Appellant in illegal fishing matter wins landmark case By Laura Pillay |20 August 2022
A landmark ruling was yesterday delivered by the Court of Appeal, quashing the sentencing orders of the Supreme Court in the case of the Republic V Mahalingam Kanapathi (2021).
The criminal appeal saw maritime lawyer Clifford Andre advancing numerous legal grounds as to why his client Mr Kanapathi, a skipper and Master of the Sri Lankan vessel ‘SAMPATH 7’ should be released from imprisonment and the imposed fine of R2,500,000 quashed, in the illegal fishing matter.
In delivering their verdict yesterday, the Justices of Appeal ordered that the initial fine be quashed and set at R400,000 instead, to be paid to court within a one-month timeframe. Furthermore, they ordered that Mr Kanapathi should be repatriated back to his home country at the soonest possible opportunity, and only if the fine is not paid within the stipulated timeframe will the vessel and fishing gears be forfeited to the state.
Among the grounds lawyer Andre advanced are the fact that the sentence was unduly harsh considering that the convict is a first-time offender and pleaded guilty at the first instance.
“It feels excellent to have won this case. We cannot, for the simple fact that there is a law in place, just apply it without consideration of the other facts and factors,” Mr Andre stated.
With the decision of the appeal court, a new precedent is set, which will impact on similar cases before the courts in future.
Initially, Chief Justice Rony Govinden, who presided over the matter within the Supreme Court, imposed a fine of R2,500,000 for the offence of fishing without a fishing vessel license, in accordance with Section 58 of the Fisheries Act 2014.
Fishing in Seychelles waters without a valid fishing license is contrary to Sections 11, 58 and 69 of the Act. He at the time ordered the convict to serve a two-year imprisonment sentence if the fine is unpaid within fourteen days of the sentencing date, on August 4, 2021.
Furthermore, the Supreme court ordered that the vessel ‘SAMPATH 7’ along with its gears and articles used in the illegal fishing activities be forfeited to the state, as per Section 70 of the Fisheries Act.
Mr Kanapathi is a skipper and Master of the Sri Lankan fishing vessel, found to be fishing illegally somewhere between 99 to 100 nautical miles South East of the Mahé Plateau on June 1, 2021.
Kanapathi is a first-time offender and pleaded guilty to the charges at the very first instance. At the time, he had two minor children and was the sole breadwinner providing for his family.
CJ Govinden, in justifying his decision, conveyed his views that the sentence should strongly deter and discourage others from committing similar offences in future.
He pointed out that from the long list of unauthorised fishing cases in Seychelles over the years, the Supreme Court had imposed fines with default of payment of fines being the forfeitures of fishing vessels, their fishing gears and their catch. Court had also invariably ordered for the repatriation of the convicts, with the resulting effect being that the fines are left intentionally unpaid by convicts allowing the accused to walk free, while the fishing vessels are forfeited to the State.