Buriram Expats
Buriram Province - General Category => Thailand News clippings => Topic started by: Admin on June 01, 2010, 10:49:45 AM
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Criminal law in Thailand: Part V Getting arrested without a warrant - the flagrant offence
Published: 4/04/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum
This week we'll start to discuss arrests without warrants. Until now, we've been talking about arrests that arise from warrants issued.
As we've already mentioned, an arrest warrant is a document signed by a judge that gives a police officer the right to arrest someone. If the police officer arrests that person, he or she can't claim wrongful arrest, which we will cover later.
But what if a police officer doesn't have a warrant? Can he or she arrest someone?
This, of course, depends on the circumstances. In general, an officer can arrest a suspect when the suspect has committed a "flagrant" offence. This is when the police officer sees the suspect commit the crime or comes upon the scene and the suspect has obviously just committed it.
Here's an example of flagrant commission that contains a little of the uncertainty of real life legal issues. The police officer comes upon a screaming, hysterical crowd, pushes to the centre of it and finds a man holding everyone at bay with a knife and someone lying stabbed on the ground. Someone in the crowd tells the officer that the man with the knife was fighting with the victim and stabbed the victim.
Even though he or she didn't see the crime committed, the police officer is justified in arresting the person with the knife for stabbing the victim.
But you can see the problem - the person in the crowd who told the officer the man with the knife had done the stabbing could have been against the person with the knife for some reason and lied. The police are, in these situations, forced to use their best judgment - but sometimes they are wrong. It's tough being a police officer.
Here's another example that demonstrates a situation in which an officer can properly arrest someone without a warrant, and without having witnessed the crime. Let's say a policeman is walking down the street. Mr X is running toward him. Behind Mr X is Mr Y, shouting "Stop, thief!"
The policeman is justified in arresting Mr X because Mr X is being pursued by others who are calling out that he has committed a crime.
This is another of the well known circumstances under which a warrant is not needed.
Let's look at an example that illustrates the other side of the coin, however. In the example above, let's change it so that Mr X is simply running down the street, but not being pursued by anybody. The police officer has seen Mr X around, doesn't like him, and just decides to arrest him. This wouldn't fall under any of the categories in which an officer can arrest someone without a warrant.
What if Mr X is arrested under these circumstances? In such a case, he can apply to a court to release him. The police officer may, moreover, be guilty of a crime or possibly be sued by the arrestee.
We'll discuss remedies that an arrestee has later.
Next time we'll continue our discussion of circumstances under which the police can arrest without a warrant.
James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com) and
Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researcher: Chanakarn Boonyasith.
For more information visit
http://www.chavalitfinchlaw.com (http://www.chavalitfinchlaw.com).
Comments? Questions?
Contact us at the email addresses above.
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Criminal law in Thailand Part VI: Being arrested without a warrant - the wrong man
Published: 11/04/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum
Here's a more difficult example that illustrates another circumstance under which a policeman can arrest without a warrant because it's a flagrant offence. Let's say a police officer is walking down the street and comes upon the victim of an attack by some heavy instrument, bleeding and unconscious on the pavement.
Witnesses tell the officer the direction in which the perpetrator headed and the police officer runs off in pursuit. A block away, the officer encounters Suspect A holding a tyre iron and walking quickly in the direction away from the crime, looking as though he is fleeing the scene. The officer arrests Suspect A.
This brings us to another ground for arrest in the flagrant category in which a police officer can, under Thai law, arrest without a warrant. This is where a suspect is arrested near the site of the crime and has with him the spoils of the crime or items used in its commission or there is clear indication that he committed the crime on his body or clothes. The tyre iron could have been used in the commission of the crime, because the victim's injuries generally fit those of a heavy instrument such as a tyre iron.
Let's say, however, that hours later, when the dust on all of this settles, Suspect A with the tyre iron can prove he had nothing to do with the attack on the victim and had just borrowed the tyre iron from his bartender to fix a flat tyre incurred as a result of running over a whiskey bottle he'd mistakenly left under the car.
Was this arrest proper? In this case, the Suspect A was carrying the tyre iron, which could easily have been the item used to attack the victim. Although it turned out that Suspect A was innocent and should be released, the police officer was probably not guilty of improper conduct in arresting Suspect A.
We say "probably" because a judge making the decision would have wide discretion in deciding what was reasonable on the part of the officer in a case like this. The judge might look to see if the police officer had seen some clear indication that Suspect A had committed the crime on his body or clothes, because, as mentioned above, this is an alternative possibility for this category of arrest without a warrant.
But let's change the facts in the case again, as lawyers often do to explain legal issues. Let's say instead the Suspect A hadn't been carrying a tyre iron or appearing to flee. Instead, he had simply been a man in the street, a block away from the attack, walking normally in a direction away from the incident. If the officer arrested this man, there was no obvious flagrant offence, and the officer could be guilty of improper arrest. What you must do when you're improperly arrested will be covered later.
For now, we'll continue with our explanation of what is and isn't proper arrest. There are additional grounds upon which a police officer can arrest without a warrant and we'll cover these next.
James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com) and
Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researcher: Chanakarn Boonyasith.
For more information visit
http://www.chavalitfinchlaw.com (http://www.chavalitfinchlaw.com).
Comments? Questions?
Contact us at the email addresses above.
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Criminal law in Thailand: Part VII Getting arrested without a warrant - more grounds
Published: 18/04/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum
We're talking about situations in which a police officer can arrest you without a warrant. Last time we mentioned that a police officer may arrest without a warrant if the crime is committed in their presence, or if it is obvious the perpetrator just committed the crime. These are examples of the "flagrant" offence, as discussed. This time we will discuss the three additional grounds for an officer to arrest without a warrant.
Here's the first. If the police officer becomes aware that a person is armed or is carrying tools that can be used to commit a crime, such as a crowbar, and suspects they will be used in the commission of a crime he or she may arrest without a warrant. The obvious example is that a police officer sees Mr X, a known burglar, running late at night down an alley with a crowbar. The officer could arrest Mr X on this ground.
But here's another example of the same exception that shows the subtleties of criminal procedure. What if you are in a bar having a drink? It's in a pretty rough neighbourhood, so you've brought a knife with you for protection. The blade is about 10cm long, and it's in a sheath on your belt. A police officer in the bar happens to see it. Can the officer arrest you on the suspicion that the knife may be used in the commission of a crime?
The answer to this question depends on whether the officer's suspicion is reasonable. So we must look to other facts. For example, does the officer know you? And do you have past convictions for stabbing people in bar fights? If so, his suspicion would be reasonable. Likewise, are you acting belligerently, reasonably suggesting to the officer that you might be getting ready to use the knife? This is another factor that should be weighed in making a decision whether or not to arrest.
Here's another reason a police officer can arrest a suspect without a warrant - urgent circumstances. This is when a police officer sees a situation that would require a warrant to arrest the suspect, but because of the pressure of time, and/or emergency circumstances, there isn't the opportunity to obtain one.
Let's say, for example, a police officer sees a known bank robber running down the street, toward a bank. None of the reasons for arrest without a warrant mentioned earlier would apply, because the officer is not aware that any crime has been committed. Likewise, the officer doesn't see tools of crime or a weapon. But because the officer is trying to prevent a crime, and can't wait to get a warrant to do so, he or she may arrest the suspect based on the necessity of time pressure.
The final ground for arresting without a warrant is that an officer can arrest an escaped or accused offender. Let's say, for example, a policeman sees an escaped prisoner, who was convicted for robbery and the policeman knows has escaped. The policeman can arrest this escapee without a warrant.
Likewise, and we will discuss this at length later, the police often arrest a suspect and release him or her, explaining that if they need this suspect for further proceedings the suspect may again be called in by the police.
If a suspect has been called again by the police as part of an ongoing investigation but is evading the police, such a suspect can be arrested without a warrant.
Next time we'll begin discussing what happens if you're arrested, and what you can do if the arrest is unlawful.
James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com) and
Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researcher: Chanakarn Boonyasith.
For more information visit
http://www.chavalitfinchlaw.com (http://www.chavalitfinchlaw.com).
Comments? Questions?
Contact us at the email addresses above.
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Criminal law in Thailand Part VIII: What happens when you're arrested
By James Finch and Nilobon Tangprasit
Published: 25/04/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum
Let's talk now about your rights if you are arrested. As mentioned earlier, many police speak only the Thai language. Once you are under arrest and brought to the inquiry office, the police station, for example, an interpreter competent in your native language must be provided for you.
This requirement of a translator is at state expense and applies for all stages of the proceeding, for example, preliminary hearings, trial and sentencing. If you do not get an interpreter or you want to use one you designate and compensate yourself, you have a right to do so.
The same rights apply to the case of an arrestee who is hearing or speech impaired. You must be provided with someone who can sign, so that you understand and can express yourself at every stage of the proceedings.
The rules about interpreters, incidentally, also apply to witnesses to crimes. So if you are brought to a police station to give a statement about a crime that somebody else has allegedly committed, an interpreter must be appointed for you. There are other items that have to be explained to you by the police if you are arrested:
- You must receive an explanation of the reason for the arrest and a copy of the arrest warrant, if there is one;
- you can make a statement, but that statement can in the future be used against you in evidence at a trial;
- you have the right to call and have a lawyer present, meet with the lawyer in private and have the lawyer attend hearings in the proceeding with you;
- you can call a relative, friend or other party, and the police have a duty to let you use a telephone to do so. You can also request that the police contact these parties on your behalf;
- you have a right to medical treatment if you need it.
But when do you have to have these rights explained to you? The arresting police officer has a fair amount of discretion as to this. For example, let's say you're arrested in a nightclub, and it's crowded and difficult to hear. The police in such a case would clearly have the authority to arrest you and take you outside. At the first possible moment, however, you must be told 1) the reason for the arrest and shown a copy of the warrant, if there is one, and 2) that you can make a statement, but if you do, it may be used against you in evidence at trial. If you ask that someone be notified of the arrest, the arresting officer must, under reasonable circumstances, do so.
When you arrive at the police station all of the rights in the list above must be explained to you, even though some of them have already been told to you by the arresting officer. How much delay by the arresting officer is permissible in telling you your initial rights as discussed above? The delay must be reasonable. Certainly, in our example, if you're taken outside the nightclub and immediately told these rights, this would be adequate.
But what if you're then left locked in a police car for a few hours? Or taken somewhere, left alone in a locked room and no one explains anything to you? In these cases, the police would have the obligation to explain the above rights to you, before you were locked somewhere.
Let's say, alternatively, that inside the nightclub, when the police tried to make the arrest, you put up a fight and tried to hit one of the arresting officers with a beer bottle? The police would have the right to take the action they consider necessary to effect the arrest. This might delay their obligation to let you know about your rights. For example, if they felt you would fight until they had you in a secure location, say, at the police station, they could wait until then. We'll continue our discussion of your rights when arrested next time.
James Finch of Chavalit Finch and
Partners (finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researcher: Chanakarn Boonyasith.
For more information
visit http://www.chavalitfinchlaw.com (http://www.chavalitfinchlaw.com).
Comments? Questions?
Contact us at the email addresses above.
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Criminal law in Thailand Part IX - More about your rights when you are arrested
Published: 2/05/2010 at 03:07 AM
Bangkok Post: Newspaper section: Spectrum
This time we're going to expand on our discussion of your rights after you've been arrested. Let's say when you're arrested, it's by a plain clothes officer. That officer always has to identify themselves to you. Thus, if you are arrested by someone who presents him or herself as a plain clothes officer, and you have any doubt as to whether the arrest is official, you can ask to see the officer's badge and ID card. Though the Supreme Court of Thailand has not ruled that under all circumstances the officer must show these, it has ruled that an arresting officer must show by reasonable means that he or she is an officer. The obvious way would be to show a badge.
You should give the information about the officer to anyone at the scene with you who is not being arrested, for future reference. If the person purporting to arrest you can't produce a badge and ID, get someone to call the police to identify the person. Also, unless it's one of the situations where a warrant is not needed, as discussed in earlier columns, the officer can only arrest pursuant to a court order or arrest warrant. Remember, improper arrest can subject the officer to criminal penalties.
There have been instances in the past where people purporting to be police officers have kidnapped unsuspecting individuals, and getting anyone who claims to be a police officer to identify themselves is a way to protect oneself against this. Impersonating a police officer is a crime and can subject the impersonator to up to one year in jail.
When you're arrested, the police have to take you to an ``inquiry office'', usually the local police station. This must be a government office and can't be a non-governmental place, such as a hotel or a home. Officially, it's where the prisoner is turned over to an ``inquiry official'', such as a superior police officer. Apart from minor delays, such as calling the station or obtaining evidence or statements from others at the scene where you were arrested, you have to be taken to the inquiry office immediately.
We talked last week about what must happen at the police station or other facility. We have had several emails from readers requesting confirmation or further discussion of a person's rights at a police station if you are brought there under arrest.
At the police station you must be told the reason for your arrest, even if this was done when you were arrested. If there is an arrest warrant, this must be read to you. If you don't speak Thai, an interpreter must be provided to you, at state expense.
Immediately after any charges are read to you at the police station, the police must help you call a lawyer, relatives or friends. This help must include use of police phones without charge, particularly if your mobile phone has been confiscated pursuant to the lawful search of an arrested person's possessions allowed by law. Although the law is not explicit, calls at police expense to lawyers, relatives and friends should even include international calls.
The police must allow you to meet in private with a lawyer, friends or relatives. These individuals must be allowed to attend any hearing in connection with your arrest.
Also, if you are arrested, the police must assist you with any medical problems. For example, if you were injured in the arrest, you are entitled to immediate medical attention. If you can't be treated at the inquiry office, you have to be taken to a place such as an emergency room, where you can. The police may, of course, accompany you to the hospital to make sure you don't flee, and take you back to the inquiry office when you are medically stable. In fact, if you are seriously injured or sick, the arresting officer must see to your medical treatment before you are taken to the police station.
James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researcher: Chanakarn Boonyasith.
For more information
visit www.chavalitfinchlaw.com (http://www.chavalitfinchlaw.com).
Comments? Questions?
Contact us at the email addresses above.
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Criminal Law in Thailand Part X: How long can they hold you?
By James Finch and Nilobon Tangprasit
Published: 9/05/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum
If you're arrested, how long can you be held? This is not a question of how long you can be put in jail if you're convicted. What we're talking about here is is how long the police can hold you at the time of arrest. This is prior to the formal phase of the process where your guilt or innocence is decided and you are sentenced, if adjudged guilty.
After arrest, and once formal charges have been read to you (called the arraignment), in most cases you have to be released to await further proceedings such as the trial.
If you have been arrested for a petty offence, as defined in Title 3 of the Thai Criminal Code, you can only be held for the time reasonably required to record your identity, your address and to obtain a statement from you about the crime.
Generally, you cannot be held in connection with a petty offence for more than 48 hours. Petty offences are those for which the maximum imprisonment is one month and/or a maximum fine of 1,000 baht.
Examples of petty offences are fighting and public intoxication. The police may keep a suspect longer than just the time to identify them and get a statement under two circumstances.
The first circumstance is that the suspect was arrested via an arrest warrant and the warrant, which must be signed by a judge, specified that the arrestee had to be kept until he or she should be brought before a judge.
The second circumstance under which the police can keep a suspect for an extended period is if a court has issued a detention warrant as a result of a request filed by the police.
A court may issue such a warrant after requesting testimony from the accused, who may, of course, already be in custody. The police may be asked to give testimony or other evidence to the judge, as well.
The amount of time the accused can be held depends on the severity of the penalty of the crime.
FOR EXAMPLE:
- for offences that have a maximum penalty of no more than six months in jail - seven days;
- for offences that have a maximum penalty of more than 10 years in jail - 48 days.
Depending on the offence, the maximum number of days mentioned above is a total of lesser extensions that must be requested by the authorities.
In cases of serious offences where the accused may be in jail after arrest for up to 48 days, the Public Prosecutor can get the accused kept in jail longer by filing a petition with a court.
A court is likely to grant such a petition in cases where the accused is violent or likely to flee. While you are in custody the police must explain to you that you can either make a statement or not, but if you do, what you say can later be used in evidence against you.
If and when the police take your statement, you have to be allowed to give your side of the story and have it written into the record prepared by the police.
This again highlights the necessity to have a representative with you who speaks Thai, because everything will be written in Thai. Incidentally, if you are giving a statement through an interpreter, the interpreter must give an affirmation swearing to translate truthfully. Failure by the interpreter to do so may affect the admissibility of the statement in court.
Remember, all of the above relates to what the police can do prior to trial. We will talk about formal accusation, trial and conviction later.
James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com) and
Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researcher: Chanakarn Boonyasith.
For more information visit
http://www.chavalitfinchlaw.com (http://www.chavalitfinchlaw.com).
Comments? Questions?
Contact us at the email addresses above.
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Criminal law in Thailand: Part XI Bail and provisional release
Published: 16/05/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum
Last week we discussed the fact that after arrest but before trial the police may release a suspect or, pursuant to the procedures we discussed, hold him or her temporarily until trial. We were deluged after the column ran with callers asking about friends or relatives currently being held after arrest. Virtually all wanted to know about the procedure for getting an accused released prior to trial.
If an accused is being held pending trial, he or she - or any interested person such as a parent, child or relative - may file an application with a court for provisional release pending trial.
With whom must this application be filed? This depends on the stage of the proceeding. Generally, if the accused has not yet been formally charged in court, the application must be filed with the police or the public prosecutor.
Even if the accused has not been formally charged, but is held pursuant to a detention order issued by a court, the application must be filed with the court. If the accused has already been formally charged, the application must be to the court that will try the case.
The official deciding on whether provisional release will be allowed must consider these factors:
- How serious is the charge?
- How reliable is the evidence?
- What are the general circumstances of the case?
- How reliable is the accused?
If bail or security will be required, how reliable is it?
- Once the accused is out will he or she flee?
- Will there be any collateral damage to society from releasing the accused?
Based on the above inquiry, provisional release will not be allowed if the person deciding on it concludes the accused:
- will flee
- will interfere with the evidence in the case
- will cause society any other danger or that the bail or person posting bail is unreliable, provisional release will not be allowed.
Normally, if provisional release is allowed, and the punishment for the offense exceeds imprisonment for five years, the accused must post bail.
This can be done by depositing cash, securities or having someone else put up some form of security. The accused must sign an oath or affirmation agreeing to the terms of the bail.
With lesser crimes, bail is more discretionary, and many people who are accused of lesser crimes are released without bail upon the signing of an oath or affirmation that they will appear at the trial.
Provisional release is valid during the official inquiry or until the accused is ordered to be detained by a court. Generally it can't exceed three months from the date of release, but it can be extended, with the court's approval, up to as much as six months.
James Finch of Chavalit Finch & Partners
finch@chavalitfinchlaw.com and
Nilobon Tangprasit of Siam City Law Offices Limited
nilobon@siamcitylaw.com
Researcher: Chanakarn Boonyasith
For more information see
http://www.chavalitfinchlaw.com (http://www.chavalitfinchlaw.com)
Comments? Questions?
Contact us at the email addresses above.
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Criminal law in Thailand Part XII: Remedies if the arrest is not proper
Published: 23/05/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum
This week we'll begin to examine how your rights are protected if something goes wrong with your arrest. We're going to do this initially by looking at some fictitious examples.
The first is where the police come to your door. They have a warrant to arrest someone at a nearby address and they simply make a mistake. They tell you you must come with them, and you do. On the way you call a Thai friend who meets you at the police station. The friend is told your identity must be verified and your passport is taken.
You are then kept waiting for six hours. After this, with no explanation, your passport is returned and you are released. This is a borderline case. If you lodged a complaint, as discussed below, and the official in charge decided that the police officers involved acted in good faith, without serious negligence, you can't do much about it, despite the inconvenience to you.
But read on. The second fictitious example sees you in a restaurant with some friends. One of them has a running feud with a local police officer, who happens also to be in the restaurant. The officer approaches your table and speaks to your friend. They are both Thai and you don't understand what is said, and then the officer arrests everyone at the table.
Outside the restaurant the officer pulls out a baton, swings it at your friend, but hits you, breaking your arm. In a few minutes a uniformed police sergeant appears and sees what has occurred. He berates the police officer, who disappears. He then apologises and releases everyone. From earlier columns you know the arrest was improper, because it required a warrant. You have a number of options:
- Police officers wrongfully or dishonestly discharging their duties are subject to criminal penalties of up to 10 years in jail and a fine. You could, therefore, go to the Public Prosecutor, complain of the policeman's behaviour, and ask that he be prosecuted;
- Under the Act on Liability for Wrongful Acts of Officials, you could claim compensation for your broken arm from the Royal Thai Police Office;
- The police have internal rules that protect the rights of individuals and punish officers violating these rules. You could initiate an investigation against the offending officer, by lodging a complaint with the Office of the Inspector-General of the Royal Thai Police.
What if the officer in this case had been off duty when the incident occurred? Unlike the above case, the police officer would not be considered discharging the duties of a police officer. He would thus not be exposed to the criminal penalties mentioned above. Also, since he was not acting in an official capacity, you could not make a claim for your injuries against the Royal Thai Police Office.
Here is what you could do. The Criminal Code of Thailand provides that anyone, police officer or otherwise, who commits grievous bodily harm to another, is subject to a criminal penalty of up to 10 years' imprisonment and, in effect, to pay damages to the person injured. You could, therefore, complain to the Public Prosecutor, who could prosecute the police officer.
Even though the officer was off duty, moreover, he did arrest someone as though he had been on duty and can be disciplined if the arrest was improper. So you could lodge a complaint against him with the Office of the Inspector-General of the Royal Thai Police for arresting you without a warrant.
James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com) and
Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researcher: Chanakarn Boonyasith.
For more information visit
http://www.chavalitfinchlaw.com (http://www.chavalitfinchlaw.com).
Comments? Questions?
Contact us at the email addresses above.
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Criminal law in Thailand Part XIII - Arrest and confession
By James Finch and Nilobon Tangprasit
Published: 30/05/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum
Last week we gave a couple of examples of arrest situations and how your rights are protected under Thai law. This week we'll cover one additional area of the law concerning your rights when arrested - the confession.
The fictitious example we will use this time is that you are involved in a car accident. You were going over the speed limit, and couldn't stop for a red light. You hit a car turning legally into your lane. It went off the road, having been hit quite hard. The police and an ambulance arrive. The lady in the passenger side of the other car has hit the windscreen and has bruises on her forehead. Her hand is bleeding and she has to be taken to a local hospital.
You are told you're under arrest and taken to the police station with your wife, who is Thai and who is translating for you. No one says anything else. For a while you wait in a room containing several desks at which police officers are meeting with groups of people. Finally, you are told to go to one of the desks, where there is a young officer, recording statements in a logbook. He asks you for your name and address and for a copy of your passport, which you give him. That's all. Then he asks you what happened.
You tell the officer that you ran the red light because you were in a hurry to get home because your wife wasn't feeling well. Also, you go on, though the arresting officer may have thought you were drunk, you weren't. You say you'd had a few drinks, but know your limit and had no trouble driving. This is written down in the log book and you sign it.
What you said to the officer who took your statement was a confession. You admitted you ran the light and had been drinking in a situation that caused an accident. Forget the self-deceiving justifications you gave about your wife being sick and the fact that you're a good driver even when drinking. Confessions always contain a few of these.
But can this confession be used against you in a criminal case against you for speeding, failing to stop at a red light or drink-driving?
Probably not. The Criminal Code of Thailand provides that defendants must be informed of their rights to make a statement, but if they do, it can be used against them in evidence. Also, defendants have to be told they have a right to have a lawyer present and that lawyers will be provided at state expense if the defendants can't afford them. Confessions made before these warnings are given, as in your case, cannot be used in evidence.
You should understand, however, that the rules regarding admissibility of confessions in later proceedings are complex. For example, if you have been fully informed of the details and reason for the arrest or read the arrest warrant, things you say that are not a confession but that might incriminate you may be later used against you.
In the above case, let's say the arresting officer had told you that you were under arrest for drink-driving, running a red light and causing an accident, and the officer taking your statement had said the same thing, but still neglected to tell you your full rights as mentioned above. Other statements you made that did not amount to a confession, but that might incriminate you, could be used against you in the future.
For example, you might have said in your statement that you went straight from buying alcohol to the place where everybody was drinking together. You might also have told the police that your wife told you to slow down just before the accident. Neither of these statements is a confession, because they don't necessarily mean you were at fault. A judge, however, might infer from them that you had been drinking, and driving too fast. Because they are not confessions they might be used against you later.
More next time about the defendant's rights in cases of wrongful arrest.
James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com) and
Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researcher: Chanakarn Boonyasith.
For more information visit
http://www.chavalitfinchlaw.com (http://www.chavalitfinchlaw.com).
Comments? Questions?
Contact us at the email addresses above.
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Dear members,
I have attached here some VERY interesting articles regarding Thai law.
Read it and send this link to your friends.
I think its very useful to know.
sawadi
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Very insightful and interesting reading....even helpful. But reality and fancy might not jell so well, as we all know that dealing with police and a judicial system here in LOS - what is mandated on paper and what is practiced are two different beast.
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Criminal Law in Thailand Part XVII - Police internal procedures that protect you
Published: 4/07/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum
(http://bangkokpost.com/media/content/20100704/158320.jpg)
Last time we talked about how you would complain if you were treated improperly by the police in an arrest or other situation. In short, there are several ways, including a simple explanation of what happened to the superior of the officer you're complaining about. And remember, if you're arrested the police have to provide an interpreter if you don't speak Thai, so you can make the complaint yourself.
This time we'll explain what happens when a complaint is lodged.
No matter how the process is initiated, the superior of the officer against whom the complaint has been made must conduct a primary investigation to determine whether there is enough evidence to take administrative action against the police officer.
The superior officer must then make one of three possible decisions:
- That the officer is innocent and that no penalty should be imposed;
- that the officer has committed a minor infraction of police procedure and impose a penalty, or;
- that the officer has committed a major infraction of police procedure and a committee of police officers must be formed to formally investigate, afford the accused officer his or her rights and impose a penalty, if this is warranted.
All of the above must be reported to the commanding officer of the superior of the officer complained against. It must also be reported to the Commissioner General. Both the commanding officer and the Commissioner General have the right to decrease or increase the penalty imposed, within the limits of the law.
What penalties can be imposed against a police officer for violating police rules for protecting those arrested and otherwise denying members of the public their rights? Here are the options:
- Probation. This is noted in the offender's personnel file and may result in dismissal if the offender commits offences in the future.
- Additional work in addition to regular duty, such as guard duty, not exceeding six hours a day.
- Being placed under guard.
- Detention in one place in police custody, not exceeding six hours a day.
- A pay cut.
- Discharge. Laying the offender off the police force, but with the normal termination benefits.
- Firing the offender. If the offender is fired he or she does not receive normal benefits for being terminated and cannot be rehired as a government employee.
Some of the above punishments can be combined. For example, an officer can be confined to the police station and compelled to perform public service or extra police duties without pay, provided such punishment doesn't exceed six hours a day.
You may be wondering who cares what happens to an officer who violates my rights, as long as he or she is punished? We've explained the penalties above to show you how the administrative route, in additional to suing or prosecuting the offending officer, is a real deterrent. Nobody wants to be complained about on the job, or fired. These penalties mean police officers in Thailand must think twice before denying you your rights.
Next we'll summarise what to do when you're arrested and your options if you feel you are not treated properly. Then we'll move on to other criminal problems you may face in Thailand.
James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researcher: Sutatip Raktiprakorn.
For more information
visit http://www.chavalitfinchlaw.com (http://www.chavalitfinchlaw.com).
Comments? Questions?
Contact us at the email addresses above.
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Criminal Law in Thailand Part XIX - Arrest: Your rights and what to do
Published: 11/07/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum
(http://bangkokpost.com/media/content/20100711/160390.jpg)
This time we're going to summarise the procedures, your rights and what to do when you're arrested. Remember, you can only be arrested in Thailand if there is a warrant for your arrest, or if some special circumstance exists, such as if you committed the crime in the presence of the police officer who arrested you.
The officer has to identify him or herself as a police officer, using reasonable means, such as showing you a badge. You should take down any such information and give it to any companions you have who are not under arrest.
Excessive force can't be used against you, and you can't be restrained in a way that is excessive or intended only to humiliate you.
At the scene of the arrest the officer also has to show you the warrant or tell you the charge. If the circumstances allow, the officer also has to tell you that:
- You can make a statement, but that the statement can in the future be used in evidence at a trial;
- you have to right to call and have a lawyer present;
- you may call a relative, friend or other party, and the police have a duty to let you use a telephone to do so.
The arresting officer has to take you to the police station immediately and help you with any medical emergencies you may have, even before taking you to the police station.
Once at the police station you must be provided with a translator at state expense if you don't speak Thai. A police officer must explain all of the above information and rights to you, even if they were previously explained by the arresting officer. You must also be allowed to call a lawyer, friend or other person at state expense. It must be explained to you that you may have a lawyer present at any stage of the procedure. You must be helped with any medical problem you have.
Before the above rights have been explained to you, a confession you have given will probably not be admissible against you in later proceedings. Because the law relating to this issue is technical, however, you should consult with a lawyer about it before assuming the police cannot use statements you have given against yourself.
As soon as you can, you should call a friend or lawyer who speaks Thai and your native language fluently. This person should meet you either at the point of arrest or the police station. The person you choose to do this must be a person who will be respectful and tactful with the police. Likewise, you should never, ever lose your temper with them. More often than not, the police are just doing their jobs, and the best way to resolve criminal issues is by being co-operative and polite.
Except under a few circumstances, the police cannot keep you for more than 48 hours in the arrest phase. We will talk later about what happens if you're convicted of a crime, but this will come later. What we're talking about now is the arrest phase only.
If the police do not comply with any of the above rules you may have the right to sue the offending officer or have them prosecuted for any crime they may have committed. On a more practical basis, you can also make a complaint to the police Commissioner General, which will trigger an inquest. There are several ways to do this, including an oral complaint to the offending officer's superior.
What if the police won't release you? You can, under criminal law, have a lawyer file a petition with a judge, who can review the case and order you released if the grounds for detaining you are improper.
This will conclude our general discussion of arrest. We will continue with other basic criminal issues, but first we want to cover a couple of specific, related issues asked about by readers. Next week we will begin coverage of the ownership and use of weapons in Thailand.
James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researcher: Sutatip Raktiprakorn.
For more information
visit http://www.chavalitfinchlaw.com (http://www.chavalitfinchlaw.com).
Comments? Questions?
Contact us at the email addresses above
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Criminal Law in Thailand Part XX: Weapons in Thailand
In a recent column we discussed an example that involved a member of the public carrying a long knife in a public place.
This has triggered a number of queries from readers about who can and can't possess and carry deadly weapons, including guns, in Thailand.
Published: 18/07/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum
Let's look at the basic law. Section 371 of the Thai Criminal Code prohibits openly carrying arms to a public place or carrying them to a gathering of people assembled for any purpose. One can be arrested and convicted with a small fine for this, and the weapon confiscated. The word "arms" in section 371 includes all weapons such as hunting knives, clubs, nightsticks, machetes and firearms. It also includes anything not necessarily intended to be used as a weapon, but that can be, such as a golf club or a rolling pin.
(http://bangkokpost.com/media/content/20100718/161706.jpg)
Let's look at an example involving items that aren't exclusively weapons. How about a baseball bat? Let's say some friends were trying to learn the game of baseball and you had a party at a local park to teach them. You showed up at the park carrying the bat, and 50 people had already arrived. Could you be arrested and the bat confiscated?
No, because although a bat can be used as a weapon, the circumstances and your intention were that the bat was to be used in a game, not to hurt somebody.
Let's look at the flipside of the rule. Say after the game you and your friends went out for a few drinks in a rough part of town and you took the same bat along for protection. In this case, you could be arrested and the bat confiscated because the circumstances and your obvious intent suggest that you would use the bat as a weapon, not in a game.
Here's another example that takes place in the same rough part of town. Let's say you had broken your ankle and were using a cane to help you walk and went with friends to that part of town. The cane, because of the circumstances and your obvious intention is simply something to help you walk. Thus you couldn't be arrested or the cane confiscated.
What if, on the other hand, you didn't have anything wrong with your ankle and had taken the cane for protection? Again, you can see that sometimes it's difficult to be a police officer. Your intention would have to be decided from the circumstances and sometimes the police walk a pretty fine line. If you were brandishing it as a weapon or hit somebody with it, the police might decide the circumstances allowed them to arrest you and confiscate it.
So just to put things in perspective, what we've been talking about above are mostly items that can be used both as weapons and for other purposes. For items such as machetes, swords and hunting knives, tasers and pepper spray, since they are practically only used as weapons, if you show up at a public gathering with these, you can be arrested and the item confiscated.
Other than firearms, are any of the above weapons required to be licenced or illegal to be kept in the home for protection? There is no law that would prevent you from having them in the home and using them as protection from intruders. Please remember, though, that there are limits on how these weapons can be used, even in the home. In a later column we will discuss the circumstances under which the use of force is justified and when it is not. Section 371 does allow for carrying concealed arms in public places with "reasonable cause", which would be defined on a case-by-case basis. This is, however, a very limited exception. Examples of this reasonable cause would be:Transporting arms to be used for sport;keeping arms in the car while transporting large amounts of cash;arms transported along with other household goods as part of the process of moving.
Just as a footnote, chainsaws of more than two horsepower and with a chainplate exceeding 30.5cm are also required to be licensed with the Royal Forest Department, even for use in the home.
The legislative purpose for this is to prevent deforestation, not crimes in the vein of those portrayed in The Texas Chain Saw Massacre, but we thought you'd want to know.
Firearms are what lawyers call sui generis - unique, in a class by themselves. Next time we will discuss the rules governing them.
James Finch of Chavalit Finch and
Partners (finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researcher: Sutatip Raktiprakorn.
For more information
vist http://www.chavalitfinchlaw.com (http://www.chavalitfinchlaw.com).
Comments? Questions?
Contact us at the email addresses above.
A Word of Advice on July 4 was incorrectly numbered part XVII.
It should have been numbered part XVIII.
No installment has been missed, simply misnumbered.
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Criminal Law in Thailand Part XXI: Owning a gun in Thailand
Published: 25/07/2010 at 09:10 AM
Bangkok Post: Online news: Crimes
Several readers have asked whether it is legal to own a gun in Thailand.
(http://bangkokpost.com/media/content/20100725/164088.jpg)
Although the law relating to weapons discussed last week would also apply to firearms, there is a law that applies specifically to firearms. It is the Firearms, Ammunition, Explosive Articles, Fireworks and Imitation of Firearms Act _ or, the act. The act prohibits the making, buying, possessing, using or importing of guns or ammunition without a licence from the local registrar. In Bangkok, the registrar would be the director-general of the provincial administration, under the Ministry of the Interior.
In the provinces outside Bangkok, the registrar would be the sheriff, otherwise known as nai amphur.
This means that even if you have a gun or ammunition in your house and never take it out, you are violating the law unless you have a licence. Any of the above offences, including just keeping an unlicensed gun in your house, subjects you to imprisonment of up to 10 years and a fine.
Gun licences are personal to the gun owner. If you borrow or buy a gun, even if it's licensed by its owner or the person from who you bought it, it is crime to possess it.
Likewise, it's a crime even if you just keep it in your house for self-defence. This would subject you to imprisonment of up to five years and a fine unless you get a licence for it yourself.
There are additional penalties for taking an unlicensed gun to a town or village or in a public way _ up to five years' imprisonment.
Also, if you take an unlicensed gun to a public gathering such as for worship, entertainment or political purposes, you could face up to five years in jail.
This offence carries with it a minimum sentence of six months in jail.
Even if you have a licence, by the way, taking a gun to a public gathering, including a political rally or protest, subjects you to imprisonment of up to a year and a fine.
The act prohibits certain people from getting a gun licence. They are:
Anyone who has been convicted of an emimprisonable offence under the act emor the Criminal
anyone who has been convicted of emcertain offences other than those emabove more than twice in the five-emyear period before applying for the emlicence;
anyone who is not able to properly emuse a gun due to physical disability or eminfirmity. Such a person may, however, emown certain guns, but not shoot them;
anyone adjudged incompetent or emquasi-incompetent by a court or who emappears to the registrar, discussed emabove, to be of unsound mind or emhave a mental infirmity;
anyone unemployed and without inemcome;
anyone without a permanent resiemdence;
a person who has been guilty of gross emmisconduct that might affect the pubemlic order. The registrar has wide disemcretion in connection with this item emand might, for example, deny a licenceemto someone who appeared to be in a emviolent frame of mind or whose beemhaviour was erratic;
anyone who cannot produce a house emregistration document pursuant to emthe Civil Registration Act that has conemtained his or her name for more than emthan six months.
This means, of course, that a Thai person must have had his or her name in a blue house book for more than six months. Likewise, a foreigner must have had his or her name in a yellow house book for more than six months. But see below.
The law does not prohibit a foreigner from licensing a gun, and many foreigners have gun licences. Foreigners' applications are now, however, much more strictly scrutinised than those of Thai nationals.
We believe it is fair to say that few, if any, gun licences will be issued to foreigners in the near future. More about this next time.
James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researcher: Sutatip Raktiprakorn.
For more information visit
www.chavalitfinchlaw.com (http://www.chavalitfinchlaw.com).
Comments? Questions? Contact us at
the email addresses above.
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Why would anyone want to know or it's legal or not, owning firearms is for hunters and retards. nono sawadi
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Criminal Law in Thailand Part XXII: Licensing a gun in Thailand
Published: 1/08/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum
(http://bangkokpost.com/media/content/20100801/166561.jpg)
This week we'll talk more about getting a licence for a gun in Thailand. First, there are police and ministerial regulations that give general guidelines and criteria by which the officials at the Registrar's office base their decision on whether to issue or deny a gun permit.
These considerations would be in addition to those mentioned last week of the persons who by law are absolutely prohibited from having gun licences and give the Registrar further discretion to deny permits on a number of grounds.
There are many of these guidelines and the following are the generalised areas of inquiry and discretion that the Registrar has in connection with deciding whether to issue or not to issue a gun permit:
- The age of the applicant. Adults (20 years of age and over) are preferred. In practice, for this category, only adults will be allowed gun permits.
- Are there particular reasons for which the applicant needs a gun, for example, does the applicant live in an isolated, dangerous area, engage in a profession that might expose him or her to particular danger or have special professional responsibilities that require him or her to protect money or valuable property?
- Has the applicant been convicted of a criminal offence? Does he or she known to associate with criminals? Is he or she known to be free of mental illness or impairment?
- Is the applicant considered a stable, normal member of the community?
- Has the applicant had previous permission to own a firearm?
- Will a local government officer such as a police officer, police chief, sub-district or village headman recommend the applicant?
- Does the applicant have a strong belief in any doctrine that could pose a security threat to Thailand?
- Has the applicant been guilty of any misconduct, even if not a crime, that might affect public order?
There are criteria that relate only to foreigners.
As we mentioned last week, however, applications by foreigners are now scrutinised much more strictly than applications by Thais.
Practically speaking, a new gun permit will only be issued to a foreigner under the most extraordinary of circumstances, if at all. The criteria are:
- Is the applicant a permanent resident in Thailand? As mentioned last week, a foreign applicant must be able to produce a yellow book showing that he or she has been a resident for at least six months at the address contained in the yellow book.
- Does the applicant speak Thai? This is not a strict requirement, but would be one factor in determining whether the applicant is a permanent resident.
- Does the applicant have family members in Thailand? This is yet another factor that the Registrar might use to determine whether the applicant is a permanent resident.
Next week we'll talk about the procedure for obtaining a gun licence.
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This is very interesting for people that are scared all the time, better pay a visit to a shrink. bigcry
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This is very interesting for people that are scared all the time, better pay a visit to a shrink. bigcry
you must know the law in thailand is very different from real life and some situations you might get into them in the future, good to know the law and use it if needed.
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See my reply july 26, this is how I think about firearms.(Just don't) party4
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Criminal Law in Thailand Part XXIII: Procedure for obtaining a gun licence
Published: 8/08/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum
This week we'll begin the discussion of the actual steps one has to take to license and buy a gun in Thailand. Remember, if you're a foreigner, the likelihood is that you won't be granted a gun licence.
(http://bangkokpost.com/media/content/20100808/168857.jpg)
The rules below would, of course, apply to applications by Thai citizens closely related to you or in your household.
First, let's look at the guns that are allowed and not allowed for civilians to license in Thailand: Rifled firearms exceeding 11.45mm in calibre can't be licensed;smooth-bore firearms exceeding 20mm in calibre can't be licensed; muzzle-loaders, shotguns and pyrotechnic pistols, also smooth-bore, can be licensed; there are limitations on firearms with automatic chambering devices, but shotguns in this category can be licensed; guns with silencers can't be licensed; guns that are designed to deliver toxic, infectious, inflammable or radioactive substances can't be licensed; military weapons, such as M16s, can't be licensed.
In effect, what can be licensed is an 11.45mm or smaller pistol or rifle. Shotguns can also be licensed. As we'll discuss later, when one files the application for any of these weapons, you must affirm that they will be used only for defence of oneself or one's property, sport or hunting.
Before getting a licence, the applicant must identify the exact firearm to be purchased and from whom it will be purchased. It must be bought from a licensed dealer. In Bangkok, for example, there are several dealers in the Wang Burapha area. The internet is a source of licensed dealers throughout Thailand.
When the applicant has the exact model he or she wishes to purchase and the dealer's identity, the application process may begin.
The first step is to file an application to possess and use a gun, form Por.1. This has to be filed with the proper authority in the area where the applicant has a blue or yellow book, indicating a residence there. For Bangkok, this has to be filed at the Department of Provincial Administration, located at Nakhon Sawan Road, Dusit, Bangkok 10300. Please note that this filing location has recently changed and was for many years previously the registration division of the Royal Thai Police Office. In the provinces, it has to be filed with a nai amphur, or sheriff.
In the form Por.1 the applicant must identify the dealer, the exact model to be purchased and the ammunition. The applicant must also affirm that the weapon will be used only for defence, sport or hunting.
Form Por.1 contains numerous questions designed to enable the authorities to determine whether the applicant is among the groups to whom firearms are not allowed. The specific qualifying and disqualifying factors have been discussed in earlier columns.
Next week we will conclude our discussion of the application process for a gun licence.
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very informative, enjoyed to read, though I will reply on a lawyer and not on my personal judgment in case of troubles. oldmanwithstick
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Nobody should want to know this, if you are so scared living in Thailand you better head back home, firearms are for morrons. screwy
http://www.kdhnews.com/news/story.aspx?s=41466 (http://www.kdhnews.com/news/story.aspx?s=41466)
http://www.telegraph.co.uk/news/worldnews/northamerica/usa/7407373/Girl-3-thought-loaded-gun-was-Wii-controller-in-fatal-accident.html (http://www.telegraph.co.uk/news/worldnews/northamerica/usa/7407373/Girl-3-thought-loaded-gun-was-Wii-controller-in-fatal-accident.html)
http://www.infoplease.com/ipa/A0922329.html#axzz0xtbljP8e (http://www.infoplease.com/ipa/A0922329.html#axzz0xtbljP8e)
and many, many more...
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Criminal law in Thailand Part XXXII: Traffic crimes—drink-driving
Published: 10/10/2010 at 12:00 AM
Newspaper section: Spectrum
Last week we began a discussion of additional traffic offences of which all drivers in Thailand should be aware. Here is another _ drink-driving. Thailand is serious about keeping drink-drivers off the road, and several provisions of the Land Traffic Act (the Act) back this up. Under Ministerial Regulation No16, if the driver's blood-alcohol is 50mg per 100ml, it is past the legal level and the driver is considered drunk. If the police suspect that a driver has been drinking, they have the power to order him or her to stop and be tested.
If the driver refuses to be tested voluntarily, he or she will be subject to a fine of 1,000 baht and taken into custody until the test can be administered. If the driver is determined to be sober, he or she will be freed immediately. In practice, the fine for refusing to be tested is discretionary with the police, who may not levy it even if the driver is determined to be drunk. The reason for this is that a driver determined to be drunk will be prosecuted for the much more serious crime of drink-driving as set forth below.
If the driver is determined to be drunk, the police will submit the case to the public prosecutor. If, after trial, the driver is found guilty, he or she will be subject to a fine of up to 20,000 baht and/or imprisonment of up to one year. The court will also decide whether to suspend the driver's licence for up to six months or to revoke it. Whether the licence is suspended or revoked depends on the circumstances of the case. Prior offences will be taken into account, as well.
If the licence is suspended, the police, as a practical matter, hold on to it until the suspension period is over.
There are additional criminal penalties for causing injury to others while driving drunk:
If the drink-driver has caused bodily or mental harm to anyone, he or she will be subject to imprisonment of up to five years and a fine of up to 100,000 baht.
If the drink-driver has caused grievous bodily harm to anyone, as determined by a decision of the judge, the maximum penalty is up to six years imprisonment and a fine of up to 120,000 baht.
If the drink-driver has killed someone the maximum penalty is 10 years in jail and a fine of up to 200,000 baht.
If the intoxication is a result of drugs other than alcohol, stiff penalties may be applicable under the Narcotics Act and the Psychotropic Substances Act. The driver can also lose his or her licence as set forth above.
We have discussed the crimes in connection with drink-driving above in a way that conviction may appear automatic. We have done so to give you an idea of the consequences in the event you are convicted of a drink-driving offence.
In future columns, however, we will explain what it means to be tried for an offence in Thailand. There are a number of safeguards built into the system. For example, the judge has much discretion on what evidence can be introduced against a defendant. We hope you will see at that time that the criminal process is complex and that there are many factors that need to be evaluated before anybody is convicted of anything.
(http://www.bangkokpost.com/media/content/20101010/190737.jpg)
Source: http://www.bangkokpost.com/news/crimes/200615/criminal-law-in-thailand (http://www.bangkokpost.com/news/crimes/200615/criminal-law-in-thailand)
James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researchers:
Sutatip Raktiprakorn and Sitra Horsinchai.
For more information visit
www.chavalitfinchlaw.com (http://www.chavalitfinchlaw.com).
Comments? Questions?
Contact us at the email addresses above.
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Criminal Law in Thailand Part XXXIV:
Minor crimes you should know about
Published: 24/10/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum
Thailand is a complex and developed society, the morays of which are reflected in crimes against behaviour that may not be considered criminal in other societies. We'd thus like to use this week's column to mention a few activities that may not be crimes in countries other than Thailand, but of which you should be aware if you are living here.
What we will discuss below are considered petty offences, in other words the penalties do not exceed imprisonment of one month and/or a fine of 1,000 baht. People, including foreigners, do get arrested for these crimes, however. Thus, as with other issues of manners and culture, it's important to be aware of them.
The first crime is that of fighting. Section 372 of the Criminal Code provides that anyone fighting or otherwise causing a disturbance in a public way or place shall be exposed to a fine of up to five hundred baht.
Let's look at how this could happen. You're sitting in one of those outdoor bars in the night market in your town. At night, there are stalls and places selling food and drink on both sides of a narrow street with lots of people passing by.
Down the street you see one of the players in your darts league. Last week you and he got into an argument over the fact that he routinely flirts with your girlfriend while you are trying to concentrate on the game. It didn't come to blows, but it was pretty heated.
You want to give him a lesson. He doesn't notice you, and the second he walks past, you stand up, step into the street and give him a good shove. He knocks into a couple of passers-by and wheels around, seeing you. Then he lunges across the street at you. The two of you end up wrestling around in the street, stopping pedestrian traffic and knocking down a couple of tables. Eventually a couple of big guys emerge from the crowd and separate you. A policeman appears.
You can be taken to the police station and charged with fighting in a public way.
Let's change the example a little, to illustrate the second petty crime. After you shoved your neighbour but before he lunged, you pulled out your pocket knife, opened it and waved it at him, just to keep him away. A policeman intervened at this moment. The crime is a violation of Section 379 of the Criminal Code, which exposes those who draw or brandish arms in the course of a fight to imprisonment not exceeding 10 days. By the way, in earlier columns we discussed the fact that arms are anything that may be used as a weapon, and don't have to be items exclusively used as weapons, such as guns.
A related offence, under Section 371 of the Criminal Code, is carrying arms in public or to a public gathering, which may result in a small fine and loss of the weapon.
Public intoxication is another petty offence of which you should be aware. This time, in a new example, you stop at Soi Cowboy for a drink after a hard day of work. You run into some friends. Everyone's bar hopping, and, before you know it, your watch says it's almost midnight. You realise it's time to call it a day. At this point you're sitting, alone, in an outdoor cafe. You stand up and walk into the street.
At the last second, you realise that you've had too much to drink, and lose consciousness. A crowd gathers and a policeman finds you, passed out, in the street. Even though you've not done anything to anybody but yourself, the policeman can arrest you and charge you with public intoxication under Section 378 of the Criminal Code. This prohibits riotous behaviour or being unable to control oneself in a public place as a result of alcohol or drugs. The fine is up to 500 baht.
We are often asked about whether conviction of a crime will affect one's ability to stay in Thailand. Section 12 (6) of the Immigration Act BE 2522 states that foreigners who have been imprisoned as a result of a conviction either in Thailand or abroad will be prohibited from entering Thailand. Section 36 of the Immigration Act, moreover, provides that where there is reasonable circumstance the Director-General of Immigration or the Immigration Commission may revoke a foreigner's visa. The crimes discussed above are petty crimes and will not give rise to loss of a visa or being barred from entry to Thailand. More serious crimes may do so, however, and we will discuss this at a later time.
James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com) and
Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researchers: Sutatip Raktiprakorn and Sitra Horsinchai.
For more information visit
www.chavalitfinchlaw.com (http://www.chavalitfinchlaw.com).
Comments? Questions?
Contact us at the email addresses above.
http://www.bangkokpost.com/news/crimes/202988/criminal-law-in-thailand-part-xxxiv-minor-crimes-you-should-know-about (http://www.bangkokpost.com/news/crimes/202988/criminal-law-in-thailand-part-xxxiv-minor-crimes-you-should-know-about)
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Criminal Law in Thailand Part XLI: The criminal trial _ how it is conducted
Published: 12/12/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum
We've talked earlier about the players and the kind of proof that is required to be introduced in a criminal trial. Now we will give you an overview of some of the principal steps in a criminal trial.
As discussed earlier, most criminal cases are initiated by the public prosecutor. We'll discuss this in depth next time, because how this happens goes to the heart of the criminal process in Thailand.
The trial starts when the accused is brought to court to be charged with the crime by the public prosecutor. The judge may at this time have a preliminary examination of the case, but, as a practical matter, usually just rules on whether the charge conforms to the law. If the judge accepts the charge, he or she may ask the accused to give a statement and, with the public prosecutor and defence, set a date for trial.
At the time appointed for the trial to begin, the prosecutor, judge or judges and the defendant and his or her lawyer meet in the courtroom. The judge or judges sit facing the public prosecutor, the defendant and his or her lawyers, who sit at separate tables.
The public sits behind the tables occupied by the parties. Normally, the public is allowed to attend criminal trials, but the judge may on his or her own, or at the request of either of the parties, close the trial to the public if he or she thinks doing so would be in the interest of public order, good morals, or state security. An example of when a judge might close a trial to the public is where the victim of a sex crime is a child and the judge doesn't wish the child to be exposed to negative publicity as a result of the trial.
If a member of the public, including the press, wants to record, photograph or video any portion of the trial, he or she must apply in a letter to the chief judge of the court, giving the case number, date and the reason for the recording. Without prior permission, recording, photographing or videoing any portion of a trial is considered in contempt of court and will expose the person doing it to punishment.
The judge announces the beginning of the trial. The judge makes a recording of the entire trial and a clerk enters all testimony into a computer. The exact method of recording the trial is set by regulations made by the Chief Judge of the Supreme Court.
The first formal statement is made by the prosecutor. Generally, he or she will start with a statement of the facts and law on which he or she intends to rely. Then the factual evidence, discussed in earlier columns, from witnesses and physical evidence such as fingerprints, documents, weapons, contraband and photographs, is introduced.
Generally, the judge has discretion to admit any evidence likely to prove the guilt or innocence of the accused. The court may require expert testimony on any fact that constitutes a substantial issue in the case. Likewise, the parties may introduce expert testimony on substantial issues.
Documents may be presented as evidence. Copies of official documents such as government records certified by government officials are acceptable. Otherwise, if the original of the document to be presented is not available, a certified copy or oral evidence of what was in the document will be admissible.
Evidence introduced by the prosecution may be questioned by the defence. Witnesses may be cross-examined after they have given testimony for the party who asked them to appear. For example, the prosecution might introduce a witness who says he witnessed the crime. When the prosecution has finished questioning this witness, the defence might then confront that person about evidence to the effect that he was out of the country at the time of the crime and couldn't possibly have witnessed it. As will be explained later, it is the judge who will eventually decide who to believe.
Parties may object to the introduction of evidence by their opponents. We will cover what can be introduced and what can be objected to later, but suffice to say here that the judge has discretion on what to accept or reject as evidence.
If the judge excludes something, he or she must explain this in the written record of the trial so that, if necessary, it may be evaluated by other judges if the case is appealed.
Then the defence may put on its case, first with a statement, then with witnesses and other evidence, just as with the prosecution. The same rules mentioned above apply and the prosecution may cross-examine witnesses and object to evidence.
Next time we'll begin a discussion of important points along the road of the trial and how it's all resolved.
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Criminal Law in Thailand Part LXII: How the prosecutor gets involved
Published: 19/12/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum
A criminal trial against any individual in Thailand may be started in two ways _ by the public prosecutor or by the injured party. This time we will discuss criminal trials brought by the public prosecutor because it goes to the heart of the justice system in Thailand.
If the trial is is to be conducted by the public prosecutor, there must first be an inquiry by another official, usually a police officer. The inquiry is conducted by the official in charge of the case using available resources such as getting statements from the parties taking witness statements and visiting the scene. The inquiry official then recommends whether to pursue prosecution. In either case, the recommendation is sent to the public prosecutor.
If the recommendation is in favour of prosecution, the inquiry official also brings the defendants to appear before the prosecutor at the time the documents are presented.
The public prosecutor can send the case back to the inquiry official for more information but is ultimately responsible for deciding whether to prosecute. If the public prosecutor decides not to prosecute, he or she issues a non-prosecution order.
If the decision is to prosecute, a prosecution order is issued and a charge is later filed against the accused in court.
If the defendant has not previously been sent to the public prosecutor because the inquiry official recommended against prosecution, the public prosecutor will also order that the accused be brought to him or her.
If a public prosecutor has issued a prosecution order, it is up to the prosecutor's discretion to determine what to do with the defendant pending trial. The defendant can be kept in custody, jailed or granted provisional release as discussed in earlier columns. If the prosecutor orders that the accused be jailed before being charged in court, the accused may apply to the court for provisional release.
After the defendant is charged, it is up to the discretion of the court to determine whether to detain a defendant or grant a provisional release.
If the decision to prosecute has been made by the public prosecutor, charges will be made against the accused in court.
Before the trial, the judge may decide to hold a preliminary hearing, though this is up to the justice's discretion. At that hearing, the accused is identified and the charges are explained to him or her. The accused is asked whether he or she committed the offence and to make a statement, which is recorded. If the accused refuses to make a statement, that fact is recorded, and there is a preliminary examination of the facts.
If the accused pleads guilty at the preliminary hearing, the judge will accept the charge for trial.
What happens if the accused pleads not guilty? The judge will conduct a preliminary examination of the case. If the public prosecutor can successfully argue that the basic elements of the crime exist, the court will accept the charge for trial. If the public prosecutor is unable to show the judge these basic elements, the judge may dismiss the case then and there.
The state does not have the obligation at the preliminary hearing to provide the accused with a lawyer at state expense, though the accused may bring his or her own lawyer.
If the judge decides not to have a hearing, or if after the hearing the judge decides to proceed with trial, the trial date will be determined by agreement between the judge, the public prosecutor and the defendant's lawyer. As with the earlier stages, the judge has discretion as to whether to jail the defendant or grant provisional release pending the trial.
James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researchers: Researchers:
Sutatip Raktiprakorn and Sitra Horsinchai.
For more information visit
www.chavalitfinchlaw.com (http://www.chavalitfinchlaw.com).
Questions? Contact us at the
email addresses above.
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Criminal Law in Thailand Part XLIII: The criminal trial—proving elements of the crime
Published: 26/12/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum
It's time to discuss the trial. Let's say you have been arrested and formally accused as discussed in earlier columns, but you deny the charges. The matter will be tried before a judge.
At this stage, as with other stages of criminal matters in Thailand, you have a right to a lawyer, a translator and to be present with your friends or family members. If you can't afford a lawyer and/or translator, one will be appointed for you at the state's expense.
For you to be convicted, it must be proved that you committed each element of the crime. For example, the important elements of the crime of theft are as follows _ a dishonest intent to permanently deprive another of their property.
And we'll assume for this example you are accused of stealing Mr X's car. Let's analyse whether you committed the crime from the point of view of each of its elements. First, let's assume you did drive somewhere in Mr X's car without his permission. Thus we have to admit that at least two of the elements mentioned above, that the car is the property of another, are satisfied.
Dishonesty is a term of art and means you received a benefit in the property to which you are not entitled under law.
Certainly the law doesn't allow people to drive other people's cars without permission, so let's assume this element is also satisfied.
But let's look at more of what really happened. Your wife was crossing the street with you and was hit by a car. She was seriously bleeding. You desperately needed a car to drive her to the hospital. You saw Mr X's car sitting at the side of the road with the keys in it. You told a man standing there that you were just borrowing the car.
In the matter above, you would argue and present evidence at your trial that an element of the crime _ the intent to permanently deprive Mr X of his property _ is missing.
Permanently in this context means the defendant intended to acquire the car and had no intention to give it back. In this case, you were only borrowing it in an emergency.
And that's what criminal trials are about _ deciding whether the defendant committed all of the elements of the crime.
Because even if most of the above elements were satisfied, you're not guilty unless all of them are.
But if you think making these decisions is a pretty simple matter, let's add a few facts to the above example.
What if the prosecutor argues you did plan to acquire the car permanently and says he can prove it. After you took the car to the hospital, you drove the car to your house, and that's where the police found it parked, four hours after the accident. If you didn't intend to take the car permanently, why didn't you take it back to where you'd found it?
Then you add some more evidence. The doctor at the hospital told you your wife had lost a lot of blood and should be taken home to rest immediately. You simply drove her home with the car, were helping her inside and planned to take the car back as soon as she was settled. Then the police showed up, so you never had the chance to return it.
Who's right? Who decides whether you are guilty or not, and what standards are used? We'll discuss these topics next time.
James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com),
Researchers: Sutatip Raktiprakorn and Sitra Horsinchai.
For more information
visit www.chavalitfinchlaw.com (http://www.chavalitfinchlaw.com).
Questions?
Contact us at the email addresses above.
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CRIMINAL LAW IN THAILAND Part XLIV: The criminal trial _ who decides?
Published: 2/01/2011 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum
Last week we explained that to be convicted of a crime, it has to be / that you have committed each and every one of the elements of the crime. As an example we talked about one element of theft that you, the accused, have to be proved to have planned to permanently deprive the owner of possession of his or her property. But what if the prosecutor gives the judge evidence that you did intend this and you give evidence that you did not?
Who decides and how?
In Thailand it is the judge that decides guilt or innocence, using a beyond a reasonable doubt standard.
In some countries, such as England and Wales, or the US, for example, there is sometimes a jury _ a group of people drawn from the community that decides matters of fact for the judge. As with a majority of countries, Thailand does not have this system and it is the judge that decides matters of both the facts and the applicable law.
Let's show how the system works using an example. You are accused of stealing a car. One element of stealing is that you must have intended to permanently deprive the owner of the car. The public prosecutor introduces testimony by a policeman to the effect that you drove the car away from where you took it and later the police found it in your possession parked at your house and claims this meant you intended to keep it for yourself. You bring a witness who was at the scene when you took it to whom you said that you were only borrowing the car because of an emergency health problem your wife had. As you can see, the evidence introduced by the opposing parties is in conflict. How is the judge supposed to decide who is right?
First, in deciding on whose arguments to accept, the judge must be convinced beyond a reasonable doubt. How sure must he or she be of this? Very. It means the judge must be convinced that the facts are as he or she rules to a high degree of certainty. It can't be just that the judge thinks it is more likely than not that things happened that way he or she decides. No. It must be more certain than that.
In the course of human events, one way of looking at things is that one can never be absolutely certain of anything. And for sure, science has a way of inventing things, DNA analysis, for example, that sometimes prove decisions in the past to have been wrong. But beyond a reasonable doubt means to the extent anything can be certain in the moment, it is certain. Thus if the judge finds that you were guilty in this case, it would mean he or she was certain that the witness' testimony that you were borrowing the car was wrong.
Let's look at what happens if both sides give evidence to the judge and there's no clear winner. What if it isn't clear in the judge's mind beyond a reasonable doubt whether you intended to keep the car or not?
Thailand relies on another basic standard: it's called the presumption of innocence. It simply means that unless a defendant is proved guilty beyond a reasonable doubt, he or she is assumed to be innocent.
The philosophy of the presumption of innocence is that the public prosecutor has all of the resources of the state at his or her disposal. Once the state decides to accuse someone, it is simply harder for you, the individual, to fight off the state's accusations. To even the playing field, the judge is directed by the legal system to decide in favour of the defendant unless the state can prove its case beyond a reasonable doubt.
You can see how the presumption of innocence would work to break the tie in our example. Perhaps the judge agrees with the police that if you really were only borrowing the car, you would have immediately returned it to its owner. On the other hand, you clearly told someone at the scene you were only borrowing the car in an emergency. The judge simply might not be sure. So the judge has to decide in your favour, because of the presumption of innocence.
Next time, we'll talk about other features of the trial that keep things fair _ or more fair, anyway.
James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researchers:
Sutatip Raktiprakorn and Sitra Horsinchai.
For more information visit
www.chavalitfinchlaw.com (http://www.chavalitfinchlaw.com)
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Criminal Law in Thailand Part XLV: The criminal trial _ evidence
Published: 9/01/2011 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum
One of the principles of a fair trial is that there should be as few surprises as possible, so both sides can fairly prepare for the evidence that the other plans to introduce. Thus before the trial both the prosecutor and accused must submit a list of evidence and witnesses to the court and the opposing side. This gives each side the opportunity to examine the evidence the other side claims will support its case at trial, and even contact opposing witnesses to find out what they will say.
The prosecution's list must be submitted at least 15 days before the start of trial. The defence must submit its list the day before it begins presenting its evidence at trial.
Once the trial starts, the prosecutor presents evidence first. As stated earlier, the prosecution must prove to the judge each element of the crime beyond a reasonable doubt.
What evidence may the judge consider and what evidence must be disregarded? Of course, the human factor comes into play here. A judge may deem evidence inadmissible, but knowing of it could still influence a verdict.
Here's a fictitious example of what we mean. Let's say the police hear from a very unreliable informant that there might be drugs in Mr X's house. Rather than get a warrant, they go over to the house and illegally search it, finding drugs. At Mr X's trial for illegal drug possession, the judge rules that the drugs are not admissible to be considered at the trial because they were the product of the illegal search and because it would be against the interests of justice to admit this evidence.
The other evidence in this example is pretty sketchy _ the testimony of the police informant.
It turns out, however, that this informant often tells the police that people _ particularly those he doesn't like _ have drugs. It is also discovered that the police ignore his drug addiction and regular illegal purchases because of the information he provides them. The defence introduces testimony from other witnesses showing that the informant has lied and been wrong in many other cases.
So how does the judge determine guilt or innocence in this case?
The real evidence _ the drugs _ is not admissible. There is other evidence, but it insufficient on its own to prove beyond a reasonable doubt that the crime was committed. But wouldn't the judge be just a little bit influenced by knowing that the crime has been committed in deciding whether to believe the informant in this case?
Of course. This example proves what you already knew about the legal system _ that it's set up to include a certain human element. And it's this element _ good and bad _ that determines the fundamental justice of a legal system. Section 226/1 of the Criminal Procedure Code says that evidence obtained wrongfully or through bad faith shall be excluded from the trial, unless admitting the evidence is more useful in the cause of justice or basic human rights and liberty. Thus, even if the evidence is illegally obtained, the judge may still decide that it is in the best interest of justice to admit it to be used by the prosecutor at trial.
Next time, we'll talk more about what can be admitted in evidence and what can't.
James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researchers:
Sutatip Raktiprakorn and Sitra Horsinchai.
For more information see
www.chavalitfinchlaw.com (http://www.chavalitfinchlaw.com).
Questions?
Contact us at the email addresses above.
-
Criminal Law in Thailand Part IIL: The criminal trial _ more about proof
Published: 30/01/2011 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum
There are a few important issues pertaining to what a judge may consider as evidence in a criminal trial in Thailand. It's important to know about these, because if you are ever faced with criminal prosecution, you should understand the process and be able to work with your lawyer to introduce every shred of evidence in your favour.
One important issue is hearsay, which is defined as statements made out of court offered in court as evidence to prove the truth of the matter asserted.
Does that sound a little circular? Here's a fictional example. Let's say Mr X is on trial for the rape of Ms Y. It supposedly happened in a bar, and Mr Z was the bartender at the time. The same night Mr Z gave a statement to the police that he saw Mr X rape Ms Y in the back of the bar. Now, however, Mr Z says he can't remember anything about the incident and can't appear in court to confirm his statement to the police. The police want to introduce Mr Z's statement into evidence to show that Mr X raped Ms Y. Can they?
Probably not, because it's hearsay _ something said out of court that's being offered to prove the assertion that Mr X raped Ms Y. is true.
What's the problem with hearsay, anyway?
It's that the whole point of a criminal trial is that the defendant is entitled to confront his or her accusers, and both sides and the judge may question witnesses to see if what they are saying is believable. If the witness isn't there, there's no way to do this, so, in general, hearsay isn't admissable.
But hearsay is admissible in some instances. If the judge thinks the circumstances make the witness believable, and that what the witness is saying can be proved, or the witness is unable to appear in court for a good reason and the judge thinks the interests of justice are best served by admitting the evidence, the judge may do so.
To illustrate this point, let's say that Mr Z had moved to South America and can no longer be contacted. The judge might decide that even though Mr Z isn't around to testify, accepting the out of court statement best serves justice.
Turning to another more controversial issue, in the case of sex crimes, may the defendant introduce evidence about the victim's past sexual behaviour to prove his innocence?
In the case above, for example, could Mr X introduce other witnesses to testify that Ms Y is a prostitute who regularly used the bar to turn tricks?
Generally, no, under Thai law.
You can understand why. It's so easy to say that any victim of a sex crime was in some way ''asking for it'' that it's too prejudicial to the interests of justice to accept this proposition every time it is asserted by a defendant. Defendants say this in a disproportionate number of sex crime cases. Instead the judge has discretion to admit such evidence, after written application to the court by the defence, but only when the judge decides it's in the interests of justice. This means, of course, that the judge thinks its fair to do so.
Rape is defined under Thai law as unlawful sexual intercourse, and this includes sexual acts between both members of the same and opposite sex. Section 276, paragraph 1 of the Criminal Code defines unlawful sexual intercourse as whomever has sexual intercourse with another person, who is in a condition of being unable to resist, by committing any act of violence or by making such another person misunderstand [the perpetrator to be] another person, shall be punished with imprisonment of four to 20 years and fined 8,000 to 40,000 baht.
With reference to our example, you will notice this definition of rape doesn't say anything about the past behaviour of the victim. Many are shocked when they are told that a prostitute can be raped, and that the rapist can be prosecuted for this even though the victim has regular consensual sex with many partners.
Our last point on the issue of proof in court is a catch-all. Under Thai law, the judge can bring in additional evidence. In our case above, for example, the judge might ask for other evidence about the situation that neither party has introduced. Were there other witnesses? What did they say? Did the police take a picture of the part of the bar where the alleged rape took place? The judge can introduce this evidence even though neither of the parties has done so.
We've been talking about the facts of the case. What about the law? It is the judge's job to find the law and apply it to the facts introduced in the case. We'll talk about how the judge's decision is reached next time.
James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researchers:
Sutatip Raktiprakorn and Sitra Horsinchai.
For more information visit
www.chavalitfinchlaw.com (http://www.chavalitfinchlaw.com).
Questions? Contact us at the
email addresses above.
Source:http://www.bangkokpost.com/news/crimes/218932/criminal-law-in-thailand-part-iil-the-criminal-trial---more-about-proof (http://www.bangkokpost.com/news/crimes/218932/criminal-law-in-thailand-part-iil-the-criminal-trial---more-about-proof)