Sidelights | Under the Statutory Provisions, Who Is the Victim of Justice? Potential Miscarriages of Justice Arising from the Narcotics Hazard Prevention Act

Article 17 of the Narcotics Hazard Prevention Act stipulates that individuals apprehended for drug offenses who "disclose the source of the drugs, thereby leading to the apprehension of other principal offenders or accomplices," may receive a "commutation or exemption of sentence." The original intent of this provision was to use sentence reduction or exemption as an incentive to induce apprehended drug offenders to reveal their suppliers, thereby rooting out and completely dismantling drug trafficking syndicates. Many drug offenders expose their uplines in pursuit of sentence reduction; however, some of these disclosures are based on real facts, while others are entirely fabricated.

In judicial practice, this provision has generated two types of miscarriages of justice: those who tell the truth fail to receive sentence reductions, while those who lie wrongly implicate others, causing innocent people to face imprisonment—such as the Hsiao Ming-yueh Case, which the Judicial Reform Foundation has long assisted in rescuing.

This lecture invited Attorney Li I-T'ing, counsel for the petitioner in Constitutional Court Judgment No. 2 of 2023, to discuss the origin, process, and outcome of the petition for constitutional interpretation. Additionally, Attorney Pa Mao shared the details of the Hsiao Ming-yueh Case, the prisoners' dilemma under the Narcotics Hazard Prevention Act, and the practical challenges regarding corroborating evidence.

Type I: Disclosing the Upline Without Receiving a Sentence Reduction [Constitutional Court Judgment No. 2 of 2023]

Attorney Li I-T'ing first noted the varying judicial interpretations of "apprehension," which, ranked from the broadest to the narrowest, are as follows: disclosing specific evidence regarding the source of the drugs, thereby enabling public officials with crime-investigating (or inquiring) powers to become aware of it, initiate an investigation (or inquiry) against that upstream personnel, and consequently crack their crime → the upstream personnel must be formally prosecuted → the upstream personnel is convicted in the first instance.

Adopting different interpretations leads to different rates of producing miscarriages of justice. Adopting the broadest interpretation makes it easier for apprehended drug offenders to be granted the leniency of sentence reduction under Paragraph 1, Article 17 of the Narcotics Hazard Prevention Act, but it easily leads to miscarriages of justice. Conversely, adopting the narrowest interpretation results in a lower rate of miscarriage of justice compared to other interpretations, but it is overly harsh on apprehended drug offenders. In the Ch'en Ping-jung Second-Tier Drug Trafficking Case, the judges of both the second and third instances adopted a compromised interpretation: the upstream personnel must be formally prosecuted to satisfy the condition of "disclosing the source of the drugs, thereby leading to the apprehension of other principal offenders or accomplices." Because Tseng Chih-wen, the upstream supplier disclosed by Ch'en Ping-jung, had long since fled, Paragraph 1, Article 17 of the Narcotics Hazard Prevention Act did not apply.

When Attorney Li I-T'ing took on Ch'en Ping-jung's case, the third-instance conviction had already become final. To pursue further appeals, relief could only be sought through extraordinary remedies, namely extraordinary appeal, retrial, or constitutional interpretation. However, Ch'en Ping-jung's initial application for a retrial was rejected. The reason for dismissal was that it failed to meet the requirements of Article 420, Paragraph 1, Subparagraph 6 of the Code of Criminal Procedure, which stipulates that a person "should have been rendered a not-guilty, exempt-from-prosecution, exempt-from-punishment, or a lighter sentence than that recognized in the original final judgment." The "exempt-from-punishment" referred to in Article 420, Paragraph 1, Subparagraph 6 of the Code of Criminal Procedure applies only to "mandatory exemption" and does not include provisions where the statute grants the court discretion on whether to exempt punishment. Meanwhile, the phrase "commutation or exemption of sentence" under Paragraph 1, Article 17 of the Narcotics Hazard Prevention Act involves discretionary power and is not a "mandatory exemption." The restrictions imposed by the Code of Criminal Procedure on the grounds for retrial are considerations made by the legislature based on the limited nature of judicial resources. After the retrial was dismissed, an interlocutory appeal was filed, which the judge dismissed as groundless, citing the same reasons as the dismissal of the first retrial. Finally, a petition for constitutional interpretation was filed.

Core arguments of Attorney Li I-T'ing's petition for constitutional interpretation:

1. Article 420, Paragraph 1, Subparagraph 6 of the Code of Criminal Procedure restricts the target of a retrial solely to cases where "there is sufficient evidence to show that the person convicted should receive a not-guilty, exempt-from-prosecution, exempt-from-punishment, or a lighter sentence than the 'offense' recognized in the original judgment," excluding "sentences." This improperly infringes upon the defendant's right to litigation (Article 16 of the Constitution) and right to personal liberty (Article 8 of the Constitution), while conflicting with the principle of equality (Article 7 of the Constitution), the principle of proportionality (Article 23 of the Constitution), and the principle of proportionality between crime and punishment.
2. While "failing to receive a sentence reduction when one should have" cannot serve as a ground for requesting a retrial, "failing to receive a sentence exemption when one should have" can initiate retrial proceedings, creating unjustified differential treatment and violating the principle of equality (Article 7 of the Constitution).

The Grand Justices held that, based on the protection of the right to equality under Article 7 of the Constitution, identical matters should be treated identically in the absence of justifiable reasons. Therefore, the basis of "should receive... exemption from punishment" referred to in the provision in question (Article 420, Paragraph 1, Subparagraph 6 of the Code of Criminal Procedure) should encompass not only legal provisions for "exemption of sentence" but also legal provisions for "commutation or exemption of sentence." Ch'en Ping-jung's case was able to apply for a retrial once again pursuant to the principal holding of Constitutional Court Judgment No. 2 of 2023, reducing his prison sentence from 10 years to 6 years. Furthermore, whereas the original final judgment held that Paragraph 1, Article 17 of the Narcotics Hazard Prevention Act was inapplicable, the retrial result deemed the provision applicable. Because Ch'en Ping-jung had already completed serving his sentence by the time the retrial judgment became final, Attorney Li I-T'ing applied for criminal compensation on his behalf, ultimately being awarded NT$3,208,000 in compensation. In addition to enabling a retrial and securing a sentence reduction in this case, other cases have also initiated retrials pursuant to the principal holding of Constitutional Court Judgment No. 2 of 2023.

Type II: Individuals Wrongfully Fabricated and Implicated Because Others Were Apprehended for Drugs and Sought Sentence Reductions [Hsiao Ming-yueh Case]

Hsiao Ming-yueh was 27 years old at the time, an ordinary real estate agent and the father of two daughters. He had simply gone on an overseas trip with friends from his military service days, only to find himself inexplicably accused after returning to Taiwan as the master-mind of an international drug smuggling operation—ultimately sentencing Hsiao Ming-yueh to life imprisonment. The accomplice who secured a sentence reduction subsequently wrote a confession letter admitting to framing him, but the judges refused to accept it, and the three-instance judgment of the case became final.

The core issue in this case is that all key pieces of physical evidence were unrelated to Hsiao Ming-yueh; the crime was established solely based on the statements of a co-defendant. Both Judicial Yuan Interpretation No. 582 and Article 156 of the Code of Criminal Procedure clearly stipulate that "the confession of a defendant or accomplice shall not serve as the sole evidence for a conviction" and must be supported by corroborating evidence. Furthermore, during interrogations, the prosecutor was suspected of using leading questions. When interrogating the accomplice Kuo Che-wei, the prosecutor hinted to Kuo not to mention Liang Chia-lin anymore, as it would not help with sentence reduction, and stated that he must mention Hsiao Ming-yueh to secure a reduction. The prosecutor also claimed that everyone else had already implicated Hsiao Ming-yueh and all had obtained sentence reductions.

Paragraph 1, Article 17 of the Narcotics Hazard Prevention Act provides that those who disclose the source of drugs, thereby leading to the apprehension of other principal offenders or accomplices, shall have their sentences commuted or exempted. The original intent was to encourage suspects to expose their uplines so as to dismantle drug trafficking rings, establishing this provision as an incentive for sentence reduction. Because of this provision, apprehended individuals frequently face the choice of whether to betray others, especially since trafficking first-tier drugs carries penalties of the death penalty or life imprisonment. Disclosing an upline to secure a sentence reduction—slashing a life sentence down to 10 or 20 years—represents an extremely powerful incentive.

In current judicial practice, transcripts of communications surveillance involving phone calls between drug dealers are frequently used as corroborating evidence for drug buyers' testimonies accusing drug dealers of criminal acts. Suppose A accuses B of participating in drug trafficking, and A and B did indeed speak on the phone. Even if the conversation content is completely mundane and contains no terminology related to drug transactions, under Taiwan's current adjudication practices for drug cases, such call-log records can be accepted as corroborating evidence in the majority of judgments. The Supreme Court holds that if such records are to serve as corroborating evidence, the conversational content must, according to general societal perceptions, be sufficient to clearly distinguish the type of drug being traded. Drug trafficking is a covert crime, and neither buyers nor fools are unintelligent; drug transactions are typically conducted using code words. These code words often bear no relation to the names of the drugs and consist of terms commonly used in daily life—such as using fruit names as codes—making the process heavily reliant upon the judge's discretionary evaluation of evidence.

Finally, during the Q&A session, Attorney Li I-T'ing expressed a perspective: "The true engine for generating miscarriages of justice is sometimes not the statutory provision itself, but the person interpreting it." The statutory provisions themselves are merely tools, depending entirely on how judges choose to wield them.