The Senior Magistrate found the defendants guilty for fishing within the Tuvalu EEZ without a valid and applicable permit, and were fined USD 200,000 and the forfeiture of all the vessel, fish, gear, equipment, stores and other appurtenances.

Both the Crown and the defendants appealed the Senior Magistrate’s sentence.  

The Crown appealed on two grounds, considering that the Senior Magistrate had erred in law when: (1) awarding less than the mandatory minimum penalty of USD one million as prescribed in section 13(6) of the Marine Resources Act; and (2) interpreting the mandatory minimum penalty as applying only to section 13(6)(c) of the Marine Resource Act. According to Section 13(6) of the Marine Resources Act, anyone who, without a valid and applicable permit, engages in any of the various activities in subsections (a), (b) or (c) will be sentenced to a fine of not less than USD one million.

The High Court of Tuvalu decided to admit the Crown’s appeal and sentenced the defendants to pay the minimum penalty. In this respect the High Court of Tuvalu cited section 27(4) of the Marine Resources Act which provides that where a vessel is sued for entering or remaining within the fishery waters in contravention of any provisions of the Act or other laws of Tuvalu and access agreements, the operator  “the operator of that vessel commits an offence and upon conviction shall be fined not more than $ 1 million.”  Also, the High Court noted that the Senior Magistrate consideration, that because the penalty is only included under section 13(6)(c) it should not apply to section 13(a) and (b), is erroneous. Additionally, the Crown checked the original copy of the Marine Resource Act and pointed out that there was a typographical error in the revised version of the Act, noting that the penalty provision is separate from section 13(a), (b), and (c).  It further noted section 16(1) of the Interpretation and General Provisions Act that “a construction of a written law which promotes the general legislative purpose underlying the provision in question is to be preferred to a construction that does not.”

The defendants filed for appeal on 14 grounds, inter alia  challenging the validity of the charges, the jurisdiction of the Senior Magistrate to try these offences and pass sentence and the validity of the pleas of guilty. The defendants also noted that the sentences were unlawful and excessive and that later, the Senior Magistrate did not have the jurisdiction to order a bond when the defendants sought, on 16 April 2011, to have the vessel released pending the appeal.

The defendants noted that section 13(6) and (7) are not offence provisions and therefore the charges brought against the defendants were not valid. Furthermore, the defendants considered that the section 96(d) and (p) of the Marine Resources Act  should apply instead. The section provides for the Minister’s power to develop regulations for the purposes of carrying out the provision of the Act and to impose penalties for contravention of the regulations of up to six months and fines not exceeding USD 100,000. The High Court of Tuvalu rejected this interpretation, as the definition of an offence in both the Schedule I, section 2(1) of the Constitution,  which states: “a contravention of or a failure to comply with the law of Tuvalu,” and the Section 10 of the Interpretation and General Provisions Act, which states: “a crime, felony, misdemeanor or contravention or other breach of, or failure to comply with, a written law, for which a penalty is provided,” amounts to the fact that what is worded in section 13(6) is indeed an offence. Therefore, section 96(d) and (p) is not applicable in this case, as this section gives the Minister the power to impose penalties only for contraventions and not for offences under the Act.

Furthermore, the defendants considered that section 13(6) of the Marine Resources Act should be read as providing a fine not exceeding USD one million, relying on section 69(1) of the Interpretation and General Provisions Act: “when in a written law a penalty is prescribed for an offence, the offence is punishable by a penalty not exceeding the penalty prescribed.” The Crown in response mentionedsubsection (3):  “where in a written law a maximum penalty and a minimum penalty are prescribed in respect of an offence, the offence is punishable by a penalty not less than the minimum nor greater than the maximum.” The High Court of Tuvalu did not accept the defendants’ challenges.

The defendants also appealed Order LN 2 of 2011 of the High Court by which it gave jurisdiction to the Senior Magistrate to try these offences. The defendants suggested that section 25(3) of the Magistrate Court Act cannot be relied upon to enlarge the jurisdiction of the Senior Magistrate. The High Court cited section 25(3), which states: “Notwithstanding the provisions of the preceding subsections, … the Chief Justice, by  order under his hand and the seal of the High Court, may invest the Senior Magistrate's  Court and any magistrate's court with jurisdiction to try summarily any offence which  would otherwise be beyond its jurisdiction,” and noted that the order was made under this provision and that there had not been any further legislative restriction placed on its scope and extent.

The High Court further rejected the defendants’ appeal regarding the validity of the pleas of guilty, as it relied on the previous grounds which were rejected by the Court.

The High Court of Tuvalu found the defendants guilty but saw the delay of the release of the K Camelia fishing vessel as an added penalty, thus ordered the vessel together with its gear, equipment, stores and ither appurtenances to be returned after the fines were paid, but the fish to be forfeited.