Chen Chih-Chung and Huang Jui-Ching's Plea Bargain

Chen Chih-Chung and Huang Jui-Ching's Plea Bargain
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
January 23, 2009

Chen Chih-chung and Huang Jui-ching have confessed. As part of a plea bargain, they are willing to reveal the whereabouts of more money, jewelry, and property. They may or may not have been sincere in their expressions of remorse. But legally speaking, their confessions will make it difficult for Chen Shui-bian and Wu Shu-chen to continue maintaining their innocence.

Over the course of the day Chen Chih-chung and Huang Jui-ching pleaded guilty. As soon as they asked for a plea bargain, the presiding judge asked the two whether they had discussed their decision with counsel. Did they understand the meaning and legal ramifications of pleading guilty? The two affirmed that they did. Only then did prosecutors ask the court to consider a plea bargain. They did not set a date for the next session, but revised the wording to read "pending." This much can be confirmed. Chen Chih-chung and Huang Jui-ching have expressed a desire to enter into a plea bargain, in accordance with the provisions of the Code of Criminal Procedure. Legally this means the two are no longer disputing the prosecution's claim that they committed crimes.

Prosecutors indicted Chen Chih-chung and his wife for the crime of money-laundering, on the basis of the Money Laundering Control Act. The act states that it is a felony to "cover up, conceal, receive, handle, ship, harbor, fence, or hold the proceeds from felonies for oneself or for others." The Money Laundering Control Act specifies a minimum of five years imprisonment for the crime of corruption. To charge someone with money laundering, the money laundered must be criminal proceeds. To confess to money laundering means to confess that one knew the money laundered was the result of criminal activity. The two are inseparable. A suspect who says "I confess I laundered money, but didn't know the sums of money I laundered were criminal proceeds," has not in fact confessed. And if one has not confessed, one cannot enter into a plea bargain. Some say Chen Chih-chung and his wife should split the difference wtih prosecutors, that they should claim "We didn't know the sums of money we laundered were criminal proceeds." This is both self-contradictory and inconsistent with the law.

As mentioned earlier, the plea bargaining process is predicated upon not challenging the indictment. The problem is prosecutors are also investigating other incidents of Chen family corruption. Chen Chih-chung has revealed money trails for cases not listed in the indictment against him. Suppose the two reach a plea bargain with prosecutors and settle on a sentence, only to have more cases of money-laundering surface? How will the matter be handled? It will be handled according to the provisions of the Criminal Procedure Law. Assuming the case has yet to reach the sentencing stage, if the court finds discrepancies between the plea bargain and the facts of the case, the plea bargain shall be considered null and void. The case will be retried, and the sentence reevaluated.

Therefore, the prosecution need not rush to reach an agreement with the defendants. Instead, it should pick up the pace of its investigation. Chen Chih-chung and his wife should think clearly, They had better not cough up some of their loot while concealing the rest of it, thinking they can enjoy their ill-gotten gains after serving only a light sentence. Harboring such notions can only undermine their goal of seeking light sentences by means of plea bargaining.

Prosecutors indicted Chen Chih-chung and his wife for violating the Money Laundering Control Act. This means the two knew they were covering up, concealing, receiving, handling, and holding the proceeds from criminal activities. That being the case, whom did the two think the illegal proceeds belonged to? In this case of course it was Ah-Bian and Ah-Cheng, their co-defendants. Therefore when Chen Chih-chung and Huang Jui-ching pleaded guilty, that meant the Court was aware of Ah-Bian and Ah-Cheng's crimes. Under the circumstances, it is going to be even harder for Ah-Bian and Ah-Cheng to deny that they committed crimes. Even his own daughter-in-law has confessed to having and holding vast sums of criminal proceeds, to participating in money-laundering activities, and even to personally traveling overseas to direct such activities. Ah-Bian and Ah-Cheng will have a hard time convincing any judge the money was merely "campaign contributions," and a hard time evading prosecution.

Chen Chih-chung and Huang Jui-ching's plea bargain has put Chen Shui-bian and Wu Shu-chen in a difficult position. Ah-Bian and Ah-Cheng are charged with felonies. According to the law, suspects charged with felonies cannot request a plea bargain. The most they can do is throw themselves on the mercy of the court and hope for lighter sentences. But Ah-Bian and Ah-Cheng committed too many crimes, and the charges against them are too serious. No matter how lightly they are punished, prison terms are unavoidable. If they stubbornly maintain their innocence, Chen Chih-chung and Huang Jui-ching's confessions have already shattered the family's united front, making it difficult to explain away the contradictions in their stories. Public perception will be even more negative. The consequences will be even more serious.

The Chen family corruption case has shown the public that as long as prosecutors investigate in earnest, and acquire a clear picture of the case, no matter how devious the criminals might be, they will eventually succumb to the evidence. Therefore, the cornerstone of justice is the prosecutor. We look forward to prosecutors on Taiwan undergoing a metamorphosis in the wake of the Chen family corruption case.

致靚認罪協商，扁珍無所遁形
【聯合報╱社論】
2009.01.23 02:32 am

陳致中、黃睿靚當庭承認犯罪，並願供出更多金錢和珠寶財物的下落，以交換認罪協商。不論他們的悔意虛實如何，如此一來，在法律程序上，陳水扁和吳淑珍恐怕都很難再聲稱「無罪」。

觀察當天過程，陳致中、黃睿靚表示認罪、請求協商之後，審判長立即詢問兩人：是否與律師討論過？是否了解認罪的意義及法律效果？兩人均作出肯定的表示，確認知道認罪的作用。然後，檢方才請求法院庭外協商，暫不定下次期日而改「候核辦」。由此則可確定，陳致中、黃睿靚已依刑事訴訟法的規定表明「認罪協商」；這在法律上的意義，就是兩人對檢方起訴的「犯罪事實」不再爭執。

檢方是依洗錢防制法之罪起訴陳致中夫婦。洗錢犯罪，指的是「掩飾、隱匿、收受、搬運、寄藏、故買或牙保自己或他人，因重大犯罪所得財物或財產上利益」；而所謂「重大犯罪」，洗錢防制法也涵蓋了本刑五年以上的貪汙犯罪。亦即，洗錢犯罪須以所「洗」的金錢是「特定犯罪所得」為前提，承認了洗錢犯罪，也就承認了知悉所「洗」金錢為特定犯罪所得；而不能分割因果，說「只承認洗錢，不承認所洗金錢乃特定犯罪所得」。如果承認洗錢卻不承認所洗金錢是特定犯罪所得，就不是認罪，自亦不能協商。有些人指陳致中夫婦尚可與檢方論斤計兩，爭論「不知係犯罪所得」云云；其實，這是與法不合的。

如前所說，認罪協商是以不爭執檢方起訴事實為準。問題是，目前檢方還在調查扁家其他弊案的不法所得，且陳致中這次也供出了起訴內容之外的錢財流向；如果兩人與檢方認罪協商、談定刑度後，又發現更多洗錢犯罪事實，該如何處理？這時，若全案尚未審結宣判，依刑訴法規定，法院在發現「協商合意事實」與「審理認定事實」（包括檢方追查的新發現而追加起訴者）並不相同時，即不得依協商判決，而須重新審酌刑度。

因此，檢方其實不需太快和他們進行協商，而應加快調查腳步。至於陳致中夫婦也應再想清楚，不能存有任何「認一部分、藏一部分」的念頭，以為獲得輕判後，日後仍可享用。如果心存僥倖，反而將貽誤認罪協商以求從輕處理的目的。

進一步說，檢方起訴陳致中夫婦觸犯洗錢防制法，即包含了兩人知悉所掩飾、隱匿、收受、搬運、寄藏的財物是來自犯罪所得。既然如此，那麼兩人所認的是誰的犯罪所得？在本案中，當然就是同案被告扁珍二人。因此，陳致中、黃睿靚認罪，等於向法院明示知悉扁珍犯罪所得的事實。如此一來，扁珍兩人想要否認犯罪，難度就更高了。因為，連自己的子媳都承認了知悉他們有巨額犯罪所得，並參與他們洗錢甚或親自到國外操盤；則扁珍所辯錢財係「政治獻金」云云，就更難說服法官，亦更難逃有罪判決。

陳水扁和吳淑珍目前已因致、靚的認罪協商而陷於困境。倘若扁珍要認罪，因二人涉犯罪名都是重罪，依法根本不能協商，最多只能從犯後態度入手，懇求法院量刑從輕。但因扁珍罪行太多、罪名太重，再怎麼輕判，牢獄之災都難以避免。反之，若繼續以「無罪答辯」頑抗下去，則因致靚已經認罪，家庭共同戰線破裂，很難合理解釋，社會觀感更糟，後果也必定更嚴重。

扁家弊案一路發展至今，國人已可看到：只要檢方認真查案，將犯罪事證掌握得一清二楚，則再狡猾頑劣的罪犯，亦終須在罪證之前低頭。因此，司法正義的基石在檢察官；扁案之後，希望台灣有脫胎換骨的檢察官隊伍！