The third chief nursing officer sought medical treatment for insomnia and obtained sleeping pills. He actually provided the drugs to a friend. He was sentenced by the court and the military decided to dismiss him. The Supreme Administrative Court believed that treating dismissal as the minimum punishment without substantively considering the circumstances of the case violated the principle of proportionality and revoked the original punishment. (situational photo)
A nursing officer surnamed Ye from the Military General Hospital of the National Defense Medical College sought medical treatment for insomnia in 2021 and obtained sleeping pills. Unexpectedly, he provided the drugs to a friend. He was sentenced to three months in prison by the court. The military subsequently decided to remove him from his post and suspended his appointment for three years. Ye Nan filed an administrative lawsuit, lost the first instance and then appealed. The Supreme Administrative Court held that the military did not consider the circumstances of the case and regarded dismissal as the minimum punishment, which violated the principle of proportionality. It revoked the original sanction and ordered the Third General Administration to impose another appropriate sanction. The whole case is confirmed.
The judgment pointed out that on April 11, 2021, Ye Nan provided half a pill each of the sleeping pills zolpicolone and canazapine that he usually used to a female friend for use; because the drug is a fourth-level controlled drug, if it is not based on medically reasonable use, it is a fourth-level drug; Ye Nan later committed the crime of transferring fourth-level drugs and was sentenced to three months in prison by the Supreme Court and was fined.
After the Tri-Service General Hospital learned of the verdict, it convened a punishment council and decided to remove Ye Nan from his post and suspend his appointment for three years. Ye Nan refused to accept the petition, and the Ministry of National Defense revoked the original sanction and asked the military to re-handle it. Unexpectedly, after the military reconvened the council, it still decided to remove him from office and suspend his appointment for three years. Ye Nan therefore filed an administrative lawsuit, and the Taipei High Administrative Court lost the first-instance decision, and Ye Nan appealed to the Supreme Administrative Court.
The collegial panel held that although the drug-related punishment benchmark table formulated by the military lists the transfer of drugs by volunteer officers and non-commissioned officers as punishment for removal from service, administrative agencies should still exercise discretion based on the circumstances of the case. The types of punishment listed in the benchmark table cannot be directly regarded as the legal minimum standard, nor can it exclude the possibility of choosing other lighter punishments.
The collegial panel pointed out that it can be seen from the minutes of the military's third Punishment Council meeting that when a member asked how much room for discretion the council had, the organizer said that as long as the transfer of drugs is involved, regardless of the first to fourth levels, volunteer non-commissioned officers should be removed from their posts in principle, and will not be lower than this standard. This shows that the military actually regards removal as the minimum punishment, and the members can only decide the number of years of suspension of appointment, without really considering whether there is room for a lighter punishment.
The collegial panel also considered that the medicines provided by Ye Nan were obtained by him for medical treatment for insomnia. The quantity was only half a pill of zolpicolone and canazazepine. The purpose was to help female friends sleep. No consideration was collected, nor was it repeatedly transferred, distributed to unspecified people, or used to make profit. In addition, after Ye Nan was reinstated, his direct supervisor stated in the review meeting that he performed well in clinical care and was conscientious and responsible for patients. This case did not cause any specific leadership or military discipline problems within the unit.
The collegial panel believed that Ye Nan's behavior was still quite blameworthy. In order to maintain military discipline, the military adopted stricter punishment standards for drug-related behavior than ordinary people, which also had legitimate purposes. However, the military did not specifically explain why a lighter punishment was not enough to maintain military discipline based on the circumstances of this case, so it directly approved the dismissal and suspended the appointment for three years. This constituted a discretionary violation and was not in compliance with the principle of proportionality. Therefore, the original judgment and original punishment were revoked, and the Tri-Service General Hospital was required to impose another appropriate sanction. The entire case was confirmed.
