Chen Corruption Case: What Conceivable Justification for the Second Instance Ruling?

Chen Corruption Case: What Conceivable Justification for the Second Instance Ruling?
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
June 13, 2010

The High Court has announced its ruling in the Chen Family Corruption Case. It has found the Chen family guilty as charged in the State Affairs Fund scandal, the Longtan Industrial District scandal, the Nangang Exhibition Hall scandal, and the Diana Chen bribery and money laundering scandals. In his ruling, the trial judge sternly rebuked Ah-Bian, Ah-Cheng, and others for crimes for which they cannot evade reponsibility. But he simultaneously reduced the lengths of their sentences and the amounts of their fines, sharply. This flagrant contradiction between his stern rebuke and his lenient sentence is utterly incomprehensible.

Consider the charges against Chen Shui-bian and Wu Shu-cheng, and the sentences they received. Consider the State Affairs Fund. Before the criminal code was amended in 2006, each subsequent offense called for a sentence 1.5 times as long as the initial offense. The High Court sentenced Ah-Bian and Ah-Cheng each to 14 years imprisonment. After the criminal code was amended, each offense was punished separately. The court found Ah-Bian and Ah-Cheng guilty of 10 offenses. They were each sentenced to six years for each offense. Their sentences for each offense were reduced to three years. The total sentence was 30 years. The State Affairs Fund scandal is punishable under Article IV of the Corruption Act. It involves the "usurpation of public property," and is punishable by a sentence of 10 to life. In other words, the High Court did not impose the maximum sentence, but instead reduced their sentences to only three years for each offense.

Consider the Longtan Industrial Zone scandal. According to Article V of the Corruption Act, Ah-Bian and Ah-Cheng were each subject to at least seven years imprisonment for "accepting bribes in one's capacity as an official." The High Court originally sentenced Ah-Bian and Ah-Cheng each to 12 years. Consider the Diana Chen bribery scandal. Pursuant to Article V of the Corruption Act, they were each sentenced to eight years for "accepting bribes in one's capacity as an official." Consider the Nangang Exhibition Hall scandal, in which only Wu Shu-chen was charged. Pursuant to Article IV of the Corruption Act, she was found guilty of "accepting bribes in breach of official duties" and sentenced to 16 years. On the basis of corruption charges alone, the High Court sentenced Chen Shui-bian to 64 years imprisonment, and Wu Shu-cheng to 80 years imprisonment. Ah-Bian and Ah-Cheng were found guilty of falsifying official documents and money laundering, and sentenced for these crimes as well.

So many crimes. Such long sentences. Yet the High Court abruptly reduced the court's ruling of life imprisonment in the first instance, to "20 years imprisonment." Individuals convicted under the Republic of China criminal code often do not receive life sentences. Short of a life sentence, the longest sentence the courts are permitted to impose is 30 years, not 20 years. The upper limit of 20 years applies only to isolated offenses. Suppose the court does not wish to give Ah-Bian and Ah-Cheng life sentences. Altogether they were sentenced to 70 to 80 years. Shouldn't their sentences have been reduced to 30 years, and not merely 20? Also, apart from their terms of their imprisonment, the 200 million NT fine imposed upon Chen Shui-bian by the court of the first instance has been reduced to 170 million NT. The 300 million NT fine imposed upon Wu Shu-cheng has been reduced to 200 million NT. What justification can the high court offer for that?

The High Court has sharply reduced Ah-Bian and Ah-Cheng's sentences. But it has offered no justifications whatsover for pulling its punches. Instead, all we see is harsh language.

For example, the judge rebuked Ah-Bian and Ah-Cheng, saying that "high officials must be clean. They must not abuse their power for the benefit of their cronies and family members. Abusing public power for private gain shames the government, undermines society's values, and encourages lawlessness." The judge went to say that [Ah-Bian and Ah-Cheng] allowed family members to misappropriate public funds for private use. In the name of national economic development, they conducted illegal transactions that lined their own pockets. Heads of public agencies squandered public public funds, providing financial relief for favored private companies. Out of fear, the Minister of Finance arranged public jobs for private individuals. Through family members, Ah-Bian and Ah-Cheng used convoluted methods to launder illicit funds abroad. To disguise the criminal nature of their financial gains, and to avoid criminal prosecution, they knowing broke the law and betrayed the public trust.

What is one to make of such a stern rebuke, in conjunction with such a sharply reduced sentence? Most culpable and abhorrent of all is Ah-Cheng. She abused her power to satisfy her greed. Instead of forcing her to return her ill-gotten gains to the national treasury, the High Court has reduced her fines. What possible justification can the High Court have for its action? As president, Chen Shui-bian engaged in all manner of evil-doing. He should not be punished above and beyond the limits of the law. But what possible justification can the judges have to abet his criminal conduct by deliberately lightening his sentence? When the rebuke issued by the judge is diametrically opposed to the sentence handed down, the public is naturally going to feel conflicted. In short, the decision of the High Court is sharply at odds with ordinary citizens' understanding of the law.

Now consider characters other than Ah-Bian and Ah-Cheng. Take family members such as Chen Chih-chung and Huang Jui-ching. Take Ah-Bian confidants such as Ma Yung-cheng and Lin Teh-hsung. They too have had their sentences sharply reduced, also for no conceivable reason. For example, the High Court ruled that Chen Chih-chung and Huang Jui-ching knew perfectly well that Ah-Bian and Ah-Cheng's vast fortune was illicit gains, but nevertheless decided to act as accomplices in their complex money laundering schemes. The media even reported on the two of them, living it up abroad. In the eyes of society, Chen Chih-chung and Huang Jui-ching bear a heavy responsibility. Yet Chen Chih-chung and Huang Jui-ching received sharp reductions in their fines. Huang Jui-ching received probation. The 200 million NT they were required to pay in the first instance was reduced to a mere 10 million NT. Are the the judges truly unaware of the Chen family's financial clout? The reasons behind this slap on the wrist remain shrouded in mystery. The rebuke issued by the High Court was so harsh. Yet its sentence was so light. That is what the public finds utterly incomprehensible.

扁案二審量刑標準有何道理？
【聯合報╱社論】
2010.06.13

台灣高等法院就扁家弊案宣判，審判所及的國務機要費、龍潭工業區、南港展館、陳敏薰賄賂以及相關洗錢行為等各部分案情，二審仍然認定有罪。但承審法官雖在判決中嚴詞譴責扁珍等人的犯行罪無可逭，卻在量刑上大幅降低刑期和罰金，這種「判詞與量刑相矛盾」的情況，令人不解。

先看陳水扁和吳淑珍在判決中認定的各罪與所量刑度：國務機要費部分，九十五年刑法修正前，亦即有連續犯加重二分之一的期間，高院判扁珍各十四年有期徒刑；刑法修正後，一罪一罰，法院認定扁珍共犯十罪，每罪判六年，減為三年，總共是三十年。國務機要費弊案是構成貪污治罪條例第四條「侵占公有財物罪」，可處無期徒刑或十年以上有期徒刑。亦即，高院就本罪並未量處最重刑度，且在一罪一罰部分，還減至三年。

再者，龍潭工業區部分，高院以構成貪污治罪條例第五條，本刑七年以上有期徒刑的「職務上行為受賄罪」，判處扁珍各十二年。在陳敏薰賄賂案，高院同樣以貪污治罪條例第五條「職務上行為受賄罪」，判處扁珍各八年。在南港展館案，僅吳淑珍涉案，高院依貪污治罪條例第四條「共同違背職務受賄罪」，判處她十六年。加總起來，僅以上開貪污罪名，高院總共判處了陳水扁六十四年有期徒刑，吳淑珍八十年有期徒刑；除此之外，扁珍還有偽造文書、洗錢等，亦分別判處有期徒刑。

這麼多罪名，這麼長的刑期，高院卻由第一審所判的無期徒刑，一下子降為扁珍均為「應執行有期徒刑二十年」。事實上，我國刑法在多項罪名均成立，判處多數有期徒刑時，容許法院定的最高有期徒刑，是三十年而非二十年，二十年僅是單一罪名有期徒刑的最高上限。若不處無期徒刑，則扁珍合計七、八十年的刑期，為何不是合併執行三十年，而是二十年？更有甚者，除了刑期，在罰金方面，陳水扁也由一審的二億元降為一億七千萬元，吳淑珍則由三億元降為二億元。這又是什麼道理？

然而，高院對扁珍的懲罰銳減，但在量刑的判詞中，非但看不到這般大放水的理由，反而是聲色俱厲的嚴詞譴責。

例如，法官指責扁珍「位高權重，本應廉潔自持，並應敦促家人親信避免以權牟利，以私害公，辱壞官箴，導致社會價值觀及行為觀紊亂」；但是，竟放任家人將國務機要費公款私用；藉國家經濟科技發展，以金錢交易牟利私囊，致主管機關浪費公款解決私人廠商財務問題；財政部長戒慎恐懼安排私人職位；將不法所得由家人以繁複手段洗至國外，以切斷資金來源及犯罪所得性質，逃避司法追訴；知法犯法，背棄人民付託……。

如此嚴厲的指摘，卻又如何能夠大幅度減低刑期至此？尤其可怪者，扁珍最為可惡的就是恃權貪錢，如今不以罰金迫其交予國庫，卻反而減少金額，這又是什麼道理？陳水扁身為總統而作惡多端，固然不可給予超逾法律的刑罰，但若是擅以法官裁量權而故意輕刑寬縱，似乎亦無道理。法官的譴責和刑度相反，社會大眾當然感到矛盾；也就是說，高院判決的結果，恐怕是背離了一般國民的法律感情。

除了扁珍這兩名主角，其餘如陳致中、黃睿靚等扁家成員，以及其他馬永成、林德訓等扁的親信，也均獲得大幅降低刑度的待遇。但這些部分的減輕，也看不出理由。例如，高院也認定陳致中、黃睿靚都是明知扁珍取得大量不法所得，還參與了繁複的洗錢犯行；事實上，媒體也報導了許多兩人在國外的享受行為。那麼，陳致中、黃睿靚就這部分應承擔較重的責任，方符合一般社會的正義觀念。結果，陳致中、黃睿靚的量刑、罰金大幅降低之外，連黃睿靚的緩刑條件，也由一審向公庫繳納二億元，大降為一千萬元。難道法官不知道，扁家財力的真相，迄今仍是一團謎霧，這樣做不啻輕縱了犯罪？高院的判詞罵得那麼兇，判刑卻這麼輕，這是讓人無法理解的地方。