The Liang Hsuan-Yung Prohibition of Disadvantageous Modification Case—How Can an Appellant Be Punished? A Reduced Guilt, Yet a Heavier Sentence

The defendant in this case, Liang Hsuan-yung, has been involved in numerous drug-related cases and has recently filed frequent extraordinary appeals. His goal is not to overturn the facts to secure a retrial verdict, but rather because previous judgments violated a core principle of the Code of Criminal Procedure—the prohibition of disadvantageous modification. The judiciary should not wrongfully increase the final prison term he must serve. Therefore, he continues to try to break through this predicament and speak up for his rights.

Although the determination of the prison term in this case is complex, the main issue is that after he filed an appeal and underwent retrial, the parts found guilty became fewer and the sentences lighter, yet the court ultimately ruled a combined execution sentence heavier than the original one.

What is the Principle of Prohibition of Disadvantageous Modification?

In criminal procedure, when a defendant personally files an appeal or someone fights for a lighter sentence on their behalf, if the prosecutor has not correspondingly filed an appeal, the court during review must not inversely increase the penalty. The purpose is to protect the rights of the defendant, allowing them to freely exercise their right of appeal without worrying about retaliation and increased punishment, thereby making the trial process fairer and boosting public confidence in the judicial litigation system.

At the same time, because the defendant dares to bravely speak out and appeal for their own interests, it helps judges discover the truth during the re-evaluation process, prevents miscarriages of justice, and enhances overall judicial quality.

What is "Determining the Execution Sentence"? Why Not Just Add Up All the Prison Terms?

When a person commits more than one crime, the court sentences each crime individually, but ultimately does not have every prison term cumulatively executed; instead, it determines a "practical prison term to be executed"—this is known as "determining the execution sentence." According to Article 50 of the Criminal Code of the Republic of China, as long as these crimes were committed "before the first judgment became final," they can be considered together, and an overall execution sentence can be determined. Article 51 of the Criminal Code of the Republic of China regulates how this total sentence is determined: in principle, the court makes a decision by considering the specific circumstances between the "sum of the prison terms for each crime" and "the prison term of the heaviest crime."

This design is intended to prevent the defendant from suffering repeated punishment for multiple acts within the same period, and to ensure that the overall criminal responsibility is proportional to their actual responsibility. Otherwise, allowing every prison term to be cumulatively executed would often result in excessive punishment, running counter to the individualization of sentencing and the principle of proportionality.

Facts of the Case

This case is divided into combined sentencing parts A, B, and C. Among them, combined sentencing part A involves Liang Hsuan-yung's three drug offenses with the following respective sentences:

New Taipei District Court 99-Su-1935 Judgment:

Item	A1: Trafficking Category 3 Drugs	A2: Trafficking Category 3 Drugs	A3: Trafficking Category 3 Drugs
Time of Offense	December 29, 2009	Late January 2010	February 8, 2010
Prison Term	5 years and 6 months	5 years and 6 months	5 years and 6 months
Determined Execution Sentence	7 years and 2 months (combined)	—	—

After appealing to the second instance, Taiwan High Court 101-Shang-Su-497 Judgment sentenced the same crimes and execution sentence. The third instance revoked and remanded the case, after which Taiwan High Court 101-Shang-Keng-I-147 Judgment changed it to the following:

Item	A1: Trafficking Category 3 Drugs	A2: Trafficking Category 3 Drugs	A3: Trafficking Category 3 Drugs
Time of Offense	December 29, 2009	Late January 2010	February 8, 2010
Prison Term	5 years and 4 months	5 years and 4 months	5 years and 4 months
Determined Execution Sentence	6 years and 10 months (combined)	—	—

After the appeal, the trafficking of Category 3 drugs on February 8, 2010 was dismissed and finalized, while the rest were revoked and remanded. Taiwan High Court 102-Shang-Keng-Er-18 Judgment ruled as follows:

Item	A1: Trafficking Category 3 Drugs	A2: Trafficking Category 3 Drugs	A3: Trafficking Category 3 Drugs
Time of Offense	December 29, 2009	Late January 2010	February 8, 2010
Prison Term / Result	Not Guilty	5 years and 2 months	Appeal dismissed by the Supreme Court in the first retrial, finalized

Meanwhile, the B series of judgments in Taiwan New Taipei District Court 100-Su-1980 Criminal Judgment was smoother, with the following prison terms:

Stage	Trafficking Category 2 Drugs	Possession of Category 1 Drugs	Use of Category 2 Drugs
First Instance	5 years and 6 months	10 months	6 months
Second Instance	Appeal dismissed	Appeal dismissed (cannot be appealed to the third instance)	Appeal dismissed (cannot be appealed to the third instance)
Supreme Court	Appeal dismissed	—	—
Determined Execution Sentence	6 years and 4 months (combined)	—	—

Part C is relatively straightforward, coming from New Taipei District Court 100-Sina-5415, sentencing the use of Category 2 drugs with a declared sentence of 6 months. Taiwan High Court 102-Sheng-2430 Criminal Ruling combined the B series of judgments, various crimes from the B series, and the earlier finalized trafficking of Category 3 drugs from the A series (February 8, 2010, declared sentence of 5 years and 4 months), determining a combined execution sentence of 12 years.

Subsequently, Taiwan High Court 102-Sheng-4177 Criminal Ruling combined the crimes from Taiwan High Court 102-Sheng-2430 Criminal Ruling (execution sentence of 12 years) with A2's 5 years and 2 months, determining a combined execution sentence of 16 years and 6 months.

However, if taking the execution sentences of 7 years and 2 months or 6 years and 10 months previously determined in the A series of judgments as a reference, along with the 6 years and 4 months execution sentence determined in the B series and the 6 months in Case C, the total is 14 years or 13 years and 8 months—which is still lighter than the 16 years and 6 months obtained in the current ruling.

Statutory Amendments Add Words, Not the Starting Point of Principles

Liang Hsuan-yung previously filed an interlocutory appeal citing the principle of prohibition of disadvantageous modification, but it was dismissed by the Supreme Court 103-Tai-Kang-111 Criminal Ruling. The reasoning was roughly that this case was a matter prior to the promulgation and implementation of the amended Article 370 of the Code of Criminal Procedure on June 4, 2014. Previously, cases of this nature were all considered products of the old law period and could not be remedied.

However, what should be valued is not the words added by statutory provisions, but the principle itself. The principle of prohibition of disadvantageous modification inherently exists within the Code of Criminal Procedure. The fundamental principle that "the more one appeals, the heavier the sentence becomes," which deters defendants from fighting for their own interests through appeals, should naturally apply equally to the determination of sentences.

Furthermore, Article 370 of the Code of Criminal Procedure explicitly stipulates: "Where an appeal is filed in the former paragraph by the defendant or for the benefit of the defendant, the second-instance court shall not pronounce a heavier sentence than the original judgment." The "sentence" here includes not only the declared sentence for a single crime, but also the overall "execution sentence" after multiple offenses are combined. If, after an appeal, some judgments result in not guilty verdicts or reduced sentencing, yet the court imposes a heavier sentence when combining sentences, it amounts to "disguised aggravation" and is clearly illegal.

Conclusion

The issue faced in this case is not actually the difference in application before and after the legal amendment, but rather the deviation in the court's understanding of the principle of prohibition of disadvantageous modification and its statutory interpretation. It also reflects the rights gaps that individual cases may encounter during the evolution of legal views. This case is neither the only one nor the last, and it is recommended that related cases must acquire possible corresponding remedies through more precise legal amendments.