Fraudulent Expense Reports Ruled Legal
United Daily News editorial (Taipei, Taiwan, ROC)
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！