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Court Says Taiwan Can Be Liable in U.S. Killing

December 30, 1989|PHILIP HAGER | TIMES STAFF WRITER

SAN FRANCISCO — A federal appeals court ruled Friday that the Taiwan government can be held liable for the 1984 slaying of a Chinese-American journalist in California by gunmen acting on the orders of a Taiwanese military official.

The three-judge panel of the U.S. 9th Circuit Court of Appeals unanimously reinstated a $200-million wrongful death suit brought here by the widow of Henry Liu, who was shot to death by members of a Taiwan-based gang in his garage in nearby Daly City.

The court rejected the Taiwan government's claim of sovereign immunity, finding that the doctrine does not bar suits against a foreign nation when its officials are charged with ordering the assassination of an American citizen within the United States.

The panel found there was a legally sufficient connection between the government and the official who ordered the murder to support the widow's suit. "We hold that the Republic of China can be liable for Liu's death under California law," Judge Robert Boochever Sr. wrote for the panel.

Lawyers for the slain man's widow, Helen Liu, said the decision appeared to be the first in a contested case wherein a federal appeals court has found that a foreign state can be held liable for a killing in this country.

Liu, 52, was a sharp and frequent critic of the Taiwan government and the author of several books and articles about his homeland. One book, "The Biography of C. K. Chiang," a critical report on Taiwan's one-family rule, had been banned in Taiwan.

The author's killing was traced by investigators to members of the Bamboo Union, known as the largest criminal organization in Taiwan.

Military courts in that country ultimately convicted five men in the slaying--including a top official found to have ordered the journalist's death, Adm. Wong Hsi-ling, director of the Defense Intelligence Bureau for the Republic of China, and two of his aides. A sixth man was convicted and sentenced to prison in California.

An attorney for Helen Liu welcomed the ruling on Friday, saying he hopes that it will open the way for a prompt trial in the 5-year-old case.

"It's well-settled legal principle that foreign agents can't come here and kill people without American law being prepared to deal with it," said the lawyer, Gerald E. Harper of New York. Harper said he believes the ruling has virtually resolved any question of liability--and that the only significant issue to be decided at trial would be the amount of damages.

Jerome Garchik of San Francisco, another lawyer for the widow, said he believes the ruling will have "especially important implications" in the fight against international terrorism. "The trend is going to be toward compensating its innocent victims in court," he said.

Helen Liu said in a telephone interview she is "excited and happy" about the ruling. "I brought this suit because a lot of things about the case were unclear," she said. "I wanted to know the truth and I wanted other people to know the truth."

Attorneys representing the Taiwan government in the case could not be reached for comment, but an appeal of the decision to the U.S. Supreme Court is possible.

Lawyers for Helen Liu brought the suit in federal court here in 1985, seeking monetary damages from the Taiwan government for its role in her husband's slaying. But U.S. District Judge Eugene F. Lynch dismissed the suit in 1987, citing the Taiwan military court's finding that Wong's act in directing Liu's death was not part of his official duty or an act "reasonably foreseeable" by his superiors.

Lynch found that the "act of state" doctrine prevented American courts from intruding in the legal process of a foreign nation and sensitive areas of its national security and intelligence affairs, causing potential embarrassment to the United States.

However, the appeals court reversed that decision in an opinion by Boochever that was joined by Judges Procter Hug Jr. and Thomas Tang.

The panel noted that the purpose of the doctrine at issue was to prevent judicial pronouncements on the legality of acts of foreign states. But in this case, the panel said, an American court was being asked to judge the legality of an act within its own borders. "Such an inquiry would hardly affront the sovereignty of a foreign nation," Boochever wrote.

Nor would the case hinder American foreign policy, the court said, adding that it would prove more embarrassing to this country if its courts barred a wrongful death suit for a murder that occurred in the United States.

"To the credit of the (Republic of China), rather than attempting to hide the sordid circumstances involved in Liu's assassination, it made an investigation and publicly brought to trial the individuals involved, even including one in such a high position as Wong," Boochever wrote.

While the outcome of the suit might prove financially costly for the Taiwan government, it would not affront its sovereignty nor "cause more embarrassment than the exposures already made by the ROC courts," he said.

The court concluded also that although the Taiwan courts found that Wong was motivated by a personal grudge to order Liu's death, his action was "sufficiently job-related" under California law to impose indirect liability on the Taiwan government.

Liu had criticized Wong and other governmental leaders in the past and it was reasonable to assume the journalist would do so in the future, the court said. Wong's use of Republic of China facilities to prepare the gunmen and his assertion of his authority to accomplish a task he believed beneficial to his superiors were sufficient to impose liability on the government, the panel said.

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