Appellant: Public Prosecutor of the Prosecutor's Office of the Taiwan High Court.
Appellants (i.e. Accused): RAJ KUMAR GOEL & YOGANARSIMHA R. DODLA
Co-Defense Attorneys: Colin C. Chen, Attorney-at-Law
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The above named appellants were not satisfied with the judgement Su Tze No.125 of 1996 made by the Taiwan High Court alleging the commission of offenses of abandonment and hence filed an appeal with this court. This Court adjudicated as follows:
The portion of the High Court judgement regarding Raj Kumar Goel and Yoganarsimha Dodla is hereby revoked and shall be remanded to the High Court for re-trial.
1. Jurisdiction
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.
2. The High court dismissed the appeals filed by the Public Prosecutor and the accused. It upheld the judgement made by the District Court which found that the accused had committed the offense of homicide through negligence in the performance of their occupation punishable by four years imprisonment. Article 268 of the Code of Criminal Procedure clearly provides 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 person's death in accordance with Paragraph 2, Article 294 of the Criminal Code. The following facts were established by High Court itself. 1) "The Master and the 3rd Officer clearly knew that in order to ensure navigational safety, a watch with sufficient crew must be maintained. The "Kasuga 1" was scheduled to have two crew on duty. However, the accused did not notify the helmsman Arvind Kumar V. Tandel, who was scheduled to be on duty with the 3rd Officer, to report to the bridge". 2) "The 3rd Officer should have paid closer attention to the fishing boats which were in operation nearby to ensure navigational safety"; and 3) "at that time, the 3rd Officer should have immediately taken actions sufficient to avoid collision, such as making a wide turn. Nevertheless, the 3rd Officer failed to take such actions and only made a turn to starboard side of 10 degrees via ARPA."
The Prosecutor's indictment did not mention the above facts. It is quite clear that the Prosecutor did not initiate a prosecution against the accused alleging the commission of the offense of homicide through negligence in the performance of their occupations. The High Court found the accused "Not Guilty" in the matter of the commission of abandonment. It is therefore difficult to say that the High Court's further judgement on the portion of the case which was not initiated by the Prosecutor (i.e. the portion alleging the offense of homicide through negligence in the performance of one's occupation) was not in violation of the 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 it is a matter the Court may investigate ex-Officio, this Court deemed that the relevant portion of the High Court judgement should be revoked and remanded to the High Court for re-trial. The "Not Guilty" portion shall also be revoked and remanded to the High court for re-trial.
In conclusion a judgement is rendered as per the Syllabus in accordance with Articles 397 and 401 of the Code of Criminal Procedure.
Dated this 9th day of April, 1998
The Supreme Court, 1st Criminal Chamber
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Appellant: Public Prosecutor of the Prosecutor's Office of the Taiwan High Court.
Accused: RAJ KUMAR GOEL & YOGANARSIMHA R. DODLA
With regard to the suspicion of the above Accused for having committed the offense of abandonment, the appellent was not satisfied with the Taiwan High Court judgement and hence filed an appeal with this Court. This Court hereby adjudicates as follows:
The High Court's judgement is set aside and remanded to the High Court for retrial.
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. The legal effect of prosecution for the offense of negligently killing another in the performance of one's occupation shall not be affected by the fact that the Public Prosecutor failed to cite Article 276 of the Criminal Code as the article of the law violated. The High Court acted improperly by setting aside the District Court judgement simply on the grounds that the Public Prosecutor failed to initiate prosecution against the accused for the offense of negligently killing another in the performance of one's occupation. The High Court's judgement is inappropriate.
Upon subjectively examining , it is unquestionable that the 3rd Officer was aware of the collision with the fishing boat. Further , the Captain immediately looked out from the portside watch tower after receiving the 3rd Officer's call and admits the he saw the fishing boat the 3rd Officer had earlier made attempts to avoid. The comments of the High Court explaining why it did not take the above facts and evidence into consideration are unacceptable. The High Court's judgement of "Not Guilty" is contrary to law and the Public Prosecutor's appeal is founded on reason. The High Court judgement shall hence be set aside and remanded for re-trial.
In conclusion, a judgement is rendered as per the Syllabus in accordance with Article 397 and Article 401 of the Code of Criminal Procedure.
Dated this 9th day of December, 1998.
Taiwan Supreme Court, 3rd Criminal Chamber