Statement by the JRF Regarding the Decision of the Proskynesis Evaluation Committee on the Huang Shih-ming Leak Case

Ministry of Justice Forwarded Press Release from the 1st Prosecutors Evaluation Committee

After nearly three months of detailed review, the Prosecutors Evaluation Committee made the following resolutions regarding the cases—submitted by the Judicial Reform Foundation and the Ministry of Justice—involving Prosecutor-General Huang Shih-ming, Prosecutor Yang Jung-tsung, and Prosecutor Cheng Shen-yuan in abuse of power wiretapping and leaking secrets, and Chief Prosecutor Ch'en Shou-huang and Prosecutor Lin Hsiu-t'ao in lobbying and violating the Prosecutors' Ethics Code:

(1) The evaluatee Huang Shih-ming is subject to disciplinary action, and it is reported through the Ministry of Justice for submission to the Control Yuan for review, with a recommendation for removal from office.
(2) The evaluatee Yang Jung-tsung is subject to disciplinary action, and it is reported through the Ministry of Justice for submission to the Control Yuan for review, with a recommendation for a reprimand.
(3) The evaluatee Cheng Shen-yuan is subject to disciplinary action, and it is reported through the Ministry of Justice for submission to the Control Yuan for review, with a recommendation for a reprimand.
(4) The evaluatee Ch'en Shou-huang is reported to the Ministry of Justice for processing, with a recommendation for a warning.
(5) The evaluatee Lin Hsiu-t'ao is reported to the Ministry of Justice for submission to the Prosecutor Personnel Review Committee for deliberation, with a recommendation for a warning.

I. Regarding Huang Shih-ming, Yang Jung-tsung, and Cheng Shen-yuan:

Prosecutor-General Huang Shih-ming, Special Investigation Division Head Yang Jung-tsung, and Special Investigation Division Prosecutor Cheng Shen-yuan committed a series of acts during the division's handling of the 2011 Special-Tzuh-tzu Case No. 061 involving the corruption case of Judge Ch'en Jung-ho, which violated the Judges Act and other provisions as follows:

(1) Abuse of power wiretapping: Prosecutor Cheng Shen-yuan failed to comply with Article 5, Paragraph 1 of the Communication Security and Surveillance Act, unlawfully applying to the court for wiretaps on individuals unrelated to the Ch'en Jung-ho case. Prosecutor-General Huang Shih-ming actually approved this, violating Article 95, Subparagraph 2 of the Judges Act and Articles 2 and 10 of the Prosecutors' Ethics Code, with serious circumstances.

(2) Unlawful publication of wiretap transcripts: Approved by Prosecutor-General Huang Shih-ming and convened by Division Head Yang Jung-tsung on September 6, 2013, in the name of the Special Investigation Division during a press conference regarding the press release drafted by Prosecutor Cheng Shen-yuan, transcripts of communications between the surveilled subject Ko Chien-ming and others were attached to the press release, and the press release was uploaded to the homepage of the official website for unspecified persons to download and browse, violating Article 18 of the Communication Security and Surveillance Act and Article 18 of the Prosecutors' Ethics Code, with serious circumstances.

(3) Disclosure of secrets: On the evening of August 31, 2013, while the said 2011 Special-Tzuh-tzu Case No. 61 was still under investigation and unclosed, based on the secrecy of investigation, prosecutors must not disclose the contents obtained from investigations. Prosecutor-General Huang Shih-ming actually carried the contents obtained from wiretaps and the contents of Prosecutor Lin Hsiu-t'ao's interrogation record to the Presidential Official Residence, presenting a special report in person to President Ma Ying-jeou. Prosecutor-General Huang Shih-ming violated Articles 2, 10, and 17 of the Prosecutors' Ethics Code, with serious circumstances.

(4) Violation of administrative ethics and disruption of institutional order: The Constitution does not stipulate that the President is the competent authority of the Legislative Yuan, the Ministry of Justice, or the Executive Yuan. Nor was this lobbying case a dispute between the Legislative Yuan and the Executive Yuan under Article 44 of the Constitution: "The President may, except as otherwise provided for in this Constitution, convoke a meeting of the presidents of the various Yuans to consult with them on matters relating to disputes between the Yuans which exceed the competence of any one Yuan," and it was unrelated to presidential powers. Even if the lobbying case involved administrative illegality, it at most concerned individuals and was not an inter-Yuan dispute; thus, the Prosecutor-General reporting administrative illegalities directly to the President clearly lacked any basis in legal logic or constitutional norms, violating Article 2 of the Prosecutors' Ethics Code, with serious circumstances.

(5) Abuse of power in convening a press conference: The Special Investigation Division first wiretapped Prosecutor Lin Hsiu-t'ao under the guise of a criminal case, and subsequently summoned Prosecutor Lin Hsiu-t'ao in the capacity of a witness. Although it concluded after the interrogation that the aforementioned lobbying case involved no monetary quid pro quo and fell within the scope of "administrative responsibility," it still handled the matter as a criminal case and decided to publicize the aforementioned lobbying incident by convening a press conference, violating Articles 2 and 18 of the Prosecutors' Ethics Code, with serious circumstances.

(6) Press release contents unverified, disregarding others' rights: Without following prior investigative plans—namely, summoning Legislator Ko Chien-ming, President Wang Jin-pyng, former Minister Tseng Yung-fu, and Chief Prosecutor Ch'en Shou-huang to appear and explain as stated in the special report submitted to President Ma Ying-jeou—Prosecutor Cheng Shen-yuan and Prosecutor-General Huang Shih-ming relied solely on the division's unilateral accusations, the wiretapped communication contents of Legislator Ko Chien-ming, and communication records between President Wang Jin-pyng, Chief Prosecutor Ch'en, and former Minister Tseng. Prosecutor-General Huang Shih-ming instructed Division Head Yang Jung-tsung to launch major actions and hold several press conferences, claiming that Legislator Ko Chien-ming lobbied Chief Prosecutor Ch'en and that former Minister Tseng had contacted Chief Prosecutor Ch'en. Subsequent verification revealed that the above statements were groundless and confused identities. They failed to fulfill their duty of verification before publicizing the information to the world, disregarding others' rights, and violating Articles 2, 5, and 8 of the Prosecutors' Ethics Code, with serious circumstances.

(7) Unlawfully wiretapping the Legislative Yuan's main switchboard, and making public excuses and defenses afterward without verification: In investigating the 2011 Special-Tzuh-tzu Case No. 61, Prosecutor Cheng Shen-yuan followed statutory procedures to attach relevant evidence and applied to the court to wiretap the Legislative Yuan's main switchboard telephone number 0972***235. The basic data of the telephone number attached to the wiretap application recorded the subscriber as the "Legislative Yuan." Prosecutor-General Huang Shih-ming, Division Head Yang Jung-tsung, and Prosecutor Cheng Shen-yuan nevertheless maintained a casual attitude and poor verification regarding this major issue of wiretapping the parliament, causing severe damage to the credibility of the Supreme Prosecutors Office, and violating Article 95, Subparagraph 2 of the Judges Act and Articles 2, 10, and 19 of the Prosecutors' Ethics Code, with serious circumstances.

II. Regarding Ch'en Shou-huang and Lin Hsiu-t'ao:

Regarding the handling of whether to appeal after Legislator Ko Chien-ming was acquitted by the Taiwan High Court in a retrial (2011 Year's Shang-Keng-(I)-Tzu No. 92) in a case where he violated the Business Accounting Act and Breach of Trust, Taiwan High Prosecutors Office Chief Prosecutor Ch'en Shou-huang and Prosecutor Lin Hsiu-t'ao committed the following violations of the Judges Act and other provisions:

(1) Chief Prosecutor Ch'en Shou-huang accepted lobbying from President Wang Jin-pyng: After Ko Chien-ming's case was revoked by the Taiwan High Court on June 18, 2013, overturning the first-instance guilty verdict and acquitting him, the judgment service was received by Prosecutor Lin Hsiu-t'ao at approximately 11:30 a.m. on the 27th of the same month (June). Some time after Ko Chien-ming's case resulted in an acquittal, Chief Prosecutor Ch'en Shou-huang received a phone call from Legislative Yuan President Wang Jin-pyng stating: "Many second-instance prosecutors frequently make indiscriminate appeals to avoid responsibility in cases where the first instance found guilt but the second instance changed it to an acquittal. I hope prosecutors can have moral courage, and at the same time I hope prosecutors will carefully deliberate whether to appeal Legislator Ko Chien-ming's case," and "This case... if there are no circumstances where the judgment violates laws, you prosecutors should not casually find a reason and casually appeal, leaving the case dragged out indefinitely." After receiving this lobbying phone call hoping prosecutors would not appeal and letting the case become final, Ch'en Shou-huang—because he frequently consulted President Wang Jin-pyng on public official matters such as budgets while previously serving as the Political Deputy Minister of the Ministry of Justice, and out of gratitude for President Wang Jin-pyng's assistance—actually accepted the lobbying and failed to register the lobbying in accordance with regulations to prevent doubts about the impartiality of the discharge of his duties.

(2) Chief Prosecutor Ch'en Shou-huang lobbied Prosecutor Lin Hsiu-t'ao: Around 2:00 p.m. on the day Prosecutor Lin Hsiu-t'ao received the judgment (i.e., June 27, 2013), Chief Prosecutor Ch'en Shou-huang summoned Prosecutor Lin Hsiu-t'ao to his chief prosecutor office and lobbied her by stating: "A case has come down from the parliament, which is Ko Chien-ming's violation of the Business Accounting Act case. This case will not be very large or very serious; (the first instance) sentenced 6 months commutable to a fine. Handle it according to law yourself, and if possible, there is no need to stubbornly appeal an acquittal," implying a desire for Prosecutor Lin Hsiu-t'ao not to file an appeal in Ko Chien-ming's case.

(3) Prosecutor Lin Hsiu-t'ao accepted lobbying from Chief Prosecutor Ch'en Shou-huang: After Chief Prosecutor Ch'en Shou-huang made the aforementioned lobbying—which was unrelated to the exercise of the principle of prosecutorial unity and carried the risk of illegality (i.e., if Ko Chien-ming's acquittal involved circumstances violating laws, Prosecutor Lin Hsiu-t'ao might illegally fail to appeal)—Prosecutor Lin Hsiu-t'ao likewise failed to register it to prevent doubts about the impartiality of the discharge of her duties. Influenced by this lobbying, she dismissed her original inclination to file an appeal in Ko Chien-ming's case to avoid trouble. However, due to a suggestion from her colleague in the same office, Prosecutor Ch'en Cheng-fēn, on the same day she received the judgment (June 27, 2013), she retrieved the case files and evidence, reviewed the contents of the acquittal judgment, and concluded that the judgment still did not involve circumstances violating laws. Before the end of work on the same day, she submitted the judgment along with her opinion that the case was "indeed without error" (i.e., drafted as non-appeal), which was sequentially reviewed by the Section Head Prosecutor and the Chief Section Head Prosecutor, and approved by Chief Prosecutor Ch'en Shou-huang on July 1 of the same year. The case became final on July 8 of the same year because the prosecutors did not file an appeal.

(4) Both Chief Prosecutor Ch'en Shou-huang and Prosecutor Lin Hsiu-t'ao failed to exercise caution to prevent doubts about the impartiality of the discharge of their duties, violating Article 12, Paragraph 1 of the Prosecutors' Ethics Code; both accepted lobbying that could impair the impartiality, detachment, and independence of their duties. Furthermore, Ch'en Shou-huang lobbied a prosecutor belonging to his own office, both violating Article 11 of the Prosecutors' Ethics Code. Chief Prosecutor Ch'en Shou-huang holds a high position with great power, and all his words and actions must be cautious to serve as an example for prosecutors. The aforementioned misconduct has severely damaged the impartial and independent image of the prosecutorial system, and the circumstances are naturally serious. Although it cannot be proven that Prosecutor Lin Hsiu-t'ao committed an illegal act of failing to appeal when she should have in Ko Chien-ming's case, her misconduct has nonetheless caused all sectors to doubt the impartiality of her non-appeal, damaging the reputation of prosecutorial organs in impartially exercising their duties, and the circumstances are likewise serious. However, considering that both have candidly and sincerely stated the course of events, administrative disciplinary action is deemed sufficient under the circumstances, and there is no need to refer them to the Control Yuan. Pursuant to Article 89, Paragraph 1 mutatis mutandis applying Article 39, Paragraph 1, Subparagraph 2 of the Judges Act, it is reported through the Ministry of Justice for processing in accordance with Article 37, Paragraph 8 of the Enforcement Rules of the Judges Act. The part regarding Prosecutor Lin Hsiu-t'ao is submitted to the Prosecutor Personnel Review Committee for deliberation (the disciplinary action for Chief Prosecutor Ch'en Shou-huang, pursuant to Article 90, Paragraph 1 of the Judges Act, does not fall within the authority of the Prosecutor Personnel Review Committee), and it is recommended that both be given a warning. Regarding the requests by the requesting evaluation agencies—the Ministry of Justice and the Judicial Reform Foundation—asserting that Chief Prosecutor Ch'en Shou-huang additionally accepted lobbying from Legislator Ko Chien-ming, telephoned President Wang Jin-pyng to give the name of Prosecutor Lin Hsiu-t'ao, and asked President Wang Jin-pyng to turn and lobby former Minister Tseng Yung-fu, and that Prosecutor Lin Hsiu-t'ao committed dereliction of duty and other misconduct, this committee considers that there is still insufficient exact evidence to prove them, which is hereby stated.