Kim v Ministry of Fisheries [2014] NZHC 2440 (6 October 2014)

Last Updated: 6 November 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-470-10 [2014] NZHC 2440

BETWEEN	DALGON KIM Appellant
AND	MINISTRY OF FISHERIES Respondent

Hearing:	3 March 2014
Appearances:	J Wiles for the Appellant A Longdill and H Musgrave for the Respondent
Judgment:	6 October 2014

_{JUDGMENT OF WOODHOUSE J}

This judgment was delivered by me on 6 October 2014 at 10:00 a.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

..........................................

Solicitors / Counsel:

Mr J Wiles, Barrister, Auckland

Ms A Longdill/Ms H Musgrave, Meredith Connell, Office of the Crown Solicitor, Auckland

KIM v MINISTRY OF FISHERIES [2014] NZHC 2440 [6 October 2014]

[1] Mr Kim appeals against conviction and sentence for 13 offences of making a false statement in a document prescribed under and contrary to the Fisheries Act

1996 (the Act).¹

The relevant provisions of the Act

[2] A commercial fisher must hold a current fishing licence and is required to produce various documents recording, amongst other things, the types and weights of fish caught, landed and disposed of during and at the end of each fishing trip. The most relevant document in this case, in relation to eight of the charges, is a catch landing return. This is required to be completed when fish are unloaded.

[3] Fishing permit holders are required to land their catch through a licensed fish receiver. The licensed fish receiver (or the receiver’s agent) is required to produce a purchase tax invoice (which I will refer to as a purchase invoice). The purchase invoice must record various particulars relating to the fishing permit holder and the vessel, together with such particulars as the species, weight and unit price of the fish, enabling cross-referencing to other documents.

[4] Mr Kim was convicted of offences against s 230(1)(b) of the Act. This provides:

(1) Every person commits an offence who—

...

(b) Makes any false or misleading statement, or omits any material information, in any communication, application, record, or return prescribed by or in accordance with this Act, or required for its administration.

[5] The offence created by s 230(1)(b) is one of strict liability. Section 240 provides that the informant is not required to prove that the defendant intended to

_{commit the offence. A defence of absence of fault is provided by s 241.}

1. Ministry of Fisheries v Kim DC Tauranga CRI-2011-070-4994, 22 February 2013 (judgment on conviction) and 24 April 2013 (sentencing).

Mr Kim, the charges against him and his defence

[6] At the material time Mr Kim was a director and shareholder of Poseidon Pacific Ltd (Poseidon). Poseidon held a fishing permit and was also a licensed fish receiver. References in this judgment to Poseidon are to be taken to be references to Mr Kim, and vice versa, unless the context requires a clear distinction.

[7] The 13 offences for which Mr Kim was convicted relate to catches by the fishing vessels Sandra Kaye and Jay Debra between 17 December 2009 and 19

October 2010. Poseidon owned both vessels until late 2009. Sandra Kaye was sold to D & D Pacific Ltd.²

[8] There were eight charges of falsely stating in catch landing returns the weight of particular species of fish landed by Sandra Kaye on three occasions to January

2010, and by Jay Debra on five occasions from April to November 2010. On each landing Poseidon was also the licensed fish receiver. There were five charges of falsely stating weights in purchase invoices generated by Poseidon on receiving fish at the conclusion of five fishing trips by Sandra Kaye between December 2009 and October 2010. The essence of the case for the Ministry was that the weights were understated in the catch landing returns, or in the purchase invoices, on each occasion as charged, and that this was established by comparing the entries in the catch landing returns, or the purchase invoices, with what was recorded in other records, including records of sales by Poseidon of fish that it had received as the fish receiver.

[9] There were two limbs to Mr Kim’s defence. He contended that the prosecution evidence was insufficient to establish the alleged falsity of the documents beyond reasonable doubt. He also advanced what may be called an affirmative defence and one which may be described as the main plank of his defence. He did not invoke the statutory defence of an absence of fault. He positively contended that the weights entered in the catch landing returns and the purchase invoices were accurate. He gave evidence in support of this contention. In

_{the course of this evidence he produced documents which he said established that the}

2. A director and shareholder of that company was Mr Danny Head. Mr Head gave evidence for the Ministry and Mr Kim relied on some of that evidence on this appeal.

catch landing returns and the purchase invoices were accurate. The Judge referred to these as “the exculpatory documents”. These documents were produced for the first time by Mr Kim in the course of his evidence. The Judge concluded that these documents had been fabricated by Mr Kim after the event and also concluded that he could not rely on other evidence of Mr Kim. These matters are discussed more fully below.

Outline of the grounds of appeal

[10] Six grounds of appeal were advanced in Mr Kim’s written submissions. One of these (the fifth) was abandoned by Mr Kim’s counsel, Mr Wiles, during the hearing.

[11] In broad outline, the five remaining grounds were:

(a) Ground 1: The Judge’s assessment of the Ministry’s evidence of the weight of fish was superficial and should not have been accepted as readily as it was.

(b) Ground 2: The Judge’s evaluation of evidence favourable to Mr Kim effectively involved application of a standard of proof less than proof beyond reasonable doubt.

(c) Ground 3: The Judge failed to take into account evidence favourable to Mr Kim from some other witnesses.

(d) Ground 4: The Judge was wrong in his finding that the exculpatory documents produced by Mr Kim had been fabricated by Mr Kim and in rejecting other evidence from Mr Kim.

(e) Ground 5: Points were made, effectively expanding on earlier submissions, that there was evidence which demonstrated that the entries in the catch landing returns and purchase invoices were not accurate. There were some separate arguments, including one

directed to an absence of direct evidence relating to disposal of fish by

Mr Kim.

The District Court decision on conviction

[12] The defended hearing before Judge Rollo took 13 days. The Judge reserved his decision. His reasons for finding Mr Kim guilty on all 13 charges are comprehensive. Because of this, and because the arguments advanced for Mr Kim on appeal were fairly wide ranging, it will assist to provide a reasonably full summary of the relevant parts of Judge Rollo’s judgment.

The Judge’s broad approach

[13] The Judge began by providing a reasonably detailed summary of the relevant provisions of the Fisheries Act and the requirements in relation to record keeping. He provided a comprehensive summary of the charges. He correctly directed himself to the effect that each offence is one of strict liability so that the Ministry was not required to prove deliberate omission or deceit by Mr Kim. He reminded himself that the onus was on the Ministry as informant to prove each charge beyond reasonable doubt. Given the fact that Mr Kim gave evidence in his own defence, and produced the exculpatory documents, the Judge reminded himself that there was no onus on Mr Kim to disprove any element of any of the charges or otherwise to prove his innocence.

The affirmative defence and its relationship to the onus of proof

[14] The Judge set out the essence of what may be called Mr Kim’s affirmative

defence as follows:

[26] Mr Kim’s defence is that the catch landing returns and the purchase invoice documentation he completed for Poseidon were essentially accurate in each case. He says that the exculpatory documentation which he has provided to the Court from his office records, which relate to the respective charges against him, is genuine and substantially accurate.

[27] He further says that it was created by him in each case on the day referred to on each document. Although [not]³ disclosed to the informant

³ I have inserted the word “not” which is clearly what the Judge intended to have recorded. The

omission is simply a typographical error.

until produced by him in this hearing. Mr Kim says that this documentation, which he says is genuine, is a complete answer to the informant’s charges against him.

[15] The Judge then recorded, as a statement of the approach he was applying to Mr Kim’s evidence, the conventional tri-partite direction given to a jury required to assess evidence given by a defendant. The Judge discussed Mr Kim’s exculpatory documents, and his other evidence, later in his judgment.

[16] After dealing with some matters which are not relevant on this appeal, there is a section headed “issues of proof”. This was directed to matters bearing on the proper assessment of the Ministry’s evidence if the Judge rejected Mr Kim’s defence. The Judge explicitly recognised that there were two distinct limbs to Mr Kim’s defence; that, in addition to his affirmative defence, he contended that the Ministry had failed to prove falsity beyond reasonable doubt and that, in support of this contention, Mr Kim relied on evidence from some prosecution witnesses.

[17] Mr Kim’s defence, and a number of the arguments advanced on this appeal, were to the essential effect that the Ministry had failed to establish the actual weights of fish with accuracy. In this regard the Judge said:

[55] The essence of the charges against Mr Kim is the informant’s allegations that Mr Kim created false and inaccurate catch landing returns and purchase invoices in his role as a director of Poseidon. The respective charges refer to identified species and weights of landed fish relating to the different fishing trips undertaken and allege discrepancies in the true weights and/or species.

[56] It is not necessary for the informant to satisfy me precisely, beyond reasonable doubt, of each and every weight alleged. That would seek perfection in an imperfect process and is not required in this case. The requirement with each charge is for the informant to prove a false return or purchase invoice. I take the view, therefore, that the informant must satisfy me, to a standard of general accuracy only, of the weight for any species.

[57] By way of illustration, if the charge refers to a discrepancy of 100 kgs of a particular species of fish (either in a catch landing return or a purchase invoice) and the proof can only establish a discrepancy of, say, 85 kgs of that species, that would nevertheless be sufficient to constitute evidence, beyond reasonable doubt, of a false or inaccurate recording in the mandatory documentation. Only where the margin between the alleged weight and the proven weight is much less, such as to reasonably challenge reliability, will such evidence fail to prove that element beyond reasonable doubt.

[58] This because, as Mr Kim has said in his evidence, the process of assessing the accurate weight of fish taken by a commercial fisher is subjective and can be difficult. The assessment process must be considered as a whole, in this regard.

[18] The Judge expressly recognised, and he discussed, other possible causes of inaccuracy in records. He then said:

[69] It is for this reason that precise proof of each and every estimated weight alleged is not possible or required in this case, rather clear proof, beyond reasonable doubt, of the completion of a return or purchase invoice that is materially false or inaccurate in each case. By way of clarification, I emphasise that the weights referred to in each CRN or charge are a relevant guideline which, subject to the limitations on strict accuracy that I have referred to, should nevertheless be the subject of general proof.

[70] Sensibly, both the informant and the defence have run the case essentially on this basis, although I reiterate that Mr Kim specifically identified, on a number of occasions during the course of his evidence in his own defence, the issue of unreliability of estimates of fish weights.

[19] The Judge recorded, and by doing so made clear that he took into account, various points made by Mr Kim as to reasons why there can be variations in weight estimates. The Judge concluded this section with the following observation:

[74] I take particular note of Mr Kim’s evidence in regard to his criticisms of weight estimates. What he had to say struck me as logical and in many instances apparent from the items of documentation to which he drew specific attention.

Mr Kim’s criticism of prosecution witnesses

[20] Mr Kim, in the District Court, challenged the evidence of six witnesses from the fishing industry who had been called by the prosecution. The evidence of these witnesses, and the Judge’s conclusions, were the subject of submissions on appeal. An outline of the Judge’s conclusions is therefore appropriate:

(a) Mr Signal (Western Bay Seafoods), Mr Head (D & D Pacific Ltd, which purchased the Sandra Kaye), and Mr Buchanan (purchaser of a fish and chip business from Mr Kim): the Judge was satisfied that the evidence of these witnesses was “substantially truthful and accurate in each case and that what each has said has not been tainted by any

unfair or inappropriate bias against Mr Kim, Poseidon or Mr Fish”.

(Mr Fish was a retail outlet owned by Mr Kim.)

(b) Mr Mitchell and Mr Nicholls, who were each skipper of Jay Debra at different times: the Judge recognised that “some degree of residual bitterness” of each of these witnesses towards Mr Kim “may have coloured their separate evidence”. He said:

[83] ... However, I accept parts of what they each had to say about some of the documentation that they were individually responsible for and why they may have altered figures on their own or Mr Kim’s initiative. I am satisfied that not all of their testimony can be discounted as unreliable.

(c) The remaining prosecution witness challenged by Mr Kim was Mr Lee. Mr Lee’s evidence was called, in considerable measure, to challenge statements made by Mr Kim to fisheries officers intended to explain discrepancies between the relevant documents. Mr Kim contended, in effect, that differences in the weight of fish were accounted for by fish supplied to him by Mr Lee in retail transactions separate from transactions required to be recorded in catch landing returns or purchase invoices. The Judge’s assessment of Mr Lee’s credibility, and of the reliability of his evidence, is extensive. In the course of this the Judge analysed the evidence about the origin of the exculpatory documents. This part of the judgment is summarised under the next sub-heading.

The Judge’s assessment of Mr Lee, his evidence, and Mr Kim’s affirmative defence

[21] The Judge began with the evidence of Mr Lee. Mr Kim, contending that Mr Lee had sold him fish which accounted for some of the discrepancies, provided documentary evidence at the hearing which he said was a contemporaneous and accurate record of those transactions. These are the exculpatory documents. Mr Lee said he never sold fish to Mr Kim or his companies; that he only ever purchased from him. He said he was approached by Mr Kim to falsify documents. Mr Kim denied the approach and denied falsifying the documents. The Ministry argued that

an email from Mr Kim was clear evidence of an attempt by Mr Kim to get Mr Lee to falsify documents because it specified the dates, species and quantities of fish that were the basis of the criminal charges. Mr Kim said the email was sent at Mr Lee’s request to describe the charges he was facing. Mr Kim also said Mr Lee was biased as he owed him money.

[22] The Judge recorded reservations about Mr Kim’s credibility and the reliability of his evidence for a number of reasons and in respect of a range of evidence. He nevertheless concluded that he was satisfied that Mr Kim had asked Mr Lee to falsify documents and that Mr Lee had not supplied fish to Mr Kim. The Judge set out his reasons at considerable length.

The exculpatory documents

[23] The Judge’s discussion of the conflict between Mr Kim’s evidence and Mr Lee, and his conclusions on it, followed the Judge’s equally extensive discussion of the central question as to whether the exculpatory documents had been fabricated by Mr Kim after the event. As earlier recorded, the exculpatory documents were produced by Mr Kim for the first time in the course of his evidence. The Judge permitted the Ministry to call rebuttal evidence. This related in substantial measure to searches that had been undertaken by Ministry officers of Mr Kim’s home. The essence of Mr Kim’s evidence was that the exculpatory documents had been there all the time, but in what he called a “secret room”. After weighing the conflicting evidence, the Judge concluded that the documents had not been in Mr Kim’s home and there was no suggestion from him that they had been anywhere else. The Judge also considered evidence from other documents and circumstances which indicated that the exculpatory documents had been fabricated after the event. As with all of the central issues in the prosecution, the Judge’s discussion of this part of the case was extensive. It is for these reasons he concluded that the documents had been fabricated by Mr Kim. He separately weighed Mr Kim’s other evidence and for reasons fully recorded he also concluded that he could not rely on a substantial part of it.

[24] One part of Mr Kim’s further evidence that the Judge rejected concerned conflict of Mr Kim’s evidence with that of a prosecution witness, Mr Signal. Mr Kim said, much as he had said in relation to Mr Lee, that he had purchased fish from Mr Signal and these purchases readily explained some of the weight discrepancies. Mr Signal said he only supplied cut fish to Mr Kim’s fish and chip shop, not his fishing and supply businesses. Mr Kim challenged Mr Signal’s credibility based on a business debt Mr Signal owed.

[25] The Judge’s conclusion of this section of his judgment, before proceeding to consider the prosecution evidence, was as follows:

[178] The end result of this assessment of the evidence of Mr Kim is that I find that he has been continually untruthful in a number of critical respects, as I have identified, in what he has said in his evidence. I find his evidence to have been quite unreliable and I put it to one side as unworthy of belief.

[179] I remind myself now of the need to avoid jumping to a conclusion that simply because Mr Kim has told me a series of deliberate lies that he must be guilty of the charges before me. I must turn now to look at the prosecution evidence that I accept to determine whether I am satisfied beyond reasonable doubt of the proof against Mr Kim.

Prosecution evidence

[26] The Ministry’s case was based on a comprehensive analysis of a range of documents relating to each of the 13 fishing trips in question and the subsequent movement of fish from the wharf through to third parties.⁴ The Ministry’s documentary evidence for each trip was presented by Fisheries Officer Gleeson.

[27] The Judge commenced this part of his judgment with the following observations:

[180] The matter could be dealt with succinctly and without the necessity of a comprehensive review of the extensive evidence presented by the informant. That evidence was considered at length and in significant detail in both the prosecution and the defence cases, and in the close cross- examination of Mr Gleeson, in particular, by Mr Owers, on Mr Kim’s behalf. The paper trail has been followed and retraced several times. This is not a criticism. It merely notes the thoroughness of counsels’, and, indirectly, my

⁴ Each trip, relating to each of the 13 charges, was designated by the initials of the fishing vessel and the fishing trip number. For example, the charge earliest in time related to a fishing trip by the Sandra Kaye, which was the sixth trip in the sequence. This was referred to in evidence and in the judgment as “SK-06”.

consideration of the evidence at the hearing. I have also had the opportunity to further review the trial evidence for both the informant and the defence and the exhibits produced by each during the reserve of this judgment.

[28] The Judge noted the methodology adopted by the investigators, and the range of documents assessed and put in evidence. He reminded himself of what he had earlier discussed in some detail: that there will be some expected discrepancies between recorded quantities and weights and those established by accurate measurement or weighing. The Judge then observed that “there nevertheless should be reasonable consistency” and said, in effect, that if there was not there would be proof of inaccuracy establishing the charge. The Judge here was clearly referring back, by implication, to his conclusion that precise proof of every weight, and in

particular those in the charge, was not required.⁵

[29] Notwithstanding the Judge’s conclusion that the prosecution evidence, which he had identified and discussed in those introductory paragraphs, was sufficient, without further analysis, to establish the charges, he nevertheless proceeded to consider each of the charges and the evidence in support of each charge. This is a comprehensive survey. It extends over 103 paragraphs.

[30] The Judge’s analysis commenced with trip SK-06. He said that the analysis of the evidence for this trip would “serve as an exemplar” for the other trips – that is to say, the other charges. In consequence, to an extent, the evidence for SK-06 is considered in more detail than the evidence for the trips leading to the other charges. There is nevertheless reasonably detailed consideration of numbers of the other trips.

Relevant appeal principles

[31] The appellate court is required to come to its own conclusions, including conclusions as to what evidence should be accepted and the weight to be attached to it.⁶

[32] The principles do not require elaboration save in respect of two points. The first is of general application. The appeal court must be persuaded that the decision

⁵ _{Above at [17]-[18].}

⁶ Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141 at [16].

under appeal is wrong.⁷ The second point is of particular relevance, directly or indirectly, to many of the arguments advanced on this appeal. Although the appellate court is not required to defer to the decision of the first instance court, the appellant court should apply “the ‘customary’ caution appropriate when seeing witnesses provides an advantage because credibility is important”.⁸

[33] The “customary caution” where credibility is important, which is central to

much of this appeal, was discussed by the Court of Appeal as follows:⁹

In that class of case the appellate Court makes the customary allowance for any advantages that the Court or tribunal appealed from may have had in seeing and hearing the witnesses. ... In practice an appellate Court which has not seen and heard the witnesses is slower to disturb a discretionary decision of a Court that has had that advantage; stress is laid on the need to show that the decision under appeal was wrong.

Discussion

[34] I will discuss the five grounds of appeal under separate headings for each ground. The broad approach is to outline the submissions on appeal for Mr Kim and record my conclusions. I have taken account of relevant submissions of Ms Longdill for the Ministry. The outline of arguments for the appellant is reasonably comprehensive, but is not intended to pick up every point made. It may also be noted, in this general introduction, that there is a reasonable degree of overlap in points raised, or submissions made, in support of different grounds.

Appeal ground 1: the Judge’s assessment of the weight of the fish

[35] A number of points were made directed to the propositions that the Ministry’s evidence was insufficient to establish the alleged discrepancies of weight beyond reasonable doubt and that the Judge’s assessment of this evidence was superficial. Mr Wiles points for Mr Kim may be summarised as follows:

_{(a) The Judge failed to undertake a detailed assessment of each charge.}

⁷ _{Austin, Nichols & Co Inc v Stichting Lodestar, above n 6, at [13]}

⁸ _{Austin, Nichols & Co Inc v Stichting Lodestar, above n 6, at [13].}

⁹ Shotover Gorge Jet Boats Ltd v Jamieson [1987] 1 NZLR 437 (CA) at 441 per Cooke P.

(b) The Judge took the evidence for one charge as an example for all and should not have done so.

(c) The Judge, having rejected Mr Kim’s evidence, then wrongly proceeded on the basis that the Ministry’s evidence should be accepted.

(d) There were errors in respect of two charges.

(e) The Judge should not have relied on evidence of weights from the

Auckland Fish Markets because these were not official records.

[36] The points put at the forefront of the submissions on this ground are not correct. Contrary to the submissions, the Judge did undertake a detailed assessment of each charge, as the earlier summary makes clear. And the Judge did this notwithstanding his observation, following his extensive survey of other evidence, and rejection of Mr Kim’s affirmative defence, that the “matter could be dealt with succinctly and without the necessity of a comprehensive review of the extensive

evidence presented by the informant”.¹⁰ There is considerable force in the Judge’s

observation. As discussed below, when dealing with appeal ground 3, in providing reasons a trial Judge is not required to record his conclusion on every matter that was put into contention.¹¹

[37] There was no error by the Judge in using one of the charges as an example for the other charges. This did not result in the Judge’s failing to analyse the essential evidence for the other charges.

[38] Mr Wiles’ third point, noted above at [35](c), was directed to the following statement by the Judge:

[205] Again, having rejected Mr Kim’s evidence, and his reported documentation as either untruthful and/or unreliable, I find that Mr Gleeson’s analysis is substantially correct, sufficient to satisfy me, beyond reasonable doubt, of the proof of the charge relating to trip SK-08 (CRN11070501858). I therefore find that charge proven.

¹⁰ _{At [180].}

¹¹ See below at [58] and [59].

[39] There is, perhaps, some superficial ambiguity. At a stretch this statement might be read as meaning that the conclusion in relation to Mr Gleeson’s analysis was justified because Mr Kim’s evidence had been rejected. However, it is quite clear, if not from the sentence itself, then from the judgment as a whole, that this was not a line of reasoning. It was simply descriptive of the sequence in which the Judge had dealt with the evidence. He dealt with Mr Kim’s evidence, including the exculpatory documents, before proceeding to consider the Ministry’s evidence, with that of Mr Gleeson being the critical evidence.

[40] Under appeal ground 2 a submission was also made, by reference to [185] and [186] of the judgment, that the Judge had adopted a lower standard of proof because he was satisfied if estimates of weight were “sufficiently accurate”. I am satisfied that there was no error by the Judge in this regard, and for reasons already outlined. This was effectively conceded by Mr Wiles in the course of his oral submissions. He accepted that the Ministry did not have to prove the true weight in each case beyond reasonable doubt. This was also consistent with the way in which

Mr Kim’s counsel for the trial (not Mr Wiles) had run the case.¹²

[41] Mr Wiles’ fifth point was that documents from the Auckland Fish Markets, relating to fish supplied by Mr Kim, should not have been relied on because they were not official records. The distinction sought to be drawn was between those documents and ones prescribed by the Act. I do not agree with the submission. The question is whether the Auckland Fish Markets’ documents constituted evidence that could be relied on. This did not depend upon whether they were documents prescribed by the Act, but on matters of proof. There was, in fact, no challenge to the reliability of this evidence. The Judge was justified in relying on the evidence contained in the documents.

[42] The remaining points in support of this ground were in large measure directed to matters of detail which do not demonstrate in any material way that the Judge was in error in his overall conclusion on each charge. Ms Longdill described a number of submissions, under this appeal ground and other appeal grounds, as being directed to

_{matters of minutiae. I agree.}

¹² See above at [18].

[43] The reason for my conclusion is that I agree with the Judge’s approach, earlier recorded, as to what was required by way of proof of weights for each charge in order to establish the charge beyond reasonable doubt. This point warrants elaboration because it underpins my overall conclusion that each of the charges was established beyond reasonable doubt. What the Judge had to determine, on each charge, was that the record made by Mr Kim was “false”.

[44] Because the offence is one of strict liability, it was enough for the Ministry to establish beyond reasonable doubt that the records in each case were incorrect. As already recorded, this did not require proof of precise weights. The essence of the Judge’s approach was that what the Ministry had to establish beyond reasonable doubt was that the discrepancy was so wide that it could not be accounted for by different weighing methods, human error, and a range of other variables fully discussed by the Judge. I am satisfied the Judge was entirely justified in approaching the matter of proof in this way.

[45] Mr Kim, at least in most instances, did not directly challenge the accuracy or reliability of independent sales records which were an important part of the Ministry’s proof. What Mr Kim sought to do was to provide different explanations intended to account for what otherwise appeared to be discrepancies – such as his evidence of purchases by him from other parties, such as Mr Lee. The credibility of that defence was a different matter.

[46] The Judge was therefore justified in coming to the conclusion that the catch landing returns and purchase invoices completed by Mr Kim were false beyond reasonable doubt.

Appeal ground 2: the standard of proof adopted by the Judge

[47] Mr Wiles’ summary of this ground of appeal was directed to the standard of proof, but the expanded submission was also directed to what amounted to credibility findings by the Judge in relation to a number of prosecution witnesses. The submissions directed to the standard of proof, and some related submissions that were advanced under this heading, have been dealt with in my discussion of appeal ground 1.

[48] Mr Wiles further submitted that there were errors in the Judge’s credibility assessment of four prosecution witnesses, his weighing of evidence of those witnesses, and in what was submitted to be selectivity in relation to some of the evidence of some of the prosecution witnesses. It was further submitted that the Judge was in error because he failed to take account of evidence of one prosecution witness, Mr Head, which was said to have confirmed the accuracy of all five of Mr Kim’s purchase invoices which were alleged to be false.

[49] There was a sustained challenge on appeal to the evidence of Mr Lee and to the Judge’s acceptance of part of this evidence. I am satisfied there was no material error by the Judge in his approach to Mr Lee as a witness and to Mr Lee’s evidence. I am also satisfied there the Judge was entirely correct in his conclusion that the exculpatory documents had been fabricated after the event by Mr Kim, to conclude that Mr Kim had lied, and to reject other evidence from Mr Kim.

[50] The Judge did not accept Mr Lee’s evidence as proof of the charge against Mr Kim, but as evidence preferable to that of Mr Kim in relation to Mr Kim’s positive defence and Mr Kim’s exculpatory documents. In any event, the substantial basis for the Judge’s conclusion that the charges were positively established beyond reasonable doubt was not dependent on Mr Lee’s evidence. This comes back to the Judge’s conclusion, which I consider to have been entirely justified, that Mr Kim fabricated the exculpatory documents and that other evidence should be rejected. There was in fact ample foundation to reject all of Mr Kim’s evidence on the matters bearing on the Ministry’s primary evidence even if there had been no evidence from Mr Lee.

[51] The challenge to the Judge’s assessment of the evidence of other witnesses was broadly similar in nature to the challenge in respect of Mr Lee and his evidence; in essence, notwithstanding reservations expressed by the Judge as to credibility, or at least reliability, the Judge did accept some evidence from these witnesses.

[52] My conclusions in respect of these submissions are similar to those in respect of the submission relating to Mr Lee. The Judge did not have to be satisfied beyond reasonable doubt in relation to the evidence of each witness, whether or not it was a

witness in respect of whom the Judge had expressed some reservations, either as to credibility or reliability. The Judge’s task was to assess the value of the evidence of each witness which the Judge considered provided assistance to him in reaching relevant conclusions. This was an assessment to be made in the context of all of the other evidence, and there was a substantial amount of it, including a lot of documentary evidence. With all of these witnesses the Judge was required to undertake what, in some respects at least, amounted to a carefully nuanced assessment of each witness in order to determine the extent to which particular pieces of evidence from each witness could be taken into account. Having considered Mr Wiles’ submissions in the light of the Judge’s approach and the relevant evidence, I am satisfied that there was no error by the Judge.

[53] I note that Mr Kim sought to adduce new evidence in support of, in particular, the challenge to Mr Lee’s evidence. I held that this was inadmissible because it was not fresh. I also considered that the authenticity of a new document Mr Kim sought to introduce was doubtful.

[54] There was a different submission under the ground 2 heading relating to evidence of Mr Head, one of the owners of the company that purchased the Sandra Kaye from Mr Kim. The submission was that Mr Head’s evidence confirmed that all five of Mr Kim’s purchase invoices, the subject of the five purchase invoice charges, were accurate. This was said to be the only inference possible from several passages of evidence. Having read the evidence I am satisfied that Mr Head’s evidence is not capable of bearing the inference Mr Wiles contends for.

Appeal ground 3: failure to take account of evidence favourable to Mr Kim

[55] Mr Wiles submitted that evidence from Mr Brown (who had been called by the Ministry) and Mr Clark (called by Mr Kim) supported Mr Kim’s case and rebutted, or at least cast doubt on, evidence from other prosecution witnesses, especially Mr Nicholls and Mr Mitchell.

[56] I am satisfied that no appealable error was established in this regard. Neither the evidence of Mr Clark, nor that of Mr Brown, on which Mr Kim relied has the force, as supportive of Mr Kim’s case, that Mr Wiles contended for. To the extent

that the evidence challenged the reliability of evidence of Mr Nicholls or Mr Mitchell I am satisfied that the Judge was cautious in his weighing of the evidence of Mr Mitchell and Mr Nicholls, even though he did not, except in one respect, refer to the evidence of Mr Clark or Mr Brown.

[57] Beyond these considerations, directed to the particular pieces of evidence, there is a point of general principle applying to these submissions, and to numbers of submissions made in support of other grounds. There is no appealable error by a Judge simply from a failure to refer to the evidence of a particular witness, let alone from a failure to refer to particular pieces of evidence from a witness. The same applies to arguments for a party. A Judge giving reasons is not required to canvas every matter.

[58] The point was discussed by the Court of Appeal in R v Allen as follows:¹³

[18] The present case involved a defended hearing where conflicting accounts of events were presented. It is accepted that it was necessary for the Judge to give reasons. The question that arises is whether the findings and the content of the reasons given were sufficient.

[19] Numerous cases both in New Zealand and overseas have discussed the required content of reasons where a duty to give reasons arises. It is widely accepted that there is no obligation on a trial judge to address expressly every point that arises in a case. What is required will depend upon the particular circumstances.

[20] Turning first to the decisions of this Court: in R v Awatere Woodhouse P commented that the proper question to be asked is whether reasons are given that can “sensibly be regarded as adequate to the occasion” (at 649); in R v Atkinson [1984] 2 NZLR 381 Hardie Boys J said that “how fully expressed [reasons] should be will depend on the nature of the individual case”; and in R v Connell [1985] NZCA 34; [1985] 2 NZLR 233, Cooke J said at

237:

To require the Judge to set out in writing all the matters that he has taken into account and to deal with every factual argument would be to prolong and complicate the criminal process to a degree which Parliament cannot have contemplated. There are cases where a point or argument is of such importance that a Judge's failure to deal expressly with it in his reasons will lead this Court to hold that there has been a miscarriage of justice. A demonstrably faulty chain of reasoning may be put in the same category. But it is important that the decision to convict or acquit should be made without much

¹³ R v Allen CA159/99, 27 July 1999.

delay. Careful consideration is an elementary need, but not long exposition.

[21] The position in Canada is similar: see R v Burns (1994) 89 CCC (3d)

193 and R v R (D) (1996) 107 CCC (3d) 289. See, too, the recent decision in the Privy Council, Stefan v General Medical Council [1999] UKPC 10; [1999] 1 WLR 1293.

[22] Quite plainly a trial judge is expected to turn his or her mind to the elements of the offence and to any tenable defences that the accused may raise. Whether the Judge has made adequate findings and given adequate reasons is a matter of assessment in the particular context having regard to the issues arising.

[59] In R v Connell, one of the cases cited above in Allen, the Court of Appeal also said:¹⁴

... in general no more can be required than a statement of the ingredients of each charge and any other particularly relevant rules of law or practice; a concise account of the facts; and a plain statement of the Judge's essential reasons for finding as he does. There should be enough to show that he has considered the main issues raised at the trial and to make clear in simple terms why he finds that the prosecution has proved or failed to prove the necessary ingredients beyond reasonable doubt. When the credibility of witnesses is involved and key evidence is definitely accepted or definitely rejected, it will almost always be advisable to say so explicitly.

[60] In my respectful opinion the Judge more than amply met the obligation on him to provide adequate reasons for convicting Mr Kim on all 13 charges.

Appeal ground 4: the rejection of Mr Kim’s exculpatory documents and other evidence

[61] Mr Wiles acknowledged in his oral submissions, when he got to the written submissions under this heading, that the fourth ground of appeal to an extent duplicated some of the contentions in support of the preceding ground. That is correct. An example was a further submission that evidence of Mr Clark, Mr Brown and Mr Head in effect confirmed the authenticity of some of Mr Kim’s exculpatory documents. The evidence relied on does not have that effect. The submissions had a

_{different focus but it is not necessary further to address them.}

¹⁴ R v Connell [1985] NZCA 34; [1985] 2 NZLR 233 (CA) at 238.

[62] The central point of the submissions for Mr Kim were that the Judge was wrong to conclude that the exculpatory documents were fabricated; at worst from Mr Kim’s point of view there was reasonable doubt on the question of authenticity.

[63] The Judge’s reasons for his conclusion that the exculpatory documents were fabricated were earlier set out in reasonable detail because of the importance of this question. I am satisfied that the Judge’s conclusion was correct. The evidence that the documents were not in existence when Mr Kim was first interviewed and his office was searched is compelling. Also as earlier noted there was other evidence supporting the conclusion that the documents were not genuine.

[64] There is no other evidence giving rise to a reasonable doubt as to whether the documents had been created at the times covered by the charges against Mr Kim. I have already referred to the fact that evidence of other witnesses, such as Mr Head, Mr Clark and Mr Brown, does not provide any independent support for Mr Kim’s contention as to the authenticity of the documents. Mr Kim’s contentions in this regard are otherwise dependent upon his own evidence in respect of documents created by him. None of this comes close to raising a reasonable doubt in respect of the clear evidence of the fisheries officer, Mr Scholtens, who searched the room where Mr Kim said the documents were stored and who did not find them; or in respect of the other types of evidence relied on by the Judge.

[65] The Judge also concluded that he could “not accept much of [Mr Kim’s other] evidence in his own defence as truthful or reliable”.¹⁵ There was no error by the Judge in that conclusion. It was justified, at least in substantial measure, by the conclusion that the exculpatory documents were fabricated. However, the Judge assessed the remainder of Mr Kim’s evidence by reference to matters beyond the fabricated documents. There was a careful assessment by the Judge of this other evidence, Mr Kim’s and that of other witnesses, justifying his rejection of Mr Kim’s

_{evidence in his own defence.}

¹⁵ At [156].

Ground 6: explanations for discrepancies: absence of direct evidence from the

Ministry

[66] The submissions under this heading covered three separate points.

[67] The first related to fish received by Mr Kim from Mr Head as the skipper of Sandra Kaye. The submission for Mr Kim was that there was evidence that weight differences relied on by the Ministry were explained by the fact that some fish were returned to Mr Head.

[68] The submissions on this point do not establish error by the Judge. Mr Head’s evidence is insufficient to provide confirmation of return of fish to him.¹⁶ It was submitted that, because there is the difference in the weights of the fish, this factor “should have proved that [Mr] Head did receive returned fish”. The argument begs the question.

[69] This leads to the third and main point in response to the argument. There was a substantial body of other evidence adduced by the Ministry, through Mr Gleeson, supporting the contention of under recording by Mr Kim. All of this evidence, for all of the relevant charges, was considered with care by the Judge for each charge, as earlier recorded. I am satisfied the Judge came to the correct conclusion.

[70] The second, and distinct, point was directed to the Ministry’s evidence that actual sales by Mr Kim were of weights of fish materially in excess of weights recorded in the catch landing returns or purchase invoices in question. Mr Kim’s argument here was that differences were accounted for by fish purchased by him from third parties, and therefore not part of the fish caught on one of the relevant fishing trips by Sandra Kaye or Jay Debra. The argument came back, by a different route, to submissions made in support of grounds earlier dealt with; for example, Mr Kim’s contentions that he had purchased fish from Mr Lee and his reliance on some of the exculpatory documents to support the argument. The Judge was justified in rejecting Mr Kim’s evidence, and the arguments based on other evidence, for reasons

_{already recorded.}

16. Particular reliance was placed on the cross-examination of Mr Head at 606-609. This evidence does not support the proposition made in reliance on it.

[71] The third and final point under this heading was also directed to part of the Ministry’s proof which compared documentary evidence of actual sales by Mr Kim with the weights of fish recorded in the documents which were the subject of a charge. With some of the charges the Ministry was able to provide direct evidence of actual sales for part only of the total weight in question. An example was the evidence of Mr Gleeson on fishing trip JD-30. I am satisfied that there was no error by the Judge in this regard. The Judge was well aware of the absence of direct proof accounting for disposal by Mr Kim of all of the fish. Proof to that extent was not required to establish the charge.

Conclusion on appeal against conviction

[72] I am satisfied that all 13 of the charges against Mr Kim were established beyond reasonable doubt. The appeal against conviction is dismissed.

Appeal against sentence

[73] The maximum penalty for each offence was a fine of $250,000. Mr Kim was sentenced to six months community detention of 12 hours a day, 400 hours community work and a fine of $50,000, and he was ordered to pay costs of

$132.89.¹⁷

[74] Mr Kim contends that the sentence was manifestly excessive. At the heart of that contention is a submission that a fine should not have been imposed in addition to the community detention and community work.

The reasons for sentence

[75] The Judge noted that the total sum Mr Kim avoided paying by producing the false documents was $97,504.93. He said that although the financial benefits to Mr Kim were not as high as in some cases, there was “a serious and prolonged pattern of

_{dishonest offending”.}

¹⁷ Ministry of Primary Industries v Kim DC Tauranga CRI-2011-070-4994, 24 April 2013.

[76] Mr Kim was declared bankrupt approximately two months before the sentencing. On the same date Poseidon Pacific Ltd was put into liquidation. Mr Kim produced an affidavit for sentencing for the purpose of establishing that he was not in a financial position to pay a fine. Mr Kim said in his affidavit that he had no assets. He said that he was unemployed, but seeking employment, and that he was living with his son.

[77] There was evidence from a fisheries officer who is a forensic accountant. He provided evidence from which, it was submitted, inferences could be drawn that Mr Kim had transferred money from New Zealand to Korean bank accounts and that Mr Kim was at least one of the beneficiaries of a Korean account. The Judge noted that this evidence indicated that money belonging to Mr Kim and moved to Korea exceeded $275,000, and could have been at least double that sum. There was evidence of transfer by Mr Kim from an account in New Zealand to an account in Korea in the name of Mr Kim’s sister of a sum of $332,000. This was the day after sentencing was initially scheduled.

[78] The Judge assessed Mr Kim’s culpability as being at “a high level”. He

explained his conclusion as follows:

[22] ... As I have said, this was a prolonged, orchestrated pattern of dishonesty by you to try and circumvent the requirements of the Fisheries’ laws. It involved your altering and amending a considerable number of documents, some, I concede, in a justified way, but many in a way which was patently false and dishonest and intended either to facilitate your dishonest offending or to conceal it.

[23] You have also clearly created false documents to endeavour to justify and cover up your offending. That goes to the assessment of culpability and puts you, in my view, clearly in the high culpability range.

[79] By reference to Ministry of Agriculture and Fisheries v Chang¹⁸ the Judge assessed seven factors relevant to sentencing for offences of this nature. No issue is taken on appeal with the Judge’s assessment.¹⁹ The Judge recorded the absence of any previous convictions as the only mitigating circumstance and no issue was taken

_{with that conclusion. The Judge took account of the relevant purposes and principles}

¹⁸ _{Ministry of Agriculture and Fisheries v Chang [1991] DCR 429 (DC).}

¹⁹ See the sentencing notes at [24]-[25].

of sentencing and applied those appropriately to the circumstances of this offending and having regard to relevant purposes of the Fisheries Act.

[80] On the question of a fine the Judge said that, from the information before him, “imposing a substantial fine would be unrealistic”. He referred to a submission from counsel for Mr Kim, in connection with financial circumstances, that Mr Kim committed the offences because his “business activities failed” and because he had lent money to other people. The Judge later returned to the question of the appropriateness of a fine with the following observations:

[31] I consider, therefore, that a substantial fine is unrealistic and would be beyond your apparent means. I still consider that some financial penalty should be imposed because the view which I have, Mr Kim, is that first, you probably have undeclared sources of income. It is hard to say, given to the challenges to your credibility that I found in my reserved decision. Second, you have the capability to earn a good income. You have demonstrated that over your long working life in New Zealand and therefore paying a fine, albeit over a period of time, should not be beyond you if that fine is at an appropriate level.

[81] The Judge, on his earlier assessment of Mr Kim’s culpability as at the high end, had concluded that the range for a fine was between $100,000 and $175,000, having regard to other sentences imposed for offending of this nature. The fine of

$50,000 that was imposed was a fine to be repaid over five years with provision for extension. The community work, of 400 hours, which is the maximum, was imposed in place of the more substantial fine that would have been imposed were it not for Mr Kim’s financial circumstances.

Submissions

[82] The succinct submissions of Mr Wiles, for Mr Kim, were to the essential effect that a fine should not have been imposed in addition to the other penalties given Mr Kim’s financial circumstances. He submitted that the fine imposed could not be reconciled with the Judge’s observations that imposition of a substantial fine would be unrealistic.

Discussion

[83] The appeal against sentence is an appeal pursuant to s 121(3) of the Summary Proceedings Act 1957. In Yorston v Police,²⁰ Andrews J accepted a submission based on R v Shipton,²¹ that the approach to such appeals is as follows:

a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle”.

b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.²²

_{c) It is only if an error of that character is involved that the appeal}

Court should re-exercise the sentencing discretion.²³

[84] If the sentence was within the range that can properly be justified by relevant sentencing principles the High Court should not interfere with the District Court sentence.

[85] In my judgment the Judge was correct to consider the range of the amount of a fine that would have been appropriate if there had been no question of possible impecuniosity and if a fine alone had been imposed. I am satisfied that in those circumstances a fine of between $100,000 and $175,000 would have been

appropriate, as the Judge observed.²⁴ The assessment is not to be made having

regard only to the weight of fish involved or the sums which the offender avoided paying for annual catch entitlements or other liabilities. The assessment of the level of culpability requires consideration of a range of other factors. As I have already recorded there was no challenge to the Judge’s conclusion that Mr Kim’s culpability was at a high level. A fine, as the primary penalty, could have been at least $125,000 to $150,000. A sentence of community detention or community work, or both, could

_{have been imposed in addition to fines within that range, although the length of the}

²⁰ _{Yorston v Police HC Auckland CRI- 2010-404-164, 14 September 2010 at [13]-[15].}

²¹ _{R v Shipton [2007] 2 NZLR 218 (CA) at [138].}

²² _{R v Shipton, above n 21, at [139].}

²³ _{R v Shipton, above n 21, at [140].}

²⁴ See: Ministry of Agriculture and Fisheries v Lima HC Auckland AP 146/93, 26 August 1993; Ministry of Fisheries v Harvey DC Whakatane CRN-1008750039, 16 September 2011; Ministry of Agriculture and Fisheries v Equal Enterprise Ltd [1994] 2 NZLR 473 (HC); United Fisheries Ltd v Ministry of Agriculture and Fisheries HC Christchurch AP78/98, 18 June 1998; and Ashton v Ministry of Agriculture and Fisheries [1994] NZHC 120; (1994) 11 CRNZ 478 (HC).

detention and community work would have been less. Aside from the question of ability to pay, I am satisfied that the sentence imposed, including the fine, was not manifestly excessive.

[86] It is not an error of principle to impose a fine even if the Court is satisfied that the defendant cannot pay.²⁵ In this case there is evidence that Mr Kim can pay, either from funds moved out of New Zealand or from income from employment over the five years that he has to make payment.

[87] I am satisfied that the sentence imposed was not manifestly excessive. In consequence the appeal against sentence is also dismissed.

_{Woodhouse J}

²⁵ Sentencing Act 2002, s 14(1).