Practitioner Interview: How Judges View Man-of-Straw Account Cases

After a prosecutor indicts a provider of a man-of-straw account for aiding and abetting fraud, the case enters the court system. Some appellants in man-of-straw account cases who come to the JRF mention that they feel no matter what they say, the judges do not believe they are innocent, and the judges do not seem to care at all how serious a "guilty" verdict is for their lives.

How exactly do judges determine whether a defendant in a man-of-straw account case constitutes aiding and abetting fraud? How do they view various defenses raised by providers of man-of-straw accounts? And how do they view the matter of handing down a "guilty" verdict?

As can be seen from the interviews, as long as there is an act of handing over an account, judges will initially view the provider of the man-of-straw account as "guilty." The defendant must continuously present various arguments to convince the judge that their act of handing over the account indeed lacked the intent to assist, thereby striving for an "acquittal." Arguments accepted by judges must conform to their imagination or experience of various social conditions within "normal social relationships."

During the interviews, we also discovered that some judges might not necessarily agree with current practical standards for determining "guilt" in aiding and abetting fraud. However, under the current judicial system, they have no choice but to find the defendant guilty, with the compromise being to grant probation...

Question 1: Do judges feel that handling this system through summary judgment—where defendants can be convicted without even meeting a judge—might sacrifice the protection of the defendant's procedural rights?

The interviewed judge expressed that the purpose of handling cases through summary judgment is to achieve swift adjudication. This is a legislative choice, and one cannot directly say it is right or wrong. However, sometimes summary judgment does encounter operational issues. For instance, in cases where defendants confess to offenses and apply for summary judgment sentencing, judges or prosecutors may not necessarily know whether the confession is genuine and whether the process was free from any threats. Therefore, the interviewed judge believes that human operation of this system is extremely important. During the application process, prosecutors should first filter whether a case is suitable for summary judgment before making an application. Furthermore, when the procedure enters litigation, judges should filter it once more; only if a case is truly appropriate for summary judgment should it proceed into the summary judgment procedure.

Question 2: How is it determined whether a person who provides a man-of-straw account constitutes aiding and abetting fraud?

The interviewed judge believes that returning to the application of law, the determination of whether the act of providing a man-of-straw account constitutes an offense should return to the presence or absence of intent to assist. In current practice, as long as it is deemed that there was a transfer of benefits, a guilty verdict is rendered without exception. However, the interviewed judge believes that the focus is actually not on the transfer of benefits, but rather on the nature of the delivery relationship between the two parties. This refers to: which recipient the defendant handed the account to, and what interpersonal relationship exists between this recipient and the defendant. If an account is handed over to parents, such a delivery should be unproblematic. If it is handed over to a friend, personally, I usually would not hand down a guilty verdict. But if the defendant handed the account over to an unfamiliar person to use, regardless of whether cash was involved, they very likely possessed the intent to commit an illegal act. Because the disposition of an account inherently carries risks, handing an account over to someone without a foundation of trust should inherently lead to the anticipation that illegal acts may occur.

The interviewed judge stated that they once handled a case where the defendant argued that she provided her account due to online dating, yet he still found the defendant guilty. This defendant was a female who met a Singaporean male online. The man's photo looked very handsome, and the two became a romantic couple through chatting. Later, that Singaporean male stated that he needed a Taiwanese account for business purposes. The defendant thought this was very reasonable, so she borrowed an account from a friend to give to him, and this account subsequently became a man-of-straw account utilized by a fraud syndicate. The interviewed judge believed that the friend who provided her account to the defendant certainly did not commit a crime, and although he believed the defendant was indeed deceived, her conduct still constituted aiding and abetting fraud. The reason is simple: emotionally, the defendant did trust the man, but the basis of her emotional trust was flawed. Because the defendant had never met the man in person, did not know his real name, and could not locate him. Most importantly, the defendant stated that the man told her if she gave him her account, he would share profits with her when he came to Taiwan to open a company. Considering everything comprehensively, one would feel that the defendant simply handed her account over to a virtual person on the internet. Moreover, she was a highly educated person who had worked in a bank and opened a company, and had extensive interpersonal connections, yet she let herself be blinded by love and acted this way.

Question 3: How do judges view defendants raising the defense that their account was lost?

The interviewed judge pointed out that the defense of a lost account is very common in practice. When asked when the passbook or ATM card went missing, defendants often say they are not quite sure, and only realized it was missing upon discovery. When asked where the passbook or ATM card was kept, they say it was left inside the scooter seat or somewhere else, and then don't know who took it. When further asked why someone else had their password, the defendant would say they wrote it on the back of the card or in a notebook. When asked why they did not report it to the police, the defendant would say that by the time they discovered it, the victim's money had already been transferred out, so reporting it to the police would have been too late.

The interviewed judge stated regarding the lost-account defense, judges must comprehensively assess through questioning whether the defendant's explanation is reasonable. For instance, when a defendant claims they wrote their password on the back of the ATM card, such an explanation sounds incredible. Because passwords exist precisely to prevent others from knowing, how could one possibly write it on the back of the card? However, such a scenario is not entirely impossible to happen. Nevertheless, because some cases involve defendants being coached by fraud syndicates to say this in order to portray themselves as victims, judges must judge with caution.

The interviewed judge pointed out that his determination of whether a defendant's lost-account defense is reasonable relies mainly on inquiring into the following circumstances:

1. The circumstances of the loss. Some loss scenarios are quite exaggerated, though not necessarily false. Usually, in the end, it becomes difficult to tell what is true and what is false. However, at the very least, they see whether the defendant can articulate certain details. For example, if the defendant claims they lost it halfway while walking, we then examine whether it was acted out or how it was actually lost.
2. Whether the defendant reported the incident to the police. If ordinary people discover their belongings are missing, a rational person ought to report it to the police for handling. Yet some defendants never reported it to the police, or claimed they reported it too late after the victim's money had already been withdrawn.
3. How the defendant explains how their password became known to others. The more traditional explanation is usually that it was written on the card, while some might say, "I don't know how they guessed it, but I truly never gave my password to anyone else." However, the interviewed judge stated that based on his empirical rules, an ATM card password has a total of eight digits; unless you tell someone yourself, it is impossible for them to guess it.
4. The balance and transaction status within the account. If a defendant had several hundred thousand or tens of thousands of dollars deposited in the account, and the money was withdrawn after the account was lost, he would believe it is indeed very likely that the account was lost. Conversely, if it is a newly opened account with a very low balance, or if the defendant happened to withdraw all the money from the account right before it was utilized, the defendant's lost-account defense is generally not accepted.

However, the interviewed judge also noted that this is a deduction rather than an absolute rule; he once handled a case involving a cerebral palsy patient and acquitted him. This patient claimed that his password was written on the back of his ATM card and that he lost it while moving. That card's account also had subsidy payments of several thousand NT dollars remitted into it every month, and he also worked hard and earned a salary. Nonetheless, this case was overturned by the High Court and remanded with a guilty verdict, because the High Court compared his moving timeline with the loss timeline, deemed his defense problematic, and convicted him.

Finally, the interviewed judge also pointed out that the defenses in many cases are actually quite similar, especially cases involving lost-account defenses or defendants remaining silent, which are even harder to judge, yet judges' rulings will still differ. This is because different defendants give judges different impressions in the courtroom. For the exact same sentence, some people think deeply left and right before finishing their police record, or state it very fluently, or speak in a formulaic manner—the feelings are completely different. Such courtroom experiences cannot be recorded through text; it might be the defendant's reactions, speech and conduct, and certain gazes that form a continuous process shaping the judge's inner conviction.

Question 4: How do judges view defendants' defenses of handing over accounts under the pretext of job hunting or applying for loans?

The interviewed judge stated that regarding this type of defense, practice is divided into Viewpoint A and Viewpoint B. The majority view holds that a guilty verdict should be rendered, because they believe that when looking for a job, it is absolutely impossible to make an appointment to meet near Youth Park, and upon the very first meeting, someone asks you for your account number and password. Another viewpoint holds that an acquittal should be granted, on the grounds that: job seekers are mostly anxious to find work and unable to evaluate rationally, while others lack social experience. The interviewed judge stated that he also adopts general practical standards; regarding the job-seeking defense, he basically rules for a guilty verdict. His focus is not on job hunting, but rather on the fact that the defendant handed their account over to a stranger during their very first meeting outdoors. Even if desperate for work, with just a little attention, one would know there is a problem.

Question 5: Do judges investigate evidence favorable to defendants?

The interviewed judge stated that if a defendant can articulate things clearly, he will help the defendant investigate. However, the interviewed judge also noted that the defense system is crucial, because if a defendant does not know how to raise a defense or apply for the investigation of certain evidence, judges may not necessarily investigate.

Question 6: Many providers of man-of-straw accounts are also victims exploited by fraud syndicates. Being convicted of aiding and abetting fraud has a huge impact on their lives. How do judges view such circumstances?

The interviewed judge stated that if that defendant is actually a victim and the act of handing over the account lacked the intent to assist in fraud for gain, he will first have the plaintiff and defendant reach a settlement. Because in such cases defendants must bear civil liability, and if the defendant is not the ultimate beneficiary, he will try to seek the plaintiff's agreement during the conciliation process to reduce the civil compensation the defendant must pay. As for the criminal aspect, he will also advise the defendant to plead guilty in order to secure probation for them as much as possible. This is because once the probation period passes, no record will remain on their police criminal record certificate (Good Citizen Certificate), allowing them to take civil service examinations in the future.