The Supreme Court rendered the 103-Tai-Shang-4022 Criminal Decision of November 20, 2014 (hereinafter, the "Decision"), holding that the declaration of probation should be premised by the satisfaction of the conditions under the subparagraphs of Article 74, Paragraph 1 of the Criminal Code and by circumstances where temporary suspension of criminal punishment is deemed appropriate. Whether probation is declared is a matter that falls within the discretion of a court at the time of adjudication. A judgment should not be criticized for legal violation simply on account of whether probation is declared in the judgment.
According to the facts underlying the Decision, the first instance judgment that imposed criminal punishment on Defendant Shi-wang Hsu for causing the death of another person due to his negligence in business execution was upheld in the original decision, which also included a probation decision and rejected the prosecution's second instance appeal. The prosecution appealed to the Supreme Court on the ground that the probation instruction in the original decision violates laws and regulations.
Article 74, Paragraph 1 of the Criminal Code provides: "A punishment of imprisonment for not more than two years, detention or may be suspended for two to five years from the day the decision becomes final if either of the following circumstances exists and probation is considered appropriate: (1)There has been no previous imprisonment sentence or more severe sentence for an intentional offense; or (2) There has been no imprisonment sentence or more severe sentence for an intentional offense pronounced within five years after a previous imprisonment sentence or a more severe sentence was declared, executed or remitted."
It was expounded in the Decision that whether probation is declared is a matter that falls within the discretion of a court at the time of adjudication, and the original decision should not be criticized for legal violation simply on account of whether probation was declared. Therefore, it was further determined that the original decision specifically indicated the Defendant met the statutory criteria for probation because the Defendant had "never been subject to any imprisonment or more severe sentence for an intentional offense" under Article 74, Paragraph 1, Subparagraph 1 of the Criminal Code and the suspension of criminal punishment as declared was appropriate. Hence, the original decision should not be rashly criticized for legal violation and the prosecution's appeal was rejected.