn Iris Awen, Pn. Sharifah Nora binti Othman and En. Mohd Farid Bin Mohd Mokhtar in between them had appeared for the Prosecution.

[5] Initially the accused claimed trial at the Magistrate Court. However after the Prosecution had called 3 witnesses all of the Accused decided to plead guilty on the 21.7.2015. On the 22.7.2015 after hearing submissions from both Mr. Sundram and the Prosecution, the learned Magistrate recorded a conviction on all Accused. The learned Magistrate imposed a fine of RM100,000 in default of 2 months imprisonment on the 1^st Accused whilst the other 22 Accused are respectively imposed with a fine of RM20,000 each in default of 1 month imprisonment. The Vessel KG94004TS (the Vessel) with other exhibits were forfeited pursuant to section 52 of the Fisheries Act 1985. The proceeds of sale of the fish in the sum of RM3,100.00 and the proceeds of sale of the diesel amounting to RM4,736.80 were also forfeited as government revenue. The Accused however did not pay their fines and served their respective imprisonment.

[6] On the 24.7.2015 the Accused filed their Notice of Appeal “against conviction, sentencing and order of forfeiture of the vessel KG94004TS together with all exhibits tendered and that the proceeds of the sale of diesel and fish be forfeited as government revenue after a lapse of the appeal period.”

[7] On the 29.7.2015 the Petition of Appeal was filed. I have summarized the petition as follows:

1. The Malaysian Maritime Enforcement Agency (MMEA) does not have the powers of investigation over an offence under section 15 (1) (a) of the Fisheries Act 1985 (the Fisheries Act) because it is specifically provided under section 47A of the same Act that the power of investigation in all fisheries offences is solely vested in the fisheries officers. That the Fisheries Act does not empower other agency to make investigation. The Fisheries Act is not linked to the Criminal Procedure Code (CPC) (Act 593).

2. The offence under section 15(1) (a) is deemed a non-seizable offence as such the Order to Investigate (OTI) had to be issued before commencement of investigation. Since no OTI was obtained from the Public Prosecutor the forfeiture of the Vessel as well as the conversion to government revenue of the proceeds of the sale of fish and diesel under section 25(a) and section 52(1) (a) (i) and (ii) of the Fisheries Act was ultra vires of the Fisheries Act 1985.

3. It was not spelt out in the main charge the punishments which might be imposed on the Accused.

4. The order of forfeiture was not mandatory because the word ‘shall’ does not mean ‘mandatory’.

[8] The Accused and the Prosecution had filed their respective written submissions. On the 18.11.2015 I dismissed the appeal. Herein are the grounds of my decision.

[9] In his submission Mr. Sundram had submitted that the Accused appeal was against the legality of sentence and forfeiture of the Vessel proceeds of sale of fish and diesel. Mr. Sundram went on to submit “…although we are restricted to just appealing against the legality of the sentencing, we nevertheless contend that because the Malaysian Maritime Enforcement Agency officers lack the power to enforce laws under the Fisheries Act 1985, their action has resulted in the entire prosecution of the Appellants, null and void.” Mr. Sundram had referred to me sections 2, 4, 25, 36, 47 and 52 of the Fisheries Act.

[10] From the tone of Mr. Sundram’s submission he appeared to concede that the Accused after pleading guilty could only appeal on the validity of the sentence. To me and as pointed out by the prosecution the law is very clear that where the Accused had pleaded guilty to the charge as was done in this case the appeal shall only in regards to the extent and legality of the sentence as provided under section 305 of the Criminal Procedure Code (CPC).

[11] The Prosecution submitted that the Malaysian Maritime Enforcement Agency Act 2004 (MMEA Act) empowers MMEA to arrest and investigate all offences committed in the Malaysian Maritime Zone which includes offences under the Fisheries Act. The Prosecution had referred to me to sections 2, 3, 5, 6 and 7 MMEA Act.

[12] I shall now consider whether MMEA has the power to enforce the provisions of the Fisheries Act. Let me refer to those relevant sections of the Fisheries Act and MMEA Act which were referred to by both parties:

Fisheries Act 1985

Section 2 is to do with interpretation.

Section 4 is to do with the appointment of fisheries’ officers and deputy fisheries officers.

Section 36 is to do with the appointment of other persons to be the authorized officers.

Section 52 empowers to Court to make an order of forfeiture and disposal of the vessel (including its equipment, cargo, fishing appliance etc) used in the commission of such offence and also fish caught in the commission of such offence.

Malaysian Maritime Enforcement Agency Act 2004

Section 2 is the interpretation.

“relevant agency” means a body or agency that is for the time being responsible in Malaysia for the enforcement of any federal law which is applicable in the Malaysian Maritime Zone.

“offence” means any offence under any federal law which is applicable in the Malaysian Maritime Zone.

“Malaysian Maritime Zone” means the internal waters, territorial sea continental shelf, exclusive economic zone and the Malaysian fisheries waters and includes the air space over the Zone.

Section 3 is to do with the establishment of the Malaysian Maritime Enforcement Agency.

In s 3(2) it is stated “the Agency shall, be subject to this Act, be employed in the Malaysian Maritime Zone for the maintenance of law and order, the preservation of the peace, safety and security, the prevention and detection of crime, the apprehension and prosecution of offenders and the collection of security intelligence.”

Section 5 is the appointment of other officers of the agency.

S. 5(2): The Yang di-Pertuan Agung may, in the order made under subsection (1), determine that the ranks of such appointed officers shall be regarded as equivalent to the ranks of-

1. Police officers as specified in or under the Police Act 1967 [Act 344];

2. Officers of customs as specified in or under the Customs Act 1967 [Act 235]; and

3. Any other officers whose ranks are specified in or under any other written law,

and the Criminal Procedure Code [Act 593] and laws specified in section 7(3) shall be construed accordingly.

S. 6 is to do with the functions of the Agency.

S.6(1) The functions of the Agency shall be-

1. to enforce law and order under any federal law;

2. to perform maritime search and rescue;

3. to prevent and suppress the commission of an offence;

4. –

5. –

6. –

Section 7 is to do with powers of the Agency.

Section 7(1): The Agency shall have powers to carry out the purposes mentioned in subsection 3(2) and to do all things reasonably necessary for or incidental to the performance of its functions under section 6.

(2) In particular, but without prejudice to the generality of...