Fraudulent Expense Reports Ruled Legal

Fraudulent Expense Reports Ruled Legal
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
August 27, 2011

Summary: The Chen family corruption case has undergone appellate review. The High Court verdict surprised everyone. Most surprised were Ah-Bian, Ah-Cheng, and others who abused the power of their office, fraudulently applied for State Affairs Fund reimbursements, yet got off scot-free. If judges are permitted to abuse their power to this degree, trials will be reckless gambles. Defendants will be betting their lives on whether the presiding judge distinguishes between charitable donations and stolen money.

Full Text below:

The Chen family corruption case has undergone appellate review. The High Court verdict surprised everyone. Most surprised were Ah-Bian, Ah-Cheng, and others who abused the power of their office, fraudulently applied for State Affairs Fund reimbursements, yet got off scot-free.

According to the limited information released by the High Court, the first instance verdict was overturned for a simple reason. Ah-Bian and Ah-Cheng were guilty of falsifying records, forging invoices, and even of embezzling cash resources in their custody. The amount embezzled exceeded 104 million NT. During Chen's term of office, kickbacks, secret diplomacy, gifts, and other expenditures exceeded 130 million NT. The expenditures exceeded the amount embezzled. The High Court judges ruled therefore that Ah-Bian and Ah-Cheng "objectively amassed no illegal wealth, and subjectively evinced no criminal intent." Therefore, they found the defendants "not guilty."

The reasoning behind their verdict is dubious. The Full Court concluded that Ah-Bian and Ah-Cheng falsified records, forged invoices, and embezzled public funds, but that their conduct was not illegal, and did not constitute corruption. But if their "subjective intent was not to subvert the law," why did they falsify records? Why did they forge invoices? Why did the Full Court argue that falsifying records, forging invoices, and resorting to criminal means to obtain public funds was not motivated by a desire to amass illegal wealth?

Ah-Bian and Ah-Cheng ordered their subordinates to fraudulently apply for State Affairs Funds reimbursements. The Court of First Instance found them guilty and sentenced them to life imprisonment. The judge explained the court's decision for each embezzled sum in great detail. The judge ruled that Chen's argument in his own defense was not credible. Chen's "secret diplomacy" expenditures were either false, or simply a case of using public funds from sources other than the State Affairs Fund. Ah-Bian and Ah-Cheng fraudulently obtained huge sums from the State Affairs Fund to cover private Chen family expenses. The judge ruled that Chen Shui-bian's argument in his own defense was not credible, and sentenced Ah-Bian and Ah-Cheng to life imprisonment.

The judge in the Court of Second Instance upheld the findings of the Court of First Instance. He confirmed that Ah-Bian and Ah-Cheng were guilty of embezzling public funds. He merely reduced the amount that Ah-Bian and Ah-Cheng were guilty of embezzling in the first instance verdict. He ruled that the considerable sums spent on dog food, dog grooming, mosquito swatters, disposable contact lenses, and hair styling, qualified as presidential living expenses. He defined them very liberally as "public expenses." As a result, the Chen family, initially found guilty of embezzling over 100 million NT from the State Affairs Fund, was now liable for embezzling only 10 million NT. Their sentences were reduced from life imprisonment to 20 years.

The Supreme Court questioned this verdict, It ordered an appellate review. The appellate review overturned both the first instance and second instance verdicts. This was indeed unexpected.

A judge can of course overturn a verdict, if he offers a convincing argument. But the High Court argued merely that expenditures exceeded income. From this it concluded that the defendants "objectively amassed no illegal wealth, and subjectively evinced no criminal intent." This was a high-handed dictate by an autocrat, not a reasoned legal opinion by judge. Prosecutors painstakingly uncovered the paper trail left in the State Affairs Fund case. Chen Shui-bian's arguments in his own defense were thoroughly investigated, one by one. They were ruled not credible. The presiding judges in both instances found the president's arguments in his own defense lacking in credibility. They differed only in how strictly public expenditures ought to be defined. The Supreme Court did not overturn these first and second instance findings. Yet the Supreme Court ordered an appellate review. The appellate judge did not question the credibility of Chen Shui-bian's arguments in his own defense. He did not question the authenticity of Chen Shui-bian's "secret diplomacy." He did not question the source of the funds. He merely asserted that expenditures exceeded income. On this flimsiest of pretexts, he found Ah-Bian and Ah-Cheng not guilty, on the basis of mens rea, because "objectively no crime had been committed." Where in the world does one find judges such as this?

Now consider the presiding judge's verdict in the Nangang Exhibition Hall case. He did not overturn the guilty verdict. Wu Shu-chen abused her power. She pressured Yu Cheng-hsien into revealing the list of review board members, so she could bribe them. The first and second instance courts found Wu Shu-cheng guilty of complicity in corruption. The appellate court however found her guilty only of patronage and leaking information. The appellate court argued that "the facts of the case remain the same, but the law is different." As a result Wu Shu-cheng's sentence was drastically reduced. Now consider the money laundering charges. By definition, money laundering includes the intent to conceal criminal gains. But the appellate judge handed down a not guilty ruling in the State Affairs Fund case. Therefore only the proceeds of the Nangang Exhibition Hall case are still considered criminal gains. This drastically reduces her sentence.

Clearly, the retrial judge was determined to let Chen Shui-bian off scot-free. Therefore he turned a blind eye to the State Affairs Fund case, for which Chen Shui-bian could offer no convincing argument in his defense. He did not overturn the verdict in the Nangang Exhibition Hall case. Instead, he reinterpreted the law. He dramatically reduced the scope of the money laundering charges, to ensure the lightest sentence possible.

The ruling was shocking. The Court of First Instance found the defendants guilty of falsifying records, forging invoices, and other fraudulent conduct. Yet the appellate court ruled that resorting to such illegal means to embezzle public funds did not constitute corruption. According to the appellate court, an embezzler whose expenditures exceed his income, is not guilty of corruption. By the appellate court's logic, a robber need only donate more of his loot to charity than he took in to be immune from prosecution. Shouldn't charitable donations count as charitable donations? Shouldn't stolen money count as stolen money? Besides, the money donated was not stolen money.

If judges are permitted to abuse their power to this degree, trials will be reckless gambles. Defendants will be betting their lives on whether the presiding judge distinguishes between charitable donations and stolen money.

豈有此理 認定非法取錢 竟說貪汙無罪！
【聯合報╱社論】 2011.08.27

扁家弊案發回更審的部分，高等法院宣判結果令各界最感意外者，就是扁珍等人共同利用職務詐取國務機要費部分改判無罪。

依據目前高院公布的有限資料看來，更一審判決的理由極為簡單，亦即：扁珍以不實犒賞清冊、不實發票報支，甚或直接侵占下屬保管的現金等，金額是一億四百餘萬元；而扁任內的犒賞、秘密外交、餽贈等支出金額則為一億三千餘萬元；支出大於取得的款項，因此「客觀上未取得不法財物、主觀上無不法意圖」，所以無罪。

判決之推理邏輯最重大的疑點在於：合議庭認定扁珍以犒賞清冊，及不實發票侵占公帑；卻認定此一行為並不違法，不是貪汙。然而，倘「主觀上無不法意圖」，何必偽造犒賞清冊？何必用不實發票？而用偽造清冊及不實發票等犯罪手段取得了公帑，卻何以稱「客觀上未取得不法財物」？

扁珍指使下屬詐取國務機要費的部分，第一審判處無期徒刑。當時法官在判決中詳細交代了各筆款項的追查結果，認為陳水扁的辯解都不可信；所謂秘密外交的支出，或屬虛假，或者根本用的是國務機要費以外的公帑來源，而且詐取得來的國務機要費大量用於扁家私人支出，所以不能採信陳水扁的辯解，重判扁珍無期徒刑。

第二審法官並沒有改變第一審的基本認定，亦即也確認扁珍以非法手段侵吞公帑的罪行，只是將一審所認定的扁家私人支出部分大幅縮減，把大量支出如狗飼料、狗美容、電蚊拍、可拋式隱形眼鏡、理髮費之類，只要與總統生活用度沾得上一點邊的，一律從寬認定為「因公支出」；這樣一來，扁家詐取的國務機要費金額即從一億多元降低至一千多萬元，故而改判二十年有期徒刑。由於最高法院對此認定有疑問，遂發回更審；如今，更審結果竟然將先前一二審的認定全部推翻，確實令人大出意外。

法官要更改認定，若能拿得出足以說服人的理由，自無不可。但以高院公布這種簡單的邏輯：只用「支出大於取得」六個字，就推論出「客觀上未取得不法財物、主觀上無不法意圖」的結論，這根本就是霸道而非法律推理了。先前檢察官追查國務機要費時，就陳水扁的辯解，已逐一查證，認定所供均不實在；而兩次審判的法官也認為陳水扁的辯解不足採信，差別只在對於是否因公支出的範圍認定寬嚴不同；至最高法院也沒有否定一二審的這些認定。但是最高法院發回更一審，更審法官竟完全沒有交代陳水扁的辯解是否可信，也不問秘密外交的真偽，或者另有款項來源，只憑一句「支出大於取得」，就認定扁珍在主觀上無犯意、客觀上無犯行，天下哪有這種法官？

更審法官在南港展覽館的部分，則對於犯罪事實並沒有任何更動，亦即吳淑珍利用其地位，向余政憲要求洩露審評委員名單，依此而收賄；但先前均認定這是吳淑珍共犯貪汙受賄罪，更審竟稱這只是圖利罪及洩密罪，進而稱「事實同一、變更法條」，遂使吳淑珍的刑度大為降低。在洗錢的部分，因洗錢罪以隱匿「犯罪所得」為前提，現因國務機要費既被更審法官認定為「無罪」，所以也只論「洗」南港展覽館部分的「犯罪所得」的錢，刑度因而降低。

顯然，更審法官是有意識地要為陳水扁脫罪，所以對國務機要費陳水扁辯解不實的問題避而不談；對南港展覽館的事實認定雖無變動，卻竟然變更法條；而洗錢的範圍也隨之大幅減少，以達輕判目的。

此一判決令人驚駭處在於：更一審合議庭其實也認定了偽造犒賞清冊及使用不實發票等詐騙手段，卻認為使用這些非法手段侵吞公帑不是貪汙。但是，如果只是「支出大於所得」就不算貪汙，則盜匪只要捐出的善款大於贓款，也就不能治以盜匪罪了。法律難道不該善款歸善款，贓款歸贓款；何況，已經證實捐出的善款並非出自贓款。

如果法官竟能濫權專斷至此地步，審判豈不是成了一場因法官人選不同而致善款贓款莫辨的賭博？