On April 22, 2021, music teacher Chan Hui-ling (詹慧玲) was stopped and questioned in Taoyuan’s Jhongli District (中壢) by a police officer, surnamed Yeh (葉). When she refused to cooperate, she was thrown to the ground and arrested for obstructing an officer in carrying out their duties.
Chan filed a complaint against the officer, but the Taoyuan District Prosecutors’ Office declined to press charges. After Chan applied for a reconsideration, the Taiwan High Prosecutors’ Office ordered local authorities to conduct a second review. Yeh was found guilty in the first trial of coercion by a public official and was sentenced to four months in jail, in addition to offenses against personal freedom by a public official, for which he received a further six months.
The case highlights the major problem with spot checks by police.
Police conduct spot checks to maintain social order — not for criminal investigations. As such, spot checks do not involve arrest or search warrants, and are not subject to stringent oversight. Many years ago, the only legal basis for spot checks by police was Article 11 of the Police Duty Act (警察勤務條例), which demonstrates the dearth of attention given to spot checks. It was not until the passage of the 2003 Police Power Exercise Act (警察職權行使法), following the grand justices’ issuance of Interpretation No. 535 in 2001, that clearer legal norms were laid for spot checks.
According to Interpretation No. 535, police cannot conduct arbitrary or random inspections regardless of time, location or individuals. There must be reasonable doubt that shows the person poses a risk to endangering public safety or order.
Furthermore, before carrying out a spot check, there must be reasonable grounds to believe the person constitutes a hazard or will cause a hazard. This principle is also laid out in the first item of Article 6 of the Police Power Exercise Act.
Based on Paragraph 1, Article 4 of the same act, when initiating a stop-and-check, police shall present their credentials showing their identity and state their intent. Furthermore, Paragraph 1, Article 3 of the same act states that the principle of proportionality must be observed.
If an officer were to conduct a spot check without following legal procedures — for example, basing their action on subjective feelings, such as they think the target is a stranger or acting strangely — did not inform the other person why they were targeted, or breached the principle of proportionality, etc., they have no legal basis on which to conduct the check. In such cases, based on Paragraph 2, Article 4 of the Police Power Exercise Act, people have the right to refuse to cooperate.
Since the crime of obstructing an officer in discharge of their duties as stated in Paragraph 1, Article 135 of the Criminal Code assumes that civil servants perform their duties in accordance with the law, resisting illegal checks is a legitimate self-defense, and it is not considered obstructing an officer in carrying out their duties. It is the police who might be breaking the law if they were to take a person into custody without proper authority, through coercion or after an illegal search.
Most people would feel intimidated or unsure of what the legal consequences would be if they refused to cooperate. They could take legal action after the incident, but by that time it would be difficult to collect evidence. It is rare for somebody to stand up for their rights in the manner like Chan did, leading to the prosecution of a police officer.
As the Police Power Exercise Act has been in force for nearly 20 years, aside from reviewing and amending legislation, police must strive to comply with due process and protect people’s rights when conducting random inspections.
Wu Ching-chin is a law professor at Aletheia University and director of the university’s Research Center for Criminal Law.
Translated by Lin Lee-kai
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