General Principles of Thai Criminal Law 9811587078, 9789811587078

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Alessandro Stasi

General Principles of Thai Criminal Law

General Principles of Thai Criminal Law

Alessandro Stasi

General Principles of Thai Criminal Law

Alessandro Stasi Mahidol University International College Nakhonpathom, Thailand

ISBN 978-981-15-8707-8    ISBN 978-981-15-8708-5 (eBook) https://doi.org/10.1007/978-981-15-8708-5 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

Preface

This book is not intended to be a complete and analytical treatise of the Thai legal system, but rather to present what its title says: the general principles of Thai criminal law. Its primary purpose is to introduce and explain the essential characteristics of the Thai criminal law to an Anglophone audience, answering the fundamental question: what is a crime under Thai law? Criminal law (in Thai got maai aa-yaa) is an intriguing area of great practical significance, performing a crucial role in the protection of the rights of individuals within the justice system. Even individuals who have no professional interest in legal education often realize the overall role and importance of criminal law to their personal life. In fact, our society is not yet so developed that an individual can be certain that adopting the wisest and most reasonable conduct will be sufficient to avoid dealing with criminal matters. General Principles of Thai Criminal Law is designed as a traditional textbook of criminal law which provides a succinct focused coverage of all the relevant aspects of Thai laws, judgments, and legal reforms in a manageable, concise, and reader-­ friendly manner. It presents the salient features of the Thai criminal law to a wide readership of academics, researchers, students, and practitioners concerned with Thai law. Each of the 12 chapters in this book is derived from a lecture given at the Ramkhamhaeng University and aims to present a detailed analysis of a particular area of Thai criminal law. To some extent, each chapter is designed to stand alone and none require reading any other part of the book for easy understand of the topic in one sitting. The book begins with the elementary legal concepts to be learned by the reader, by defining the fundamental principles underlying the Thai criminal system and outlining its objectives. It then extensively describes the main offences under the Thai Penal Code and classifies those breaches of law that are crimes from those that are merely illegal without being criminal. The first chapter is devoted to the analysis of the origins of the Thai legal system. It explores the history of the codification of the Penal Code and examines some of the major perspectives and definitions of crime. The second chapter investigates, discusses, and problematizes the nature, purpose, and function of the criminal law. This chapter is guided by the following v

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questions and issues: What is the function of criminal law in society? Must a penalty be proportionate to the gravity of the offence and the degree of responsibility of the offender? When do principles of justice and fairness restrict how punishment can be applied? What is the purpose of criminal punishment? The third chapter discusses the notion of imputability under Thai criminal law. More precisely, it discusses the concepts of mens rea and actus reus required in general criminal law. It also considers some particular categories of crimes, usually grave ones, in which a greater degree of mens rea is necessary as well as other types of crimes, usually of a petty character, in which a lower degree of mens rea is required. The fourth chapter encompasses excusatory and justificatory defenses to criminal liability. It discusses the five groups of cases of exemption which in point of law exclude the presence of a guilty mind (i.e., mental illness, minority, necessity, constraint, mistake of fact, and other extenuating circumstances) and the three cases of justificatory defenses involving no legal penalty (i.e., order of a legitimate authority, necessity, and legitimate defense). The fifth chapter of the book covers the crime of attempt in particular instances. It also analyzes impossible attempts and those instances where the wrongful purpose of the offender is voluntarily abandoned before the act is put in process for final execution. Chapter 6 focuses on the fundamental principles of criminal responsibility, concurrence, and causation. Four ways of taking part in a crime are considered: principal in the first degree, principal in the second degree, accessory before the fact, and accessory after the fact. The seventh chapter of the book focuses on crimes against the person and more specifically on offences causing death. It presents a lengthy treatment of murder and the two different forms of manslaughter: the so-called gaan kâat-dtà-gam doi jàyt-dtà-naa (i.e., voluntary manslaughter) and the so-called gaan kâat-dtà-gam doi bprà-màat (i.e., involuntary manslaughter). It also covers other offences related to death such as suicide, euthanasia, and abortion. Chapter 8 focuses on non-fatal offences against the person and explains how in Thailand crimes of this class have been minutely particularized by statutory enactment according to the varying circumstances, degree, and character of the injury inflicted. The first five sections of this chapter will attempt to define those crimes that are unconnected with sexual relations while section six will deal with those offences relating to sexuality. In consideration of the lèse-majesté laws which are in force in the kingdom of Thailand, Chap. 9 will only provide an overview of the most relevant legal provisions relating to the security of the kingdom rather than a complete and uniformly comprehensive disquisition on the subject. Chapters 10 and 11 cover offences against property. Chapter 10 discusses the various offences which violate rights of ownership and specifically those groups which center round two crimes of peculiar heinousness—gaan kà-moi (i.e., theft) and gaan kà-moi sòp (i.e., snatching)—whose importance can be traced to the peculiar sacredness which the law attaches to individuals’ property. Chapter 11 deals with other crimes against property, including robbery, gang robbery, extortion, blackmail, and fraud. The concluding twelfth chapter of the book deals with the law of evidence. The initial overview of the obligatory presumptions of law and the discretionary presumptions of fact is followed by a discussion of the rules of evidence which are applied in Thai courts.

Preface

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Before proceeding to a discussion of the Thai criminal system, it may be useful to make some considerations regarding the genealogy of this book. Much of the material presented in this book is loosely based on the studies of Professor Courtney Stanhope Kenny. His monumental work Outlines of Criminal Law has exerted a profound influence on the drafters of the Thai Penal Code and still constitutes today an essential reference for most scholars, students, and researcher focusing on the Thai criminal system. This choice has been dictated not only by the various points of contact between English law and the law of Thailand, but also by the pressing need to provide students with a coherent, readable, and accessible introduction to criminal law in English language. Inspired by the engagement of my students and driven by the responsibility to bring more clarity to this area of Thai law, I started a research project which took almost 4 years to complete, undergoing various improvements, and consuming literally thousands of hours of work. This initial project has finally grown into the first, and so far the only, book-length work in the English language about Thai criminal law. The present book will undoubtedly provide a reference for all those who want, now and in the future, to gain some knowledge in this field. During the long period of conception, development, and writing of this book, I have received constructive suggestions from a number of friends, colleagues, and legal practitioners. These include, in particular, Alexei Blanc, Nazim Foury, Jing-­ woean Chuang, Parisa Mahakantha, Pariya Patchimnan, Phatcharaporn Chokbunsuwan, Somkit Keskowit, Suppaluk Jakkrod, Nattakorn Punkun, Jompon Pattapeesin, Kittapat Singh, Setthavut Jindachotsiri, Wuttipatra Sribusdee, Peeranut Tankongchamruskul, and Chanakan Sapniti. I am also grateful to Professor Roman Meinhold, Professor Voraphat Diloksampan, Professor David Tan, Professor Sasiwimon Santhidej, and Professor Teetuch Suanmalee for meticulously reviewing the entire manuscript and providing valuable comments; Philip Sweeney, Chatchaya Sukkua, Korpong Chimplee, Ravipont Mathanukraw, Siravich Wuttiwongsaree, Sophonvich Sae-Tae, and Phiraya Aeowamornrut for their encouragement, criticism, and useful discussions; Tidarat Jittasinnawa, Somboon Supphatada, Krittinon Choavaratana, and Alice Jindamanee for translating the original Thai version of the Penal Code; and Kamolporn Vimoluksorn and Pajaree Aunhabundit for obtaining references. Thanks are extended to Thammasat University Research Institute for providing access to their collections, Mahidol University International College for giving me the means to conduct my research, and the many students, past and present, who have contributed to the work. From a personal level, I would like to thank Alhena and Davide who have helped and inspired me in many different ways. While all of these persons and institutions helped shape the book, all omissions, errors, and inaccuracies are my responsibility alone. Every effort has been made to ensure that the information contained in this book is accurate at the time of publication.

Nakhonpathom, Thailand  Alessandro Stasi  

Contents

1 Basic Concepts and Principles of Criminal Law����������������������������������    1 1.1 History and Function of Thai Criminal Law������������������������������������    2 1.2 Criminal Law, Public Law, and the Expression of State Sovereignty ��������������������������������������������������������������������������������������    3 1.3 The Dynamics of Criminal Law and Morality����������������������������������    5 1.4 Intersection and Coordination Between Criminal Law and Civil Law������������������������������������������������������������������������������������    6 1.5 Public Wrongs, Private Actions, and Civil Lawsuits������������������������    9 1.6 Limits of Criminal Jurisdiction in Regard to Time, Person, and Place ������������������������������������������������������������������������������������������   11 References��������������������������������������������������������������������������������������������������   14 2 The Function of Criminal Law in Society���������������������������������������������   15 2.1 The Purpose of Criminal Punishment ����������������������������������������������   15 2.2 The Philosophy and Politics of Punishment and Sentencing������������   17 2.3 Constructing Criminal Liability��������������������������������������������������������   19 2.4 Yee-Tok and the Proportion Between Crime and Punishment����������   20 References��������������������������������������������������������������������������������������������������   23 3 Actus Reus and Mens Rea������������������������������������������������������������������������   25 3.1 The Notion of Imputability in Criminal Law������������������������������������   25 3.2 The Concept of Mens Rea Under Thai Law ������������������������������������   27 3.3 Special Intention ������������������������������������������������������������������������������   28 References��������������������������������������������������������������������������������������������������   30 4 Excusatory and Justificatory Defenses��������������������������������������������������   31 4.1 Hàyt Yók Wáyn Tôht ������������������������������������������������������������������������   31 4.2 Kwaam Chôp Dûay Gòt Măai����������������������������������������������������������   39 4.3 Intoxication ��������������������������������������������������������������������������������������   41 4.4 Liability of Legal Persons ����������������������������������������������������������������   43 References��������������������������������������������������������������������������������������������������   47

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5 Attempts����������������������������������������������������������������������������������������������������   49 5.1 Definition of Attempt������������������������������������������������������������������������   49 5.2 Impossible Attempts�������������������������������������������������������������������������   50 5.3 Withdrawal from an Attempt������������������������������������������������������������   51 References��������������������������������������������������������������������������������������������������   52 6 Secondary Party Liability ����������������������������������������������������������������������   53 6.1 Principal in the First Degree ������������������������������������������������������������   54 6.2 Principal in the Second Degree��������������������������������������������������������   54 6.3 Accessory Before the Fact����������������������������������������������������������������   56 6.4 Accessory After the Fact ������������������������������������������������������������������   58 References��������������������������������������������������������������������������������������������������   59 7 Offenses Causing Death��������������������������������������������������������������������������   61 7.1 Murder����������������������������������������������������������������������������������������������   61 7.2 Voluntary Manslaughter��������������������������������������������������������������������   65 7.3 Involuntary Manslaughter ����������������������������������������������������������������   68 7.4 Beginning and End of Life for the Purposes of Homicide Offenses ����������������������������������������������������������������������   71 7.5 Suicide, Euthanasia, and Abortion����������������������������������������������������   72 References��������������������������������������������������������������������������������������������������   74 8 Nonfatal Offenses Against the Person����������������������������������������������������   75 8.1 Voluntary Bodily Harm��������������������������������������������������������������������   75 8.2 Grievous Bodily Harm����������������������������������������������������������������������   78 8.3 Involuntary Bodily Harm������������������������������������������������������������������   79 8.4 Justifiable Violence ��������������������������������������������������������������������������   81 8.5 Offenses Against Liberty and Reputation ����������������������������������������   84 8.6 Offenses Relating to Sexuality����������������������������������������������������������   90 References��������������������������������������������������������������������������������������������������   93 9 Offenses Relating to the Security of the Kingdom��������������������������������   95 9.1 Constitutional Provisions������������������������������������������������������������������   95 9.2 Penal Code Provisions����������������������������������������������������������������������   98 Reference ��������������������������������������������������������������������������������������������������  102 10 Offense of Theft����������������������������������������������������������������������������������������  103 10.1 Change of Possession����������������������������������������������������������������������  105 10.2 The Ownership��������������������������������������������������������������������������������  107 10.3 The Subject Matter��������������������������������������������������������������������������  110 10.4 The Value����������������������������������������������������������������������������������������  111 10.5 The Claim of Right ������������������������������������������������������������������������  113 10.6 The Intent����������������������������������������������������������������������������������������  115 10.7 Theft Between Spouses������������������������������������������������������������������  118 References��������������������������������������������������������������������������������������������������  119

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11 Other Property Offenses ������������������������������������������������������������������������  121 11.1 Robbery and Gang-Robbery ����������������������������������������������������������  121 11.2 Extortion ����������������������������������������������������������������������������������������  123 11.3 Blackmail and Fraud ����������������������������������������������������������������������  124 11.4 Restitution of Possession����������������������������������������������������������������  127 References��������������������������������������������������������������������������������������������������  130 12 Modes of Judicial Proof and Rules of Evidence������������������������������������  131 12.1 Legal Evidence, Presumptions of Fact, and Presumptions of Law ��������������������������������������������������������������������������������������������  131 12.2 The Nature of Evidence������������������������������������������������������������������  135 12.3 Paara Nai Gaan Pisoot and the Role of the Public Prosecutor ��������������������������������������������������������������������������������������  139 12.4 Section 176 of the Penal Procedural Code and Testimonial Evidence������������������������������������������������������������������������������������������  141 12.5 False Testimony and Malicious Criminal Accusations ������������������  142 12.6 Principles of Criminal Evidence ����������������������������������������������������  145 12.7 Payan Bok Lao Evidence and Other Exclusions����������������������������  148 References��������������������������������������������������������������������������������������������������  150 Index������������������������������������������������������������������������������������������������������������������  153

Table of Legislation

A Act on Offences Concerning Registered Partnerships, Limited Partnerships, Limited Companies, Associations and Foundations B.E. 2499 (1956), 45 Act on the Standard of Export Goods B.E. 2503 (1959), 45 Act on the Transportation by Land B.E. 2522 (1979), 45 Act Supplementing the Constitution Relating to the Prevention and Suppression of Corruption B.E. 2542 (1999), 45 Anti-Corruption Act B.E. 2551 (2008), 45 Anti-Money Laundering Act B.E. 2542 (1999), 44 C Civil and Commercial Code, 7, 9, 112 Section 15, paragraph 1, 71 Section 48, 134 Section 61, paragraph 1, 135 Section 61, paragraph 2, 135 Section 63, paragraph 1, 135 Section 66, 44 Section 67, 44 Section 70, 44 Section 70, paragraph 2, 46 Section 143, 127 Section 237, 126 Section 420, 124 Section 423, 87 Section 425, 56, 57 Section 429, 30 Section 1317, 128 Section 1318, 108 Section 1501, 135 Section 1711, 108 Commercial Banking Act B.E. 2505 (1962), 44 Consumer Protection Act B.E. 2522 (1979), 45 Copyright Act B.E. 2537 (1994), 45 Cosmetic Act B.E. 2558 (2015), 45

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Table of Legislation

D Drug Act B.E. 2510 (1967), 45 F Factory Act B.E. 2512 (1969), 45 Food Act B.E. 2522 (1979), 45 H The Hague Convention on the Civil Aspects of International Child Abduction B.E. 2523 (1980), 86 I Immigration Act B.E. 2493 (1950), 45 International Civil Cooperation on the Breach of Rights of Custody Act B.E. 2555 (2012), 86 L Life and Non-Life Insurance Acts B.E. 2535 (1992), 45 M Measure for Suppressing Narcotic Offenders Act B.E. 2534 (1991), 41 Medical Device Act B.E. 2551 (2008), 45 Mining Act B.E. 2461 (1918), 44 N Narcotic Addict Rehabilitation Act B.E. 2545 (2002), 41 National Health Act B.E. 2550 (2007), 73 O Offences Arising from the Use of Check Act B.E. 2534 (1991), 112 P Palace Law on Succession B.E. 2467 (1924), 97 Patent Act B.E. 2522 (1979), 45 Penal Code, v, vii, 3, 7, 15, 18, 26, 28, 38, 51, 53, 61, 73, 76, 83, 86, 93, 120, 121, 130 Book II, Title IX, 90 Book II, Title XI, Chapter 1, 84 Book II, Title XI, Chapter 3, 87 Section 1, 9, 16, 104, 116 Section 3, 11 Section 4, 12 Section 5, 13 Section 8, 13 Section 11, 13 Section 18, 17 Section 40, 17

Table of Legislation Section 44, 18 Section 46, 18 Section 48, 18 Section 50, 18 Section 63, 34 Section 64, paragraph 2, 28, 38, 133 Section 65, paragraph 2, 32 Section 66, 41 Section 66, paragraph 2, 42 Section 67, 39 Section 68, 40 Section 69, 40 Section 71, 104, 118 Section 74, 35 Section 75, 35 Section 76, 35 Section 77, 30 Section 78, 39 Section 80, 49 Section 82, 51 Section 87, 57 Section 92, 19 Section 95, 11 Section 96, 12 Section 98, 12 Section 99, 12 Section 107, 98 Section 108, 98 Section 109, 26, 98 Section 110, 98 Section 111, 99 Section 112, 99 Section 113, 99 Section 114, 99 Section 115, 99 Section 116, 99 Section 117, 100 Section 118, 100 Section 119, 100 Section 120, 100 Section 121, 100 Section 122, 100 Section 123, 101 Section 124, 101 Section 125, 101 Section 126, 101 Section 127, 101 Section 128, 101 Section 129, 101 Section 130, 102 Section 131, 102 Section 132, 102 Section 133, 102

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Table of Legislation

xvi Section 134, 102 Section 135, 102 Section 173, 145 Section 177, 143, 144 Section 178, 143 Section 180, 143 Section 214, 58 Section 218, 50 Section 236, 29 Section 237, 79 Section 240, 10 Section 264, 112, 126 Section 265, 112 Section 277, 83, 91 Section 277 bis, 90 Section 279, 91 Section 281, 91 Section 288, 62, 72 Section 289, 65 Section 290, 66, 68, 84 Section 291, 68 Section 292, 73 Section 294, 67 Section 295, 75, 76 Section 297, 78, 84 Section 298, 84 Section 299, 78 Section 300, 79 Section 301, 73 Section 303, 73 Section 304, 73 Section 306, 70 Section 307, 70 Section 311, 84 Section 312, 85 Section 313, 85 Section 317, 85 Section 319, 92 Section 326, 87 Section 328, 88 Section 329, 88 Section 330, 89 Section 332, 90 Section 334, 103, 121 Section 335 bis, 104 Section 336, 104 Section 337, 123 Section 338, 124 Section 339, 121 Section 340, 123 Section 340-bis, 122 Section 340-ter, 122 Section 341, 124

Table of Legislation Section 344, 125 Section 349, 126 Section 350, 126 Section 362, 82 Section 378, 16 Penal Procedural Code Section 17, 141 Section 31, 140 Section 36, 7 Section 45, 7 Section 176, 132, 141–142 Section 226, 136 Section 226/3, 149 Section 227, 133 Section 231, 150 Section 234, 149 Section 238, 136 Section 241, 136 Section 243, 142 Psychotropic Substance Act B.E. 2518 (1975), 41 Public Prosecution Organ and Public Prosecutors Act B.E. 2553 (2010), 20, 140 R Revenue Code B.E. 2481 (1938), 45 T Thailand Narcotics Control Act B.E. 2522 (1979), 41 Trademark Act B.E. 2534 (1991), 45 W Wildlife Preservation and Protection Act B.E. 2562 (2019), 109

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About the Author

Alessandro Stasi  is an assistant professor in law at Mahidol University International College (MUIC), Thailand. He has authored several books, including General Principles of Thai Private Law, Springer; Elements of Thai civil law, Brill; and Principles of Thai business law, Cengage, and academic articles in leading international journals. Prior to joining Mahidol University International College, he held academic posts at Ramkhamhaeng University and King Mongkut’s Institute of Technology Ladkrabang. Alessandro Stasi is also executive director of the law firm MILA Law International Legal Advice (mila-law.com) in Bangkok and works as a legal consultant for Opus Law (opus-law.com). He read law at the University of Naples Federico II, Italy, and subsequently obtained an LLM with merit and two PhD degrees at the University of Nice Sophia-Antipolis in France.

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Chapter 1

Basic Concepts and Principles of Criminal Law

Criminal law has long been an area of interest within other fields including political sciences, ethics, anthropology, sociology, and psychology as a starting point. Traditionally, criminal law is regarded both by practitioners and legal personnel as one of the most attractive portions of their work. It has of course a great practical importance. This branch of study is rendered attractive to all individuals by its direct relation with the most urgent social difficulties of our time and on the deepest ethical problems of all times. And almost any individual is fascinated by its dramatic character – the vivid and violent nature of the events which criminal courts notice and repress, as well as of those by which they effect the repression. Forcible interferences with property and liberty, with person and life, are the causes which bring criminal law into operation, and its operations are themselves directed to the infliction of similar acts of seizure, suffering, and slaughter. Thus, of all branches of legal study there is no other which captures people’s imaginations and sympathies so readily and so deeply. The interest thus aroused tends naturally to facilitate the understanding of this subject and has done much to produce the impression, which happily prevails in the minds of most of them, that this branch of their work is peculiarly easy. This impression, however, is not quite accurate. There is one grave, if not indeed insoluble, difficulty which has to be faced in studying criminal law. And this difficulty comes at the very outset of the subject. It is presented in the fundamental problem: what is a crime? Thai law uses the term got maai aa-yaa. Clearly, the criminal law is concerned with crimes alone, not with illegal acts in general. But how is it possible to distinguish those breaches of law which are crimes from those which are merely illegal without being criminal? Many attempts have been made to answer this question, and to propound a general definition of crime which shall distinguish wrongs which are criminal from those which are merely “civil.” Moreover, as the distinction between criminal wrongs and private or civil injuries is not peculiar to Thailand but is familiar in every civilized country, attempts have naturally been made to look for such a definition of crime as will express this © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 A. Stasi, General Principles of Thai Criminal Law, https://doi.org/10.1007/978-981-15-8708-5_1

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difference in a form so general as to be applicable to all countries in which this worldwide distinction between criminal and civil wrongs prevails.

1.1  History and Function of Thai Criminal Law The origins of the Thai legal system can be traced back at least to the thirteenth century during the Sukhothai period when the Hindu jurisprudence found in the Code of Manu Dhammasattham was adopted in addition to Buddhist teaching (Petchsiri 1986; Kabilsingh 1991). The first literary evidence of Thai law is a stone inscription of the reign of King Ramkhamhaeng the Great which reads as follows: “If citizens, royals, or nobles quarrel, Phor Khun must hear the case with no bias, never favor any side, and never act on the basis of bribery” (Wales 1934). In this regard, Jayaphorn (2011) points out that: The society of Sukhothai was like a big family under the rule of the nation’s king acting as would a family’s father. The king was called ‘Phor Khun’, meaning ‘supreme father’. All citizens were like ‘the national children’, who could feel a closeness to their national father – Phor Khun. The king himself had to be close to his subjects in order to gain not only national harmony but also strength to fight wars with neighbors. Because ‘the king’ during that period meant, for all practical purposes, ‘the government’ or ‘the state’ itself, we can therefore conclude that an absolute-monarchy system governed most of Thai society. Sukhothai kings, alone, held the power to govern the state and every subject therein. The stone inscription of 1292 expressed the view that kings were the national leader during both wartime and peacetime, and that the kings exercised all legislative and judicial powers. According to the inscription the judicial style was like the arbitration between a father and his children. The king was the fountain of justice and the supreme judge. The father-like king had to be righteous and just equally before all of his children. There could be neither a favorite child nor unequal treatment in the father-like king’s mind.

During the following centuries, the indigenous legal system was revised several times, and the law of Thailand (formerly Siam) was challenged by constant and rapid changes. This process ultimately led, in 1805, to the Collection of the Law of Three Great Seals (Kotmai Tra Sam Duang signifying the three official seals of the land) which contained the principles of Dhammasattham as well as royal decrees and edits. In the late nineteenth century, the legal system underwent a fundamental transformation. The western colonial powers, mainly British and French, found that there were no legal standards in the Thai legal system to determine innocence in criminal proceedings. They refused to be adjudged before Thai courts under the Law of Three Seals as, they claimed, these trials were barbaric and cruel (Stasi 2016a). In order to protect independence and evade the western powers’ claim of extraterritorial jurisdiction,1 King Chulalongkorn (Rama V) realized that it was necessary to modernize the administration of the country and embrace westernization. As Petchsiri (1986) rightly observes:

1  Extraterritorial jurisdiction means that a more powerful State applies its law over legal disputes involving its nationals even if the dispute arises abroad.

1.2 Criminal Law, Public Law, and the Expression of State Sovereignty

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King Chulalongkorn of Thailand led the country to adopt the western course of development and a western legal system whilst neighboring countries fell prey to colonialism. Although no conclusive evidence is available to explain why Thailand, under such a remarkable ruler, embraced westernization, two major reasons emerge as the apparent basic causes for such a change. First, voluntary adoption of western laws preserved national autonomy and evaded the colonial powers’ claim of extraterritorial jurisdiction. Second, it was felt that westernization would help Thailand to reach developmental goals such as industrialization, national unification, and social welfare. As a result of westernization, the indigenous concept of the law as a secret science known only to judges was discarded as the country prepared for new law codes. Government officials, as well as students, were sent abroad to Europe to familiarize themselves with western legal systems (Kraichitti 1967).

Consequently, King Chulalongkorn appointed many foreign jurists of different nationalities to help “westernize” the Thai legal system. In 1897, a commission of international reputation was established to draft a penal code. The Penal Code was promulgated in 1908 and remained in force until 1956. This was the first code of Thailand. During the early Rattanakosin period, in fact, “it was a common assumption that Thai law and English law were exactly the same. As a consequence, the majority of manuals and other legal works were written in English and based on English law. Likewise, the procedural law applied in court was forged on English procedure. This brought several Thai lawyers to study in England and to pass the bar examination” (Stasi 2015). Despite the fact that the Penal Code underwent several modifications since 1908, namely, the recodification of 1956, it still remains essentially a western code (Ferguson 1998).2

1.2  C  riminal Law, Public Law, and the Expression of State Sovereignty A crime (in Thai aa cha yaa gam) is often defined as an act committed or omitted in violation of a public law forbidding or commanding it (Kriwichian 2007). This definition, however, only leads to the further question: what is meant by “public” law? This phrase has several well-accepted senses, but none of them seems applicable to criminal law. In fact, if one takes public to be identical with constitutional law, then the abovementioned definition will cover political offenses alone, though they are only an extremely small portion of the whole field of crime. If again one takes public law to include, along with constitutional law, criminal law itself, the definition ceases to define. And if, finally, one adopts the only other familiar sense and consider public law as equivalent to what is now more commonly called “positive law” or “State law” – that is to say, all law which has been made by the public authorities of a State – the definition will obviously become too wide as it will cover every legal wrong (Bergsmo and Ling 2012).

 Interestingly, the Penal Code was drafted in English first and then translated into Thai.

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Another general definition of crime can be found in Dictionary of the Thai Language of the Office of the Royal Society (in Thai rat bandeeta ja).3 According to this definition, a crime is “a violation of the public rights which interferes with the operations of the society.” The traditional legal classification, of course, does not intend to suggest by this that crimes violate no other rights besides public ones for obviously every theft violates some private right of property. This means that a crime is a violation of a right, considered in reference to the negative impact of such violation on society. It may be remarked, however, that this definition introduces a new error, by limiting crimes to violations “of rights,” whereas, as the traditional classification had correctly pointed out, a crime may be a violation either of a right or of a duty. In fact, one remarkable difference between criminal and “civil” (i.e., noncriminal) law lies, as it will be discussed later, in the fact that breaches of the latter always involve an infringement of some definite person’s right, while the criminal law often makes it a legal duty to abstain from various objectionable acts although no particular person’s rights would be violated as a consequence of such act. Instances of this class of crimes in which no one’s legal right is directly violated are quite numerous and are more often found to be of positive legislative enactment. For example, being found in possession of burglars’ tools in the night season or carrying concealed weapons are all acts prohibited and punished by Thai law. These acts are punished as crimes, even though there was no positive intention either to commit a burglarious entry (in Thai gaan yông bao) or an assault (in Thai gaan johm dtee). Criminal law can also be defined as a branch of the law which relates to the definition and punishment of those acts or omissions which are deemed to be (1) attacks upon public order, internal or external; or (2) abuses or obstructions of public authority; or (3) acts injurious to the public in general; or (4) attacks upon the persons of individuals, or upon rights annexed to their persons; or (5) attacks upon the property of individuals or rights connected with, and similar to, rights of property. Crimes, according to this definition, are such breaches of law as injure the society. Now there can be no doubt that if one makes a merely general contrast between crimes, taken as a mass, and the remaining forms of illegal conduct, taken similarly as a mass, the amount of harm produced by the former group will be much greater and much more widespread than that produced by the latter. This fact was observed even so early as in the days of the Roman Empire. Roman jurists who noted this particularly strong tendency of crimes to injure the public called crimes delicta publica.4 Long after this form of trial had become obsolete, and the origin of the term consequently obscure, crimes still continued to be called “public.” And the phrase did not die out with Roman law but, as previously discussed, plays a prominent part in the modern classifications of law. 3  The Royal Society of Thailand, formerly known as the Royal Society of Siam, is an independent government agency in charge of academic works of the government. 4  As a matter of actual history, this phrase was not suggested originally by the rule that any member of the public can prosecute a criminal but by the fact that in early Rome all charges of crimes were tried by the public itself, i.e., by the whole Roman people assembled in comitia centuriata.

1.3 The Dynamics of Criminal Law and Morality

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The use of the term “public” is certainly due to the recognition of the great public mischief which most crimes produce. But would it be accurate to accept it as a foundation for the precise accuracy necessary in a formal definition? Such a definition implies “the whole thing and the sole thing” containing something that shall be true of every crime, and yet not true of any conceivable noncriminal breach of law (Watnasawad 2006). Clearly then it is not correct to define crimes by mere help of the vague fact that they usually cause damage to the society. For every illegal act whatever, even a mere breach of contract, must be injurious to the society, by causing it alarm at least, if not in other ways also. Indeed, had not this been the case, the society would not have taken the trouble to legislate against the act. Moreover, it is not even possible to make the question one of degree and say that crimes are always more injurious to the society than civil wrongs are. For it is easy to find instances to the contrary. For example, it is possible that, without committing any crime at all, a person may by a breach of trust, or by negligent mismanagement of a company’s affairs, bring about a calamity incomparably more widespread and more severe than that produced by stealing a pair of shoes, though that petty theft may still be a serious crime. Indeed, a person’s conduct may amount to a crime even though, instead of causing a damage to the society, it is, on the whole, a benefit. Thus, it would not be correct to say, with anything like that unvarying precision which a definition requires, that a legal wrong is a crime if it tends to cause damage to the society.5

1.3  The Dynamics of Criminal Law and Morality Criminal law in Thailand has often been described in social and political debates as a body of laws which define criminal offenses and impose minimum standards of morality (in Thai: sĕen-lá-tam) on citizens. This is probably the first definition of criminal law that would occur to an ordinary person’s mind: the limitation of the idea of crime to those legal wrongs which violently offend people’s moral feelings. Here again, however, this definition can only be used approximately since it holds good of crimes in the mass, as contrasted with civil wrongs in the mass, but breaks down when one comes to apply it to other instances (Fuller 1942). Hence, for example, the mere omission to keep a highway in repair shocks nobody, but may be an indictable offense, while many grossly cruel and fraudulent breaches of trust are mere civil wrongs. Morality refers to codes of conduct, ethical values, and a sense of social justice that distinguish between right and wrong: although morality greatly influences the rule of law, law always remains separate from morality. Conduct may, of course, be grossly wicked and yet be no breach of law at all (Rattanadara 1990). A person who should cruelly stand by and watch a child drowning in a shallow 5  Hence, to speak of crimes as those forms of legal wrong, which are regarded by the law as being especially injurious to the public at large, may be an instructive general description of them, but is not an accurate definition.

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trough would arouse universal indignation but he/she would have committed neither a criminal nor even a civil wrong. This failure of the most approved tests of criminality that are based on the nature or natural consequences of the criminal acts themselves may provide a further reason to assert that there exists no intrinsic distinction between those acts which are crimes and those which are not. It may nevertheless be possible to trace some extrinsic one. More precisely, there may be some unmistakable difference between the respective legal consequences of these two classes of acts. It would, however, be purely technical, amounting merely to a distinction between criminal procedure and civil procedure. But it would certainly provide some criteria to distinguish between these two and then to define a crime as being an act which gives rise to that kind of procedure which is defined as criminal.

1.4  I ntersection and Coordination Between Criminal Law and Civil Law As can be seen from the definitions above, criminal law is the branch of public law which deals with offenses against the State and determines the punishment to be inflicted. Civil law (in Thai: gòt măai pâeng), in contrast, is the substantive body of private law which includes the fundamental rules of family law, succession law, contract, wrongful acts, property, and company law. Some writers have laid stress upon a difference between the respective degrees of activity manifested by the State in the two cases. In “civil” matters, the State does not interpose until actual wrong has been done; and, even then, it does not interpose unless some private person institutes litigation. No person is allowed to institute it except the one who has been directly injured by the wrong. Again, the attempted distinction fails when one considers that a “civil” proceeding is open to one threatened with irreparable injury, who may sue out an injunction restraining the injurious act. But in criminal matters, on the other hand, every civilized State maintains an elaborate staff of police officials charged with the duty of taking antecedent precautions to prevent offenses from being committed and, if one be committed, a prosecution may always be – indeed in many countries, it can only be6 – instituted by public functionaries, without any cooperation on the part of the person injured. In other words, the law gives every person in the society, whether injured or not, a right to institute a prosecution. This contrast is a clear one and the tendency of modern criminal legislation is to intensify it. Yet it cannot be applied with such unvarying precision as to afford the basis for a definition mainly for two reasons. On the one hand, as has been previously explained, civil proceedings are 6  For example, Article 1 of the French Code d’Instruction Criminelle provides that ‘L’action pour l’application des peines n’appartient qu’aux fonctionnaires auxquels elle est confiée par la loi’. In Scotland, though it is theoretically possible for an injured person to prosecute, such private prosecutions, except in mere petty complaints, have long been obsolete.

1.4 Intersection and Coordination Between Criminal Law and Civil Law

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often taken in order to obtain an “injunction” against some anticipated wrong which has not yet been actually committed. On the other, many offenses that are undeniably criminal are so trivial that the police would not interfere beforehand to prevent them. Again, those “penal actions” which may be instituted by any private person who chooses to turn informer, are classed among civil proceedings. The fact that there exist many private local associations for the enforcement of criminal law serves at least to show that, from a practical point of view, the activity of the State in initiating criminal prosecutions often leaves much to be desired. Furthermore, Thai law operates a distinction between compoundable and non-­ compoundable offenses (Saengarun 1980). While a civil action or infraction is always compoundable and can be punished only upon an action of the damaged part, called plaintiff (jot in Thai) a criminal offense can be compoundable or not compoundable. By the letter of the law and by definition, a compoundable criminal offense is an offense that one can “forgive” renouncing demanding any punishments of the perpetrator and giving up any compensation. If, for instance, somebody deceives you and misappropriate your assets, you can decide whether to prosecute him/her or not or you can renounce to the action even after a trial has started. To make a more blatant example, according to the Thai Penal Code, the crime of “rape” which can be punished with 4–20 years of imprisonment, if it is not committed in public or causing grievous body harm or death, “it shall be a compoundable offence” (Section 281, Penal Code).7 It might, again, be expected that the two procedures could be distinguished by a difference in the courts in which they are employed. Section 45 of the Penal Procedural Code states “A trial before the criminal court does not bar the right of the injured person to file a civil suit.” Notwithstanding this provision, it often happens in Thailand that both criminal and civil proceedings are taken in the same court and before the same magistrates and judges.8 It is important to note, however, that

7  It is important to add that according to Section 36 of the Penal Procedural Code, a criminal prosecution, which has been withdrawn from the court, cannot be re-instituted unless it falls under the following exception:

1. If the public prosecutor institutes a criminal prosecution relating to a non-compoundable offense, and then withdraws the prosecution, such withdrawal shall not debar the injured person from re-instituting prosecution. 2. If the public prosecutor withdraws criminal prosecution relating to a compoundable offense without the consent in writing of the injured person, such withdrawal shall not debar the latter from reinstituting prosecution. 3. If the injured person institutes a criminal prosecution and then withdraws the prosecution, such withdrawal shall not prohibit the public prosecutor from re-instituting prosecution, except in case of a compoundable offense. 8  Also a significant distinction can be drawn when analyzing the concepts of good faith and bad faith under the Penal Code and the Civil and Commercial Code. More precisely, Section 1 of the Penal Code states “To commit an act dishonestly means to do an act in order to procure, for himself or the other person, any advantage to which he/she is not entitled by law,” while Section 5 of the Civil and Commercial Code provides “in the exercise of the rights or the performance of the obligations, every person shall act in good faith.” In the light of these sections, it is possible to draw a

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between the two kinds of proceedings themselves, various points of contrast can be remarked. It is evident, for instance, that the object of criminal procedure always is punishment. The punishment may be a fine, imprisonment, or both. Under Thai law, the convicted offender is made to undergo punishment not for the sake of redress but for the sake of example. For instance, if a criminal is sentenced to ten years’ imprisonment for attempted murder (in Thai gaan pá-yaa-yaam kâa), the public is deterred from behaving similarly for fear of the same punishment.9 In other words, the criminal justice system uses punishment as a prevention tool. The infliction does not provide compensation to the person who has been injured by the crime but is simply a warning – a documentum, as the Roman lawyers called it – to persons in general not to cause such injuries. It must be pointed out, however, that in Thailand, because of the peculiarity of the judicial system, there has been a distinct legislative departure from the idea that the sole object of criminal proceeding shall be the punishment of the wrongdoer. In the cases of violence, robbery, or murder, to make some examples, it is possible to find embodied in the statutory provisions the attempt to compel restitution for the injury done. In case of robbery, the accused upon conviction may be sentenced to pay full value for the property stolen along with other penalties. In civil proceedings, on the other hand, the order which is made against an unsuccessful defendant is usually concerned with no interests but those of the parties to the litigation: the defendant is forbidden to infringe the plaintiff’s rights or, still more frequently, is directed to pay the plaintiff a sum of money in reparation of some right which have been infringed. In assessing that sum of money, courts will usually be guided by the amount of loss the plaintiff has sustained through the wrong, without considering whether or not that amount is large enough to render the payment of it so inconvenient to the defendant as to be a lesson for the future. Furthermore, when one takes a more comprehensive view of civil litigation in Thailand, one finds that there are cases in which a part of its object – and indeed others in which the whole of its object – is to punish. Hence, there is a large class of khadii pheen (ordinary civil cases), in which “exemplary” damages are permitted.10 Where, for example, a plaintiff has been assaulted or slandered or defrauded, the distinction between criminal action and civil claim analyzing the concepts of “honesty” as well as the one of bona fide. 9  On this point Stasi (2015) remarks “The distinction between criminal law and civil law lies in the difference of the corresponding objects which the law seeks to pursue. The main object of criminal law is the prevention of socially undesirable behavior through the punishment of the offenders. In other words, the criminal justice system uses punishment as a prevention tool. On the other hand, in the case of civil law, the object of the law is mainly to redress private wrongs and compensate the victim under less morally charged circumstances. The wrongdoer is not punished. The purpose of the civil law is to compensate the injured party. For example, a customer who slips on the wet floor of a supermarket where there is no warning of the danger might sue the supermarket for damages.” 10  It has sometimes wrongly been thought to be quite easy to distinguish civil proceedings from criminal ones, by saying that punishment is always the purpose of the latter but never the purpose of the former.

1.5 Public Wrongs, Private Actions, and Civil Lawsuits

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judge need not limit the damages to such an amount as suffices to make good his/ her loss. The judge may also consider the degree of violence or oppressiveness or intent of which the defendant has been guilty and give more liberal damages in retribution of it.11 Moreover, that peculiar class of proceedings called penal actions belong, as has been previously stated, to civil procedure; and yet they exist solely for the purpose of inflicting punishment. The law inflicts these penalties from precisely the same motive which leads it to send thieves to jail. This brings, then, to the conclusion that, while punishment is admittedly the object of all criminal proceedings, it sometimes is the object of civil ones also. If the purpose of the legislature, in creating any particular form of litigation, clearly was to punish, this raises a strong probability that the litigation ought to be treated as a criminal proceeding. But it only provides a probability and not that positive certainty which a definition requires. When analyzing the differences between civil sanctions and criminal sanctions, however, it is possible to draw a clear and coherent dividing line between the two procedures. For it may be said that, on the one hand, all civil sanctions, even those of penal actions, directly enrich some individual whether by awarding monetary damages or by ordering the specific performance of some act while criminal sanctions inflict a loss or suffering that never enriches any individual  – though occasionally, as in the cases of fines or confiscations, it may enrich the State.12

1.5  Public Wrongs, Private Actions, and Civil Lawsuits Inasmuch as the difference between crimes and civil injuries does not consist of any intrinsic difference in the nature of the wrongful acts themselves but only in the legal proceedings which are taken upon them, the same injury may be both civil and criminal.13 More precisely, the same wrongful act may be followed up by both civil

 Section 1 of the Penal Code defines acts of violence as follows: “To commit an act of violence” means to do an act of violence against the body or mind of a person, whether it is by physical force or by any other means, and includes any act causing any person to be in a state of being unable to resist, whether it is by using drug causing intoxication, by hypnotism or by any other similar means. 12  This is almost precisely true, but not quite. For among the “penal actions” there are some in which no private person can act as informer, the State alone being permitted to sue and recover the penalty; and yet there is high authority for ranking even these as merely civil proceedings. And, conversely, mere civil actions for debt used often to end not in enriching the plaintiff, but merely in declaring the debtor bankrupt; for if the defendant had no property out of which the amount for which judgment had been given could be realized, his/her person could generally be seized in execution. Until the revision of the book V of the Thai Civil and Commercial Code of 1935, a woman could become slave (mia glang thasi or slave wife) in connection with a debt of bondage (Stasi 2016b). 13  “Tort” is a term not known in Thai language. The Civil and Commercial Code uses instead the expression “wrongful acts” (in Thai: lá-mêrt) in the heading of Title V of Book II of the Civil and Commercial Code to indicate the violation of a legally protected absolute right (Stasi 2015). 11

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and criminal proceedings. For almost every crime admits of being treated as a “tort,” i.e., as a civil injury, so that the person wronged by it can sue the wrongdoer for pecuniary compensation (Saengthian 2003). Generally speaking, every crime is thus also a private injury. It is clear that this cannot be the case with those offenses which do not happen to injure any particular private individual. Of such offenses, there are three groups. There are the cases in which a crime affects the State alone, as where a person makes counterfeit money or securities (Section 240, Penal Code), violates currency regulations (Section 246, Penal Code), or commits an act against the internal security of the kingdom (Section 113, Penal Code). Again, there are the cases in which, though the crime is aimed against a private individual, its course is checked before it has reached the point of doing any actual harm. This is the case, for example, when an intending forger is charged only with “having in his/her possession a block for the purpose of forging a trademark,” or with possessing banknote paper without lawful excuse, or with engraving a banknote plate without lawful excuse. And, thirdly, there are cases in which, though a private individual does actually suffer by the offense, yet this sufferer is no other than the actual criminal who, of course, cannot claim compensation from himself/herself as in cases of attempted suicide, or of a person’s making a “forcible entry” into his/her own house. In, however, the vast majority of cases, the person who commits a crime does thereby cause actual hurt to the person or property of some other person, and whenever this is so, the crime is also a wrongful act.14 Criminal wrongs and civil wrongs, then, are not sharply separated groups of acts but are often one and the same act as viewed from different standpoints, the difference being one not of nature but only of relation (Lee 2015). Therefore, if it is possible to say with certitude that a particular occurrence constitutes a crime, it is easy then to ascertain whether or not such crime is also a wrongful act, by asking if it damages any assignable individual (Watnasawad 2006). But there is no corresponding test which can be applied to wrongful acts to determine whether a particular wrongful act also constitutes a criminal offense. One cannot go beyond the rough historical generalization that wrongful acts have been erected into crimes whenever the lawmaker had come to regard the mere civil remedy for them as being inadequate. Inadequate it may have been on account of their great immorality, or of their great damage to the society, or of the greatness of the temptation to commit them, or of the likelihood of their being committed by persons unable to pay pecuniary damages.

 Although most criminals are thus liable to be sued, in civil proceedings, for pecuniary compensation for the harm which they have done, such proceedings are not often brought as crimes are usually committed by persons from whom no compensation could be obtained.

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1.6 Limits of Criminal Jurisdiction in Regard to Time, Person, and Place

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1.6  L  imits of Criminal Jurisdiction in Regard to Time, Person, and Place Having discussed the substantive law of crime and also that portion of the procedural law which regulates the evidence by which crimes are to be proved, it is time now to consider some of the limitations imposed upon the exercise of criminal jurisdiction. This section will, therefore, analyze the limits of criminal jurisdiction in regard to time, person, and place without going into the study of that technical body of rules and regulations, pursuant to which the commission of a crime is judicially ascertained and the offender is brought to punishment. A thorough knowledge of criminal procedure is of course essential for those who are to follow the legal profession, but it can best be treated as a subject by itself, after the reader has thoroughly mastered a knowledge of the substantive law of crimes. To civil actions, aayu khwaam (lapse of time) may often operate as a bar. This rule is conveniently expressed by the Latin maxim vigilantibus et non dormientibus jura subveniunt (i.e., the law assists those that are vigilant with their rights, and not those that sleep thereupon). This rule, however, can rarely affect a criminal prosecution. The express provisions of the statute of limitations with respect to the prosecution for crimes is regulated under Section 95 and following of the Penal Code. The period of time necessary to elapse before a prosecution is barred is regulated according to the gravity of the punishment that may be imposed (Watnasawad 2006). The lesser petty offenses punishable by short terms of imprisonment or fine are sooner barred than the grave crimes that may be sentenced to long terms of imprisonment in the penitentiary.15 In this regard, Section 95 of the Penal Code states: In a criminal case, if the offender is not prosecuted and brought to the court within the following specified periods of time as from the date of the commission of the offense, the prosecution shall be precluded by prescription: 1. Twenty years in case of offenses punishable with death, imprisonment for life, or imprisonment of twenty years 2. Fifteen years in case of offenses punishable with imprisonment of over seven years but not up to twenty years 3. Ten years in case of offenses punishable with imprisonment of over one year up to seven years 4. Five years in case of offenses punishable with imprisonment of over one month up to one year 5. One year in the case of offenses punishable with imprisonment of one month downward or other punishment

 If the law in force at the time of committing the offense is different from that in force after the time of committing the offense, the law which is, in any way, more favorable to the offender, will be applied, unless the case is final (Section 3, Penal Code).

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However, if the offender has been prosecuted and brought to the court, but the offender escapes, or is insane, and the court gives order suspending the trial until the specified period has expired reckoning from the date of escape, or the date of giving order suspending the trial, it will be deemed that prosecution is likewise precluded by prescription. The statutory period begins to run with the completion of the offense, or if a continuing offense with the last act of the series, and is stopped by the institution of the prosecution, which is held to be the issuance of the warrant of arrest, the examination before the committing magistrate or court, or the finding of the indictment.16 Furthermore, Section 98 of the Penal Code states that if a person convicted by final judgment has not yet undergone the punishment, or has not completely undergone the punishment on account of having made an escape, and such person is not brought to undergo the punishment until the statutory periods of time reckoning from the day of the final judgment, or the day on which the offender has made the escape, as the case may be, the execution of punishment will be precluded by prescription, and the punishment will not be inflicted upon such person.17 It is interesting to note that under Thai criminal law, in case of compoundable offense, if the injured person does not lodge a complaint within three months as from the date of offense and offender to be known by the injured person, the criminal prosecution is precluded by prescription (Section 96, Penal Code). All of these provisions provide that the running of the statutory period is suspended during such time as the accused is absent from the kingdom of Thailand.18 With regard to the territorial limits of criminal jurisdiction, the Penal Code disposes that the kingdom of Thailand exercises its jurisdiction over such persons and property as are within its territory. Section 4 of the Code disposes “Whoever, committing an offence within the kingdom of Thailand, shall be punished according to law. The offence committed in any Thai vessel or airplane irrespective of any place of Thai vessel or airplane shall be deemed as being committed within the kingdom.”19 Thus, the activity of Thailand’s criminal courts is usually confined to those persons who have committed offenses on its own soil or on one of its own ships, and in some  It must be pointed out that if the seizure of property paying the fine or confinement in lieu of fine has been made within five years as from the date of final judgment, neither seizure of property nor confinement shall be made (Section 99, Penal Code). 17  Prosecution will be precluded by prescription: (1). After twenty years in case of a sentence to death, to imprisonment for life or to imprisonment of twenty years; (2). After fifteen years in case of a sentence to imprisonment of over seven years but not up to twenty years; (3). After ten years in case of a sentence to imprisonment of over one year up to seven years; (4). After five years in case of a sentence to imprisonment of one year downward or any other punishment. 18  Some crimes provide that the period shall not begin to run until the commission of the crime has been discovered. 19  In criminal matters, it cannot always exercise jurisdiction over an offender even though he/she actually be within its territory as it is forbidden by international law to try foreigners for any offenses which they committed outside its territorial jurisdiction contrary to the laws of a foreign government. 16

1.6 Limits of Criminal Jurisdiction in Regard to Time, Person, and Place

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cases to those committed by its own citizens against its own laws even while beyond its territorial jurisdiction.20 Likewise, an offense is deemed to be committed in the territory of the kingdom of Thailand when it is partially committed within the kingdom, or the consequence of the offense occurs within the kingdom, or it could be foreseen that the consequence would occur within the kingdom (Section 5, Penal Code).21 Furthermore, it is interesting to note that Section 8 of the Penal Code states that “Whoever commits an offence outside the kingdom shall be punished in the kingdom provided that the offender is a Thai person, and there is a request for punishment by the Government of the country where the offence has occurred.” Accordingly, persons who come into a State’s territory, after having committed a crime elsewhere, usually incur no risk of being punished by the courts of their new country for what they did in their old one. However, in order to counteract this immunity, almost all countries have concluded extradition treaties: mutual arrangements whereby any person who escapes abroad after committing a serious offense may be arrested and then sent to trial in the country where this offense was committed, if it were not a “political” crime.22 International law, although forbidding States to exercise criminal jurisdiction over any foreigner for an offense committed outside their territorial jurisdiction, nevertheless, leaves unlimited their power to punish their own subjects. Yet nations vary in their readiness to exercise this power in respect of crimes which their subjects have committed while away from their native soil. The kingdom of Thailand (like Great Britain, France, and the United States) prefers, in nearly all cases, to adhere to the principle that crimes are local matters, to be dealt with where they are committed. It is competent, however, for a State to punish its own citizens for offenses against its own laws though committed abroad.

 According to Section 11 of the Penal Code “Whoever commits an offence within the kingdom, or commits an offence deemed by this Code as being committed within the kingdom, and, if such person has suffered the punishment in whole or in part for such act according to the judgment of the foreign court, the court may inflict a less severe punishment to any extent than that provided by the law for such offence, or may not inflict any punishment at all, by having regard to the punishment already suffered by such person.” 21  In case of preparation or attempt to commit any act provided by the law to be an offense, even though it is done outside the kingdom, if the consequence of the doing of such act, when carried through to the stage of accomplishment of the offense, will occur within the kingdom, it is deemed that the preparation or attempt to commit such offense is done within the kingdom. 22  By the weight of opinion, there is no obligation upon a sovereign State under the law of nations, in the absence of a treaty provision, to surrender fugitives charged with crime upon the demand of the State from which they have fled. This is regulated by treaties between the nations, in which are enumerated the specific offenses for which each will surrender fugitives upon the demand of the other. 20

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References Bergsmo, M. & Ling Y. (Eds.). (2012). State sovereignty and international criminal law (Vol. 15). Torkel Opsahl Academic EPublisher, Beijing. Ferguson, G. (1998). Asia-Pacific legal development. UBC Press, Vancouver. Fuller, R.  C. (1942). Morals and the criminal law. Journal of Criminal Law and Criminology (1931–1951), 32(6), 624-630. Jayaphorn, C. (2011). The pardoning power of the kings of Thailand before the reform of legal and judicial systems. Thailand Law Journal, 14(2), 105-136. Kabilsingh, C. (1991). Thai women in Buddhism. Parallax Press, Berkeley. Kraichitti, S. (1967). The legal system in Thailand. Washburn LJ, 7, 239. Kriwichian T (2007) Pasa got mai thai [The language of Thai law]. Thammasat University, Bangkok. Lee, A.  Y. (2015). Public wrongs and the criminal law. Criminal Law and Philosophy, 9(1), 155-170. Petchsiri, A. (1986). A Short history of Thai criminal law since the nineteenth century. Malaya L. Rev., 28, 134. Rattanadara S. (1990). Lak Kot Mai Aya [Principe of criminal law]. Samit Press, Bangkok. Saengarun Y. (1980). Kot Mai Aya Phak Nueng [Criminal Law Part One]. Thammasat University, Bangkok. Saengthian B. (2003). Kot Mai Aya Song [Criminal Law Part Two]. Witthaya Phat Press, Bangkok. Stasi, A. (2015). Principles of Thai business law. Cengage, Singapore. Stasi, A. (2016a). General Principles of Thai Private Law. Springer, Singapore. Stasi. A. (2016b). Elements of Thai civil law. Brill, Leiden and Boston. Wales, H. G. (1934). Ancient Siamese government and administration. Bernard Quaritch, London. Watnasawad K. (2006). Kham athibai Kot Mai Aya Phak Nueng [Elements of criminal law]. Chira RatKan Phim Press, Bangkok.

Chapter 2

The Function of Criminal Law in Society

All modern legislatures are constantly being requested to pass enactments punishing some prevalent practice which the petitioners consider to be injurious to the society and which, whether from selfish or from philanthropic motives, they desire to see repressed. A lawmaker, however, is not justified in responding to such requests merely because it is established that the practice in question does really injure legally protected interests. When discussing punishment theory and sentencing purposes in the Thai Penal Code of 1908, the Drafting Committee observed: “the punishments specified in a Penal Code are not revenge – what is unworthy of the society and contrary to the modern sense of justice – but a way to prevent criminal actions, their being committed, and, if to put a stop to the wrong doing from committing” (Petchsiri 1986).1 A criminal correction system should therefore answer the following questions: What is the function of criminal law in society? Must a penalty be proportionate to the gravity of the offense and the degree of responsibility of the offender? When do principles of justice and fairness restrict how punishment can be applied? What is the purpose of criminal punishment?

2.1  The Purpose of Criminal Punishment Before using threats of criminal penalties to suppress a harmful conduct, the legislator has to consider few, but important, points. First of all, the objectionable practice should be productive not merely of damages, but of damages so great as to counterbalance the suffering, direct and indirect, which the infliction of criminal punishment necessarily involves (Lamond 2007). Thus, the legislator will not make 1  See Report on the Revision of the Penal Code of 1908 dated July 28, 1917 by the Committee of Redaction of Siam reproduced in Hooker (1988).

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 A. Stasi, General Principles of Thai Criminal Law, https://doi.org/10.1007/978-981-15-8708-5_2

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a crime of mere lying, unless it has caused a pecuniary loss to the deceived person and thereby becomes aggravated into fraud (in Thai gaan chôr gohng). Second, and relevant to the previous point, the “rule of law should provide in matters both of substance, for example, whether the government should have power to detain citizens without trial, and of procedure, for example, the presumption of innocence in criminal trials” (Peerenboom 2003). Hence, the rule of law should admit of being defined with legal precision and should admit of being proved by clear evidence.2 The untrustworthiness of the only available evidence has been one great cause of the reluctance of experienced legislators to deal criminally with offenses that are purely mental, like heresy and conspiracy and even with those which consist of merely oral expressions, like slander. Moreover, this evidence should be such as can usually be obtained without impairing the privacy and confidence of domestic life. Following the same logic, Thai criminal law does not punish drunkenness as an offense but drunkenness followed by disorderly behavior or when it is seen in a public place (Rattanadara 1990). Accordingly, Section 378 of the Penal Code regulates a specific offense of intoxication in a public place stating “Any person who puts himself/herself in a state of drunkenness by consumption of alcoholic beverage or other intoxicant substance, and comports himself/herself with troublesomeness or senselessness in a public way or public place, shall be liable to a fine not exceeding five thousand baht.”3 Third, even if an offense is found to satisfy all these intrinsic conditions of illegality, lawmakers should not prohibit it, until they have ascertained to what extent it is reprobated by the current feelings of the society. In fact, that reprobation may be sufficiently severe to remove all necessity for those more costly restraints which legal prohibition would impose. It may also occur that in particular circumstances, public opinion may regard an offense so leniently that the fact of a person’s having to undergo legal penalties for it would only serve to secure such person a widespread sympathy as would countervail the deterrent effect of the punishment. To elevate the moral standards of society is undoubtedly one of the functions of the criminal law, but it is a function which must be discharged carefully. In fact, attempts at a rapid and premature elevation are apt to provoke a reaction which defeats their purpose. The criminal laws of a country should be in harmony with the ethical standards of the people. To legislate much in advance of this is always risky and sometimes even dangerous. A penal code of ideal perfection would be worse than useless, until the people had attained an ethical standard of corresponding perfection.

2  On this ground, such vices as ingratitude, or extravagance, or gluttony, do not admit of being punished criminally. 3  “Public place” is defined as a “place to which the public has a right of entry” (Section 1, Penal Code).

2.2  The Philosophy and Politics of Punishment and Sentencing

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2.2  T  he Philosophy and Politics of Punishment and Sentencing Whenever any form of objectionable conduct satisfies the three foregoing elements, it is clear that the legislature should prohibit it. But still the prohibition need not be a criminal one in particular when considering that the kingdom of Thailand houses some of the world’s most crowded prisons. The Thai Penal Code establishes both the content of criminal penalties and the conditions of their application. The main forms of punishment are death,4 imprisonment, confinement, fine, and forfeiture of property (Section 18, Penal Code).5 It would be superfluous cruelty to inflict criminal penalties where adequate protection can be secured to the society by the milder sanctions which civil courts can impose. Thus, breaches of contract have rarely been criminally dealt with: even when intentional, they are seldom characterized by a great degree of violence or any great public risk; or by any great temptation which the fear of an action for damages would not be likely to counterbalance; or by any ill effects to the other contracting party which such an action could not repair (Saengarun 1980). Again, violations of the rights of property, arising from a disregard of contract obligations, are usually sufficiently restrained by the fear of a mere civil sanction, i.e., the payment to the injured person of a sum of money coextensive with the loss inflicted and of a further sum toward the “costs” incurred by the litigation (Watnasawad 2006). Following this logic, Section 56 of the Penal Code states that the court may, when punishment imposed by the court will be an imprisonment for a term not exceeding two years, and when the offender has not been punished or has been punished only for the negligent or petty offense, suspend the sentence after taking into consideration his age, behavior, intelligence, education, training, health, condition of mind, habits, occupation, and environment, and then release him with or without conditions so as to give him an opportunity to reintegrate himself into community within a period of not exceeding five years since the date of the judgment. By the same token, in certain cases the Penal Code imposes less stringent measures of punishment known as “measures of safety.” In this regard, Section 39 of the Penal Code clarifies that “The measures of safety are as follows: restriction ,6 prohibition from entering a

4  Under Thai law, the capital punishment and life imprisonment are not enforced when the offender is less than eighteen years of age. In such cases, the punishment is replaced with imprisonment for fifty years. 5  Electronic monitoring (EM) bracelets for offenders are not in use in Thailand. 6  Section 40 of the Penal Code adds “Restriction is a detention of a habitual criminal offender within a specified area in order to prevent him/her from committing offenses, to reforming one’s character, and for training one’s occupation.”

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particular area,7 execution of a bond as security for keeping the peace,8 to restraint in a hospital9 and prohibition from carrying on certain occupations.”10 Conversely, there are other forms of wrongdoing upon which the fear of damages and cost do not impose an adequate restraint. Hence, the case may be one in which the offender belongs to a class too poor to have the means of paying pecuniary compensation. Or the harm done to the immediate victim of the crime (in Thai phuu sia haai) may be such that it cannot be redressed by pecuniary compensation as in the case of murder. Or, as is far more commonly the case, the gravity of the offense, or the strength of the temptation to it, may be such that every instance of its commission causes a widespread sense of insecurity and alarm. In this regard, the Penal Code states that the court has power to increase punishment by one-third or one-half, as the case may be, if the offender commits crime again (Dhamdusdi 1976). In that case there is, beyond the immediate and direct victim who has been robbed or wounded, an unknown group of “indirect” sufferers who, if only because they are unascertainable, cannot have pecuniary compensation for the suffering that has been caused to them. In such cases the lawmaker must adopt some more stringent remedy. Accordingly, if the offender has committed several criminal offenses by one act, the total sentence is constructed by enhancing the severest punishment. If it appears that any offender has committed the several distinct and different offenses, the court will inflict the punishment prescribed for each offense. Section 91 of the Penal Code adds “whether there shall be increase of the punishment, reduction of the punishment or reduction in the scale of the punishment, or not, the total punishment of every offence must not exceed the following determination: ten years in case of the severest offence to have the rate of the maximum punishment of imprisonment not exceeding three years; twenty years in case of the severest offence to have the rate of the maximum punishment of imprisonment exceeding three years 7  Under Section 44 of the Penal Code prohibition to enter a specified area is the “prohibition to enter a locality or place specified in the judgment.” 8  Executing a bond is a measure of safety defined and regulated under Section 46 of the Penal Code which states “If it appears to the court, by the submission of the public prosecutor, that any person is likely to cause danger to another person or to the property belonging to another person, or if, in the trial of any case, the court will not convict the prosecuted person, but there is reason to believe that the prosecuted person is likely to cause danger to another person or to the property belonging to another person, the court shall have the power to order such person to execute a bond in a sum of money not exceeding fifty thousand baht, with or without security, for keeping the peace during such period as determined by the court, but not exceeding two years.” 9  In this regard Section 48 of the Penal Code disposes “If the court is of opinion that the liberation of any person having a defective mind, mental disease or mental infirmity, who is not punishable, will not be safe for the public, the court may give order to send such person to be put under restraint in an institution of treatment. This order may, however, be revoked at any time by the court.” 10  Interestingly, Section 50 of the Penal Code specifies that “When the court deems that an offence is committed by a person taking the opportunity of carrying a particular occupation or profession, and the court believes that such offence will be committed again by such person if such person carries on his/her occupation or profession further, then the court may issue an order in the judgment prohibiting such person to carry his/her occupation or profession for a period not out of five years as from the date of passing over the punishment.”

2.3  Constructing Criminal Liability

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upwards, but not more than ten years; fifty years in case of the severest offence to have the rate of the maximum punishment of imprisonment exceeding ten years upwards, unless in the case where the court inflicts upon the offender the punishment of imprisonment for life.”

2.3  Constructing Criminal Liability To check an offense by thus associating with the idea of it, a deterrent sense of terror is possible only when both of two conditions are present: a specified state of mind and the performance of a prohibited act. These two conditions must occur together. First, the wrongdoer must know he/she is doing wrong otherwise the rule of law would not affect and deter individual perpetrators (i.e., mens rea). It is on this ground that immunity from punishment may be conceded to individuals who have taken another’s property by mistake for their own or have committed a murder in a fit of insanity. Nor does it suffice that they know that what they are doing is wrong, unless also they can “help” doing wrong. This second condition is defined as the criminal act or actus reus. It means that a person cannot be punished for acts which he/she was not, both physically and mentally, capable of avoiding since the fear of punishment could not have the effect of making the offender avoid them. Thus, comes the reluctance which lawmakers have often shown to punish individuals who have been coerced by threats of death (in Thai gaan kòm kòo) or who have been hurried into a theft by some kleptomaniacal impulse. When these two conditions are satisfied, so that the restraint of terror becomes justifiable, such a restraint is supplied by criminal law very efficiently. In fact, as has been previously noted in the section regarding the peculiarities which seem to distinguish criminal procedure from civil, the former exposes the offender to more numerous hazards of having litigation instituted against him/her, as well as to far severer “sanctions” in case of that litigation succeeding and, at the same time, it reduces his/her chances of having these penalties remitted. Following the same logic, Thai lawmaker treats recidive very seriously. According to Section 92 of the Penal Code, whoever is found guilty of recidive within five years from the sentence he/she is found guilty and will be liable to the punishment prescribed for the second offense increased by one-third. In the case where the offender commits a crime for the third time, the court may also impose relegation (Dhamdusdi 1976). This section, however, does not apply to offenses committed by negligence, petty offenses, and those offenses done by a person who has not reached the age of seventeen (Thanyaphanit 1988).

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2.4  Y  ee-Tok and the Proportion Between Crime and Punishment Criminal punishment has a number of features. It may act on the body of the offender, so as to deprive the offender, either temporarily or permanently, of the power to repeat the offense (i.e., imprisonment or death sentence). It may also act on the offender’s mind, counteracting his/her criminal habits by the terror it inspires, or even eradicating them by reeducating the offender. The improvements in prison management, which have been carried out during the past century, have been only in small part directed toward the development of the educational influences that can be thus attempted during imprisonment (Phatininnart 2009). There are indeed some criminologists in Europe and America but not in Thailand, who hold this reformation of the individual punished to be the only legitimate object of punishment (Ua-amnoey and Kittayarak 2004).11 In the Thai context, however, this is considered as an extreme view which denies to the State so simple and obvious a right as that of self-­ preservation.12 Thai correctional institutions are infamously known around the world for being overcrowded, brutalizing, and unhygienic. Only few provide rehabilitative services to prisoners as it is a common belief in the country that criminal law cannot amend offenders by education. Offenders must be deterred by fear.13 Beyond this highly contested object of punishment, it may be questioned whether there are not two further purposes which the legislator may legitimately desire to attain as results, though only minor results, of punishment. One of these, criticized by a large number of scholars, is the gratification of the feelings of the persons injured. Under the Kotmai Tra Sam Duang, this was undoubtedly an object, often indeed the paramount object, of punishment.14 Nowadays society views these feelings of resentment with disapproval. Yet some eminent utilitarians have considered them not unworthy of having formal legal provision made for their gratification. And a very general, if an unconscious, recognition of this view may be found in the common judicial practice, in minor offenses, of giving a lighter sentence whenever the prosecutor (ai-yá-gaan) “does not press the case.”15 The modern society, like those ancient ones, measures here its own public vengeance by the resentment  It must be noted, however, that Dhamdusdi (1976), prominent judge of the criminal court, noted “one important factor that the court should take into consideration in passing a sentence is the possibility of an offender to become a good citizen.” 12  It may, in addition, act on the minds of others, if only in one of the ways in which it may act on the offender’s mind. In fact, though it cannot amend them by education, it may at least deter them by fear. It is in this way only that pecuniary penalties help to prevent crime. 13  According to the Institute for Crime & Justice Policy Research, Thailand has the sixth highest incarceration rate in the world with a prison population of almost 400.000 people (Walmsley 2016). 14  Even in Imperial Rome, hanging in chains was regarded as a satisfaction to the kindred of the injured, ut sit solatio cognatis. 15  In Thailand, public prosecutors are officials under the office of the attorney general and their functions are regulated under the Public Prosecution Organ and Public ProsecutorsAct B.E. 2553 (2010). 11

2.4  Yee-Tok and the Proportion Between Crime and Punishment

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which the victim of the crime entertains. The right to punish remains founded, in part at least, upon the idea of restorative justice: pain must follow the wrongdoing. As explained in a previous work (Stasi 2015), “courts, when giving judgment as to the liability for wrongful acts and the amount of compensation, are not be bound by the provisions of the criminal law concerning liability to punishment or by the conviction or non-conviction of the wrongdoer for a criminal offence. As a practical matter, however, the plaintiff often decides to threaten the defendant with criminal actions so as to obtain leverage in the extra-judicial negotiations with him. Only if the defendant pays compensation, may the injured party agree to withdraw the criminal charges.” There is another purpose of punishment, perhaps as equally criticized by modem opinion as the foregoing one, and almost equally often ignored by modern jurists. This consists in the effects of punishment in elevating the moral feelings of the society at large. For individuals’ knowledge that a wrongdoer has been detected, and punished, gratifies, and thereby strengthens, their disinterested feelings of moral indignation. During the Ayutthaya period, the Thai criminal system brought into great prominence this effect of punishment. For more than two centuries ago, the tendency of jurists has been to disregard it but it occupies a large place in the judgment of ordinary persons.16 And accepted judicial practice, when carefully examined, contains much to corroborate this view and to show that prevention is not the sole object of punishment (Kriwichian 2007). For were it so, then an obstinate and incorrigible offender should go free, instead of being the most severely punished of all. Moreover, if prevention be all, then one should have to consider force of temptation as being always be a reason for increasing the punishment; yet judges have generally made it a ground of extenuation, as when thieves plead that they stole to satisfy their hunger. Indeed, the sense of ethical retribution seems to play a part even in non-criminal law. Vivid proofs of the influence formerly exercised on criminal law by this idea of ethical retribution may be found in the fact that it sometimes drove the courts into the illogical excess of punishing, from mere blind association of ideas, “crimes” committed by non-ethical agents.17 On the other hand, the fact that temptation (in Thai gaan pá-yaa-yaam) does not always extenuate, but that in some classes of offenses, especially political and military ones, lawmakers often make it a reason for threatening a graver punishment, shows that the principle of ethical retribution is not the only one that guides them and that they take account also of the necessity of prevention. A further proof may be found in the comparatively severe punishment inflicted on criminals who through  Modern criminal law has long outgrown the stage at which the normal reparation given to the injured consisted in retribution inflicted on the wrongdoer. 17  Instances occur in the medieval punishments sometimes inflicted on animals; and in the “piacularity” attached in ancient Greece to even inanimate instruments of death, as when, according to Pausanias, the Prytanes at Athens condemned to penal destruction lifeless objects that had accidentally slain a man. The same unreasoning association of ideas lead even modern statesman to urge that even criminals who were insane should nevertheless be punished “for instance’s sake.” 16

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mere negligence (e.g., a careless driver), or through intoxication (e.g., a mother overlaying a child in drunken sleep), so that the purely ethical blame is small, have caused some serious injury. The same lesson is taught, too, on the other hand, by some cases where the divergence from mere ethics is in the opposite direction as in the rules that mere intention to commit a crime is never punished and that even the attempt to commit it is punished but slightly. For in either case the ethical guilt may be just as great as if the criminal act would have been committed.18 It cannot, however, be said that the theories of criminal punishment current among either Thai judges or Thai legislators have assumed, even at the present day, either a coherent or even a stable form. To this, in part, is due the fact that the practical methods of applying punishment are largely based on a judicially self-­ imposed form of sentencing guidelines called yee-tok. The yee-tok can be defined as an instrument which is used in order to reduce the disparity of sentencing and regulates essential aspects of the sentence such as the length of a defendant’s incarceration, the type of crime, the nature of the conditions to be imposed, and the amount of the fine to be paid for each infringement. As a practical matter, however, Suparp (2005) remarks that “most of the judges restrict themselves to the guidelines stated in yee-tok, without searching for additional facts and consider it as part of their exercise of discretion on the imposition of punishment, proper for each individual case. It appears that the majority of Thai judges put more emphasis on the process of adjudicating guilt than that of sentencing. For example, in the discussions of the judicial panel, judges underline the adjudication of guilt to be the main issue of discussion. Any consideration of the sentencing issue becomes insignificant. The justification of this may be the lack of data in relation to the facts obtained during trial or the attitude of judges who believe that sentencing is only the process of complying with yee-tok and remaining within the scope of the law…The current situation is that most of the Judges pass their sentences in accordance with yee-tok, from the need for speed, convenience, the unbalance between the number of judges and the caseload and to protect themselves from any disciplinary investigation. If the judge passes a sentence inconsistent with the yee-tok, he may be blamed or claimed by the others to have a conflict of interest or be involved in corruption. Therefore, courts have to adhere to the yee-tok as the key handbook for sentencing, without being too active in searching for any relevant facts and theories that might be to be applied to the sentence. The effect of this is inappropriate sentencing and inconsistency with the theories of punishment.”

 In French law, an attempt to commit any grave crime, which has miscarried only through circumstances independent of the criminal’s own will, is punishable as severely as the consummated offense.

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References

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References Dhamdusdi, R. (1976, February 24–March 27). Development of Sentencing Structure and Policy in Thailand [Presentation at Seminar Course]. 42nd Seminar course on the formation of a sound sentencing structure and policy, Denver, United States. https://www.ncjrs.gov/App/ Publications/abstract.aspx?ID=45386 Hooker, M. B. (1988). The laws of Southeast Asia, Volume 2: European laws in Southeast Asia. Singapore: Butterworths. Kriwichian T (2007) Pasa got mai thai [The language of Thai law]. Thammasat University, Bangkok. Lamond, G. (2007). What is a Crime?. Oxford Journal of Legal Studies, 27(4), 609–632. Peerenboom, R. (Ed.). (2003). Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the US. Routledge, London. Petchsiri, A. (1986). A Short history of Thai criminal law since the nineteenth century. Malaya L. Rev., 28, 134. Phatininnart, C. (2009). Non-formal education services for prison inmates in Thailand. Convergence, 42(2–4), 239. Rattanadara S. (1990). Lak Kot Mai Aya [Principe of criminal law]. Samit Press, Bangkok. Saengarun Y. (1980). Kot Mai Aya Phak Nueng [Criminal Law Part One]. Thammasat University, Bangkok. Stasi, A. (2015). Principles of Thai business law. Cengage, Singapore. Suparp, U. (2005). The philosophy of criminology when sentencing in Thai courts: A case study of intentional, negligent and provoked criminals. Journal of Science, 3(1), 33–41. Thanyaphanit W. (1988) Yo Lak Kot Mai Aya [Summary of criminal law]. Nititham Press, Bangkok. Ua-amnoey, J., & Kittayarak, K. (2004). Restorative justice: a paradigm shift in the Thai criminal justice system. Corrections Today, 66, 86–91. Walmsley, R. (2016). World prison population list. London, UK: World Prison Brief. Institute for Criminal Policy Research. Watnasawad K. (2006) Kham athibai Kot Mai Aya Phak Nueng [Elements of criminal law]. Chira RatKan Phim Press, Bangkok.

Chapter 3

Actus Reus and Mens Rea

It has already been discussed in Chap. 1 how closely the moral element is interwoven with that of legal crime, not only in the criminal law of early periods but also in that of the present day. Thus, to constitute a crime and subject the offender to a liability to punishment, i.e., to produce legal criminal “guilt” (or “imputability”), a mental as well as a physical element is necessary.1 Like the continental criminal law, the Thai law requires both an actus reus (in Thai gaan grà-tam nai sìng têe pìt gòt măai) and a mens rea (in Thai jìt jai têe chûa ráai). Actus reus means guilty act and refers to the objective element or the external element of a crime. Mens rea, or guilty mind, refers the culpable state of mind of the individual committing the prohibited criminal act. Accordingly, every crime involves a particular physical condition2 and particular mental condition causing this physical condition.3

3.1  The Notion of Imputability in Criminal Law It is interesting to observe that in ethics, the mens rea would of itself suffice to constitute guilt. But there is no such searching severity in the rules of law. They, whether civil or even criminal, never inflict penalties upon mere internal feeling, when it has produced no result in external conduct. So, a merely mental condition is practically never made a crime. If a person takes an umbrella from a stand at a golf club, 1  Hence, to use a maxim which has been familiar to lawyers for nearly eight hundred years, actus reus non facit reum nisi mens sit rea (an act is not necessarily a guilty act unless the accused has a guilty mind). 2  The traditional classification calls it “a vicious act.” As, however, it may consist of inaction the term “conduct” would be more appropriate. 3  The traditional classification calls it “a vicious will.” It is not, however, a “will” or a “motive” but is closely akin to, and includes, his “intention” (in Thai: jàyt-dtà-naa).

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 A. Stasi, General Principles of Thai Criminal Law, https://doi.org/10.1007/978-981-15-8708-5_3

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meaning to steal it, but finds that it is his/her own, such person commits no crime. It is true that there appears at first sight to be an important exception to this principle, in that form of keeping secret an intention to commit offenses against the King, the Queen, the Heir apparent, and the Regent. But the exception is only apparent for the Penal Code goes on to make it essential to a conviction that some “act” should have been committed toward accomplishing the end contemplated. In this regard, the second part of Section 108 of the Code disposes that making “preparations” for committing an act of violence against the King or His liberty, or assisting in keeping secret any intention to commit such offense, entails a sentence of up to twenty years.4 Another apparent exception is represented by the crime of conspiracy. Section 210 of the Penal Code states “Whenever five persons upwards conspire to commit any offence provided in this Book II and punishable with maximum imprisonment of one year upwards, every such person is said to be a member of a criminal association, and shall be punished with imprisonment not exceeding five years or fined not exceeding one hundred thousand baht, or both.”5 Although conspiracy itself is a purely mental state – the mere agreement of five persons’ minds – and it is not necessary to a conviction that any act should have been done toward carrying out the agreement, it would be impossible for five individuals to come to an agreement without communicating to each other their common intentions by speech or gesture, and thus even in conspiracy a physical act is always present (Saengthian 2003). A still greater divergence from ethics will be remarked, if one turns from the criminal to the noncriminal branches of law as they often inflict their sanctions on mere external conduct, which is not the result of any blamable state of mind. For example, in breaches of contract, the mental and moral condition of the defaulter has no effect upon the question of contractual liability or non-liability unless the very language of the contract implies that it can only be broken by some act which is willful. And, likewise, if the defaulter be liable, the willfulness of his/her conduct will not affect the amount of the damages to be recovered. To take another example, in wrongful acts the mental condition of the wrongdoer is ignored very largely. But not so universally as in the law of contract as there are a few classes of wrongful acts in which it is an indispensable element of liability. In all of the remaining classes, namely, the wrongful acts in which liability can exist without willfulness, the mental condition still may be considered in estimating the amount of the damages.

4  By the same token, Section 109 of the Thai Penal Code states “Whoever causes death to the Queen, the Heir-apparent or the Regent shall be punished with death. Whoever attempts to commit such offence, shall be liable to the same punishment. Whoever makes preparations for causing death to the Queen, the Heir-apparent or the Regent, or does any act to assist in keeping secret any intention to commit such offence, shall be punished with imprisonment of twelve to twenty years.” 5  If it is a conspiracy to commit an offense punishable with death, imprisonment for life, or imprisonment from ten years upward, the offender shall be punished with imprisonment of two to ten years and fined of four thousand to two hundred thousand baht.

3.2  The Concept of Mens Rea Under Thai Law

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3.2  The Concept of Mens Rea Under Thai Law Under Thai criminal law, as has been previously noted in Chap. 2, no external conduct, however, serious or even fatal its consequences may have been, is ever punished unless it has been produced by some form of mens rea. It is not, indeed, necessary that the offender should have intended to commit the particular crime which he/she has committed; perhaps not even that he/she should have intended to commit any crime at all. In all ordinary crimes, the psychological element which is thus indispensable may be fairly accurately summed as consisting simply in “intending to do what one knows to be criminal” (Watnasawad 2006). More precisely, it requires the power of volition (i.e., the faculty of deliberate and conscious action) and the knowledge that what the offender is doing is criminal. Volition is absent in persons who are asleep, or are subject to physical compulsion or to duress by threats, or whose conduct is due to accident or ignorance. It is also absent in some cases of insanity, of drunkenness, and of minority. Where it is absent, an immunity from criminal punishment will consequently arise. Knowledge of the conduct refers to the ensemble of forms of knowing either intrinsically or in prospect of such consequences as he/she has grounds for foreseeing.6 In such crimes as consist of conduct that is not intrinsically unlawful, but becomes criminal only when certain consequences occur, there must further be the power of foreseeing these consequences. It is sufficient that individuals merely had this power, i.e., that they would have expected these consequences had they paid proper attention to their surroundings. In case, however, a person actually foresees the consequences of his/her actions and, at the same time, desires them (i.e., intended them “directly”), the law will impose on him/her a major liability.7 It might seem that a rule thus rendering the existence of a complex mental element necessary to create legal liability would usually cause a prosecutor much difficulty in obtaining evidence of it. But this difficulty seldom arises in practice as, in most cases, the law regards the criminal act itself as sufficient prima facie proof of the presence of this mens rea. Every sane adult is presumed to intend the natural consequences of his/her conduct. It has already been pointed out that criminal responsibility may exist although the offender had no intention to commit the particular crime which he/she did in fact commit and that an intention to commit any crime, whatever one it may have been, will suffice (Rattanadara 1990). It should now be added that it is probable that the law must be understood as carrying its prohibitions even further than this and permitting a still slighter degree of mens rea to suffice, viz., an intention to commit some act that is wrong, even though it does not amount to a crime. A further question will then arise as to what standard of right and wrong is to be referred to – must 6  There will be an absence of such knowledge in very early minority and immunity, accordingly, will arise. 7  The power of foresight may be absent in minority, even in late minority, and in some forms of insanity.

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the intended act be a breach of law or will it be sufficient that the accepted rules of morality forbid it? To answer this question, one can say that criminal mens rea is exhibited only when there is an intent to commit some criminal offense. In other words, an intention to do anything that is legally wrong, even though it is no crime but only a wrongful act, is a sufficient mens rea. In this respect, Section 64 of the Penal Code contains a clear affirmation of the basic principle of ignorantia legis non excusat: “A person shall not be excused from the criminal responsibility committed by ignorance of law.”8 It follows that the requirement of mens rea is not met in all those cases where there is an intention to do anything that is morally wrong, even though it is quite innocent legally.9 Section 64, paragraph 2, of the Penal Code, however, provides a reduction of the penalty for “those whose ignorance of law deserves a lesser punishment considering the nature or circumstances of the case. It also opens the way for remitting altogether the penalty of those whose honest belief sufficiently excuses them” (U.S. Senate 1972). It states “If the court is of opinion that, according to the conditions and circumstances, the offender may not have known that the law has disposed such act to be an offense, the court may allow him/her to produce evidence before it and inflict a less severe punishment than that provided for by the law for such offence.” This approach, contrasting with the one taken by European civil law countries, allows a person who acts without knowing that his/her acts are not permitted by law, to be excused if there is adequate reason for such ignorance.10

3.3  Special Intention Having discussed the degree of mens rea required in the general criminal law, it is time now to consider some particular categories of crimes, usually grave ones, in which a greater degree is necessary as well as other types of crimes, usually of a petty character, in which a lower degree is required. This section will thus proceed to consider these two extremes. 8  This is to say that a person’s conduct cannot be excused by the fact that he/she did not know, and had no reasonable grounds for supposing, that a particular action constituted a criminal offense. 9  If this last opinion be correct, the rule as to mens rea will simply be that any person who does any act which he/she knows to be immoral must take the risk of its turning out, in fact, to be also criminal. 10  This approach appears to be very similar to the one taken by other Asian countries. To take an example, the Penal Code of the Republic of Korea states: “Where a person commits a crime in the belief that his/her conduct does not constitute a crime under existing law, he/she shall not be punishable provided that the mistake is based on reasonable grounds.” By the same token, the Penal Code of the People’s Republic of China describes the test of the mistake of law according to the following terms: “Ignorance of law shall not discharge a person from criminal liability provided that the punishment may be reduced according to the nature and circumstances of the case. If, however, the offender honestly believed that his/her act was permissible by the law and can give a good reason for such belief, the punishment may be remitted.”

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A more complex and special and therefore guiltier state of mind than the usual mens rea is required for some particular crimes; sometimes by case law, as in the case of murder, what is technically called “criminal intent” being there necessary, and sometimes by law, as in the cases of wounding “with intent to disfigure” and of wounding “with intent to do grievous bodily harm.” But with regard to statutory crimes, it should be noted that although the definitions of them often contain words specifying some mental condition such as “knowingly,” “maliciously,” “willfully,” “negligently,” and “fraudulently,” yet such words do not usually add in any way to the degree of the mens rea requisite. Generally, they merely alter the burden of proof with regard to it. For their effect is to throw on the public prosecutor the obligation of proving the ordinary mens rea by further evidence than that mere inference from the actus reus which is ordinarily sufficient to prove it. Such evidence may consist, for instance, in expressions of vindictive feeling, or in previous injurious acts nearly identical with the present one thus excluding the probability of accident or carelessness or ignorance. Conversely, in some particular instances the law requires a less complex and less guilty state of mind than the usual mens rea. Such offenses deserve consideration, not only because of their singular character, but also because they are steadily increasing both in number and in importance. These offenses are characterized by the fact that the penalty incurred is not great (usually not more than a petty fine), but the damage caused to the public by the offense is, in comparison with the penalty, very great, and, at the same time, the offense is such that there would usually be great difficulty in obtaining adequate evidence of the ordinary mens rea, if that degree of guilt were to be required. Hence, where on ordinary principles there would be no guilt unless the accused actually knew all the circumstances under which he/ she acted (or, at any rate, had willfully and deliberately abstained from coming to know them), exceptional provisions sometimes make a person guilty if, before acting, he/she merely failed to take effective care to obtain knowledge of the circumstances. An example of this exceptional kind of criminal responsibility is represented by Section 236 of the Penal Code which applies to sale of adulterated articles of food: “Whoever adulterates an article of food, drug or any other thing intended for human consumption or use, and such adulteration is likely to cause injury to health, or sells or exposes for sale such adulterated article for human consumption or use, shall be punished with imprisonment not exceeding three years or fined not exceeding sixty thousand baht, or both”.11 In these cases, from the difficulty of obtaining legal evidence of the offender’s knowledge of one portion of his/her actus reus (e.g., the adulteration of the food), something much less than actual knowledge is allowed to suffice in respect of that portion. But for all the rest of the actus reus (e.g., the selling, or the supplying), an ordinary mens rea is still necessary. That is to say, offenders must have actually  Likewise, selling intoxicating liquor to a drunken person, or to a minor though without knowing that the person was drunk or under age, falls within the same category. The legislative intent should clearly so appear, to justify such a construction of a provision as would impose criminal liability upon one for acts done without his/her knowledge or contrary to his/her instructions.

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known that they went through the act of selling though it will suffice that they merely neglected the means of coming to know that the butter sold was adulterated, or the purchaser of the whisky was intoxicated or under age. A still slighter degree of mens rea is allowed to suffice in those cases where parents are by law made liable to punishment for some act committed by their child. To punish the parents is a startling departure from the general rule of law. In fact, the utmost moral blame that can be imputed to them is the omission of not having kept the child under constant supervision. In this regard, Section 77 of the Penal Code disposes that in the case where the court imposes a stipulation requiring the parents, guardian, or the person with whom the child resides to take care that the child does not cause any harm, if the child causes any harm within the prescribed time, the court has the power to compel the parents, guardian, or the person with whom such child resides to pay a fine.12 The same logic applies to tort liability: parents and guardians of a minor, an incapacitated person, or a person of unsound mind are jointly liable with them, unless they can prove that proper care in performing the duty of supervision has been used. More precisely, Section 429 of the Civil and Commercial Code states that a minor is liable for the consequences of his/her wrongful act and is parents are jointly liable, unless they can prove they used proper care in performing their duty of supervision. As it has been explained in a previous work (Stasi 2015) “in these cases, the legislator indirectly refers to the reasonable person standard. In fact, the standard of care of a supervisor is strictly related to the concept of reasonable person. Standard of care and the reasonable person standard both represent standards of right decision making and right action within the law of torts. Reasonableness is very context-sensitive in terms of what is reasonable to assert, to do, to determine, or to doubt in a definite case. There may be several aspects that have to be measured and evaluated in judging the reasonableness of an act in its specific context.”

References Rattanadara S. (1990). Lak Kot Mai Aya [Principe of criminal law]. Samit Press, Bangkok. Saengthian B. (2003). Kot Mai Aya Song [Criminal Law Part Two]. Witthaya Phat Press, Bangkok. Stasi, A. (2015). Principles of Thai business law. Cengage, Singapore. U.S.  Senate. (1972). Reform of the federal criminal laws. Ninety-second Congress, first session, volume 10. United States, Subcommittee on Criminal Laws and Procedures under the Committee on the Judiciary. Watnasawad K. (2006) Kham athibai Kot Mai Aya Phak Nueng [Elements of criminal law]. Chira RatKan Phim Press, Bangkok.

 If the parents, guardian, or the person with whom such child resides fail to pay the sum of money, the court may give order to seize the property of the parents, guardian, or the person with whom such child resides for payment of what must be paid.

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Chapter 4

Excusatory and Justificatory Defenses

It has already been seen that mens rea, in some shape or other, is a necessary element in every criminal offense. If this element is absent, the commission of an actus reus produces no criminal liability. Under the Thai Penal Code, the defenses are enumerated in Sections 65 to 79. Thai legal scholars make a distinction between the subjective defenses hàyt yók wáyn tôht (i.e., excusatory defenses) and the objective defenses kwaam chôp dûay gòt măai (i.e., justificatory defenses) though this distinction is not expressly mentioned in the Code. An excuse is based on the defendants’ personality or mental health. Justificatory defenses focus on the surrounding circumstances in which the offense was committed. According to legal classification of the various conditions which in point of law exclude the presence of a guilty mind, there are five groups of cases of exemption which deserve mention. These are mental illness, minority, necessity, constraint, mistake of fact, and other extenuating circumstances. Justificatory defenses are related to the external context and remove criminal responsibility as well as civil liability (Reed and Bohlander 2016). Thai criminal law regards the three following cases as being strictly justifiable and therefore as involving no legal penalty whatever: order of a legitimate authority, necessity, and legitimate defense. The excusatory defenses will be considered, followed by the justificatory defenses.

4.1  Hàyt Yók Wáyn Tôht At the heart of the hàyt yók wáyn tôht (Thai criminal excusatory defenses) is the logic that a criminal sanction cannot be imposed in the following situations: mental illness, the defense of being a minor, necessity, constraint, mistake of fact, and other extenuating circumstances.

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 A. Stasi, General Principles of Thai Criminal Law, https://doi.org/10.1007/978-981-15-8708-5_4

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(i) Mental illness. Under Thai criminal law, the absence of “will” may arise from a morbid condition of mind. Section 65 of the Penal Code states that whenever any person commits an offense when at that time not being able to appreciate the nature, or illegality of his/her act (mâi săa-mâat rapit chôp) or not being able to control himself/herself on account of defective mind (mee jìt bòk prong), mental disease (rôhk jìt) or mental infirmity (jìt fân feuan), such person shall not be punished for such offense.1 It must be pointed out that this section does not imply, as a widespread popular error imagines it to imply, that the mere existence of insanity is of itself necessarily sufficient to exempt the insane person from criminal liability. Only insanity of a particular and appropriate kind will produce any exemptive effect.2 Not only popular opinion but even the opinion of medical experts inclined at one time to the view that the presence of any form whatever of insanity in the person who has committed a criminal act should be legally sufficient to afford him/her immunity from punishment. But of late years, the accumulated results of a careful observation of insane patients in various countries has thrown clearer light upon the mental processes of the insane and has brought back medical opinion into closer accord with the views of lawyers. The world, it is now recognized, is full of men and women in whom there exists some taint of insanity, but who nevertheless are readily influenced by the ordinary hopes and fears which control the conduct of ordinary people. To place such persons beyond the reach of the fears which criminal law inspires would not only violate the logical consistency of modern criminal justice system theories but would also be an actual cause of danger to the lives and property of all their neighbors (Rattanadara 1990). The law therefore defines insane persons as those individuals affected by “psychological or neuro-psychological illness” over whom the threats and prohibition of the criminal law would exercise no control, and on whom therefore it would be gratuitous cruelty to inflict its punishments. Every person is presumed to be sane, and to possess a sufficient degree of reason to be responsible for his/her crimes, until the contrary is proved to the satisfaction of a court. To establish a defense on the ground of insanity, it must be clearly shown that, at the time of committing the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he/she was doing, or if the party accused did know this, not to know that what he/ she was doing was wrong. If the accused was conscious that the act was one which he/she ought not to do, and if that act was at the same time contrary to the provisions of the law, the accused will be punishable. Hence, the test is the power of

1  Section 65, paragraph 2, of the Penal Code adds “If the offender is still partially able to understand the nature or illegality of his/her act, he/she shall be punished for such offence, but the court may inflict a less severe punishment to any extent than that provided by the law for such offence.” 2  Lunatics, for example, are usually capable of being influenced by ordinary motives, such as the prospect of punishment; they usually plan their crimes with care and take means to avoid detection.

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distinguishing between right and wrong, not in the abstract, but in regard to the particular act committed. It is important to add that, where a criminal act is committed by people under some insane belief as to the surrounding facts, which conceals from them the true nature of the act they are doing, they will be under the same degree of responsibility as if the facts with respect to which the belief exists had been as they imagined them to be.3 Under Thai criminal law, the test of responsibility depends upon the ability to know the nature and quality of the act and that it was wrong. The narrow or literal interpretation would compel courts to regard madness as merely a possible cause of innocent mistake as to matters of fact and common knowledge. So, if wrong is to be understood merely as contrary to law, many lunatics whose acquittal has been universally approved should have been condemned. The rule broadly stated is or at least should be this, that no act is a crime if the person who does it is at the time when it is done prevented, either by defective mental power or disease affecting the mind, from controlling his/her own conduct, unless the absence of the power of control has been produced by his/her own default. To take an example, people who, after killing their child, go forthwith to the police station to surrender themselves, and give a lucid account of what they have done, would certainly seem to know the nature and quality of the act committed and to know that in doing it they did wrong. Yet if they have previously shown some symptoms of madness, and have killed their child with no discoverable motive and with no attempt at concealment, a judge would probably regard these facts as evidence of their laboring under such a species of insanity as would justify them in pronouncing their acquittal. The mere fact that a crime has been committed without any apparent motive is, of course, not sufficient of itself to establish any similar immunity. How far an insane impulse to do an act is to be regarded as affecting the criminal liability for doing it is a question which is not yet definitely settled. The courts of common law countries recognize irresistible impulse arising from mental disease and not moral depravity as being a sufficient defense, even when accompanied by a knowledge that the act was wrong. In some countries the defense of irresistible impulse is excluded by statute. Under Thai law, however, the balance of authority is the other way, and the test is limited to the ability to distinguish between right and wrong. The practical difficulty in distinguishing an insane irresistible impulse arising from mental disease, from moral insanity, where inability to control the will is the result of

3  For a defense of insane belief, the act must be directly connected with the belief. This can be the case, for example, of a man who, dreaming that he is struggling with a wolf, strangles his wife. By the same token, an individual would be convicted of obtaining money by false pretenses notwithstanding his being so insane as to be under the belief that he is the lawful son of a well-known prince. Judges, however, have to be careful not to conclude hastily that there is no connection between a madman’s conduct and his belief because a sane person would see no connection between what he/she does and what, under the influence of the belief, he/she holds.

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vicious habits and conduct for which the person is responsible, has often led Thai courts to refuse to recognize this defense. There is one form of insane impulse, that of kleptomania, which is sometimes put forward, with or without evidence, by well-to-do persons accused of trivial acts of theft. That the impulse to steal does sometimes arise from actual insanity seems to be established by the fact that it is often limited to special times (e.g., that of pregnancy) or to some special class of objects which are accumulated in numbers not at all needed by the thief (e.g., hats, boots, tablecloths). Under Thai law, however, kleptomania generally does not provide a viable legal defense. Insanity, even when it is not of such a character as to confer complete exemption from responsibility, has in some cases been recognized as a circumstance that may mitigate the offender’s punishment for reasons that will shortly be explained in more detail.4 Chronic alcoholism, for example, has sometimes been recognized as a defense to criminal charges under the doctrine of criminal insanity. Accordingly, in fatal accidents caused by alcohol, drivers are usually convicted for negligent homicide as they generally lack the intention associated with murder.5 Likewise, Thai courts have stated that there is no intent to kill but only a mere intent to injure when a person who gets in a physical fight after drinking kills another.6 (ii) Defense of being a minor. Under Thai criminal law, the absence of “will” may arise, not from a morbid condition of mind which has been discussed in the previous section, but from the natural and inevitable immaturity. The most common cause, one which must place every member of the society beyond the control of the criminal law for some part of his/her life, is minority. Under Thai criminal law, minors are divided into three classes. First, minors under seven years of age. Section 73 of the Penal Code clearly states: “A child not yet over seven years of age shall not be punished for committing what is provided by the law to be an offence.” There is a conclusive presumption that children so young cannot have mens rea at all. Nothing, therefore, that they do can make them liable to be sentenced by a criminal court; though it is not illegal for parents to inflict reasonable punishment to such children if they have, in fact, become old enough to understand it (Stasi 2016b). Second, minors between seven and fourteen. Even at this age “minors” are still presumed to be incapable of mens rea but the presumption is no longer conclusive; it may be rebutted by evidence. Yet the mere commission of a criminal act is not necessarily, as it would be in the case of an adult, sufficient prima facie proof of a guilty mind. The presumption of innocence is so strong in the case of a child under fourteen that some clearer proof of the mental condition is necessary. The necessity for special proof of mens rea in the case of a minor of this age is impressed upon the court who try him/her, by being asked not only the ordinary question, “Did the

 See infra section 4.3.  See, inter alia, Supreme Court decision no. 978/2540. 6  See, inter alia, Supreme Court decisions nos. 109/2475 and 173/2481. 4 5

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accused do it?” but also the additional one, “Had the accused a guilty knowledge that his/her conduct was wrong?” More precisely, Section 75 of the Thai Penal Code provides “Whenever any person over fourteen years but not yet over seventeen years of age commits any act provided by the law to be an offence, the court shall take into account the sense of responsibility and all other things concerning such person in order to come to decision as to whether it is appropriate to pass judgment inflicting punishment on such person or not.” If the court does not deem it appropriate to pass judgment inflicting punishment, it will consider the minor not guilty. In contrast, if the court deems it appropriate to pass judgment inflicting punishment, it will reduce the scale of punishment as provided for such offense by one-half. This guilty knowledge may be shown by the fact of the offender’s having been previously convicted of some earlier crime or even by the circumstances of the present offense itself, for they may be so marked as to afford distinct proof of a wicked mind. To illustrate, a boy of ten who kills a friend and buries the body in a ditch may presumably be convicted of murder. Furthermore, Section 74 of the Penal Code states that the court has the power to admonish the child and give an appropriate order to the parents or guardians. Accordingly, if the court deems that the parents or legal guardian are able to take care of the child, the court may give order to release the child to the parents or guardian by imposing the stipulation that the parents or guardian shall take good care of the child and ensure that he/she will not cause any harm within a prescribed period of time, which cannot exceed three years.7 If the child has no parents or guardian, or has them but the court is of opinion that they are unable to take care of such child, or if the child resides with a person other than the parents or guardian, and such person refuses to accept the aforesaid stipulation, the court may give order to hand over such child to a person or organization (as the court deems appropriate). In this case, such person or organization shall have the same power as that of the guardian “only for the purposes of care, training, and giving instruction as well as determining the residence and making arrangement for the work to be done by the child, as may be reasonable.” Under Section 74 of the Code, the court may also decide to send such child to a school or place of training and instruction or a place established for training and giving instruction to children throughout the period of time prescribed by the court itself but not longer than the time when such child shall have completed eighteen years of age. As regards crimes committed by minors between fourteen and twenty, and this is the third point, the court may reduce the scale of the punishment as provided for such offense by one-third or a half (Section 76, Penal Code). A particular exception, of no practical importance, exists in the case of some offenses of omission, which are criminal merely technically and involve no moral

7  And fixing a sum of money, as the court thinks fit, which the parents or guardian shall have to pay to the court, but not exceeding ten thousand baht for each time when such child causes harm.

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guilt (e.g., non-repair of a highway). In such cases, the effect of minority in producing an exemption from criminal liability for the omission is, however, ascribed by the traditional legal classification not so much to any immaturity in the minors’ mind, as to them not having the ability to manage their own affairs until they are twenty, and therefore probably not having the pecuniary means necessary for discharging the duty which they have omitted. (iii) Necessity and constraint. The fact that a person who has inflicted harm upon another person or property did so for the purpose of avoiding from himself/ herself some much greater harm has from early times been recognized as a defense in civil actions. It is admittedly no wrongful act to pull down houses to prevent a fire from spreading, or to enter a person’s house to put out a fire (Stasi 2016a). It is therefore natural that such necessity should be still more readily admissible as a defense to criminal proceedings both because in them the object is not to compensate mere loss but only to punish actual guilt (which here seems almost or altogether absent), and also because punishment itself must fail to attain its great object, that of deterrence, in those cases of necessity where the harm it threatens is less than the harm which would have been suffered if the crime had not been prevented. A person who violates some traffic laws, or commits some similar trivial offense, for the purpose of saving life – who goes at night, for instance, riding a motorcycle without headlights to fetch the fire engine  – would seem to have a valid legal excuse. Yet though theoretical writers have been willing to accept this ground of defense, the actual law on the subject is extremely ambiguous and vague. It is clear that no such ground of defense can be accepted in any case (1) where the harm avoided was not proportionate to the offense committed to avoid it, or (2) where the harm could have been avoided by some less illegal action by the defendant, or (3) where more harm was done than was necessary for avoiding the danger. Thus, it is just possible to imagine cases in which the expediency of breaking the law is so overwhelmingly great that people may be justified in breaking it. These cases, however, cannot be defined beforehand. Each particular instance, as it arises, must be considered upon its own merits. Based on case law, it can be seen that the defense of necessity, even if it is a possible one, is at least extremely rare. The question of its possibility can only be important in the few crimes where the punishment is capital because in other cases the judges would take the extremity of the offender’s situation into account, by reducing the sentence to a nominal penalty, wherever they have the power to do so. Where immediate death is the inevitable consequence of abstaining from committing a prohibited act, it seems pointless for the law to continue the prohibition. For if the object of punishment be only to deter, then it must be a useless cruelty to inflict or to threaten any punishment the threat of which cannot have the effect of deterring. As regards constraint, it is interesting to point out that it is a very rare defense. Consequently, the law respecting it remains to this day both ambiguous and vague. It is, however, clear that threats of the immediate infliction of death, or even of

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grievous bodily harm, will excuse some crimes that have been committed under the influence of such threats. But it is impossible to say with precision for what crimes the defense will be allowed to avail. It certainly will not excuse murder. Yet it may still excuse grave offenses though only in their minor forms. Accused individuals, however, must show that the compulsion continued throughout the whole time that they were assisting and that they did no more than they were obliged to do. They also have to prove that they desisted at the earliest possible opportunity.8 (iv) Mistake of fact. As a general proposition, “mistake of fact” refers to a mistaken understanding by someone as to the facts of a situation. It usually refers to a state of mind arising from mistake or some other form of ignorance (e.g., taking another person’s umbrella in mistake for your own). The traditional legal classification speaks of there being also a class of cases in which it arises from what can be defined as misfortune apparently with the idea of distinguishing, from acts done with the expectation that no unlawful result would follow on them, some acts done with the expectation of their being followed by no result at all. But it does not seem possible to draw accurately any such line of demarcation. And inasmuch as, even were it drawn, the legal treatment of the two classes would present no points of difference, all distinction between them may well be disregarded here. Thai criminal law often allows mistake or ignorance to afford a good defense by showing, even where there has been an actus reus, that no sufficient mens rea preceded it. But such a defense can only arise when three conditions are fulfilled. The first condition is that the mistake must be of such a character that, had the supposed circumstances been real, they would have prevented any guilt9 from attaching to the person in doing what he/she did. Therefore, it is no defense for a robber who breaks into No. 5 to show that he/she mistook that house for No. 6. Likewise, on an indictment for assaulting an officer “in the discharge of his/her duty,” the fact that the assailants did not know of the victim’s official character will be no defense for them. On the other hand, it will be no offense to use force against a person whom you reasonably, though mistakenly, suppose to be committing a housebreaking. A further condition is that the mistake must be a reasonable one. This will be mainly a question of fact. The court must determine the reasonableness of the mistake, that is, whether the defendant’s conduct was what would be expected by a reasonable person under similar circumstances. An example will help clarify this point. Suppose that a person, before going to temple, fires off his gun and leaves it empty. But during his absence his maid goes out shooting with the gun and, on returning, leaves it loaded. The person, after his midday meal, takes up the gun

8  Fears of some lesser degree of violence, insufficient to excuse a crime, may nevertheless mitigate its punishment. 9  As to whether this means legal guilt or merely moral guilt, see section 1.3, supra.

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again and in doing this, touched the trigger. The gun goes off, and kills his wife, who is in the room. In these circumstances, the person will probably have reasonable grounds to believe that the weapon was not loaded. The case might well have been otherwise if weeks, instead of hours, had elapsed between his firing off the gun and his subsequently handling it without taking any pains to see whether it had meanwhile been loaded again. On the other hand, people who break the law in consequence of a belief that they are obeying a Divine command are legally regarded as actuated by a mistake which is “unreasonable.” Hence, a man, who kills his son because he thinks God told him to, would be convicted and would be sentenced to imprisonment. In this example, his mistake is too “unreasonable” to afford any excuse for the homicide it occasioned.10 The final condition is, that the mistake, however, reasonable, must not relate to matters of law but to matters of fact. For a mistake of law, even though inevitable, is not allowed to afford any excuse for crime. Ignorantia juris neminem excusat. In this regard, the Penal Code states “A person shall not be excused from the criminal responsibility committed by ignorance of law” (Section 64). The utmost effect it can ever have is that it may occasionally, like drunkenness,11 rebut the existence of the peculiar form of mens rea which some particular kind of crime may require. Hence, theft can only be committed when a thing is stolen without even the appearance of right to take it. Accordingly, a bona fide mistake of law, if based upon reasonable grounds, prompting a belief in the defendant that a particular chattel belonged to him/her, would relieve the defendant from the guilt of theft. Likewise, a mortgagor who, under an invalid but bona fide claim of right, damages the fixtures in the house which he/she has mortgaged will not be guilty of willfully causing unnecessary damage. Apart, however, from these exceptional cases and the other considerations pointed out above,12 the rule which ignores mistakes of law is applied with rigor. Various foreigners have recently been punished in Thailand for smoking electronic cigarettes, despite the fact that in their countries these devices are totally legal and that they had no idea that the Thai law could be different. To take a different example, a veterinary surgeon’s mistaken belief that an operation, which he/she knows to be painful and purposeless, is nevertheless unpunishable legally, will afford him/her no defense for performing it. These mistakes may be reasonable enough; yet they afford no excuse. Nor would they do so, even if the defendant could show that he/ she made sure to obtain a lawyer’s advice and had been misled by it. (v) Extenuating circumstances. Whenever it appears that there exists an extenuating circumstance, whether or not there is an increase or reduction of the punishment according to the provisions of the Penal Code, the court has the right to reduce the punishment to be inflicted on the offender by not more than one-half, if it deems it necessary.  At the same time, it must be remembered that some religious beliefs may be so extreme as to be evidence of insanity and to afford a good defense upon that ground. 11  See supra, section 2.1. 12  See supra, section 3.2. 10

4.2  Kwaam Chôp Dûay Gòt Măai

39

Section 78 of the Penal Code lists several cases of “extenuating circumstances,” namely, lack of intelligence, serious distress, previous good conduct, the repentance, and the efforts made by the offender to minimize the injurious consequence of the offense, voluntary surrender to an official, the information given or the court for the benefit of the trial, or the other circumstance which the court considers to be of similar nature.

4.2  Kwaam Chôp Dûay Gòt Măai Thai criminal law regards the three following cases of crime as being kwaam chôp dûay gòt măai (strictly justifiable) and therefore as involving no legal penalty whatever: order of a legitimate authority, necessity, and legitimate defense. (i) Order of a legitimate authority. Where a person appears to have committed an offense, such person may have a defense if the act was ordered or authorized by a legitimate authority. Hence, the executioner who carries out the death penalty as imposed by a court incurs no criminal liability. The executioner’s immunity is not due to a mere absence of mens rea (i.e., the act is extorted by a compulsion of official duty) but to the entire absence of any actus reus at all. In other words, it is not a crime for him/her to carry out the sentence. (ii) Defense of necessity. The defense of necessity is expressly provided for in Section 67 of the Penal Code which states: “Any person shall not be punished for committing any offence on account of necessity: when such person is under compulsion or under the influence of a force such that such person cannot avoid or resist; or when such person acts in order to make himself/herself or another person to escape from an imminent danger which could not be avoided by any other means, and which such person did not cause through his/her own fault.” The defense of necessity is available to all types of offenses, provided that no more is done than is reasonably necessary under the circumstances (Rattanadara 1990). This means that the offense must be proportionate to the danger.13 Hence, the belief must be reasonable under the circumstances as the defendant perceive them.14 It follows that a woman assaulted is not justified in using firearms against her assailant, unless the assault is so violent as to make her consider her life to be actually in danger. On the other hand, where a person is not going so far as to assault a human being, but is only interfering unlawfully with property, whether real or personal, the possessor of that property, though he/she is permitted by the law to use a moderate degree of force in defense of his/her possession, will usually not be justified in  There was some old authority for maintaining that under some circumstances an individual might, for the preservation of his/her own life, be justified in taking away the life even of a person who was in no way a wrongdoer. 14  These elements are very close to the ones that will be described for the legitimate defense against unlawful violence as the latter is considered to be a special category of the defense of necessity. 13

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carrying this force to the point of killing the trespasser. For such a justification will not arise unless the trespasser’s interference with the property amounts to a serious crime, and moreover to a serious crime of some kind that is violent, such, for example, as robbery, gang-robbery, or theft. And even these violent crimes should not be resisted by extreme violence unless it is actually necessary. Thus, firearms should not be used until there seems to be no other mode available for defeating the intruder and securing his/her arrest. A fortiori, the actual killing of individuals who are engaged in committing any mere petty offense (in Thai: kwaam pìt lá-hù tôht), or any serious crime that is not one of force, cannot be legally justified; any person so killing them will be guilty of a criminal homicide. In this regard, Section 69 of the Thai Penal Code states that “if the act committed is in excess of what is reasonable under the circumstances or in excess of what is necessary, or in excess of what is necessary for the defense, the court may inflict a less severe punishment to any extent than that provided by the law for such offence. But, if such act is caused by excitement, fright or fear, the court may not inflict any punishment at all.”15 It must be added that it is the duty of a private person as well as a peace officer to use all means to prevent a crime from happening. Hence, life may be innocently taken, if it is necessary for suppressing a riot, or preventing a terrorist attack. In contrast, one is not justified in taking life to break up a simple fight. If, however, in the attempt to stop a fight, one’s life is put in imminent danger or grievous bodily harm is impending, a person may take life in legitimate defense. In doing so such person would be justified and not excused merely, because he/she was in no fault, and became confronted with the danger while in the performance of a legal duty. (iii) Legitimate defense against unlawful violence. Section 68 of the Thai Penal Code requires that legitimate defense must be necessary and reasonable to the circumstances (grà-tam por sŏm kuan) when compared to the threat of physical attack posed by the victim. More precisely, it states that “Whenerer any person is bound to commit any act for the defense of his own right or right of any other person against a danger occurring from act of violence which violates the law, and such danger is an imminent one, such act, if reasonable committed under the circumstances, is a lawful defense, and he shall not be guilty.” This means that a person is justified to use reasonable force to protect oneself, one’s family, or anyone else from a real or threatened attack. Thus, if such person has a reasonable apprehension of danger, and uses none but reasonable force, he/she will be innocent even though the wrongdoer is killed. To take an example, a woman upon whom a rape is attempted may kill if necessary in preventing the act. She would be justified in doing so both upon the ground of legitimate defense and of preventing a crime from happening. It is not only the right, but the legal duty of every person, whether a peace officer or not, to prevent the commission of a crime attempted with force or surprise and to

15

 This provision also applies to those acts committed as legitimate defense.

4.3 Intoxication

41

take life in doing so if no other means are adequate, since the killing is apparently necessary. Some cases hold that the killing must be actually necessary. The belief that the crime is about to be committed must be a reasonable one, and if negligently committed the killing would not be justified or even excused, but would be manslaughter. Justification in these cases is not limited to the person against whom the crime is directed but extends to every person who is in a position to prevent it.

4.3  Intoxication Intoxicated through consumption of alcohol or intake of a controlled substance or drug is ordinarily no excuse for the commission of a criminal act even though it produces extensive alterations in cognitive functioning similar to those caused by insanity.16 In fact, closely akin though it is to a temporary insanity, it differs from it by having been produced voluntarily. And to produce it is morally wrong and even a criminal offense in some circumstances (Minakanitsakan 2005).17 Section 66 of the Penal Code specifically regulates intoxication as a result of voluntary ingestion. It states “Intoxication on account of taking liquor or any other intoxicant may not be raised as an excuse, except where such intoxication is caused without the knowledge or against the will of the offender, and such person has committed the offence at the time of not being able to appreciate the nature of illegality of his/her act or not being able to control himself/herself, the offender shall then be exempted from the punishment for such offence.”18 This means that such mens rea in allowing oneself to become intoxicated is sufficient to supply the ordinary mental element of guilt to any criminal act which may ensue from it (Chanhom 2020).19 Hence, if someone be shot in consequence of a drunken man’s careless handling of a gun, the fact that his negligence was due to intoxication does not make it any

 The kingdom of Thailand has adopted three main acts sanctioning the use for drug-related offenses, which are the Psychotropic Substance Act, B.E. 2518 (1975), the Thailand Narcotics Control Act B.E. 2522 (1979), and the Measure for Suppressing Narcotic Offenders Act 2534 (1991). Macdonald and Nacapew (2013) interestingly note that “There are three treatment and rehabilitation systems for people who use drugs in Thailand: the voluntary system coordinated by the Ministry of Public Health, the compulsory system under the Narcotic Addict Rehabilitation Act B.E. 2545 (2002) coordinated by the Department of Probation under the Ministry of Justice and the correctional system coordinated by the Department of Corrections under the Ministry of Justice.” 17  In many countries drunkenness was a statutory crime until the end of the nineteenth century. It still remains so unlawful that a contract for it would be void. 18  It must be added, however, that if a person is still partially able to appreciate the nature or illegality of his/her act, or is still partially able to control himself/herself, the court may inflict a less severe punishment to any extent than that provided by the law for such offense. 19  In this sense, the Thai Supreme Court ruled that an individual who took narcotic drugs and killed his child could not claim that he had become involuntarily intoxicated as he was not aware of the fact that the drug could cause intoxication (decision no. 691/2541). 16

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more innocent than the similar negligence of a sober person. If, however, a person’s habits of drinking have caused insanity, such insanity will have just the same effect in exempting him/her from criminal liability as if the madness had not been so brought on by voluntary misconduct. It follows that where the alterations in cognitive functioning caused by intoxicating substances produces, although only temporarily, such a degree of madness as to render a person incapable of distinguishing right from wrong, he/she will not be criminally responsible for acts done while under its influence. Occasionally, however, instances arise of intoxication to which no moral blame attaches. This is the case, for example, where it has been produced by the contrivance of friends. So also, where there was an exceptional susceptibility to stimulants of which the person was not aware and he/she became drunk by taking a moderate quantity of spirits. It will be no defense, however, for the person to say that he/she did not intend to get drunk. In these rare cases, an actus reus committed by the intoxicated person may result in no punishment since it has been preceded by no mens rea, neither the usual immediate one nor even the remote one of voluntarily getting intoxicated. In this regard, Section 66, paragraph 2, of the Penal Code states “if a person is still partially able to appreciate the nature or illegality of his/her act, or is still partially able to control himself/herself, the court may inflict a less severe punishment to any extent than that provided by the law for such offence” on the ground that every form of insanity weakens the power of self-control and that thus the offender’s moral guilt is proportionately lessened, and therefore the punishment has to be the less.20 Yet Section 66, paragraph 2, of the Penal Code might be also employed for the opposite purpose of showing that insanity, when not of such a form as to extinguish responsibility, should actually aggravate the punishment since the weaker a person’s will, the more severely does it need to be conditioned by the fear of penalty.21 Moreover, even the ordinary blamable intoxication may sometimes have the effect of reducing criminal liability as it may disprove the ordinary inferences which otherwise would be drawn from conduct. Hence, it may easily produce such a mistake of fact as will in itself excuse an otherwise unlawful act (Watnasawad 2006). To take an example, a drunken confusion may erroneously lead a person to imagine that others are showing an aggressive or hostile behavior. As a consequence, the drunk person may strike them in supposed legitimate defense. Though it usually leaves the defendant as guilty as if he/she had had the ordinary mens rea of a sober person, yet it may disprove the presence of some additional mens rea that is essential to the definition of some particular crime. It may, for instance, disprove the presence of a specific intent essential to render a particular act a crime or degree of crime. It may also disprove, in the case of an assault by an intoxicated person, the specific  Such section provides a limited excuse of voluntary intoxication. Even in common law countries, a weakened capacity of self-control is in practice often thus treated, whether with strict legality or not, as mitigating circumstance. 21  It may be added that insanity is sometimes important in criminal law, even apart from its bearing on mens rea because if a person become insane after committing a crime, he/she cannot be tried until full recovery. 20

4.4  Liability of Legal Persons

43

intent to do grievous bodily harm or commit some crime which would constitute a breaking and entering a theft. It may thus show that a person who has broken into a house has had no criminal intent and so has not committed a housebreaking. But it must depend upon all the circumstances of each particular case whether or not the intoxicating substances are to have this effect. For example, the fact of a person’s being drunk and unreasonably using a stick will tend to show that he/she is not actuated by intent. The drunkenness, however, will not operate as an exemption when he/she uses some dangerously harmful weapon appropriate to inflict grievous bodily harm. In a like manner, the intoxication will be no defense in those cases where a person determines to commit a particular crime, forcing the specific intent while is he/she is sober and then deciding to drink to acquire the requisite abandon to accomplish such purpose. Digressing, for a moment, from the question of the effect of intoxicating substances upon the liability of those who are under its influence at the time of committing an offense, it may be important to add here that the fact of having been intoxicated at some time subsequent to that when the offense was committed may occasionally result in the acquittal of the defendant, by rebutting the evidence of the accused’s intent to commit the crime. More precisely, it may excuse acts committed by the defendant subsequent to the crime, which are such as would raise suspicions of guilt if they had been done by a sober person (e.g., making confused or contradictory statements after being arrested or refusing to make any statements at all).

4.4  Liability of Legal Persons In the past, legal persons (nitti bukkon) could not be the subject of criminal liability as they were not capable of having a guilty mind.22 Thus, if a crime had been committed by the orders of a legal person, criminal proceedings, for having thus instigated the offense, could only be taken against the separate members in their individual personal capacities and not against the legal person as itself a guilty person. This view was a natural enough inference from the technical rule that criminal courts, except in some petty offenses, expect defendants to answer themselves and do not permit “appearance by attorney.” But it was further supported also by more scientific considerations, which the Roman law had anticipated and accepted. It was urged that a legal person, as it had no actual existence, could have no will and therefore could have no guilty will. And it was further urged that even if the legal fiction which gives to a legal person an imaginary existence may be stretched so far as to give it also an imaginary will, yet the only activities that can consistently be ascribed to the fictitious will thus be created, must be such as are connected with the purposes which it was created to accomplish. Thus, it cannot compass a crime as any crime would necessarily be ultra vires.

 This concept is expressed by the maxim Societas delinquere non potest (companies cannot commit a crime).

22

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4  Excusatory and Justificatory Defenses

But under the commercial development of the last few decades, legal persons have become so numerous that there would have been grave public danger in continuing to permit them to enjoy this immunity. The various theoretical difficulties have therefore been put aside and it is now settled law that legal persons may be indicted by the corporate name, at least for omissions to perform some public duty imposed upon them by law, and that fines may be consequently inflicted upon the corporate property. As a subject of the legal system, a juristic person is defined nowadays as a legal entity capable of rights and duties as a natural person (bukkon tammada) “within the scope of its power and duties, or its object as provided by or defined in the law, regulation or constitutive act.”23 Accordingly, a juristic person enjoys the same rights and is subject to the same duties as a natural person, except those which, by reason of their nature, may only be enjoyed or incurred only by a natural person.24 Section 70 of the Civil and Commercial Code disposes that a juristic person must have one or several representatives as prescribed by the law, regulations, or its constitutive act. This is to say that legal representatives have the right to act in the name and on behalf of the legal person (Stasi 2016a). In this regard, the Supreme Court has several times disposed that the representative of a legal person could not set up as defense the fact that he/she acted merely as a representative of the legal person to exclude criminal liability.25 Furthermore, in another decision the Supreme Court made it clear that in those cases where the law provides that a particular crime does not apply to legal persons, then the manager will be solely liable if he/she acts as a representative of the legal person, personally commits the crime, and the legal person benefits from such act.26 As Sudti-autasilp (2007) correctly points out, legal persons are considered to be criminally liable under different laws which can be classified into three categories. The first category includes those laws, such as the Commercial Banking Act B.E. 2505 (1962)27 and the Anti-Money Laundering Act B.E. 2542 (1999),28 which hold legal persons accountable for their own acts and incorporate clear provisions imposing criminal responsibility on legal persons. The second category regards those legal provisions imposing criminal responsibility on legal persons operating in particular sectors. For instance, the Mining Act B.E. 2461 (1918) imposes criminal responsibility on “a mining concessionaire” as confirmed by the Supreme Court decisions nos. 841-842/2469 and 185/2489, the  Section 66, Civil and Commercial Code.  Section 67, Civil and Commercial Code. 25  Supreme Court decision no. 482/2497. 26  Supreme Court decision nos. 1612/2518 and 1613/2518. 27  According to Section 41 of the Act, “any commercial bank which fails to examine its register of shareholders or to notify its shareholders in violation of the provisions of Section 5 septem or makes a false statement or conceals facts which must be revealed in the confidential statements or explanatory notes submitted in accordance with Section 23 shall be liable to a fine not exceeding one hundred thousand baht.” 28  Under Section 61 of the Act, “any legal person who commits offences under Section 5, Section 7, Section 8 or Section 9 shall be liable to a fine of two hundred thousand baht to one million baht.” 23 24

4.4  Liability of Legal Persons

45

Act on the Standard of Export Goods B.E. 2503 (1959) imposes criminal responsibility on “any person who inspects the standard of goods,” the Factory Act B.E. 2512 (1969) imposes criminal responsibility on “any person who has been granted a license to operate a factory,” and the Act on the Transportation by Land B.E. 2522 (1979) imposes criminal responsibility on “any person who has been granted a license to operate transportation.” The third and last category applies to those provisions which refer to the offender by using the terms “anyone” or “whoever.” Examples include the following: the Consumer Protection Act, B.E. 2522 (1979); the Act on Offences Concerning Registered Partnerships, Limited Partnerships, Limited Companies, Associations and Foundations B.E. 2499 (1956); the Copyright Act B.E. 2537 (1994); the Trademark Act B.E. 2534 (1991); the Patent Act B.E. 2522 (1979); the Life and Non-Life Insurance Acts B.E. 2535 (1992); the Revenue Code, B.E. 2481 (1938); the Immigration Act B.E. 2493 (1950); the Medical Device Act B.E. 2551 (2008); the Food Act B.E. 2522 (1979); the Cosmetic Act B.E. 2558 (2015); and the Drug Act B.E. 2510 (1967). Hence, to take an example, Section 35 bis of the Revenue Code states “Whoever violates Section 12 bis shall be liable to imprisonment not exceeding two years and a fine not exceeding two hundred thousand baht. Where the offender is a legal person, if the offence derives from an order or action of a director or the manager or any person responsible for its operations, or where the person has the duty to issue an order or to act but failed to do so causing the legal person to have committed the offence, the person shall be liable to the punishment provided for the offence as well.” By the same token, Section 83 of the Immigration Act B.E. 2493 (1950) stipulates “Where the offender is a legal person, if the offence derives from an order or action of a director or the manager or any person responsible for its operations, or where the person has a duty to issue an order or to take action but failed to do so thereby causing the legal person to have committed the offence, the person shall be liable to the punishment provided for such offence as well.” It is important to add that the Act Supplementing the Constitution Relating to the Prevention and Suppression of Corruption, B.E. 2542 (1999) expressly provides a presumption of criminal responsibility for legal persons. According to this Act, “in the event that an offense relating to the giving of bribes, as provided for under the Anti-Corruption Act B.E. 2551 (2008), is committed by a person connected to the legal person and where the act of bribery was undertaken for the benefit of the legal person, then the legal person can also be held liable for the offense if it does not have in place appropriate internal control mechanisms to prevent such offenses.”29 It must be noted, however, that often the gravity or the nature of an offense may, as it will shortly be explained, be sufficient to show that the framers of the enactments against it could not have had any intention of regarding bodies corporate as capable of committing it. Hence, where a law does not specify that a criminal act may be committed by a legal person, “past Supreme Court judgments have indicated that a

 In such a case, the legal person shall be subject to a fine of at least the value, but not exceeding twice the value, of the damage caused or the benefit received from the commission of the offense.

29

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4  Excusatory and Justificatory Defenses

legal person may be criminally liable if the criminal act was committed within the scope of the legal person’s objectives and the legal person benefitted from the criminal act” (Tungsuwan n.d.).30 It has been generally held that although there is no longer any difficulty in indicting a legal person, there may be a difficulty in punishing it. True, it possesses property, and it can be therefore fined. But it possesses no body, and therefore it cannot be hanged or imprisoned. On this point Sudti-autasilp (2007) argues “However, there is argument about whether these criminal punishments are appropriate for a legal person. This is because it is not possible to inflict the death penalty, imprisonment or confinement upon a legal person, while fine, although perhaps of a large amount for natural persons, can still be a minimal amount compared to the large sums of pecuniary benefit a legal person may have acquired through the commission of an offence, and thus a fine penalty may not be a proper sanction to prevent a company from committing criminal acts. Forfeiture of properties can be done only to properties used to commit a crime or properties obtained from the commission of such crime. Considering these two remaining penalties, it is doubtful whether they are sufficient and appropriate. If these two penalties are insufficient or inappropriate, what punishments are appropriate?” Thus, there arises a limit to the range of its criminal responsibility, viz., that a legal person can only be prosecuted, as such, for those offenses which the law allows to be sentenced by a fine (Smith 1989). Hence, while it can be indicted and fined for a libel published by its order, it cannot be indicted for a housebreaking or any of the other offenses which are too grave to admit of being visited adequately by a merely pecuniary penalty. Neither can it be indicted for any of those offenses which derive their criminality from criminal intention or consist in a violation of those social duties which appertain to individuals as citizens or subjects. If any crime so heinous be committed by the orders of a legal person, the various persons by whom it was ordered must be indicted individually in their own names and punished in their own persons. It must be remembered that they are also liable to be individually indicted, even in the case of those less heinous offenses for which their legal person might itself be indicted. In fact, it becomes indictable only through the fact that a wrong has been instigated by them. A legal person may not generally be criminally liable for causing wrongs involving criminal intention or personal violence (in Thai kwaam gâao nâagaan chái gam-lang), but it may be liable for a contempt of court – as in violating an injunction – and subjected to a punishment by fine as a natural person.  Supreme Court decision Nos. 787-788/2506. In the decision, the Supreme Court “laid down a precedent where the representative of a legal person acted in the scope of its authority and in accordance with the objectives of such a legal person in a manner that such legal person benefited from such an act, and such legal person was accountable and held criminally liable for such an act. This interpretation shows that the Supreme Court applied Section 70 paragraph 2 of the Civil and Commercial Code to the case and deemed that the will of representatives of a legal person was the will of such legal person. Therefore, an act committed by its representatives in the name of such legal person was an act of such legal person” (Sudti-autasilp 2007). The Supreme Court has confirmed its approach of holding legal persons criminally liable for offenses most notably in its decision nos. 1737/2506 and 1669/2506.

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References

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References Chanhom K. (2020). Kham Atibai Kot Mai Aya Phak Kwaam Pit [Elements of criminal law and criminal sanctions]. Win-yoo Chon Press, Bangkok. Macdonald, V., & Nacapew, S. (2013). Drug control and harm reduction in Thailand. IDPC Briefing Paper. Rattanadara S. (1990). Lak Kot Mai Aya [Principe of criminal law]. Samit Press, Bangkok. Reed, A., & Bohlander, M. (2016). General Defences in Criminal Law: Domestic and Comparative Perspectives. Routledge, New York. Smith, J. C. (1989). Justification and Excuse in Criminal Law. Stevens & Sons, London. Stasi, A. (2016a). General Principles of Thai Private Law. Springer, Singapore. Stasi. A. (2016b). Elements of Thai civil law. Brill, Leiden and Boston. Sudti-autasilp, B. (2007). Corporate Crime and the Criminal Liability of Corporate Entities in Thailand. Resource Material Series No. 76, P 94–114, 2008, Grace Lord, ed. See NCJ-229030. Minakanitsakan T. (2005). Lak Kot Mai Aya Phak Tua Pai [General principles of criminal law]. Win-yoo Chon Press, Bangkok. Tungsuwan, P. (n.d.). Corporate Liability in Thailand. Global Compliance News, Baker McKenzie, globalcompliancenews.com/white-­collar-­crime/corporate-­liability-­thailand/. Watnasawad K. (2006) Kham athibai Kot Mai Aya Phak Nueng [Elements of criminal law]. Chira RatKan Phim Press, Bangkok.

Chapter 5

Attempts

As has been previously explained in Chaps. 3 and 4, where there is merely mens rea, there is no crime at all. But although an actus reus is necessary, there may be a crime even where the whole of the particular actus reus that was intended has not been consummated. If a woman misses the person she intends to kill, there is clearly no murder but nevertheless a crime has been committed. Accordingly, the law will punish acts that constitute even a very early stage in the course of preparation for a crime. But, just as the mere mens rea is not punished, so neither are the earliest conceivable stages of the actus reus. There is thus, as a general rule, no criminal responsibility where a mens rea has only been followed by some act that does no more than manifest the mens rea. Liability will not begin until the offender has done some act which not only manifests his/her mens rea, but also goes some way toward carrying it out.

5.1  Definition of Attempt Thai criminal law recognizes liability for attempt in particular instances. In this regard, Section 80 of the Penal Code states “Whoever commences to commit an offence, but does not carry it through, or carries it through, but does not achieve its end, is said to attempt to commit an offence.”1 If such person, however, commits the offense but does not commit it through, or commits it through but does not achieve its result, he/she will face more severe criminal penalties. Section 81 of the code, in fact, states that in these circumstances the offender is liable to two-thirds of punishment as prescribed by the law for such offense. 1  The person who attempts to commit an offense is liable to two-thirds of the punishment as provided by the law for such offense.

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 A. Stasi, General Principles of Thai Criminal Law, https://doi.org/10.1007/978-981-15-8708-5_5

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Attempts consist in some physical act which helps, and helps in a sufficiently “proximate” degree, toward carrying out the crime contemplated (Watnasawad 2006). It seems impossible to lay down any abstract test for determining whether an act is sufficiently proximate to be an “attempt.” It is clear that mere preparations for the intended crime, antecedent to the actual commencement of the crime itself, do not amount to an indictable attempt. Hence, if a man, who contemplates murder, buys a gun and takes a railway ticket to the place where he expects to find his intended victim, these are mere acts of preparation, too remote from the actual offense to constitute an attempt. But if, on meeting the victim, he points the gun at her and puts his finger on the trigger, he does acts which are a part of the offense of murder – and, likewise, of that of shooting with intent to wound – and certainly will amount to an attempt to commit either of those two crimes. So again, recording the numbers on a credit card without the knowledge of the card holder may constitute an attempt to commit fraud. Similarly, taking an impression in wax of the lock of a door in order to make a key to fit it may constitute an attempt to commit housebreaking because the only object of such a proceeding must be to open the door in question. But buying a box of matches would not be an act sufficiently proximate to the offense of setting the fire to a building and will not constitute an attempt to commit it because it is an ambiguous act, not necessarily referable to that crime, or to any crime at all.2 On the other hand, actually striking one of the matches, for the purpose of setting fire to a vacant building, would be a sufficient attempt to commit the crime. And it will remain so, even if the match goes out or is snatched away, or is thrown away by the offender after being caught on CCTV camera but before any damage is done. Another illustration of this dividing line may be found in cases relating to the publication of seditious or defamatory books. Merely to preserve such a book, even with a view to publish it, is not an attempt at publication. However, procuring such a book with intent to publish it would amount to an attempt.

5.2  Impossible Attempts An impossible attempt is defined under Thai law as an attempt that can under no circumstances lead to success (Thanyaphanit 1988). It was for a time thought that a person could not be convicted of an attempt unless the attempted acts were possible.

2  The crime of setting the fire is dealt with under Section 218 of the Penal Code which states “Whoever sets fire to: (1) a building, vessel or floating house in which a human being dwells; (2) a building, vessel or floating house used for storage or manufacture of goods; (3) a house of entertainment or meeting place; (4) a building which is public domain of the State, public place or place for performing religious ceremonies; (5) a railway station, airport, or public parking or mooring for vessels; (6) a steam-boat or motor-boat of five tons upwards, airplane or train used for public transportation, shall be punished with death, imprisonment for life or imprisonment of five to twenty years.”

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Hence, for a thief to put his/her hand into a person’s pocket which happened to be empty was not regarded as amounting to an attempt to commit theft. The Penal Code of 1908, however, has addressed this offence. Thus, the attempt to steal from an empty pocket or drawer is considered to be a crime, though nothing is taken because there is nothing to take. Likewise, it constitutes a criminal attempt to kill when a person shoots through a skylight in the roof where he/she supposes a policeman is standing, though the policeman has shortly before departed from such position. To take another example, a conviction may be sustained for the crime of attempted abortion upon a woman whom it appears is in fact not pregnant. In most cases when the consummation of the completed crime fails, either because of the nonexistence of an essential object or the employment of inadequate means supposed to be adequate, the defendant will be held for the crime of attempt, if the crime were legally possible, the intent clear, the person in a situation to do it, and the act adapted to the successful perpetration of it. By the weight of authority also the guilt of attempt attaches, if the means adopted are apparently adequate to the accomplishment of the end intended, though for some reason unknown to the accused they were in fact inadequate. The same rule applies when the failure is occasioned by the nonexistence of the essential object (Minakanit 1985). If the means were not only actually, but evidently and apparently inadequate, there would be no guilty attempt. To strike a man with a slight switch or snap a toy gun at him would of course not be held an assault with intent to kill. The same rule applies when one attempts something which would not be a crime even if the intended act were accomplished. To take an example, suppose that Alex through the wrongful use of his force or fear obtains Minnie’s property. This act may be held not a criminal attempt if Alex could prove that Minnie made the payment not because she was induced to do so by the threats, but voluntarily, in order to have Alex indicted and prosecuted for extortion.

5.3  Withdrawal from an Attempt There is no guilty attempt if the wrongful purpose is voluntarily abandoned before the act is put in process for final execution, such abandonment not being induced by outside causes, as when the accused should discover he/she is being watched. When the process of execution would proceed in its natural course without the attempter’s further action until it either succeeds or fails, it is no defense that the act intended failed because outside influences interfered (Amonlaksananon 1981).3 In this sense, Section 82 of the Penal Code states “Whoever attempts to commit an offence, but, on his/her own accord, desists from carrying it through, or changes 3  At common law, every attempt to commit any crime, whether that ulterior crime be crime or misdemeanor, is itself a misdemeanor and is punishable. And by various provisions some particular attempts have been made felonies. Thus, every attempt to murder is a crime, and punishable as such.

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his/her mind and prevents the act from achieving its end, shall not be punished for such attempt to commit the offence” unless in the course of the attempt he/she already committed another crime.4 This is to say that a person can always desist from an attempt with the consequence of a full acquittal. The offense attempted may itself be only a form of crime (Minakanitsakan 2005). Hence, a conviction could probably be obtained for an attempt to incite, or an attempt to conspire. And further, as it is of the essence of an attempt to be itself merely started, it will be a good defense to an indictment for an attempt if the defendant can show that he/she actually completed the intended crime. In such case, the attempt becomes merged in the greater offense and the defendant must be reindicted for the consummated offense. It must also be noted that under Thai criminal law, mere solicitation is not a substantive offense (Chanhom 2020). Solicitation occurs when a person invites or requests another to commit a crime. This is not considered to be a crime whether or not the other person commits the ultimate crime thus suggested to him/her.

References Amonlaksananon P. (1981). Khwamroo Bueangton Kiaokap Kot Mai Aya [Basic principles of criminal law]. King Mongkut’s Institute of Technology, Bangkok. Chanhom K. (2020). Kham Atibai Kot Mai Aya Phak Kwaam Pit [Elements of criminal law and criminal sanctions]. Win-yoo Chon Press, Bangkok. Minakanit T. (1985). Kot Mai Aya: Lak Lae Panha [Criminal Law: Principle and Problem]. Thammasat University Press, Bangkok. Minakanitsakan T. (2005). Lak Kot Mai Aya Phak Tua Pai [General principles of criminal law]. Win-yoo Chon Press, Bangkok. Thanyaphanit W. (1988) Yo Lak Kot Mai Aya [Summary of criminal law]. Nititham Press, Bangkok. Watnasawad K. (2006) Kham Athibai Kot Mai Aya Phak Nueng [Elements of criminal law]. Chira RatKan Phim Press, Bangkok.

4  Consequently, if what he/she has already done comes under the provisions of law as an offence, he/she will be punished for such offense.

Chapter 6

Secondary Party Liability

The Penal Code groups crimes into two classes: àat-yaa-gam (i.e., offenses) and kwaam pìt lá-hù tôht (i.e., petty offenses). This classification mainly relies on the object of sentencing and corrections policies since Section 102 of the Penal Code states that “The petty offence is the offence which shall be punished by imprisonment not out of one month or fine not out of one thousand Baht, or both imprisonment and fine as aforesaid together.” Under Section 104 and following of the Penal Code, petty offenses are punishable even if they are not committed intentionally, while “attempts to commit a petty offence are not punishable neither are supporters to a petty offence” (U.S. Senate 1972). In the gravest, and also in the least grave, of àat-yaa-gam offenses, no legal distinction, either of substance or even of form, is drawn between the various recognized modes of taking part in the commission of them. This can be explained by the fact that the guilt of even the slightest share in any àat-yaa-gam crime is regarded as being so heinous that it is needless to distinguish it from still deeper shades of guilt. And, on the other hand, no activity in a mere petty offense is considered heinous enough to make it worthwhile to draw a formal distinction between it and any less prominent mode of taking part in the offense. Thus, if a crime belongs to either of these two opposite extremes, all persons who are concerned in it in any way, whether by actually committing it, or only by keeping near in order to assist while it is being committed, or merely by suggesting its commission, are indiscriminately classed together by the law as being alike “principals” in the offense. An accurate comprehension of these two categories of crimes is of great value to the legal operators as enabling them, not merely in àat-yaa-gam offenses but also in petty offenses to trace with precision the lines at which the law ceases to take notice of participation in a crime – the stages, in other words, where complicity ends and immunity begins. Four several ways of taking part in a crime are recognized: as a principal in the first degree, as a principal in the second degree, as an accessory before the fact, and as an accessory after the fact.

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 A. Stasi, General Principles of Thai Criminal Law, https://doi.org/10.1007/978-981-15-8708-5_6

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6.1  Principal in the First Degree Principal in the first degree means the actual and principal offender, the person in whose guilty mind lay the blamable mental cause of the criminal act. Almost always, of course, it will be the person by whom this act itself was done. But occasionally this will not be so because the crime may have been committed by the hand of an innocent agent who, having no blamable intentions in what he/she did, incurred no criminal responsibility by doing it. In such a case, the person who instigates this agent is the real offender having the last mens rea that preceded the crime, though it did not cause it immediately but mediately. Hence, if a physician provides a poisonous draft and tells a nurse that it is the medicine to be administered to her patient, and then by her administration of it the patient is killed, the murderous physician, and not the innocent nurse, is the principal in the first degree. Likewise, if a woman sends her six-year-old child into a shop to steal something off the counter for her, the person and not the child will be principal in the first degree in this theft. Even an animal may be employed as an “innocent agent.” Therefore, just as anyone who sets a dog upon people is guilty of assaulting them (in Thai gaan chái sù-nák bpen aa-­ wút), so anyone who should send a drone to steal a package delivered on someone else’s doorstep might be convicted of the theft of the package, as a principal in the first degree, and this, even though he/she was far out of sight when the drone took it. The principal is deemed to be in such cases constructively present. There may, of course, be more than one principal in the first degree. Hence, all the members of a gang of thieves may have fired simultaneously at the keeper who has surprised them. Or both the father and the mother of a little child may have together sent it into a shop to steal for them; or may have together concurred in starving it. And persons may be thus joint principals in the first degree, even though one of them commits his/her share of the crime in one town while his/her colleague operates in a different town.

6.2  Principal in the Second Degree A principal in the second degree is one who actually or constructively assists the actual perpetrator of the crime at the very time when it is committed. Thai criminal law provides that in the case where an offense is committed by two or more persons, such accomplices are deemed to be principals in the crime and will be punished as provided by the law for such offense (Section 83, Penal code). Furthermore, Section 86 of the Penal Code disposes “If a person assists or facilitates a crime before or after the crime has been committed, such person is deemed to be supporter in committing the crime and will be sentenced by two-thirds of the punishment as provided for such offence even if such assistance or facility is not known by the offender.”1

 It follows that under Thai law, facilitating or assisting a crime is itself a crime.

1

6.2  Principal in the Second Degree

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This subordinate principal may or may not be actually present at the scene of the crime. His/her presence is also deemed constructive. He/she may be miles away from the actual scene of the crime, as where a person watches outside on a distant hilltop, while others are committing an àat-yaa-gam crime inside the house. Instances of persons who aid and assist a crime at the place itself are afforded by the seconds in a prizefight which ends fatally or even by mere spectators if they actively encourage such a contest. But a spectator’s mere presence at a prizefight does not of itself constitute sufficient encouragement to amount to an aiding and assisting, and therefore does not necessarily make him/her punishable as a party to the homicide if such occurs. So also, a person may effectively aid and assist a crime, and at the very moment of its perpetration, without being present at the place where it is committed. To take an example, when Aob is inside a house, committing the crime of housebreaking, Tong and Boom may be waiting outside it, ready to help him in carrying off the stolen goods or to protect him by giving warning of the approach of the police. Likewise, if May invites a shopkeeper to accompany her to a convivial gathering, and takes care to keep him agreeably occupied while some accomplices break into his shop, May will be held to have been giving, even at the moment of the housebreaking, a sufficiently effective assistance in it to render her a principal in the second degree. Mere presence and neglect to prevent or give warning of a crime about to be committed will not make a person liable as principal in the second degree, even though such person would benefit by the deed.2 When, however, it is a person’s legal duty, as distinguished from a moral or social duty, to protect property and prevent the commission of a crime with respect to it, such person would be liable as a principal in the second degree if he/she stood by without attempting to perform the legal duty, even though he/she in no way participated in the act or helped in its accomplishment (Watnasawad 2006). As where a bank security officer refrains from giving an alarm and does not interfere to prevent the robbery of the bank. So, one may be guilty as principal in the second degree though it was a crime which such person could not possibly commit. As if a woman stands by and assists a person to carry by force another woman. She would be guilty of rape. An aider and abettor are only liable for such crimes committed by the principal in the first degree as were done in execution of their common purpose. If two individuals start forth to enter a house, and on the way one of them kills a person or sets fire to a house, the other is not guilty of the murder or the arson. If, however, the act done is a probable consequence of the execution of a common unlawful purpose, both would be liable. Hence, if two men decide to commit robbery or housebreaking, both armed to resist any interference, and one of them encounters the owner of the house and kills her, the other would be likewise guilty of murder as principal in the second degree. If, however, it was not the common purpose to resist at any cost and only one of them was armed and he being suddenly interfered with kills, the other not contemplating such extreme measure of resistance would not be guilty of the murder.

 Presence, however, in such a case would raise a presumption of participation.

2

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6.3  Accessory Before the Fact An accessory before the fact (in Thai poo som roo kon kaan krataam kwam pit toad) is a person who procures or advises one or more of the principals to commit the crime.3 This definition requires from him/her an instigation so active that a person who was merely shown to have acted as the stakeholder for a prizefight, which ended fatally, will probably be held not punishable as an accessory. Under Thai criminal law “Whoever, whether by employment, compulsion, threat, hire, asking as favor or instigation, or by any other means, causes another person to commit an offence, is said to be an instigator” (Section 84, Penal code).4 There is ground for claiming, however, that the parties who actively advise and assist in organizing a prizefight would be accessories to the manslaughter if one of the principals unintentionally kills the adversary. The fact that a crime has been committed in a manner different from the mode which the accessory had advised will not excuse him/her from liability for it (Minakanitsakan 2005). Accordingly, if Kai hires Tom to poison May, but Tom instead kills May by shooting her, Kai is nonetheless liable as accessory before the fact to May’s murder. But a person who has counseled another to commit a crime does not become liable as accessory if, instead of any form of the crime suggested, an entirely different offense is committed. An exception, however, arises where the crime counseled was one which was itself likely to cause this other crime that actually was committed. Thus, if Kai hires Tom to murder May, but Tom by mistake kills May’s twin sister June instead, Kai may be convicted as an accessory to June’s murder. In contrast, if a person instigates another to give a woman a poisoned apple, but she innocently hands on this apple to her child, who dies from eating it, there would be no such likelihood to render the original instigator an accessory to the murder of the child. One should notice that in criminal law the word “principal” thus suggests the very converse of the idea which it represents in commercial law (Amonlaksananon 1981). In the former, as has been previously noted, an accessory proposes an act, and the principal carries it out. But in the law of contract, and in that of tort, the principal only authorizes an act, and the “agent” carries it out. Where the same transaction is both a wrongful act and a crime, this double use of the word may cause confusion. For example, if, by an innkeeper’s directions, an employee steals a jewel out of a guest’s portmanteau, the employee is the principal in a crime, wherein the employer is an accessory before the fact; while the employee is also the agent in a tort, wherein the employer is the principal (Stasi 2016). According to Section 425 of the Civil and Commercial Code, in fact, employers are jointly liable with the

3  Therefore, there can be no accessory before the fact in “involuntary” (i.e., unpremeditated) manslaughter. 4  If the employed person commits the offense, the instigator will receive the punishment as principal. If the offense is not committed, whether because the employed person does not consent to commit it, or has not yet committed, or on account of any other reason, the instigator will be liable to only one-third of the punishment provided for such offense.

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wrongdoing employees for harm caused in the course of their employment. However, the employer who makes compensation to a third person for a wrongful act committed by the employee is entitled to reimbursement from such employee (Section 426, Civil and Commercial Code).5 Furthermore, the Penal Code sanctions the action of publicizing a crime. Section 84 states “Whoever propagates or publishes to the general public to commit an offence and such offence being punishable with imprisonment of not less than six months, shall be liable to one-half of the punishment provided for such offence.”6 As has been previously pointed out, to participate in a petty offense in either the second or the third of the modes now enumerated would constitute not only an act of crime but an act which the law does not distinguish as it does in the case of àat-­ yaa-­gam crimes from that of the “principal in the first degree.” It is wholly immaterial, for all technical purposes, whether an offender was principal at the fact or before the fact. Thai criminal law also sanctions the liability to the extent of the advertisement. Section 87 of the Penal Code disposes that in case an offense is committed by the offender beyond the scope of the employment, propagation or publication, or in excess of the intention of the supporter, then the instigator, the person making the propagation or publication to the general public to commit the offense, or the supporter to commit the offense, as the case may be, will be criminally liable for the offense only in so far as it is within the scope of the employment, propagation or publication, or within the scope of the intention of the supporter to commit the offense.7 It is time now to proceed to a fourth and remoter degree of complicity, which in the case of petty offenses involves no criminal liability at all (Chanhom 2020).

5  An example will illustrate this point. Assume that a trucking company asks its drivers to load more weight into the cargo area than the vehicle can safely handle. In the event of an accident caused by the overloaded truck, the trucking company would be exposed to liability. More precisely, the employer would be jointly liable for the work-related accident of its employees. The result would be different if a short-tempered employee, getting into an argument with a customer over money, decided to stab the customer to death. A breach in this case is distinct from the previous example in that the employee’s conduct does not have any connection with the task conferred to him/her. This means that the act does not fall within “the course of employment” under the definition of Section 425 of the Civil and Commercial Code. 6  If the offense is committed on account of the propagation or publication according to such provision, the person who made the propagation or publication will be liable to the punishment as principal. 7  Paragraph 2 of Section 87 of the Penal Code adds “In case of the employed person, the person doing according to the propagation or publication to the general public to commit an offence, or the principal in the offence shall be criminally liable for higher punishment on account of the consequence resulting from the commission of the offence, the instigator, the person making the propagation or publication to the general public to commit the offence, or the supporter to commit the offence, as the case may be, shall be also criminally liable for the offence having such higher punishment.”

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6.4  Accessory After the Fact An accessory after the fact (in Thai poo som roo lang kaan krataam kwam pit toad) is a person who, knowing that a crime has been committed, subsequently shelters or relieves one of the offenders (even one who was a mere accessory) in such a way as to enable the offender to elude justice. A person may do this, for instance, by supplying a fugitive murderer with the means of escape, or by helping a convicted murderer to get out of prison. Active assistance to the offender (in Thai phuu raai) is thus necessary. In this regard, Section 214 of the Penal Code states “Whoever, behaves habitually, lodges or procures the retreat place or meeting place to the persons whom oneself knowing to have the committed offence as provided by this Book 2, such person shall be imprisoned not out of three years or fined not out of sixty thousand baht, or both.” Thus, merely abstaining, however, willfully, from arresting a known criminal is not enough to make the sympathizer guilty, as an accessory, of the crime itself. But it does make him/her guilty of the specific petty offense of a misprision of crime. This is due to the fact that crimes so grave as àat-­ yaa-­gam crimes must be disclosed to a magistrate by everyone who knows of them. But in the case of mere petty offenses, there is no such duty. It should be noted that, since it is a spouse’s duty to aid the other spouse and to keep the secrets, spouses incur no liability if, after one of them has committed a crime, the other shields him/her from justice, however, actively. In this regard, Section 214, paragraph 2, of the Penal Code provides that “in case where an offense is committed to help the offender’s father, mother, child, husband, or wife, the court may not inflict any punishment at all”. As a concluding remark, it can be emphasized that Thai criminal law attaches little practical importance to the distinctions between the first three of these four classes of “accomplices” – a term which the law applies to all the participes criminis, whatever their degree of “complicity” in the offense, though popular use generally limits it to those who take only a minor part (Thanyaphanit 1988). Accordingly, the maximum punishment prescribed for any given crime is generally the same in the case of all three classes. And likewise, the rule of the common law that the accessories to a crime cannot be convicted until their principal is convicted8 does not apply to Thai law where all accessories whether before or after the fact may be indicted even though the principal offender has not yet been convicted, or even is not amenable to justice. Moreover, by a bold application of the principle that qui facit per alium facit per se (which in English translates: the one who does a thing by another does it himself), it has also been enacted that an accessory before the fact may even be indicted and convicted as being a principal. But the converse does not hold good. This means that if a principal is indicted as an accessory, he/she cannot be convicted. In modern times, the only important surviving difference between the various grades of accomplices consists in the fact that a lighter punishment is inflicted to the  Though he/she perhaps might be acquitted unjustly or might die before he/she could be arrested.

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References

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person who is only an accessory after the fact. Instead of being, like accessories before the fact, liable to the same heavy maximum of sentence as the principal, he/ she is punishable less severely. The matter of punishment is regulated by law (Minakanit 1985).9

References Amonlaksananon P. (1981). Khwamroo Bueangton Kiaokap Kot Mai Aya [Basic principles of criminal law]. King Mongkut’s Institute of Technology, Bangkok. Chanhom K. (2020). Kham Atibai Kot Mai Aya Phak Kwaam Pit [Elements of criminal law and criminal sanctions]. Win-yoo Chon Press, Bangkok. Minakanit T. (1985). Kot Mai Aya : Lak Lae Panha [Criminal Law : Principle and Problem]. Thammasat University Press, Bangkok. Minakanitsakan T. (2005). Lak Kot Mai Aya Phak Tua Pai [General principles of criminal law]. Win-yoo Chon Press, Bangkok. Stasi, A. (2016). General Principles of Thai Private Law. Springer, Singapore. Thanyaphanit W. (1988) Yo Lak Kot Mai Aya [Summary of criminal law]. Nititham Press, Bangkok. U.S.  Senate. (1972). Reform of the federal criminal laws. Ninety-second Congress, first session, volume 10. United States, Subcommittee on Criminal Laws and Procedures under the Committee on the Judiciary. Watnasawad K. (2006) Kham athibai Kot Mai Aya Phak Nueng [Elements of criminal law]. Chira RatKan Phim Press, Bangkok.

9  It is necessary to point out that persons may be accomplice in more than one way to the same act of crime; and thus, they may be convicted on one count as an accessory before the fact, and on another count as an accessory after the fact.

Chapter 7

Offenses Causing Death

Thai law refers to homicide offenses as “offences against life and body,” which includes both voluntary homicide offences and involuntary homicide offences. The main offenses against life are outlined in Sections 288–294 of the Thai Penal Code. Following this arrangement, the list of crimes which will be discussed must begin with those which affect the security of persons – employing here that much abused word, not in its ancient technical legal sense of “a subject of rights and duties,” but in the modern meaning of “the living body of a human being.” Of all such offenses, that of homicide is necessarily the most important. And, to every layman, homicide is a crime peculiarly instructive inasmuch as in it, from the gravity of the fact that a life has been taken, a minute inquiry is made into all the circumstances, and especially into the wrongdoer’s state of mind. Thus, the analysis of the mens rea requires particular attention in homicide; while in regard to many other offenses, it still remains uncertain what precise condition of mind is required. If a homicide is committed under such circumstances as to be neither justifiable nor excusable, but a crime, it is not, and never being, a mere petty offense but always a àat-yaa-gam crime. The àat-yaa-gam crime may, however, take any one of three forms: murder, voluntary manslaughter, and involuntary manslaughter.

7.1  Murder The word “murder,” from the Germanic morth, originally denoted a secret killing. Thus, the name was applied to the fines imposed by William the Conqueror upon any county where a Norman was found secretly killed. The dead person was presumed to be a Norman unless he/she was proved to be an Englishman.1 After these 1  This means that individuals could escape liability only if there was a thing which they called a “presentment of Englishry” i.e., proof that the slain man was an Englishman.

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 A. Stasi, General Principles of Thai Criminal Law, https://doi.org/10.1007/978-981-15-8708-5_7

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fines were abolished by Edward III in 1340, the word “murder” necessarily lost its earlier meaning and came to be applied as a name for the worst kinds of homicide. Under Thai law, the offense of kâat-dtà-gam (i.e., murder) is governed by Section 288 of the Penal Code which states “Whoever, murdering another person, shall be imprisoned by death or imprisoned as from fifteen years to twenty years.” The expression “murdering another person” has been interpreted as (1) unlawfully (2) killing (3) an individual, (4) with the expressed or implied intent to kill, (5) the death following within a reasonable period of time. Of these five constituents, the first, viz., “unlawfulness,” distinguishes murder from other types of homicides, whether ranked as justifiable or only as excusable. The second constituent is killing. In murder, as in manslaughter, persons may be held liable for a homicide which they committed, not by any direct violence, but only through some protracted chain of consequences; the last act in it being remote, both in time and in order of causation, from the death which it brought about (Na Nakhon 1992). This can be illustrated by two classic examples. Suppose a woman abandons her newborn child in a bush and covers it over with no better protection than leaves. If the baby dies, the woman will be prosecuted for murder. Likewise, if a son takes his sick father from town to town in cold weather, and thereby hastens the old man’s death, he will probably be indicted for murder. Yet in murder, just as in the case of attempts, there is a point at which the law refuses to continue to trace out chains of causation; and beyond which, therefore, any act is regarded as too remote to produce guilt. But here, as before in attempts, it is impossible to lay down any general rule for fixing this point and the utmost that can be done is to suggest it approximately by illustrative instances. The most noteworthy is the rule that killing a person by false testimony is not murder.2 An act may amount to an unlawful killing, either as a murder or a manslaughter, even though it is so remote in the chain of causes that it would not have produced death but for the subsequent acts or omissions of third parties unless this conduct of the third parties were either willful or, at least, unreasonably negligent. The rule extends even to similar intervening conduct on the part of the deceased victim himself/herself.3 The rationale of it is that a person who brought the deceased person into some new hazard of death may fairly be held responsible if any extraneous circumstances (that were not intrinsically improbable) should convert that hazard into a certainty.

2  But the Roman jurists treated as a murderer the perjurer who thus quive falsum testimonium dolo malo dixerit, quo quis publico judicio rei capitalis damnaretur (witnesses who by a false and malicious testimony procure an innocent man to be capitally condemned shall be deemed guilty of murder). 3  It must be pointed out that in many Southeast Asian jurisdictions, the corresponding rule does not include the conduct of the deceased or the mere omissions of third parties.

7.1 Murder

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With regard to the third constituent, the term “individual” applies to all “human beings.” In criminal law an incompetent4 or quasi-incompetent5 are considered to be persons for all purposes of protection, even when not so for those of liability. The fourth element of murder is the expressed or implied intent to kill. The preceding elements in the definition of murder are common to all forms of criminal homicide, but this fourth point is the distinctive attribute of those homicides that are murderous. The word “intent” must be applied in a narrow sense which includes two components: firstly, a general intention and then a special intention which is the desire for the death of the individual who was killed. For there are five forms of mens rea which have been held to be sufficiently wicked to constitute murderous intent. They are the following: (i) Intention to kill the particular person who, in fact, was killed. This, of course, is the most frequent of all the six forms. (ii) Intention to kill a particular person, but not the one who actually was killed. If Nook shoots at Pao with the intention and desire (i.e., the direct intention) of killing Pao, but accidentally hits and kills Koi instead, this killing of Koi is treated by the law not as an accident but as a murder as the mens rea is transferred from the injury contemplated to the injury actually committed. In this case, the murderer may have had anyone of three mental attitudes with regard to the prospect of this latter injury. He may have thought it probable that he would hit Koi instead of Pao and have risked doing so, though feeling no desire at all that Koi should be hit (i.e., indirect intention). But in general language it is not called “intention” at all because there was no desire of killing Koi. The murderer may also have thought it improbable that he would have hit Koi or may not have thought of it at all. (iii) Intention to kill, but without selecting any particular individual as the victim. This has been conveniently called “universal intention.” It may be exemplified by using the classic case of a woman who resolves to kill the next person she meets and does kill her. By the same token, a terrorist who places an explosive machine on the Bangkok BTS Skytrain intentionally targeting foreign tourists in order to hurt the Thai economy, she acts with a universal intention to kill without selecting any particular individual as the victim. It is also exemplified by other atrocities, which are frequently reported in the Thai newspapers, as to which it is unnecessary to particularize. (iv) Intention only to hurt – and not kill – but to hurt by means of an act which is intrinsically likely to kill. An example will illustrate the point. Suppose that a 4  The Civil and Commercial Code defines incompetents as persons of unsound mind (Section 28). Persons may be adjudged incompetent by the court on the application of any spouse, ascendants, descendants, guardian, or curator, a person taking care of the person or the public prosecutor. 5  Under Section 32 of the Civil and Commercial Code, “A person who has physical or mental infirmity, habitual prodigality or habitual intoxication or other similar causes that make him incapable of managing his own affairs, or whose management is likely to cause detriment to his own property or family, may be adjudged as quasi incompetent by the Court.” The person adjudged quasi-incompetent is thus placed under curatorship.

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school janitor finds a young boy spray painting the walls with graffiti and decides to tie him up and gag his mouth as punishment. Should the boy die because of suffocation, then the school janitor would be held guilty of murder. The case would be different if a peasant from Chiang Mai tied a child, who annoyed him while he was milking, to one of the hind legs of a cow but the cow took fright at this, and started off, and in its course hit the child’s head against a brick wall. Here, the peasant would probably be convicted of manslaughter only. The case is of course distinguishable from the one last mentioned, inasmuch as the killing does not involve any intent to seriously harm the child. Thai law also recognizes that parents are legally entitled to inflict corporal punishment upon children. They would be guilty of murder, however, if they unintentionally, kill the child by inflicting such punishment in some mode which is obviously likely to cause death.6 (v) Intention to do an act which is intrinsically likely to kill, though without any purpose of thereby inflicting any hurt whatever. Such cases are usually due to a careless state of mind. Of this character is the intention of any workman who carelessly throws things off the roof of a house in a town, without looking over the edge to see if anyone is likely to be struck, or giving any warning. It is possible to add, as an instance of this fifth form of mens rea, the case of the son who carries his sick father about, out of doors, in cold weather, which hastens the old person’s death. The existence of these five various forms of “murderous intent” show it to be much wider than mere “intent” in the popular sense, viz., ill will, though much narrower than “intent” in the technical legal sense of mens rea. Every intentional homicide is prima facie presumed to have been committed with a murderous intent so that the defendant has the burden of showing, if he/she can, that the circumstances were such as to reduce it to manslaughter or a noncriminal homicide (Na Nakhon 1992). But he/she may, of course, do this even by mere cross-examination of the witnesses for the prosecution. As regards the intent which is to be imputed to the various members of a group of wrongdoers when one of them commits a homicide, the rule is that, if several persons act together in pursuance of a common intent, every act done in furtherance of it by anyone of them is, in law, done by all. Thus, if persons have agreed to beat a man and rob him, and they come together for the purpose armed with deadly weapons, and one of them happens to kill him, every member of the gang is held guilty of the murder.7 The fifth and last element of murder is constituted by the fact that the victim must die within a reasonable period of time. To illustrate, suppose A violently hits B’s

6  Thus, a mother who punishes her child by stamping on its body, and has thereby killed him, would be held guilty of murder. 7  However, if their agreement had merely been to frighten the person, and then one of them went to the unexpected length of shooting him/her, such a murder would affect only the particular person by whom the shot was actually fired.

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head with a cricket bat on the first day of January, 2020, and the death ensues on the first day of January, 2020, this condition as to time would be satisfied. In contrast, if the death occurs on January 1, 2022, the law would conclusively presume that the death results from other causes. The punishment of murder is death or imprisonment from fifteen years to twenty years. As murder is so heinous an offense, the tendency of legislation has been to enact severe penalties for even mere incipient approaches to it. Hence, any conspiracy to murder is severely punished, and every attempt to commit murder is now generally deemed to be a àat-yaa-gam crime and sentenced to a long term of imprisonment. Furthermore, Thai criminal law reserves the mandatory life sentence for especially heinous acts of intentional homicide (i.e., aggravated murder). These acts include the murder of the following categories of persons: ascendants, officials in the exercise of their functions (or by reason of exercising or having exercised their functions), as well as persons who assist officials in the exercise of their functions (Section 289, Penal Code). The Thai Penal Code also reserves the mandatory life sentence for gaan tor-rá-maan, namely, particular typologies of murder which have been committed “by premeditation, by employing torture or acts of cruelty, for the purpose of preparing or facilitating the commission of other offences, for the purpose of securing the benefit obtained through the other offence, for concealing the other offence or for escaping punishment for the other offence committed.” In concluding this subject, it may be added that murder under Thai law affords a noteworthy exception to the general legal rule that “criminal jurisdiction is territorial.” Every nation tries and punishes all crimes committed in its own territory or on its own ships upon the high seas, whether committed by its own subjects or by foreigners. Conversely, on the same principle, a nation usually does not concern itself with crimes committed anywhere else, even though committed by its own subjects. But to this latter branch of the rule, homicide has been made an exception under Thai law. Accordingly, the courts of any part of the kingdom of Thailand may try a Thai subject for murder or manslaughter committed anywhere outside the kingdom of Thailand. It is immaterial whether the person killed were a Thai subject or not.

7.2  Voluntary Manslaughter Manslaughter consists in killing another person unlawfully, yet under conditions not so heinous as to render the act a murder. It can be defined as being committed without intent, either expressed or implied. In order to avoid any sort of confusion, it would be preferable to say that manslaughter consists in killing another person without any of those guiltier forms of intent which amount to murderous intent. For intent, in its wide legal sense that is to say, mens rea, is essential to every crime. Under Thai law, manslaughter admits of subdivision into two sharply distinguished forms: the so-called gaan kâat-dtà-gam doi jàyt-dtà-naa (i.e., voluntary manslaughter) and the so-called gaan kâat-dtà-gam doi bprà-màat (i.e., involuntary

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manslaughter). Voluntary manslaughter is regulated under Section 290 of the Penal Code as an action that “causes death to another person by inflicting injury upon the body of such person without intent to cause death.” This means that voluntary manslaughter is committed with the “voluntas” (i.e., the intention) of causing to another person some illegal harm – it may be a merely slight or a grave or even a fatal harm. Where some trivial blow is struck, with the intention of producing mere momentary pain, but death unexpectedly results from it, then, if it is an unlawful blow, the striker will be guilty of manslaughter. It has already been pointed out that this merely accidental homicide would not have been criminal at all if the blow had been a lawful one, as in correcting a distracted student.8 Where, however, death is produced by a blow which was not a mere trivial one, but was likely to cause serious bodily harm, the crime may be either a manslaughter or a murder, according to the circumstances. If the assailant receives only a slight provocation, or none at all, his/her crime will amount to murder; yet if he/she receives gross provocation, it may amount to no more than manslaughter. Under the Penal Code, provocation represents a mitigating factor for any offense. In this regard, Section 72 states “When a person commits an offense by provocation or under the extreme emotional disturbance, the court may inflict upon him a sentence below the standard range of such offenses to any extent.” In deciding the case, the court may consider provocation to mitigate the guilt of the accused.9 In fact, the provocation which the offender receives may be so sudden and so extreme as to deprive her, for the time being, of her ordinary powers of self-control and consequently, to render the violent feelings of hostility less blamable – blamable enough, still, to merit punishment, but not to merit the punishment of life sentence. The suddenness of the homicidal act is thus an essential condition of this mitigation of guilt. The fact that the weapon she uses is one which she already has in her hand at the time of receiving the provocation may be important as evidence that the blow is not premeditated. Still more favorable will it be for the defendant if she can show that she used no weapon but her own clenched fist (Saengthian 2004). In manslaughter of the “voluntary” kind, as there can have been no premeditation, there can never be an accessory before the fact. There will usually, too, be no appreciable interval of time between the one person’s act of provocation and the other person’s act of killing. If, however, some time do intervene, it is nevertheless 8  An illustration of such manslaughter is afforded when the carrying out of some slight practical joke, which seemed harmless enough, unhappily results, for instance, through blood poisoning, in the death of the victim of it. 9  The details of the Supreme Court decision no. 17561/2539 may be helpful to illustrate this point: as a result of a quarrel, the defendant ran back home to take a knife and subsequently stabbed the deceased inflicting on him a wound from which he died. The Supreme Court ruled that this crime was committed under the “extreme emotional disturbance” even if the defendant’s act did not take place immediately upon being provoked. In a different case, the defendant was told that his wife had been sexually assaulted by the victim. The defendant, however, did not display any sign of anger against the victim and he even went fishing with the victim that same day. Upon coming back from fishing, the defendant assaulted the victim and caused fatal injuries. In this case, the Court denied the “extreme emotional disturbance” defense in this case (decision no. 2103/2537).

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possible that the offender’s conduct during it may be such as to show that the ungovernable passion, aroused by the provocation, still continued throughout that time and was truly the cause of the fatal blow. On the other hand, it is of course also possible that the person’s conduct during the interval may have been so calm as to show that his/her passion had cooled down and consequently, that the provocation originally received cannot have the legal effect of reducing the killing to something less than murder. On this point Jullamon (2008) notes that “the period of time between the provocation and the act of killing is the decisive factor whether the defendant could assert provocation defense. An act immediately or within a short period of time after being provoked would suffice this defense.” The provocation upon which any such sudden intent to kill is formed must, as has been previously noted, be a gross one, if it is to have the result of reducing the killing to manslaughter. Mere words, however, insulting and irritating, are never regarded by the law as gross enough to produce this result. Indeed, very few forms of provocation that do not involve some physical assault are regarded as sufficiently gross to produce it. One of those few may be found in the case of a husband who detects a person in the act of adultery with his wife and punches him on the face intending merely to knock him down. If, as a result of the blow, the victim falls on a stone fracturing his skull and dies, then the husband’s act would constitute manslaughter. But had the person been committing not mere adultery but rape – i.e., had the wife not been a consenting party – the husband’s act in killing him might not have had even the guilt of manslaughter and might have been a justifiable homicide.10 Even an actual assault is not provocation enough unless it is of a very violent or very insulting character. Hence, if a person receives from a woman a slap in the face, the provocation is not gross enough for this purpose; though if she had struck him violently on the face with a heavy clog, so as to draw blood, that would have been sufficiently gross. And a blow which was given lawfully, e.g., for the purpose of preventing a violent assault on some third person can never be an adequate provocation (Chanhom 2020). Although, mere words, however, insulting, are never regarded as amounting of themselves to a sufficiently gross provocation, yet, where they accompany a blow, they may be considered in estimating the degree of provocation given by the blow. They may thus have the effect of rendering an assault, which, if committed silently, would have been trivial, a provocation gross enough to reduce a homicide into a manslaughter. An unlawful imprisonment, or an unlawful arrest, may clearly be a sufficient provocation to reduce to manslaughter an act of killing inflicted by the actual person imprisoned or arrested. But it will never have this effect as regards a homicide committed by other persons. Thus, if bystanders try to rescue a victim of unlawful imprisonment, and kill someone in the attempt to do so, they will be guilty of murder. One of the most common cases of voluntary manslaughter is that of its being committed in the anger provoked by a sudden fight. In this regard, Section 294 of

 In some cases, an assault may be a sufficient provocation to others than the person assaulted, as where a father was provoked by an assault upon his child, or upon his daughter by her husband.

10

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the Thai Penal Code states “Whenever, death is caused to any person in an affray in which three or more persons are engaged, whether the victim be a participant in such affray or not, the participants in such affray shall be imprisoned not more of two years or fined not more than forty thousand baht, or both.” If the participant in such affray, however, can show that “he/she has acted so as to prevent such affray or in lawful defense, such participant shall not be punished”. Hence, if, upon a quarrel which was not premeditated or, at least, was not premeditated on the part of the defendant, persons start fighting, and then, in the heat of the moment, either of them inflicts some fatal injury on the other, the offender will not be guilty of more than a manslaughter. To take an example, where in the course of a quarrel, one Thai man throws another to the ground and then stamp on his stomach and thereby kill him, it would be considered as a case of manslaughter, because there has been no interval of time between the blow which threw the deceased to the ground and the stamping on his body. If, however, the quarrel subsides for a time, and then be resumed by one of the opponents, it usually will not afford him any defense for a fatal blow struck after the resumption of the conflict. It certainly will not do so if he employed the interval in arming himself for the renewal of the fight.11 The various effects of provocation in cases of voluntary homicide may be summed up thus. A grave provocation reduces the act of killing to manslaughter, even though it is committed with some dangerous instrument, such as was likely to kill (e.g., a gun). But a slight provocation leaves the act of killing with a dangerous instrument still a murder, though it reduces the act of killing with a slight instrument, such as was likely only to wound (e.g., a pair of crutches), to manslaughter. Provocation never reduces a homicide to misadventure, if the fatal blow were unlawful (e.g., resentful), though it may if that blow were only a lawful act of legitimate defense. Inflicting injury upon the body of another person without intent to cause death gives rise to a maximum of 15 years’ imprisonment. More precisely, Section 290 of the Penal Code provides that “violence leading to death without the intention of doing so” entails a sentence of up to 15 years. In case, however, the offense is committed under any of the aggravating circumstances mentioned in Section 289, the offender will then be punished with imprisonment of 3–20 years.

7.3  Involuntary Manslaughter Gaan kâat-dtà-gam doi bprà-màat (involuntary manslaughter) is often committed in the area of road accidents. An involuntary offense occurs where a person causes the death of another by acting in some unlawful manner, but without any intention of killing, or even of hurting, anyone. Under Section 291 of the Penal Code “Whoever,  Thus, if, when two persons’ quarrel, they proceed to fight then and there, and one of them is killed, the offense is only manslaughter; but if, instead of thus fighting at the moment of the quarrel, they agree to meet again on the following day to settle the score, and one of them is killed, the offender will be guilty of murder.

11

7.3 Involuntary Manslaughter

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doing the act by negligence and that act causing the other person to death, shall be imprisoned not out of ten years or fined not out of two hundred thousand baht.” These offenses can take one of three forms. Firstly, the accused may have committed some act which is intrinsically unlawful (probably it must not be so unlawful as to be a àat-yaa-gam crime, for then the homicide might not be a mere manslaughter but a murder). Hence, a person commits manslaughter if he/she accidentally kills someone else by conduct which amounts to a petty offense, as by taking part in an unlawful assembly or in an unlawful game. And this rule has usually been regarded as holding good whenever the unlawful act which accidentally produced the death amounted to even a mere civil tort. So, one may say as a general rule that when death results from the doing of an unlawful act not amounting to a àat-yaa-gam crime, the killing is manslaughter. The act, however, must be not merely malum prohibitum, but malum in se as well. Hence, where one by misadventure knock down and run over a pedestrian while driving on a road at a speed exceeding that prescribed by law, yet not at a speed deemed reckless or dangerous, a conviction for bodily harm will probably be set aside. Secondly, the accused may leave unperformed some act which it is his/her legal duty to perform. Hence, if a railway passenger is killed because the switchman falls asleep and forgets to activate the crossing signals, such switchman will be guilty of manslaughter; if, on the other hand, he purposely decides not to activate the crossing signals, it would be murder. Likewise, if a train driver at a level crossing leaves the control room in the charge of a young girl, and this girl’s inexperience in managing it brings about the death of a bystander, the train driver will be considered guilty of manslaughter. But the connection between the omission and the fatal result must not be too remote. In these two instances, the legal duty of acting arises from special circumstances whereby the particular person concerned had taken it upon himself. As it has been noted in a previous work, Thai case law has de facto “limited the liability to situations where the accused has not performed actions specifically demanded by the law and this has caused the death of another person. This decision has been explained on the grounds that a person should have the right to decide whether to act or not. In other words, a general obligation for all individuals to act where to do so might avoid damage, would dictate individual behavior and limit personal freedom” (Stasi 2015). An example will illustrate. If Egg sees Kung, who is not under his charge, taking up a tumbler of poison, Egg should not become guilty of any crime by not stopping Kung. Egg is under no legal obligation to protect a stranger. To render one criminally liable for a failure to act, the duty to act must be more than a mere moral duty. It must be a legal duty. A person who is under no legal duty to render care and attention to another and has not undertaken to do so is not guilty of manslaughter by refusing to render such assistance and attention, whatever might be his/her moral duty under the circumstances. But the law itself does in some cases impose upon a special class of persons some duty of a positive character, a duty of acting. Hence, parents are legally as well as morally responsible for the care of their children; and consequently, if a child’s death is caused, or even accelerated, by a parent’s gross neglect in not providing sufficient food or clothing for the child, the parent will be guilty of manslaughter. The mere fact that there was some degree

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of negligence on the parent’s part will not suffice. There must be a wicked negligence, a negligence so great as to satisfy the judge (in Thai phuu pi phaak saa) that the defendant did not care whether the child died or not. Of course, if the wickedness went to such a point that the parents intentionally left their child to starve to death, they would not be guilty of manslaughter but of murder. A similar question has frequently arisen as to the liability of parents for neglecting to procure medical aid for their children. The rule of law appears to be that their willful omission to provide medical aid for their children is such a neglect as comes within most statutory provisions declaring the duties of parents with respect to the support and care of their children. Thus, if it occasions or accelerates the death of the child, the parent will be guilty of manslaughter.12 Furthermore, Thai criminal law provides that one who without lawful excuse neglects to perform the duty imposed upon him/her by law to furnish food or clothing or medical attendance to a minor legally under his/her care in need of the same shall be guilty of a petty offense. Accordingly, a person who refuses to furnish such attendance to his/her adopted child, because of alleged conscientious scruples, relying on prayer for Divine aid, would be upon the death of the child convicted of manslaughter. The evidence must, however, show positively that death is in fact caused or accelerated by the omission; it is not sufficient to show a mere possibility that proper medical treatment might have saved or prolonged the child’s life. But the degree of negligence must be not merely a culpable but a criminal one. It is not enough to show that there was such carelessness as would support a civil action for negligence; there must be “a wicked negligence.” Yet however extreme a person’s negligence may have been, he/she still will not be answerable for a death which even full diligence on his/ her part would not have avoided or delayed (Na Nakhon 1992). It must be pointed out that in case of abandonment, Section 306 of the Thai Penal Code disposes that abandoning a child not over 9 years of age in any place, with intent to wholly abandon such child in a manner so that such child shall be without a person to take care of, entails a sentence of up to 3 years or a fine not exceeding sixty thousand baht or both. If the abandonment causes death or grievous bodily harm to the abandoned person, then the offense will be considered voluntary manslaughter (Section 308, Penal Code). This liability for neglect is not confined to parents. Under the Thai criminal law, any adult who undertakes the care of a person who is helpless, whether it is through incapacity or even through mere infirmity, will similarly be guilty of manslaughter if this person should die through his/her neglect. Section 307 of the Penal Code in fact provides “Whoever, having in charge by law or by contract a person in vulnerable conditions because of age, sickness, physical or mental health, abandons such person in a manner likely to endanger his/her life, shall be punished with imprisonment not exceeding three years or fined not exceeding sixty thousand baht, or both”.13  And this will be the case even when the omission is due to a personal or religious objection to the use of medicine. 13  And, on the same principle, if a doctor, after having actually undertaken the treatment of a patient, wickedly neglects him/her, and he/she dies in consequence of this neglect, the doctor will be guilty of manslaughter. 12

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Thirdly, the accused may be doing some act which is quite lawful but nevertheless, may be doing it negligently and therefore unlawfully (in Thai gaan kâat-dtà-­ gam gaan kâat-dtà-gam têe gèrt jàak kwaam bprà-màat). This may be the case, for example, of a death which is the result of a negligent use of a weapon that was lawfully sold against a trespasser. Hence, if force is used against a trespasser who enters occupied premises without consent of the owner and without an intention to kill, the case will be one of manslaughter, if the extent of the punishment were unreasonable, although the instrument used was a reasonable one. On the other hand, it will be a case of misadventure, if both the extent and the instrument were reasonable, and a case of murder, if the instrument used was an unreasonable one. Likewise, if death is caused by a workman throwing down rubbish from a roof, though without his/her having any idea of doing hurt to anyone, there are the same three alternatives. It will be misadventure, if the matter occurs in a village, and the workman has called out to give warning before throwing the materials down. But it will be manslaughter if, though it were only in a village, the workman did not even call out or if it were in a town and he only called out, but did not take the further precaution of looking over. Finally, it will be murder, if it were in a town, and he were so grossly and indiscriminately negligent as not even to call out. Similarly, if a person dies from being plied with liquor by his/her best friends, the degree of their legal responsibility will depend upon the motives with which they acted. If from mere unreflecting conviviality, the homicide would only be one of misadventure; if from a deliberate practical joke, it would be at least a manslaughter; and, in case that an extremely excessive amount of liquor was administered, or that there was a desire to produce death, it would be murder. Manslaughter is often defined as “the most elastic of crimes”; for the degrees of guilt which may accompany it extend from the verge of murder to the verge of excusable homicide. The provisions regulating the punishment for manslaughter usually provide for a wide range of discretion in the judge imposing sentence, often prescribing only the maximum fine and imprisonment, leaving it in the power of the judge to impose but a nominal fine and a single day’s imprisonment.

7.4  B  eginning and End of Life for the Purposes of Homicide Offenses The definition of murder only applies to those individuals who are alive (i.e., not unborn children). The notion of person can be found in Section 15, paragraph 1, of the Civil and Commercial Code which specifies the starting point and the ending point for a person to enjoy civil rights and assume obligations. It states: “The legal personality of an individual commences with the full completion of birth as a living child and terminates at death.” It follows that the existence of a natural person begins

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at birth and ends upon death (Stasi 2016). There can be no murder of a child which dies either before being born or even while being born, only of one that has been born, and, moreover, born alive. For purposes of criminal law – and also for those of property law, e.g., to become a holder of property and so transmit it again to new heirs – mere birth is determined in accordance with medical science. Birth consists in extrusion from the mother’s body, i.e., in having “come into the world.” Following medical science, partial extrusion is not sufficient. Thus, if only a foot or arm protrudes, there can be no murder; the extrusion must be complete, and the whole body of the minor must have been brought into the world. But it is not necessary that the umbilical cord should have been severed. And to be born alive, the child must have been still in a living state after it had quitted the body of the mother. Thus, that life then still existed must be actually proved, and this may be done by giving evidence of any cry, or breathing, or pulsation, or movement, after extrusion. But it is not necessary that the child should have continued to live until it was severed from the mother or even until it began to breathe. In fact, a child may not breathe until sometime after full extrusion, though, on the other hand, babies sometimes breathe, and even cry, before they are fully removed from the womb. The birth must thus precede the death but it does not need to precede the injury. Hence, an act which causes a child to be born much earlier than in the natural course, so that the child when born is rendered much less capable of living and accordingly soon dies, may itself amount to murder.14

7.5  Suicide, Euthanasia, and Abortion A crime must have been committed against “another person.” Hence, Section 288 of the Penal Code does not apply to the case where a person takes his/her own life as suicide has not been criminalized under Thai criminal law.15 It must be added, ­however, that Penal Code lists the types of conduct that can give rise to criminal liability with regard to instigation, help, or assistance to suicide.16 More precisely, Section 293 states “Whoever aids or instigates a child not over sixteen years of age, or a person who is unable to understand the nature and importance of his/her act or  The concealment of the birth of a child, whether born alive or dead, is considered to be a crime. In this case, unlike murder, it is immaterial whether the child was born alive or not. 15  Taking a historical perspective, it is interesting to note that medieval English law implemented some measure of success to deter individuals from committing suicide by the threat of degradations to be inflicted upon the suicide’s corpse, which, by a natural if unreasoning association of ideas, was often a potent deterrent; and also by threatening the forfeiture of their goods, a vicarious punishment which, though falling wholly upon their surviving family, was likely often to appeal strongly to their sense of affection. Hence, in England the man who feloniously took his own life was at one time buried in the highway, with a stake through his body; and his goods were forfeited. The burial of suicides lost its gruesome aspect in 1824, when the original mode was replaced by the practice of burial between the hours of nine and twelve at night, without any service. 16  Thailand is a devoutly Buddhist country and Buddhism preaches refraining from killing. 14

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who is unable to control his/her act, to commit suicide, shall, if suicide has occurred or has been attempted, be punished with imprisonment not exceeding five years or fined not exceeding one hundred thousand baht, or both.” This instigation, help, or assistance to suicide can take the form of either provocation (through, e.g., an order, threat, promise, or gift) or the giving of precise instructions (for instance, revealing where a weapon can be found). Following the same logic, Section 292 of the Penal Code states “Whoever, through cruelty and maltreatments against a person who depends on him/her for subsistence, causes such other person to commit suicide, shall be imprisoned not out seven years and fined not out of one hundred forty thousand baht.” Euthanasia (or assisted suicide) is also illegal in Thailand. It must be pointed out, however, that Section 12 of the National Health Act, B.E. 2550 (2007) allows a passive form of euthanasia. It states that a person has the right to make a living will in writing to refuse the public health service which is provided merely to prolong his/ her terminal stage of life or to make a living will to refuse the service as to cease the severe suffering from illness. Therefore, an act done by public health personnel in compliance with the living will not be held an offense and the public health personnel will not be liable. As regards abortion, it is defined under Section under Book 2, Title 10, Chapter 3 of the Penal Code as the deliberate termination of a pregnancy by procuring the miscarriage or premature delivery of a woman (Florida 1998). The basic offense is found in Section 301 of the Code which provides “Any woman committing abortion shall be imprisoned not out of three years or fined not out of sixty thousand baht, or both.”17 If abortion is carried out by a person different from the mother, the penalty may differ depending on whether the mother consented to it or not. More precisely, Section 303 of the Penal Code provides that “Whoever, procures abortion for a woman without her consent, shall be punished with imprisonment not exceeding seven years or fined not exceeding one hundred forty thousand baht, or both.”18 The penalty is reduced to imprisonment not exceeding 5 years and/or a fine not exceeding one hundred thousand baht, if the abortion is carried out with the mother’s consent (Section 302, Penal Code).19 Furthermore, Thai criminal law recognizes that it is sometimes necessary to take the life of an unborn child to save the life of the mother and contain an exception which makes it legally justifiable to do so (The Population Council, 1981). More precisely, Section 305 of the Code allows abortion to be performed by a medical  Section 304 of the Penal Code, however, exempts the woman from liability in case of unsuccessful or unfinished abortion attempts. 18  When the acts result in injury to the woman, the penalty is increased to imprisonment for up to 10 years and payment of a fine not exceeding two hundred thousand baht. If such act causes death to the woman, the offender will then be punished with imprisonment not exceeding 20 years and a fine not exceeding four hundred thousand baht. 19  Therefore, a woman is guilty if she commits the act upon herself. She is not, however, deemed an accomplice in submitting to be practiced upon by another. Consent of the woman is no defense. 17

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practitioner if it endangers the health of the mother, or when pregnancy is due to offenses such as incest, rape, seduction of a girl under the age of 15, deceit, or fraud (Whittaker 2002).

References Chanhom K. (2020). Kham Atibai Kot Mai Aya Phak Kwaam Pit [Elements of criminal law and criminal sanctions]. Win-yoo Chon Press, Bangkok. Florida, R.  E. (1998). Abortion in Buddhist Thailand. In Buddhism and abortion. Palgrave Macmillan, London. Jullamon, K. (2008). Homicide, Provocation and Extreme Emotional Disturbance: The US and Thai Approach: A Comparative Study. Thailand Law Journal, 11(1), 54–73. Na Nakhon K. (1992). Kot Mai Aya Phak Khwamphit [Criminal Law: Penal Code]. Thammasat University Press, Bangkok. Saengthian B. (2004). Kot Mai Aya Sam [Criminal Law Part Three]. Witthaya Phat Press, Bangkok. Stasi, A. (2015). Principles of Thai business law. Cengage, Singapore. Stasi, A. (2016). General Principles of Thai Private Law. Springer, Singapore. The Population Council (1981), Abortion in Thailand: A Review of the Literature. Regional Office for South and East Asia, Bangkok. Whittaker, A. (2002). The struggle for abortion law reform in Thailand. Reproductive Health Matters, 10(19), 45–53.

Chapter 8

Nonfatal Offenses Against the Person

In Thailand crimes of this class are minutely particularized and distinguished according to the varying circumstances, degree, and character of the injury inflicted, and appropriate penalties assigned to each. In other civil law countries which have adopted penal codes, the same method of special subclassification resulting in a multiplicity of substantive crimes can be noticed to a greater or lower degree.1 Nonfatal offenses against the person are of two sharply distinguished types, the sexual and the nonsexual: the one springing from lust, the other from anger. The first five sections of this chapter will attempt to define those crimes that are unconnected with sexual relations. These call for a detailed consideration. They fall readily into two groups depending on whether the crime does or does not leave behind it, upon the sufferer’s body, some actual hurt. The former alternative, as the graver, must first be considered. Section 6 will deal with those offenses relating to sexuality.

8.1  Voluntary Bodily Harm Section 295 of the Thai Penal Code states “Whoever, causes injury to another person’s body or mind is said to commit bodily harm, and shall be punished with imprisonment not exceeding two years or fined not exceeding forty thousand baht, or both.” Thus, wounding or unlawfully causing any grievous bodily harm to anyone – or to shoot or attempt to shoot at another person with intent to maim, disfigure, disable, or do any other grievous bodily harm or prevent an arrest – is a crime 1  In common-law countries, offenses of this class are not so clearly defined. An intentional or deliberate act resulting in actual bodily injury would be prosecuted as an assault with intent to murder, assault with intent to kill, or assault and battery simple or aggravated. Aggravated assaults are often classified into numerous substantive statutory offenses, characterized either by the intention prompting the act, the nature of the injury inflicted, or the weapon or instrument employed.

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 A. Stasi, General Principles of Thai Criminal Law, https://doi.org/10.1007/978-981-15-8708-5_8

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and punishable as such. Some of the phrases here used are so technical as to need explanation. Hence, to cause injury in body means to constitute a wound where the continuity of the skin must be broken (i.e., that of both skins, cutis vera as well as the epidermis) or where the bones have been fractured. Thus, a mere scratch, though bleeding, is not an injury in body.2 There must be unlawful physical force partly or fully put in motion, creating a reasonable apprehension of immediate physical injury to a human being (Saengthian 2004). So, drawing a weapon, raising the fist in a threatening manner, throwing anything with intent to hit, pointing a gun at one within the distance the gun will carry, or any similar act accompanied with such circumstances, as denoting at the time an intention coupled with a present ability of using actual violence against the person of another, will amount to an assault. As soon as the impending violence results in contact with the person of the other, however, slight, an offense against life and body is considered to be committed under Thai criminal law. To constitute such an offense, however, the force must be applied to the person of the other. Hence, kicking a dog belonging to another person is not considered to be an offense against the dog’s owner. To constitute an offense against life and body, the circumstances must create such a well-grounded apprehension of danger, as should cause the victim to defend or escape. An example will help clarify this point. A man is in a place where he has a right to be and is followed by others armed with guns and metal bars, using threatening language, putting him in fear, and inducing him to go home sooner than he would go or by a different way; they are considered to have committed an offense under Section 295 of the Thai Penal Code, though they have not got close or taken their weapons from their shoulders. Furthermore, Thai Penal Code provides that “Whoever, commits bodily harm on an ascendant; an official in the exercise of his/her functions, or by reason of exercising or having exercised his/her functions; by premeditation; by employing torture or acts of cruelty; for the purpose of preparing or facilitating the commission of the other offence or for the purpose of securing the benefit obtained through the other offence, or concealing the other offence or escaping punishment for the other offence committed by him/her, shall be imprisoned not out of three years or fined not out of sixty thousand baht, or both.” Under Thai law, the statutory “attempt” to shoot at a person is not made until some really proximate step is taken as, for instance, that of drawing the trigger. Thus, merely to point a loaded gun at a person, though it does amount to an “assault,” will not suffice for the crime of attempted bodily harm. But to pull the trigger, even though the discharge fails through a defect in the cartridge or barely to put a finger on the trigger with the intention of pulling it, even though interrupted before the weapon is discharged, will suffice to constitute an attempt to shoot, within the Thai criminal law.

 The wound may be inflicted by any means whatsoever.

2

8.1  Voluntary Bodily Harm

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According to the Thai Penal Code, no actual harm need be done or threatened as Section 295 points out “Whoever, causes injury to the other person in body or mind is said to commit bodily harm.” Hence, the slightest force will suffice, if it were exercised in a hostile spirit; thus, merely spitting at a person may amount to an indictable criminal offense. The force applied (or threatened) need not involve immediate contact between the assailant and the sufferer. Therefore, it is sufficient if harm is done (or threatened) to a person’s clothes without touching the skin. And, likewise, the hostile force may be exercised either directly or even indirectly, as by hitting a motorcycle and thereby hurting its rider. To deprive another person of his/ her liberty will usually involve either touching or threatening to touch him/her; and thus, the wrongful act of illegal detention (in Thai gaan gàk kăng doi mí chôp dûay gòt măai) usually involves the crime of bodily harm. But some bodily movement is essential. This means that if there is only mere motionless obstruction – as where a cyclist is brought down by collision with a person who only stands still, however, willfully, in front of him – no proceedings can be taken for bodily harm. The much graver offense of causing grievous bodily harm, may, however, have been committed. Likewise, mere words, however, threatening, can never make an offense of bodily harm. Alarm is essential to nonfatal offenses against the person. Thus, if a person who strikes at another is so far off that she cannot possibly touch her, it is certainly not bodily harm. And it has even been said that to constitute an offense of bodily harm, there must, in all cases, be the means of carrying the threat into effect. Accordingly, while pointing a loaded gun at a person is undoubtedly an offense of bodily harm, there is probably no bodily harm in presenting an unloaded gun.3 The actual present ability to inflict injury is not necessary. It is sufficient if there is a reasonably apparent present ability, so as to create an apprehension that the injury may be inflicted and cause the person threatened to resort to measures of legitimate defense or to retreat or go out of his/her way to avoid it, though the assailant may not get within striking distance, or may not be actually able to injure. Under English law, these types of crimes are included within the broad classification of assault and battery. An “assault” is an attempt, or offer, with force and violence, to do a corporal hurt to another.4 A “battery” is an injury done to the person of a person in an angry, revengeful, rude, or insolent manner.5 In other words, an assault is a movement which attempts or threatens, the unlawful application of force to another person, while such an application itself, when actually committed, constitutes a battery. Therefore, to throw water at a person is an assault. If any drops fall upon him/her, it is a battery. A mere assault, even without any battery, is not only a 3  The outcome would probably be different if a person presents a firearm which he/she knows to be unloaded at an individual who does not know that it is unloaded and who is so near that were it loaded its discharge might injure him/her. 4  Mere preparations, words, or threats alone, whatever may be the intention, cannot amount to an assault. 5  An assault is an attempt to commit a battery. Every battery necessarily includes an assault. The crime of assault, however, may be complete without a battery.

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wrongful act but also a petty offense. Thus, if a battery ensues, it does not enhance the degree of the crime, though it is important as affording clear proof of the hostile intention of the movements which constitute the assault. Usually, of course, both the two offenses are committed together; and the whole transaction is legally described as “an assault and battery.”

8.2  Grievous Bodily Harm Book 2, Title 10 of the Penal Code sharply divides offenses of the kind now being considered into ordinary and grievous bodily harm, in that the grievous bodily harm requires an actual intention to do grievous bodily harm (or disfigure, maim, etc.), whereas in the ordinary bodily harm, it is salient that such harm has been done unlawfully, even though there was no intention to produce the full degree of harm that has actually been inflicted. In this regard, Section 297 of the Penal Code states “Whoever, commits bodily harm, and thereby causing the victim to receive grievous bodily harm, shall be punished with imprisonment of six months to ten years.” Grievous hurt is defined in Section 297 as “(1) deprivation of the sight, of the hearing, cutting of the tongue or loss of the sense of smelling; (2) loss of genital organs or reproductive ability; (3) loss of an arm, leg, hand, foot, finger or any other organ; (4) permanent disfiguration of face; (5) abortion; (6) permanent insanity; (7) infirmity or chronic illness which may last throughout life.”6 Bodily harm becomes “grievous” whenever it seriously interferes with health or even with comfort (Na Nakhon 1992). It is not necessary that its effects should be dangerous nor that they should be permanent. The rather vague question as to whether, in any particular case, the harm done was serious enough to be classed as grievous, is for the court to determine. It must be added that under the provisions of the Penal Code regulating bodily harm, now under consideration, the offense of unlawfully wounding or infecting grievous bodily harm upon a person is separated from that of “occasioning grievous bodily harm by a person in an affray in which three persons upwards are engaged.” Section 299 of the Code states that “Whenever, grievous bodily harm is caused to any person in an affray in which three persons upwards are engaged, whether such person be a participant in such affray or not, the participants in such affray shall be punished with imprisonment not exceeding one year or fined not exceeding twenty thousand baht, or both.”7 A further offense defined by the Penal Code is that of unlawfully and maliciously administering to anyone any poison or other noxious substance with intent to injure,

6  More precisely, infirmity or illness causing the sufferer to be in severe bodily pain for over twenty days or to be unable to follow the ordinary pursuits for over twenty days. 7  If the participant in such affray can show that he/she has acted in order to prevent such affray or in lawful defense, he/she shall not be punished.

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aggrieve, or annoy him/her (in Thai gaan chái yaa pít).8 In this regard, Section 237 states “Whoever, introducing the poisonous substance or any other substance likely to cause injury to health into the food or water into any well, pond or reservoir, and such food or water to be existed or to be provided for the public consumption, shall be imprisoned as from six months to ten years and fined as from ten thousand baht to two hundred thousand baht, or both.” If the thing administered is a recognized “poison,” it seems probable that the offense would be committed by giving even a quantity so small as to be incapable of doing harm. But if it is not a poison, and is “noxious” only when taken in large quantities (e.g., castor oil, or ardent spirits) or when mixed with other substances (e.g., when eating durian with alcohol), the offense will not be committed by giving a person only a small dose of it or only one substance.9

8.3  Involuntary Bodily Harm Section 300 of the Penal Code states “Whoever, committing the act by negligence and such act to cause the grievous bodily harm to the other person, shall be imprisoned three years or fined not out of sixty thousand baht, or both.”10 In any discussion  of negligence, one must first  address the problematic  notion of  intent. The “intent” required here is something narrower than that vague general idea of a wicked state of mind which the word usually denotes, as in cases of homicide or in the phrase “mute of intent.” For in statutory wrongs, the word “intent” is presumed to have been employed by the legislature in a precise sense so as to require a wickedness which consisted of, or included, an actual intention to do an injury and, moreover, an injury of the same kind as that which in fact was done. Hence, the intention to injure a person’s body is not such intent as will support an indictment for unlawful injury to his/her property and similarly vice versa (Na Nakhon 1992). Accordingly, if a stone aimed at a person misses such person, but crashes through a window, the thrower would not necessarily be guilty of unlawfully breaking this 8  Under English law, it is a felonious assault, unlawfully and maliciously to administer any poison or other noxious thing to anyone so as thereby to endanger his/her life or inflict grievous bodily harm, but it is immaterial whether the person so assaulted takes the poison or injurious thing himself/herself, when he/she does not know its nature. 9  It is held under English law that although force and violence are included in all definitions of assault or assault and battery, yet where there is physical injury to another person, it is sufficient that the cause is set in motion by the defendant or that the person is subjected to its application by means of any act or control which the defendant exerts. To take an example, when one put an insect into another’s coffee though only as a joke, such person would probably be convicted of an assault under English law. 10  It must be pointed out that under English law, unlawfully inflicting grievous bodily harm without strict statutory “intent” is not known to the law as a specific offense and can be dealt with as a mere form of assault. If it is inflicted by mere negligence, however, gross, it is not even an assault; and thus is no offense at all, unless death results from it.

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window. And, likewise, had the stone been flung at the window and then intercepted on its flight by the head of someone who unexpectedly looked out of the window, the thrower would not necessarily have committed an unlawful injury to this person. In either of these two cases, however, there would be a sufficient intent, if the person who threw the stone in the desire of doing the one kind of harm knew that it was likely that the other kind might be done and felt reckless as to whether it was done or not, although he/she did not go so far as actually to desire it. But if the harm done was of the kind intended, this would be sufficient even though it was produced in some degree, or in some manner, or upon some subject that was not intended. For example, suppose a man aims a blow at another man with his belt, but the belt bounds off and strikes a woman who is standing by and cuts open her face. In this case, the person would probably be held guilty of ordinary bodily harm. Much confusion hangs around the three similar words  – intent, intention, and purpose. Clearly “purpose” always involves the idea of a desire (Saengthian 2004). So, also, in popular parlance does “intention” as a person is not ordinarily said to “intend” any consequences of his/her act which he/she does not desire but regrets to have to run the risk of (e.g., when he/she shoots at an enemy, though seeing that a friend is close to the line of fire). Yet in law it is clear that the word “intention,” like the word “intent,” covers all consequences whatever which the doer of an act foresees as likely to result from it whether he/she does the act with an actual desire of producing them or only in recklessness as to whether they ensue or not. The fact that a person had means of knowing a consequence to be likely raises a prima facie presumption that such person did actually foresee it as being so. There is a great difficulty in obtaining any evidence to rebut this presumption, that it is rendered practically equivalent to a conclusive one. Thus, it is sometimes spoken of as if it strictly were conclusive. Accordingly, to give legal proof of intent is less difficult than might theoretically have been expected. If the act was unlawful, done with a bad motive, and was at all likely to cause injury of the kind that did in fact result, there is enough prima facie proof of intent to warrant a conviction. Hence, if Aew is engaged in shooting a wildfowl, and Pum fires a gun in the direction of Aew’s boat with the mere object of frightening Aew so as to make her give up her sport, but, owing to the boat’s being suddenly turned about, the shot actually strikes Aew, a court may consider that there is sufficient evidence of intent on the part of Pum. Likewise, if Aew, merely in order to frighten Pum, points at him a gun which she knows to be loaded and then, in consequence of Pum’s own act in seizing the muzzle, the gun accidentally goes off and shoots Pum, a court may probably consider that there is a sufficiently “unlawful” ordinary bodily harm and convict the accused of this minor offense.11

11

 Acquitting then the accused of the bodily harm with intent to do grievous bodily harm.

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8.4  Justifiable Violence The exercise of force against the body of another person is not always unlawful provided that the amount of force used is not more than is proportionate to the immediate need. There are three principal occasions on which the exercise of force against the body of another person is legally justifiable: firstly, in the furtherance of public authority as in preventing a breach of the peace, arresting a suspected offender, or executing any process issued by a court of law – this has been already sufficiently considered in discussing the subject of homicide; secondly, in correcting either children or minors who have been placed under one’s authority  – the limits of this right have also already been considered; and thirdly, in defending either the person or the existing lawful possession of any property (whether it consist of lands or merely of goods). Nature prompts a person who is struck to resist, and such person is justified in using such a degree of force as will prevent a repetition. Nor is it necessary that the victim should wait to be actually struck, before striking in legitimate defense. If one party raises a threatening hand, then the other may strike. Nor is the right of defense limited to the particular person assailed. It includes all who are under any obligation, even though merely social and not legal, to protect him/her. The old authorities exemplify this by the cases of children defending their parents, employers defending their employees, or employees defending their employers (and perhaps the courts would now take a still more general view of this duty of the strong to protect the weak). A familiar instance under Thai law is the force exercised by any persons in authority to remove one who persists in disturbing a public meeting. The justification, however, extends only to blows struck in sheer legitimate defense and not in revenge. In case all the danger is over and no more blows are really needed for defense but the defender still strikes one, he/she commits the offense of bodily harm. It was held, however, by the Supreme Court, that a person violently and causelessly assaulted by another is not limited to the use of force so long only as the necessity for legitimate defense exists but may use force against the aggressor within the natural limits of the provocation received. The numerous decisions that have been given as to the kind of weapons that may lawfully be used to repel an assailant are merely applications of this simple principle. Hence, where persons are attacked with such extreme violence that their own life is in danger, they are justified in even killing their assailant. In contrast, the use of firearms or other deadly weapons will not be deemed necessary to resolving a mere ordinary assault. And, likewise, a knife is not usually a proper instrument of legitimate defense but must only be employed where serious bodily danger is apprehended or where a robbery, i.e., a theft by violence, is to be prevented. Thus, it is unjustifiable for a person to use it where the attack upon him/her is made with a mere strap.12

 It should, however, be noted that where more force than was necessary has been used for legitimate defense, the case is not to be treated as if all the force employed had been illegal. The fact that

12

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The right of legitimate defense extends, to the defense not only of person but also of property. Hence, force may lawfully be used in expelling anyone who is trespassing if no milder mode of getting rid of him/her would avail.13 Thus, if such entry had itself been conducted forcibly, as by housebreaking or even by breaking open a gate, force may at once be used to expel the trespasser. But in the case of ordinary peaceful trespassers, it will not be until they have first been requested to depart, and they have failed to comply with the request, that they may lawfully be ejected by the strong hand. Disturbance of a real right is wrong in the nature of trespass, and therefore force may be used to prevent it. For example, one cannot kill or use a deadly weapon to prevent a mere trespass on his/her property not amounting to an attempt to commit a crime with force and surprise. Persons in charge of railway stations and other public places may use such force as is reasonably necessary, short of taking life or inflicting grievous bodily harm, to eject persons creating a disturbance or who will not comply with reasonable rules and regulations.14 A similar right exists in the case of movable property. Force may accordingly be used to resist anyone who attempts to take away one’s goods from him/her. But this alleged right to use force, not merely to protect an existing possession but to create one, is not an acceptable plea.15 In the case of real property, it certainly does not exist. A landlord may commit an indictable offense by “forcibly entering” a house, although it is his/her own, if any full though unlawful possessor is excluding him/ her. For real property, unlike personal, is in no danger of being meanwhile destroyed, or lost, if the owner waits for the intervention of the law to recover it. There is, further, a legal justification for acts that are done by consent of the person assaulted unless the force constitutes a breach of the peace or serious bodily injury. Volenti non fit injuria. Thus, seduction is not considered to be an offense of bodily harm, either in the law of crime or even in that of tort. For consent to be a defense, the bodily harm must not be with intent to commit such a crime, that if accomplished, consent would be no excuse. But the consent must be given freely, without force, fear, or fraud, and by a sane and sober person, so situated as to be able to form a reasonable opinion upon the matter to which consent is given. To take an example, an impostor who, by

part of it was justifiably exerted may be considered by the court in mitigation in pronouncing sentence. 13  Under Section 362 of the Penal Code, “Whoever, entering into the immovable property belonging to the other person so as to take possession of such property in whole or in any part or entering into such property to do any act disturbing the peaceful possession of such person, shall be imprisoned for no more than one year or fined not more of twenty thousand baht, or both.” 14  There is, again, a legal justification for the light degree of force involved in those petty instances of contact which inevitably arise in the ordinary social intercourse of everyday life such as tapping a friend’s shoulder to attract his/her attention or jostling past one’s neighbor in a crowd. But, to be thus justifiable, these acts must be done bona fide, and with no unusual vehemence. 15  Likewise, force cannot be used to recapture the goods or money when rightful possession thereto has been momentarily interrupted by force or fraud.

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pretending to be a surgeon, induces an invalid to be operated upon by him, will be guilty of bodily harm, notwithstanding the consent which was nominally given.16 As regards the mental capacity to consent, it may be mentioned that, in the case of sexual intercourse, the legislature has stated a definite age below which a child cannot give a valid consent to sexual intercourse without the act constituting rape nor give a consent that will excuse a sexual intercourse coming short of rape (in Thai gaan lûang gern taang pâyt gàp pôo yao). According to the Thai criminal law, that age is fifteen years. A child below that age is incapable of consenting to a sexual intercourse.17 Furthermore, the Thai Penal Code provides that if the sexual intercourse occurs with a child not yet over thirteen years of age, the offender will be punished with imprisonment of seven to twenty years and fined of one hundred forty thousand to four hundred thousand baht or imprisonment for life.18 And, again, even the most complete consent, by the most competent person, will not suffice to legalize a sexual intercourse.19 The interests of the State similarly preclude the consent of the person injured from affording any defense where the violence exercised and consented to involve some extreme and causeless injury to life, limb, or health. If, therefore, one of the parties to a fight is injured, his/her consent is no excuse. Yet it is uncertain at what degree of danger the law thus takes away a person’s right to consent to be placed in situations of peril (as, for instance, by deciding to bungee jump from a small platform of a bridge). But in the case of a surgical operation carried out by a competent surgeon, however, great be the risk, there will usually be adequate cause for running it, and so the patient’s consent will be full justification for what would otherwise be an aggravated bodily harm. And even injuries which are occasioned in the course of a mere game, if it is a lawful one and is played with due care, are not regarded as causeless. These rules as to the amount of violence which constitutes an offense of bodily harm, and as to the circumstances which will excuse that violence, hold equally good under tort law and criminal law. But it is not quite certain whether those two branches of law are similarly identical in their rules as to the state of mind which will render a person liable for the exercise of such violence as has been shown to be a forbidden act. In actions of tort, either intention or even mere negligence – if the degree of negligence be gross – will suffice to render the wrongdoer liable to pay damages. But great doubt is expressed, both in academic writing and judicial

 In the application of the maxim “fraud vitiates consent.”  Section 277 of the Penal Code states “Whoever, has sexual intercourse with a person who has not attained the age fifteen years and not being the spouse, whether such person has consented or not, shall be punished with imprisonment of five to twenty years and fined of one hundred thousand to four hundred thousand baht.” 18  It should be noticed that for the purpose of sexual offenses, the age of consent was raised to fifteen in the Criminal Code Amendment Act (No. 19) B.E. 2550 (2007). 19  It is interesting to note that there was a provision in the original version of the Criminal Code of 1908 which stated “if a man has sexual intercourse with a girl over thirteen years but not yet over fifteen years of age with her consent and the court grants such man and girl the right to get married afterwards, the man shall not be punished for such offence.” 16 17

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opinions, as to whether any bodily harm can render a person liable to criminal punishment unless it were committed with actual intention. The reported cases, however, go no further than to show that no indictment will lie where there is not even negligence.20

8.5  Offenses Against Liberty and Reputation There are many other offenses against the person not necessarily endangering human life which remain to be considered. Many of them are regulated under Book II, Title XI, Chapter 1 of the Penal Code. The basic offense defined within this category is the illegal detention. It is a substantive petty offense under Thai law and is recognized as such by the Penal Code which states “Whoever, detains or confines another person, or by any other means whatever, deprives such person of the liberty, shall be punished with imprisonment not exceeding three years or fined not exceeding sixty thousand baht, or both” (Section 310).21 In essence, the rationale behind this crime is to protect the interests of the society against the unlawful restraint of a person’s liberty and involves the unlawful detention of the body of another without his/her consent by force actual or constructive. Imprisonment as regards this crime means any form of detention or restraint upon another’s liberty, whether it is confinement in a public prison or jail, a private building, or even a forcible detention out of doors. Actual force is not necessary. A detention resulting from threats or putting in fear will suffice. The detention must be involuntary. Therefore, there is no illegal detention when one is decoyed as a joke and go willingly. With regard to the intention, Section 311 of the Penal Code punishes the crime of detention by negligence as it states “Any person who negligently detains, confines or deprives of liberty another, shall be punished with imprisonment not

 Under English law, there are provisions making assaults with specific intent to commit other crimes, substantive offenses, even when the other crime intended is not fully consummated. Many of these are made felonies, while others less aggravated are misdemeanors. An assault with intent to kill is without doubt a common-law crime. Many states have laws making an assault with intent to murder a substantive offense. If the accused intended such killing which if committed would under the circumstances constitute manslaughter, it is the common-law crime of assault with intent to kill. If the evidence established such an intent that the killing if committed would be murder, the crime is the statutory one of assault with intent to murder. They also constitute attempts and are generally regarded as crimes from that standpoint also. Likewise, English law has also assaults with intent to rob and with intent to rape. To constitute these crimes, the specific intent becomes an essential element and must be established beyond a reasonable doubt to secure conviction. 21  If the commission of such offense, however, causes death or grievous bodily harm to the person detained, confined, or deprived of the liberty of person, the offender shall be punished as provided in Section 290, Section 297, or Section 298, of the Penal Code. 20

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exceeding one year or fined not exceeding twenty thousand baht, or both.”22 The detention must be unlawful, that is, without sufficient authority conferred by legal process, or a legal warrant issued by a legal officer having the power to commit, or arising from special cause sanctioned from the necessity of the thing (Na Nakhon 1992). A person who procures the false arrest of another without legal authority is guilty, though not present when the arrest is actually made. Another serious offense against liberty is slavery. According to the Thai criminal law, it is a criminal offense to forcibly abduct or steal away any person from his/her own country and send him/her into another. In this regard, Section 312 of the Penal Code disposes “Whoever, so as to enslave the person or to cause the person to be in the position similar to the slave, bringing into or sending out of the kingdom, removing, buying, selling, disposing, accepting or restraining any person, shall be imprisoned not out of seven years and fined not more of one hundred forty thousand baht.” If the crime of reduction to slavery is committed against a minor under fifteen years of age, the offender will be punished with imprisonment of three to ten years and fined not exceeding two hundred thousand baht. Child slavery is sanctioned more severely if it causes bodily harm or mental harm to the victim. In such circumstances, the offender will be punished with imprisonment of five to fifteen years and fined not exceeding three hundred thousand baht.23 But where death ensues from slavery, the penalty is death, imprisonment for life, or imprisonment of fifteen to twenty years.24 Further, the Thai Penal Code sets forth the crime of gaan lák paa dtua (i.e., kidnapping), which is defined as the forcible abduction or stealing of a person from the protection of the home or business. More precisely, Section 317 of the Thai Penal Code states “Whoever, without reasonable cause, takes away a child not yet over fifteen years of age from the parent, guardian or person looking after such child, shall be punished with imprisonment of three to fifteen years and fined of sixty thousand to three hundred thousand baht.”25 By the same token, if a person takes

 Furthermore, if the commission of the offense of negligent detention causes death or grievous bodily harm to the person detained, confined, or deprived of the liberty of person, the offender will be “imprisoned not out of ten years or fined not out of two hundred thousand baht” (if death results) or “imprisoned three years or fined not out of sixty thousand baht, or both” (if grievous bodily harm results). 23  In case, however, child slavery does not cause simply injuries but have resulted in grievous bodily harm to the victim, the offender will be punished with imprisonment for life or imprisonment of seven to twenty years. 24  When the crime of reduction to slavery is committed in order to obtain a ransom, the offender will be punished with an imprisonment term of fifteen to twenty years and a fine of three hundred thousand baht to four hundred thousand baht, an imprisonment for life, or death sentence (Section 313, Penal Code). Furthermore, the Code states “Whoever, to be a supporter to the commission of the offence according to Section 313, shall be liable to the same punishment as a principal in such offence.” 25  It is important to add that whoever dishonestly buys, disposes of, or accepts such child to be taken away will be liable to the same punishment as the person who takes the child away. If the offense of kidnapping, however, has been committed for lucre or indecent purpose, the offender 22

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away a minor over fifteen years but not yet over eighteen years of age from the parent, guardian, or other person having charge of such minor against his/her will, he/ she will be punished with imprisonment of two to ten years and fined of forty thousand to two hundred thousand baht (Section 318, Penal Code). These provisions are not directed to the case where the parents of a child are separated and one parent decoys or forcibly takes the child away from the other parent who happens to have its custody. The purpose is to compel the question of the proper custody to be judicially determined. It might also be added that in recent years very stringent acts have been passed designed to punish the stealing of children from their parents and holding them for ransom (in Thai kâa tàai): the cruelest form of atrocity of increasing prevalence during the past few years.26 Section 1 of the Thai Penal Code defines “ransom” as a property of benefit demanded or given in exchange for the liberty of the person who is taken away, held, or confined. As regards parental child abduction, it is not considered to be a criminal offense in Thailand. Generally speaking, taking a child away from the other parent is viewed as a disagreement between parents to be settled as a civil matter in a court of law. In the case of international child abduction, however, it is important to point out that Thailand has signed and acceded to the Hague Convention on the Civil Aspects of International Child Abduction B.E. 2523 (1980). The Hague Convention on Child Abduction refers to a multinational treaty that aims to protect children from the effects of harmful removal or retention at an international level. It creates a legal framework to protect the rights of children who have been abducted by one of their parents to a foreign country and establishes procedures to ensure their prompt return to the State of their habitual residence. The objective of the Convention is not only to secure the return of the wrongfully abducted children from the contracting state but also to give reassurance that custody rights on the law in one contracting state are being respected by the other contracting state in an effective manner (Schnitzer-­ Reese 2004).27 More precisely, the crux of any case governed by the Hague Abduction Convention is jurisdiction based on habitual residence. Under Article 3 of the Convention “The removal or the retention of a child is to be considered wrongful where: 1) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and 2) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” Following the provisions of The Hague Convention, Thailand has passed the International Civil Cooperation on the Breach of Rights of Custody Act, B.E. 2555 (2012), also known as the Thailand Child Abduction Act, which took effect on April 9, 2013, to give effect to parental rights in international abduction situations. will be punished with imprisonment of five to twenty years and fined of one hundred thousand to four hundred thousand baht. 26  Thai Penal Code permits the death penalty in case of kidnapping for ransom. 27  For The Hague Convention to be operational between signatory states, the older member needs to accept the accession of the new member.

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According to Section 6, “The person who claims the breach of his/her control and custody rights may request the return of a child who has been removed to or retained in Thailand to the habitual residence in a foreign country immediately before the removal or retention by filing an application with the central authority of the country where the child was habitually resident or the Central Authority, in accordance with the rules prescribed by the Central Authority.” With regard to the offenses against reputation, Book II, Title XI, Chapter 3 of the Penal Code sanctions the crime of defamation. As has already been noted, most crimes are also wrongful acts. But the most conspicuous illustration of this is afforded by defamation. It is a crime which not only is a tort but is often treated as such in actual practice. And again, it is a crime which, unlike most others, is often committed by persons whose pecuniary means are large enough to enable them to pay whatever compensation a civil court may award. Defamation crimes, indeed, are much more frequently followed up by civil than by criminal proceedings. For courts usually hold indictments for defamation restricted to those cases in which the defamation is aggravated either by its intrinsic gravity or by its obstinate repetition. Thus, a detailed exposition of the general principles of the law of libel should be sought rather in books on wrongful acts than in those devoted to criminal law (Stasi 2016). It will, therefore, probably be sufficient for the purposes of the present volume to indicate very briefly the fundamental principles, which are common to both the civil and the criminal law of libel, and then explain the distinguishing features of the latter aspect of this wrong. Section 326 of the Penal Code states that “Whoever imputes anything on another person to a third party in a manner likely to impair the reputation of that person or expose him/her to hated or contempt, is said to commit defamation.” Civil liability for defamation is regulated under Section 423 of the Civil and Commercial Code, which disposes that any person who, contrary to the truth, asserts or circulates as a fact that which is injurious to the reputation or credit of another, or his/her earnings or prosperity in any manner, should compensate the injured party for any resulting damage. The fact that the defendant is unaware that a “statement is false does not constitute a defense if a reasonable person should have known that it was false” (Stasi 2015). No civil action for a libel upon a person deceased can be maintained by his/her representatives; for the dead have no legal rights and can suffer no legal wrongs. But in those extreme cases where the libel, under the guise of attacking the dead person, attacks living ones by bringing his/her posterity into contempt or hatred, they – like any other class of persons who are injured by a libel – may obtain protection from the criminal law (Na Nakhon 1992). Section 327 of the Code provides that “Whoever makes any imputation regarding a deceased person to a third party which is likely to impair the reputation of his/her father, mother, spouse or child of the deceased or to expose the deceased to hatred or contempt, is said to commit defamation, and shall be punished as prescribed by Section 326.” Yet to extend that protection to the case of ordinary attacks upon the reputation of persons deceased would be to impose an intolerable restraint upon the literary freedom of every writer of modern history especially as the lapse of time might have rendered it impossible for him/her to obtain legal proof of the truth of his/her statements and as that truth, moreover, even

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if proved, might not be of sufficient public moment to constitute a statutory defense to criminal proceedings. Historical criticism may, no doubt, cause much pain to the descendants of the person criticized; but mere mental suffering never suffices, by itself, to render wrongful, either criminally or civilly, the acts which cause it, since usually it is largely due to individual peculiarities. If the offense of defamation is committed by means of publication of a document, drawing, painting, cinematography film, picture or letters made visible by any means, gramophone record or other recording instruments, recording picture or letters, or broadcasting or spreading picture, or by propagation by any other means, the offender will be punished with imprisonment not exceeding two years and fined not exceeding two hundred thousand baht (Section 328, Penal Code). A libel is such a writing or picture as either defames an individual (“private” libel) or injures religion, government, or morals (“public” libel). Public libels are sometimes classified as blasphemous libels, obscene libels, and seditious libels. Anyone who publishes a defamatory document concerning another person, so as to tend to bring him/her into hatred, contempt, or ridicule, is guilty of “publishing a defamatory libel.” This “document” may consist of either a written or a pictorial composition (e.g., even of an effigy suspended from a mock gibbet). The publication need not be “malicious” in the popular sense of that word, i.e., it need not be due to spite, or, as it is called “express intent.” The law draws from the fact of publishing such matter, without any of the recognized legal grounds of excuse, an absolute presumption that the publication was malicious. It would probably not be strictly necessary for the prosecutor or plaintiff to make in his/her pleadings any formal allegation that the libel was published maliciously. The law of libel has thus, at last, worked itself free from entanglement with the old fictions of a “constructive intent.”28 Everyone who circulates, or authorizes the circulation of, a libel is prima facie regarded as publishing it. But if he/she can be shown to have been a mere unconscious instrument (as, for instance, is generally the case with a newspaper hawker), this will be a sufficient defense, some mental element being necessary to constitute such an act of “publication” as will render the doer responsible for it. There are certain occasions upon which the publication of what would on ordinary occasions be a libel becomes privileged. Section 329 of the Penal Code states that “Whoever, in good faith, expresses any opinion or statement: (1) by way of self-justification or defense, or for the protection of a legitimate interest; (2) in the status of being an official in the exercise of his/her functions; (3) by way of fair comment on any person or thing subjected to public criticism; or (4) by way of fair report of the open proceeding of any court or meeting, shall not be guilty of defamation.” Such a privilege may be either absolute (e.g., for publication in a legislative assembly and pertinent and material pleadings in a court of justice) or qualified (i.e., arising prima facie but ceasing if the prosecution shows that the publication was  The defamatory meaning which the document is alleged to have conveyed must be one which was reasonably capable of being conveyed to ordinary people and which it actually did convey to the particular person to whom it was published.

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made with a spiteful motive or, in other words, that there was “express” intent on the part of the defendant). A privilege of this qualified character is conceded to matter that is published under a legal or even a social duty or for the protection of any of the interests of the person publishing it (or probably even of the interests of the person to whom it is published); to fair and accurate reports of parliamentary or judicial proceedings; and also, to such fair and accurate reports of public meetings or of open sittings of public bodies, as are published in a newspaper and relate to some matter of public concern. It is the function of the judge to decide whether the document is reasonably capable of bearing the alleged defamatory meaning; whether the occasion was privileged; and – where there exists a qualified privilege – whether there is any evidence of express intent. But though the criminal and the civil rules as to cases of libel are, fundamentally, thus similar, they differ as regards some three minor points. These are the following: First, no civil action will lie for a libel unless it has been published to some third person, since the sole object of such an action is to secure to the plaintiff compensation for the wrongful loss of that esteem in which other people formerly held him/ her. Thus, a defamatory letter addressed to the very person defamed will not, in the ordinary course, be actionable, though a defamatory postcard will be. But the reason for the criminal prohibition against libels is, on the other hand, their tendency to provoke the libeled individuals into committing a breach of the peace, and this tendency is naturally greatest when it is directed to them that the defamation is addressed. Accordingly, a publication to the actual person defamed is quite sufficient to support an indictment. Second, the truth of the matter complained of has always been a good defense in a civil action for libel as it shows that the plaintiff has no right to that reputation which he/she claims compensation for being deprived of. Section 330 of the Penal Code disposes that “In case of defamation, if the person prosecuted for defamation can prove that the imputation is true, he/she shall not be punished.” This permission is, however, subject to a proviso that the defendant must further allege expressly, and prove, that it was for the public benefit that the matter in question should be made known. Section 330, second paragraph, of the Code, in fact, adds that “The person prosecuted for defamation shall not be allowed to prove that the imputation is true, if such imputation concerns personal matters, and such information does not provide any benefit to the public.” The existence of this provision makes it possible to repress the publication of statements which, though quite true, are objectionable, whether on grounds of decency, as being disclosures of state secrets, or as being painful yet needless intrusions into the privacy of domestic life. It may be for the public benefit to make it known that a person is suffering from an infectious fever, but not that he/ she is suffering from heart disease or from some carefully concealed deformity. Third and last point, there is no civil action for libeling a class of persons, if, as must usually be the case, its members are too numerous to join as plaintiffs in a litigation. But since it is not by the persons injured but by the government that criminal proceedings are carried on an indictment will lie, provided only that the class

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defamed be not an indefinite (e.g., “the men of science,” “the Red Shirt Political Party”) but a definite one (e.g., “the monks of the monastery of the Great Relic”). Libel is a petty offense, punishable with imprisonment not exceeding one year or fine not exceeding two hundred thousand baht or both, which enables the court in fixing the penalty upon a conviction, to exercise a sound discretion in view of the degree of the crime. According to Section 332 of the Penal Code, in case of defamation in which judgment is given that the accused is guilty, the court may give order to seize and destroy the defamatory material and publish the judgment in one or more newspapers once or several times at the expense of the accused.

8.6  Offenses Relating to Sexuality29 Book II, Title IX, of the Penal Code sanctions “offenses relating to sexuality.” The chief of these offenses is gaan kòm kĕun (i.e., rape), involving in the consideration the lesser crimes of an attempt to commit it or assaults with such intent. It has always been one of the principal crimes under the Thai Penal Code and in many instances is punishable by a long term of imprisonment. It is defined as the act of a person having unlawful nonconsensual sexual intercourse with another person. Accordingly, any person who has nonconsensual sexual intercourse with another person, by threatening by any means whatsoever, by committing  any act of violence, by taking advantage of the victim being in the condition of inability to resist, or by causing the victim to misunderstand him/her to be some other person, will be punished with imprisonment of four to twenty years and fined of eighty thousand to four hundred thousand baht (Section 276, Penal Code).30 Rape must be unlawful; that is, the victim must not give consent to the accused.31  The medieval English law adopted, in all their entirety, the lofty ethical teachings of Christianity as  to  the  mutual relations of  the  sexes. Those teachings are, for  example, strictly followed by the  common law in  its doctrine of  contract, when deciding what agreements shall be  regarded as too immoral for the courts to enforce. And the same teachings were enforced by punitive sanctions in the ecclesiastical courts. But the common law had no penal prohibitions of similar comprehensiveness. Its criminal rules imposed sanctions only for those grosser breaches of sexual morality that were rendered peculiarly odious, either by the abnormality of the form they took or by the violence with  which they were accompanied; aggravations to  which the  legislature subsequently added that of the tender age of the female concerned in them. Thus, the voluntary illicit intercourse of the sexes, even though it might take the form of prostitution or of an adulterous violation of marital legal rights, furnished at common law no ground for a criminal indictment. Such a limitation of the sphere of criminal law is abundantly justified by the considerations, which have been already set out, that distinguish those injurious acts that can prudently be repressed by criminal sanctions, from such as will more fitly be left to be restrained by the penalties of social opinion and of religion. 30  If the offense is committed by carrying or using any gun or explosive, the offender will be punished with imprisonment of fifteen to twenty years and fined of three hundred thousand to four hundred thousand baht or imprisonment for life. 31  According to Section 277 bis of the Penal Code, “If the commission of the offence of rape causes grievous bodily harm to the victim, the offender shall be punished with imprisonment of fifteen to twenty years and fined of three hundred thousand to four hundred thousand baht, or imprisonment 29

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To commit this crime, there must be a coerced penetration (oral, anal, or vaginal). It may, however, be slight and circumstantially proved. Emission is not essential. Force does not necessarily mean violence: it must be sufficient to overcome resistance. There must be a lack of consent if the victim is not of sufficient lawful age to give consent and mentally capable of giving it. The consent must be voluntary, that is, not induced by fear and not procured by fraud (Chen and Triratpan 2020). The non-consent must be persistent. If the victim ultimately consents to the act, it will not be rape whatever the force and resistance at the outset. If the victim did not consent to and resisted the person’s initial assault but finally abandoned resistance and consented to the act, the person would be guilty of bodily harm with intent to rape, but not of rape. The importance of resistance is to show two essential elements of the crime, carnal knowledge by force, and non-consent. The whole question is one of fact.32 The force may be constructive, not actual, when the victim is incapable of giving consent by lack of age or mental incapacity, when he/she is passive through fear of death or bodily harm, and when apparently consenting on account of fraud. Under Thai law the age, under which the victim is conclusively deemed incapable, is fifteen years. In this sense, Sections 277 and 279 of the Penal Code punishes rape and physical sexual assault of a child as well as indecent acts. Section 277 of the Code states “Whoever, has sexual intercourse with a person who has not attained the age fifteen years and not being the spouse, whether such person has consented or not, shall be punished with imprisonment of five to twenty years and fined of one hundred thousand to four hundred thousand baht.”33 Section 279 adds “Whoever, commits an indecent act on a child not yet over fifteen years of age, whether such child shall consent or not, shall be punished with imprisonment not exceeding ten years or fined not exceeding two hundred thousand baht, or both. If the commission of the offence according to the first paragraph, the offender commits it by threatening by any means whatever, by doing any act of violence, by taking advantage of such child being in the condition of inability to resist, or by causing such child to mistake ­him/ her for another person, the offender shall be punished with imprisonment not exceeding fifteen years or fined not exceeding three hundred thousand baht, or both.” Valid consent is also lacking, and constructive force is present if the victim is insane or so drunk as not to know what is being done. The fact that the victim is a prostitute, or the person’s mistress, is not a defense.34 It is no defense for the accused to say that he/she did not know that the victim was under the statutory age or that at for life. If it causes death to the victim, the offender shall be punished with death or imprisonment for life.” 32  It is important to add that if rape does not occur in public, does not cause grievous bodily harm or death of the victim, and is not committed against a minor, it is classified as a compoundable offense (Section 281, Penal Code). 33  If the offense is committed by carrying or using any gun or explosive, the offender will be punished with imprisonment for life. 34  This fact could be shown, however, and would be important evidence upon the question of her consent.

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the time the victim consented. If, however, the accused did not know that the victim was insane and the victim consented, then the accused is not guilty of rape. It must be shown that the accused knew of the defective mental condition and took advantage of it. There is also constructive force and lack of consent if the victim is so drunk as to be senseless or unconscious from other causes or even asleep. While consent is presumed from the victim’s nonresistance, it will not be so if the victim submits from terror or the dread of greater violence, caused by threats. To what extent fraud will be considered on a par with actual force, is not so clear. If the victim submits because of the person’s promises, there is no rape even though the person had no intention of fulfilling them. If the victim is persuaded by blandishments or fraudulent representations, it is not rape, provided that the consent was voluntarily given. To illustrate, if a woman submits, upon the person’s representations, that a pretended marriage is legal, which is in fact a fraud, it would probably be held not to be a case of rape. In case she is told that it is a necessary part of medical treatment and she accepts to have sexual intercourse under that belief, the offense will not be considered as rape but bodily harm merely. When, on the other hand, she is passive upon the representation that a surgical operation is to be performed upon her, the act would be deemed to be rape as she consents to one thing and the person does another by fraud. When the woman submits under the belief that the person is her husband, courts may hold that the person’s fraud vitiates her consent. It is important to point out that seduction is not a crime (Kitisuphakarn 2019). The Thai Penal Code, however, defines and severely punishes the crime of “Indecency for Another Person by Deception, Threat, or Force” stating “Whoever, in order to gratify the sexual desire of another person, procures, seduces or takes away for indecent act another person by using deceitful means, threat, doing an act of violence, unjust influence or mode of coercion by any other means, shall be punished” (Section 283). This means that a person who entices a woman by persuasions, enticements, and promises, to have intercourse with another person, will face imprisonment of five to twenty years and fined of one hundred thousand to four hundred thousand baht. There are certain other offenses against the person referred to as “sexual trafficking” and “human trafficking” which are punished under the Thai Penal Code.35 More precisely, Section 319 of the Code disposes that whoever takes away a minor over fifteen years of age but not yet over eighteen years of age, from the parent, guardian, or person looking after such minor for lucre or indecent purpose with the consent of such minor, will be punished with imprisonment of two to ten years and fined of forty thousand to two hundred thousand baht.36 Furthermore, Section 320 provides that “Whoever, by using fraudulent or deceitful means, threat, violence, unjust influence or any other means of compulsion, takes or sends a person out of the kingdom, shall be punished with imprisonment of two to ten years or fined of

 Sex Trafficking in Southeast Asia: A History of Desire, Duty, and Debt By Trude Jacobsen.  Likewise, a person who dishonestly buys, disposes, or accepts a minor to be taken away will be liable to the same punishment as the person who takes such minor away.

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References

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forty thousand to two hundred thousand baht, or both. If the commission of the offence according to the first paragraph be committed in order that the person taken or sent out to be under the power of the other person unlawfully, or in order to abandon such person to be in a helpless condition, the offender shall be punished with imprisonment of three to fifteen years and fined of sixty thousand to three hundred thousand baht.”

References Chen, J., & Triratpan, P. (2020). Black Magic, Sex Rituals and the Law: A Case Study of Sexual Assault by Religious Fraud in Thailand. UCLA Pacific Basin Law Journal, 37(1), 25-57. Kitisuphakarn S. (2019). Criminal Law: Principles, Rules and Practices. Phan Tamruat To Ying Sunthari Sansoen, Bangkok. Na Nakhon K. (1992). Kot Mai Aya Phak Khwamphit [Criminal Law: Penal Code]. Thammasat University Press, Bangkok. Saengthian B. (2004). Kot Mai Aya Sam [Criminal Law Part Three]. Witthaya Phat Press, Bangkok. Schnitzer-Reese, E. A. (2004). International Child Abduction to Non-Hague Convention Countries: The Need for an International Family Court. Northwestern Journal of Human Rights, 2(1), 1. Stasi, A. (2015). Principles of Thai business law. Cengage, Singapore. Stasi, A. (2016). Elements of Thai civil law. Brill, Leiden and Boston.

Chapter 9

Offenses Relating to the Security of the Kingdom

In consideration of the strict lèse-majesté (in Thai gaan mìn prá bor-rom day-chaa-­ nú-pâap)1 laws which are in force in the kingdom of Thailand, this chapter will provide an overview of the most relevant legal provisions relating to the security of the kingdom rather than a complete and uniformly comprehensive disquisition on the subject.

9.1  Constitutional Provisions Chapter 2: The King Section 6. The King shall be enthroned in a position of revered worship and shall not be violated. No person shall expose the King to any sort of accusation or action. Section 7. The King is a Buddhist and Upholder of religions. Section 8. The King holds the position of Head of the Thai Armed Forces. Section 9. The King has the Royal Prerogative to create and remove titles and confer and revoke decorations. Section 10. The King selects and appoints qualified persons to be the President of the Privy Council and not more than 18 Privy Councilors to constitute the Privy Council. The Privy Council has the duty to render advice to the King on all matters pertaining to His functions as He may consult and has other duties as provided by the Constitution. Section 11. The selection and appointment or the removal of a Privy Councilor shall be at the King’s pleasure.

 The French word lèse-majesté means to defame a member of royalty.

1

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 A. Stasi, General Principles of Thai Criminal Law, https://doi.org/10.1007/978-981-15-8708-5_9

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The President of the National Assembly shall countersign the Royal Command appointing or removing the President of the Privy Council. The President of the Privy Council shall countersign the Royal Command appointing or removing other Privy Councilors. Section 12. A Privy Councilor shall not be a Member of the House of Representatives, a Senator, a person holding any other political position, a judge of the Constitutional Court, a person holding a position in an Independent Organ, an official of a State enterprise, another State official, or a member or official of a political party or a government official other than an official of the Royal Household holding a position of Privy Councilor, and shall not manifest loyalty to any political party. Section 13. Before taking office, a Privy Councilor shall make a solemn declaration before the King in the following words: I, (name of the declarer), do solemnly declare that I will be loyal to His Majesty the King and will faithfully perform my duties in the interests of the country and of the people. I will also uphold and observe the Constitution of the kingdom of Thailand in every respect.

Section 14. A Privy Councilor vacates office upon death, resignation, or removal by Royal Command. Section 15. The appointment and removal of officials of the Royal Household shall be at the King’s pleasure. The organization and personnel administration of the Royal Household shall be at the King’s pleasure, as provided by Royal Decree. Section 16. Whenever the King is absent from the kingdom or unable to perform His functions for any reason whatsoever, the King may appoint one person or several persons forming a council as Regent. In the case where a Regent is appointed, the President of the National Assembly shall countersign the Royal Command therefor. Section 17. In the case where the King does not appoint a Regent under Section 16 or is unable to appoint a Regent owing to Him not being sui juris or any other reason whatsoever, but the Privy Council is of the opinion that it is necessary to appoint a Regent and is unable to inform the King to make an appointment in due course, the Privy Council shall propose the name of one person or several persons forming a council sequentially from those determined in advance by the King to be Regent and notify the President of the National Assembly to make an announcement, in the name of the King, to appoint such person as Regent. Section 18. While there is no Regent under Section 16 or Section 17, the President of the Privy Council shall be Regent pro tempore. In the case where the Regent appointed under Section 16 or Section 17 is unable to perform his/her duties, the President of the Privy Council shall act as Regent pro tempore. While being Regent under paragraph one or acting as Regent under paragraph two, the President of the Privy Council shall not perform his/her duties as President of the Privy Council. In such a case, the Privy Council shall elect one Privy Councilor to act as President of the Privy Council pro tempore.

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Section 19. Before taking office, the Regent appointed under Section 16 or Section 17 shall make a solemn declaration before the National Assembly in the following words: I, (name of the declarer), do solemnly declare that I will be loyal to His Majesty the King (name of the King) and will faithfully perform my duties in the interests of the State and the people. I will also uphold and observe the Constitution of the kingdom of Thailand in every respect. A Regent who has previously been appointed and made the solemn declaration need not make the solemn declaration again.

Section 20. Subject to Section 21, the succession to the Throne shall be in accordance with the Palace Law on Succession, B.E. 2467 (1924). The Amendment to the Palace Law on Succession, B.E. 2467 (1924), shall specifically be the Royal Prerogative of the King. At the initiative of the King, the Privy Council shall prepare the draft Palace Law Amendment to the existing Palace Law and shall present it to the King for His consideration. When the King has already approved the draft Palace Law Amendment and bestowed His signature thereon, the President of the Privy Council shall notify the President of the National Assembly who shall inform the National Assembly. The President of the National Assembly shall countersign the Royal Command. The Palace Law Amendment shall have force of law upon its publication in the Government Gazette. Section 21. In the case where the Throne becomes vacant and the King has already appointed an Heir to the Throne under the Palace Law on Succession, B.E. 2467 (1924), the Council of Ministers shall notify the President of the National Assembly. The President of the National Assembly shall convoke the National Assembly for acknowledgment thereof and shall invite such Heir to ascend the Throne and proclaim such Heir as King. In the case where the Throne becomes vacant and the King has not appointed an Heir under paragraph one, the Privy Council shall submit the name of the Successor to the Throne under Section 20 to the Council of Ministers for further submission to the National Assembly for approval. In this regard, the name of a Princess may be submitted. Upon the approval of the National Assembly, the President of the National Assembly shall invite such Successor to ascend the Throne and proclaim such Successor as King. Section 22. Pending the proclamation of the name of the Heir or the Successor to the Throne under Section 21, the President of the Privy Council shall be Regent pro  tempore. However, if the Throne becomes vacant while the Regent has been appointed under Section 16 or Section 17 or while the President of the Privy Council is the Regent under Section 18 paragraph one, such Regent, as the case may be, shall continue to be the Regent until the proclamation of the name of the Heir or the Successor to ascend the Throne as King. In the case where the Regent who has been appointed and continues to be the Regent under paragraph one is unable to perform his/her duties, the President of the Privy Council shall act as Regent pro tempore. In the case where the President of the Privy Council is the Regent under paragraph one or acts as the Regent pro tempore under paragraph two, the provisions of Section 18 paragraph three shall apply.

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Section 23. In the case where the Privy Council has to perform its duties under Section 17 or Section 21 paragraph two, or the President of the Privy Council has to be or act as Regent under Section 18 paragraph one or paragraph two or Section 22 paragraph two, and there is, during that period, no President of the Privy Council, or the President of the Privy Council is unable to perform duties, the remaining Privy Councilors shall elect one among themselves to act as the President of the Privy Council or to be or to act as Regent under Section 18 paragraph one or paragraph two or Section 22 paragraph two, as the case may be. Section 24. The making of a solemn declaration before the King under the Constitution or law may, by the King’s assent, be made before the Heir to the Throne who is sui juris or before a representative of the King. While a solemn declaration has not yet been made under paragraph one, the King may allow the person who has to make such solemn declaration to perform duties for the time being.

9.2  Penal Code Provisions Chapter 1: Offenses Against the King, the Queen, the Heir Apparent, and the Regent Section 107. Assassination of the King Whoever assassinates the King shall be sentenced to death. Whoever, attempting to commit the act as aforesaid, shall be punished in the same manner. Whoever, making any act as preparation for assassinating the King or knowing that there is the person who will assassinate the King, having made any act to assist in keeping the secret act, shall be sentenced to life imprisonment. Section 108. Act of Violence Against the King Whoever commits an act of violence against the King or His liberty shall be punished with death or imprisonment for life. Whoever attempts to commit such offense shall be liable to the same punishment. If such act is likely to endanger His life, the offender shall be punished with death. Whoever makes preparations for committing any act of violence against the King or His liberty or does any act to assist in keeping secret any intention to commit such offense shall be punished with imprisonment of sixteen to twenty years. Section 109. Assassination of the Queen Whoever assassinates the Queen, the Heir apparent, or the Regent shall be punished with death. Whoever attempts to commit such offense shall be liable to the same punishment. Whoever makes preparations for causing death to the Queen, the Heir apparent, or the Regent or does any act to assist in keeping secret any intention to commit such offense shall be punished with imprisonment from sixteen to twenty years. Section 110. Violence against the Queen

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Whoever commits an act of violence against the Queen or Her liberty, the Heir apparent or His liberty, or the Regent or his/her liberty shall be punished with imprisonment for life or imprisonment of sixteen to twenty years. Whoever attempts to commit such offense shall be liable to the same punishment. If such act is likely to endanger the life of the Queen, the Heir apparent, or the Regent, the offender shall be punished with death or imprisonment for life. Whoever makes preparations for committing an act of violence against the Queen or Her liberty, the Heir apparent or His liberty, or the Regent or his/her liberty or does any act to assist in keeping secret any intention to commit such offense shall be punished with imprisonment of twelve to twenty years. Section 111. Supporter of Offense Whoever be the supporter for committing any offense under Section 107 to Section 110 shall be punished in the same manner as the principal in such offense. Section 112. Insulting or Defaming Royal Family Whoever defames, insults, or threatens the King, the Queen, the Heir apparent, or the Regent shall be punished with imprisonment of three to fifteen years. Chapter 2: Offenses Against the Internal Security of the Kingdom Section 113. Overthrow the Government Whoever commits an act of violence or threatens to commit an act of violence in order to: –– Overthrow or change the Constitution –– Overthrow the legislative power, the executive power, or the judicial power of the Constitution or nullify such power –– Separate the kingdom or seize the power of administration in any part of the kingdom is said to commit insurrection and shall be punished with death or imprisonment for life. Section 114. Preparation to Overthrow the Government Whoever, collecting the forces or arms or otherwise making the preparations or conspiring to commit the insurrection, committing any offense as the part of the plot committing the insurrection, instigating the private persons to commit the insurrection, knowing that there are the persons to commit the insurrection, and making any act to assist in keeping such secret intention to commit such insurrection, shall be sentenced to imprisonment as from three to fifteen years. Section 115. Instigator of Mutiny Whoever instigates any member of the armed forces or the police forces to desert or not to perform his duties, or to commit mutiny, shall be punished with imprisonment not exceeding five years. If such offense is committed for the purpose of undermining the discipline and efficiency of the said armed forces or police forces, the offender shall be punished with imprisonment not exceeding ten years. Section 116. Instigator to Violate Constitution Whoever makes an appearance to the public by words, writings, or any other means which is not an act within the purpose of the Constitution or for expressing an honest opinion or criticism in order:

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–– To bring about a change in the Laws of the Country or the Government by the use of force or violence –– To raise unrest and disaffection among the people in a manner likely to cause a disturbance in the country –– To cause the people to transgress the Laws of the Country shall be punished with imprisonment not exceeding seven years. Section 117. Disruption of Business or Trade to Change the Laws of Country Whoever instigates or causes a strike, lockout, or concerted cessation of trade or business with any person for the purpose of bringing about any change in the Laws of the Country, coercing the government or intimidating the public, shall be punished with imprisonment not exceeding seven years or fine not exceeding one hundred forty thousand baht or both. Whoever, with the knowledge of the above purpose, takes part or assists in the said strike, lockout, or concerted cessation of trade or business with any person shall be punished with imprisonment not exceeding three years or fine not exceeding sixty thousand baht or both. Whoever, with the knowledge of the above purpose, commits any act of violence, threatens to commit any act of violence, or intimidates by any means whatever, so as to compel any person to take part or assist in any strike, lockout, or concerted cessation of trade or business with any person, shall be punished with imprisonment not exceeding five years or fine not exceeding one hundred thousand baht or both. Section 118. Use of National Symbol to Deride Nation Whoever commits any act directed at the flag or any other emblem symbolizing the State with the intention to deride the Nation shall be imprisoned for up to two years or fined up to forty thousand baht or both. Chapter 3: Offenses Against the External Security of the Kingdom Section 119. Intent to Cause Injury to the Nation Whoever does any act with intent to cause the country or any part thereof to descend under the sovereignty of any foreign State or to deteriorate the independence of the State shall be punished with death or imprisonment for life. Section 120. Sabotage to Instill Invasion Whoever, conspiring with the person to make the act for the benefit of the foreign State with the intention of causing the battle against the State or in other ways against the State, shall be imprisoned for life or imprisoned as from ten years to twenty years. Section 121. Treason Whoever, being a Thai, bears the arms in battle against the Country or participates as an enemy of the Country shall be punished with death or imprisonment for life. Section 122. Support of State Enemy Whoever does any act in order to support a battle or the preparation for battle for an enemy shall be punished with imprisonment of five to fifteen years. If such assistance is made:

9.2  Penal Code Provisions

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–– By rendering useless or bringing into the power of an enemy, any fortress, camp, airport, war conveyance, conveyance, line of communication, article used in communication, armaments, food, dock, building, or any other thing used for the purpose of war –– By instigating any member of the armed forces to neglect to perform his duties, to commit mutiny, to desert the service, or to commit breach of discipline –– By committing espionage, conducting, or guiding the enemy –– By acting any other means of the advantage for the enemy in the battle the offender shall be punished with death or imprisonment for life. Section 123. Attempting to Procure Secret Information Whoever, making any act so as to procure the information, document, or anything kept to be secret for the safety of the Country, shall be imprisoned not less than ten years. Section 124. Attempting to Procure Secrets for Others Whoever does any act in order that any other person may know or obtain any information, document, or anything which is kept secret for the safety of the Country shall be punished with imprisonment not exceeding ten years. If such offense is committed while the Country is engaged in the battle or war, the offender shall be punished with imprisonment of five to fifteen years. If the offense, mentioned in the two foregoing paragraphs, is committed for the benefit of a foreign State, the offender shall be punished with death or imprisonment for life. Chapter 3: Offenses Against the External Security of the Kingdom Section 125. Counterfeiting Whoever, counterfeiting, fabricating, detaining, hiding, concealing, removing, damaging, destroying, or losing or rendering any of document or plan concerning the interest of State in the international affairs, shall be imprisoned not out of ten years. Section 126. Government Official: Dishonest Activities Whoever, being entrusted by the Government to carry out any activities of the State with a foreign Government and dishonestly does not carry out the activities as entrusted, shall be punished with imprisonment of one to ten years. Section 127. Acts Outside the Country to Damage the Country Whoever, making any act for causing the danger to the external security of the State, shall be imprisoned not out of ten years. If such danger having been occurred, the offender shall be punished with death or life imprisonment or imprisoned as from two years to twenty years. Section 128. Attempted or Preparation Whoever makes preparation or attempt to commit any offense mentioned in this chapter shall be liable to the same punishment provided for such offense. Section 129. Supporter Whoever be the supporter for committing any offense as mentioned by this chapter shall be punished in the same punishment as the principal in such offense. Chapter 4: Offense Against the Friendly Relation with Foreign States

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Section 130. Harming Head of Friendly Foreign State Whoever does bodily harm or commit any act of violence against the liberty of the King, his Queen, or Her Consort, Heir apparent, or Head of a friendly foreign State shall be punished with imprisonment of one to fifteen years. Whoever attempts to commit such offense shall be liable to the same punishment. Section 131. Harming Representative of Any Foreign State Whoever, assaulting or committing any act of violence against the liberty of the foreign representative to be accredited to the Royal Court, shall be imprisoned not out of ten years. Whoever, attempting to commit the act as aforesaid, shall be sentenced to the same punishment. Section 132. Assassination or Attempts to Assassinate Whoever, causing death or attempting to cause death to any person specified in Section 130 or Section 131, shall be punished with death or imprisonment for life. Section 133. Defamation of Foreign Head Whoever, defaming, insulting, or threatening the Sovereign, Queen, Consort, Heir apparent, or Head of a friendly foreign State, shall be imprisoned as from one year to seven years or fined as from twenty thousand to one hundred forty thousand baht or both. Section 134. Defamation of Foreign Representative Whoever, defaming, insulting, or threatening a foreign representative accredited to the Royal Court, shall be punished with imprisonment of six months to five years or fine of ten thousand to one hundred thousand baht or both. Section 135. Acts Against Flag or Emblem of a Friendly Foreign State Whoever does any act to the flag or any other emblem to be symbolized the friendly foreign State with the intention to deride that State shall be imprisoned not out of two years or fined not out of forty thousand baht or both.

Reference Many books, articles, commentaries, and internet websites about the monarchy or the current regime are banned under Thai law. Therefore, it is not possible to provide a complete list of resources on this topic.

Chapter 10

Offense of Theft

Passing from crimes against the person to crimes in which property is concerned, this section will discuss the various offenses which violate rights of ownership and specifically those groups which center round two crimes of peculiar heinousness – gaan kà-moi (i.e., theft) and gaan kà-moi sòp (i.e., snatching) – whose importance can be traced to the peculiar sacredness which the law attaches to individuals’ property. Many authors place these two crimes in a class by themselves, designating them as offenses against property (Acquah-Dadzie 1999). The rules relating to theft can be traced back through a history of several centuries, and they have now become so complex as to be scarcely intelligible without a knowledge of their historical development (Brett 2003). Under Thai criminal law, theft is defined and punished under Section 334 of the Penal Code which states “Whoever, dishonestly taking away the thing of other person or which the other person to be co-owner to be said to commit the theft, shall be imprisoned not out of three years and fined not out of sixty thousand baht.” Section 335 of the Penal Code adds that if the theft is committed under any of the following circumstances: 1. By night 2. In the place or precinct where there is fire, explosion, and flood or in the place or precinct where there is an accident, distress to railway, or other similar calamity or by taking advantage of such accident, distress or calamity, or any public panic 3. By damaging a barricade made for the protection of persons or things or by penetrating through such barricade by any means whatever 4. By using a passage not intended for human entrance or a passage opened by an accomplice 5. By disguising himself/herself, by impersonating another person, or by blackening his/her face or doing otherwise so that he/she may not be seen or recognized 6. By falsely pretending that he/she is an official © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 A. Stasi, General Principles of Thai Criminal Law, https://doi.org/10.1007/978-981-15-8708-5_10

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7. By carrying arms or by having two persons upwards participating 8. In a dwelling place, official place, or place provided for public service which he/she has entered without permission or has hidden himself/herself therein1 9. In a place of public worship, a railway station, an airport, a public parking or mooring place for cars or boats, a public place for loading and discharging goods, or in other public places 10. Upon a thing used or possessed for public benefit 11. Upon a thing belonging to or in possession of the employer 12. Upon a thing belonging to an agriculturist, which is a product, plant, animal or implement possessed for the purpose of carrying on agricultural pursuit or acquired from such agricultural activity The offender will be punished with imprisonment of one to five years and fined of twenty thousand to one hundred thousand baht. Furthermore, if the theft consists in taking away the Buddhist Statue or a religious object which is possessed for the public to worship or is kept for being the property of the Nation, the offender will then be punished with imprisonment of three to ten years and fined of sixty thousand to two hundred thousand baht.2 By the same token, the crime of snatching is punished with imprisonment not exceeding five years and fined not exceeding one hundred thousand baht (Section 336, Penal Code). If the snatching causes bodily or mental harm to another person, the offender will be punished with imprisonment of two to seven years and fined of forty thousand to one hundred forty baht (Na Nakhon 1992).3 Private civil relation is of little more importance as a ground of defense than public is. It affords no exemption to parents, children, brothers, and sisters who commit crimes at the instigation of a child, a parent, a sister, or a brother. The Penal Code, in fact, only states that if the crimes of theft, fraud, misappropriation, receiving stolen property, mischief, or trespass are committed by the ascendants against the descendants, by the descendants against the ascendants, or by a brother or sister of the same parents against each other, “the offences shall, even though not

1  “Dwelling place” means a place used for dwelling, such as a house, shed, vessel, or floating house in which a human being dwells; it also includes the precinct of the place used for dwelling, whether it is enclosed or not (Section 1, Penal Code). 2  Section 335 bis of the Penal Code adds “If the commission of offence according to the first paragraph be committed in the temple, dwelling place of the monks, religious worship place, ancient place of the State, official place or national museum, the offender shall be punished with imprisonment of five to fifteen years and fined of one hundred thousand to three hundred thousand baht.” 3  It must be pointed out, however, that if the snatching causes grievous bodily harm to another person, the offender will be punished with imprisonment of three to ten years and fined of sixty thousand to two hundred thousand baht. Likewise, if the snatching causes death to another person, the offender will be punished with imprisonment of five to fifteen years and fined of one hundred thousand to three hundred thousand baht.

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provided by the law as compoundable offences, be deemed as compoundable offences” (Section 71, Penal Code).4 In the case of conjugal relation, however, the marriage amounts to a defense. Thus, if the crimes of theft, fraud, misappropriation, receiving stolen property, mischief, or trespass are committed by a husband against his wife or by a wife against her husband, the offender will not be punished. Theft occurs when any person (1) takes and carries away (2) another person’s (3) personal property, (4) of some value, (5) without any claim of right, and (6) with an intention to deprive that other person of the whole benefit of his/her right of property to the property. The traditional classification, with attractive brevity, defines it simply as the crime taking and carrying away of the personal goods of another but thereby leaves unanswered the main question, viz., when is such an act criminal?

10.1  Change of Possession It is now necessary to proceed to consider separately the six points which the definition of theft includes. First the taking: a change of possession is essential to theft. Where there is no infringement of possession, there can be no theft. Hence, the definition of this crime becomes related to the vague legal concept of ‘possession’. The legal conception of ‘change of possession’ has been applied very broadly by the Thai courts. It is held that it is sufficient if, without any change in the actual holding of an article, there is a change of what, by a mere fiction of law, is regarded as equivalent to possession – i.e., of a merely ‘constructive’ possession. Hence, where an employee uses the employer’s computer, the legal possession remains with the employer. Likewise, the landlord of a hotel retains the legal possession of the umbrellas, chairs, and towels which guests use when they book a room. In all such cases, – where one person has physical possession and yet the legal possession is ‘constructively’ in someone else – the former person is not said in law to have a ‘possession’, but only ‘charge’ or ‘custody’. If, however, a person proceeds to appropriate the thing – e.g., if the employee sells the computer’s hard disk – such person thereby converts his/her custody into a “possession” (i.e., into a “legal,” though not a lawful, possession). Accordingly, by thus converting to his/her own use the employer’s property and thereby ceasing to hold it on that trust, the employee is regarded in law as creating a new possession and thereby constructively “taking” the thing, so as to become as truly guilty of theft as if he/she had never had it in custody at all. Many other cases, too, besides that of employer and employee, may be found, in which the legal possession is separated from the physical possession, and in which accordingly it would be a constructive “taking,” and therefore a theft, for the 4  Moreover, the court may inflict a less severe punishment to any extent than that provided by the law for such offenses. It must be pointed out that other Asian countries, such as China and Korea, do not have a similar provision.

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custodian to appropriate the article to herself, though she thus actually holds it. One such case arises whenever the owner of a portmanteau delivers it to a porter to carry for him to the hotel but accompanies the porter on his way and has no intention of relinquishing the full control over the portmanteau. Likewise, where at a railway booking office a lady hands a banknote to a boy to get a ticket for her (he being nearer than her to the office window), it would be held that in point of law she still retains possession of the banknote. Consequently, if the boy runs off with it, he becomes guilty of theft. To take another example, a taxi driver does not get legal possession of the passenger’s luggage when he puts it in the trunk of his taxi; hence, if the passenger, on quitting the car, leaves some article behind him, it would be a theft for the taxi driver to appropriate it. Recurring to the particular case of employee, it may be convenient to note here that when property is entrusted to an employee by some third person, such property would be held to be not in the employee’s mere custody but in full legal possession. The property does not pass into the possession of the employer until it is actually delivered to him/her. This is the case, for instance, of money being placed in the company’s bank account or goods being placed in a warehouse. Accordingly, if the employee appropriates them while they are only on the way towards such a delivery, he/she does not commit theft. When, however, the goods or money so delivered or paid to the employee is deemed to have reached their destination, and the employee is to hold or retain them for the employer, they are considered to be in the constructive possession of the employer.5 If the employee then wrongfully appropriates them he/she is guilty of theft. The technical distinction between custody and possession is therefore of the highest importance. To wrongfully appropriate property of which one has legal possession cannot be theft under the Thai law. There is no trespass in the taking.6 Grasping a thing is sufficient to confer possession of it, i.e., to constitute a “taking”; but it does not amount to an “asportation,” i.e., to carrying away. Hence, where Belt stops Noon, who is carrying goods, and orders him to lay them down, which Noon does, but Belt is arrested before she can touch them, it would probably be held that Belt has not committed theft because there has been no carrying away. But the slightest removal will suffice and, thus, even though the thief at once abandons the thing. Hence, there is a sufficient asportation in taking plate out of a chest and laying it on the floor; in shifting a bale from the back of a cart to the front; or in pulling a lady’s earring from her ear, even though the earring is caught in her hair and remains in it. When one seizes a wallet and lifts it three inches from the bottom of the pocket and is then interrupted, there would probably be deemed to be a taking and the theft would be complete. The test seems to be: has every atom left the place in which that  The employee is considered to be a mere custodian.  Under English law, such an appropriation did not constitute any crime at all until 1799. But in that year, a law was passed making such conduct felonious. It constitutes the crime of embezzlement. Like laws have been passed in all of the American states, while in the penal codes of some of them, such wrongful appropriations are declared to be larceny and punishable as such. Thus, dishonest employees commit embezzlement in the case of things which they have received for their employer but larceny in the case of those which they have received from their employer. 5 6

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particular atom was before? So, there may thus be a sufficient carrying away even though part of the thing still occupies the place which some other part of it previously did; e.g., by half taking a gun from its holster or pulling a wallet not quite out of a person’s pocket. Where the proprietor of an article temporarily entrusts not merely the physical but also the legal possession of it to another person, e.g., to a carrier, a “deposit contract” comes into existence. A deposit is defined under Section 657 of the Civil and Commercial Code as a contract whereby a person, called the depositor, delivers a property to another person, called the depositary, and the depositary agrees to keep it in his custody and return it. Temporary possessors, or depositaries, are indictable for theft although they had legal and actual possession of the article. Hence, Thai law considers it theft for a depositary fraudulently to convert any chattel, money, or valuable security to the use of himself/herself or of any other person. Wide as these words seem to be, their effect has been restricted, to those contracts alone under which it is the depositary’s duty to deliver up at last (whether to the original owner or to someone else), the identical article given in custody and not merely an equivalent for it. Accordingly, a land agent usually cannot be indicted under this statute for stealing the rent he/she has collected. Nor can the auctioneer, who sells an article, keep the money of the sale. Before the sale, the auctioneer is considered to be a depositary of the article and is bound to dispose of it according to the directions of the vendor. But after the sale, the auctioneer does not become a similar depositary of the money which he/she has received for it, inasmuch as he/she is not bound to deliver to the vendor the identical banknotes. To take an example, suppose a treasurer of a money club has the authority to lend to its members the sums out of the club money. In case the treasurer misappropriates the part of this fund, he/she would probably not be considered as a depositary within Thai law since he/she is under no obligation to pay over to anybody the specific banknotes which had been paid to him/her. Before depositaries can be convicted of theft under Thai criminal law, it must be clearly shown that they have really converted to their own use the article entrusted to them. In theft, the wrongful appropriation must be characterized by an act of violence. In other words, violence must be done to the owner’s possession. There can be no trespass because the owner has parted with his/her possession, though not with his/her right of property. If, however, one is induced by fraud to part with physical possession to one who fraudulently (in Thai roo rĕu kuan roo wâa pŏn jà gèrt) intends to obtain such possession with intent to appropriate the thing for personal use, such subsequent appropriation in pursuance of such original intent is deemed theft.

10.2  The Ownership Things which do not belong to any determinate owner cannot be the subjects of theft. One conspicuous example of such things is a human corpse, which cannot be said to be the property of any person. It is otherwise with the coffin or grave clothes as these

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remain the property of the executors.7 While a human corpse may not be the property of anyone, it does not follow that persons may not have rights which the courts will enforce with regard to the disposition and place of sepulture of the bodies of their relatives. These rights are usually regulated by regulations which also provide how conflicting claims are to be determined. So also, criminal provisions everywhere exist punishing the desecration of graves and the wrongful removal of bodies lawfully interred. But a consequent question, of much practical importance yet still unsettled, is whether the rule of law must further be taken to be that “once a corpse, always a corpse.” If so, the protection of criminal law would not extend even to skeletons and similar anatomical specimens on which great labor has been expended or to ethnological collections of skulls or mummies which have been brought to this country at considerable expense. Even an article that has an owner may come to be intentionally abandoned by him; and of such “derelict” articles, there can be no theft. Section 1318 of the Civil and Commercial Code regulates occupancy which consists taking possession of ownerless movable property, unless the occupation is forbidden by law or is in violation of another person’s right to occupation of such movable property. Hence, in Thailand abandoned wrecks and treasure trove that has no longer any owner are incapable of being stolen, until after they have been taken possession of by the State or by some person to whom the State has granted the franchise of taking them. More precisely, treasure is defined as movable property of value “which has been hidden or buried, which no person can prove ownership of” (Section 1328, Civil and Commercial Code).8 The treasure becomes the property of the State. The finder, however, is entitled to receive a reward of one-third of its value. By the same token, animals ferae naturae, straying at large, form the most important of all the classes of things which have no owner. Subject to special laws and regulations, a person who catches a wild animal on wastelands or in public waters or without opposition of the owner, on private lands or in private waters, becomes its owner (Section 1321, Civil and Commercial Code). For the general principle of law is that all true ownership of living things depends upon actual control over them. Domestic animals such as rabbits, dogs, or cats usually have a settled home and so come under the control of its occupier and, consequently, are subject to theft. If they are so, their eggs and other produce will equally be subject to theft, and this even when the produce is stolen directly from the living animals themselves (as by milking cows, or plucking wool from the backs of sheep), before the true owner has ever had possession of it as a separate thing. But over animals that are of a wild nature, there is usually no control, and therefore no ownership. The degree of physical control which is necessary to establish ownership will vary with the habits of the particular species concerned. Creatures may be subjects of ownership although they are not closely confined but are allowed to wander away  See Sections 1711 and following of the Civil and Commercial Code.  Section 1328 of the Civil and Commercial Code states “Where a movable of value which has been hidden or buried is found under such circumstances that no person can claim to be its owner, the ownership is vested in the State. The finder is bound to deliver it to the police or other competent official, in which case he/she is entitled to receive a reward of one-third of its value.” 7 8

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from home, provided they have a settled habit of returning back (Koetwichai 2004). This rule, that the taking of ownerless things cannot be a theft, still holds good even if the Wildlife Preservation and Protection Act B.E. 2562 (2019) has created many offenses of dishonesty which they have not erected into larcenies.9 It is important to notice that theft requires not only an ownership, but an ownership which existed already before the act of taking. Thus, a proprietorship that was created only by that very act will not suffice. Hence, although rabbits or wild pigeons, on being killed by a trespasser, become the property of the owner of the land where they are killed, yet if this trespasser who kills them should proceed to carry them away, he/she will not commit theft thereby, for the ownership which the trespasser infringes did not exist before he/she killed the creatures. Moreover, even if, after killing them and appropriating them, he/she should go away and leave them on the land, with the intention of returning for them, and afterwards should so return and take them away, these proceedings will be regarded by law as a single continuous act and therefore will still constitute no theft. But if the trespasser had left them on the land with the idea of abandoning them altogether, he/she would thereby have ceased to be their possessor, and they would pass into the legal possession of the owner of the soil. It follows that if the trespasser should afterwards change mind and decide to come back to seize them again, this would be an entirely new act of taking. And, as it would be the taking of a thing which now had got an owner, it would be a theft. Where a man, employed to trap rabbits, put some into a bag in order to appropriate them, and a keeper (suspecting him) nicked them, during his absence, for purposes of identification, it would probably be held that the nicking is not sufficient to reduce them into the possession of the keeper. Thus, the trapper would not become guilty of theft by carrying them away, even after they have been nicked. But though there can be no theft of things which have no owner at all, there may be a theft in spite of the owner being unknown and undiscoverable as in the case of brass plates being stolen from old coffins in a vault. In conclusion, it is possible to state that though there can only be a theft where the thing (at the time of being stolen) already belonged to some other person, it is not necessary that this person should be a sole owner or even a full owner. He/she may, for instance, be merely a joint owner with the thief. Furthermore, the person stolen from may be one who had even a less interest than that of a co-owner, and no interest beyond a mere right to the possession of the thing stolen, a mere depositary, to whom the article had been given in custody by the thief himself/herself. Hence, paradoxical as it may appear, a person may commit theft by stealing his/her own property. To take an example, when an owner of goods has delivered them to another person under  a deposit contract  (e.g., pawn agreement), that owner may become guilty of theft, if he/she carries them off from the depositary.10 For example, the owner of a suitcase may aim at defrauding an airline company by making the 9  It establishes five categories of wildlife: preserved wildlife, protected wildlife, controlled wildlife, dangerous wildlife, and wildlife carcasses. Under the new Act ‘Entering into and carrying out any activity for the purpose of obtaining benefits’ has been made a punishable offense. 10  In this case, there must be a clear intention to defraud the depositary.

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company chargeable for the loss of the suitcase.11 Moreover, it will suffice even though the intention was to defraud (not the depositary but) some other person as where the owner of goods, which are in a bonded warehouse, secretively takes them out, in order to cheat the Government of the customs duty payable on them. Under Thai criminal law, the “owner” does not necessarily mean one who has the legal title to the thing appropriated. If she has title as well as rightful possession, she is the general owner. If she has possession merely without title as a depositary, for instance, she is deemed to have a special ownership. Indeed, so far as theft is concerned, she may not have a rightful possession, being even a thief herself of the very thing stolen from her. As against the second thief, she is deemed to be an owner, and criminal complaint for theft would be filed. It would not be wise to permit one who has wrongfully appropriated property to show in defense that the one from whom she took it had a defective or fraudulent title.

10.3  The Subject Matter Some of the very early Roman lawyers had thought there might be furtum fundi locive, i.e., that land was legally capable of being stolen (Watson 1991). But, even before the time of Gaius, all the jurists came to abandon this view. No one ever held it in Thailand. For, since a theft could only be committed by carrying a thing away, this clearly made it essential that the thing should be movable. Moreover, just as it has been previously pointed out that some other person’s ownership over the thing must exist before the act of theft, and not merely be created by it, so also this moveableness of the thing must have existed before it was taken.12 A thing therefore was not subject of theft if it first became movable by the very act of the taking.13 Hence, it was not considered to be theft to take sand from a pit or a riverbed or to pull down a wall and carry away the bricks. And it was no theft to strip woodwork or other  Similarly the owner of a pair of boots may aim at defrauding a cobbler by depriving him/her of an interest which he/she has in retaining possession (i.e., the lien of a cobbler upon the boots which he/she has mended, for the cost of the mending). 12  It seems strange that land, by far the most important form of wealth in the Middle Ages, should have been left unprotected by the early criminal law. The omission, however, is rendered more intelligible by the fact that in ordinary cases, it is nearly impossible to misappropriate land without resorting to some act which itself is criminal, such as personation or forgery. But an aversion to capital punishment was probably the reason why the judges went still further and excluded from the scope of theft even things that really were movable and had only a technical connection with the land as when they held it to be no crime to carry off dung which had been spread upon a field. 13  Even standing corn and similar growing crops, although the law of property gives them to a deceased owner’s executors as chattels personal, were held in criminal law to savor so far of the realty as not to be subject of theft. Yet, on the other hand, some things which do not thus go to the executor, but to the heir, are subject of theft. It has similarly been held in an old case that though, by a very reasonable rule of law, the keys of a house always pass along with it on any alienation (whether by death or by contract), the legal identification of them with the realty does not go so far as to prevent its being a theft to steal them. 11

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fixtures from a house or to cut down a tree, but these acts have now been made specific statutory crimes, so that if a person demolishes another’s house and sells the materials, he/she may be proceeded against in respect of the fixtures.14 In general, however, the rule of immobility extends to all things which any legal fiction identifies with the land, even though they are physically movable. This is the case, for instance, with the Thai Cha Note (i.e., title deed): it would not pass under a grant of “all my goods and chattels.” Hence, it is not subject of theft. And a sealed­up box, inclosing such deeds, has been held to be so identified with them as itself to become not subject of theft.

10.4  The Value A thing is not subject of theft unless it possesses some value. De minimis non curat lex. Otherwise it would be a crime to dip your pen in another person’s inkstand or to pick up a stone from someone else’s garden to throw at a bird. But the exact measure of this value has never been fixed. Its indefiniteness gave scope for the humane ingenuity of the judges. Thus, many things in which a legal property existed, and which were of such appraisable importance that damages could have been recovered in a civil action for taking them away, were held to be below the minimum of value that was necessary to support a conviction for the crime of theft. A vivid illustration is afforded by the fact that at one time it was doubted whether even jewels had any such intrinsic worth as to be subject of theft, though some do hold them precious. The rule which makes value essential to theft is also extended artificially by a fiction which identifies the documentary evidence of any right with the right itself, so that if the subject of the right cannot be stolen, then equally the document cannot be stolen. “The accessory must follow its principal.” Hence, a document of title to specific goods, which themselves are subject of theft, would itself be subject of theft. This latter instance shows that the legal identification of the evidence with the right evidenced is now the only reason why the thief of a lease cannot be indicted for simply stealing a written document. It cannot be (as used to be said) the mere smallness of the intrinsic value of the paper for it is now quite clear that an indictment for the theft of merely “a piece of paper” is good. Accordingly, particular rules are in place for the theft of proof sheets, of canceled banknotes, of a worthless check, and of a small slip with memoranda penciled on it.15

 Yet, there would be a theft if, after the severance had once been fully completed, the fixtures or the trees were abandoned by the thief, but he/she afterwards changed his/her mind and returned and carried them away. 15  For the purpose of creditability of check usage and warranty for the payment receiver of a check, the Thai government considered that there should be a specific act for controlling the issuance of and payment by checks based on a principle of good faith. The Offences Arising from the Use of Check Act B.E. 2534 (1991) was enacted for enforcement with its criminal punishment levied both 14

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Under Section 264 of the Penal Code, “Whoever, in a manner likely to cause injury to another person or the public, fabricates a false document or part of a document, or adds to, takes from or otherwise alters a genuine document by any means whatever, or puts a false seal or signature to a document, if it is committed in order to make any person to believe that it is a genuine document, is said to forge a document, and shall be punished with imprisonment not exceeding three years or fined not exceeding sixty thousand baht, or both.” Likewise, the Code states that whoever fills in the contents on a sheet of paper or any other material bearing the signature of another person without the consent or by violating the order of such person, if it has committed in order to take such document for use in any activities which may cause injury to any person or the public, shall be deemed to forge a document and shall be punished likewise.16 The same applies in case of forgery (in Thai gaan bplom bplaeng) of “a document of right, which is an official document, a will, a share certificate or debenture, or share warrant or debenture warrant, a bill or a negotiable certificate of deposit” (Section 266, Penal Code). The dishonor of check is both a civil and criminal offense. Thai Civil and Commercial Code defines a check as a written instrument by which a person (called the drawer) orders a banker to pay on demand a sum of money to, or to the order of, a person (called the payee). As Supasitthumrong (2010) correctly points out “In addition to civil remedies available under the Civil and Commercial Code against those who pass bad checks, Thailand is one of the few jurisdictions in the world in which there can also extend criminal liability.” Under the Offences Arising from the Use of Check Act B.E. 2534 (1991), “Any person who issues a check to pay for a real and legally enforceable debt involving any of the following characteristics or acts shall be considered to have committed an offence and is liable to a fine not exceeding sixty thousand baht or to imprisonment for not more than one year, or both if the check is lawfully presented for payment and if the bank does not honor such check” (Section 4).17 This is the case when the drawer has no intention to honor the check, there are no funds in the account that can be used to honor the check at the time of issuing the check, or the drawer makes a payment in an amount higher than the amount of available funds in the account at the time of issuing such check. In the case where the payee learns that the check has returned due to insufficient funds, he/she must rapidly decide whether to submit a civil or criminal action, depending on the particular circumstances. The prescription period for submission of a civil action against the drawer on the dishonored check is one year from the date of check issuance.18 In contrast, the limitation period for a criminal action against by imprisonment not exceeding one year, and a fine not exceeding sixty thousand baht or both, applicable to any person issuing checks in bad faith. 16  In this regard, Section 265 of the Penal Code provides that “Whoever, forges a document of right or official document, shall be punished with imprisonment of six months to five years and fined of ten thousand to one hundred thousand baht.” 17  This is a compoundable offense. 18  On this point, the Supreme Court has clarified that the prescription period does not start from the day the drawer signs the check but from the date which appears on the check (decision nos. 2039/2523 and 1934/2527).

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the drawer of an empty check is three months from the date that the bank refuses to pay the check. To have omitted from the definition of theft all reference to the element of value would have been to leave unexplained some well-established points of law. But it must frankly be admitted that, if the word be thus retained in the definition, it must be understood in some sense which is neither a natural nor even a precise one.

10.5  The Claim of Right If property is taken by legal right, obviously no wrong, either civil or criminal, is committed by taking it. But in criminal law immunity is carried still further. An act of taking will not amount to theft unless it is committed not only without a legal right, but without even any appearance of a legal right. Accordingly, the ordinary men’s rea, which is quite compatible with an honest ignorance of the law, does not suffice to constitute guilt in cases of theft as any bona fide claim that is at all reasonable will suffice to deprive the taker’s act of any illegal character. It is a question of fact, for the judge, whether the goods were taken with such a belief or not (Kitisuphakarn 2019). But it is reasonable to say that if there is in the defendant any fair pretense of property or right, the court will probably direct an acquittal. The best evidence that there was actually a sincere claim of right is that the goods were taken quite openly. A secret action, a subsequent denial of the taking, or a concealment of the goods goes far to suggest a criminal intent. If the taking is in good faith under a claim of right, there is no theft, no matter how puerile or mistaken such claim may be. It is the same if the taking be on behalf of another believed to be the owner. The following three instances may be suggested in which the carrying off another’s goods will be unpunishable, on account of their being appropriated under a bona fide claim of right. The first instance arises when something is seized by a landlord in a distress for rent even though he/she be mistaken in thinking that any rent is due or even though the article seized be one which is privileged by law from being distrained. The second instance applies to those cases when the taker believes that what she is taking is her own property or that it is something which she has a right to take, whether as an equivalent for her own property or with a view to mere temporary detention (e.g., real property right). Hence, a housekeeper who, on leaving her situation, takes away some things belonging to her employer would be prosecuted for a theft of them unless it appears that she has an unpaid account outstanding against her employer for expenses incurred by her for him and that she took away the articles without any effort at concealment, under the mistaken belief that as creditor she had the right to seize her debtor’s property and detain it as security for the debt.

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The third and last instance refers to the case where the taking is by consent of the owner. Upon this point a question of considerable practical importance often arises in consequence of the plans laid by the police for the detection of a suspected thief. If, for mere purposes of detection, the owner of goods acquiesces in a thief’s carrying them off, does such a consent suffice to prevent the thief’s act from being a theft? It has already been explained that, in theft, if the owner desired that the thief should actually remove his/her goods or, still more, if he/she had employed someone to suggest to the thief the perpetration of the theft, such action would constitute a sufficient consent to render the taking no theft, although the sole object was to secure the detection of the offender. Yet if the owner of the goods went no further than merely to facilitate the commission of the theft (e.g., by allowing one of his/her employees to assist the thief), such conduct would no more amount to a consent than if a person, knowing of the intention of robbers to break into the house, were to leave one of the bolts on the front door unfastened. But the owner’s consent must of course be a true consent – a free and a full one. Hence, it can afford no defense where it is obtained from him/her by intimidation. In such a case, the person’s will is overborne by compulsion as where the keepers of an auction-room force a woman to pay for some lots which she has not bid for, by threatening that she would not be allowed to leave the room until she has so paid. Much more frequent than intimidation, however, is fraud which is equally effective in removing all exemptive character from an apparent permission. Consent obtained by fraud is not a true consent. Thus, wherever an owner’s consent to the taking of his/her own goods is obtained animo furandi, the deception vitiates the consent. The taker is accordingly guilty of “theft by a trick.” It should be noticed that here the taker has a guilty intention at the time when he/she receives the thing from the owner. If the taker had received it innocently, and had not conceived until afterwards the idea of appropriating it, the resulting conduct would not be illegal. In some cases, an actual “trick” is carried out, e.g., some false artifice or misrepresentation, like those involved in the use of false weights, or in the practices of ring-dropping and of “ringing the changes,” or in the “confidence trick.” Still simpler pretenses are representations by the thief that he/she has been sent by customers to fetch away the goods they had bought. But it is not essential that there should be any such active fraud. It is enough if the offender obtains the thing from the owner, fully intending to appropriate it, and knowing at the same time that the owner does not intend the offender to appropriate it. It is thus abundantly clear that if the owner only consents to give up the mere possession of the thing (e.g., to lend a motorcycle for a ride), the fact that this consent was obtained by fraud will prevent its constituting any defense for the theft of subsequently appropriating the thing. Unless the consent is as broad as the taking, the owner’s possession is violated, the taking becomes a trespass, and if the animus furandi coexists with the taking, the act is theft. But if the owner had consented to give up not only the possession but also the right of property in the thing, then – even though there may have been such fraud as to vitiate the transaction, still more if there were merely the owner’s own mistake – may not a valid possession have passed in spite of the error, and a theft consequently have been rendered impossible? The answer must be that if the fraud is merely in

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property law, gives the alienor only a right to rescind the alienation, and does not prevent a legal ownership (though a merely voidable one) from passing meanwhile to the alienee, then the alienee’s crime will not be that of theft but only the statutory crime of obtaining by false pretenses. If, however, the fraud related to some circumstances so fundamental that, notwithstanding the owner’s intention to alienate, no right of property (not even a voidable one) passed to the author of the fraud, the latter will have committed a theft. Likewise, there will be a theft if the owner’s intention was not to make an immediate and absolute alienation but only a deferred or a conditional one as where a stranger purports to buy a motorcycle in a shop for ready money, but mounts it and rides off without paying the price. Such a transaction may at first sight seem to resemble the crime of fraudulent acquisition of ownership, rather than the crime of theft from a continuing owner. But the latter view of it has prevailed as the owner, it is said, must have intended only a conditional alienation, not meaning the property to rest absolutely in the recipient until the price was paid. This argument, however, does of course involve a conjectural assumption as to the owner’s state of mind with regard to a contingency that possibly never occurred to his/her mind at all. A further reason, perhaps more satisfactory, is that inasmuch as there was no consensus voluntatum, no “meeting of two minds in one and the same intention” – the person never having any genuine intention to contract – the arrangement (whatever its conditionality or its absoluteness) was wholly void in law and therefore could confer on the contracting party no rights whatever (Stasi 2016). To this discussion of the effect of an owner’s consent and so preventing a taking from being illegal, it should be added that where the taking is by consent of the owner’s agent, or apparent agent, as where a cook gives scraps of food to a beggar, the same principles will apply. And a wife will usually have sufficient appearance of being her husband’s agent for this purpose.19

10.6  The Intent In the previous sections, it has been noted that theft requires an intention to deprive the other person of the whole benefit of his/her title. Accordingly, a mere intention to take away the owner’s possession only temporarily will not suffice as when a schoolboy takes out of his teacher’s desk a book in order to prepare a lesson. Likewise, a husband who takes his wife’s diary, merely that he may produce it as evidence against her on his petition for a divorce, does not commit a theft. To seize your debtor’s property wrongfully, but merely for the purpose of inconveniencing her by detaining it until she pays your debt, is thus no theft but only a tort. So again, it is no theft for the finder of an article to refuse to deliver it up when first asked for, if she is delaying merely in hopes of a reward being offered.20  Her consent to the taking of his goods, however, is no defense where they are taken by her adulterer. 20  It must be added, however, that taking a bicycle without consent of the owner, though there be no intent to permanently deprive such owner of the property therein, is considered to be a crime under 19

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It has already been seen that, where goods are deposited, only an act of conversion by the depositary quite inconsistent with the deposit contract can amount to an appropriation. Equally must there, in the case of all other thefts, be an intention to appropriate the thing in a manner wholly inconsistent with the rightful possessor’s interest in it. But in them such an intention may be sufficiently manifested by many acts which it would have been quite permissible for a depositary to do, though they show gross dishonesty in the case of anyone who has no right to be in possession of the thing at all. There is no sufficient appropriation if an employee takes his/her employer’s goods merely for the purpose of bringing them back and then defrauding the employer by a pretense of having meanwhile done work upon them and earned wages thereby. And likewise, it has been held no theft for a person, who is only temporarily in need of money, to carry off another person’s overcoat and pawn it, with a full intention of redeeming it and returning it and with a full likelihood of being able to carry out this intention. A person, however, must be taken to intend the natural consequences of his/her conduct and therefore if, when he/she pawned the overcoat, he/she had not an immediate prospect of being able to redeem it, the mere hope and desire of restoring the coat will not suffice to exclude a criminal intent. An intention of appropriation does not cease to be criminal because the owner is unknown, or even quite untraceable as when a gravedigger steals brass fittings from very old coffins. It should be observed that the mere intention thus is to injure the owner suffices, even though the thief has no intention to benefit himself/herself by the theft. It thus is not essential under Thai law, as it was in Roman law, that the theft should be committed lucri causa. For example, if a person, in order to block or delay the prosecution of a friend who is about to be tried for having stolen a car, takes the car out of its owner’s garage and hides it, this act would amount to a theft. Likewise, if at the end of a fight between drunk men, one of them picks up the wallet which his antagonist has dropped and fling it into a river, he would commit theft. Had he, however, flung it merely into a field, there would be no evidence of any intention to deprive the owner of it permanently. By far the most difficult question that arises in respect of the animus furandi is that of time. At what moment must the guilty intention exist, in order to render an appropriation illegal? The answer must differ, accordingly as the accused person’s original possession was a lawful one or not (Watnasawad 2006). If it were lawful, then no dishonest intention that arises only subsequently can amount to theft.21 If, however, the original taking of possession were in any way unlawful, then any subsequent determination to appropriate the thing will operate retrospectively and will convert that taking into a theft. Even if the original taking were no more than a trespass (e.g., taking the wrong umbrella by mistake or borrowing the neighbor’s hammer for an afternoon’s work without previous permission), a subsequent intent to appropriate the thing so taken will thus relate back and render the act a theft. Thai law as an attempted sort of theft. 21  In this regard, Section 1 of the Thai Penal Code states that “To commit an act dishonestly means to do an act in order to procure, for himself/herself or the other person, any advantage to which he/ she is not entitled by law.”

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It is thus interesting to apply these two principles to the very common case of the finding of lost articles. If the owner has intentionally abandoned all right to them, of course the finder may appropriate them and thereby becomes the true owner. But even where there has been no such abandonment, and consequently the finder does not become the owner of the thing which she has found, she will not commit any crime by appropriating it, unless, at the very time of the finding, she both believed that the owner could be discovered, and that that owner had not intentionally abandoned the thing and also forthwith resolved, notwithstanding, to appropriate it. In determining whether or not a finder has had reasonable grounds to believe that the owner could be discovered, it will be important to take into account the place where the thing was found and also its nature and, again, the value of any identificatory marks upon it. Hence, in the case of checks, bills of exchange, promissory notes, and other securities that carry the owner’s name upon them, a finder can easily trace out the owner. Likewise, in the case of articles left in a cab, the driver will generally have a clue to the owner from knowing where he/she picked up, or set down, the passengers. And where property has been left by a passenger in a railway train, it would be held to be theft for an employee of the railway company to appropriate it instead of taking it to the lost property office. Every finder, it has always been clearly held, has a special property, i.e., a right to possession, so that he/she could maintain against any stranger the possessory actions. But it must be noted that the finder has not a right of possession against the owner. The owner remains all the while in “constructive” possession of the article; and hence, if any third person should dishonestly take it from the finder, that person may be treated as having stolen it from the owner. Cases of finding present, however, much less difficulty than those of mutual error, i.e., where a wrong article has been both given, and accepted, in mistake for something else which both parties believed they were dealing with. Simple as is the twofold rule as to the time of the animus furandi, it is not easy to apply it in these cases because of the difficulty of deciding which was the moment when, in contemplation of law, the technical possession shifted, and the thing accordingly was “taken.” When walking together in the evening, Lhena asks Davide to lend her ten baht, and Davide gives her a coin which both of them, owing to the darkness, supposed to be ten baht. But, after they have separated, Lhena discovers the coin to be a golden coin; and thereupon resolves nevertheless to spend it. When, in point of law, did Lhena “take” this golden coin into her possession? If it were when the coin was actually handed to her, then (as she had at that time no guilty intent) she “took” it innocently, and therefore no subsequent appropriation of it can make her guilty of theft. But, on the other hand, if the law does not regard her as having taken possession of it until she came really to know what it was, then (as she simultaneously formed the intention of appropriating it) she will be guilty of theft. The whole question therefore resolves itself into this: what mental element is necessary for legal possession? Delivery and receipt are acts into which mental intention enters. There is not in law, any more than in common sense, a delivery and receipt, unless the giver and receiver intend respectively to give and to receive what is given and

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received. Yet there still remains difficulty in determining what precise extent of concurrence between their intention and the facts is necessary.22 In contracts for the sale of chattels, any mistake of identity undoubtedly avoids the contract since there is no consensus ad idem, and therefore the property does not pass. Yet even then it does not follow that legal possession may not pass. Where the mutual mistake relates to the person for whom a letter is intended and a postman misdelivers a letter, and then the recipient, on opening it and finding it not to be meant for him/her, nevertheless appropriates some article which was enclosed in it, he/she commits no theft. For there was no animus furandi at the time when the letter came into his/her hands, and the delivery of a letter clearly is always intended to include delivery of all its contents.23

10.7  Theft Between Spouses Under the Thai criminal law, there is no theft between husband and wife, and neither spouse can take a legal action against the other for wrongful acts committed against property. Both husband and wife are not criminally liable for stealing each other’s property. In this regard, Section 71 of the Penal Code disposes that if the offense of theft is committed by a husband against his wife or by a wife against her husband, the offender shall not be punished.24 Hence, a wife retains her immunity for committing thefts of property (Na Nakhon 1992). And even if she has the intention to run away from him temporarily and to take away with her some of his property, then she does not commit theft. For she does not satisfy the final clause of the definition of the offense since she does not intend to deprive him of the whole future benefit of the property. A wife is held to be one person with her husband, and therefore a possession by her is a possession by him. Consequently, an appropriation of his goods by her would not constitute a change of possession and therefore does not constitute theft. Nor does even adultery put an end to this. So, if a wife goes away with money

 Likewise, suppose Jim delivers to Jerry, in discharge of a legal obligation, an old copy of Shakespeare’s plays printed in 1623; both innocently believing at the time that – being old, full of errors and misprints, and badly spelled – it could only be sold for few hundreds of baht at an auction. Suppose Jerry then sells it to a collector for a few million baht, and appropriates the proceeds, Jerry would not be guilty of theft; inasmuch as there was an intelligent delivery of the chattel itself, though there was a mistake as to its value. 23  A distinction is sometimes made between a property that is lost or merely mislaid, depending upon whether or not there are marks or circumstances of identification. If the latter exists, the property is not deemed to be lost, and the finder who appropriates it will usually be guilty of theft, as one who takes and appropriates a wallet carelessly left in a public place. 24  If the aforesaid offenses are committed by ascendants against descendants or by descendants against ascendants, or by a brother or sister of the same parents against each other, the offenses shall, even though not provided by the law as compoundable offenses, be deemed as compoundable offenses. Moreover, the court may inflict a less severe punishment to any extent than that provided by the law for such offenses. 22

References

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of her husband’s and then meets her adulterer and gives him this money, he cannot be convicted of receiving stolen goods because they have not been “stolen.” Yet if the adulterer has instead assisted her in the original taking of the goods, he can be convicted of theft because then he would take them out of the actual possession of the husband himself and knows that the husband does not consent to the taking. For the same reason, if the wife holds personal goods, her husband cannot commit the crime of theft by taking them. If the wife be living apart from her husband in adultery with another, her taking of her husband’s property would undoubtedly be held to be theft. Furthermore, Thai law does not have a statutory or codified putative jurisprudence as it exists in some common law countries. Thai case law, however, recognizes in some circumstances particular effects which are substantially similar to the putative marriage doctrine of common law countries for all those cases where a man and a woman live together for a long period of time as husband and wife without being married to each other: in these cases, a presumption would arise in favor of wedlock and the Thai courts have treated the couple as legally married with regard to rights of financial, marital property, spousal support, legitimacy of children born during the marriage, parental rights, and inheritance rights. There is no direct relation requiring parties to have registered their marriage at the amphur (Thai district office) prior to the courts applying the principles of putative jurisprudence and conferring the rights of financial, property, and parental rights to the couple. There are many court decisions where in the absence of a registration of marriage, the court has applied putative jurisprudence to bestow marital rights upon the couple.25

References Acquah-Dadzie, K. (1999). World dictionary of foreign expressions: a resource for readers and writers. Bolchazy-Carducci Publishers, Illinois, US. Brett, A. S. (2003). Liberty, right and nature: individual rights in later scholastic thought (Vol. 44). Cambridge University Press, Cambridge. Kitisuphakarn S. (2019). Criminal Law: Principles, Rules and Practices. Phan Tamruat To Ying Sunthari Sansoen, Bangkok. Koetwichai N. (2004). Ruam Phra Ra Banyat Thi Mi Kot Mai Aya Samsip Phraratchabanyat [30 Statute of criminal penalty]. Nitinai Press, Bangkok.

 In the Supreme Court case 5438/2537, the Court has recognized financial, property, and parental rights to the couple notwithstanding the fact that the marriage was not registered at the Thai amphur (district office). In this landmark case, the parties lived together as husband and wife without marriage registration and raised four children together. The plaintiff was a housewife responsible for taking care of the children while the defendant worked as a trader. The defendant purchased a land and a house to be used as a residence for the whole family. Upon the couple’s dissolution, the Court held that the plaintiff was entitled, among others, to the defendant’s half of the property acquired during the (non-registered) marriage. See the Supreme Court decision no. 5438/2537.

25

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Na Nakhon K. (1992). Kot Mai Aya Phak Khwamphit [Criminal Law: Penal Code]. Thammasat University Press, Bangkok. Stasi, A. (2016). Elements of Thai civil law. Brill, Leiden and Boston. Supasitthumrong, C. (2010, August 31). Thailand’s Criminal Bad Check Laws. Tilleke & Gibbins. https://www.tilleke.com/sites/default/files/informed_counsel_vol1_no3_p3.pdf Watnasawad K. (2006). Kham athibai Kot Mai Aya Phak Nueng [Elements of criminal law]. Chira RatKan Phim Press, Bangkok. Watson, A. (1991). Studies in Roman private law. A&C Black, London.

Chapter 11

Other Property Offenses

Under Thai criminal law, one has to distinguish from simple theft many specific offenses in which theft exists as the base but accompanied with peculiar circumstances deemed to aggravate the offense and require an increased penalty. Simple theft – namely, such as is merely what we originally defined theft to be, and is unaccompanied with any of certain specified circumstances of aggravation – is punishable under Section 334 of the Penal Code imposing fine or imprisonment or both, depending upon the circumstances. A person convicted of simple theft, after having been previously convicted of the same offenses, may often incur an increased punishment. Aggravated crimes are of various kinds, always defined specifically by the Penal Code which attaches a special penalty. Theft from the person, from a dwelling house, from a store or shop, or from a vessel or warehouse is often made a substantive crime. The manner of the taking in one case so aggravates the crime that it amounts to a substantive crime known as gaan bplôn (i.e., robbery). This involves all of the elements of theft, with the addition that the taking is from the person or immediate presence of the owner, accompanied by violence or intimidation.1

11.1  Robbery and Gang-Robbery Thai law has a separate offense of robbery. Section 339 of the Penal Code states that whoever commits theft by doing any act of violence or threatening to do any act of violence immediately in order:

1  This means that the property must not only be taken from the person of someone but taken from such person by force, or in fear of force being used.

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 A. Stasi, General Principles of Thai Criminal Law, https://doi.org/10.1007/978-981-15-8708-5_11

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1 . To facilitate the theft or taking away of the thing; 2. To obtain delivery of the thing; 3. To take hold of the thing; 4. To conceal the commission of such offense; or 5. To escape from arrest, is said to commit robbery, and shall be punished with imprisonment of 5–10 years and fined of one hundred thousand to two hundred thousand baht. If the robbery causes bodily or mental harm to the other person, the offender will be punished with imprisonment of 10–20 years and fined of two hundred thousand to four hundred thousand baht. If the robbery, however, causes grievous bodily harm to the other person, the offender will be punished with imprisonment of 15–20  years and fined of three hundred thousand to four hundred thousand baht. If the robbery causes death to the other person, the offender will be punished with death or imprisonment for life. Obtaining money from a solitary person in a lonely place by a threat, not to use force, but merely to accuse such person of being there for criminal purposes, would not be robbery. And even actual force, if it does not begin until after the taking, will not make a theft become a robbery. Force or intimidation must characterize the taking, which must be from the owner’s person or presence (Watnasawad 2006). To stealthily take a watch or wallet from one’s pocket, commonly called pickpocketing, is not robbery. It is considered as an aggravated species of theft. If there is, however, a struggle with the owner, or the property is detached from his/her person by force, the necessary element is supplied. When a watch chain is broken in snatching a watch the act would probably be held robbery. There are also substantive crimes (i.e., thefts deemed of an aggravated character, depending upon the person by whom they are committed, as a theft by a clerk or by an employee). This is owing to the opportunities of dishonesty which are necessarily placed within the reach of all persons thus employed and to the breach of trust which is involved in taking advantage of them. In such cases the punishment is often made greater than would be imposed for the theft of the same value of property by some other person.2 Sections 340, 340-bis, and 340-ter of the Penal Code deal with the offense of gang-robbery. Whoever with three persons upward participate in committing robbery, such persons are said to commit gang-robbery and will be punished with imprisonment of 10–15 years and fined of two hundred thousand to three hundred thousand baht (Na Nakhon 1992). If in the commission of the gang-robbery, even one of the offenders carries arms, the offender will be punished with imprisonment of 12–20 years and fined of two hundred forty thousand to four hundred thousand baht. If the gang-robbery, however, causes grievous bodily harm to the other person, the offender will be punished with imprisonment for life or imprisonment of 15–20 years while if the gang-robbery is committed by acts of cruelty so as to cause bodily or mental harm to the other person, by shooting with a gun, by using  For a discussion of the difficult question, “who is an employee?”, see Section 6.3.

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explosive, or by acts of torture, the offender will be punished with imprisonment for life or imprisonment of 15–20 years.3

11.2  Extortion Various acts under this head are punishable under Thai criminal law. These acts are specifically described as acts of extortion. Under Thai law, the term extortion, gaan-­ gan-­chôhk, is defined as the communication of threats to another with the intent of obtaining from such person any money or thing of value which is not due from him/ her at the time when it is taken. It must not be confused with oppression, which is the unlawful infliction upon any person of bodily harm, imprisonment, or other injury, or with fraud which includes any fraudulent act or breach of trust affecting the public, by a public officer, even though the same would not be criminal if committed against a private person. Whether there is an abuse of discretionary power from an improper motive must be inferred from the nature of the act or circumstances of the case.4 Section 337 of the Penal Code states that “Whoever, compels a person to give or to agree to give him/her or the other person a benefit in the nature of being a property by committing an act of violence or by a threat to commit violence against the life, body, liberty, reputation or property of the compelled person or a third person, so that the compelled person submits to the same is said to commit extortion, and shall be punished with imprisonment not exceeding 5 years and fined not exceeding one hundred thousand baht.” However, if the extortion is committed by threatening to cause death or grievous bodily harm to the compelled person or the other person or to set fire to the property of the compelled person or other person, the offender will be punished with imprisonment of 6 months to 7 years and fined of ten thousand to one hundred forty thousand baht (Na Nakhon 1992). The same punishment is imposed in every case where the extortion is committed by a person carrying a weapon (Section 337, paragraph 2, Penal Code). De facto as well as de jure officers may be guilty of extortion. If one claims an office and assumes to exercise the duties thereof, he/she must discharge the same in conformity with and under the obligations of the law. It should be added that a mere illegal exercise of authority arising from a bona fide mistake as to the law would not involve criminal guilt, as a criminal intent would be lacking. It may be questioned whether executive officers so far as they are clothed with discretionary duties, members of the legislature, and judges in the performance of judicial as distinguished

3  It is important to note that if the gang-robbery causes death to the other person, the offender shall be punished with death (Section 340, Penal Code). 4  Under English law, nonfeasance is a misdemeanor and is committed when any public officer willfully neglects to perform a duty imposed upon him/her by law, provided the discharge of such duty is not attended with greater danger than a person of ordinary firmness and activity may be expected to encounter.

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from ministerial duties are liable to indictment for offenses of this class. The usual remedy against them is impeachment (Kitisuphakarn 2019).5

11.3  Blackmail and Fraud Gaan kòm kòo ao ngern (i.e., blackmail) is defined under Thai criminal law as the unlawful demand of property from a person by threats of accusation or exposure. Section 338 of the Penal Code disposes that “Whoever, compelling another person to give or to agree to give oneself or to another person a benefit in the nature to be the property by threatening to disclose the secret, to cause injury to the compelled person or the third person, up to the compelled person submit to the same, such person to be said to commit blackmail, and shall be imprisoned as from 1 to 10 years and fined as from twenty thousand baht to two hundred thousand baht.” Thai law covers four different forms of fraud. First is the civil tort of fraud (i.e., extra-contractual fraud, in Thai gaan tút-jà-rìt) which is regulated under the general regime of the Civil and Commercial Code. Section 420 of the Code states “A person who, willfully or negligently, unlawfully injures the life, body, health, liberty, property or any right of another person, is said to commit a wrongful act and is bound to make compensation therefore.” Second is the criminal form of fraud (in Thai gaan lòk luang) which is defined as an intentional misrepresentation (e.g., trickery, breach of confidence, deceit, or sharp practice) to gain an advantage over another party such as money, information, or physical assets. More precisely the Penal Code states that “Whoever dishonestly deceives a person with the assertion of a falsehood or the concealment of the facts which should be revealed, and, by such deception, obtains a property from the person so deceived or a third person, or causes the person so deceived or a third person to execute, revoke or destroy a document of right, is said to commit the offense of cheating and fraud, the offender shall be punished with imprisonment not exceeding 3 years or fined not exceeding sixty thousand baht, or both” (Section 341). It follows that the crime of fraud includes both an internal element (i.e., intention on cheating and committing a fraud as well as having a dishonest motive) and an external element (i.e., the assertion of falsehood or the concealment of facts that should be revealed). In defining the internal element, Professor David Tan (2020) correctly observes that the intention on cheating and committing a fraud “refers to the direct intention or mens rea requirement for all criminal offenses. This means a conscious act carried out desiring a particular result. The doer of the action is conscious of his/her actions or knowingly doing bodily actions. At the same time, the action must have a 5  It is interesting to note that under English law, it is a misdemeanor for any person to unlawfully refuse or omit to take upon himself/herself and serve in any public office which he/she is by law required to accept if duly appointed, provided no other penalty is imposed by law for such refusal or neglect, or the law or custom does not permit composition in place of serving.

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desired result, for example, Jack forged the signature of John on a check so as to withdraw cash money from the bank. The conscious act of forging the signature of John is done with the desire for receiving cash from the bank.”6 With regard to the external element, Professor David Tan (2020) points out that “…the assertion of a falsehood… means that at the time when the assertion is made, it is not in line with the truth or facts. Alternatively, if the person making the assertion believes that the assertion is false but it turned out to be the truth or factual (i.e., in line with the truth), this is not considered an assertion of falsehood.” He adds “the falsehood asserted is an event that took place in the past or the present, not for an event that will happen in the future since it is uncertain that it will take place. For example, the value of a condominium unit will increase within the next 6 months and it is profitable to invest now or an endorsement given on the harvesting of a certain crop within the next 3 months. These assertions about the future cannot be a falsehood. However, it may be deemed a breach of contract instead” (Tan 2020).7 This means that the concealment must concern facts that are already known to the offender. Thus, selling a plot of land without knowing that it will be subsequently taken and retained by the State will not be considered as concealment.8 If the offense of fraud is committed by the assertion of a falsehood to the public or by the concealment of the facts which should be revealed to the public, the offender will be subjected to more severe punishment. More precisely, the offender will be punished with imprisonment not exceeding 5 years or fined not exceeding one hundred thousand baht, or both. In this regard, Professor David Tan (2020) notes “unlike non-public fraud under Section 341 which is a compoundable offense, cheating and fraud committed against the public is not a compoundable offense i.e., a charge for public fraud cannot be settled or compromised out of court, it can only be acquitted.” Furthermore, Section 344 of the Penal Code states “Whoever, dishonestly, deceiving ten persons upwards to perform any work for oneself or for the third person with the intent not to pay the wages or remuneration to such persons, or with the intent to pay such person lower wages or remuneration than those agreed upon, shall be imprisoned not out of 3  years or fined not out of sixty thousand baht, or both.”9 Thirdly, there is a particular category of fraud which is the offense of cheating against creditors. Thus, the creditor is entitled to claim cancelation by the court of

6  In his book Professor Tan observes “The person committing the cheat and fraud should possess the mental constitutions since the beginning of the course of events. In other words, intention and dishonest motive of cheating and fraud are present from the beginning. The mental constitutions should not arise after the beginning of the course of events (Supreme Court’s decision no. 2840/2525).” 7  See Supreme Court’s decision no. 2067/2548. 8  Supreme Court’s decisions nos. 151/2537 and 152/2537. 9  If the offense of fraud is committed by the offender showing himself/herself to be another person, by taking advantage of the lack of intelligence of the deceived person who is a child, or by taking advantage of weakness of mind of the deceived person, then the offender will be punished with imprisonment not exceeding 5 years or fined not exceeding one hundred thousand baht, or both.

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any juristic act done by the debtor with knowledge that it would prejudice his/her creditor; but this does not apply if the person enriched by such act did not know, at the time of the act, or the facts which could make it prejudicial to the creditor, provided, however, that in case of gratuitous act the knowledge on the part of the debtor alone is sufficient (Section 237, Civil and Commercial Code). The debtor also faces criminal charges when he/she damages, destroys, or renders useless the property given in pledge causing injury to the pledgee. Likewise, a debtor is criminally liable if he/she removes, conceals, or transfers any property to another person, or maliciously contracts a debt for any sum which is not true, in order to prevent the creditor from receiving payment (Sections 349 and 350, Penal Code). Finally, there is a criminal variety of fraud which relates to electronic crimes and is penalized under different provisions. Computer-related forgery and computer-­ related fraud is regulated under the Computer Crime Act of 2007 as amended by the Computer Crimes Act of 2017. According to Section 5 of the Act, any person illegally accessing a computer system for which a specific access prevention measure that is not intended for their own use is available is subject to imprisonment for no longer than 6 months or a fine of not more than ten thousand baht or both.10 In the case where a person illegally accesses computer data, for which there is a specific access prevention measure not intended for their own use available, then he/she will be subject to imprisonment for no longer than 2 years or a fine of not more than forty thousand baht or both. Section 9 of the Computer Crimes Act adds “Any person who illegally damages, destroys, corrects, changes or amends a third party’s computer data, either in whole or in part, shall be subject to imprisonment for no longer than 5 years or a fine of not more than one hundred thousand baht or both.”11 The Penal Code includes the frame of reference that the courts must adopt when offenses relating to electronic cards (in Thai bàt ì-lék-tror-nìk). More precisely, Section 264 of the Code states “Whoever, in a manner likely to cause damage to another person or the public, fabricates a false document or part of a document, or adds to, takes from or otherwise alters a genuine document by any means, or puts a false seal or signature to a document, if it is committed in order to make any person believe that it is a genuine document, is said to forge a document, and shall be punished with imprisonment not exceeding 3 years or fined not exceeding sixty thousand baht, or both.” In the case where a person forges an electronic card in whole or in part, adds or cuts statement, or amends by any means part of an electronic card in a manner likely to cause injury to other persons, such person commits the electronic card forgery and is punished imprisonment from 1 to 5 years and fined from twenty

 Interestingly, Section 24 of the Act specifies “Any person knowing of computer data, computer traffic data or a service user’s data acquired by a relevant competent official and disclosing it to any person shall be subject to imprisonment for no longer than 2 years or a fine of not more than forty thousand baht, or both.” 11  Likewise, if a person puts into a computer system forged computer data, partially or entirely, or false computer data, in a manner that is likely to cause damage to a third party or the public the following offenses, such person is subject to imprisonment up to 5 years and a fine not exceeding one hundred thousand baht, or both. 10

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thousand baht to one hundred thousand baht. Section 269/4 of the Penal Code adds “Whoever uses or acquires for use an electromagnetic record/electronic card which is forged or altered, shall be liable to imprisonment between 1 and 10 years or to a fine of twenty thousand baht to two hundred thousand, or both.” By the same token, using electronics card of another person wrongfully in a manner likely to cause damage to another person or other people entails a sentence of up to 5 years and a fine not exceeding a hundred thousand baht or both (Section 269/5, Penal Code).

11.4  Restitution of Possession The only remaining topic to be considered in connection with the offenses against the property is that of the restitution of the stolen property. The thief aims at depriving the true owner of all the benefits of the right of ownership. In this context, it is important for the reader to avoid the misapprehensions on this point which are apt to arise from the ambiguity of the word “property.” That term may mean either the physical object which is owned (e.g., “this umbrella is part of my property”) or the legal right which the owner has over it (e.g., “the finder of a lost umbrella acquires a special property in it”). It is only in the former sense that it is possible to speak of “lost property” or of “stolen property.” For property in the second sense (i.e., the intangible right of ownership) cannot be stolen or mislaid. Book IV of the Civil and Commercial Code is entirely dedicated to the law of property. Terms like “property,” “possession,” “use,” “ownership,” and “things,” though often used as synonymous with each other in everyday situations, are not to be used indiscriminately (Stasi 2016). Things (in Thai: sáp) are regulated under Section 137 of the Civil and Commercial Code which states “Things are corporeal objects.” The term “property” (in Thai: sáp sĭn) in its ordinary sense includes “things as well as incorporeal objects, susceptible of having a value and of being appropriated. This means that property refers not only to things in a physical sense, but also to any various creations of the intellect; individuals’ rights of personality, such as privacy or emotional well-being; and other activities, like the work done by a contractor” (Stasi 2015).12 A theft, then, leaves unaltered the ownership in the goods stolen;13 so that the owner is still entitled to seize upon the thing or to bring a civil action to recover it from the thief. There is an apparent exception to this where the thief has gone on to destroy the thing or even to irrecoverably alter its essence by making an entirely new kind of thing out of it. In the latter case, as when Arm takes Bo’s barley and makes it into malt, or 5’s planks and builds a summerhouse with them, he acquires

 Under Section 143 of the Civil and Commercial Code, things outside of commerce are things incapable of being appropriated such as the seashore, the sun, the stars, the air, and those legally inalienable such as temples and objects with explicitly Buddhist imagery and inscriptions. 13  It is usually said that even the possession remains, constructively, in the owner. 12

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title, by specificatio, in the new thing thus created.14 For, just as if Arm had burned the planks, or had fed pigs with the barley, Bo’s ownership is gone; and, consequently, his civil remedy is an action for damages alone. Yet even here there is no real exception to the principle that has been previously laid down. For it was not by the theft, but by further conduct, posterior to the theft, that Bo’s ownership was extinguished.15 A thief cannot confer ownership. Since a thief does not become owner, he/she cannot confer ownership upon anyone else following the maxim non dat qui non habet (a person cannot give that which he/she has not). Thus, the original owner may sue the thief, or anyone to whom the thief has given or sold the stolen article, in a civil action to recover it or its value. Moreover, to save owners the trouble and expense of this fresh litigation, it has been enacted that an order for restitution of stolen property may be made by the criminal court before which any person is convicted of theft (whether simple or aggravated) or robbery or theft in any form, or even extortion or blackmail. But such an order can only be made in respect of such of the stolen property as has been mentioned in the indictment and has been produced and identified at the trial.16 It must be added that upon this general principle, non dat qui non habet, case law has engrafted two exceptions, which the necessities of trade have shown to be indispensable for the security of purchasers. One depends upon a peculiarity in the stolen property itself; the other upon a peculiarity in the place where the purchaser buys it. A person who, in all ignorance of the theft, gives the thief valuable consideration in  The Civil and Commercial Code provides that if a person uses materials belonging to another person to make a new thing, the latter person becomes the owner of such thing, irrespective of the question whether the materials can or cannot assume their former condition, but the owner of the materials must pay for the work. However, if the value of the work greatly exceeds the value of the materials used, the worker shall become the owner of the thing which is the result of the work, but he/she must pay the value of the materials (Section 1317). 15  If Lek had dealt with the materials in a less drastic manner, so that the law would regard their identity as still continuing and as being still traceable – as where leather is made into shoes, cloth into a dress, or a log into planks – ownership would not have been changed; and Jay might lawfully have seized the whole of the manufactured product. Indeed, Lek’s misconduct will sometimes have even the result of actually enriching Jay. For if Lek mingles Jay’s goods with his own, and not in a mere separable combination (like a heap of chairs) but so as to become mixed undistinguishably (as in a heap of corn or a stack of hay), then the law confers upon Jay the ownership of the whole mass. Jay therefore becomes entitled to carry off even that part which, before the theft, did not belong to him at all (confusio). Similarly, in accessio, if Lek takes Jay’s dressing gown and embroider it with his own thread, Jay, as owner of the “principal,” can retake the garment and, along with it, the “accessory” embroidery (accesorium sequitur principale). Nor does the Thai law require him in any of these cases to pay any compensation for the advantage he obtains though the Roman did. It should be added, however, that in those cases of confusio where the commingled articles are identical not only in kind but even in mere quality and value, it is doubtful whether the general rule would not be modified, by making Lek and Jay joint owners of the total mass. 16  Statutory provisions of this character do not generally obtain in other Southeast Asian countries. The property is usually arbitrarily returned to the owner by the officers of the law, when it has been seized by them or produced in court upon the trial of the thief. If there is a doubt about the ownership, it is left to the courts to settle it. 14

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exchange for the stolen property, may, in spite of its having been stolen, acquire a good title to it, if either this stolen property consisted of money or of a negotiable security. To secure the free circulation of money, the law treats as indefeasible the title to money which has been paid away for value to an innocent recipient and this, even though the particular coins or banknotes may still be identifiable. As is sometimes said, “money has no ear marks.” Yet even money can be claimed back by its original owner from a beggar to whom the thief has generously flung it or from a friend to whom he/she has paid it in discharge of a bet. In a likely manner, money can be claimed back by its original owner from shopkeepers who have sold goods to the thief in full knowledge that he/she had no lawful right to the money used for paying them. Fairs and markets, moreover, brought together individuals from places so distant that, in medieval days, the purchaser had little means of knowledge about the vendor he dealt with there, and consequently he needed the protection of some legal privilege. Thus, it became settled that even the most ordinary chattels might be effectually alienated by a mere thief, if he sold them for value to a bona fide purchaser on a market day, in such a place as was a lawfully established market for the particular kind of goods concerned – e.g., cattle, or rice, or cloth. And the publicity and rarity of the privileged occasions made this exceptional rule work comparatively little injury in the way of encouraging thieves. But modern facilities of intercourse have lessened the need of this protection and, accordingly, modern legislation has restricted its completeness (Chanhom 2020). Hence, it will be revested in the old proprietor if the thief, or guilty receiver, be convicted of the stealing or receiving.17 The court which convicts may itself issue an order for restitution and so save the trouble of a civil action. Such an order does not create any new right; the mere conviction has upset the effect of the sale in market overt. But a conviction does not revest the ownership retrospectively. Accordingly, though the present holder must give up the article to the old owner, yet if the former were not the original purchaser in market overt, the owner will have no right of action in “trover” against that original purchaser or against any intermediate holders. Thus, after a conviction for theft, the owner is sure to be able to sue for restitution, except in the case of money or a negotiable security. And even in this excepted case, if the thief has spent the proceeds of the theft in buying some article, the owner of the money may seize that article, and the thief cannot have it back. Hence, the owner may “follow his/her money” even into the subsequently purchased goods which represent it as in the Thai law the word “property” includes not only the property originally possessed but also any property into or for which it has been converted or exchanged.18

 This rule is clearly intended to stimulate owners to activity in prosecuting.  These rules do not include any provisions for cases where a thief, though really guilty, has been acquitted, or where other property has been stolen besides the articles specified in the indictment, or where stolen property has been recovered by the police, but the thief has not been arrested.

17 18

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References Chanhom K. (2020). Kham Atibai Kot Mai Aya Phak Kwaam Pit [Elements of criminal law and criminal sanctions]. Win-yoo Chon Press, Bangkok. Kitisuphakarn S. (2019). Criminal Law: Principles, Rules and Practices. Phan Tamruat To Ying Sunthari Sansoen, Bangkok. Na Nakhon K. (1992). Kot Mai Aya Phak Khwamphit [Criminal Law: Penal Code]. Thammasat University Press, Bangkok. Stasi, A. (2015). Principles of Thai business law. Cengage, Singapore. Stasi, A. (2016). General Principles of Thai Private Law. Springer, Singapore. Tan, W. C. D. (2020). A Primer of Thai Business Law. P. Press, Bangkok. Watnasawad K. (2006). Kham athibai Kot Mai Aya Phak Nueng [Elements of criminal law]. Chira RatKan Phim Press, Bangkok.

Chapter 12

Modes of Judicial Proof and Rules of Evidence

The last chapter of the book will discuss the law of evidence (in Thai payaan lak taan). A ready knowledge of the law of evidence is essential to all who are engaged in forensic practice. There is probably no other legal accomplishment so widely diffused among the members of the bar as skill in appreciating evidence and familiarity with the law relating to it. The same may be said also of Thai lawyers whose practice to any considerable degree includes the trial of either civil or criminal causes in the courts. Thai criminal procedure is generally described as a two-pronged system combining both accusatorial and inquisitorial principles; the law on evidence contains both accusatorial and inquisitorial concepts. As Suparp (2005) correctly notes: Thai courts have not performed the duty of searching for the truth as the courts in civil law countries would normally have done. This may be associated with the fact that the early judges graduated from England, where they were influenced by the common law principles of a criminal trial. Thai courts accustomed themselves to such an application, and this practice has been observed and followed by the successors up to the present day. Consequently, unlike the inquisitorial system, there are rare possibilities for the facts in relation to the accused to be presented at the trial and included in the case file, unless the accused himself produces or makes a statement of facts regarding himself, in his application for reducing the penalty.

12.1  L  egal Evidence, Presumptions of Fact, and Presumptions of Law Whenever, in any country, a court is called upon to decide any question of fact, it must do so either by obtaining actual evidence or by the easier but less precise method of employing, instead, some a priori presumption. Before commencing a detailed account of evidence, it may be convenient to point out that in the trial of a case, if the accused pleads guilty to the charge, the court may give judgment without © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 A. Stasi, General Principles of Thai Criminal Law, https://doi.org/10.1007/978-981-15-8708-5_12

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taking any further evidence (Section 176, Penal Procedural Code). This applies only for offenses that carry a penalty not exceeding 5 years in prison. In these cases, the court, “gives the judgement, which includes the determination that the accused is guilty and the sentencing, together, without taking any other related evidence. Therefore, the court has no chance to acquire further facts regarding the accused or the circumstances of the case during the trial, beyond the facts that appeared in the public prosecutor’s charge” (Suparp 2005). Evidence can also be replaced by presumptions. Presumptions can be defined as aids to reasoning and argumentation, which assume the truth of certain matters for the purpose of some given inquiry. They may be grounded on general experience or probability of any kind or merely on policy and convenience. On whatever basis they rest, they operate in advance of argument or evidence or irrespective of it, by taking something for granted, by assuming its existence. When the term is legitimately applied, it designates a rule or proposition which leaves open to further inquiry the matter thus assumed. The exact scope and operation of these prima facie assumptions are to cast upon the party against whom they operate, the duty of going forward, in argument or evidence, on the particular point to which they relate. The facts which afford the basis of the presumption are to count as evidence, but the presumption itself does not possess any probative quality, and is not to be weighed and estimated in connection with the evidence in the determination of issues of fact. Presumptions are usually said to be of three kinds. The first category of presumptions is often referred to as kôr săn-nít-tăan dtaam gòt măai (also called presumptions of fact or praesumptiones facti). A good instance of such category is the presumption that an accomplice usually needs corroboration or the presumption that arises from possession of goods recently stolen. Besides these presumptions, there is one of the discretionary presumptions of fact which is so frequently employed as to deserve careful attention. This is the rule that the possessor of goods recently stolen may fairly be regarded as either the actual thief or else a guilty receiver. And it has been laid down that a person’s possession of such goods raises a presumption of guilty, not merely thus with regard to the theft, but also with regard to any further crime that accompanied the theft, e.g., a theft, a robbery, or a murder; though, so far as regards this, the presumption is less clear (Minakanitsakan 2005). As has been previously been said, this presumption arises in the case of goods which have been stolen recently. It therefore does not arise until proof has been given that the goods in question have actually been stolen. Hence, it is not sufficient that a beggar is wearing three gold watches and does not give a satisfactory account as to how he/she got possession of them. As to what time is near enough to be “recent,” no general rule can be given as the period within which the presumption can operate will vary according to the nature of the article stolen. For such articles as pass from hand to hand readily, 2 months would be a long time, particularly in the case of money. As has previously been pointed out, this presumption does not displace the presumption of innocence so far as to throw upon the accused the burden of producing legal proof of the innocent origin of the right of possession. He/she merely has to state how it did originate. If such account is given, and is minute and

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reasonably probable, then he/she must not be convicted unless the prosecution can prove the story to be untrue.1 The second category of presumptions is called kôr săn-nít-tăan dtaam gòt măai sêung hàk láang mâi dâai (irrebuttable presumptions of law). These are inferences of fact so overwhelming that the law will not permit evidence to be called to contradict them. As has already been noticed, these rules include the presumption that a person shall not be excused from the criminal responsibility committed by ignorance of law (Section 64, Penal Code). Such rules, though in form connected with the law of proof, are in truth rules of substantive law disguised in the language of mere procedural rules. The third and last category of presumptions is the kôr săn-nít-tăan dtaam gòt măai sêung hàk láang dâai (rebuttable presumptions of law). These are inferences of fact which only hold good until evidence has been given which contradicts them. They thus afford merely a prima facie proof of the fact presumed, a proof which may be overthrown by evidence which excludes it, or by collision with some other and still stronger presumption which suggests a contrary inference (Watnasawad 2006). The presumptions important enough to call for detailed notice here belong mainly to this third class, the kôr săn-nít-tăan dtaam gòt măai sêung hàk láang dâai (rebuttable presumptions of law). The Thai Constitution and the Penal Procedural Code guarantee the presumption of innocence against the commission of any crime (Newman 2010). Section 227 of the Code states “The court shall exercise its discretion in considering and weighing all the evidence taken. No judgment of conviction shall be delivered unless and until the court is fully satisfied that an offence has actually been perpetrated and that the accused has committed that offence. Where any reasonable doubt exists as to whether or not the accused has committed the offence, the benefit of doubt shall be given to him/her.” This holds good, not merely in criminal trials but equally in every civil case where any allegation is made that a criminal act has been committed. So strong is this presumption that in order to rebut it, the crime must be brought home to the defendant “beyond reasonable doubt” and the graver the crime, the greater will be the degree of doubt that is reasonable. Thus, the commission of the crime – that a vehicle actually was stolen, or the person killed – must be proved so clearly, that circumstantial evidence will rarely suffice to prove it. Hence, on a charge of murder, the fact of death must be very clearly proved which can rarely be done unless the body be produced, mere circumstantial evidence of death thus being usually insufficient. Moreover, after proving that the crime was committed, the prosecution must also prove distinctly that the person accused committed it so that when two individuals are charged with a crime, and it is made clear that one of them committed it, but it cannot be shown which one, both must be acquitted. The presumption of innocence is very strong and cannot be rebutted by the presumption of the continuance of life. It may be useful to note that an amount of

1  However, if he/she has put forward two inconsistent accounts, the explanation cannot be regarded as satisfactory and the prosecution need not call evidence to rebut these varying stories.

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testimony which is not sufficient to rebut the presumption of innocence entirely (i.e., to shift the burden of proof so completely as to compel the defendant to call legal evidence of circumstances pointing to innocence) may yet suffice to throw upon him/her the necessity of offering some explanation. If he/she remains silent and leave this hostile testimony unexplained, such silence will corroborate it and so justify a criminal conviction. A frequent illustration of this occurs in the case where a person accused of theft is shown to have been in possession of the stolen goods shortly after they were stolen. Another presumption of this category is represented by the presumption of regularity and is expressed by the maxim of law omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium, i.e., all things are presumed to have been done correctly and with due formality. This presumption is one of great force, especially when applied to public or official acts. Thus, the fact of a person’s acting in a public office (e.g., as head of the village, justice of the peace, or constable) is sufficient prima facie evidence of his/her having been duly appointed to it. And there is a presumption that in any government office the regular course of business has been followed (e.g., that the particulars on a postmark represent the time and place at which the letter was handled in the post). Even in a private establishment, the course of dealing may become so systematic and regular as to justify a similar employment of this presumption. Hence, a letter left in the ordinary course with an employee for delivery to his/her employee may be presumed to have reached the employee’s hands. Again, a deed will be presumed to have been executed on the day whose date it bears. And the holder of a bill of exchange is deemed prima facie to be a “holder in due course.” Also belonging to this category of săn-nít-tăan dtaam gòt măai sêung hàk láang dâai are the presumption that the possessor of property, real or personal, is prima facie the full owner of it and that any existing state of things will continue for some time further. Accordingly, if an unregistered ordinary partnership or agency is shown to have once existed, those who allege it to have been subsequently dissolved will have the burden of proving the dissolution. This presumption is also applied in questions as to the duration of human life. Where a person is once shown to have been living, he/she will be presumed to have continued alive for some time longer though the strength of this presumption will depend upon the particular circumstances of the case, such as the age and the health’s state. The disappearance of a person can be declared only after a period of absence. Specifically, when a person is away from his/her domicile or residence and it is uncertain whether he/she is living or dead, such a person is considered as absent. During the absence, he/she has the faculty to appoint an agent on the basis of an agency contract. Provisions concerning the management of affairs of the missing person can be found under Sections 48 and following of the Civil and Commercial Code. In cases where a person who has left his/her domicile or residence did not appoint an agent with general authority for the property and it is uncertain whether he/she is living or dead, the court may, upon the application of any interested person or a public prosecutor, take any provisional measure necessary for the management of

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such property. In case no news of him/her has ever been received, the court may appoint a manager of the property after 1 year has passed from the day when he/she has left the domicile or residence, or from the day when he/she has last been seen or heard of. At the end of a continuous period of absence, death may be presumed. As regards normal cases of disappearance, Section 61, paragraph 1, of the Civil and Commercial Code states “If a person has left his domicile or residence and it has been uncertain for five years whether he is living or dead, the court may, on the application of any interested person or of the public prosecutor, adjudge that such person has disappeared.” However, Thai law provides some special cases of disappearance when missing persons were engaged in war or battle, their vehicle was lost or destroyed, or they went through a disastrous situation and were in peril of life. In these cases, the court may declare the person dead 2  years after such events (Section 61, paragraph 2, Civil and Commercial Code). The adjudication of disappearance and its revocation must be published in the Government Gazette to give notice of such legal fact to the public. Once a person has been declared legally dead, he/she is presumed to have died from the judicial declaration of disappearance. The declaration of disappearance gives rise to the same consequences as a natural death (Stasi 2016). Therefore, the estate of the disappeared person will be transferred to the heir according to Section 1599 of the Civil and Commercial Code.2 The declaration of death is founded upon a legal presumption. It is still possible that the person presumed to be dead is, in fact, still alive. Therefore, any interested person (including children, adult relatives, and friends of the individual) or the public prosecutor as well as the disappeared person himself/herself may present evience that the missing person is alive, or died at a different time in order to revoke the adjudication of disappearance (Stasi 2015). In such a case, however, the rescission does not affect the validity of any act which was performed in good faith after the adjudication of disappearance but before the revocation (Section 63, paragraph 1, Civil and Commercial Code).

12.2  The Nature of Evidence A litigant, whose case is not made out for him/her by any presumption, must convince the court by producing evidence. The evidence known to Thai courts classifies evidence into three categories which may be respectively described as payaan book

2  When a person dies, his/her estate devolves on the heirs. An heir may lose his/her right to the succession only under the provisions of the Civil and Commercial Code. Furthermore, the declaration of disappearance is a cause of dissolution of marriage under Section 1501 of the Civil and Commercial Code which states that “marriage is terminated by death, divorce or being cancelled by the court.”

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kon (i.e., oral evidence),3 payaan eakasaan (i.e., documentary evidence),4 and payaan wat thu (i.e., material or “physical” non-documentary evidence).5 More precisely, Section 226 of the Penal Procedural Code states “Any material, documentary or oral evidence, likely to prove the guilt or the innocence of the accused, is admissible, provided it is not obtained through any inducement, promise, threat, deception or other unlawful means; such evidence shall be produced in accordance with the provisions of this Code or other laws governing production of evidence.” The same principle of classification has also been carried out, in other phraseology and in a slightly different arrangement, as “real” evidence and “personal” evidence. Real evidence consists in the condition of a thing as, for example, a fence, a uniform, a tattoo mark, a wound, and a smell of acid. Hence, blood stains upon a knife are “real” evidence of its having caused a wound. Personal evidence refers to evidence which was produced directly by the mental condition of a human being. It may be either involuntary (e.g., a blush) or voluntary (e.g., an affidavit).6 There is also a very dissimilar, but not less important, mode of classifying evidence, which turns upon differences in its logical bearing upon the question to be decided. Considered from this point of view, all evidence is either direct (payaan lak taan doi trong) or circumstantial (payaan wad lom).7 Direct evidence is testimonial evidence to one or more of the facts in issue which, if all of them be proved, render legally necessary a decision favorable to the person producing them. All other evidence is “circumstantial.” This term consequently includes real evidence, involuntary personal evidence, as well as testimonial evidence which tend to prove, or to disprove, some fact in issue – some facts which are an essential part of the question to be tried. Hence, in a prosecution for libel, the act of publication by the defendant is a fact in issue, while the similarity of the defendant’s ordinary handwriting to that on the envelope in which the libelous document was posted is a fact that tends to prove this fact, and so becomes relevant to the issue. The principal forms of circumstantial evidence most familiar in Thai criminal cases include the defendant’s rank, disposition, motives, threats, preparations, attempts, false statements, silence, fabrication or destruction of evidence, and possession of stolen property. But circumstantial evidence is just as applicable in civil cases as in criminal. Yet the controversies with regard to its value have arisen almost  It is important to point out that the accused may not be cited as a witness by the prosecutor.  Only original documents are admissible as evidence; however, if the originals are not available, certified copies thereof or oral evidence of their contents are acceptable (Section 238, Penal Procedural Code). 5  Anything, which is used as material evidence, must be brought to the court. In case of it is not possible to bring it, the court will proceed to examine it and make a memorandum of the examination at the place where the thing is, at such time and by such means as the court thinks fit according to the nature of the evidence (Section 241, Penal Procedural Code). 6  It must be added that voluntary evidence may be either oral or written. 7  The reader must distinguish between this technical use of the word, and a more popular one, in which it is also applied to evidence, but means simply “full of detail,” “circumstantiated” (e.g., “his tedious and circumstantial description”) and in which it consequently may be as applicable to a witness’s direct as to his indirect evidence. 3 4

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entirely in connection with criminal offenses. For the much greater severity of the penalties that may be inflicted for them has caused many persons to challenge the probative force of circumstantial evidence, as being logically inadequate to support a conviction for any capital crime. The question thus raised is so fundamental as to need careful consideration. It is clear that in dealing with any testimonial evidence whatever, whether “circumstantial” or “direct,” a judge may be misled. For they have to depend upon the accuracy of witnesses’ (in Thai payaan) original observation of the events they describe, the correctness of their memory, or their veracity. But in addition to the risks of mistake, forgetfulness, and falsehood, which thus arise even when none but direct evidence is given, there are additional risks to run in dealing with circumstantial evidence. For here the judges have also to depend upon the cohesion of each circumstance in the evidence with the rest of that chain of circumstances of which it forms a part as well as the logical accuracy of the judges themselves in deducing inferences from this chain of facts. The question arises on whether conviction for any capital offense should be allowed to take place upon merely circumstantial evidence. In this respect, it is important to note that in every criminal case the mens rea must necessarily be proved by circumstantial evidence alone8 (except when the defendant actually confesses). Also, the inference to be drawn from circumstantial evidence may often be extremely obvious as, for instance, in a case of evidence of an “alibi.” Indeed, the circumstantial element often plays a large part in what would pass, at first sight, as excellent “direct” evidence. Hence, a witness may depose that she saw Bow point a rifle at Belt and fire it; saw the smoke, heard the crack, and saw Belt fall; and then, going up to her, saw a bullet-hole in her leg. But still she did not see Bow’s bullet strike Belt; so this fact (the really essential one) depends entirely upon circumstantial evidence (i.e., it has to be merely inferred from these other facts which she actually did see). No distrust of circumstantial evidence has been shown by Thai law. It does not even require that direct evidence shall receive any preference over circumstantial. Indeed, some experienced lawyers have even gone so far as to prefer circumstantial evidence to direct. “Witnesses,” say they, “can lie; circumstances cannot.” Case law, in fact, shows vividly that testimony, even when a large number of witnesses corroborate each other, may be quite untrustworthy and therefore that direct evidence is not necessarily to be believed. It may even be less trustworthy than circumstantial evidence, if the latter happens to consist of a great number of detached facts, which are severally proved by different witnesses. For, in such a case, each witness’s contribution may well appear to him/her too trivial for it to be worthwhile to commit false testimony about it (though, on the other hand, the same triviality which thus reduces the chance of mendacity increases somewhat the chances of mistake and of

8  The task of inferring the mens rea from such evidence is often facilitated by certain presumptions of law, e.g., that “an individual intends the natural and probable consequences of his act” or that an intentional killing is to be prima facie supposed to have been due to murderous intent.

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forgetfulness).9 But in all other cases, circumstantial evidence must certainly be pronounced to be less trustworthy than direct evidence since a dangerous source of error is introduced by the difficulty of reasoning from the fragmentary items of proof to the conclusion to be proved. For, though “circumstances cannot lie,” they can mislead.10 Unfortunately it is in the graver rather than the lesser crimes that circumstantial evidence has the most frequently to be relied upon because in such crimes an offender is the more careful to avoid eye witnesses.11 So it is that if a child has died just about the time of birth, though the question whether it was born alive or dead can usually be settled easily in civil actions (friends of the mother, who were present at the birth, being called), yet its determination on a criminal trial for infanticide is usually most difficult. For it ordinarily has to depend wholly on circumstantial evidence, and this has to be drawn from postmortem appearances of an ambiguous character. Thus, has arisen a widespread impression that the evidence requisite to prove live birth is different in civil and in criminal cases; the only difference being, in reality, in the evidence usually available in those respective cases. These various considerations point to the conclusion that circumstantial evidence should be admitted, but admitted only with great care. The degree of care, however, must not be excessive as when some suggest that there should be no conviction unless guilt be “the only possible inference” from the circumstances. In fact, even in the best proved case, there must always be some possible hypothesis which would reconcile the evidence with innocence. The prudent hesitation of the law in regard to circumstantial evidence has found expression in some familiar restrictions upon its use. An example will help clarify this point. It is not enough that a beggar has been found to be wearing two diamond rings. No conviction for theft is to be allowed unless the fact that a theft has actually taken place be proved fully. To convict such beggar of theft, it must further be proved that these rings had somewhere been stolen; and this must be proved either by direct evidence or at least by exceptionally strong circumstantial evidence. Usually, therefore, it will be necessary to bring the owner to prove the loss of some article and its identity with the article which is the subject matter of the indictment. But it is possible that even circumstantial evidence may be so peculiarly strong as to justify a conviction without any such direct proof as where a person, on coming out of a liquor store, is found to have whiskey concealed under the coat. Similarly, no conviction for homicide is to be allowed unless the fact that there has been a death be fully proved. This again must be done either by direct evidence (e.g., the finding of the body) or by circumstantial evidence of an exceptionally strong character. The corpus delicti must be established. Without this a confession

9  Wherever there can be any doubt as to the veracity of the witnesses, indirect evidence, coming from different sources, has a greater force and effect than direct evidence. 10  They may even have been brought about for the very purpose of misleading. 11  For example, no deliberately planned murder is likely to be carried out when any third person is at hand.

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even is not sufficient to warrant a conviction. It thus is usually necessary that the body, or some identifiable portion of it, should be found. Circumstantial evidence therefore is founded on experience and observed facts and coincidences establishing a connection between the known and proved facts and the fact sought to be proved. The advantages are, that, as the evidence commonly comes from several witnesses and different sources, a chain of circumstances is less likely to be falsely prepared and arranged, and false testimony is more likely to be detected and fail its purpose. The disadvantages are that a judge has not only to weigh the evidence of facts but to draw just conclusions from them in doing which they may be led by prejudice or partiality, or by want of due deliberation and sobriety of judgment, to make hasty and false deductions, a source of error not existing in the consideration of positive (i.e., direct) evidence.

12.3  P  aara Nai Gaan Pisoot and the Role of the Public Prosecutor The paara nai gaan pisoot (i.e., burden of proof) is an expression which indicates which party to legal proceedings must lose if no further evidence is adduced (Wadicharoen 2004). It has always been held in the kingdom of Thailand that any person who makes a positive assertion of fact in legal proceedings should be compelled to establish the truth of his/her allegations.12 Hence, the creditor who claims a debt has the burden of proving it to be owed. Likewise, in any criminal accusation, the burden of proof always lies upon the accuser as regards the actus reus and usually also as regards the mens rea, while the accused, on the other hand, has the right to remain silent. And this duty of every plaintiff to make out his/her case is so clearly imposed by law that the judge is not allowed to pronounce a verdict in the plaintiff’s favor if the only evidence he/she has produced is so slight that no reasonable person could accept it as establishing the fact which is to be proved. Hence, if it is necessary to show that a transaction took place on a Monday, and the evidence only shows that it took place “either on a Monday or on a Tuesday,” there would be no case which the judge could convict the accused person. Thus, it may quite logically happen that a defendant may be acquitted, and yet that the witnesses against him/her, on being indicted before the same judge for false testimony, may also be acquitted. Sometimes, however, this rule, that the burden of proof is on the plaintiff, may happen to come into collision with the fundamental presumption of innocence, which throws the burden of proof on the accuser when it alleges misconduct, even though the allegation of misconduct be a negative averment, a charge of omission. In such a collision of rules, the presumption of innocence must usually be allowed

 This principle is expressed by the maxim of law as omnia praesumuntur pro negante (also stated by the Roman jurist Paulus as ei incumbit probatio qui dicit, non qui negat).

12

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to prevail, and the accuser will generally be required to give proof not only of its affirmations but even of its negations. To this principle, however, an exception arises in those cases where the affirmative fact, which would disprove guilt, is one which (if it exists) lies peculiarly within the knowledge of the litigant whose interest it is that this guilt should be disproved. For in these peculiar cases, so soon as the accuser has given so much evidence as a reasonable person might consider to be sufficient to establish guilt, there then is cast upon the accused person the burden of producing affirmative counterevidence. Accordingly, if he/she thereupon fails to produce that evidence, this failure may be taken into account as proving that no such affirmative evidence exists and accordingly as corroborating the accuser’s negative allegation. The fundamental rule that an accuser must make out satisfactorily the charge is, however, quite reconcilable with this permission to draw hostile inferences from the defendant’s silence, if one regards that silence as a fact never sufficient of itself to rebut so strong a presumption as that of innocence, but merely capable of being taken into account to corroborate other evidence, which might, even uncorroborated, have been legally sufficient to achieve that rebuttal. The probative value of this fact of silence becomes the greater in proportion as the grounds of defense, about which the defendant is silent, lie the more particularly within his/her own knowledge. Hence, in proceedings for practicing medicine without a qualification, or selling intoxicating liquor without a license, so soon as the active conduct alleged has been proved, it may then be left to the defendant to prove that he/she possessed the qualification or license.13 In practice, the burden of proof belongs to the prosecution. Under the Public Prosecution Organ and Public Prosecutors Act B.E. 2553 (2010), the public prosecutor (in Thai ayagaan) is defined as an official under the office of the attorney general. In order to guarantee independence and impartiality of the public prosecutors, the Act disposes that the office of the attorney general is a state agency which is independent in personnel administration, budget administration, and other activities and enjoys legal personality (Sathitsuksomboon 2001). The public prosecutor is the main prosecuting authority in Thailand.14 As Section 28 of the Penal Procedural Code states: “the following persons are entitled to institute the criminal prosecution in the court: the public prosecutor and the injured person.”15 If the criminal prosecution is instituted by the public prosecutor, the injured person may apply by the motion to associate himself/herself as the prosecutor at any of stages of the proceedings before the pronouncement of judgment of the Court of First Instance.

 It should be noted, however, that not infrequently the legislature has thrown upon persons charged with various statutory offenses the onus probandi of rebutting certain presumptions that are declared to arise from the proof of a certain state of facts. 14  There are 17 levels of positions, ranging from assistant prosecutors to attorney general. 15  For compoundable offenses, however, the criminal case can only be instituted by the injured person. The public prosecutor may file a motion to associate himself/herself as prosecutor at any time before the case is finally settled (Section 31, Penal Procedural Code). Cases concerning a compoundable offense may be withdrawn or settled at any time before they become final. 13

12.4  Section 176 of the Penal Procedural Code and Testimonial Evidence

141

The public prosecutor is responsible for bringing criminal cases to court on behalf of the state, represents the state in civil cases and administrative cases, and undertakes certain appropriate actions as to the execution of criminal judgments, only for the purpose of the seizure of property to cover the fines under the judgments. Public prosecutors examine police investigation reports and decide whether to bring the case to court or not. If there are reasonable grounds for suspecting that a certain person has committed a criminal offense, the public prosecutor will decide to prosecute the case and file an indictment against the offender with the court.16 Under the Public Prosecution Organ and Public Prosecutors Act B.E. 2553 (2010), public prosecutors have the authority to conduct criminal investigations at their own discretion, initiate prosecutions of all criminal offenses, and supervise the execution of judicial decisions. Section 16 of the Act states: “In carrying out the duties with respect to a case specifically required to be instituted by him/her or an investigation required by the Constitution or any other law, a public prosecutor is empowered to search for the facts, collect evidence, investigate witnesses, order any person to appear and give statements before him/her or deliver any evidence, document or object, and take other actions as he/she thinks fit.”17 The evidence so collected will be presented before the criminal court for its decision thereon.

12.4  S  ection 176 of the Penal Procedural Code and Testimonial Evidence Section 176 of the Penal Procedural Code provides that if the minimum punishment in the case where the accused pleads guilty to the charge is imprisonment from 5 years upward or heavier, the court must hear the witness for the prosecution until it is satisfied that the accused is guilty. The witness must give testimony not “spontaneously” but “responsively,” i.e., not in a consecutive speech, but by brief answers to brief successive questions. This method affords the opposing party an opportunity of objecting, before it is too late, to any question which tends to elicit an answer that would not be legally admissible as evidence. In Thailand, witnesses are examined on oath: before testifying as a witness, the judge will tell them to swear a religious oath or make a nonreligious oath (Cama 1958). Following the opening statement, the questions are put by the judge first, and

 Under Section 17 of the Act, “In cases a law authorises a public prosecutor to conduct a criminal inquiry, the public prosecutor shall, for the sake of his functioning, enjoy the same authority of inquiry as a judicial police officer, except when he is required to conduct the inquiry or prepare an inquiry file together with a judicial police officer. For this purpose, he shall be a senior administrative or police officer and shall have the authority under the Penal Procedural Code, and he may participate with the police officers or other public officers in conducting a search, arrest or detention or require the police officers or other public officers to conduct it.” 17  It must be pointed out that if an order for appearance, request of statements, or delivery of evidence is directed at an opponent or accused party, such party may refuse to abide by it. 16

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then by the public prosecutor and by the defense lawyer. The judge will ask the witness some preliminary questions. After questions are posed by the judge, additional questions will occur in as many as three successive series. He/she is first “examined in chief” by the public prosecutor or by the party that has called the witness with the object of eliciting evidence in support of that party’s view of the question at issue. He/she is then cross-examined by the opposite party in order to reduce the effect of the evidence which he/she has thus given. The cross-examination is not limited by the scope of the direct examination but only by the issues presented by the pleadings. Cross-examination may reduce the effect of the evidence given in examination-­in-­ chief either simply by eliciting further facts which tend to harmonize that evidence with the case setup by the cross-examiner or by shaking that evidence itself. This latter effect may be produced by bringing witnesses to admit that their opportunities of observing the facts described were inadequate or that their character or bias is such as to make it unwise to rely on their veracity, or again, by involving them in such inconsistencies of statement as to make all such reliance impossible on this particular occasion. Finally, witnesses who have undergone cross-­examination may be reexamined by the party who originally called them in order to show the real meaning of the evidence elicited by the cross-examination. A re-­examiner may, for instance, get witnesses to explain any ambiguous expressions which they may have used on cross-examination or their motives (e.g., provocation) for any conduct which they may have admitted when under cross-examination. The court may, however, in its discretion permit inquiry into a new matter on re-­examination which the defense lawyer has overlooked in the examination-in-chief. Most judges, however, will not permit the defense lawyer to presume upon such discretion.18 Under Thai criminal system, an important role is played by the testimony of expert witnesses. According to Section 243 of the Penal Procedural Code, “Any person having special skills or knowledge in such a field of science, art, commerce, medicine or foreign law, and whose opinion may be of value for the adjudication of a case may, in the course of a hearing, be a witness in order to examine the body or mind of the injured person, examine the body or mind of the offender, discuss issues related to the identity of handwriting, carry out experiments or other works.” The expert may submit his/her opinion in writing.

12.5  False Testimony and Malicious Criminal Accusations The offense of false testimony consists in the fact that a witness, to whom an oath has been duly administered in a judicial proceeding, gives, upon some point material to that proceeding, testimony which he/she does not believe to be true. It will  It should be added that if either an examiner-in-chief or a cross-examiner has elicited from a witness some portion of a conversation or of a document, the opponent becomes entitled to elicit, in a subsequent cross-examination or re-examination, all the rest of that conversation or document, so far as it concerned the same subject.

18

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thus be seen that false oaths merely do not always involve a crime. Yet even when not technical perjuries, they nevertheless are now treated in law as sometimes constituting an indictable offense; though this will not be the case when they are not taken before an official legally authorized to administer oaths, or though so taken, they are not of any public concern. It may be added that the form of the administration of the oath is not material, provided it is one that the witness should regard as binding upon him/her. According to Section 177 of the Penal Code, “Whoever, in the course of a judicial proceeding, presents false evidence to the court, shall be punished with imprisonment not exceeding 5 years or fined not exceeding one hundred thousand baht, if such false evidence is an essential matter in the case.” If such offense is committed in a criminal proceeding, the offender shall be punished with imprisonment not exceeding 7 years and fined not exceeding fourteen thousand baht. The definition of false testimony under Section 177 of the Penal Code presents three points for our consideration: the giving of the false testimony, the court where it is given, and the point to which it relates. As regards the first point, the false testimony lies in the taking of a false oath. Therefore, there is only one crime for each of such oath even if many may be the lies by which the taker intensifies its falsity. Thus, each further lie that he/she proceeds to tell under the same oath is not a new crime but is merely a fresh proof of the original one. Conversely, the same lie if told on two occasions, under two oaths, will constitute two crimes. A witness may falsify the oath even though he/she gives under it no evidence which he/she actually believes to be false. For, if the witness deposes to any statement which he/she does not actually believe to be true, he/she commits the offense of false testimony. This type of crime may also be committed by giving false translations, fabricating false evidence, or presenting false evidence. The crime of false translation is committed when a person, required by the official in the judicial post, the public prosecutor, or the official conducting the case to translate a statement, decides to render the wrong translation of such statement.19 Presenting false evidence is a crime punishable under Section 180 of the Penal Code which disposes “Whoever adduces or produces a false evidence in any judicial proceedings shall be punished with imprisonment not exceeding 3  years or fined not exceeding sixty thousand baht, if it is produced in an essential matter of the case.”20 Similarly, fabricating false evidence occurs when a person fabricates false evidence, intending thereby to cause, or knowing it to be likely that he/she will thereby cause, any person to be convicted of an offense. Under Section 179 of the Penal Code, this crime is punishable with imprisonment not exceeding 2 years or fined not exceeding forty thousand baht, or both.

 Section 178 of the Penal Code disposes that in this case the offender will be imprisoned not out of 3 years or fined not out of sixty thousand baht, or both. 20  If such offense is committed in the criminal proceedings, the offender shall be punished with imprisonment not exceeding 7 years and fined not exceeding one hundred forty thousand baht. 19

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Furthermore, the false testimony must be given willfully and corruptly. To testify under a mistake of fact, or even rashly and inconsiderately but according to belief, would not be false testimony. An indictment even would not be sufficient that averred merely that the false testimony was given falsely and maliciously. It must be charged that it was given willfully and corruptly. Secondly, false evidence must be presented to a court of justice in the course of a judicial proceeding. But this will include the sittings of any court, even though it is not a court of record (e.g., the tribunal of first instance). But it will not extend to any irregular sittings of even an ordinary court. To take an example, if the judge, who was presiding in an court of bankruptcy at the examination of the debtor, quits the room to discharge other duties, false answers given after his/her departure would not be held to constitute a false testimony. As a third point, false evidence must concern an essential element of the case. De minimis non curat lex: there is no sufficient untruthfulness in giving false testimony, unless it relates to some point which was “material” to the proceedings before the court of justice. This lenient rule could enable many witnesses, who willfully give false evidence, to escape all punishment. But courts construe the rule in such a way as to remove much of this immunity. Therefore, they hold evidence to be sufficiently “material” even though it is material, not intrinsically, but only by its facilitating the judge’s acceptance of other testimony which has an intrinsic materiality. For the mere trivial details mentioned by a witness, in giving his/her account of a transaction, may become important by their leading the judge to believe that the knowledge of the transaction is complete, and the evidence therefore likely to be accurate. On the same ground, all statements made by a witness as to matters that merely affect his/her credibility are material, e.g., denial of having been convicted of a crime, or a false account of the circumstances under which he/she was so convicted. And even if the false evidence were legally inadmissible, as relating to some point about which the witness ought not properly to have been questioned, yet this will not prevent its being regarded as “material” enough to form the subject of an indictment for false testimony. There is, for example, a rule that when a witness answers questions that relate merely to his/her own credibility, such answers are to be taken as final so that no other witness can legally be brought to contradict them. Having thus defined the essentials of elements of false testimony under Section 177 of the Penal Code, it is important now to define other categories of malicious accusation. Chapter 1 of the Title III of the Penal Code deals with particular offenses against judicial officials, precisely: false information and false charges of a crime. The crime of false information is dealt with under Section 172 of the Code, which disposes “Whoever  gives any false information concerning a criminal offence, which may likely cause injury to another person or the public, to the public prosecutor, official conducting cases, inquiry official or any official who has the power to investigate the criminal cases, shall be punished with imprisonment not exceeding 2 years or fined not exceeding forty thousand baht, or both.” With regard to false charges of a crime, the Code states “Whoever gives an information regarding an offence, which he/she knows not to have been committed, to the inquiry official or the official having the power to investigate the criminal cases,

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shall be imprisoned not out of 3  years and fined not out of sixty thousand baht” (Section 173, Penal Code).

12.6  Principles of Criminal Evidence Evidence must be confined to the question at issue, or to facts relevant to the issue. A party may prove all circumstances that are relevant to the facts in issue, but no others (Wadicharoen 2004). The circumstances thus relevant consist not only of those which form part of the facts in issue themselves but also of all such further circumstances as may be necessary to identify or to explain these. This will include, for instance, in a criminal case, not only the defendant’s commission of the crime and his/her guilty knowledge but also – as facilitating a belief in these – the opportunities, motives, and subsequent conduct and the credibility of the witnesses produced during the trial. Not only is the defendant’s own conduct relevant, but so soon as it has been shown that others were combined with him/her in carrying out a joint criminal purpose, evidence may be given of any conduct of theirs which forwarded this joint purpose, even though such conduct takes place in the defendant’s absence and though they are not indicted in the trial. This rule is of very frequent application on trials for conspiracy but is by no means confined to them. Hence, if Paul is indicted for using counterfeit banknotes, evidence may be given of his accomplice Mark going into a market and passing it there, though Paul himself did not go. Likewise, if Paul and Mark have agreed that Mark shall obtain goods at a shop by a false pretense, what Mark says in the shop may be given in evidence against Paul, though he was not there, and even though Mark is not indicted along with him. The legal limits of relevancy exclude much evidence which, in non-legal matters, would be thought very clear. Hence, if the question at issue depends on how a person acted on one occasion, evidence of the way in which he/she acted on some other similar occasion is not considered sufficiently relevant to be admissible. Accordingly, in civil courts, in a dispute as to what the terms of a contract are, a litigant cannot corroborate his/her account of them by giving proof of the terms of other contracts which the opponent makes on the same subject matter with other persons. Yet evidence of these other contracts would have been quite admissible had the dispute related – not, as here, to what the opponent actually said when making the present contract, but – to what was the litigant’s state of mind when making it (e.g., whether or not it was with a fraudulent intent that he/she introduced into it some ambiguous terms). And in criminal courts the same principle serves to exclude evidence of the defendant’s past offenses. It is true that evidence of the defendant’s good character is always regarded as relevant. But the defendant’s bad character is not regarded as similarly relevant to the question whether he/she committed the actus reus. Consequently, evidence of other (even though precisely similar) offenses of which

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the defendant has been guilty cannot be given in order to corroborate the proof that the specific act charged was committed.21 Nor is there any intrinsic objection to giving evidence of the defendant’s having committed other crimes, if there is any special circumstance in the case to render those crimes legally relevant. For example, in a trial for robbery, the offender may show that a cigar case, which the robbers left behind them in the house, had that day been stolen from its owner by him. Or, for the purpose of showing the motive of the present offense, some other crime may be disclosed as where a murder is accounted for by proving that the deceased had been an accomplice with the defendant in some previous crime, and consequently was a person to be got rid of. And the subsequent conduct of a defendant, relevant as throwing light upon his/her offense, may include some further crime as where a thief, on being arrested, shoots the arrestor. Moreover, a distinction similar to that which has already been described with regard to civil courts holds good in criminal ones. While the fact of a defendant’s having committed other similar offenses is not relevant to the question whether he/she committed the actus reus of which he/she is accused now, yet, so soon as this actus reus has been fully established, evidence of those previous offenses may well be relevant to the question of his/her state of mind in committing this act (i.e., mens rea). Such evidence has long been regarded as admissible on the trial of those offenses in which the defense is peculiarly likely to take the form of a denial of mens rea as, for instance, using false banknotes, receiving stolen goods, and false pretenses.22 By a distinction precisely the converse of that which is thus applied in the case of a defendant’s character, the badness of a witness’s character is always relevant, but its goodness is not. For the party by whom witnesses are produced cannot (in the first instance) corroborate them by offering proof of their good character or even of their having on former occasions told the same tale they now tell.23 But the party hostile to these witnesses may discredit their characters or may prove that at one time they told a different story. Sometimes this is done by mere cross-examination, sometimes by evidence. Hence, the hostile party may call evidence to show that the witness is notoriously mendacious.24 The party who has produced the witness can never discredit him/her. Thus, even if the witness turns out extremely hostile. When such evidence is given, it entitles the other party to contradict it by bringing proof of the witness’s good character for veracity. The hostile party may also call evidence to show that the witness is biased25 or that on some relevant fact, to which she now deposes, she had previously made a  Yet such evidence plays a very important part in French criminal procedure.  Evidence may be given even of crimes subsequent to the one under trial. 23  Likewise, evidence to corroborate a defendant’s defense by showing that he/she told a particular story before ever he/she was accused is considered too remote to be relevant. 24  No evidence, however, can be given on the direct examination of particular instances of untruthfulness. 25  Bias may, for instance, be shown by evidence that the witness has received money or has offered money to other witnesses or that he/she has threatened revenge. And even mere relationship to the litigant who produces him/her is some evidence of bias. But no proof of bias can be given unless 21 22

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statement inconsistent with what she now says. Here, again, before proof can be given of the discrediting statement, the witness’s attention must be specifically drawn to it in cross-examination, in order that she may, if possible, explain it. In criminal cases this mode of discrediting is an especially frequent one because many of the witnesses at the trial may have already given evidence. Particular provisions apply to the proof of the contents of a written document. The bare fact that a document has actually been drawn up, or the mere condition of it, may be proved by secondary evidence, that is, by the production, not of the document itself, but of remoter evidence derived from it through some intermediate channel.26 But if, on the other hand, it is desired to prove what the actual contents of the document were, then the rule now under discussion excludes all mere secondary evidence. Hence, where it is sought to give the contents of a message sent by letter in evidence against the sender of it, the original paper handed at the post office must be produced. The subsequent paper, which the postman delivered at the house of the receiver of the letter, cannot be given in evidence for this purpose (unless it is proved that the first-mentioned paper has been destroyed or lost). It, however, would be otherwise if the object were to prove not what message was sent, but what message was in fact received for then the positions would be reversed, and the paper brought by the postman would be the necessary “best evidence.” This rule, however, only applies where the object desired is to prove what actually were the contents of a document. Thus, where words have been expressed orally, by a person who apparently read them out from a paper, if the object be to show, not what the words of the document itself were, but what he/she actually did express, any persons who heard him/her may explain what they heard, and the paper need not be produced. It will, however, sometimes happen that no primary evidence is available. In that case the production of the document will be dispensed with, and secondary evidence may take its place.27 The rule goes no further than simply to postpone all

the witness has been cross-examined on the point, so as to have had an opportunity of explaining the circumstances. 26  Such evidence, for instance, as copies made from it, or the recollections of a witness who has seen it. 27  The following are the most frequent instances in which this occurs. 1. When the writing has been destroyed or where, after proper search having been made for it, it cannot be found. Hence, on a trial for forgery the contents of the note, which is alleged to have been forged, would be allowed to be proved by evidence in case the defendant has himself/ herself destroyed the note. 2. When its nature is such that it is physically impossible to produce it as in the case of a poster posted on a wall or of a tombstone. This is extended to cases where it is not absolutely impossible, but only extremely inconvenient, to produce the writing. 3. When the writing is in the possession of the opposite party, and, though notice has been given to him/her to produce it, he/she fails to do so. Sometimes the very nature of the litigation is of itself a sufficient notice that the opponent expects him/her to produce the document. 4. When the secondary evidence which is tendered consists of an admission, by the opposite party, as to what the contents of the document were.

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secondary evidence whatever of the contents of documents to the primary evidence of them and disregards the different degrees of value of various kinds of secondary evidence. For example, it will allow a witness to give his/her mere recollections of the contents of a document when the original cannot be produced even when some attested copy of it is available. And the rule ceases to have any operation at all, where the thing under discussion is not a written document. For where, in any litigation, the quality or condition of some chattel is in dispute, the law does not similarly require the chattel itself to be produced in court for actual inspection. If the purchaser of a car, or of a diamond ring, or of a laptop, refuses payment of the price because the vehicle is missing parts, or the jewel is false, or the laptop is not the same as advertised, such purchaser need not produce the car, or the ring, or the laptop (in Thai gaan grà-tam têe nâa sŏng-săi). Likewise, in an action to recover compensation for the damage sustained by a bicycle which has run over by a truck, it will not be necessary at the trial to produce the bicycle. Equally little is any such principle applied to the proof of handwriting for it is not essential that the party, who is alleged to have signed a document, should himself/herself be called to prove, or (as at a trial for forgery) to disprove, a handwritten statement. And, as has been previously discussed, to prove that a person holds a public office (e.g., that of a justice of the peace or of a solicitor), it is sufficient to give evidence that such person is in the habit of acting as a holder of it, without producing the written commission by which he/she came to hold the office. Finally, it may be noted, as a further illustration of the limited application of the “best evidence” principle, that the law does not prescribe any preference between different species of primary evidence. Hence, the testimony of a witness who had watched through a telescope an assault, which took place a mile away, would not be postponed to the testimony of the actual victim of the attack.

12.7  Payan Bok Lao Evidence and Other Exclusions A witness who has received from someone else a detailed description of facts is not allowed to give this description in evidence. Thai criminal law disapproves such payan bok lao evidence.28 Payan bok lao evidence refers to all the evidence received from other people which is not founded upon the personal knowledge of the witness who is testifying. The peculiar exclusion of payan bok lao is due to its evident untrustworthiness, since it is derived ultimately from an absent witness who was not on oath and did not undergo cross-examination. And the exclusion is further

5. When the original is a “public” document, it is now provided by law, that it may be proved by means of an examined copy, or by a copy duly certified by the official recorder. 28  The Romans recognized its defects even in the time of Plautus: “Pluris est oculatus testis unus quam auriti decem: qui audiunt, audita dicunt; qui vident, plane sciunt” which in English translates to one eye witness is worth more than ten witnesses who speak by hearsay.

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justified by the necessity of avoiding that prolongation of trials which would be produced by the admission of a range of evidence, so indefinitely vague. Payan bok lao usually appears in the shape of some other person’s written or oral statements but evidence of his/her mere conduct, unaccompanied by any statement, will be rejected on the same principle, if it is adduced for the same purpose, viz., of showing his/her state of mind with regard to some fact which it is sought thereby to prove. It is important to notice that the rule only excludes evidence about such statements or conduct as are merely descriptions of a fact that is in dispute in the litigation but not evidence about such statements or conduct as actually constitute in themselves such a fact. Hence, in an action for slander, a witness can of course report the defamatory words which were pronounced, for they are a main part of the issue. And, likewise, evidence may be given of any statement which, though it does not of itself constitute an element in the issue, nevertheless accompanied some act which does. For such a statement must throw light upon the character and purpose of this act, and is itself a part of the events. It is not necessary that it should have been pronounced by the very person who did the act.29 Section 226/3 of the Penal Procedural Code provides that the payan bok lao evidence shall not be admitted in criminal proceedings, unless (1) the court is of the opinion that such evidence should be admitted in the interest of the justice having regard to the nature of the evidence, its purposes, and its probative value or (2) the court is of the opinion that such evidence is necessary because the person who has seen, heard, or known the statement cannot appear as a witness. In case where the court thinks it is not fit to admit any payan bok lao evidence and the party concerned objects to such decision, the court shall write a report specifying the name, kind, and the nature of the witness, telling the reason of its decision and the reasons of the objection of the party. It is important to add that in some particular circumstances, there are questions which it is quite legal to ask, but which a witness may, if he/she thinks fit, equally legally refuse to answer. Such a privilege arises, for instance, for those questions which in the opinion of the judge tend to expose the witness (or the witness’ spouse) to any criminal charge or to any penalty or forfeiture. More precisely, Section 234 of the Penal Procedural Code provides that “A witness is not bound to answer questions which may directly or indirectly incriminate himself. When there is such a question, the court shall warn the witness.” Nevertheless, no one is excused from answering any question only because the answer may tend to establish that he/she owes a debt or is otherwise liable to any civil

 In some cases, a complaint, although not expressed until sometime after the conduct complained of, is admitted as evidence. But this is only allowed after the person complaining has given testimony as a witness in the case and, even then, only for the purpose of corroborating that testimony by showing the complainant’s consistency of conduct and not as being intrinsically any evidence at all of the alleged act complained of.

29

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suit. It is for the court to decide whether, the question seems to be one which, under all the circumstances of the case, it would really endanger the witness to answer.30 Likewise, a husband or wife cannot be compelled to disclose any communications made by his/her spouse31 and solicitors cannot be compelled – and indeed are not even permitted – to disclose facts confided to them by or on behalf of a client, or to produce any documents received by them from a client, in their professional capacity, unless the client consents to waive this privilege. No such protection, however, exists if the adviser was being consulted, not merely in order to protect his/her client against the results of a past criminal act but to facilitate the commission of some future one. By a still stricter rule, one of exclusion rather than of privilege, a witness cannot be compelled and indeed will not be permitted to answer any question which involves a disclosure of any official communications (whether written or oral) which are such that – in the opinion of the judge – disclosure of them would be contrary to public policy. In this regard, Section 231 of the Penal Procedural Code disposes “Where any party or person is to give or produce any kind of the following evidence: (1) Any document or fact which is still an official secret; (2) Any confidential document or fact which has been acquired by or made known to him/her by virtue of his/her profession or duty; (3) Any process, design or other work protected from publicity by law; the said party or person is entitled to refuse to give or produce such evidence unless he/she has obtained the permission from the authority or the person concerned with such secret. This is to say that where any of these privileges is waived by a person who is at liberty to waive it, the answer he/she gives will be perfectly good evidence both in the proceedings in which it is given and in any subsequent litigation.”32

References Cama K. H. (1958). Comparative Survey of Juvenile Delinquency, Vol. 4 Asian and the Far East. United Nations, Department of Economic and Social Affairs. Minakanitsakan T. (2005). Lak Kot Mai Aya Phak Tua Pai [General principles of criminal law]. Win-yoo Chon Press, Bangkok. Newman, G. R. (Ed.). (2010). Crime and Punishment around the World. ABC-CLIO, California, US Sathitsuksomboon, C. (2001). Thailand’s legal system: Requirements, practice, and ethical conduct. Thailand Law Forum.

 A merely remote possibility of criminal prosecution will not be regarded as sufficient to entitle a witness to withhold information. 31  This rule is based on the social importance of preserving the confidences of married life. 32  Section 231, paragraph 2, of the Code adds “Where any party or person refuses to give or produce the evidence as aforesaid, the court has the power to summon the authority or person concerned with such secret to appear and give explanation in order that the court may decide whether or not there is any ground to support such refusal. Where the court is of opinion that the refusal has no legal ground, it shall order such party or person to give or produce such evidence.” 30

References

151

Stasi, A. (2015). Principles of Thai business law. Cengage, Singapore. Stasi, A. (2016). General Principles of Thai Private Law. Springer, Singapore. Suparp, U. (2005). The philosophy of criminology when sentencing in Thai courts: A case study of intentional, negligent and provoked criminals. Journal of Science, 3(1), 33-41. Wadicharoen M. (2004). Kham Banyai Pramuan Kot Mai Withi Phicharana Khwam Aya [Elements of criminal law: A practical approach to criminal procedure]. Sut Phaisan Press, Bangkok. Watnasawad K. (2006) Kham athibai Kot Mai Aya Phak Nueng [Elements of criminal law]. Chira RatKan Phim Press, Bangkok.

Index

A àat-yaa-gam, see Petty offences Abortion, vi, 51, 73, 78 sentencing, 73 Accessory after the fact, vi, 53, 58, 59 Accessory before the fact, vi, 53, 56, 58, 66 Accomplices, 58 Actus reus, vi, 19, 25, 29, 31, 37, 39, 42, 49, 139, 145, 146 Attempt, vi, 8, 13, 22, 33, 40, 49–52, 65, 67, 75–77, 82, 90, 101 impossible, vi Attorney general, see Public prosecutor B Blackmail, vi, 124, 128 sentences, 124 Bona fide claim of right, 38, 113 Burden of proof, 29, 134, 139, 140 C Circumstantial evidence, 133, 136–138 Civil action, 7, 70, 87, 89, 111, 112, 127–129 Civil law, 6–9 Compoundable offence, 7, 12, 91, 112, 140 Conspiracy, 16, 26, 65, 145 Constitutional law, 3 Constraint, vi, 31, 36 Criminal evidence, 145–148 Criminal law function, 2–3, 15–22 Criminal procedure, 6, 8, 11, 19, 131, 146

Criminal sanctions, 9, 90 Cross-examination, 142 D Declaration of disappearance, 135 Defamation, 87–90 civil action, 89 class of persons, 89 definition, 87 good faith, 88 libel, 87 privilege, 88 proof, 88 sentencing, 88 slander, 16, 149 truth of the matter, 89 unawareness, 87 Defense of necessity, 39 Direct evidence, 1, 15, 18, 62, 63, 113, 119, 124, 136–139, 142, 146 Documentary evidence, 111, 136 Drug, 9, 29, 41 E Euthanasia, 72–74 Excusatory defenses, 31 Executing a bond, 18 Expert witness, 142 Extenuating circumstances, 38 Extortion, vi, 51, 123, 128 sentences, 123

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 A. Stasi, General Principles of Thai Criminal Law, https://doi.org/10.1007/978-981-15-8708-5

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Index

154 F False evidence, see False testimony False testimony, 62, 137, 139, 142–144 Fraud, vi, 16, 50, 74, 82, 83, 91, 92, 104, 105, 107, 114, 123–126 sentences, 124 Fraudulently, 29

K Kidnapping, 85, 86 child not yet over fifteen, 85 minor over fifteen years, 86 sentencing, 85 Kleptomaniacal impulse, 19 kwaam pìt lá-hù tôht, see Petty offences

G Gang-robbery, 121–123 sentences, 122 Grevious bodily harm, 29, 37, 40, 43, 70, 75, 77–80, 82, 84, 85, 90, 91, 104, 122, 123 affray, 78 disfiguration, 78 illness, 78 loss of genital organs, 78 loss of organs, 78 physical deprivation, 78 poison, 78 sentencing, 78

L Law of Three Seals, 2 Legal persons, 43–46 Legitimate defense, 40 Lèse-majesté, vi, 95 Liability of parents, 70

I Ignorantia legis non excusat, 28 Illegal detention, 77, 84 imprisonment, 84 by negligence, 84 unlawful, 85 Impossible attempts, 50–51 Imputability, 25–26 Infirmity, 70, 78 Insanity, 19, 27, 32–34, 38, 41, 42, 78 Instigation, 56, 72, 104 Intimidation, 114, 121, 122 Intoxication, 41–43 Involuntary bodily harm, 79–80 sentencing, 79 Involuntary manslaughter, see Manslaughter

M Malicious criminal accusations, 142–145 Manslaughter, 65–68, 71 abandonment, 70 aggravating circumstances, 68 liability of parents, 70 provocation, 66 sentencing, 68 Material evidence, vii, 88, 90, 112, 136, 142–144 Mens rea, vi, 19, 25, 27–31, 34, 37–39, 41, 42, 49, 54, 61, 63–65, 113, 124, 137, 139, 146 Mental illness, 32 mental disease, 18, 32, 33 mental infirmity, 18, 32 Minor, 20, 29–31, 34, 35, 37, 58, 70, 72, 80, 85, 86, 89, 91, 92 Misappropriation, 104, 105 Mischief, 5, 104, 105 Mistake of fact, 37 Murder, vi, 8, 18, 19, 29, 34, 35, 37, 49–51, 55, 56, 61–72, 75, 84, 132, 133, 138, 146 death of the victim, 64 intent, 62 killing, 62 origins, 61 sentencing, 62 unlawfulness, 62

J Justifiable violence, 81–84 Justificatory defenses, 31

N Natural person, 44, 46 birth, 71, 72, 138

H The Hague Convention, 86 hàyt yók wáyn tôht, see Excusatory defenses Homicide, see Murder Housebreaking, 37, 43, 46, 50, 55, 82 Human trafficking, 92

Index death, vi, 7, 11, 12, 17, 19–21, 26, 36, 39, 46, 50, 57, 62–66, 68–73, 79, 84–86, 91, 96, 98–102, 104, 110, 122, 123, 133, 135, 138 Necessity, 36 Negligence, 19, 22, 41, 69, 70, 79, 83, 84 Negligently, 29 O Oath, 141–143, 148 Offences against life and body, 61 Offences against reputation, see Defamation Offences relating to sexuality, 90–93 Omission, 5, 30, 35, 69, 70, 110, 139 Onus probandi, see Burden of proof Oral evidence, 136 Order of a legitimate authority, 39 P Parental child abduction, 86 Payan bok lao evidence, 148–150 Petty offences, 11, 17, 19, 40, 43, 53, 57, 58, 61, 69, 70, 78, 84, 85, 90 Pleads guilty, 131, 141 Poisoning, 66 Premeditation, 65, 66, 76 Prescription, 11, 12, 112 Presumption, 16, 34, 45, 55, 80, 88, 119, 131–135, 139, 140 of disappearance, 134, 135 irrebuttable presumption of law, 133 presumption of fact, vi, 132 rebuttable presumption of law, 133 Prevention, 8, 21, 126 Primary evidence, 147, 148 Principal in the first degree, 54 Principal in the second degree, vi, 53–55 Prohibition from carrying on certain occupations, 18 Prohibition from entering a particular area, 17–18 Property offences, see Theft; Robbery; Gang-robbery; Extortion; Blackmail; Fraud Public law, 3–6 Public prosecutor, 7, 18, 29, 132, 134, 135, 140–144 Punishment, vi, 4, 6, 8, 9, 11–13, 15–22, 25–28, 30, 32, 34–38, 40–42, 45, 46, 49, 54, 56–58, 64–66, 71, 72, 76, 84,

155 85, 92, 98, 99, 101, 102, 105, 110, 111, 118, 121–123, 125, 141, 144 R Ransom, 86 Rape, 7, 40, 55, 67, 74, 83, 84, 90–92 Reasonable doubt, 84, 133 Recidive, 19 Recklessness, 69, 80 Restraint in a hospital, 18 Restriction, 17 Robbery, vi, 8, 40, 55, 81, 121–123, 128, 132, 146 sentences, 122 S Secondary evidence, 147 Sexual offences, see Assault; Rape Sexual trafficking, 92 Sickness, 70 Slavery, 85 sentencing, 85 Snatching, vi, 103, 104, 122 Special intention, 28–30 Suicide, vi, 10, 72, 73 assistance, 73 help, 73 instigation, 73 sentencing, 73 T Theft, vi, 4, 5, 19, 34, 38, 40, 43, 51, 54, 81, 103–107, 109–111, 113–118, 121, 122, 127–129, 132, 134, 138 change of possession, 105, 118 conjugal relation, 105 intent, 4, 22, 25–28, 34, 45, 46, 57, 63, 64, 66, 68, 71, 75–80, 83, 84, 92, 98–100, 102, 105, 106, 109, 110, 112, 114–118, 124, 125 by night, 103 sentences, 104 between spouses, 118–119 subject-matter, 110–111 value, 8, 45, 53, 105, 108, 111, 113, 117, 118, 122, 123, 125, 127–129, 136, 140, 142, 148, 149 Trespass, 82, 104–106, 114, 116

Index

156 U Ultra vires, 43 V Volition, 27 Voluntary bodily harm, 75–78 against acendants, 76 alarm, 77 definition, 77 physical force, 76 against public officials, 76 sentencing, 75

torture, 76 unlawfulness, 76 Voluntary manslaughter, see Manslaughter W Willfully, 29 Withdrawal from an attempt, 51–52 Y Yee-tok, 20–22