The appellants, Chia He Jia and Huang Ming Xian, were the masters of the vessels Man Tsia Fa No 30 and Sheng Hai respectively. They were charged and convicted by the Lorengau District Court on 5 November 1997 following a trial for breaches of the Fisheries Act 1994 (the Act). One of the grounds of appeal was that the Magistrate erred in law and fact by not accepting the appellants' right in international law of innocent passage.

Held: Appeal dismissed.

The appellants submit that their being in PNG fisheries waters without a licence was excepted or excused by s 57(1)(a) of the Act, which provides that '[n]o foreign boat shall enter, be in or be used for fishing or related activities in fisheries waters ... except for a purpose recognised by international law'.

The words in s 57(1)(a) need to be looked at closely. The word 'purpose' is significant. That section does not say 'except for reasons' recognised by international law. To avail themselves of the exception the appellants must show that they were travelling through PNG fisheries waters for a 'purpose' recognised by international law. Section 57(1)(a) also does not say 'unless excused' by international law - so as to enable them to sustain an argument based on their assertion that they shut down their engines due to one of the vessels overheating and the other developing a leak, thus resulting in their drifting into PNG fisheries waters. Consequently, they do not come with the ambit of the exception.

In case I am wrong on my decision above, I would still dismiss this ground for reasons advanced by counsel for the respondent at page 11 of his extract of submissions (which I accept) that under the United Nations Convention on the Law of the Sea (UNCLOS) the appellants' actions (on the basis of evidence adduced by prosecution witnesses) did not fall within the requirements of innocent passage.

Due to inadequacy of library facilities in Kavieng, I have not been able to peruse the actual text of UNCLOS, but since counsel for the appellants has not (in spite of his having referred to international law of innocent passage) referred me to any specific provision of a Convention to the contrary, counsel for the respondent's submissions succinctly summarise the position relating to innocent passage:

Innocent passage is defined under Article 17 of the United Nationals Convention on the Law of the Sea (UNCLOS). Under this convention, ships of all States enjoy the right of innocent passage through the territorial sea.

Article 18 of UNCLOS defines passage as navigation through the territorial sea for the purpose of traversing that sea without entering internal waters or calling at roadstead or port facility outside internal waters or proceeding to or from internal water or a call at such roadstead or port facility. Subsection 2 of the same Article provides that passage shall be continuous or expeditious. Passage includes stopping and anchoring but only in so far as they are incidental to ordinary navigation or are rendered necessary by force major or distress etc.

Article 19 provides for meaning of Innocent Passage and circumstances in which Passage can be rendered as not innocent. Article 19(1) states that passage is innocent so long as it is not prejudical to the peace, good order or security of the coastal state. Article 19(2) states that passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal state if in the territorial sea, it engages in 'any fishing activities'.

From the provisions in the above Articles, it is clear that innocent passage must be continuous and expeditious and that no other activity such as fishing shall be engaged in. It is our submission that in this case, passage of a vessels was not innocent because circumstantial evidence of state witnesses showed that fishing had occurred. From evidence given it was shown that branch lines were still wet, hauler and mounte[d], lights were switched on and in one of the vessels, four (4) radio buoys were missing on the portside and the longline was still mounted on the side of the vessel. Clearly, their fishing equipment were not stowed indicating that fishing had taken place with[in the] PNGEEZ.