R. v. Chau, 2022 BCPC 282

Citation: R. v. Chau 2022 BCPC 282 Date: 20221116 File No: 15960-1 Registry: Powell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. NGAI PAN CHAU, ZHAO LIANG CHEN AND DA TENG ZHOU ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: A. Switzer Appearing on his own behalf: N. Chau Appearing on his own behalf: Z. Chen Appearing on his own behalf: D. Zhou Place of Hearing: Powell River , B.C. Date of Hearing: October 6, 2022 Date of Sentence: November 16, 2022 [ 1 ] THE COURT: Mr. Chen and Mr. Ngai Pan Chau and Da Teng Zhou, this last October 6 following the trial in this matter, I

[ 1 ] THE COURT: Mr. Chen and Mr. Ngai Pan Chau and Da Teng Zhou, this last October 6 following the trial in this matter, I found each of you guilty of various offences under the Fisheries Act and Regulations . These offences are listed in the eight-count information, number 15960. All of you have a copy of that information and are aware of the specific charges that you faced. [ 2 ] Mr.

Chen, you pled guilty to Counts 1 and 7 of this information, that is, to the offences of possessing rockfish in contravention of the Fisheries Act and Regulations and catching and retaining rockfish, again, in contravention of the Act and Regulations . I stayed Count 7 of the information as it essentially charged for the same offence as Count 1. Still, following the trial of this matter, I found you guilty on Count 2 -- [ 3 ] THE INTERPRETER: Is it all to Mr.

Chen? [ 4 ] THE COURT: Yes. [ 5 ] THE INTERPRETER: Sorry. [ 6 ] THE COURT: The offence of obstructing a Fisheries Officer and Count 3, the offence of making a false statement to a Fisheries Officer. Today, I am sentencing you for three offences under Counts 1, 2, and 3 of the information, all offences pursuant to s. 78(

a) of the Fisheries Act . [ 7 ] Da Teng Zhou, following the trial of this matter, I found you guilty on Count 1 of the information, the possession of rockfish contrary to the Act and Regulations , as well as Counts 2 and 3. As with Mr. Chen, these are the offences of obstruction and making a misleading statement to a Fisheries Officer. [ 8 ] Ngai Pan Chau, I found you guilty after trial of the offences of obstruction and misleading a Fisheries Officer contrary to Counts 4 and 5 of the information as well as the count of possession of undersized lingcod contrary to s. 29(

d) of the British Columbia Sport Fishing Regulations , 1996 -- [ 9 ] THE INTERPRETER: Sorry, the year is 1994, is that -- [ 10 ] THE COURT: 1996. I also found you guilty of possession of rockfish caught contrary to the Fisheries Act and Regulations , the charge in Count 1 of the information. [ 11 ] As each of you know, the Crown seeks a fine for each of these offences. As we discussed in more detail today, each of the fine amounts are substantial, worth far more than any of the fish illegally caught that morning of August 10, 2021.

You will recall the Crown cited a number of cases, authorities as they are often referred to, in which courts faced with similar offences and offenders in similar circumstances have imposed similarly significant fines for one reason and one reason only, and that is that offences under the Fisheries Act , regulatory offences, demand sentences that serve as a lesson not just to the offender, but to others.

Such sentences must serve to make an offender and others think long and hard before they violate fisheries regulations again because they know the consequences will be severe and well out of proportion to any possible benefit that might otherwise have come from illegal fishing activity. [ 12 ] At issue in this sentencing is the amount of fine that this court should impose upon each of you for each of these offences. [ 13 ] The Crown refers to s. 78 of the Fisheries Act which provides that a person convicted of an offence punishable on

summary conviction is liable for a first offence to a fine not exceeding $100,000. The Crown, of course, seeks nothing like this amount in this case, but s. 78 does remind us how seriously Parliament views violations of the Fisheries Act and Regulations . It is a signal not only of Parliament's concern for contraventions of this legislation, but also a reflection, obviously, of the importance of the management of the fisheries resource for all and any concerned. [ 14 ] As you know, the Crown seeks fines in the range of $1,500 to $4,000. [ 15 ] In your case, Mr.

Chen, the Crown seeks fines totalling $8,000 for the three offences on which you have been found guilty. [ 16 ] Da Teng Zhou, in your case, the Crown seeks a fine totalling $6,000 for the two offences you have been found guilty on. [ 17 ] Finally, Ngai Pan Chau, in your case, the Crown seeks a find totalling $9,500 for the four offences on which you were found guilty. [ 18 ] In addition, the Crown seeks a one-year fishing prohibition for each of you and an order that the fishing gear seized by Fisheries Officers be forfeited to the Crown for destruction. [ 19 ] Each of you submit the fine should be much less.

You have all stated that these legal proceedings taking a year or more has caused stress and upset in your lives and those of your family members. You have each assured this court that this experience, long and drawn out as it has been, has taught you a lesson and you will not commit this kind of offence again. [ 20 ] Mr. Chen, you have, as I noted, pled guilty to the over-possession of rockfish. In fact, you testified to having caught most of the rockfish that the Fisheries Officers found on the beach that day.

While I found I tended to agree with the Crown that this admission seemed suspect, even despite the ease with which rockfish can apparently be caught, it ultimately made no difference in that I was completely satisfied that both Mr. Da Teng Zhou and Mr. Ngai Pan Chau were in possession of these rockfish in any event, whether or not they caught them, but you did take responsibility for some of this offending conduct, Mr. Chen, and I have taken that into account in this sentencing. [ 21 ] Mr.

Chen, as the Crown notes, you appeared before this court on sentencing with no criminal record having been licenced to fish consistently since 2014. You are, the Crown submits, the owner of a home in Vancouver, having an assessed value this year of $2.1 million. Since coming to Canada 28 years ago, Mr. Chen, I accept that you have worked hard, as has your wife. Recently, you say your work as a chef in Vancouver has dried up during COVID, and is now sporadic. You seek an order that the amount of fine the Crown

seeks be reduced to take into account your fluctuating income and your family responsibilities and expenses, including school for your children. [ 22 ] In addition, you indicate you would need some time to pay whatever fine this court may order. In respect of the Crown's application for forfeiture of your fishing gear and the one-year prohibition on your fishing, your position, as with Mr. Chau and Mr.

Zhou, is that the fishing gear should be returned, and a fishing prohibition be reduced. [ 23 ] Da Teng Zhou, you too are before this court with no record, having been licenced to fish consistently since 2014 or 2015. You too live in Vancouver and are the owner of a residence there having an assessed value of over $1 million. I appreciate that a home in Vancouver can easily have that value while the homeowner may yet have nothing like that in the way of equity.

The difficulty here, of course, is that I have no idea what equity any of the defendants have in their home, but I know at least some pay a mortgage. [ 24 ] I understand, Mr. Da Teng Zhou, that your wife is in school and, in addition to supporting her and your three daughters, your work in home renovations, you say, has dried up. You seek a reduced fine in the amount of $1,000 plus, as I have noted, the return of your fishing gear which, to you, has sentimental and possibly symbolic value. [ 25 ] Finally, Ngai Pan Chau, you appear before this court with one prior fisheries ticket which you emphasize is old.

You too have been licenced to fish continuously since 2014 or 2015. For the purposes of this sentence, the Crown notes you were fishing in the company of your son, a minor, whom you testified actually caught the lingcod I accept was found in your possession. You are also, the Crown submits, the owner of property in Vancouver having an assessed value of over $1 million. [ 26 ] Ngai Pan Chau, you have stated this property is actually jointly owned with your parents who live with you. Like Da Teng Zhou, you work in home renovations, but are presently not working.

Rather, it appears you have chosen to stay home to care for your father. As I understand your submissions, your wife works out of the home at a sofa factory. In the result, money is tight as, in addition to the normal expenses, you say you are putting two children through university. You ask this court to reduce the fines sought by the Crown substantially in light of all these expenses. [ 27 ] As a general matter, this sentencing, like all sentencing in the criminal context, must comport with the purposes and principles of sentencing set out in s. 718 and 718.2 of the Criminal Code .

The Criminal Code establishes that the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that have one or more objectives.

These objectives include denunciation, deterrence of the offender and others, separating the offender from society where necessary, rehabilitation, repairing harm, promoting a sense of responsibility in the offender, and acknowledging the harm caused to the victim and to the community. [ 28 ] With respect to Fisheries Act violations, the sentencing principles of deterrence and denunciation are of primary importance. The reason why these two objectives are so important in this kind of case is discussed in many decisions. In one such case known as R. v.

Tuan Huu Le , a case involving the sentencing of a fisher for illegal crabbing, Judge Arthur-Leung essentially adopted the reasoning of the court in R. v. Schafhauser at paragraph 12 as follows. It says: The Fisheries Act is regulatory legislation designed to protect and preserve a valuable resource … any contravention of it must be taken seriously. Accordingly, the predominant sentencing consideration must be deterrence both specifically of the accused and generally of other members so the public who are inclined to act in the same manner. That is a typo.

It should read, so, "And generally of other members of the public who are inclined to act in the same manner." Penalties must be sufficiently severe to communicate to the accused that there is a high risk associated with their illegal activities both for the resource they are affecting and to themselves for their conduct … … I note that many of the authorities refer to the fact that a penalty should be more than simply a cost of doing business. In particular, in this instance, that is significant because this is a regulatory statute designed to preserve a valuable resource.

In sentencing on regulatory offences, our Court of Appeal has accepted the following sentencing principles: culpability, prior record, acceptance of responsibility and remorse, the damage or harm done, and deterrence …. Schafhauser is described by the Crown in this case as the leading case in British Columbia on sentencing for fisheries offences. [ 29 ] Aside from these sentencing objectives, in sentencing I must consider matters such as mitigating and aggravating factors and what is the least restrictive yet appropriate sanction.

The sentence must be proportionate; that is to say, the sentence must reflect the seriousness of the offence and offender's moral responsibility for the offence. A sentence should bear in mind the principle of totality and, finally, a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 30 ] This last principle, the parity principle, is key, as the Crown submits the fines it seeks in this sentencing are in line with fine amounts for these offences generally.

In support of its submissions in this sentencing hearing, the Crown produced 10 authorities in which the defendants received similar fines for similar offences. Of the cases cited, two stand out as being very close cases in point. These are the reasons of Judge Merrick in R. v. Tang and R. v. Turner . Each involved the overfishing of rockfish here in British Columbia. At paragraph 5 of R. v. Tang , Judge Merrick notes that [as read in]: Rockfish is a fish listed under the Species At Risk Act. The limit of rockfish is one per fisher per day.

As Fisheries Officer Reiher explained in his testimony, rockfish is a species that is very susceptible to overharvest. These creatures take about 15 years to reach sexual maturity so the concerns around the overharvesting of this species must be obvious to any fisher. In an impact statement filed by the Crown regarding the illegal harvest of rockfish and lingcod, Dr.

Haggarty, head of the Inshore Rockfish and Lingcod Program, describes the measures taken by Fisheries to preserve this species which she also describes as extremely vulnerable to overfishing because of their sedentary life, history, age, and aggressive biting behaviour during fishing, all of which causes the species to be easily fished out. When depleted, rebuilding can take decades. Dr. Haggarty writes that, like rockfish, lingcod are also found in shallow near-

shore rocky habitats and are also easily overfished as they take almost any bait or lure. Moreover, as Officer Reiher also explained, lingcod, which are a quick growing fish, take a short time to reach sexual maturity at four years. Still, the size restriction is in place so that lingcod have an opportunity to spawn once or twice before they can be retained. [ 31 ] The implications of these facts for preservation of each of these species of fish is obvious. As Judge Merrick writes at paragraph 6 of R. v.

Turner [as read in]: The protection of the fisheries for all parties is a central consideration in sentencing for these kinds of offences. [ 32 ] At paragraph 6 of Turner , Judge Merrick writes: The public interest in protecting the fishery is hardly a trifling matter whether that fishery is a commercial fishery or a recreational fishery. We are stewards of our environment, and we all have an obligation to others in society and to future generations to be diligent in managing the resources we have all inherited.

Social and societal interests override individual entitlement and accountable stewardship is demanded and expected, not merely hoped for, from those who choose to fish. The very importance of protecting this resource for others today and for future generations dictates that, in sentencing for a violation of the Fisheries Act , the court must send a message of denunciation and expression of society's condemnation of this kind of offending conduct and deterrence both specific and general. [ 33 ] Mr. Chen, as an example, you testified to having fun and simply forgetting about the fishing rules.

That admission as well as the guilty plea was frank, for which the court is grateful, but at the same time it is also cause for concern. Fishing is a licenced and highly regulated activity for good reason, that is, the preservation and sustainability of the life in our waters. Fishers are expected to be vigilant in their adherence to the limits of their licences and to the rules and regulations that govern the fishery. There is no room for having too much fun and forgetting about the rules.

The sentence in this case must send the message that Fisheries Act and Regulations must be strictly adhered to. [ 34 ] In my view, on the facts as I found them at trial, and even bearing in mind all of your comments during the sentencing hearing, it remains necessary in this sentence to send a message of specific deterrence to each of you. If there was ever any confusion about the seriousness of overfishing among these other offences, it should be entirely cleared up by their sentence. [ 35 ] Many of the cases relied on by the Crown support a sentencing in the range the Crown seeks. As examples, in R. v.

Tang , the court in sentencing a number of individuals for overfishing as well as making false statements, imposed fines in the range of $1,000 to $4,000. Most were approximately $3,500. In R. v. Turner , the fine for fishing within a closed time, essentially unlawful fishing, was $3,500, again, to reflect the seriousness of the offence and the relevant sentencing principles. In R. v. Yip , both defendants were fined $3,000 for fishing rockfish in a closed area, again, a case of unlawful fishing. In R. v.

Orr , the defendant, a fishing guide who pled guilty, was fined $1,000 for the illegal possession of a halibut, essentially, an oversized catch in that instance. [ 36 ] In considering these and some of the other dated sentencing decisions, I do bear in mind, as the Crown submits, that the fine amounts might be adjusted bearing in mind the rate of the inflation. As an example, a fine of $1,000 might send a different message in 2016 than it does in 2022. Moreover, the $1,000 fine in Orr represented money Mr. Orr would have earned as a fishing guide the day he and his client kept the oversized fish. Had Mr.

Orr made more, the fine could well have been larger. In R. v. Marshall , the defendant received two fines in the amount of $1,000 and $2,000, respectively, for the offences of obstruction and misleading a Fisheries Officer.

These and other fines in the cases cited are in line with the Crown's submissions on sentencing for the counts of obstruction and misleading Fisheries Officers. [ 37 ] So as I say, the fine amounts in these cases, many of which are similar and many of which include mitigating factors not present here, are substantial. [ 38 ] THE INTERPRETER: Sorry, please repeat the sentence. [ 39 ] THE COURT: Sure. As I say, the fine amounts in these cases, many of which are similar and many of which include mitigating factors not present here, are substantial. There should be a good reason for the court to depart from these.

Certainly, the question of the ability of each of you to pay is an important consideration. In that regard, the Crown notes that each of you are property owners in Vancouver, a fact that suggests without other evidence that these fines, substantial though they are, are not unreasonably punitive. [ 40 ] No one disagrees in this case that the fines sought by the Crown are substantial and, as I say, well out of proportion to the actual value of the fish caught. As I have tried to emphasize, that is beside the point. The point is that Fisheries Act offenders have to be discouraged.

It is one important way in which the criminal justice system can work to assure those persons engaged in fishing regulate themselves properly, a critical issue given the acknowledged difficulty Fisheries Officers have with enforcement over the vast waterways in British Columbia. It is one way we can ensure the sustainability of the fishery. It is one way which we can preserve this environmentally sensitive ecosystem.

How else to deal with persons who know the rules, yet deliberately chose to ignore them for personal pleasure or personal gain than to issue a sentence that says in no uncertain terms that this offending conduct will not be tolerated, that it will be met with significant consequences? [ 41 ] In my view, the fines sought here by the Crown send that message. I do not disagree with the Crown that considering the case authorities presented here and the far more mitigating circumstances present in many of those cases, that the fines sought are appropriate.

They meet with the purposes and principles of sentencing as I have described them. For these reasons, I will largely accede to the submissions of the Crown, bearing in mind mitigating factors and the principle of totality. [ 42 ] Mr. Chen, you pled guilty to Counts 1 and 7 of the information. In my view, this is a mitigating factor that merits a reduction in the fines sought by the Crown certainly relative to the other fines I will impose here for similar offences.

For the offence of overfishing of rockfish contrary to the Fisheries Act and Regulations , an offence to which you pled guilty, I impose a fine in the amount of $3,000. On Counts 2 and 3, the offences of obstruction and issuing a false statement, I accept that a fine in the amount of $2,000 on each count would meet the principles of general deterrence, but given the principle of totality, I would reduce that to a total fine of $2,000 or $1,000 for each of the offences. In total, Mr. Chen, you are ordered to pay a fine in the amount of $5,000.

[ 43 ] For Madam Clerk's benefit, for greater certainty, Count 1, a fine of $3,000; $1,000 on each of Counts 2 and 3. [ 44 ] Mr. Chen, I will give you one year to pay that fine. [ 45 ] Da Teng Zhou, on Count 1, the count of over-possession of rockfish, I impose a fine in the amount of $4,000. On Count 2, I accept, as with Mr. Chen, that this fine accords with the sentencing principles of general deterrence, but given the totality principle, I will reduce this by $1,000. The fine on Count 2 is $1,000. You are hereby ordered to pay a fine totalling $5,000 for each of these offences.

I will give you one year to pay. [ 46 ] Ngai Pan Chau, on the count of over-possession of rockfish, I fine you in the amount of $4,000. [ 47 ] That is Count 1, Madam Clerk. [ 48 ] On Counts 4 and 5, that is, obstruction and false statements, as with your co-defendants, I accept that the suggested fine of $2,000 is appropriate but for the principle of totality.

Given that principle, I will reduce each of these fines to $1,000 on each count. [ 49 ] Four and five, $1,000 on each, Madam Clerk. [ 50 ] In addition, I am satisfied, even despite the principle of totality, that a fine in the amount of $1,500 for Count 6, the possession of lingcod, is appropriate. In the result, I impose a fine for all these counts totalling $7,500.

I will give you one year to pay. [ 51 ] Finally, in addition, I order that each of you be prohibited from fishing pursuant to the Fisheries Act for a period of 12 months from today's date. [ 52 ] I have considered all of the submissions on the forfeiture orders and, while I appreciate the sentimental value Da Teng Zhou attaches to his fishing rod, in my view, the case authorities are all of one mind. In cases such as this, the fishing gear, which sometimes includes boats, much less motor vehicles, is forfeited as a matter of general deterrence. I see no reason to depart from that.

The Crown's application for forfeiture is granted. [ 53 ] Those are my reasons for sentence. I am not sure if there is anything else we need to deal with? Ms. Switzer? [ 54 ] CNSL A. SWITZER: Not from the Crown's perspective. [ 55 ] THE COURT: No? [ 56 ] THE ACCUSED CHEN: I have a question. So how are we going to pay the installments and, also, where are we going to pay? [ 57 ] THE COURT: Right. Well, I can tell you, and I am going to turn to Ms.

Switzer for a second here, but I can tell you I have given the parties a year to pay, and they can pay as much as they like, when they like, provided it is done within a year. That is the first answer. [ 58 ] Ms. Switzer, the how to pay? [ 59 ] CNSL A. SWITZER: Yes, given that these are straight fines and the Crown did not seek and the court did not order 79.2 orders, these are to be paid at the court registry.

It's my understanding, based on years of this situation, they can pay at any court registry, but they should probably bring a copy of the information or the court file number, but I believe that they can pay this fine in Vancouver or Richmond or whatever is closest to their -- [ 60 ] THE ACCUSED CHEN: I see. So will you be sending us a letter so that we can have the file number? [ 61 ] CNSL A. SWITZER: I can send -- I can print out a copy of the record of proceedings and mail it to each of your home addresses if you want. [ 62 ] THE ACCUSED CHEN: Okay, thank you very much. [ 63 ] THE COURT: Ms.

Switzer, do you need those addresses, or do you have them? [ 64 ] CNSL A. SWITZER: If they're the homes that they own, I believe I have them. [ 65 ] THE COURT: Okay. [ 66 ] THE ACCUSED ZHOU: I have something to say. I am Zhou Teng Da. I'd like to say if I am not able to get this money or I'm not able to earn this money within a year, then what I am to be doing? [ 67 ] THE COURT: Well, that is a problem. So I mean, I am not sure if it can go longer than a year, but the money has to be paid.

I mean, if you think you need more than a year, we can talk about that now because now is the time to talk about it. [ 68 ] THE ACCUSED ZHOU: I don't know whether I am able to get the money or not, so I just raised this question. [ 69 ] THE COURT: Well, Ms. Switzer -- [ 70 ] CNSL A. SWITZER: The Crown is not opposed to increasing the time to pay to two years if -- [ 71 ] THE COURT: Mm-hmm.

[ 72 ] CNSL A. SWITZER: -- he needs two years. [ 73 ] THE ACCUSED ZHOU: So will you be granting me two years to pay the fines? [ 74 ] THE COURT: If you feel you need two years, I will grant you two years, and that would apply to all of the defendants. [ 75 ] THE ACCUSED ZHOU: So why do I raise this issue?

Because I really do not have work now, and also because I have to attend the courts and that has also caused me to lose my work. [ 76 ] THE COURT: Well, I am prepared to give him two years to pay. [ 77 ] THE INTERPRETER: Sorry, Your Honour, what did you say? [ 78 ] THE COURT: I am prepared to give him two years to pay. [ 79 ] THE ACCUSED ZHOU: Okay. Now I see. I just don't know whether I am able to pay it in one year. That's why I asked. [ 80 ] THE COURT: Okay.

So I am not sure if that was -- that was Da Teng Zhou, was it, that was speaking? [ 81 ] THE ACCUSED ZHOU: Yes, I am Zhou Da Teng. [ 82 ] THE COURT: Yes, okay. Zhou Da Teng, okay. Well, I will give Zhou Da Teng two years to pay his fine. [ 83 ] If the other defendants need two years, as well, I am prepared to extend it to two years. They can just let me know right now. Otherwise, I will leave it at a year. [ 84 ] THE ACCUSED CHAU: I am Chau, Chau Ngai Pan, I also need two years. [ 85 ] THE COURT: Right, so okay. As I understand it, Mr.

Chen is going to pay within one year. [ 86 ] THE ACCUSED CHEN: If you can, Your Honour, I hope you can grant me also two years? [ 87 ] THE COURT: Fine, that makes it very straight forward. We will vary the sentence. The fines will remain the same. I will give all of the defendants two years to pay the fine, and they now know they can pay it as they like, but it must be paid within the two years, and it could be paid at any court registry and they will be given the information number and the court number. [ 88 ] THE ACCUSED CHAU: Okay, I understand. [ 89 ] THE COURT: Okay. Thank you, everyone. (REASONS CONCLUDED)