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INDICTMENT ISSUED BY HUALIEN DISTRICT PROSECUTORS OFFICE OF TAIWAN

File No.: 2009-chen-tzu-ti-1873 Section in Charge: Chieh Section

Defendants : KARIM MOHAMMAD REZAUL Date of Birth: April 15, 1981 Nationality: Bangladesh Passport No.: V0149777 currently in custody at Hualien Detention House in Taiwan : AROZA GLEN PATRICK Date of Birth: March 17, 1972 Nationality: India Passport No.: Z1730530 : Eduardo JR, Caballero Mallorca Date of Birth: January 28, 1978 Nationality: Philippines Passport No.: RR0098704 Selective Defence Counsels (acting jointly for the above three defendants) : Cheng Shuei-Wen (Vincent), attorney-at-law Liu Yang-Hao (Howard), attorney-at-law

The Defendants are accused of the crime of manslaughter by desertion, and

investigation thereof has been closed. The Prosecutor holds that the Defendants should

be prosecuted. The facts and evidence of crime committed, and the related laws are

described hereunder.

Facts of Crime Committed

1. The Defendants AROZA GLEN PATRICK (hereinafter referred to as Captain

AROZA), KARIM MOHAMMAD REZAUL (hereinafter referred to as 2nd Officer

KARIM), and MALLORCA EDUARDO JR. CA BALLERO (hereinafter referred to as

AB MALLORCA) are employees of NYKSM, a Japan-based shipping company. The

Defendants were dispatched to work on TOSA, a Panama registered tanker owned

by NYKSM, as Captain, 2nd Officer, and AB, respectively. In the evening of April 14,

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2009 the Defendants, together with the Chief Officer and the Junior Chief Officer,

steered TOSA which had departed from Port of Daesan, Korea and was heading for

Singapore while navigating along the edge of the Pacific Ocean southward in a

direction of 200 degrees from the north. Captain AROZA was accountable for the

tanker’s safety and prevention of a collision. At 22:15, April 16, 2009, the TOSA

commanded by Captain AROZA shall be entering the fishing traffic located west-

northwesterly to the Senkaku Shoto in accordance with a scheduled route, and thus

TOSA was likely to be confronted with expected or unpredictable emergency; hence,

he should be on the alert. Also, a Captain of a vessel should give an appropriate

order or instruction concisely to prevent a collision, pursuant to International Safety

Management (ISM) Code, Article 5.1.3. However, 2nd Officer KARIM was a new

hand and AB MALLORCA, an assistant to 2nd Officer KARIM, was unable to

substitute for 2nd Officer KARIM, because AB MALLORCA’s experience is

insufficient to compensate for 2nd Officer KARIM’s inexperience. Any order made

should be feasible and executable rather than just attributable to paperwork

conducted with the sole purpose to fool around. Unexpectedly, Captain Aroza

indulged himself with sleeping and therefore chose to give an order in writing, by

putting in the Night Order Book the following words: the crew on duty should

maintain a relatively large safety distance and navigate the tanker along the

scheduled route. The aforesaid words are abstract and vague. Hence, Captain Aroza

failed to exercise a duty of care that entails instructing, in a concrete and definite

manner, a sailor on duty as to what action to take in order to prevent a collision and

thereby ensure safety of navigation. Nor did Captain Aroza let the crew on duty

know under what situation should the sailors on duty ask him to come to the

bridge/steering room to steer the tanker personally or to appoint a competent crew

to steer the tanker, so as to prevent a collision, but simply went to the Captain’s

cabin to take a rest therein.

2. At 23:00, April 16, 2009, 2nd Officer KARIM and AB MALLORCA took over the

Junior Chief Officer’s shift so that 2nd Officer KARIM started to steer the tanker in

the steering room and AB MALLORCA started to work as a lookout man and

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operate the helm as instructed by 2nd Officer KARIM. At the moment when he took

over the Junior Chief Officer’s shift, 2nd Officer KARIM knew that plenty of moving

or stationary vessels were found at the sea about 9 nautical miles in front of TOSA,

and the Junior Chief Officer told 2nd Officer KARIM that the ARPA radar installed

on TOSA had long been automatically receiving AIS information “two China

registered fishing boats (ZHEYUYU 1998 and ZHUYUYU 4195), Targets A and B for

short”, and that two other vessels, namely Taiwan registered fishing boats Shin

Tomg Chyuan No. 82 (Target 1 for short) and Shin Tomg Chyuan No. 86 (Target 2

for short), had been manually locked as targets. During the period of time he was on

duty, 2nd Officer KARIM was the commander of TOSA. The 1972 Convention on the

International Regulations for Preventing Collisions at Sea, Rules 8, 15, 16, and Rule

18, Paragraph 1, Item 3 provide: a power-driven vessel underway shall keep out of

the way of a vessel engaged in fishing; a succession of small alterations of course

and/or speed should be avoided; should avoid a close-quarters situation with

another vessel; action taken to avoid a collision with another vessel shall be such as

to result in passing at a safe distance, and the effectiveness of the action shall be

carefully checked until the other vessel is finally past and clear. In fact, 2nd Officer

KARIM was well aware that a large tanker close to a small vessel could bring about

enormous sucking currents that suck and endanger the small vessel. The then

situation was not unpredictable; hence, 2nd Officer KARIM was obligated to take

definite measures promptly to avert danger, for instance, distancing TOSA from its

original course so as to give way to the fishing boats operating at the sea ahead.

Unexpectedly, 2nd Officer KARIM ignored the dangerous situation and failed to

take prompt measures to avoid a collision or decelerate TOSA; hence, 2nd Officer

KARIM put TOSA on the brink of disaster as TOSA was edging toward an alarm

area where a collision between any vessel therein and TOSA was imminent. Still, at

23:38 on the same day, TOSA was advancing recklessly at 11.4 knots at the location

N 25° 48' 32", E 123° 05' 311". By 23:41 on the same day, TOSA had arrived at the

location N 25° 47' 587", E 123° 05' 134", and, although the radar warned that the

locked vessels were approaching TOSA, 2nd Officer KARIM ignored the radar

warning again and failed to take any emergency measures. 2nd Officer KARIM was

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surprised to find that TOSA was close to China registered fishing boat Target B just

before TOSA was going to collide with Target B. In an attempt to prevent TOSA

from colliding with Target B, 2nd Officer KARIM ordered AB MALLORCA to turn

the helm to port by 20°, but 2nd Officer KARIM did not consider the likelihood that

turning TOSA to port persistently at the same high speed in an attempt to avoid a

collision would cause TOSA to dash in the direction of Target 1 and Target 2.

Steered by 2nd Officer KARIM, TOSA skirted China-registered fishing boat Target B

by a distance of 0.18 nautical mile therebetween; meanwhile, 2nd Officer KARIM

realized that it was impossible to instantly decelerate or stop TOSA within a short

distance and that TOSA’s collision with fishing boats Target 1 and Target 2 was

imminent. Hence, 2nd Officer KARIM hurriedly ordered AB MALLORCA to make a

quick evasion by turning a large angle with the hard-port helm. Subsequently, at

23:50:02 on the same day, TOSA arrived at the location N 25° 46' 232", E 123° 05' 186",

and thus the bow of TOSA still passed the port bow of Shin Tomg Chyuan No. 86

quickly. Ho Hsi-Chuan, the captain of Shin Tomg Chyuan No. 86, found a short

distance of less than 0.095 nautical miles (as indicated by VDR data) between Shin

Tomg Chyuan No. 86 and TOSA and therefore did his level best to attempt to evade

TOSA. However, Shin Tomg Chyuan No. 86 is a large trawler of model CT4-2790

that weighs 99.81 tons, but TOSA has a loaded weight of more than 300,000 tons.

Hence, TOSA is much larger and heavier than Shin Tomg Chyuan No. 86. As a

result, Shin Tomg Chyuan No. 86 could not resist the enormous suction from TOSA;

hence, Shin Tomg Chyuan No. 86 was sucked by the current created by the trail left

behind by TOSA and then hit by the billows generated by TOSA, thus ending up

with an extensible crane broken and the fishing vessel being unstable. Hence, 11

sailors aboard Shin Tomg Chyuan No. 86, namely Chen Chi-Ming, Sun Shih-Chou,

Trisukasih, Magadia Arvin Andaya, Tasiwan, Magadia Fernando Jrandaya, Rasiwan,

Asroni, Muktarudin, Adikin, and Taufikurrohman saw the large TOSA approaching

quickly and Shin Tomg Chyuan No. 86 being destined to be hit by TOSA, and thus

the 11 sailors, who found it too late to put on safety jackets or take any emergency

measures or protective measures, leapt overboard when bare-handed or gripping

float balls or buoys. The 11 sailors afloat had to fight against billows at sea in a life-

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threatening predicament in the night. Captain Ho Hsi-Chuan attempted to reverse

Shin Tomg Chyuan No. 86 and aimed a spotlight at the bridge/steering room of

TOSA with a view to sending an alert signal to TOSA. However, Captain Ho Hsi-

Chuan made the endeavor to escape the doom in vain, as he and chief engineer Hsu

Tsung-Wen failed to leap overboard in time but sank together with the capsized

Shin Tomg Chyuan No. 86; meanwhile, 2nd Officer KARIM was well aware that

Shin Tomg Chyuan No. 86 had capsized and fully understood that in accordance

with Article 98 of the United Nations Convention on the Law of the Sea, after a

collision, in so far as he can do so without serious danger to the ship, the crew or the

passengers, to render assistance to the other ship, her crew and her passengers. 2nd

Officer KARIM was also well aware that sailors of Shin Tomg Chyuan No. 86 might

lost overboard after Shin Tomg Chyuan No. 86 had been hit. Unexpectedly, 2nd

Officer KARIM did not continue to use the hard-port helm and search a large area of

the sea on the port side of TOSA for the sailors afloat and endangered so as to fulfill

his legal obligation of rescue; instead, 2nd Officer KARIM ordered AB Mallorca to

switch to starboard helm operation so as to flee the scene of the collision.

3. AB Mallorca followed the instruction of 2nd Officer KARIM to steer TOSA and was

just a sailor who was not empowered to instruct the crew of TOSA to launch a

rescue operation after the accident. Owing to his own limitations and environmental

limitations, AB MALLORCA was unable to take any measures to launch a rescue

operation. Before and during the accident, AB MALLORCA was working inside the

steering room/bridge, that is, taking charge of work related to TOSA, that is,

monitoring and recording weather, sea condition, and visibility, operating the helm,

and steering the tanker. Hence, AB MALLORCA witnessed alarm signals being sent

from the Captain of Shin Tomg Chyuan No. 86 by using a spotlight. At 23:53:53 on

the same day, AB MALLORCA told 2nd Officer KARIM, “the light spot is gone and

out of sight.” In response, 2nd Officer KARIM said, “I don’t think any thing has

happened, do you understand? … nothing happened…” Hence, both AB

MALLORCA and 2nd Officer KARIM were well aware of the accident, and, under

the law, they should have allowed TOSA to stop at the scene of the accident so as to

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rescue the drowning sailors, and they should have asked Captain AROZA to come

to handle the accident in the aftermath thereof. Unexpectedly, in an attempt to evade

the liability for the accident, AB MALLORCA, who had conspired with 2nd Officer

KARIM, still followed the instruction, at 23:51 on the same day, from 2nd Officer

KARIM to steer TOSA back to the original course by the hard-starboard rudder,

gradually increase the speed of TOSA from 7.5 knots to 12 knots, change the

direction of TOSA from 52.7 degree to 220 degree, and eventually enable TOSA to

flee the scene of the accident at an accelerated speed. At 00:30 next morning, the 11

sailors, namely Chen Chi-Ming, Sun Shih-Chou, Trisukasih, Magadia Arvin Andaya,

Tasiwan, Magadia Fernando Jrandaya, Rasiwan, Asroni, Muktarudin, Adikin, and

Taufikurrohman were rescued by Shin Tomg Chyuan No. 82 fishing vessel in the

vicinity of the scene of the accident and, luckily, their lives were spared. At 00:47,

April 17, the Coastal Patrol Directorate General (under the Coast Guard

Administration of the Executive Yuan) received the accident report, set up an

emergency response center, and promptly dispatched patrol cruiser Lien-Chiang of

the Northern Sector Flotilla, cruiser RB02 of the Keelung Flotilla, and cruisers 6001

and 10023 of the Su-Ao Flotilla to the scene of the accident to carry out a rescue

operation therein. From 01:45, Japan Coast Guard dispatched CHIKU ZEN (a patrol

vessel equipped with a helicopter) and PS-11 (a civil servant ship staffed with

special rescuers) to help with the search for the missing sailors; however, Ho Hsi-

Chuan, the Captain of Shin Tomg Chyuan No. 86, had been drowned, and chief

engineer Hsu Tsung-Wen were confined to the capsized Shin Tomg Chyuan No. 86

and dead. Hence, both of them were not found by the sailors afloat at sea and the

rescue vessels. Afterward, the Coast Guard Administration made reference to data

provided by the Ministry of National Defense, Ministry of Transportation and

Communications, and Japan Coast Guard and thereby determined that TOSA, a

Panama-registered tanker, was suspected to be accountable for the accident. Hence,

at 08:20, April 17, at a location about 55 nautical miles northeast to Hualien, TOSA

was intercepted by cruiser Hualien and cruiser 10023 dispatched by the Coast Guard

Administration. However, in an attempt to cover up the crime he had committed,

2nd Officer KARIM did not put down the causes of the accident in the vessel's log

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book as otherwise required. Accordingly, ignorant of the accident, Captain AROZA

was so confused that he refused to be interrogated by an investigator, thereby

resulting in a stalemate therebetween. In the early morning of April 18, the Coast

Guard Administration was instructed to dispatch cruiser 10029 to lend support to its

counterparts. At 07:05, April 18, cruiser 10029 and cruiser Hualien met. At 07:20,

cruiser 10029 sent a boat to the surround of TOSA to search for evidence, and the

boat discovered a dubious scratch on the left side of the bow of TOSA and found

that the scratch was stained with white paint and the rudder blade was entangled

with fishing net and buoys. In view of this, cruiser 10029 and cruiser Hualien were

prepared to detain TOSA pursuant to Article 16 of the Law on the Exclusive

Economic Zone and the Continental Shelf of the Republic of China but were

eventually unable to board TOSA due to adverse weather. It was not until 08:40,

April 18 did Captain AROZA agree, upon communication with the investigator, to

go to the Port of Hualien to be investigated therein. At 9am, a representative of the

Singapore Branch of Japan-based NYKSM agreed to allow TOSA to enter the

territory of Taiwan to be investigated. At 10am, cruiser 10029 and cruiser Hualien

started to escort TOSA to an anchorage outside the Port of Hualien. At 17:20, a

prosecutor of the Prosecutors Office and Cheng Hsiao-Kuei (the division head of the

Forensic Science Division, Criminal Investigation Bureau) got aboard a cruise of the

Coast Guard Administration to encircle TOSA so as to carry out an evidence

collection operation. Also, the Prosecutors Office appointed a prosecutor to lead

officers of the Coast Guard Administration and officers of the Hualien Harbor

Bureau onto TOSA to conduct maritime and criminal investigation. A total of 17

documents, such as log book, a GPS track record, a navigation chart, a vessel

navigation course record, and an engineer operation record, which were all stamped

by Captain AROZA, were brought back to the Prosecutors Office. In the morning of

April 19, the Hualien Harbor Bureau dispatched a pilot ship to take the Chief Officer

of TOSA, AB MALLORCA, and 2nd Officer KARIM to the Hualien Coastal Patrol

Office for investigation, and an identification officer aboard a small fishing boat

approached TOSA to examine, at a short distance away from TOSA, any marks left

on the surface of the hull of TOSA and took samples of the standard paint on the

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hull of TOSA. On April 20, the prosecutors of the Prosecutors Office finished

interrogating 2nd Officer KARIM and AB MALLORCA, and held that 2nd Officer

KARIM and AB MALLORCA had committed the crimes of desertion leading to

other people’s death, causing an accident and fleeing, and involuntary manslaughter.

To ensure subsequent investigation, the prosecutor immediately sent a letter to the

National Immigration Agency under the Ministry of Interior to impose departure

restriction upon 2nd Officer KARIM and AB MALLORCA. At 15:45 on April 21, the

prosecutor dispatched officers to board TOSA to remove the voyage data recorder

(VDR) from TOSA. On April 22, the owners of TOSA hired and dispatched a new

Captain and a new 2nd Officer to work for TOSA, and Captain AROZA alighted

from TOSA so as to be interrogated. On April 24, the prosecutor sent a letter to the

National Immigration Agency under the Ministry of Interior to impose departure

restriction upon Captain AROZA, thereby confining the three defendants’ residence

to Hualien City. During the period of time from 16:13 to 18:47 on April 29, the

prosecutor of the Prosecutors Office led the coastal patrol personnel and

identification personnel of the Hualien County Police Bureau to board TOSA via the

pilot ship again to carry out an evidence collection operation. At 17:05, April 30, a

rescue ship towed the wreckage of Shin Tomg Chyuan No. 86 back to the Port of Su-

Ao. At 18:20, April 30, six divers (two from Su-Ao Coastal Patrol Squadron, and four

from the Lan-Yan Rescue Association) went underwater to collect evidence.

However, fishing nets abound deep down the sea, and thus the divers were unable

to go into the cabin of the sunken Shin Tomg Chyuan No. 86. Afterward, the Army’s

underwater operation squadron lent a helping hand to the evidence collection

operation at the prosecutor’s request, only to find that the attempt to go into the

cabin of the capsized Shin Tomg Chyuan No. 86 was made in vain again. Afterward,

three hoists and a bulldozer were brought in to help with the evidence collection

operation and eventually proved useless to enable the capsized Shin Tomg Chyuan

No. 86 to stand upright. Considering that the crimes committed by 2nd Officer

KARIM, such as desertion leading to other people’s death, are felonies, the

prosecutor successfully petitioned to the court to give a ruling on putting 2nd

Officer KARIM in custody. It was not until 15:44, May 1 were two heavy-duty hoists

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deployed to hoist the hull and was air pumped into the hull so that the capsized

Shin Tomg Chyuan No. 86 stood upright successfully and emerged from water to be

afloat. Later, water was drained out of the cabin. The identification personnel of the

Criminal Investigation Bureau and members of a task force of the Coast Guard

Administration found the corpse of Hsu Tsung-Wen in the engine room entrance. At

that point, all the facts and exhibits related to TOSA had been made clear and

verified. On the same day, TOSA was steered by the newly hired crew thereof and

escorted by a cruiser of the Coast Guard Administration so as to depart from the

territory of Taiwan, Republic of China.

4. In response to the complaints made from Chen Chi-Ming, Sun Shih-Chou,

Trisukasih, Magadia Arvin Andaya, Tasiwan, Magadia Fernando Jrandaya, Rasiwan,

Asroni, Muktarudin, Adikin, Taufikurrohman, Ho Huang Hsiu-Hsia, Ho Wen-

Chieh, and Liu Su-Chen, the 6th Offshore Flotilla of the Coastal Patrol Directorate

General (under the Coast Guard Administration, Executive Yuan) handed over this

case to this Prosecutors Office.

Exhibits and the texts of the laws governing the crimes committed are as follows:

1. The checklist of exhibits and facts to be proved are as follows:

No. Exhibits The Facts to be Proved

1 Statements given by

Defendant KARIM during

the interrogation of the

police and prosecutor.

1. The fact that Defendant KARIM was in charge of

navigation of TOSA from 23:00 April 16, 2009 to

03:00 April 17, 2009

2. The fact that, at the aforesaid time and place,

Defendant KARIM instructed AB MALLORCA to

evade the fishing boat Shin Tomg Chyuan No. 86

urgently by turning TOSA away therefrom by a

large angle with the hard-port rudder.

2 Statements given by

Defendant MALLORCA

1. The fact that Defendant MALLORCA was

instructed, at the aforesaid time and place, by

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during the interrogation

of the police and

prosecutor.

Defendant KARIM to evade the fishing boat Shin

Tomg Chyuan No. 86 urgently by turning TOSA

away therefrom with the hard-port rudder.

2. The fact that, at the moment when the accident

happened, Defendant KARIM went to the

platform on the right wing of the steering room of

TOSA to look out the surroundings.

3 Testimony given by

Defendant AROZA

during prosecutor’s

interrogation

1. The fact that, at the moment when the accident

happened, Defendant KARIM should have been

aware if a spotlight calling for help had been

emitted from the fishing boat Shin Tomg Chyuan

No. 86 and fallen on the steering room of TOSA.

2. The fact that TOSA should have received a

Mayday if an electromagnetic distress message

was sent from Shin Tomg Chyuan No. 86 just

before the latter capsized, and thereby was

obligated to rescue the latter.

4 Testimonies given by

witnesses, i.e., the 11

survivors of Shin Tomg

Chyuan No. 86, including

Chen Chi-Ming, et al.,

during the interrogation

of the police or prosecutor

The fact that the fishing boat Shin Tomg Chyuan No.

86 was pushed, pressed, and hit by TOSA and

eventually capsized at the aforesaid time and place

5 Testimony given by

witness Huang Jen-Ho,

the Captain of the fishing

boat Shin Tomg Chyuan

No. 78, during

prosecutor’s interrogation

1. The fact that the fishing boat Shin Tomg Chyuan

No. 86 was pushed, pressed, and hit by TOSA and

eventually capsized at the aforesaid time and

place

2. The fact that Captain Ho Hsi-Chuan of the fishing

boat Shin Tomg Chyuan No. 86 sent out a

Mayday by way of wireless radio at the moment

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when the accident happened

6 Testimony given by

witness Lee Cheng-

Chung, the Captain of the

fishing boat Shin Tomg

Chyuan No. 82, during

prosecutor’s interrogation

1. The fact that the fishing boat Shin Tomg Chyuan

No. 86 was pushed, pressed, and hit by TOSA and

eventually capsized at the aforesaid time and

place

2. The fact that Captain Ho Hsi-Chuan of the fishing

boat Shin Tomg Chyuan No. 86 sent out a

Mayday by way of wireless radio at the moment

when the accident happened

7 Testimony given by

witness Chen Wen-Li

during interrogation of

the police and prosecutor

1. The fact that the fishing boat Shin Tomg Chyuan

No. 86 was owned by the witness Chen Wen-Li

and registered as a Taiwanese fishing boat.

2. The fact that, on April 15, 2009, 13 crew members

of the fishing boat Shin Tomg Chyuan No. 86,

including Captain Ho Hsi-Chuan, steered Shin

Tomg Chyuan No. 86 toward the sea for fishing

8 Testimonies given by

witnesses Hsu Kuo-Ching

and Chu Cheng-Kuo

during prosecutor’s

interrogation

The fact that, on April 16, 2009, Defendant AROZA

who was aboard TOSA put down a wrong

instruction/order in the night order book

9 A record of conversations

inside the bridge of TOSA

(23:36:32, [April 16, 2009]

through 00:16:36, [April

17, 2009]) and a

translation thereof

The fact that Defendants KARIM and MALLORCA

were aware that navigation of TOSA had caused the

fishing boat Shin Tomg Chyuan No. 86 to capsize.

10 The VDR record of TOSA 1. The fact that, to evade a China-registered fishing

boat (Target B), TOSA quickly passed the port

bow of Shin Tomg Chyuan No. 86 while being

spaced apart therefrom by a mere 0.095 nautical

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mile at 23:50:02 (16th April 2009).

2. The fact that, given the difference in weight

between TOSA and the fishing boat Shin Tomg

Chyuan No. 86, a distance of 0.095 nautical mile

therebetween was sufficient to cause a strong

sucking current whereby the fishing boat Shin

Tomg Chyuan No. 86 was sucked and

overturned, and in consequence, the fishing boat

Shin Tomg Chyuan No. 86 vanished from a radar

screen of TOSA

11 A report made by the

Criminal Investigation

Bureau, Ministry of

interior on evidence

collected from the

wreckage of the fishing

boat Shin Tomg Chyuan

No. 86

The fact that the hull of the fishing boat Shin Tomg

Chyuan No. 86 was damaged.

12 A report made by the

Keelung Harbor Bureau,

Ministry of

Transportation and

Communications on a

maritime case

All the facts about the crime

13 A certificate of

registration of the fishing

boat Shin Tomg Chyuan

No. 86

The fact that the fishing boat Shin Tomg Chyuan No.

86 was a Taiwanese fishing boat.

14 Notes taken by the

Prosecutors Office on

April 19, 2009 and April

1. The fact that, at the moment when the accident

happened, Defendant KARIM should have been

aware if a spotlight calling for help had been

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29, 2009 regarding

inspections of TOSA

emitted from the fishing boat Shin Tomg Chyuan

No. 86 and fallen on the steering room of TOSA

2. The fact that TOSA should have received a

Mayday if an electromagnetice distress message

was sent from Shin Tomg Chyuan No. 86 just

before the latter capsized.

3. The fact that functions of the APRA radar installed

in the steering room of TOSA, that is, giving a

warning about an imminent collision and

generating an alert sound, were normal.

15 A schematic diagram of

blind spots surrounding

the hull of TOSA

The fact that a pilot on duty on TOSA was always

aware of the locations of blind spots of TOSA

16 The Chinese translation of

the 1972 Convention on

the International

Regulations for

Preventing Collisions at

Sea

The fact that, immediately before the accident

happened, Defendant KARIM who was in charge of

the steering of TOSA was obligated to evade the

fishing boat Shin Tomg Chyuan No. 86 as soon as

possible.

17 Identification Report (No.

2009-yi-chien-tzu-ti-

0981101361) issued by the

Institute of Forensic

Medicine, Ministry of

Justice

The fact that chief engineer Hsu Tsung-Wen of the

fishing boat Shin Tomg Chyuan No. 86 fell into water

and drowned when the said accident happened.

18 Important reporting

records of Fishing Boats,

kept by the Fishery

Communications Radio

Station of the Su-Ao

District Fishermen’s

The fact that the fishing boat Shin Tomg Chyuan No.

86 was hit and overturned by TOSA at the aforesaid

time and place

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Association, at 00:00 on

April 17, 2009

19 The crew list of TOSA at

the moment when TOSA

started on a voyage on

April 14, 2009

The fact that Defendant KARIM served as a 2nd

Officer of TOSA and took part in the voyage at issue

20 Letter (No. Kuo-tso-lien-

chan-tzu-ti-0980001063)

dated April 24, 2009,

issued by the Ministry of

National Defense

The trail left behind by TOSA due to navigation

thereof before and after the accident.

2. The Criminal Code, Article 4 expressly provides: If the act or the outcome of a crime

committed occurs within the territory of the Republic of China, the place in which

the crime is committed shall be deemed the territory of the Republic of China. Victim

Hsu Tsung-Wen was killed inside a Taiwanese vessel because of a criminal act

committed by these three defendants, and thus the criminal act should be regarded

as committed within the territory of the Republic of China pursuant to the Criminal

Code, Article 3, second half. Although these three defendants are not citizens of the

Republic of China, the Criminal Code of the Republic of China should be applicable

to these three defendants pursuant to the above provisions. The crimes committed by

2nd Officer KARIM are: involuntary manslaughter pursuant to the provisions of

Criminal Code, Article 276, Paragraph 2; cause an accident and flee (hit and run)

pursuant to the Criminal Code, Article 185-4; desertion and causing other people’s

death for being default of obligation pursuant to the Criminal Code, Article 294,

Paragraphs 1 and 2. The crime committed by AB MALLORCA is: cause an accident

and flee (hit and run) pursuant to the Criminal Code, Article 185-4. The crime

committed by Captain AROZA is: involuntary manslaughter pursuant to the

Criminal Code, Article 276, Paragraph 2. According to testimonies given by

witnesses Hsu Kuo-Ching and Chu Cheng-Kuo who are officials of Keelung Harbor

Bureau, Ministry of Transportation and Communications, during prosecutor

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interrogation, international maritime customary practice: in addition to operating the

helm, a sailor shall serve as a lookout man; if an officer is on duty in the steering

room/bridge and has switched to manual steering, the sailor at helm shall be in

charge of operating the helm only; a senior sailor shall follow an order subserviently

rather than take charge of determining the course of navigation. Even if a senior

sailor finds that a command given by an officer on duty is wrong, the senior sailor

shall not be entitled to contesting the wrong command given by the officer on duty.

In other words, a senior sailor only has to follow a superior officer’s orders and

execute the orders. The International Convention on Standards of Training,

Certification and Watchkeeping for Seafarers, 1978, or 1978 STCW for short, provides:

a competent seafarer, a helmsman, or a sailor shall operate the helm or look out for

danger in the course of navigation of the vessel, or shall stand guard at the end of a

staircase of the vessel while the vessel was moored to a harbor, and shall follow the

orders given by the Chief Officer, a navigation sailor on duty, or the chief seafarer,

clean/maintain the inside and outside of the hull, machines installed on the deck,

and the living cabin, and prepare for the goods to be loaded or unloaded. This

proves that AB MALLORCA on duty while 2nd Officer KARIM was inside the

steering room can only follow any order subserviently, and that AB MALLORCA

did not have a say, at the moment when the accident happened, regarding the course

in which TOSA navigated, or regarding whether the crew of TOSA should stop

TOSA and start to rescue the other vessel’s sailors who had leapt overboard. Hence,

any assertion that AB MALLORCA had negligently caused Shin Tomg Chyuan No.

86 to be hit and overturned by TOSA was unjustified. Also, 2nd Officer KARIM was

the plenipotentiary pilot for TOSA at the moment when the accident happened. After

the accident, it was 2nd Officer KARIM ordered that TOSA should return to the

scheduled course and leave the scene of the accident. This proves that AB

MALLORCA was not the one committing the offence of deserting the drowning

sailors of Shin Tomg Chyuan No. 86. However, as the aforesaid part arose from the

same facts of crime for which the public prosecution has been instituted against AB

MALLORCA, and thus the Prosecutors Office shall not to give a no-prosecution

sanction to AB MALLORCA. Finally, at the moment when the accident happened,

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2nd Officer KARIM was accountable for the safety of navigation of TOSA.

Unexpectedly, 2nd Officer KARIM was negligent and did not abide by general

maritime rules governing a duty of care exercised when giving commands related to

navigation. Owing to 2nd Officer KARIM’s negligence, fishing boats traveling to and

fro across or working in the sea near TOSA were exposed to a high degree of danger.

In this case, the accident happened because of 2nd Officer KARIM’s gross negligence.

After causing the accident, 2nd Officer KARIM did not consider rescuing

immediately the victims who had leapt overboard and were helpless or sending out

a rescue signal to call for help immediately; instead, 2nd Officer KARIM deserted the

13 victims and fled the scene of the accident. Showing no mercy to the drowning

victims, Defendant KARIM was liable for the death of Captain Ho Hsi-Chuan who

was drowned and buried deep down in the sea and chief engineer Hsu Tsung-Wen

who was confined to the cabin and drowned, and thus Defendant KARIM was

accountable for the predicaments facing the families of Captain Ho Hsi-Chuan and

chief engineer Hsu Tsung-Wen. The statements given by Defendant KARIM was

inconsistent and evasive, not to mention that Defendant KARIM was adamant in his

refusal to admit having committing the crimes, indicating that Defendant KARIM

was indecent. However, considering that Defendant KARIM had taken on the

position of 2nd Officer for only several months and therefore was an inexperienced

2nd Officer, the Prosecutors Office hereby demands ten years of imprisonment for

Defendant KARIM so as to punish Defendant KARIM and protect the safety of the

sea navigation.

3. A public prosecution is instituted pursuant to the Criminal Procedure Code, Article

251, Paragraph 1.

It is submitted to

Hualien District Court of Taiwan

Date: July 16, 2009

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Prosecutor Hsueh Chih-Yu

Prosecutor Lin Shih-Chun

The certified copy is a true copy of the original document. Date: July 16, 2009 Clerk of the Court: Chang Su-Hui

[Affixed with Official Seal of Prosecutors Office of Hualien District Court of Taiwan] Statutes governing the crimes committed in this case are as follows:

Criminal Code, Article 185-4

(Crime of a driver who causes an accident and flees)

A person who causes injury or death to another person in an accident while driving a

motor-driven vehicle and flees the scene of the accident shall be sentenced to an

imprisonment term between 6 months and 5 years.

Criminal Code, Article 276, Paragraph 2

(Crime of Negligent manslaughter)

A working person who commits the aforesaid crime while working shall be punishable

by a maximum imprisonment term of 5 years, detention, or a maximum fine of three

thousand dollars added thereto.

Criminal Code, Article 294, Paragraphs 1 and 2

(Crime of desertion for being default of obligation)

A person who deserts or declines to give assistance, support, or protection required for

the living of another person incapable of self-rescue or shall be assisted, supported, or

protected under the law or under a contract shall be sentenced to an imprisonment term

between 6 months and 5 years.

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A person who commits the offence of desertion and cause a person’s death shall be

sentenced to a minimum imprisonment term of 7 years or a life imprisonment term. A

person who causes aggravated injury to a person by committing the crime of desertion

to the person shall be sentenced to an imprisonment term of between 3 and 10 years.