Statement | Pro Bono Legal Team for the Ch'en Ching-k'ai Case Issues Statement on the Dismissal of the Third Criminal Retrial Application

Regarding the dismissal of the third retrial application^[1] in the Ch'en Ching-k'ai case by the Taiwan High Court Kaohsiung Branch Court (hereinafter the Kaohsiung High Court) on April 12, 2023, the Judicial Reform Foundation (JRF) and the pro bono legal team for this case express profound regret and issue the following statement:

1. While civil retrials have already brought vindication and both the prosecution and defense are aligned in believing a retrial should be opened, the court has once again dismissed the application, running into roadblocks on the thirteen-year path to exoneration.

   On November 24, 2009, the party to this case, Ch'en Ching-k'ai, suffered a traffic accident that resulted in Cerebral Visual Impairment (CVI). Despite diligently undergoing rehabilitation and returning to daily life, he was reported for alleged fraud regarding simulated blindness. Although armed with a visual system function evaluation report from the Department of Psychology at National Taiwan University and diagnostic certificates from multiple hospitals, the Kaohsiung High Court nonetheless rendered a final judgment on February 14, 2018, sentencing him to 1 year and 2 months of imprisonment on the grounds that "Ch'en Ching-k'ai's behavioral expressions are no different from those of ordinary people," using this to substantiate fraud and insurance fraud.

   In 2020, favorable news arrived successively from the civil division of the Kaohsiung High Court, which explicitly stated in its judgment^[2] that external demeanor and behavior cannot be used to retroactively infer decimal visual acuity or establish simulated blindness. Furthermore, the court found that Ch'en Ching-k'ai did indeed suffer from "reduced blood perfusion in the bilateral occipital lobes of the brain" and "damage to the cerebral visual cortex" caused by the traffic accident, meeting the insurance payout criteria for standard decimal visual acuity below 0.01. Consequently, the court ruled that Ch'en Ching-k'ai was not required to return the insurance benefits already paid out by the insurance company.

   For this criminal retrial, the legal team applied for a retrial based on the functional visual assessment report by Associate Professor Chang Ch'ien-hui of National Taiwan Normal University and the brain science evaluation report by the research team of Professor Lan T'ing of Taipei Medical University. From the perspective of the prosecution, the Review Committee for Finalized Conviction Cases of the Taiwan High Prosecutor's Office also officially requested the prosecutor at the Taiwan High Prosecutor's Office Kaohsiung Branch to initiate the proceedings.

   The Kaohsiung High Court convened a total of 4 pre-retrial investigation hearings. The judge-rapporteur repeatedly summoned professional expert witnesses in the fields of brain science and special education, asking them to explain in detail how visual impairments caused by brain injuries differ from those caused by general ocular injuries. However, the panel of judges ultimately dismissed the experts' evaluations in their entirety on the grounds that "the visual status reflected in the defendant's actual behavioral manifestations does not conform to the state of total blindness below the decimal visual acuity standard of 0.01."

   Initially, we had hoped that this, the third criminal retrial, would finally bring Ch'en Ching-k'ai's path to exoneration to an end; however, the Kaohsiung High Court's ruling dismissing the retrial application has once again dealt a severe blow to this path of vindication.

2. This ruling dismissing the retrial demonstrates the panel's disregard for and incomprehension of professional expert opinions, once again highlighting judicial "disability blindness."

   In this case, the panel of judges chose not to adopt the scientific evaluation results, even asserting: "Since the content of the aforementioned activities undertaken by the defendant is virtually indistinguishable from that of sighted persons, in order to distinguish whether the defendant was operating under a state of total blindness below the decimal visual acuity standard of 0.01 by utilizing residual vision paired with relevant strategies to complete the aforementioned actions, or whether the defendant's visual impairment at the time was simply not that severe and was primarily completed by relying on vision utilization..." Such reasoning lays bare an incomprehension of brain science and special education. Furthermore, by taking the experts' opinions out of context, the ruling once again exposes the judiciary's "disability blindness," deepening prejudice and discrimination against persons with visual impairments.

   Meanwhile, the evaluation report submitted by the Taipei Medical University expert—which concluded through tests such as "Electroencephalography (EEG/ERP)" and "Functional Magnetic Resonance Imaging (fMRI)" that Ch'en Ching-k'ai is indeed a blindsight patient—was brushed aside in the ruling with the cursory remark that "although it is acknowledged that the defendant has severe visual impairment." The ruling failed to address the evaluation methods, principles, and procedures of brain science, or why they were deemed unworthy of credence; instead, it directly overturned the results of the evaluation report based on external behavioral expressions unrelated to the evaluation. The JRF and the legal team are truly distressed by the Kaohsiung High Court's ruling dismissing the retrial application.

3. The retrial review procedure is designed to allow questionable cases to be clarified and debated; the standard applied in this retrial dismissal ruling starkly contradicts the spirit of the new Code of Criminal Procedure retrial provisions.

   The purpose of the retrial system is to discover the truth and prevent miscarriages of justice. Therefore, a retrial ruling is not meant to directly determine whether a defendant is guilty or innocent, but rather to require the court to actively retry the case when "doubt" exists. To reform the past unreasonable phenomenon where initiating a retrial was as difficult as ascending to heaven, the Code of Criminal Procedure was amended eight years ago (January 23, 2015). The Supreme Court and the Constitutional Court have also repeatedly reminded the judicial system of the importance of this spirit.

   The standard adopted by the panel of judges in this case is virtually indistinguishable from the standard for conviction. We believe the court fundamentally misunderstands the spirit of the retrial system, denying innocent individuals even the admission ticket to clarify the truth through retrial proceedings. Even if the panel still harbors many questions regarding the abstruse scientific information in this case, this precisely highlights the necessity of opening a retrial to allow for a further in-depth dialogue between the judiciary and science.

   Therefore, the significance of this retrial ruling does not lie in the court once again determining Ch'en Ching-k'ai to be guilty; rather, it lies in the court once again locking cases with potential miscarriages of justice outside the door, begrudgingly withholding even the opportunity for further clarification and cross-disciplinary dialogue.

The rescue team will continue to articulate the importance of scientific evaluation results in this case and will persist, alongside all sectors concerned with the Ch'en Ching-k'ai case, in the path toward vindication. We are considering pursuing avenues such as extraordinary appeals, retrials, and constitutional litigation in the hope of restoring the innocence that Ch'en Ching-k'ai deserves.

Here, we call upon all sectors of society to continue paying attention to this case and to support judicial reform. Only through the joint efforts of all citizens can we truly achieve a fair and just judiciary for Ch'en Ching-k'ai and all those who have suffered injustices.

Press Contacts

Li Ming-ju, Attorney-at-Law, Deputy Executive Director, Judicial Reform Foundation
Ma Ch'ien-ya, Legal Specialist, Judicial Reform Foundation

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Footnotes

[1] Taiwan High Court Kaohsiung Branch Court 111-年度聲再字第15、36號 Criminal Ruling.
[2] Taiwan High Court Kaohsiung Branch Court 107-年度再易字第63號 Civil Judgment.