Appellant: Public Prosecutor of the Prosecutor's Office of the Taiwan Keelung District Court.
Appellants (Accused) :
RAJ KUMAR GOEL
Male, born on April 5, 1961 (Indian)
Passport No.: A997974
Address: B-109 Sector-14, Noida, District: Gaziabad, India (in custody)
YOGANARSIMHA R. DODLA
Male, born on April 10, 1971 (Indian)
Passport No.: A603012
Address: Bldg No.8, Flat No.8 Baastu Udyog, Pimpri, Pune-411018 (in custody)
Currently residing at 3Fl., No.12-4 Chung Cheng Road, Keelung
We regard to the above appellants suspicion of having committed offenses of abandonment, the Appellants were not satisfied with the judgement, Su Tze No. 125 of 1996, made by the Taiwan Keelung District Court (Serial No of the Prosecutors' Office: Jeng Tze Nos. 815 and 894 of 1996) and hence filed an appeal with this Court. This Court hereby adjudicates as follows:
SYLLABUS:
THE HIGH COURT ANNOUCES A "NOT GUILTY" VERDICT IN FAVOUR OF GOEL AND DODLA.
Facts:
1. The Public Prosecutor's appeal stated that: Raj Kumar Goel (Goel) served as the Master on board the Panamian container vessel "KASUGA 1", which was owned by NYK ANTARES SHIPPING ,while YOGANARSIMHA R. DODLA (DODLA) served as the 3rd Officer.
The "KASUGA 1" departed from Hongkong on Feb. 4, 1996, at 2000 Hours and was scheduled to arrive in Los Angles, USA, 13 days later. On Feb. 5, 1996, at about 2000 hours, the vessel reached the sea of Northern Taiwan at a bearing of 060 degrees and sailing at a speed of 21.58 knots (nautical miles). The officer in charge of the Bridge during the shift from 2000 hours to 2400 hours was 3rd Officer, Dodla, and the quartermaster, Arvind Kumar Tandel (Tandel). However, Tandel failed to arrive for duty. Thus, the 3rd officer switched on the GPS to fix the vessel's course. However, at about 2050 hours, when the vessel reached Long. 121-47'E, Lat.25-45'N near the seas of Peng-chia-Hsu, more than six targets appeared on radar. The screen flashed warning signals and sounded alarms to this effect. The 3rd Officer there upon saw a fishing boat (Jih Tong No.6) approaching from a distance of only 550 metres away. In order to avoid a collision with the fishing boat, the 3rd Officer turned starboard via the GPS. However, the "Kasuga 1" struck the middle of the "Jih Tong No.6". 3rd Officer Dodla along with Master Goel, who had just entered the Bridge, in order to avoid risking a collision, decided that the 3rd Officer should manually manouver the ship starboard. However, at this point the "Kasuga 1" had already collided with the "Jih Tong No.6" and continued to proceed forward with her bow dragging the "Jih Tong No.6" along. After 15 to 20 minutes the "Jih Tong No.6" sank as a result of taking on vast quantities of water.
When the "Kasuga 1" struck the "Jih Tong No.6" and proceeded forward, her bow carrying the "Jih Tong No.6", 3rd Officer Dodla and the Master Goel noticed that the "Kasuga 1" port engines suddenly slowed. An abnormal sound was also heard coming from the bottom of the vessel. The vessel's speed dropped from 22 knots to 16.8 knots and finally to 11.7 knots; a large fishing net was later found entangled in the "Kasuga 1" portside propellor. Therefore, the 3rd Officer and the Master most likely knew of the collision with the fishing boat.
The provision of Article 98 of the Convention on Sea states that after a collision, the Master, in so far as he can do so without bringing serious danger to his ship, the crew or the passengers, shall render assistance to the other ship, its crew and its passengers. The 3rd officer and the Master should have known the crew members of the "Jih Tong No.6" had fallen into the sea after the fishing boat was struck, however the Master and the 3rd Officer neglected their duty to provide assistance regulated by Law and ordered the Quartermaster Tandel to come onto the Bridge at 2220 hours, Feb.5. Tandel, knowing an accident had occurred, intended to aid the 3rd Officer and Master, and, following the instructions given by 3rd Officer Dodla and the Master Goel, thus began steering the vessel, checking the Radar and adjusting the vessel's speed.
When the "Jih Tong No.6" was struck, some of the crew members jumped onto the sea in order to survive. As the "Kasuga 1" failed to render assistance in time, they drifted at sea until 2301 hours, Feb.4 where upon the sister ship of the "Jih Tong No.6" went to perform a rescue mission.
Philippino crewmember, Pamfilo D. Colo, was rescued and four bodies were found (the coroner's examination was conducted by the Prosecutors Office of the Taiwan Yilan district Court). The remaining 24 crew members were reported missing.
After the "Kasuga 1" fled the scene, it discontinued its voyage as a result of the fishing net being entangled in the propeller. In order to avoid being arrested while conducting repairs within the port, the "Kasuga 1" proceeded to the outer anchorage of the Keelung port and asked the port agent, Prosperity Enterprises Shipping Agency, to send a person to cut and remove the net on Feb. 6 at 0900 hours. The diver, Lee Ming-Ter, refused to conduct the repair on that day claiming the waves were too rough. On the afternoon of Feb. 6, the "Kasuga 1" was required to apply with the Keelung port for entering the outer anchorage area for repairs.
On Feb.7 the "Kasuga 1" was found and seized by police. Goel and Dodla were suspected of committing the offense of abandonment resulting in death in accordance with paragraphs 1 and 2 of Article 294 of the Criminal Code. However, the accusation regarding the accused commission of the offense of negligently killing another in the performance of one's occupation, which the District Court considered founded on reason, was set aside by the High Court on the grounds that it had not been initiated by the Public Prosecutor.
Further more, the Public Prosecutor stated in his indictment that the Accused Goel was the Captain of the "Kasuga 1" while Dodla was the 3rd Officer on the same vessel. On Feb. 5, at 2050-2050- hours, when the vessel sailed to 121-47'E, 25-45'N nearby Peng-Chis-Hsu, the accused failed to order the quartermaster to perform his lookout duties. When the 3rd Officer was on duty alone he observed the "Jih Tong No.6" approaching, and mistakenly made a starboard turn via the GPS resulting in the following:
(1) The "Kasuga 1" and the "Jih Tong No.6" crossed each other's paths. When the "Kasuga 1" struck the middle of the "Jih Tong No.6" she still proceeded ahead with her bow carrying the "Jih Tong No.6". The "Jih Tong No.6" finally sank as a result of taking on a great deal of water. The crew members on board were forced to jump into the sea to save their lives.
(2) The accused violated the provision of Article 98 of the Convention on the Sea. They should have expected that the members of the crew had fallen into the sea after striking the fishing boat. However, they not only failed to provide assistance but also fled the scene resulting in only one survivor, four dead, and 24 missing crew members of the "Jih Tong No.6".
Considering the above, it is obvious that the Public Prosecutor should have initiated suit for both the offense of abandonment resulting in one's death and the offense of negligently killing another in the performance of one's occupation.
2. Article 3 of the ROC Criminal Code provides that; "This Code shall apply to an offense committed within the territory of the Republic of China. 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 be 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 offense shall be considered to be an offense committed within the territory of the Republic of China." Pursuant to the facts mentioned in the Prosecutor's indictment, the place where the collision occurred was in the sea at Long. 121-47'E, Lat.25-45'N, which was beyond the ROC territorial waters which only extend 12 miles off shore. Said area should be considered High seas. The sinking vessel "Jih Tong No.6" was owned by Pei Lien Fishery Co. Ltd. The registration of ownership was in the Port of Suao. This is evidenced by the certificate of nationality issued by the ROC Ministry of the Transportation and Communications. After the "jih Tong No.6" sank, of the total 29 crewmembers, one was rescued, four found dead and 24 crewmembers were missing. As the effect of the offense took place on board ROC vessel, according to the above mentioned provisions, the ROC Criminal Code shall apply. The accused contention that the ROC has no jurisdiction over this case is untenable.
3. Both Appellants(i.e the Accused).Goel and Dodla, firmly denied that they had committed the offense to which they were accused by the Public Prosecutor. Goel contended that he was unaware of the collision. At the time, he was in his room and therefore was unable to see the situation at sea. He did not know of the collision until Feb. 7 when the agent in Keelung port had shown him the newspaper. According to the vessel's regulations, if a crewmember operating on bridge has any problem, he could call and request the master to come onto the bridge. The master was asked to go onto the bridge by Dodla. Dodla told him that he saw an object in the left front, which seemeb like a boat. As the boat was unlighted, Dodla hence made a starboard turn. However the containers loaded on the deck clogged Dodla's sight in a way to a certain area could not be seen. Goel further contended that when he went onto the bridge, he was still unaware of the collision. He was also unaware of what the diver had seen. He felt no collision. After the "Kasuga I" entered into the Keelung port and was examined by the diver, the port proeller had been found to have entagled with a fishing net. The slowing down of a vessel's speed could bot only occur by a collision but also could by a mechanical problem. In the meantime, the lsowing down occurred 20 minutes after the change of course. Goel was unaware of the collision. Dodla did not tell him that there was a collision. As to Dodla, he contended that before the collision, the distance between the "Kasuga I" and the "Jih Tong No.6" was 1 Nautical mile. He was not sure whether the object was a boat as it was unlighted and was not shown on the radar. The action taken by him at that time was to turn 10 degree to starboard side. He had no realization of the collision until they had arrived at the Keelung port and the master showed him the newspaper. According to the regulations, if there was any suspicion, he has the right to could ask the master to come onto the bridge.when he first saw the "Jih Tong no. 6, she was at the port side. Therefore, according to the international rules, he made a starboard turn. He also exhibited the lights and sounded signal. As he was not sure what the object was, he asked the master to come onto the bridge. The "Kasuga I" was very long, about 200 meters in length. In addition, the deck was full of containers, which resulted in a blind sector. He was hence unaware of the collision.
4. According to the statement made by the only survivor of the "Jih Tong No. 6, Colo, he worked as seaman on board the "Jih Tong no. 6" from Dec 4 1995. At 21.00 hrs feb 5 1996, colo was in the cabin and the fishing nets were still on board the fishing boat. Suddenly he felt a serious vibration which he deemed must have happened through a collision. At that time all lights on the boat went off. He immediately ran out and crawled in the dark. He also heard the other members screams. The boat heeled to port side and the deck was submerged in water. He crawled to the bridge 5 minutes later. He saw 2 other crew members there with whom he discussed how to escape. He saw a huge vessel jutting into the engine room at the port side of the ship. At that time due to bad weather the waves were violent. He jumped into the sea from the port side of the fishing boat's stem. He held on to the gas barrel by which he floated on the sea. Later on he was rescued by "Jih Tong no.268. The skipper of the "Jih Tong no 268", Kuo ho-feng, who saved Colo's life stated that the place where Colo was rescued was at Lat. 25' 42"N, long. 121'39"(please see the examination record attached to the sea protest). In addition, as per the statement made by Chen Ah-fu, the skipper of the "Jih Tong no. 16, which was in the same group as the "Jih Tong No.6", had last contacted the "Jih Tong no.6" at 20.00 hrs. When he tried to contact the "Jih Tong No. 6" again at 2100 hrs, no one answered(please see the above mentioned record). He further testified before this court that he had been serving as the skipper of the "Jih Tong no 16" for more than one year. His vessel belonged to the same group as that of the "Jih Tong no. 6". The "jih tong no 16, is the main light boat in charge of the fish lighting while the "Jih tong no 6." Is a mother ship instructing to fish by encircling the net. At about 2100 hrs that night everyone was engaged in fish search. And when the fish group was observed, they tried to contact the "Jih Tong no. 6" but failed. There are five boats in the same group. These include the "jih Tong no.268","Jih Tong no. 26" and "Jih Tong no. 6". They did not know that the "Jih Tong no. 6 had been hit until "Jih Tong no.268 discovered the sruvivor of the "jih tong no. 6. The last contact with the "jih Tong no. 6 was made at 2000 hours that night. According to the course direction marked on the chart used by the "KasugaI" was at lat. 25'37"N, Long. 121'48"E. She proceeded northeasterly. At 2100 hrs, she was due to reach waters at lat. 25'47"N, long. 121'48"E. the time and course mentioned above were in conformity with the possible time and place where Jih tong no 6 was hit.
5. On Feb 7, 1996 when the "Kasuga I" was berthed at the outer anchorage of the Keelung Port to cut off the fishing net entangled on the propeller blades, she was discovered and seized by the police. The criminal Police officers had assigned a person to conduct an investigation on the hull of the "Kasuga I" and he found that on the starboard side of its stem, near the waterline marker, collision scratches almost in parallel with the waterline marker and some very severe, irregular scratches that could not have been caused by the anchor casting or weighing. In addition, there were bits of residual paint all over the scratches. Fresh scratches were also found on the middle and rear sections of the starboard side, probably caused by a serous collision just a short time before the evidence gathering exercise. Fishing net entangled with the "Kasuga I" propeller blade was in conformity with the design of the net used on the "Jih Tong no. 6". As to the paint, the residual dark green paint taken from the "Kasuga I" was similar to that taken from the light boat, "Jih tong No.6". Further, the residual yellow paint taken from the "Kasuga 1" was also similar to that taken from the boat "Jih Tong No.16". It is presumed that they are of the same origin. When the "Kasuga 1" berthed at the anchorage area of the Keelung port, the diver, Cheng Chih-Wen, dived underwater and found a small underwater depression at 8.5 to 9 metres on the waterline marker. The depression had a length of approximately 15 to 20 cms, width of approximately 10 cms and a sheen of rust on it. Further down at 7.5 metres just above the ball shaped stem, there was a larger depression, with a length of approximately 95 cms, width-15 cms and depth of approximately 10 cms. From Survey conducted by China Marine Surveyors & Sworn Measurers' corp, the vessel's bow was proved to have had no direct contact from collision nor did it have a hollow or any new scratches. The deep scratch has been caused by steel wire floating at sea. As only the port propeller got entangled with the fishing net, the fishing boat was probably first hit by the other vessel after which her fishing net got entangled with the "Kasuga 1" port side propeller. The reason why they say that the vessel must have hit something floating at sea is that scratch was arc-shaped.
6. International Regulations for preventing collisions at Sea, 1972 provide that every vessel shall maintain proper lookout all the times. The accused Goel and Dodla admitted that although the "Kasuga 1" was scheduled to have 2 persons on duty on the bridge, the AB to be scheduled normally did not go on duty because he had other jobs during the day and therefore rested in the cabin at night. It is obvious that by not having 2 persons on duty on bridge to maintain proper lookout and steer, the "Kasuga 1" was in serious violation of the general rule of navigation safety. The accused defense statement alleged that although Goel failed to keep sufficient on-duty crewmembers on the bridge, whether the collision resulted therefrom was uncertain and in addition, when the vessel was under automatic steering and navigation, adding a helmsman on duty would not necessarily avoid the occurrence of the accident. Therefore there was no direct connection between the Master's negligence and the result of the collision. Dodla contended that he steered the vessel by ARPA at the material time. However, he also admitted that he discovered the fishing boat by vision when the distance between them was about 1 mile and that the radar showed nothing and was not our of order. Therefore, this clearly proves to that even though the ARPA was used, only one person on duty is not sufficient to secure navigation safety. It cannot be said that Goel and Dodla's negligence has no causative relation with the results that had occurred.
7. If Dodla had properly exercised the duty of care, he could have discovered the "Jih tong No.6" earlier before the latter approached at a distance of 1 mile so that proper precautions to avoid collision could have been taken earlier. Therefore, he felt no risk of collision until the "Jih Tong No.6" approached at a distance of less than one mile. The 3rd Officer should have slowed the vessel down considerably that they were sailing in an area where a lot of fishing boats were engaged in fishing operation. And when he suddenly discovered that the "Jih tong No.6" was approaching them very closely, he should have clearly known that under the vessel's speed at that time, they would collide with the fishing boat within 3 minutes. Nevertheless, he failed to slow the vessel down, make a hard starboard turn, or take all other necessary measured to avoid collision. He was obviously at fault due to the delay in avoiding collision, which resulted in "Jih Tong No.6" entering into the blind area of "Kasuga 1". When the "Kasuga 1's" propeller was found to have got entangled with the fishing net and her speed was reduced immediately after she passed by a group of fishing boats and dodged a fishing boat at a very close distance, they should have taken into consideration the possibility that an accident had occurred and should have realized that the fishing boat whose fishing net was entangled with the "Kasuga 1" propeller may have been in distress. Both the accused should have carried out rescue operation in accordance with Article 98 of the United Nations Convention on the Law of the Sea. The accused, Goel and Dodla, obviously failed to exercise the minimum care required in navigation. According to the situation at that time, both of them would have been able to exercise due care.
8. The accused, Goel and Dodla, were the Master and 3rd officer of the "Kasuga 1". They are persons who were engaged in the business relating to marine navigation. They negligently killed other people while performing their occupations. They obviously committed an offense specified in paragraph 2 of Article 276 of the ROC Criminal Code. As per the Public Prosecutor's indictment, both the Accused, at the time of collision, knew that they had collided with a fishing boat. They also should have known that some of the fishing boat's crewmembers might have fallen overboard after their boat had been collided with. Nevertheless instead of carrying our a rescue operation, they intentionally violated the obligation of assistance prescribed in Article 98 of the United Nations' Convention on the Law of the Sea. At about 2220 of that same day, they called the AB Tandel to come up on to the bridge in order to steer and watch the radar. As the crewmembers of the "Jih Tong No.6" could not receive a reasonable rescue, a great loss of human life resulted. The accused, Goel and Dodla, committed the offense of abandonment resulting in death prescribed in Paragraph 2, Article 294 of the Criminal Code. Nevertheless:
(a) As aforesaid, both the accused denied clearly knowing of the "Jih tong No.6" being hit by "Kasuga 1". Goel further contended that had he known about the collision, he certainly would have stopped the vessel and done rescue. In other words, since Taiwan coast was quite near it was easy to judge that the fishing boat operating in that area, were most probably Taiwanese fishing boats. Under this circumstances, he should have ordered the vessel to directly sail to the Japanese ports at which the "Kasuga 1" was originally scheduled to call. He would not have ordered to sail to Keelung at the risk of being arrested. And if the 3rd Officer knew of the collision, he would have hinted to the Master not to go to Keelung for repair. Therefore, he and 3rd Officer did not know of the collision. The Public Prosecutor deemed that Goel and Dodla knew of the collision and intentionally abandoned the hapless crewmembers of fishing boat. The facts of an offense shall be established by evidence and shall not be presumed in the absence of evidence. If the evidence is insufficient to prove an offense committed by an accused, it shall not form the basis of a decision. The "Kasuga 1" is 289 Metres (M) in length, 32.2 M in width, 24.3 M in depth, 12.2 M in draft and Gross weight of 58,440 Metric Tonnes. Her bridge is near the aft with a distance of about 200 M from the bow. In addition, as per the specification of the "Jih tong No.6", it is one eighth of the "Kasuga 1" in length. The weight of the "Jih Tong No.6" is less than 0.5 hundredth of the "Kasuga I". There is great difference in their size. Furthermore, the distance between the "Kasuga I"'s bridge and the stem was about 200 meters. As per the photos of the "Kasuga I" taken after her being seized, there were several layers of containers stowed on the deck. Since the collision occurred at night, it is hasty to say the the Accused,Dodla, on the bridge, should have seen the "Kasuga I"s collision with the "Jih Tong no. 6". Moreover, it should have caused a considerable vibration when the "Kasuga I"s stem hit the center of the "Jih Tong no. 6" at high speed. However, as the "Kasuga I"'s gross weight is hundreds of times greater than that of the "Jih Tong no. 6", due to the force of resistance underwater, the vibration and noise caused from the collision underwater would be smaller than that on the surface. (Please refer to a letter sent from the National Taiwan Ocean University, serial no. 85Hai Chuan Tze no. 3648 of 1996(. Therefore, whether the vibration caused by the collision between both ships was certainly larger than that caused by the striking of swell on the hull(according to the Accused, Goel and Dodla, the skipper of the "Jih Tong no. 268", Kuo Ho-Feng, as well as the only survivor, Pamilo Colo, the weather was bad with rough sea at material time) and whether the natural vibration caused from the quick turn of the "Kasuga I" was sufficient to have the persons on board know of the occurrence of a collision are quiet questionable.
(b) Furthermore, on account of collision, "Kasuga I" 's port propeller got entangled with the net. Because of this, the vessel's speed slowed down, however, pursuant to the calculation conducted by the Dept. of Naval Architecture of National Taiwan Ocean Universtiy, the original speed of a two propeller containership which is of the same class as the "Kasuga I" is 21 knots, and with half horsepower the vessel's speed would still reach 16 knots. But if one of the propellers break down and only the other propeller is used, it will cause the main engine to be overloaded. If only 70% horsepower of the main engine takes effect, the vessel's speed could still reach 14 knots to 15 knots subject to the main engine's condition. Furthermore, in order to proceed in a straight forward direction, the vessel would have to maintain a helm angle of about 5 degree. Anyway, the long distance voyage would not be a problem. This can be proved by the reply written from Dept. of Naval Architecture of National Taiwan Ocean University. Furthermore, according to the chart, the collision pace is at long. 121-47E,Lat 25-45N which is only over 30 miles north of Taiwan, app. 100 miles off mainland China and several hundred miles off Okinawa, Japan. If the accused, Goel et.al., clearly know of the collision and still fled without making rescue at the risk of violating the international law of the sea, they are sure to know the grave consequences caused by their behavior and must cautiously plan which port they should go for repair. And as they would have no problem in completing the voyage, the port they would have chosen to call for repair would have been one that was most difficult to be located by the country where the fishing boat collided. Therefore, it is very unlikely that the accused, Goel et.al. would call upon the Keelung port, which is the closest to the collision site, for repair. As to the Public Prosector's allegation that the "Kasuga I" sped up to escape after collision, for which a fax record obtained from an unknown party was attached for evidence, since the above fax record did not carry anyone's name/signature, its authenticity cannot be proved. After inquiring in writing with the Suao Fishermen Association of Yi Lan county, they replied that the fishery radio station of their Association received a notice after the "Jih Tong no. 6" was hit. A copy of the letter from the above Association dated Maarch 12,1997(Su Yi Tuei Tse no 230) can be used as evidence. Furthermore, after this court inquired in writing with a copy of the aforesaid fax record to the Navy, the Navy replied that "During the period from 2000 to 2100 hours on Feb 5,1996 only our radar station in Shan Chih, in the relevant area, detected an uncertain merchant vessel proceeding northeasterly. No records show that any message had been sent by fax to the Suao Fishermen Assoc. According to our telephone conversation with Mr. Chen, Chief of the Promotion Dept. of Suao Fishermen Asoc, they also could not find out from where the said fax had been sent." This can be evidenced by a letter from the Navy dated April 25,1997(Han Jan Tze 01153 of 1997). Under these circumstances, the said fax record cannot be considered as evidence of the crime. The Filipino seaman who is the sole survivor in this incident denied that he had claimed that the "Kasuga I" had sped up to escape after collision. Considering that his own life was in danger,one cannot expect him to have observed the "Kasuga I" speed. Furthermore, the Accused contended that when he noted the vesel's speed had slowed down, he tested the engine by increasing and decreasing the speed ,but most of time kept it at 16 knots. This generally meets the calculation related to the vessel's speed made by the Dept. of Naval Architecture of National Taiwan University. Since the "Kasuga I"s speed was reduced due to the port propeller's entanglement with the fishing net, she obviously could not flee by increasing speed. Therefore, whether the Accused knew of the collision shall not be based on whether the "Kasuga I" was speeding up to flee the collision site.
(c) Although it is quite questionable that the Accused, Goel, wrongly recorded in the log book the time at which the vessel's speed was reduced as 0010 hours, feb 6, 1996, he contended that when he contacted the principal in Hong kong in consideration of the warranty for the vessel's speed provided in the charterparty, the principal instructed him to enter such record fro the charterer's future check and examination. The principal also asked him to mark the exact time on the chart for their reference. After making reference to the international charterparty, the term regarding the warranty for vessel's speed was approved to be true. As the charterparty of the "Kasuga I" was not seized, this court was unable to examine it. Although the time recorded by the accused, Goel, the log book was later than the exact time by several hours, he marked on the chart the exact time at which the "Kasuga I"s speed was reduced, i.e. Feb 5, 1996, 2040 hrs. If the accused, Goel, attempted to shirk his responsibility by recording the wrong time,why then did he mark the exact time on the chart? It seemed descrepant. Therefore, this court deemed that the Accused, Goel and Dodla, cannot be considered to have clearly known of the collision only based on the record on the log book. With regard to the fact that before the "Kasuga I" arrived at the Keelung Port, she had originally berthed at the outer anchorage and a repair worker was requested to conduct a repair job at the outer anchorage through the night, the Accused, Goe, contended that the "Kasuga I" was originally not scheduled to call upon any Taiwanese Ports, and according to his previous experiences, they would not be allowed to enter into any ports if an application for approval was not made in advance. Therefore, they waited at the outer anchorage for the pilot. Later, after the shipping agent in Keelung applied for an emergent entrance to inner anchorage on their behalf, they were allowed to enter the port for repair. The reason why they stayed at the outer anchorage was not due to a guilty conscience or fear of punishment. The witness Cheng Ming-Jeng, the responsible person of Prosperity Shipping Co., Ltd., also testified that he had applied for an emergent entrance to the port with the KHB on the "Kasuga I"s behalf. His testimony was in conformity with the accused contention. Moreover, should the accused, Goel and Dodla, have been afraid of entering the Keelung Port, when the repair worker was unwilling to do a repair job at outer anchorage, the accused, Goel would have ordered to sail to the other ports especially so since the "Kasuga 1" was still capable of navigation. They would not have run the risk of being found and siezed upon entering the port. And if the accused, Dodla, knew of the collision, he certainly would have stopped the Master from entering the port. In light of the above, it is hard to say that the accused, Goel and Dodla, clearly knew of the collision and intentionally violated the obligation of assistance and rescue.
(3) Moreover, even if both the accused did know of the collision with the "Jih tong No.6" and fled away without making rescue, whether it is sufficient to prove that they have committed the offense of abandonment resulting in death is still questionable. When one is aware of the occurrence of an incident, it does not mean that one should be aware of someone's helplessness. It is necessary to further investigate whether the actor knew of the severity caused by the collision and whether he knew that someone's life was in a danger and that they needed to be rescued. Otherwise, if it can only be proved that the actor only knew of the occurrence of an incident and no evidence shows that he knew that the incident had caused someone's life in danger, this does not meet the constituent elements of the offense of abandonment. The accused above act can only be the reason for increasing the punishment imposed on them however they should not be considered to have committed the offense of abandonment. According to circumstances at that time, the accused, Goel and Dodla, could have probably been aware of the collision. However, since the damage caused by a vessel's collision shall differ according to the severity of the collision, it may not have resulted in a vessel's sinking and someone's death. At the material time, only Dodla was on the Bridge. He was obviously unable to check or ascertain whether the collision had put the crewmembers of the "Jih Tong No.6" in a dangerous situation. As to Goel, he came up on to the Bridge after the collision, and he was therefore not in a position to know of the severity of the collision. Whether both the accused knew that the "Jih Tong No.6" crewmembers were helpless shall not merely be based on surmise. Therefore, this court was of the opinion that all evidence in hand were insufficient to prove that both the accused clearly knew that the "Jih Tong No.6" crewmembers were helpless and that the accused abandoned them intentionally.
9. Article 268 of the Code of Criminal Procedure states that a court shall not try a crime for which prosecution has not been initiated. In this case, the Prosecutor initiated a prosecution against the accused alleging commission of the offense of abandonment resulting in the lost of human life in accordance with Paragraph 2, Article 294 of the Criminal Code. The Prosecutor did not initiate a prosecution against the accused alleging the commission of the offense of himicide through negligence in the performance of their occupations. It is impossible that the accused on the one hand committed the offense of homicide through negligence in the performance of one's occupation specified in Paragraph 2 of Article 276 of the Criminal Code and on the other hand committed the offense of abandonment that resulted in one's death specified in paragraph 2, Article 294 of the same code. The original judgement determined that the accusation regarding the commission of the offense of abandonment resulting in one's death was Not Guilty. The original judgement also adjudicated the portion that has not been initiated by the Public Prosecutor with regard to the commission of offense of abandonment that resulted in one's death. It is hard to say that the original judgement is not in violation of law given that a court should not decide a matter it was not requested to decide. Although the appellants appeal did not mention this issue, since the original judgement contains the above mentioned disputable issue, this court may revoke the portion involving Goel and Dodla and announces a "Not guilty" judgement in favour of Goel and Dodla.
In conclusion, a judgement is rendered as per the Syllabus in accordance with Paragraph 1, Article 364 and Article 301 of the Code of Criminal Procedure.
Dated this 12th day of August, 1998.
Taiwan High Court, 15th Criminal Chamber.
Presiding Judge: Fang Ah-Sheng
Judge: Hsiao Yang-Kewi
Judge: Lai Yuan-Chieh