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Docket No. Shang Tze No.243 of 1998
Accused: Raj Kumar Goel & Yoganarsimha Dodla
With regards to the case concerning the charge of the above-mentioned accused on the offense of abandonment resulting in death, a judgement was handed down by the Taiwan High Court on 12 August, 1998. The Prosecutor received the written judgement on September 16, 1998. As the verdict of the High Court is contrary to the law, an appeal has been entered on September 26, 1998. The Prosecutor hereby supplements the reasons for appeal as follows:
1.
The accused Goel, Captain of the "Kasuga 1", in the course of the interrogation held at the Keelung detention center on Feb.15, 1996 made a statement that at 2045 hours, Feb.5, he immediately headed for the bridge upon receiving a call from the 3rd Officer. The 3rd Officer informed him that there had been a small boat with no lights directly ahead of the "Kasuga 1", but was unsure of the distance between the small vessel and their ship. As the containers stowed on deck hindered his line of sight, the 3rd Officer claimed he was soon unable to see the boat whereupon the Captain went to the watchtowers at both starboard and port sides to assess the situation. Per the information from the central weather conditions on Feb.5, 1996 from 2000 to 2200 hours indicated sparse cloud cover and no rain, visibility was estimated to be 12 nautical miles. A letter from the central Weather Bureau, in reply to the Keelung District Court's request, is evidence to that fact. To summarize upon receiving the 3rd Officer's call the Captain immediately headed for the Bridge (alleging that it only took him approximately 30 seconds to reach the Bridge) and surveyed the surrounding area from the watchtower at both sides of the "Kasuga 1". Since the visibility was clear for a considerable distance at the time of the incident, it is unreasonable to state that the Captain could not notice the fishing boat. The Captain contentions are not convincing.
2.
The accused Dodla, 3rd Officer of the "Kasuga 1" holds fairly high ranking and was incharge of the Bridge at the time of the incident. If the situation lacked that of a serious nature, such as that of a collision with another ship, someone of his experience and expertise should be able to handle the situation. More over, the 3rd Officer stated during his interrogation on Feb. 16, 1996 at the Keelung detention center that he "believed that we failed in avoiding a collision with an unlit fishing boat". Therefore, it can be stated with fair certainty that the 3rd Officer was aware of the collision with "Jih Tong No.6"
3.
Further more, the collision occurred on the High sea in the dark of night when the temperature of the seawater is considerably colder than during a sunlit day, therefore rendering the possibility of being rescued by a passing ship practically nil. Judging from common sense, it is hard to conclude that under such circumstances, the crew members of the "Jih Tong No.6" were capable of saving themselves.
4.
Even though the charge of the accused regarding the offense of abandonment resulting in death can not be established, they should be charged with the offense of negligently killing another in the 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 on which the prosecution was based. As it is impossible for the Public Prosecutor to simultaneously cite the above two articles in support of his prosecution, the charge against the accused of negligently killing another in the performance of their occupation should be deemed having been initiated and can be tried by the court.
5.
In conclusion, the High Court's judgement is contrary to the law in accordance with Article 378 and item 14 of Article 379 in the Code of Criminal Procedure. An appeal is hence submitted in accordance with Article 344, Paragraph 1 and Article 375, Paragraph 1 of the Code of Criminal Procedure. Your honourable court is requested to hereby revoke the High Court judgement and remand this case back to the High Court for retrial.
Respectfully submitted to: The Supreme Court , C/O The Taiwan High Court.
Dated this 18th day of October,1998.
Public Prosecutor: Wang An-Ming
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