Only Judges Such as This Could Deny that Chen Che-nan was Deputy Secretary-General

Only Judges Such as This Could Deny that Chen Che-nan was Deputy Secretary-GeneralUnited Daily News editorial (Taipei, Taiwan, ROC)
A Translation
July 29, 2010

Former Presidential Office Deputy Secretary-General Chen Che-nan traded political influence for money. He was convicted in the first instance of "fraud involving the abuse of official authority" and sentenced to 12 years in prison. But lo and behold, the judge in the first instance retrial ruled that Chen never abused the authority of his office, and reduced Chen's sentence to a mere seven months. When the news leaked out, there was an immediate public outcry.

The original bill of indictment charged businessman Liang Po-hsiung with making illegal loans, and called for a one year term. It said that Presidential Office Deputy Secretary-General Chen Che-nan knew highly-placed prosecutors and investigators could peddle their influence, and that he had accepted a 6 million dollar check and a 1.1 million dollar "red envelope" from Liang Po-hsiung. That was why Chen was charged with "fraud involving the abuse of official authority," and why prosecutors specified an eight year prison term. A conviction in the first instance with malice aforethought would have increased the sentence to 12 years. A conviction in the second instance on the original charge of corruption would have meant a sentence of nine years. Either would have exceeded the eight years prosecutors were seeking. According to reports, the first instance retrial reduced Chen's sentence to one year and two months, and later to only seven months.

The reason the first instance retrial judge gave for for reducing Chen's sentence to seven months was that the charges had been changed. The "corruption" charge had been reduced to a run of the mill "fraud" charge. The first instance retrial judge said Chen Che-nan deceived Liang Po-hsiung, making him believe he could make Liang's legal problems go away. He said that "over the years Chen Che-nan had cultivated many political and social contacts," and that Chen Che-nan never traded on his status as Presidential Office Deputy Secretary-General. This raises an obvious question, namely, "Did Liang Po-hsiung actually say that?" Presidential Office Deputy Secretary-General Chen Che-nan assured Liang Po-hsiung that he could make Liang's legal problems go away -- for an appropriate sum of money. But the first instance retrial judge, with the wave of a magic wand, reduced Deputy Secretary-General Chen Che-nan to "just another civilian who had cultivated political and social contacts." He instantly transformed Chen Che-nan from high-ranking government official into John Q. Citizen.

Herein lies a question. Did Chen Che-nan offer to broker a deal based on his status as "Presidential Office Deputy Secretary-General?" Let us review the facts. Fact One. Chen was certifiably Deputy Secretary-General. No question about that. Fact Two. Chen knew he was Deputy Secretary-General. Fact Three. Liang Po-hsiung knew Chen was Deputy Secretary-General. The judge knew Chen was Deputy Secretary-General. Under the circumstances, how can anyone argue that Chen's crime was not committed in his capacity as Deputy Secretary-General? When precisely during the commission of his crime, did Chen lose his status as a high-ranking government official? Note that the first instance retrial judge knew Chen was Deputy Secretary-General. But he argued that Chen did not extort 10 million dollars in "litigation fees" by trading on his status as Deputy Secretary-General.

Does such an argument really hold water? Can Wu Shu-cheng really argue that she committed fraud only on the basis of her status as "the mother of Chen Chih-chung," and not as "the wife of the President" or "the First Lady?" Moreover, if Chen Che-nan merely exploited his "years of cultivating political and social contacts," wasn't his status as "Presidential Office Deputy Secretary-General" the highest expression of his "lifetime of cultivating political and social contacts?" This "white horse is not a horse" sophistry is utter nonsense, and cannot possibly restore public faith in the justice system.

The first and second instance trials handed down long sentences, precisely because Chen was a high-ranking government offical who engaged in influence peddling. Who knew the first instance retrial judge would sentence him to only seven months? Who knew the judge would insist that Chen's crime was unrelated to his status as a high-ranking government official? If Chen Che-nan had not been Presidential Office Deputy Secretary-General, would he really have been worth the sky-high price of 10 million dollars Chen demanded from Liang Po-hsiung? In the end, Liang paid Chen 7.1 million yuan to let him walk. Did Full Court judges Tseng Teh-shui, Tsui Ling-chi, Chen Heng-kuan ever confront Chen Che-nan? Did they ever ask him whether he undertood that he was the Presidential Office Deputy Secretary-General during the commission of his crimes?

The key to this case is whether Chen "abused his authority as a government official to engage in fraud and corruption." Suppose for the sake of argument that Chen Che-nan never took advantage of his position to make contact with the presiding judge in Liang's case? The fact remains that Chen used his status to broker a deal for Liang. Is Chen Che-nan's status as "Presidential Office Deputy Secretary-General" is something judges can switch on and off at will, as if by remote control?

Suppose for the sake of argument that the crime was "merely a routine case of influence peddling." The statutory punishment is still five years. Suppose for the sake of argument Chen Che-nan never relied on his status as "Presidential Office Deputy Secretary-General" to commit his crimes? This of course is an impossibility. Chen knew he was "Presidential Office Deputy Secretary-General" when he was committing his crime. The only person who refuses to admit this is the first instance retrial judge. He imposed a sentence of only seven months on an "official within the highest ranks of the Presidential Office guilty of influence peddling." How can other defendants who have been handed down heavy sentences possibly accept such a grotesque double standard?

Presidential Office Secretary-General Chen Che-nan traded legal favors for money. President Chen Shui-bian embezzled money. Each of these crimes committed by high-ranking government officials, was an example of knowingly violating the law. Each of these crimes severely injured our justice system. The courts should ensure that these criminals pay for their crimes. We should expect nothing less. Alas, our judges have helped these highly placed government officials escape justice. Even after Chen Shui-bian confessed that the Southern Front Project was a fraud, the judge insisted it was genuine. A life sentence was reduced to two years. Even though Chen Che-nan admitted he was the Presidential Office Deputy Secretary-General, the judge insisted that Chen never used his official status to peddle influence. A 12 year sentence was reduced to seven months. This is not the defense of justice in accordance with human rights. This is the undermining of justice by perverting the law.

Judges such as these are either hacks or shysters. What else could they be?

只有這樣的法官不承認陳哲男是副秘書長
【聯合報╱社論】
2010.07.29 03:22 am

前總統府副秘書長陳哲男做司法黃牛，一審依「公務員利用職務詐財罪」，判刑十二年；但更一審卻認定陳不是利用其公務員職務上衍生的機會詐財，只是一般行騙的司法黃牛而已，故而改依詐欺罪判刑七個月。消息傳出，輿論大譁。

本案原始起訴書指出：商人梁柏薰涉超貸案，被判刑一年；陳哲男藉總統府副秘書長身分，以熟識司法檢調高層可代關說為由，前後收取梁柏薰六百萬元支票及一百一十萬元奠儀；因而以「貪汙治罪條例」將陳起訴，並具體求刑八年。一審認其惡性重大加碼判了十二年。二審則維持原罪名（貪汙），改判九年，亦超越檢察官求刑的八年。詎料，更一審卻改判一年二個月，並減刑為七個月。

更一審改判為七個月的主要理由，是認定的罪名不同；由「貪汙罪」，變成了一般「詐欺罪」。更一審說：陳哲男讓梁柏薰誤信他有解決官司的能力，是因「陳哲男多年政治社會歷練累積的人脈」，並非由於總統府副秘書長的職務（梁柏薰有這麼說嗎？）。經過如此切割，向梁柏薰保證可以擺平司法並索取重金的「總統府副秘書長陳哲男」，竟然頓時就變成了只是「具有政治社會人脈的平民陳哲男」。法官魔棒一揮，不啻將陳哲男由「公務員」變成了「非公務員」。

這裡有一個關鍵性的疑問。陳哲男是否以「總統府副秘書長」身分扮司法黃牛？首先，事實上他本就是如假包換的副秘書長；其次，他自己明知自己是副秘書長；再者，梁柏薰亦明知其為副秘書長，而法官更明知其為副秘書長；既如此，卻緣何偏偏認定陳不是以副秘書長身分犯罪，而竟在犯罪時突然失去了此一身分？請注意：法官不是不知陳是副秘書長，而是不認為他是因具副秘書長身分而藉勢藉端開口勒索一千萬元「官司活動費」。

倘若此說成立，則吳淑珍難道只是以「陳致中之母」的身分詐財？而不是以「總統之妻／第一夫人」的身分貪汙？何況，若謂陳哲男具「多年政治社會歷練累積的人脈」而犯罪，但「總統府副秘書長」難道不是他「歷練與人脈」的最高峰？這種「白馬非馬」的認定，在經驗法則及邏輯法則上簡直是呀呀呸！如何建立公信？

一二審判陳哲男重刑，正因他是頂級公務員而做了司法黃牛；不料，更一審只判他七個月，卻說他只是一般的司法黃牛騙子而已，而與其頂級公務員的職位無關。衡情論理，陳哲男若沒有總統府副秘書長的身分，他有什麼身價能向梁柏薰開口索取一千萬元的黃牛天價，而最後實收了七百一十萬元？合議庭曾德水、崔玲琦、陳恆寬三名法官，有沒有問過陳哲男：犯罪當時知不知道自己是總統府副秘書長？

本案的關鍵在是否「利用公務員職務上衍生的機會詐財貪汙」。而陳哲男即使未利用職務接觸梁案法官，卻明明是利用職務身分藉勢藉端向梁承諾擔任黃牛；然則，陳哲男「總統府副秘書長」的身分，豈是法官手上的電視遙控器，可以轉來轉去？

退一萬步說，即使「只是一般司法黃牛案」，法定刑也是五年以下；陳哲男縱然不是以「總統府副秘書長」身分犯罪（這絕無可能），但至少在犯罪時明知自己具「總統府副秘書長」身分（只有法官不承認）；這樣的「在總統府上班的頂級司法黃牛」只判七個月，讓其他被判重刑的司法黃牛如何甘服？

總統府副秘書長陳哲男做司法黃牛，總統陳水扁貪汙；這些頂級公務員犯罪，無一不是知法犯法，執法犯法，對國家法制及社會正義的創害極為深重。若謂我們的法院依法對於這些罪犯課以他們應當承擔的較重刑責，亦是法理上應然、當然之理；但是，我們的法官反而卻極力為這些頂級公務員開脫罪責。連陳水扁也說南線專案是假的，法官卻說是真的，無期徒刑變成了二十年；連陳哲男也不否認自己是總統府副秘書長，法官卻說他未利用公務員身分藉勢藉端，十二年徒刑變成了七個月。這不是依法伸張人權，而是枉法戕害正義。

這樣的法官，若非法匠，即是法之賊；不是呀呀呸，是什麼？