This was a prosecution under ss 56(1) and 57(1) of the Fisheries Management Act 1988 (the Act). The defendants, Pan Jian Lai, the captain and operator of the FFV Yong FA Yun 10, and Jian Zhi Ao, the chief engineer of the vessel, were charged with various fisheries offences in the Papua New Guinea Exclusive Economic Zone (EEZ). Both defendants pleaded guilty as charged.

Held: The defendant Pan Jian Lai is convicted and fined PGK 25,000 for each of the 3 counts, and in default 12 months in hard labour for each count to be served concurrently. The defendant Jiang Zhi Ao is convicted and fined PGK 8,000, and in default 12 months in hard labour. The foreign fishing vessel Yong FA Yun 10, together with its gears, equipment and all fish and fish products on board are forfeited forthwith to the National Fisheries Authority.

In respect of the alleged breach of s 39 of the Act, which relates to unnotified or unauthorised transhipment of fish, the defence argued that the charge was a misapprehension of law and as such must be struck out. They based their arguments on trying to combine the application of s 39 of the Act and s 14 of the Maritime Zones Act 2015.

The prosecution pointed out that the first obvious error with that argument is that s 14 of the Maritime Zone Act 2015 relates to the right of passage within the territorial seas of Papua New Guinea. The vessel and its crew were sighted and apprehended, not in Papua New Guinea's territorial sea, but within the EEZ of Papua New Guinea, which is outside the territorial sea. Section 14 of the Maritime Zone Act 2015 expressly refers to the right of passage within the territorial sea.

The prosecution went on to clarify that art 55 of UNCLOS defines the specific legal regime of exclusive economic zones as being an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in that Part of the Convention, under which the rights and jurisdiction of coastal States and the rights and freedoms of other States are governed by the relevant provisions of the Convention.

Part VIII of the Maritime Zones Act 2015 deals with the EEZ regime - specifically ss 27, 28, and 29. Within the EEZ and under international law (arts 58.1 and 58.3 of UNCLOS) every person and State has a right to freedom of navigation. The limitation to this right is that it must have regard to the rights and duties of coastal States, and in particular the applicable laws of the coastal States.

In the case of the Yong Fa Yun 10, it is not so much of an issue of innocent passage but an issue of compliance with provisions of the applicable law, which is in this case the requirement under s 39 of the Act for fishing vessels or vessels equipped for fishing or related activity such as transhipment, transportation, bunkering, etc to give notice of entry into a coastal State's fisheries waters or fishing zones, which includes the EEZ by definition. The issue of whether a vessel is actually engaged in fishing or related activities is not relevant in so far as it relates to the requirement to give notice to enter a coastal State's fisheries zone or fisheries waters.