Jhen-Yi Chen
The Taiwan High Court rendered the 108-Shang-Su-3911 Decision of January 15, 2020 (hereinafter, the “Decision”), holding the precondition for applying Article 14 of the Witness Protection Law is the prior consent of the prosecutor, who will consider if it is necessary to change a criminal perpetrator to a state witness, depending on the progress of case investigation and the preponderance of evidence.
According to the facts underlying this Decision, the criminal ring which the Defendant was invited to join requested that proceeds of fraud obtained through their division of labor should be wired into dummy financial accounts and then the money mules would withdraw and hand in the money to the ring. The Defendant joined a fraud ring and became a money mule for collecting proceeds of fraud due to his desire to share the proceeds of crime. The Defendant and the other members of the ring jointly communicated their criminal intent to engage in money laundering and to pursue their illegal ownership. Another member of the ring first called the victim while pretending to be a customer service representative of a shopping platform, saying that the one fuel tank cover which the victim had purchased was recorded as 10 due to negligence of the personnel, and that the payment would be deducted from the victim’s account. And then another member who pretended to be a bank employee called the victim, asking him to operate an ATM as instructed in order to cancel the payment deduction. As a result, the victim made a mistake and money was transferred from his bank account to the designated bank account of the fraud ring before an individual nicknamed “JP” in the fraud ring gave an ATM card for the dummy financial account to the Defendant, who then went and withdrew money. And then the entire sum was handed over to “JP” to turn over to the fraud ring in order to conceal the nature of the proceeds of crime and their flows. Since the victim subsequently called the police, and after the prosecutor’s investigation, an indictment was issued.
According to the Decision, Article 14-1 of the Witness Protection Law, a defendant who helps the prosecutor prosecute other principal offenders or accomplices by providing a material testimony concerning matters to be substantiated in the course of the investigation, his or her sentence may be reduced or exempt. The legislative objectives of this provision are to encourage defendants or crime suspects to give up other members of the crime by reducing the criminal punishment as an incentive in order to break the structure of complicity and to combat collective and secret major crimes that are difficult to suppress. This provision is commonly known as the “leniency policy provision.” This provision only applies to a perpetrator in a case that meets the criteria under Article 2 of the law and the perpetrator has to give a truthful and detailed testimony that relates to matters pending substantiation and vital to the case or to criminal evidence concerning other principal offenders or accomplices so that the prosecutor will be able to effectively pursue the criminal liabilities of other principal offenders or accomplices. The prerequisite is the prior consent of the prosecutor, who will then consider the necessity of changing the perpetrator to a state witness, depending on the progress of the case investigation and the availability of evidence. Therefore, the focus is on the ability to pursue the liabilities of the other members of the crime in order to bring the entire criminal organization to justice.
It was further indicated in this Decision that according to the investigation record of the Defendant, although the Defendant admitted to facts such as joining the fraud ring as a money mule during the prosecutor’s interrogation about criminal facts, still the prosecutor did not agree in advance that the Defendant would be changed to a state witness in accordance with the Witness Protection Law. Therefore, the sentence reduction criteria under the Witness Protection Law were not met.