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Accused: Raj Kumar Goel and Yoganarsimha R. Dodla
Advocate: Colin C. Chen, Attorney-at-Law
With regards to the case concerning the charge of the above-mentioned accused on the offense of abandonment resulting in death, a statement of the defense is submitted as follows:
1.
The Public Prosecutor filed an appeal based on the reasoning that the accused should have been aware of the facts that the "Jih Tong No.6" was struck and the crewmembers on board were incapable of saving themselves. As the offense of abandonment resulting in death can not be established, the accused should be charged with the offense of negligently killing another in performance of their occupation provided in Article 276, Paragraph 2 of the Criminal Code. Although the provisions regarding the two offenses are different, the facts involved are the same. The court is entitled to alter the article of law on which the prosecution was based.
2.
Only under circumstances where a sentence is imposed or, if the facts warrant, a remittance of the punishment is pronounced, may the charge brought by the Public Prosecutor be changed to an appropriate article of the law. The alteration of an article of law is not applicable to those circumstances where a judgement of "Not Guilty" is pronounced. A copy of the Supreme court precedent, Shang Tze No. 2192 of 1943, stands as evidence (Exhibit 1). In this case, the High Court pronounced the accused "Not Guilty". Pursuant to said precedent, Article 300 of the Criminal Procedure concerning the change of an article of law is not applicable. Thus, the Public Prosecutor's assertion that he is entitled to change the article of law is groundless.
3.
The pattern of acts, criminal intent, as well as the place and time involved in committing the offense of abandonment resulting in death, in comparison with the offense of negligently killing another in the performance of one's occupation, are totally different. The former is a negative act committed after the incident while the latter emphasizes a lack of attentiveness on the part of the individual in the performance of his duties at the time of the collision. The penalty imposed by the offense of abandonment is directed toward an individual who was obliged to support or protect another person unable to help himself and refused to do so, thus placing the hapless person in jeopardy. Punishment for the offense of negligently killing another is used in order to sternly condemn an individual who wrongfully caused the death of another. In the former case, an offender failed to offer assistance to a person in need, and in doing so, his actions would constitute a so-called negative act. The latter case is a positive act, whereby the offender wrongfully caused the death of another. The matter of the acts and the purpose of prosecution affected by the two offenses are distinct to change an article of law and try a crime in which prosecution has not been initiated. Since the offense of negligently killing another in the performance of one's occupation was not raised by the Public Prosecutor, pursuant to Article 268 of the Code of Criminal Procedure, the High Court should not try such an offense. Therefore, the High Court judgement is not contrary to law.
4.
Further more, Article 155 of the Code of Criminal Procedure clearly states that the probative value of evidence is determined by the discretion of the court. If the court makes a judgement based on common experience and does not violate those rules that are generally found reliable and true, the determination made by the court is considered compliant with those principles gained from daily experience. The precedent of the Supreme Court, Shang Tze No. 597 of 1941, can stand as evidence. In addition, Article 377 of the Code of Criminal Procedure provides that an appeal may not be instituted with the court of third instance (i.e. the Supreme Court) unless there is reason to believe that the judgement is contrary to law.
(1) The Captain, Raj, on the night of Feb. 5, 1996, came onto the bridge after receiving the 3rd Officer's call. The 3rd Officer reported to him that: " I saw something resembling a boat on the left front side of our vessel, but its lights were not on so I steered to the right.." As would be expected, the Captain went on the bridge after the 3rd Officer carried out the action.
The "Kasuga 1" is a massive vessel with a distance of about 200 meters from the bow to the bridge. The entire length of the deck between the bow and the bridge was laden with containers. In comparison, the length of the fishing boat equaled only one eighth of the length of the "Kasuga 1". Further more, the collision occurred during rough seas during dark of night. Under these circumstances, the Captain could have possibly seen the fishing boat alleged to have been struck by the "Kasuga 1". Although the Captain looked from outside the Bridge (the Public Prosecutor mistakenly stated the Captain looked from the watchtower; however there was no such facility on board), based on the aforementioned reasoning, it would be impossible that he could locate anything.
In a recent air disaster, occurring during the night, a large portion of the aircraft's wreckage could not be found until daylight even though a thorough and detailed search had been conducted at the time of the crash. This example alone is proof enough that an individual's vision on the sea in complete darkness would be seriously affected by the amount of light, the height of the waves, and so on. Additionally, the containers stowed on deck hindered the line of sight of the accused. Therefore, the High Court's conclusion that the Captain was not aware of the collision is not in contradiction with the aforesaid.
The Public prosecutor stated in his appeal that: " there was clear visibility for a considerable distance, it is unreasonable to state that the Captain could not notice the fishing boat". The Public Prosecutor neglected the fact that the accused line of sight was hindered by the containers, that the Captain came onto the Bridge after the 3rd Officer had already taken measures to avoid a collision, and that visibility during the night is entirely different from that on a clear day. The Public Prosecutor's statement is only a subjective assumption rather than an objective rule and therefore illegitimate reasoning for an appeal.
(2)
As for the 3rd Officer, according to 8 (a) (iii) of the Annex to the International Convention on Standards of Training, Certification and Watch keeping for Seafarers, 1978, the officer in charge of the watch shall notify the Master when in any doubt as to what action to take in the interest of safety. It is thus irrational to state that a collision occurred, as the 3rd Officer would have requested the Captain to come onto the bridge. Further more, the Public Prosecutor concluded that the 3rd Officer was aware of the collision on the grounds that the 3rd Officer gave the following statement during an interrogation before the police on Feb.16, 1996:
Question: Based on the collision scratches on the stern of your vessel and the fishing nets entangled in the boat's propeller blades, it is probable that your vessel did collide with the unlit fishing boat. What do you think of this?
Answer: I think we probably failed to avoid a collision with the unlit fishing boat."
The above interrogation was conducted without the attendance of an advocate and a proper professional interpreter. Although the said interrogation records have been translated for the accused by the police in charge of the interrogation, taking into consideration the police's capability of English and their knowledge of maritime affairs, the interrogation records reliability is quite questionable. The accused raised his objection to the said interrogation records. The accused was implying that they did not collide with a fishing boat. The accused following statements, made before both the above mentioned interrogation and the court hearing held on April 6, 1996, stand as evidence:
Question: After you made a full turn to the right, when did you steer the vessel back on its original course?
Answer: "At 2040 hours on that night. I thought we had avoided a collision with the unlit fishing boat, so I changed the course of our vessel back to its original direction."
Question: If your vessel collided with the fishing boat, couldn't you feel it?
Answer: I did not think that we had collided with the fishing boat because I felt nothing out of the ordinary. After seeing the evidence and the information collected by the Criminal Police Station, I then began to think that there might have been a collision."
As can be seen from the above statements, the 3rd Officer was obviously unaware of the collision during the time in which he executed evasive measures. Moreover, when interrogated at the detention center, and thus under the pressure of persuasion and insinuation by the police, only then did the 3rd Officer state that: "I think we probably failed to avoid a collision with the unlit fishing boat." Therefore, such a statement could not stand as evidence in court that the 3rd Officer was aware of the collision at the time of the incident.
(3)
Although one might know an accident has occurred (as a driver of a vehicle can feel a collision upon to an extent which they are not able to save themselves. The situation depends on whether the driver is aware of the seriousness of the collision and if he is clear that someone is in danger as a result of the impact. Therefore, if there is no substantial evidence that proves the individual causing the accident is fully aware that someone is in danger as a result of the accident, the charge of committing the offense of abandonment could not be initiated against the individual who cause the collision.
In this case, even though the accused is believed to have known of the collision (the accused repudiates this claim), he did not necessarily know that the impact resulted in the sinking of the vessel and the death of individuals on board as the extent of damage caused to a vessel depends on the severity of the impact. At the time of the collision, only the 3rd Officer remained at the Bridge. He was therefore obviously unable to take watch outside the Bridge to determine whether the collision put the crewmembers of the "Jih Tong No.6" in danger, not to mention the Captain who came onto the Bridge after the collision had already occurred. Since there is no substantial evidence to prove that the accused was aware of the accident resulting in the sinking of the "Jih Tong No.6", it is unreasonable to state, merely based on assumption that the accused clearly knew the members of the crew were in danger. The Public Prosecutor based his reasoning on the fact that the collision occurred at sea during the night when the temperature of the seawater is considerably cold, and therefore the accused must have known that under these conditions the crewmembers of the "Jih Tong No.6" were incapable of saving themselves. The Public Prosecutor intentionally ignored the fact that there were several fishing boats belonging to the same owner as that of the "jih Tong No.6" in the area and one working nearby could have initiated a rescue.
5.
The accused reached an out-of-court settlement with the owner of the "Jih Tong No.6" and the families of the deceased crewmembers. The fishing boat's owner and the crewmembers families all requested the court to conclude this case as soon as possible so that the accused could return to their home country to be with their families.
If the accused had the intent to abandon the crewmember of the "Jih Tong No.6" they would not have sailed to the Keelung port thus throwing themselves into the hands of the law. The High Court's judgement of "Not Guilty" is proper.
6.
Your honourable court id requested to dismiss the Public Prosecutor's appeal.
Respectfully submitted to The Supreme Court,
C/O the Taiwan High Court
Exhibits:
1.
A copy of the Supreme Court precedent, Shang Tze No. 2192 of 1943.
2.
A copy of the book written by Prof. Chen Pu-Shen, P.95 & 96.
3.
A copy of Article 8 (a)(iii), Chapter II of Annex to the International Convention on Standards of Training, Certification and Watch keeping for Seafarers, 1978.
4.
A copy of the interrogation records made before the district court on April 6, 1996.
Dated this 25th day of November,1998.
Accused: Raj Kumar Goel & Yoganarsimha R. Dodla
Advocate: Colin C. Chen, Advocate-at-Law
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