The Chen Family's Overseas Funds Must Be Accounted For

The Chen Family's Overseas Funds Must Be Accounted For
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
August 3, 2009

The Chen family corruption case is coming to an end in the Taipei District Court. Public attention is focused on which crimes the four members of he Chen family will be convicted of, and the severity of their sentences. Whether justice is done however, will depend on whether the vast sums of money can be recovered. The courts, the prosecutors, and the defense attorneys will be attempting to strike a balance.
Based on the Special Investigation Unit's Bill of Indictment and Supplementary Indictment, conservative estimates are that Chen family income from corruption and illegal campaign contributions exceeds 2 billion NTD. The vast majority of the money has been transferred overseas. So far the prosecution hasn't been able to get a handle on it. Once the court rules that these funds are the result of political corruption or illegal campaign contributions, they will be confiscated in accordance with the law. If it is not possible to confiscate them, they should be treated as the property of a criminal offender. Chen family assets on Taiwan are clearly far short of these sums. If these vast sums of illicit funds cannot be recovered, it will be a flagrant travesty of justice.

Among the four defendants of the Chen family, Chen Shui-bian and Wu Shu-cheng refuse to admit guilt. Chen Chi-chung and Huang Jiu-ching have admitted guilt. But whether they have confessed to laundering the proceeds of Ah-Bian and Ah-Cheng's political corruption, and helped prosecutors to recover the funds, remains unknown. Under the circumstances, prosecutors have little room to negotiate with the Chen family. One can only wait for the court's decision. If the court finds the Chen family guilty, the Chen family's unrepentant attitude following the commission of its crimes means their sentences will not be light. But even if the sentences are heavy, what if the Chen family still refuses to hand over its ill-gotten gains?

After the verdict in the first instance, regardless of whether the Chen family hands over its dirty money, the judge in the second instance must determine whether Chen Shui-bian should remain in custody or be allowed to post bail. Travel restrictions on their children may be lifted by the court in the second instance, based on legal precedents. Otherwise restrictions will be lifted immediately. If Chen Shui-bian is released on bail, and travel restrictions are lifted on his children, allowing them to leave the country, the Chen family may go overseas to dispose of its ill-gotten gains. This will make it even more difficult to solve the case and recover the funds in the future. Therefore, the court and prosecution must carefully consider their decisions in this case.

First, until the verdict has been rendered in the first instance, Chen Shui-bian will remain in custody and his children will not be allowed to leave the country. Until the Chen family has fulfilled its promise to turn over its dirty money, the above restrictions should not be lifted, and the prosecution will be in no position to offer a plea bargain. After the first instance verdict has been delivered, the court of the second instance must take into account the issue of money yet to be recovered. The judge must consider extending Chen Shui-bian's detention, and extending the travel limitations on his family members, in order to keep them from leaving the country.

If during the trial in the second instance, the Chen family remains unrepentant, if it chooses to serve time in prison rather than turn over its dirty money, then the judge has no room for clemency. But if the Chen family's attitude changes, if it cooperates with the prosecution and helps recover the money, their children may be given lighter sentences or probation, or be forgiven by society. But if the Chen family's attitude remains unchanged, all the way to the court of the third instance, then the court may have no choice but to immediately carry out the sentence rendered upon Chen Shui-bian. Chen family members may also be barred from leaving the country until a sentence has been imposed. If that turns out to be the case, then it will be because the Chen family prefers to hold on to the money even if it means serving time in prison. It will have only itself to blame.

These are matters the court and the prosecution must consider to ensure justice. If the Chen family insists on keeping its dirty money, it may be kept in detention or be forbidden to leave the country until a verdict has been rendered, and they have served out their sentences. After they have regained their freedom, they may still be able to enjoy their loot. The Chen family may intend to keep its ill-gotten gains even if it means its members must go to prison.

The Chen family's rosy scenario may not pan out. It may not be able to transfer its overseas funds back to Taiwan. After all, its funds have already been identified by foreign banks as dirty money. The Chen family may not be able to recover it. Consider Wang Chuan-pu's illicit gains. The government can't get it back, but neither can the Wang family. If so, on the one hand the Chen family won't be able to retrieve its illicit funds from overseas. On the other hand, the court is after the Chen family for unpaid taxes. Attempting to keep the money is probably a lose/lose proposition. Therefore the Chen family ought to find a way to return the money as soon as possible, and avoid digging itself in any deeper.

The court must account for the whereabouts of the money. Whether the money is returned should have a bearing on the sentencing. The court is about to conclude its deliberations. Today is the prosecution's last chance to consult with the Chen family, The Chen family and its defense attorneys should think long and hard about their final move.

扁家海外贓款必須作出交代
【聯合報╱社論】
2009.08.03 04:33 am

台北地方法院審理扁家弊案已近尾聲，扁家四人將判處何種罪名和刑度，固為社會關注的焦點；但本案所涉鉅額的贓款能否追回，亦是社會公義能否伸張的關鍵。如何求取平衡，應是院檢辯三方思考的重點。

依特偵組起訴及追加起訴扁家的弊案，保守估計扁家貪汙所得、違反政治獻金法之所得，應在二十億元以上；這些錢絕大多數匯往海外，至今檢方無法掌握。一旦判決認定這是貪汙所得或違反政治獻金法之所得，依法均應沒收；如無法沒收，即應就犯罪者之財產追徵之。扁家留在台灣的曝光財產顯然不足此數，則如此鉅額贓款若不能追回，顯然有違公平正義。

扁家四被告目前動態，陳水扁及吳淑珍皆不認罪；陳致中等人雖稱認罪，但對是否承認參與扁珍犯罪所得之洗錢，以及協助檢方取回贓款，均態度不明。在此情況下，檢方自無與扁家協商之餘地，唯有交由法院判決；而若法院認定扁家有罪，以扁家的犯後態度，恐怕刑度不輕。然而，判處重刑，若扁家仍不交出贓款又當如何？

在第一審判決之後，不論扁家是否交出贓款，在押的陳水扁都必須由第二審法官判斷其得否交保。至於其子女解除限制出境的問題，依實務上習慣，亦將交由第二審決定，否則即行解除限制。陳水扁若獲得交保，其子女解除限制出境，則扁家人即很有可能自由到海外處置贓款，以致日後更難令其匯回結案。因此，院檢方面對此必須有更審慎的考慮。

首先，在第一審宣判之前，陳水扁繼續羈押固已確定，其子女之限制出境，在扁家未確實履行交出贓款之承諾以前，當然也不宜解除，且檢方亦不宜與之協商。至第一審宣判之後，第二審因考慮到贓款仍未追回的問題，法官恐怕亦應慎重處理陳水扁是否繼續羈押，以及扁家成員是否繼續限制出境的問題。

倘若在第二審審理期間，扁家的態度依然強硬，寧坐牢也不交出贓款，承審法官自無從輕發落的迴旋空間；但若扁家態度改變，配合檢方追回贓款，則兒輩從輕量刑甚至給予緩刑，或能獲得社會諒解。唯若扁家態度不變，直至三審定讞，則恐法院也別無選擇，或許會將陳水扁由羈押直接發送執行，扁家成員亦可能限制出境直至判決確定發送執行。倘是如此，自是扁家寧可要錢不惜坐牢的心態所致，怨不得人。

以上或是法院和檢察官站在社會公義的立場，不得不有的考慮。但就扁家而言，倘若堅持保有贓款，則最不濟的情況，縱使扁家人一直在押或限制出境，直至判決確定、服刑完畢，則在扁家人坐完牢之後，恢復自由之身，還是可以享用到贓款。實務上，為了錢寧可坐牢也拒不交出贓款的案例比比皆是，扁家未必不會心存此念。

不過，扁家的如意算盤亦可能難如所願。因為，海外贓款若不能匯回給國家，但畢竟已被外國銀行認定為涉案金錢，扁家也未必即能取回。正如汪傳浦的錢，國家取不回，汪家也拿不到。倘係如此，扁家一方面取不回海外贓款，另一方面又要面臨法院追徵，恐將兩頭損失。因而，扁家較平衡的作法仍應是設法及時將錢匯回，以免愈陷愈深。

法院必須對贓款下落作出交代，而贓款是否交代又與扁家的刑度及人身自由有關。法院即將辯論終結，檢方今日將有最後一次與扁家協商之機會，扁家以及辯護律師應該好好想想這最後的一步了。