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COUNTERFEIT GOODS OBTAINED BY "FISHING" ARE ADMISSIBLE IN EVIDENCE
When investigating a trademark counterfeiting case, law enforcement officers sometimes engage in "fishing" to obtain counterfeit goods for use as evidence. The question of whether this method amounts to "entrapment," making the items obtained inadmissible in evidence, has been a very important issue in practice.
In a 2008 summary criminal judgment, the Keelung District Court held that "fishing" is not the same as entrapment. The court stated that "fishing," as a technique of criminal investigation, refers to the practice of presenting a deliberate enticement to person who has already committed an offense or intends to commit one, so that the person reveals evidence of his criminal actions and can then be arrested or prosecuted. But "entrapment" refers to a situation in which the person concerned has no prior criminal intent, and is motivated to commit an offense purely by the deliberate encouragement of law enforcement officers. "Fishing" remains entirely within the bounds of criminal detection techniques; it does not violate the basic human rights guaranteed under the Constitution, and is necessary in order to uphold the public interest. Therefore evidence obtained by "fishing" is admissible in court proceedings. In contrast, "entrapment" is an improper means of enticement or incitement to criminality, by which a person with no prior criminal intent is motivated to commit an offense, for which he is then arrested and prosecuted. This is a clear violation of the basic human rights protected by the Constitution, exceeds the necessary scope of criminal investigation, and makes no significant contribution to upholding the public interest. Hence evidence obtained by such means should not be admissible.
In the case before the court, the defendant had placed on a website advertisements for the sale of goods bearing a counterfeit trademark. The court found that the defendant's criminal intent to sell such goods had not come into being at the incitement of law enforcement officers, and therefore the officers' actions could not be described as entrapment.