On the surface, the only issues which this appeal appeared to involve was whether Regulation 3(b) of the Fisheries (Maritime) Regulations 1967 (the Regulations) created an offence of strict liability and whether in the absence of a conviction, the Court trying such an offence, could still make an order for the forfeiture of the subject matter of the offence. But beneath is another which may have far-reaching consequences. That issue is the extent to which Malaysia may exert general legislative authority within its territorial waters even if by so doing persons claiming to be exercising the so-called right of innocent passage may be adversely affected.

Narongne Sookpavit and the 22 other accused in this case are all Thai nationals. They are fishermen. On January 27, 1984 at about 4.30 p.m. they were on a vessel bearing Registration No. SC2219 (the boat) which was then at a bearing of 300° from Tanjung Ayam, Johore about 3 miles from the shore. On board were 4 trawl nets, 4 otter boards, and 2 ropes (collectively referred to hereafter as "the fishing appliances") and a very sizeable quantity of iced fish. What the nationality of the boat was and whether she carried any ship papers are matters which are at large.

John Wee Fok Hun is the Commanding Officer of the Malaysian Naval Patrol vessel PZ10. On the date and time in question he was in the vicinity with 4 officers and 30 men. In the belief that an offence was being committed contrary to the Fisheries Act 1963 (Laws of Malaysia — Act 210 — Revised 1979) (hereafter referred to as "the Act") he apprehended the boat and all 23 accused on board. They were brought to Tanjung Pengelih the same evening and kept in custody. The fish was auctioned off for $2,000. The accused were produced before the Magistrate on January 29, 1984 and charged for being found in possession of the fishing appliances in contravention of Regulation 3(b) of the Fisheries (Maritime) Regulations 1967 and punishable under section 11(1) of the Fisheries Act 1963 (Revised 1979).

All the accused pleaded not guilty. They were then remanded in custody until March 17, 1984 when the case came up for mention. Bail was applied for by defence counsel for the first accused only and he was allowed out. The others remained in custody till the conclusion of the trial. This is a matter for adverse comment. Because they were foreigners, releasing them on their own recognizances may have brought about other problems. So in the lock-up they remained till they were liberated by the learned Magistrate 7½ months later. In such circumstances it was the duty of all those who were immediately concerned with the welfare of these persons either to ensure an immediate trial or to bring the matter up to the High Court so that the necessary arrangements could be made as the justice of the case required. But that did not happen and I can only hope this instance will be the last of its kind.

The case came on for hearing on June 16, 1984 but could not proceed because there was no Thai interpreter. A number of adjournments then followed for one reason or another but eventually the Prosecution evidence was received on August 11 and 21 and finally on September 9, 1984 when the prosecution rested. The defence then made a submission of no case. It was claimed that possession had not been proved. It was also submitted the accused were where they had been found, because to get to Singapore they had no alternative but to take the route which they did. This defence was classified by defence counsel as a defence of necessity. To quote his words, "The vessel was not merely exercising the right of innocent passage but was negotiating a route that had been used since time immemorial." The accuracy of the radar on PZ10 was also attacked.

But the Magistrate found that a prima facie case had been made out and called for the defence. Only the first and the second accused gave evidence. They claimed that they had originally set out from Sammudsakhon