Blind Spots and Perspectives in Offense of Favoritism Cases: From the Distinction Between Practical Logic and Scientific Logic

Social science must… call into question the presuppositions inherent in the position of the ‘objective’ observer who, seeking to interpret practices, tends to bring into the object the principles of his relation to the object….

Judges who have long worked in legal practice probably rarely have time to read social science literature. The somewhat dense passage above is an important reflection offered by the prominent contemporary sociologist Bourdieu in building his theory. This reflection matters greatly for legal professionals, so please bear with me.

Why is this reflection interesting? In the past, social scientists focused on what their object of study was, as if it simply sat there waiting for researchers to discover the truth about it. Bourdieu shifted the perspective: he realized that not only the object of study but the researcher's own position needs to be studied, because the object of study is "constructed" by the researcher. Researchers unconsciously bring the particular presuppositions of their own position into their research and thereby construct their objects. Without carefully examining those presuppositions, the object of study cannot be properly constructed.

To reveal the particular presuppositions of the researcher's position and properly construct the objects of social science, Bourdieu pointed to the difference between the logic of "science" and the logic of "practice." "Practice" is the object of social science; it unfolds in time, flowing and changing as time passes, and its logic is loose, with both regularity and ambiguity. In practice, people often "cross the river by feeling for the stones": in the moment they do not necessarily know exactly how to act, but keep trying, now this way, now that, gradually working out what is more appropriate. "Science," by contrast, observes "practice" holistically after the fact; it tends to strip practice of its temporality, lining up practices from different times side by side for examination, and assigning them clear principles.

Although Bourdieu was reflecting on how social scientists come to know things, legal professionals face a similar problem when establishing the facts of a crime. A social scientist who fails to reflect on the presuppositions of his own knowing simply does poor research; a judge who fails to realize this may cause a wrongful conviction!

JRF received a wrongful conviction case for the offense of favoritism (profiting others through official duties). The case began with a blunder, and the judges' judgments then fell into the blind spot of scientific knowing, ignoring the logic of practice, with a regrettable outcome in the end...

Where It All Began: A Blunder, Intentional or Not?

The person at the center of this case is Liu Hsiang-heng, an utterly ordinary civil servant. He had worked in the military service section of a township office, the social affairs section of the Taoyuan County Government, and the Guishan Household Registration Office, and by chance became director of the Taoyuan County Stadium in December 2000. It was a new beginning for Liu, but unexpectedly, in May 2001, he became embroiled in a favoritism scandal.

In May 2001, a company wanted to rent the Taoyuan Arena to hold an exhibition of the Xi'an Terracotta Warriors. Venue fees were calculated under two modes, "ticketed" and "non-ticketed," and under the "non-ticketed" column there was a rate for "commercial exhibitions." The staff in charge approved charging the venue fee at the "non-ticketed" "commercial exhibition" rate, and the Taoyuan County Government approved it for the record. Still, the company found it too expensive, so it asked a county councilor to send an official letter to the county government asking the stadium to give it a discount. The county government sent a letter to the stadium inquiring, and the officer in charge, Hsu Hsiu-feng, said no special discount could be given, so the matter of a discount was dropped.

During the exhibition, there happened to be a personnel change at the stadium: responsibility for venue rentals passed from Hsiao Hao-ching (supervisor) and Hsu Hsiu-feng (officer in charge) to Hung Tien (supervisor) and Liu Hsi-shun (officer in charge), and a new accountant, Kuo Shu-fang, also arrived. After the exhibition ended, the new staff billed the company according to the original method, but the new accountant Kuo believed the method was wrong. She had seen the brochure for the Terracotta Warriors exhibition, which clearly mentioned "buying tickets," so she believed the "ticketed" rate should apply and wrote a memo objecting. The new officer in charge, Liu Hsi-shun, then went to ask the former officer Hsu Hsiu-feng and Director Liu Hsiang-heng. Hsu said that if only part of a commercial exhibition was ticketed, the "non-ticketed" "commercial exhibition" rate should apply (hereafter, references to the "non-ticketed" rate for commercial exhibitions mean the "commercial exhibition" rate under "non-ticketed"), while Director Liu set out five requirements for applying the "non-ticketed" rate to commercial exhibitions. Liu Hsi-shun also consulted the file on the "Robot Expo" of March 2001, since that event too was partially ticketed. In the end, Liu Hsi-shun summarized the five requirements in the memo[1], stating that because the Terracotta Warriors exhibition met all five, the "non-ticketed" rate applied, and Director Liu stamped his approval.

Originally this was merely a difference of opinion within the agency, but in December 2002 it unexpectedly turned into a favoritism case. The Taoyuan County Government Ethics Office mistakenly believed that stadium staff, lobbied by the councilor, had illegally given the company a discount, and the prosecutor, failing to notice that the lobbying had in fact failed, indicted Liu Hsiang-heng, Hsiao Hao-ching, Hsu Hsiu-feng, Hung Tien, and Liu Hsi-shun for favoritism.

At this point one thing is especially suspicious: it seems some investigators knew the councilor's lobbying had failed but deliberately concealed it, because the objection officer Hsu Hsiu-feng wrote in her letter to the county government had been blacked out. Defense counsel discovered this only during the first-instance trial when reviewing the file... Regrettably, although investigators concealed the failure of the councilor's lobbying, no one was held responsible, and the judges later even downplayed this blunder in their judgments, decoupling the question of whether favoritism was committed from whether the councilor's lobbying was accepted.

Judgments That Swung Up and Down: The Blind Spot of Scientific Logic

The judgments in this case at various instances included convictions, acquittals, and even a judgment of exemption from prosecution; from all five defendants convicted, to only Director Liu Hsiang-heng convicted in the end. The judges at the various instances clearly disagreed, and the case is full of controversy.

Case No.	Liu Hsiang-heng	Hsiao Hao-ching	Hsu Hsiu-feng	Hung Tien	Liu Hsi-shun
Taoyuan District Court Judgment 94-Su No. 377	Guilty of joint favoritism; 5 years 6 months' imprisonment	Guilty of joint favoritism; 5 years 4 months' imprisonment	Guilty of joint favoritism; 5 years 4 months' imprisonment	Guilty of joint favoritism; 5 years 2 months' imprisonment	Guilty of joint favoritism; 5 years 2 months' imprisonment
Taiwan High Court Judgment 96-Shang-Su No. 4816	Not guilty	Not guilty	Not guilty	Not guilty	Not guilty
Supreme Court 97-Tai-Shang No. 4006	Vacated and remanded	Vacated and remanded	Vacated and remanded	Vacated and remanded	Vacated and remanded
Taiwan High Court Judgment 97-Shang-Keng-I No. 444 (1st remand)	Exempt from prosecution	Exempt from prosecution	Exempt from prosecution	Exempt from prosecution	Exempt from prosecution
Supreme Court Judgment 98-Tai-Shang No. 2815	Vacated and remanded	Vacated and remanded	Vacated and remanded	Vacated and remanded	Vacated and remanded
Taiwan High Court Judgment 98-Shang-Keng-Erh No. 314 (2nd remand)	Guilty of joint favoritism; 5 years 6 months' imprisonment	Guilty of joint favoritism; 3 years' imprisonment	Not guilty	Not guilty	Not guilty
Supreme Court 99-Tai-Shang No. 3309	Vacated and remanded	Vacated and remanded
Taiwan High Court Judgment 99-Shang-Keng-San No. 179 (3rd remand)	Guilty of favoritism; 5 years 6 months' imprisonment	Not guilty
Supreme Court Judgment 100-Tai-Shang No. 3007	Appeal dismissed

As the table shows, in the end only Liu Hsiang-heng was convicted of favoritism; all the others were acquitted. This is because the earlier staff, Hsiao Hao-ching and Hsu Hsiu-feng, argued that they were responsible only for reviewing the written application, and that after the reassignment they knew nothing of the subsequent handling and had no decision-making power. The later venue rental supervisor Hung Tien said he was unfamiliar with the work and simply followed the views of Director Liu Hsiang-heng and officer Liu Hsi-shun. Liu Hsi-shun said he too was unfamiliar with the work and decided how to bill the Terracotta Warriors exhibition by asking the former officer Hsu Hsiu-feng and Director Liu Hsiang-heng.

Setting aside whether the courts' findings are internally consistent, the remaining question is: what exactly were the grounds for Liu Hsiang-heng's repeated convictions, acquittal, and even exemption from prosecution? The judgments show that the main disputes centered on:

1. Was the stadium's fee schedule a legal regulation (with external legal effect) or merely an administrative rule?
2. Were the stadium's billing standards for "ticketed" and "non-ticketed" events clearly defined? Was there room for administrative discretion?
3. Was there really an administrative practice regarding how to bill "partially ticketed" events?

The main disputes in the judgments concerning Liu Hsiang-heng are summarized in the table below:

Case No.	Holding concerning Liu Hsiang-heng	Facts and Reasoning
Taoyuan District Court Judgment 94-Su No. 377	Guilty of joint favoritism; 5 years 6 months' imprisonment	The stadium's fee schedule is a legal regulation; the provisions on "ticketed" and "non-ticketed" are clear, and the regulation does not authorize the director to exercise administrative discretion. Since the Terracotta Warriors exhibition sold tickets, it should have been billed at the "ticketed" rate. Even if some earlier commercial exhibitions with partial ticketing were billed at the "non-ticketed" rate, that was an unlawful administrative practice and cannot be invoked. Knowing of accountant Kuo Shu-fang's objection, Liu nonetheless insisted on using the five requirements to bill the Terracotta Warriors exhibition at the "non-ticketed" rate, which constitutes favoritism.
Taiwan High Court Judgment 96-Shang-Su No. 4816	Not guilty	Under the stadium's administrative practice, "ticketed" meant "selling seat tickets," and commercial exhibitions were billed at the "non-ticketed" rate. The five requirements Liu set out for the "non-ticketed" rate were stricter than the existing practice, so intent to confer an improper benefit can hardly be found.
Supreme Court 97-Tai-Shang No. 4006	Vacated and remanded	On a textual reading, "ticketed" simply means "selling admission tickets." The Taoyuan County Government should be asked whether "ticketed" really referred only to "selling seat tickets." Did Liu's private demand that the company comply with the five requirements have a legal basis? Did the company actually comply? The original judgment did not address this.
Taiwan High Court Judgment 97-Shang-Keng-I No. 444 (1st remand)	Exempt from prosecution	The fee schedule is not a legal regulation but merely an administrative rule. Administrative rules fall outside the elements of the offense of favoritism, so favoritism cannot be found at all. The fee schedule listed only "ticketed" and "non-ticketed" and had no provision on how to bill "partially ticketed" events, which is why Liu set out the five requirements to deal with such cases. At most this raises the question of whether administrative discretion was properly exercised; it does not meet the elements of favoritism.
Supreme Court Judgment 98-Tai-Shang No. 2815	Original judgment vacated	It is questionable whether the fee schedule is merely an administrative rule. Even if Liu did not commit favoritism, did he commit breach of trust?
Taiwan High Court Judgment 98-Shang-Keng-Erh No. 314 (2nd remand)	Guilty of joint favoritism; 5 years 6 months' imprisonment.	The findings of fact and reasoning are almost identical to those of Taoyuan District Court Judgment 94-Su No. 377.
Supreme Court 99-Tai-Shang No. 3309	Original judgment vacated	In the first remand trial, the court asked the Taoyuan County Government how "ticketed" was defined, and the county replied that there was no clear rule at the time on the standards for "ticketed" and "non-ticketed." Liu's view, based on prior practice, that the Terracotta Warriors exhibition should be billed at the "non-ticketed" rate was not entirely without basis. Accountant Kuo Shu-fang's written objection was only her personal opinion; it can hardly establish that Liu subjectively knew clearly that he was acting unlawfully. Further investigation is needed into whether such a "practice" really existed, why Liu and previous directors and officers allowed it, and whether it had any basis.
Taiwan High Court Judgment 99-Shang-Keng-San No. 179 (3rd remand)	Guilty of favoritism; 5 years 6 months' imprisonment	Although there were precedents of commercial exhibitions billed at the "non-ticketed" rate, either their ticketing differed from that of the Terracotta Warriors exhibition (Children's Expo, Cute Animals Expo) or they were themselves disputed (Robot Expo), so Liu could not invoke them as a practice. The fee schedule's provisions on "ticketed" and "non-ticketed" are clear. Director Liu had encountered a billing dispute before, and accountant Kuo had clearly objected; Liu should have been all the more careful, yet he insisted, showing that he did not misunderstand the law but intended to confer an improper benefit.
Supreme Court Judgment 100-Tai-Shang No. 3007	Appeal dismissed	The grounds argued by the appellant were already addressed in the original judgment and may not be argued again.

Yet on closer examination of the three main disputes, one finds that the courts either focused on legal interpretation unrelated to subjective intent, or required the existence of an administrative practice on which the defendant relied in making his decision before finding no intent to confer an improper benefit. Either way, none of them confronted the problem of the "logic of practice": in practice, actors often do not grasp the rules of action as clearly as courts or scientific researchers summarize them statically after the fact.

Revisiting the Party: Rediscovering the Logic of Practice

On August 27, 2014, we visited Mr. Liu Hsiang-heng, recently released from prison, and Ms. Liu Hsiang-ling (his older sister), who has worked tirelessly for his vindication. It was our first meeting with Liu. He has a calm demeanor and says little, much like a typical civil servant who has quietly done his job all his life. He became director of the Taoyuan County Stadium because the previous director was suddenly replaced and his superiors urgently asked him to fill in. Although he became director, it was only a lateral transfer: his pay did not increase, nor did his civil service grade.

Having been transferred from another post, Liu actually had little idea of the stadium's work. The handover consisted mainly of handing over inventories and ledgers and learning what the stadium's current business was. In practice, the work was mostly done by the officers in charge, and he respected their views. When an officer came to discuss a problem with him, he would in turn ask more senior staff how things had been done before.

As for the question of how to determine "ticketed" versus "non-ticketed," which landed him in prison, he felt there was no clear rule, only certain tacit understandings. He first encountered a dispute over this at the Robot Expo, three months after taking office. The Robot Expo's organizer collected tickets at the first-floor entrance, while the exhibition was held in the basement. A day or two before the show, while the venue was being set up, the officer in charge at the time, Hsu Hsiu-feng, knew the organizer would collect tickets at the entrance but still believed the non-ticketed rate should apply. Supervisor Hsiao Hao-ching disagreed: he believed that in the past tickets had not been collected at the first-floor entrance, so since the practice differed from before, the ticketed rate should apply. Liu said he told Hsiao at the time to do it the way it had been done before, so long as the approach was consistent. The organizer later voluntarily scaled back to one-third of the venue and was billed at the non-ticketed rate.

Liu's second encounter with the dispute was the Terracotta Warriors exhibition, about six months after he took office. At first no one thought it was controversial; only when the new accountant Kuo Shu-fang objected did they consider whether a clearer reference standard was needed, which is the origin of the "five requirements" for applying the non-ticketed rate. Mr. Liu also acknowledged that he did not subjectively regard the "five requirements" as binding; they were more like suggestions on how it would be better for organizers to proceed. The content of the "five requirements" originally came only from casual conversations with the organizer, Hsu Hsiu-feng, Hsiao Hao-ching, and the councilor about how the exhibition could best be run. It was only when the new accountant Kuo asked for the standard for determining non-ticketed events that officer Liu Hsi-shun wrote them down.

All of the above is of course the party's own account, and some of it is hard to corroborate. But one thing is clear from the case file: no clear written reference for determining whether an event was ticketed had ever been kept. In fact, after the incident erupted, Liu tried to go back through years of venue rental files and found the records too sketchy to make anything of. Each rental left only a brief fee sheet and an extremely brief plan. To find out which exhibitions had sold admission tickets, Liu even went to the cultural center to look up past newspaper advertisements for each exhibition. This corroborates that, unless one had long handled venue rentals, it would be very hard to have a clear standard in mind for whether an event was ticketed; even staff responsible for rentals did not necessarily share exactly the same standard. That a director about six months into the job deferred to his officers' judgment is entirely plausible.

From a judge's perspective, such unclear standards might be called a "bad habit" that stadium staff should long ago have reviewed and corrected. But from the logic of practice, or from the perspective of the staff handling the work at the time, the matters they faced did not always come with clear rules; many rules were grasped only gradually, through handling one case after another and trying again and again. This feeling of unclarity, of not fully knowing what to do, is very common for people in practice. If a judge fails to consider this feature of the logic of practice and goes straight to "how the law should be interpreted and applied" or "whether the decision followed a clear administrative practice" in deciding whether favoritism was committed, he has failed to notice that he has fallen into a blind spot of knowing akin to scientific logic.

Conclusion: Give Me Back an Utterly Ordinary Life

During the interview, we sensed that Liu Hsiang-heng is simply a man living an extremely simple, ordinary life. We watched him talk about how he met his wife and had two daughters; he only wanted to work steadily and support his family, asking for nothing more, never expecting such misfortune. We also saw the deep bond between Liu Hsiang-heng and his sister Liu Hsiang-ling: Liu said he had moved to Taoyuan in the first place because his sister lived there, but she later moved away for her husband's job, and he joked that she "tricked me into coming here and then ran off." Liu Hsiang-ling said that while he was in prison, just thinking about how he must feel made her sad, and she would cry before every visit. For his case she went to the Executive Yuan, the Control Yuan, and the Judicial Yuan, and sought out many lawyers. At first Liu was full of hope, but after repeated setbacks, seeing his dejected expression saddened her too. Gradually, though, they came to terms with it and found some peace.

Looking at the two siblings, one cannot help feeling that they only want ordinary happiness with their ordinary families, yet being caught up in a favoritism case has made even this wish so hard to fulfill. I sincerely pray that one day the judiciary will clear their names; and I hope judges and prosecutors will no longer judge how civil servants make decisions or handle their work purely with hindsight. Otherwise, findings of intent in favoritism cases will fall into this blind spot without anyone realizing it, producing who knows how many wrongful convictions...