Chua Kai Ren (KD-62-13-11/2024)

Chua Kai Ren (hereinafter referred to as ‘the accused’) faces charges under Section 8(b) of the Fisheries Act 1985 (Act 317), (hereinafter referred to as ‘Act 317’) the charge alleges that the accused conducted fishing activities within Malaysian fisheries waters using a local fishing vessel. These activities were carried out S/N znGhIn3u0qr1f6wsxaoKA **Note : Serial number will be used to verify the originality of this document via eFILING portal 2 in violation of the specific conditions stipulated in the license issued for the vessel in question. This offense involves the misuse or disregard of regulatory guidelines meant to ensure lawful and sustainable fishing practices and forfeiture of the fish caught under Sections 52(1)(a)(ii) of the Act 317.

The charge levelled against the accused is detailed and set out as follows, forming the basis of the prosecution's case in this matter.

On 04.11.2024, the accused was formally charged and subsequently entered a guilty plea after the charge was read in Malay by the Court interpreter. The Court took careful steps to ensure that the accused fully understood the details of the charge, the nature of the offence, and the associated penalties. Only after confirming the accused’s comprehension and acknowledgment of these elements did the Court proceeded to record the guilty plea.

The Court then convicted the accused of the above offence, imposing a fine of RM15,000.00 with a default sentence of 12 months imprisonment if the fine is unpaid. Additionally, upon the request of the prosecution, the Court has ordered to forfeit the sum of RM1,260.00 S/N znGhIn3u0qr1f6wsxaoKA **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 obtained from the auction of the fish seized on the date of the incident, to the Government of Malaysia under the provisions of Section 52(2)(ii) of the above-mentioned Act 317. The facts of the case were presented and read aloud in court to the accused.

The charge against the accused in case no: KD-62-13-11/2024 is as follows in the national language: The Charge “Bahawa kamu pada 02 November 2023, jam lebih kurang 11.20 pagi di kedudukan Garis Lintang 06 darjah 18.770 minit Utara dan Garis Bujur 099 darjah 28.835 minit Timur iaitu pada jarak lebih kurang 10.8 batu nautika dari dengan daratan terhampir di Tg. Belua, Pulau Langkawi, Kedah dalam perairan Malaysia sebagai pemilik vesel bagi vesel bernombor PKFB 1582 telah membenarkan dikendalikan vesel tersebut dengan menggunakan kru bukan warganegara Malaysia iaitu Mr.Nanthachai (No. Paspot: AC5612582), Mr. Li Kit Hatshakon (No. Paspot: AC5612636), Mr. Phongsakon Kongsamot (No. Paspot: AC5612542) dan Mr. Maddee S/N znGhIn3u0qr1f6wsxaoKA **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 Khongsamut (No. Paspot: AC43224149) tanpa kebenaran daripada Ketua Pengarah Perikanan sepertiman syarat dalam buku lesen vesel tersebut. Oleh yang demikian, kamu telah melakukan suatu kesalahan di bawah Seksyen 8(b) dibaca bersama dengan seksyen 10(1)(b) dan (c) Akta Perikanan 1985 (Akta 317) dan boleh dihukum di bawah Seksyen 25 (b) Akta yang sama”.

The accused affirmed his understanding of the facts, and the reading was conducted by the court interpreter in Malay, ensuring that the accused fully understood the information being conveyed. The court interpreter’s role was vital in ensuring that the accused’s understanding was clear and that the proceedings were accurately explained.

I will now provide a concise overview of the facts relevant to this case. For a comprehensive and detailed account, reference should be made to the statement of facts, which has been formally marked as Exhibit P2 and is part of the evidence presented. S/N znGhIn3u0qr1f6wsxaoKA **Note : Serial number will be used to verify the originality of this document via eFILING portal 5

The facts of the case, as meticulously outlined by the prosecution and officially submitted as Exhibit P2, provide a comprehensive narrative of the events and circumstances surrounding the matter. These details, forming the foundation of the prosecution's argument, are presented as follows:

On 02 November 2023, Sub-Lieutenant II (M), Mohd Amran Bin Hamid, along with search team members from Bot Penggalang II of the Malaysian Maritime Enforcement Agency (MMEA), conducted an enforcement patrol under Operation Aman / Op Tiris 2.0 in Langkawi Waters.

Subsequently, on 02 November 2024, at approximately 11:00 a.m., the complainant inspected and detained a local Class C fishing vessel with registration number PKFB 1582 (hereinafter referred to as ‘the vessel’) at the coordinates of Latitude 06 degrees 18.770 minutes North and Longitude 099 degrees 28.835 minutes East, approximately 10.8 nautical miles from Tanjung Belus, Pulau Langkawi, Kedah.

Upon inspection, it was found that the local Class C fishing S/N znGhIn3u0qr1f6wsxaoKA vessel with registration number PKFB 1582 was manned by a crew consisting of one captain which was the accused himself and four crew members. The detailed list of individuals on board is as follows; i. Mr. Chua Kai Ren (captain), male, 28 years old, Malaysian national, The National Registration Identity Card (NRIC) number 960426-10-5765. ii. Mr. Nanthaichai (crew), male, 29 years old, Thai national, passport number AC5612582. iii. Mr. Li Kit Hatshakon (crew), male, 35 years old, Thai national, passport number AC5612636. iv. Mr. Phongsakon Kongsamut (crew), male, 30 years old, Thai national, passport number AC5612542. v. Mr. Maddee Khongsamut (crew), male, 55 years old, Thai national, passport number AC4324149.

Further inspection revealed that the vessel, along with its captain and four crew members of the local Class C fishing vessel with registration number PKFB 1582, were detained on suspicion of committing an offence under the Fisheries Act 1985 (Act 317). The offence involved violating license S/N znGhIn3u0qr1f6wsxaoKA conditions by employing foreign crew members without authorization from the Director General of Fisheries Malaysia. The vessel was escorted to the MMEA jetty in Langkawi and handed over to the MMEA investigating officer. A police report was filed by the complainant under report numbers Kuala Teriang/001650/24 and the case is investigated by Maritime Officer I Mohd Subri Bin Hussain.

The Department of Survey and Mapping Malaysia (JUPEM), in a report dated 16 November 2024, confirmed that the location of the detention or arrest at the coordinates Latitude 06 degrees 18.770 minutes North and Longitude 099 degrees 28.835 minutes East is within Malaysian waters where the fishing vessel was detained, situated 10.8 nautical miles from the nearest land at Tanjung Belua, Pulau Langkawi, Kedah.

The Kedah State Fisheries Department, in a statement dated 9 November 2023, confirmed that the vessel is licensed to Heng Pei Wa as specified in the license book with Serial No. KA 000056 (refer to Exhibit P9), and that the vessel is currently active with a valid license period from 16 March 2023 to 15 March 2024. In this matter, there is a formal sale S/N znGhIn3u0qr1f6wsxaoKA and purchase agreement involving the vessel, entered into between Heng Huah Seah as the seller and the accused as the buyer. This agreement explicitly designates the accused as the party responsible for taking over and managing all operations and activities related to the vessel.

The arrangement signifies a transfer of ownership and operational responsibilities, with the accused assuming full control and authority over the vessel’s management in accordance with the terms outlined in the sales and purchase agreement (refer to Exhibit P11).

The response from the Department of Fisheries Malaysia dated 30 November 2023, confirms that no new application for a transfer of ownership has been made by any party other than the abovementioned names (refer to Exhibit P14).

The Licensing Division of the Kedah State Fisheries Department, through a statement dated 29 November 2023, affirmed that the permit granted by the Kedah Fisheries Office permits two (2) foreign nationals to serve as crew members aboard the fishing vessel owned by the accused. The specific S/N znGhIn3u0qr1f6wsxaoKA details of the authorization are as follows: i. Mr. Somchai Rattanakosin, Thai national, passport number AC1564568, passport expiry date 15.06.2028. ii. Mr. Aran Chaiyathorn, Thai national, passport number BE7563412, passport expiry date 10.09.2029.

The Kedah State Fisheries Department (Equipment Specialist), in a statement dated 12 September 2024, confirmed that an inspection of the vessel PKFB 1582 revealed the presence of a complete set of trawl gear and associated components on board. Therefore, the vessel is capable of conducting trawling operations.

The seized catch, consisting of 700kg of mixed fish has been auctioned with a total value of RM 1,260.00.

The investigation found that the accused, as the holder of the fishing vessel license and fishing equipment for the vessel with registration number PKFB 1582, had permitted Mr. Nanthachai (Passport No: AC5612582) and Mr. Li Kit S/N znGhIn3u0qr1f6wsxaoKA Hatshakon (Passport No: AC5612636), foreign crew members without written approval from the Director General of Fisheries, to operate the vessel. This is a violation of the conditions stipulated in the vessel's license. Consequently, the accused has committed an offence under Section 8(b) of the Fisheries Act 1985 (Act 317). LIST OF EXHIBITS [9] The learned Deputy Public Prosecutor (hereinafter referred to as ‘the learned DPP’) subsequently submitted a series of exhibits into evidence, which were presented in support of the prosecution’s case and form part of the material evidence for consideration: No. Description Exhibits 1. Consent to prosecute P1 2. Facts of the case P2 3. Kuala Teriang report 1650/23 P3 4. Search warrant P4 5. Transfer account P5 6. Copy of Identification Card P6 S/N znGhIn3u0qr1f6wsxaoKA

10 Photographs of the incident location P7 (A) – (J)

7 Photographs of the Exhibits

Copy of the license book P9 10. Copy of the vessel license P10 11. Sales and Purchase Agreement P11 12. Letter of coordinates confirmation

Equipment verification letter

Permit verification letter

Receipt for Auction Proceeds P15 [10] The accused formally acknowledged the accuracy and authenticity of the exhibits presented in court, acknowledging that they are genuine and represent the evidence in question. [11] By doing so, the accused accepted these documents as valid without raising any objections or challenges to their contents. This acknowledgment was made clearly, ensuring that the exhibits were recognized as integral parts of the evidence in the case. S/N znGhIn3u0qr1f6wsxaoKA MITIGATION BY THE ACCUSED [12] The facts of the case were presented in court and read aloud to the accused. The accused confirmed that he understood these facts clearly. The reading was carried out by the court interpreter in Malay, ensuring that the accused fully comprehended the information being provided to him. The accused was then given the opportunity to offer a statement in mitigation. In his statement, the accused expressed that he has a family to care for and needed the money, but he assured the court that he would not repeat his mistake. He added that the rest of the matters should be left to his lawyer to handle on his behalf. [13] Through his lawyer, Mr. Mohd Nuradzwan Bin Rodzi from the National Legal Aid Foundation (YBGK), (hereinafter referred to as ‘the learned counsel’) the accused made an appeal for a more lenient sentence. His learned counsel provided a detailed explanation of the accused's personal and financial situation. The accused works as a fisherman, a profession that often results in an unstable and fluctuating income, which complicates his ability to maintain financial stability. S/N znGhIn3u0qr1f6wsxaoKA [14] Moreover, the accused is unmarried but has the responsibility of supporting his elderly parents, which adds further financial pressure. Taking these factors into consideration, the accused, through his counsel, requested that the court impose the lightest possible sentence, highlighting that this would provide him with the opportunity to continue supporting his family and avoid further hardship. [15] The learned counsel emphasized that the accused’s decision to plead guilty not only saved valuable court time and resources but also helped reduce costs for the prosecution and witnesses involved. This, in turn, allowed the court to focus its attention on more serious and complex cases. The accused had always intended to plead guilty and had no intention of causing unnecessary delays. As soon as the charges were read, the accused entered a guilty plea, showing his willingness to cooperate and take responsibility for his actions. [16] Additionally, the learned counsel referenced the case of PP v Ravindran & Ors [1993] 1 MLJ 45, arguing that a discount or credit should be granted to the offender for pleading guilty, as this contributes to saving both time and costs for the court. He further S/N znGhIn3u0qr1f6wsxaoKA referred to the cases of PP v Abdul Halim Ishak & Another [2013] 1 SCR 433 and PP v Yogananthan Boy Kuppu @ Uthirasan [2018] 1 LNS 1486 highlighting that such a plea not only demonstrates the accused’s acknowledgment of the offence but also shows a degree of responsibility and cooperation, which can be considered a mitigating factor. By avoiding a lengthy trial, the accused has contributed to speeding up the judicial process, which in turn allows the court to allocate its resources more effectively. This approach supports the broader principle that a guilty plea should be viewed as a sign of accountability and a step toward rehabilitation. When determining an appropriate sentence, this principle should be considered. The defense counsel further requested that the court apply this legal precedent in the present case to reduce the sentence, recognizing the accused's willingness to admit guilt, which ultimately helps save judicial resources and promotes efficiency. [17] In closing his arguments, the learned counsel emphasized the relevance of the case PP v Mohamad Faezi Abd Latif [2021] 1 SMC 527, drawing attention to the key legal principles and specific circumstances of that case that aligned with the current matter. The counsel then respectfully urged the court to consider adopting a more lenient stance in sentencing. He recommended that the court S/N znGhIn3u0qr1f6wsxaoKA impose a minimum fine, which he argued would be a fair and just penalty, taking into account the mitigating factors that had been presented during the proceedings. PROSECUTION'S SUBMISSION [18] The learned DPP argued instead that the court should impose a sentence proportionate to the offence charged, to serve as a lesson not only to the accused but also to the community at large. The prosecution refered to the penalty stipulated under Section 25 of the Fisheries Act 1985, which provides for a fine not exceeding twenty thousand ringgit, imprisonment for a term not exceeding two years, or both. [19] The learned DPP concluded her submission by stressing the necessity of a stringent sentence, citing the case law to support his argument. She relied predominantly on the decisions in PP v Loo Choon Fatt [1976] 1 LNS 102 and PP v Govindnan Chinden Nair [1998] 2 CLJ 370 both of which underscore the principle that the imposition of a heavy sentence is crucial to deter similar conduct by others. She also relied on the case of R v Grondkowski [1946] All ER 560, Tan Bok Yeng v PP [1972] 1 LNS 145; [1972] 1 MLJ 214, S/N znGhIn3u0qr1f6wsxaoKA PP v Leonard Glenn Francis [1989] 1 CLJ 972; [1989] 2 CLJ (Rep) 320; [1989] 2 MLJ 158, and PP v Tia Ah Leng [2000] 5 CLJ 614, which emphasized that the severity of the sentence would not only reflect the gravity of the offence but also serve a broader societal function deterring future offences by sending a clear message about the court’s stance on such wrongdoings. She urged the court to impose a sentence that would serve both as a fitting punishment for the accused and as a public signal, illustrating that criminal behaviour of this nature will not be tolerated and will be met with the full force of the law [20] This penalty clearly reflects the seriousness of criminal offences related to fishing activities conducted within Malaysian waters. In recent years, the fishing industry in our country has faced significant challenges, with an increasing number of violations occurring during fishing operations. [21] Considering that the seized vessel has been operating with a valid license, the learned DPP did not request that it be forfeited to the MMEA or to the Government of Malaysia. [22] All exhibits were duly admitted by the Court in accordance S/N znGhIn3u0qr1f6wsxaoKA with the legal procedures governing the acceptance of evidence under the law. THE LAW [23] For the charge of the offense under Section 8(b) of the Act, it is provided as follows:

Offence for fishing without licence or in contravention of condition or direction Any person who undertakes any fishing activity, operates, or allows to be operated, in Malaysian fisheries waters any local fishing vessel for the purpose of fishing—

...

in contravention of any condition in the licence issued in respect of such vessel; or

... shall be guilty of an offence.

Offences under Act Any person who contravenes or fails to comply with any provision of this Act shall be guilty of an offence and where no special penalty is provided in relation thereto, such person shall be liable— S/N znGhIn3u0qr1f6wsxaoKA

where the vessel concerned is a foreign fishing vessel or the person concerned is a foreign national, to a fine not exceeding one million ringgit each in the case of the owner or master, and one hundred thousand ringgit in the case of every member of the crew; (b) in all other cases, to a fine not exceeding *twenty thousand ringgit or a term of imprisonment not exceeding two years or both. [24] For ease of reference the provision of section 52(2)(ii) of the Act is reproduced here as follows: Forfeiture and disposal of vessel, etc.

(1) Where any person is found guilty of any offence—

under paragraph 8(a), subsections 11(3), 15(1) or section 26; and

for the contravention of any condition of licence relating to permitted fishing areas under the licence, the court shall, in addition to any other penalty that may be imposed—

order that 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; and S/N znGhIn3u0qr1f6wsxaoKA

(ii) order that any fish caught in the commission of such offence or the proceeds of the sale of any fish or other article of a perishable nature referred to in section 48, and any explosive, poison, pollutant, apparatus or prohibited gear used or intended to be used in the commission of such offence be forfeited.

Any vessel (including its equipment, furniture, appurtenances stores, cargo and fishing appliance), vehicle, article, thing, explosive, poison, pollutant, apparatus, prohibited gear or fish ordered to be forfeited under subsection (1) or deemed or ordered to be forfeited under section 49 shall be disposed of in such manner as the Director General may think fit and consistent with any scheme for the limitation of fishing effort. [25] The penalty for offences under Section 8(b) of the Act is stipulated in Section 25(b) of the same Act, which provides as follows: Offences under Act

Any person who contravenes or fails to comply with any provision of this Act shall be guilty of an offence and where no special S/N znGhIn3u0qr1f6wsxaoKA penalty is provided in relation thereto, such person shall be liable—

where the vessel concerned is a foreign fishing vessel or the person concerned is a foreign national, to a fine not exceeding one million ringgit each in the case of the owner or master, and one hundred thousand ringgit in the case of every member of the crew;

in all other cases, to a fine not exceeding twenty thousand ringgit or a term of imprisonment not exceeding two years or both. [26] Considering that the seized vessel was operating with a valid license, the learned DPP chose not to pursue a request for its forfeiture to the Malaysian Maritime Enforcement Agency or the Government of Malaysia. This decision aligns with the legal framework that governs the treatment of licensed vessels in such cases. The Court acknowledges this approach and refrains from issuing any forfeiture orders on the vessel itself. [27] Instead, as explicitly requested by the learned DPP and supported by the evidence presented during the proceedings, the Court has directed the forfeiture of the fish caught during the S/N znGhIn3u0qr1f6wsxaoKA incident. This order is issued under the provisions of Section 52(1)(a)(ii) of the abovementioned Act. The forfeiture of the catch serves as both a punitive and corrective measure, emphasizing the importance of adherence to regulations governing fishing activities. [28] The Court views this decision as a balanced approach, ensuring that enforcement actions are proportionate and targeted at the contraventions identified, without overstepping the bounds of fairness or reasonableness. This ruling underscores the judiciary’s commitment to upholding the law while considering the rights and responsibilities of all parties involved. [29] When determining a sentence for the accused, the Court must adhere to the principles and provisions established by the law. The foundation for sentencing lies in Section 173(b) of the Criminal Procedure Code. This section outlines the legal framework for how a court should proceed after an accused has been found guilty or has pleaded guilty to a charge. It ensures that sentencing is conducted in a systematic and fair manner, considering both the statutory requirements and the individual circumstances of the case. It provides: S/N znGhIn3u0qr1f6wsxaoKA

Procedure In Summary Trials b) If the accused pleads guilty to the charge, weather as originally framed or as amended, the plea shall be recorded and may be convicted on it and the Court shall pass sentence according to law … [30] The section provides detailed guidance on the steps the Court must follow, including hearing any submissions or evidence relevant to sentencing from both the prosecution and the defense. It underscores the importance of considering factors such as the nature and gravity of the offense, any mitigating or aggravating circumstances, and the impact of the offense on society. These elements collectively help ensure that the sentence not only serves as a punishment but also as a deterrent and a means of rehabilitation, depending on the context of the case. [31] In essence, Section 173(b) acts as a safeguard to maintain consistency and justice in sentencing practices. The Court, while exercising its discretion, must balance legal mandates with a fair evaluation of the unique aspects of each case. This ensures that the sentence is proportionate to the offense and aligns with the principles of justice and equity. S/N znGhIn3u0qr1f6wsxaoKA CONVICTION AND SENTENCE [32] Having ascertained that the accused fully comprehended the nature and implications of his plea, voluntarily admitted to the charge without any reservation, and unequivocally accepted the statement of facts and the exhibits presented, the Court proceeded to convict the accused of the charge. [33] The Court then sentenced the accused of the aforementioned offence and imposed a fine of RM15,000.00 with a default sentence of 12 months imprisonment if the fine remains unpaid. Furthermore, upon the request of the prosecution, the Court ordered the forfeiture of RM1,100.00 which was obtained from the auction of the fish seized during the incident, to the Government of Malaysia, as stipulated under Section 52(2)(ii) of the Act 317. THE COURT’S FINDING REGARDING THE SENTENCE [34] Before the Court provides justification regarding the sentence and order imposed on the accused, the Court wishes to draw attention to the accused's guilty plea made prior to sentencing. S/N znGhIn3u0qr1f6wsxaoKA [35] The accused entered an unconditional plea of guilty after the charge and sentence were read and explained to him. Additionally, the charge and sentence were conveyed by the court’s interpreter in the Malay language, as the accused confirmed his understanding of the language. Moreover, the accused was concurrently represented by his learned council. [36] The Court believes that Section 305 of the Criminal Procedure Code does not permit any accused who has pleaded guilty and been convicted to file an appeal, except on matters concerning the severity or legality of the sentence. This position aligns with the findings of the Court of Appeal in the case of Masni Yusoff v. PP [2019] 1 LNS 1984. “In the premises, as correctly submitted by the learned DPP, section 305 of the Criminal Procedure Code applies. The section provides that where accused person has pleaded guilty and has been convicted, there shall be no appeal except as to the extent or legality of the sentence.” [37] The same principle was also affirmed by the Court of Appeal in the case of PP v. Muhammad Kasyfullah Kassim [2017] 1 CLJ S/N znGhIn3u0qr1f6wsxaoKA 63, where the court upheld the application of this principle in determining an appropriate sentencing as follows; “The conviction of the respondent was never appealed against and canvassed before us. The appeal before us was solely by the prosecution and it was only on sentence. As the respondent has pleaded guilty and had been convicted on that plea, “there shall be no appeal except as to the extent or legality of the sentence”: see s.305 of the Criminal Procedure Code. That being the case, we propose to deal with the issue of sentence only in this judgment.” [38] The Court also referred to the case of PP v. Mohd Musa Ahmad [2013] 5 CLJ 921; [2013] 8 MLJ 466, where the Honorable High Court Judge stated: “It is incumbent upon a judge to impose a just and appropriate sentence in rape cases to inspire the public confidence in the rule of law. The judge's duty to uphold the rule of law is of particular importance when the judge is dealing with the laws which protect the community from crime, such as rape cases. S/N znGhIn3u0qr1f6wsxaoKA In this context the judge's preliminary responsibility is the protection of the public. The community must be protected from crime, and where the exercise of this responsibility arises, the judge should have public protection at the forefront of his mind." [39] The Court further considered the precedent set in Tan Sri Abdul Rahim Mohd Noor v. Public Prosecutor [2001] 4 CLJ 9. In this case, the learned judge of the Court of Appeal articulated significant principles, emphasizing the importance of balancing justice with the specific circumstances of the offense and the offender. This decision serves as a guiding authority in evaluating both the proportionality of the sentence and the public interest considerations that underlie judicial discretion, where the learned judge of the Court of Appeal stated as follows: "It cannot be gainsaid that the most onerous function of any court is to decide the appropriate sentence in any criminal case. In deciding the appropriate sentence, a court should always be guided by certain considerations. The first and foremost is the public interest. In that context the interest of justice should no doubt take into account the interest of the S/N znGhIn3u0qr1f6wsxaoKA offender. But it is often forgotten that the interest of justice must also include the interest of the community. In assessing sentence, the court should balance the interest of the offender with the interest of the victim and strike a balance, not, of course forgetting that the interest of the public should be of the uppermost consideration." [36] Therefore, in light of the fact that the accused has entered an unconditional guilty plea, as reflected in the observation and records of the Court, the sole remaining issue for the Court to resolve is the determination of an appropriate sentence. The Court is now tasked with assessing the circumstances surrounding the offence and considering all relevant factors in order to impose a sentence that aligns with the principles of justice and fairness. [40] In making its decision, the Court has comprehensively evaluated a range of factors before imposing the sentence on the accused. [41] The Court referred to the case of Public Prosecutor v. Low Kok Wai [1998] 2 CLJ 105, in which it was held that: S/N znGhIn3u0qr1f6wsxaoKA "It is a principle of sentencing that whenever possible the court should take into account as a mitigating factor the fact that the accused has pleaded guilty. The extent to which a plea of guilty is a mitigating factor must depend on the facts of each case, and it cannot be a powerful mitigating factor when effectively no defence to the charge was available to the accused." [42] The case above provides relevant guidance for the considerations in this matter and underscores key principles applicable to the present case. Another case referred to is Sau Soo Kim v. Public Prosecutor [1975] 1 LNS 158, where the court emphasized the importance of fair sentencing [43] The Court considers the frequency of such crimes in this district. It is undeniable that Langkawi is blessed with vast seas, part of the Andaman Sea, which provides the local community with opportunities for livelihoods such as fishing, fish trading, and other related activities. However, existing laws must always be adhered to by those involved. When looking at crime statistics, the frequency of offences under Section 8 of Act 317 has shown no significant decline, with these types of offences continuously contributing to the S/N znGhIn3u0qr1f6wsxaoKA overall crime rate year after year. [44] The Court must balance the public's interests with that of the accused. The public interest calls for the imposition of a deterrent sentence on the accused. The purpose of such a sentence is not only to prevent the accused from committing the offence again, but also to serve as a deterrent to others in society from engaging in similar offences in the future. However, the fact that the accused pleaded guilty, whether it was at the time the charge was read or at any stage prior to the trial, does not automatically result in a lighter sentence. The Court holds full jurisdiction and discretion in considering all relevant factors before determining an appropriate sentence, particularly in cases with significant public interest. Therefore, a fitting and proportionate sentence must be imposed to serve the public interest, as determined in R v. Kenneth John Ball [1951] 35 Cr App R 164 at page 165. "In deciding the appropriate sentence, a court should always be guided by certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it. A proper sentence, passed S/N znGhIn3u0qr1f6wsxaoKA in public, serves the public interest in two ways. It may deter others who might be tempted to try crime as seeming to offer easy money on the supposition, that if the offender is caught and brought to justice, the punishment will be negligible. Such a sentence may also deter the particular criminal from committing a crime again, or induce him to turn from a criminal to an honest life. The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living. Our law does not, therefore, fix the sentence for a particular crime, but fixes a maximum sentence and leaves it to the court to decide what is, within the maximum, the appropriate sentence for each criminal in the particular circumstances of each case. Not only in regard to each crime, but in regard to each criminal, the court has the right and the duty to decide whether to be lenient or severe." [45] The Court recognizes that cases prosecuted under Act 317 frequently involves habitual offenders. In this case, the accused is a first time offender. The Court must therefore consider this context when determining the appropriate course of action in the current proceedings. S/N znGhIn3u0qr1f6wsxaoKA [46] The accused has not been entirely without a license. However, the Court believes that the end does not justify the means, regardless of the circumstances, and the law must be upheld without exception. The Court referred to the case of Public Prosecutor v. Leo Say & Ors [1985] 2 CLJ 155; [1985] CLJ (Rep) 683, where it was held that: "... The fact that a man has not much of a criminal record or none at all, is not a powerful factor to be taken into consideration in a case of such gravity... Although all the 3 accused persons pleaded guilty and they are entitled to some credit for that, it must be set aside against the enormity and seriousness of the crime that they have committed." [47] Furthermore, according to the arrest and seizure report for Kuala Teriang 1650/23 (refer to Exhibit P3) and the photographs presented (refer to Exhibit P7), both documents confirm that the accused was not present on the vessel during the time of the arrest. The Court wishes to highlight that, even if the vessel's license was valid at the time of the arrest, this would still constitute another offence under Section 8(b) of the same Act—failure to personally S/N znGhIn3u0qr1f6wsxaoKA engage in fishing activities. Even though the accused held a valid vessel license at the time of the arrest, the accused nonetheless had allowed others to operate his vessel and permit. [48] The sentence imposed on the accused took into consideration several factors, including the fact that the accused is a fisherman with an unstable income and is responsible for caring for his elderly parents. Additionally, the guilty plea was made as early as the first day the charges were filed and read out. However, at the same time, the facts are clear and indisputable: the accused allowed his permit and vessel to be operated by another person without any reasonable explanation, as indicated on page 5 of his license book (refer to Exhibit P9). Moreover, in his plea for a reduced sentence, the accused failed to provide any justification regarding this issue. [49] The Court is of the view that the fine of RM15,000.00 with a default sentence of 12 months' imprisonment imposed upon the accused, is a proportionate, appropriate, and fair punishment in accordance with the provisions of the law. Reference is made to the case of Public Prosecutor v. Jafa Daud [1981] 1 MLJ 315, where it was established that: S/N znGhIn3u0qr1f6wsxaoKA … "sentence according to law" means that the sentence must not only be within the ambit of the punishable section, but it must also be assessed and passed in accordance with established judicial principles... [50] This precedent underscores the importance of ensuring that the penalty reflects the severity of the offence while considering the circumstances of the case. It aligns with the principle of delivering justice that balances public interest and individual accountability. [51] This penalty clearly reflects the gravity of criminal violations related to fishing activities conducted within Malaysian waters. It reflects the Court’s firm stance on preserving the integrity of Malaysia’s maritime resources and protecting the livelihoods dependent on the fishing industry. Over recent years, the Malaysian fishing sector has encountered various challenges, including overfishing, illegal practices, and resource depletion, exacerbated by a rising trend of regulatory violations during fishing operations. [52] This comprehensive approach is vital not only for maintaining ecological balance but also for safeguarding Malaysia’s maritime heritage for future generations. It sends a clear message that S/N znGhIn3u0qr1f6wsxaoKA unlawful activities in Malaysian waters will be met with serious consequences. CONCLUSION [53] In conclusion, the Court considers the imposition of a fine amounting to RM15,000.00 with a default sentence of 12 months’ imprisonment if unpaid, to be a balanced and just punishment within the framework of the law. Additionally, the Court orders the forfeiture of the fish caught under Sections 52(1)(a)(ii) of the Act. This decision reflects the Court's commitment to uphold statutory provisions and enforce regulations aimed at preserving natural resources and maintaining lawful practices within the fishing industry. [54] It underscores the gravity of adhering to legal frameworks established to regulate sustainable and responsible practices for the benefit of society and future generations. [55] This ruling sends a clear message to the accused and the broader Langkawi community, especially local fishermen, about the serious consequences of engaging in unlawful activities that contravene these laws. Fishermen and others involved in marine-S/N znGhIn3u0qr1f6wsxaoKA related activities are strongly urged to familiarize themselves with and adhere to the legal requirements concerning permits and fishing activities. [56] The Court emphasizes the importance of compliance not only to avoid legal repercussions but also to ensure the sustainability of marine ecosystems, which are a vital source of livelihood and food security for many here at Langkawi. Ignorance or negligence regarding these laws will not serve as a justification for violations, and the penalties for such acts are designed to deter future breaches. [57] The Court urges all stakeholders in Langkawi, Kedah, including local authorities, community leaders, and fisheries enforcement officers, to take an active role in educating fishermen about the laws that govern their activities. By working together, these groups can build better awareness among the fishing community and reduce instances of legal violations. [58] For the accused, this sentence should serve as an important reminder of the value of obeying the law. Compliance not only promotes fairness in the use of natural resources but also protects S/N znGhIn3u0qr1f6wsxaoKA the livelihoods of others and the overall well-being of the community. It is essential for everyone involved in the fishing industry to prioritize sustainable and lawful practices to ensure long-term benefits for future generations. [59] The Court hopes that this decision serves as a reminder to all fishermen who intent to commit such offence of the critical importance of upholding integrity and accountability in their respective duties and responsibilities as fishermen. Dated on this day, 12 December 2024 -sgd- (ALLAN SUMAN PILLAI) Sessions Court Judge Langkawi Kedah On behalf of the Prosecution Nur Afiqah Binti Zakaria (DPP) [Malaysian Maritime Enforcement Agency] On behalf of the Accused Mohd Nuradzwan Bin Rodzi (YBGK) [Pusat Bantuan Guaman Majlis Peguam (Kedah)] S/N znGhIn3u0qr1f6wsxaoKA