1. The accused defense statement alleged that: The place where the alleged collision with "Jih Tong No.6" occured was on the high seas. According to the "Convention on the Unification of Certain Rules Relating to Penal Jurisdiction in Matters of collision and other Incidents of Navigation" in Brussels, Belgium, 1952, as well as "The Law of the Sea", in the event of a collision or of any other incident of navigation involving the penal or a disciplinary responsiblilty of the Master or mariners, only the judicial or administrative authorities of the flag state is entitled to initiate such proceedings. The Convention on the Law of the Sea has the same provision. The provision of the above Conventions are written forms of the previous existing International custom. According to the above International conventions and custom, since the flag state of the "Kasuga 1" is the Republic of Panama and the place of collision with the "Jih Tong No.6" was on the High seas, this case was originally beyond the Republic of China (ROC) jurisdiction and the ROC judicial authorities therefore had no jurisdiction over it. At a time when the ROC is positively competing to join the International society, any decisions made by the courts shall not violate the International Laws, which are unanimously recognised by the International society. In comparison with a similar case involving a conflict of jurisdiction, i.e. the Dubai case, the ROC claimed from the Canadian Government its right to jurisdiction as a flag state is entitled to in accordance with the above mentioned Conventions. At a time when each and every nation is keeping its eyes focused on the attitude of the ROC judicial authorities in dealing with these two cases and the development thereof, the ROC courts shall not make any decisions which conflict with those made in the Dubai case and shall admit that the flag state i.e. Panama, or the state of which the injured party is a national i.e. India, shall have jurisdiction over this case. Moreover, the India-Taipei Association presented an affidavit on behalf of the Indian Government alleging Indian jurisdiction over this case and in the meantime requested that the court allow the accused to be repatriated to India so that the examination of the accused could be commenced in India. It is evident that India who has jurisdiction over this case has already excecised its right. The ROC courts shall hence terminate the trial of this case in accordance with the above-mentioned Conventions and allow India who has jurisdiction over this case to commence the examination of the accused.
2. Although the place where the collision occurred cannot be precisely located, it was in the sea at Lat.25-45'N, Long.121-47'E, which was at a distance of 17 miles from Peng Chia Hsu of Keelung coty, i.e. beyond the ROC territorial waters which only extend 12 miles. This can be evidenced by a letter from the Ministry of Interior dated April 16,1996. Therefore, that area should be high sea. In this case, the damaged ship "Jih Tong No.6" was under the ROC flag and victims were the ROC fishermen. Furthermore, the result of death took place within the territory of the ROC. Therefore:
(1) According to the passive Nationality Principle and the Objective Territorial Principle, it is obvious that the ROC has jurisdiction over this case.
(2) Article 3 of the ROC Criminal Code provides that "This Code shall apply to an offense committed on board a vessel or aircraft of the Republic of China outside the territory of the Republic of China shall be considered to an offense committed within the territory of Republic of China"; and Article 4 of the same Code also provides that "if either the commission of an offense or its effect takes place within the territory of the Republic of China, the offence shall be considered to be an offense committed within the territory of the Republic of China.";
(3) The former paragraph of Article 7 of the same Code provides that "This Code shall apply to an offense not provided for in the two preceding articles which is committed by a citizen of the Republic of China beyond the territory of the Republic of China and for which the minimum basic punishment is imprisonment for not less than three years"; and Article 8 provides that "The provision of the preceding article shall apply Mutatis Mutandis to an alien who, beyond the territory of the Republic of China, commits an offense against a citizen of the Republic of China." As to whether an offense committed for which the minimum basic punishment is imprisonment for not less than three years shall be subjected to the article depends on the Public Prosecutor's indictment rather than the result of adjudication. In this case, the Public Prosecutor initiated a public prosecution in accordance with Paragraph 2, article 294 of the Criminal Code with regard to an offense of abandonment resulting in death. The minimum basic punishment is imprisonment for not less than 7 years, for which Article 8 of the Criminal Code shll apply. Therefore, as per the above mentioned provisions, the ROC Criminal Code shall apply to this case. With regard th the "Dubai's" suspicion of committing an offense in the High sea, as the victim was not a Canadian national, the Canadian government determined that Canada had no jurisdiction over this case. It is incorrect to cite the Dubai case as proof that the ROC cannot excercise the jurisdiction for which the ROC is entitled to as per laws. Although the India-Taipei Association, after the District Court judgement was rendered, applied with this Court for repatriation of the accused to India to receive adjudication, since the ROC has jurisdiction over this case as aforesaid, this petition cannot be allowed.