The Supreme Court rendered the 106-Tai-Shang-3460 Criminal Decision of April 26, 2018 (hereinafter, the “Decision”), holding that an ordinary individual who is not a civil servant and who deliberately conceals property he/she obviously knows to be obtained from a criminal offense under Articles 4 through Article 6 of the Anti-Corruption Statute (hereinafter, the “Statue”) also commits an offense of concealing and controlling stolen property under Article 15 of the Statute.
According to the facts underlying this Decision, it was held in the original decision that since the Defendant had committed an offense under the Money Laundering Control Law, the imprisonment sentence handed down in the first instance was set aside, and another sentence of one-year imprisonment was imposed for the Defendant’s money laundering behavior when he had concealed the property obtained from his major criminal offense. Dissatisfied, the prosecutor from the Taichung Branch of the Taiwan High Prosecutors Office appealed.
According to the Decision, Article 2, Paragraph 1 of the Money Laundering Control Law before amendment, which was applicable at the time of the Defendant’s act, provides that any person who covers up or conceals property or assets he/she obtains from any major criminal offense shall be deemed to engage in a money laundering act. Pursuant to Article 11, Paragraph 1 of the same law, the offender shall be subject to imprisonment of up to five years, and a fine of up to NT$3 million may be imposed. Article 15 of the Statute also provides: “Any person subject to the Statute who intentionally accepts, transports, conceals, stores or knowingly purchases property which is known to be the proceeds of any of the offenses enumerated in Articles 4 through Article 6 shall be punished by imprisonment of one year to seven years and may also be punished by a fine of up to NT$3 million.” In addition, the money laundering offense under the Money Laundering Control Law requires an actor to have engaged in a specific act to cover up, conceal, accept, transport, deposit and hoard, intentionally purchase, intermediate property or proceeds of any offense committed by himself/herself or by another person with a subjective criminal intent to cover up or conceal the connections between the sources of the property or proceeds and the crime in order to formally legalize the sources to evade the state’s pursuit of criminal liability and penalties.
It was further explained in the Decision that the specific penal provisions in Article 15 of the Statute seek to address the difficulty in recovering proceeds of corruption and do not target identity offenders and are different from the legal interest of eradicating government corruption and enhancing the discipline of civil servants which the identity crime under Articles 4 through Article 6 of the same Statute seeks to protect. This offense certainly is not limited to individuals who carry out public duties pursuant to laws and regulations or individuals entrusted by public agencies to carry out public duties as the subject of crime. Therefore, ordinary people who are not civil servants and who intentionally conceals proceeds they obviously know to be derived from any offense under Articles 4 through Article 6 of the same Statute are also punishable for such offense.
Therefore, according to this Decision, are the criminal patterns of the above-mentioned offense of concealment and money laundering under the Money Laundering Control Law and of the offense of concealing stolen property under Article 15 of the Statute the same? If they are the same, why can’t the same act of concealment engaged by the Defendant constitute the offense of concealment under Article 15 of the Statute according to legal theories such as “special law is superior to common law” and “law with serious punishment is superior to law with lighter punishment”? Since the original decision was reckless for failure to analyze and clarify this point and jumped to the conclusion that the Defendant had committed an offense under Article 11, Paragraph 1 of the Money Laundering Control Law before amendment, this portion of the original decision was reversed and remanded.