Sat, Aug 30, 2014 page8

• Pursuit of Ko deepens ‘one China’ illusion

  • By Wu Ching-chin 吳景欽
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  The Investigation Bureau’s attempt to submit the case of former Mainland Affairs Council (MAC) deputy minister Chang Hsien-yao (張顯耀) to the Taiwan High Prosecutors’ Office on a charge of treason based on Article 114-1 of the Criminal Code failed. The office refused to accept the case, saying that the Chinese government is not a foreign government, thus further entangling Taiwan in the “one China” framework.

  Also, in connection with the case against Taiwanese actor Kai Ko (柯震東) for alleged drug use, the Taipei District Prosecutors’ Office has launched an investigation and announced that it is to question Ko and gather hair samples when he returns to Taiwan later this month, thus deepening the “one China” illusion.

  According to Article 5, Item 8 of the Criminal Code, the code applies to certain offenses outside the territory of Taiwan. This means that the Republic of China (ROC) enjoys universal jurisdiction over drug offenses outside its territory and prosecutors have the right to prosecute such offenses regardless of whether the offenders are ROC citizens and regardless of whether the offense takes place in or outside Taiwan.

  However, since more countries have been decriminalizing simple drug use in recent years, this proviso is to be removed from the article. This means that the nation would not have universal jurisdiction over Ko’s drug use in Beijing.

  Article 7 of the Criminal Code states that, “[t]his Code shall apply where any national of [the] ROC commits an offense which is punishable for not less than three years of imprisonment outside the territory of the ROC; unless the offense is not punishable by the law of the place where the offense is committed.”

  Also, according to Article 10-2 of the Narcotics Hazard Prevention Act (毒品危害防制條例), for the use of “Category Two” narcotics, such as marijuana, a drug offense is punishable with no more than three years of imprisonment. This means that it is not a serious criminal offense which requires three years or more of imprisonment as stipulated in the above article.

  Besides, China merely punished Ko with administrative detention, so any evidence Taiwanese prosecutors collect could not be used for any criminal punishment.

  The police will be unable to arrest him on his return to Taiwan, because he is not currently a criminal. Article 205-1 of the Code of Criminal Procedure (刑事訴訟法) also states that the permission of a presiding or commissioned judge or public prosecutor is required to collect hair or blood samples.

  Moreover, it has been more than two weeks since his reported marijuana use, so it is questionable whether his hair samples would prove that he used drugs. Given these circumstances, Taiwan may need to obtain related documents and evidence from China through the cross-strait mechanism for mutual legal assistance.

  However, if Taiwan accepts all the evidence collected by China, some may mockingly make the point that the judicial systems on the two sides of the Taiwan Strait have already been unified.

  What is worse is that if Taiwan really does punish Ko, every Taiwanese who uses drugs or commits criminal offenses in China would face criminal prosecution in Taiwan, again disregarding the seriousness of the offense.

  If Taiwanese prosecutors were not to do this to all offenders, they would be criticized for deliberately targeting specific individuals, which would further highlight the absurdity of the judicial system’s insistence on the “one China” principle.

  Wu Ching-chin is an associate law professor at Aletheia University.

  Translated by Eddy Chang
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