Lingao Yefeng Ocean Development Co., Ltd. v Haikou Oceans and Fisheries Monitoring Division & Haikou Oceans and Fisheries Bureau in respect of administrative penalty and administrative reconsideration for fisheries offences

[Basic facts]

On 12 October 2017, Haikou Oceans and Fisheries Monitoring Division made the Decision QHKHYJCF (2015) No. 0603001 on Administrative Penalties for Fisheries Offences. The Decision found that Yefeng dredged 34.8 tons of giant clam shells in the waters near Ren’ai Reef, Nansha and transported them to Huxin Port, Wengtian Town, Wenchang, Hainan province without a Special Permit for the Transport of Aquatic Wild Animals. Such act was a violation of Articles 18 and Article 20 of the Regulations of the People's Republic of China on the Protection of Aquatic Wild Animals. It was verified that these shells belonged to giant clams (Tridacna gigas) which were listed as aquatic wild animals under Class I State Protection and they valued RMB38,280. In accordance with Article 28 of the Regulations of the People's Republic of China on the Protection of Aquatic Wild Animals, the Monitoring Division decided to confiscate the 34.8 tons of giant clam shells and impose a fine on Yefeng in the sum of RMB306,240.

Yefeng disagreed with the decision and applied to Haikou Oceans and Fisheries Bureau for administrative reconsideration. On 31 January 2018 Haikou Oceans and Fisheries Bureau made a Decision on Administrative Reconsideration SHYXFJ (2018) No.1. The Decision found that the Decision (2015) No. 0603001 on Administrative Penalties made a mistake in the application of law by referring to Article 18 of the Regulations on the Protection of Aquatic Wild Animals, as such reference was not based on factual grounds. However, this mistake did not affect the justice of the penalties. Accordingly, the Bureau supported the penalty decision made by Haikou Oceans and Fisheries Monitoring Division. Yefeng then brought an action to this Court and requested to dismiss Decision (2015) No. 0603001 on Administrative Penalties for Fisheries Offences and Decision (2018) No.1 on Administrative Reconsideration.

[Judgments]

Opinions of this Court: although the giant clam shells transported by Yefeng were dead, their dead bodies were still protected by the applicable laws and regulations. Thus the act of Yefeng constituted illegal transport of products made of aquatic wild animals under state priority protection. Decision (2015) No. 0603001 on Administrative Penalties for Fisheries Offences referred to Article 18 of the Regulations on the Protection of Aquatic Wild Animals and determined that Yefeng was involved in the selling and buying of giant clam shells. The finding was not true to the facts. However, Decision (2018) No.1 on Administrative Reconsideration had corrected the mistakes in fact finding and application of law in the original decision on administrative penalties, and had supported the original decision. This administrative action being suited was based on lawful fact findings and application of law. Accordingly, this Court made a judgment to reject the claims made by Yefeng, who was unsatisfied with the results and proceeded to file an appeal. The Higher People’s Court of Hainan Province affirmed the original judgment in the second instance.

[Significance]

Nowadays, illegal harvest and trade of giant clams is rampant in Hainan province. More efforts must be made to better protect giant clams and giant clam shells. In addition to putting a ban on illegal harvest of giant clams, restrictions shall be imposed on the purchase, sale, transport, dredging and other activities involving giant clams and related products. Although giant clam shells are dead bodies, the collection of them inevitably causes permanent damage to the nearby coral reefs and to the ocean ecosystem and resources. In this case, we supported the administrative authorities in cracking down the illegal transport of giant clam shells, fully implementing the environmental philosophy that “lucid waters and lush mountains are invaluable assets”. Further, the case provided an appropriate interpretation on the principle that “the original administrative action and the reconsideration decision shall be united and integrated with each other”. When the reconsidering authorities modify the original administrative act and its basis without changing its punishment decision, it shall be deemed that the reconsidering authorities affirm the original administrative action. Based on the principles of unity and integrity between the original administrative action and the reconsideration decision, when the reconsideration decision changes the facts found in the original administrative action and the basis thereof without changing the punishment decision, the original administrative action has been changed and is integrated into the reconsideration decision. Accordingly, the administrative action subject to examination in this case was the one as amended by the reconsideration decision.