Thursday, December 31, 2015

Where is Somchai? Where has he disappeared to?

On 12th March 2004, human rights lawyer, Somchai Neelapaijit was abducted in full daylight on one of the busiest streets in Bangkok. The irony is that the answers to the questions posed by his daughter Pratubjit are well known. But the evidence for his abduction, a record of telephone conversations between his abductors has been formally rejected by the Supreme Court on 29th December and the police charged with his abduction declared innocent.
The original computer records of the mobile telephone calls no longer exist, and the print out of the record was unsigned.
I was present in the Court at the original trial and saw the judge call a Court intermission while he consulted on the meaning of a type of evidence new to Thailand. The omission of a signature was surely negligent but why was it not remedied at the time of submission or before the Appeal hearing?

Water under the bridge: Justice failed and abductions continue. Government officials enjoy immunity and impunity to the extent that the very notion of justice is corrupted.

English version (abridged) of Koh Tao Court ruling.

                                        Koh Samui Provincial Court Newsletter (3 pages)
Dated 24 December 2015
Koh Samui Provincial Public Prosecutor, the Plaintiff, brought case against the two Defendants, namely Mr. Zaw Lin (aka Zoren) no surname, and Mr. Wai Phyu (aka Win) no surname in Criminal Case (Black Case No. 2040/2557) at Koh Samui Provincial Court. Today, the Court has rendered the judgment and read the verdict to the Plaintiff and the two Defendants as follows;

The Plaintiff accused the Defendants of committing the offences of illegal entry and illegal residing in the Kingdom of Thailand; jointly murdering Mr. David William Miller, the first victim; jointly gang raping Ms. Hannah Victoria Witheridge, the second victim; and jointly murdering the second victim for the purpose of concealing other offences committed by the Defendants; and the second Defendant wrongfully stealing the first victim’s mobile phone and sunglasses. The offences were committed at Koh Tao sub-district, Koh Phangan district, Surat Thaini province. The Plaintiff therefore requests that the Court render punishment to the Defendants in accordance with sections 83, 91, 276, 288, 289, 334 and 335 of the Penal Code and sections 4, 5, 7, 11, 12, 38, 58, 62 and 83 of the Immigration Act B.E. 2522, and that the Court order the second Defendant to return or reimburse 15,000 Baht to the descendants of the first victim and to return the exhibits i.e. the mobile phone and the hoe
The first Defendant pleaded not guilty.
The second Defendant pleaded guilty only to the charges of illegal entry and illegal residing in the Kingdom of Thailand.
The Court considered evidence submitted by both the Plaintiff and the Defendants and resolved that the location where the Defendants were sitting was not far from the crime scene, and from such location it was not far away and was within eyesight to notice both victims walking to the crime scene. The medical examiner who conducted autopsy on the bodies of both victims has found the DNAs of more than one offender in the vagina and rectum of the second victim. This forensic method of evidence collection is commonly accepted under international standards as an effective proof of a person’s identity, as the DNAs having existed and having been collected lawfully before the arrest of both Defendants. Therefore the DNA testing result can be linked to and is admissible to the identity of offenders.
By comparing the evidence DNAs with the DNAs of both Defendants, it is found that the DNA collected from the semen sample in the second victim’s vagina matches the second Defendant’s DNA, while the DNAs collected from the semen samples in the second victim’s rectum match the DNAs of both Defendants. According to the DNA testing result, the Evidence Document marked as Jor.12, the offenders’ DNAs match the DNAs of both Defendants in all 16 matching categories, which clearly prove identities of the persons under internationally accepted standards. The DNA testing result is therefore persuasive evidence and is credible of proof beyond reasonable doubt.
The Plaintiff’s Expert Witness who collected and tested the tissue specimen of both Defendants testified that the specimen were collected and sent to the lab without delay. Therefore, there were no opportunities where police officers, medical examiners or forensic scientists who test the offenders’ DNAs could possibly bring the semen or seminal fluids, from the Defendants’ bodies, at such time, into the vagina and the rectum of the second victim.
Moreover, the Plaintiff also presented a witness who testified that the second Defendant gave the mobile phone of the first victim to the witness not long after the crime occurred. This evidence, thus, establishes the fact leading to the second Defendant’s involvement in this case. The Plaintiff’s submitted evidence, being the DNA testing result whereby the offenders’ DNAs match the Defendants’, the material evidence at crime scene, as well as the circumstantial evidence both before and after the incident prove beyond reasonable doubt …
… that both Defendants are the offenders who raped the second victim. These evidence are sufficiently reliable without prejudice to the facts, circumstances of the confessions made by both Defendants under and during the arrest or interrogation stages.
Even the Plaintiff was unable to identify, during cross examination, which of the Defendants had raped the second victim before or after, nonetheless the Expert Witness Pol. Col. Dr. Pawat, M.D. testified that the tear wound at the lower part of the second victim’s vulva was bleeding, which indicates that the second victim was still alive while being raped, and that this wound must have occurred before the severe wound on her head which caused immediate death. The forensic evidences clearly establish that both Defendants raped the second victim until ejaculation. Moreover, the circumstances infer that both have conspired in committing the offences by way of taking turn to rape the second victim. Thus, their acts amount to jointly committing rape of woman who is not wife in the form of gang rape. In consideration of the wounds at the head and the face of the second victim, it is found that all wounds are severe and the pattern matched with the blade and the edge of the exhibited hoe. The bloodstain of the second victim is also found on the exhibited hoe, which removes all questionable doubts that the hoe might not be as the weapon to harm the second victim. The serious wounds on the face which occurred after the tear wound at the vulva while the second victim being raped reasonably imply that after the second victim was raped at the crime scene, she was then beaten to death by the exhibited hoe. These circumstances determine the cause and contribution undeniably leading to the fact that both two Defendants used the exhibited hoe to beat and slash the second victim at the crime scene.
The circumstances of the case indicate that after both Defendants raped the second victim, both men used the exhibited hoe, being a big sharp solid object, to hit and slash the second victim numerous times. This caused tear wounds so deep that the base of the brain was visible, and caused the forehead bone at the left eye socket to deform.  This indicates that both Defendants have jointly used the exhibited hoe to strike the second victim at their full force until death with the intention to murder the victim. The acts of both Defendants amount to the offence of jointly committing murder for the purpose of concealing other offences. The facts and circumstances from the Prosecutor’s examinations appear that the first victim was harmed at the crime scene almost at the same time as the offences committed to the second victim, and caused the first victim to die subsequently. The characteristics of the wounds on the first victim’s body match the shape of the exhibited hoe. These circumstances infer that both Defendants used the exhibited hoe as the weapon to harm the first victim, in order to commit rape to the second victim, which amounts to the offence to jointly committing murder as submitted in the Plaint.
On the charges of illegally entering and residing in the Kingdom of Thailand against the first Defendant, Clause 1.1 and 1.2 in the Plaint, the Prosecutor was unable to produce any evidence during examinations that the first Defendant was not permitted to enter and reside in the Kingdom at the time of Plaint, and the first Defendant was able to present his passport in court. In this regards, the prior interrogation of the first Defendant, therefore, cannot self-incriminate himself for both alledged immigration offences.
On the charge of theft at night time against the second Defendant, the Prosecutor presented a witness who confirmed that the second Defendant gave him the exhibited mobile phone after the incident, claiming that the phone belongs to a foreigner who had forgotten his phone at the shop. In addition, a witness testified that the second Defendant confessed during interrogation that he had taken the mobile phone and the sunglasses of the first victim after he had harmed and raped the second victim. Where the circumstances infer that the second Defendant was one of the offenders who jointly harm the first victim at the scene, likewise the second Defendant could have a chance to steal the first victim’s mobile phone from the crime scene without difficulty. However, the Prosecutor was unable to seize the sunglasses of the first victim as the exhibit evidence for this case. Also, the Prosecutor lacks witnesses to confirm the second Defendant’s involvement in the possession of the sunglasses after the incident. Thus the Court admits only that the second Defendant wrongfully stole the exhibited mobile phone.
The arguments of both Defendants on the DNA testing result, the Burmese interpreter, the provision of lawyer during interrogation, or the claim that both Defendants had been physically harmed and tortured to confess following their arrest were lacking in evidence to prove as claimed. They are unsubstantiated claims, and immaterial for the purpose of rebutting the Prosecutor’s DNA testing evidence, and unable to affect the Court’s consideration. The evidence submitted by both Defendants could not dismiss the evidence presented by the Prosecutor. Whereas the second Defendant had wrongfully stole the first victim’s mobile phone, the act of the second Defendant amounts to torts, and the second Defendant is obliged to return or to reimburse the value of stolen property to the descendants of the first victim by virtue of Section 438 Paragraph Two of the Civil and Commercial Code.
The Court rules that both Defendants are guilty of sections 288, 289 (7), 276 Paragraph Three in conjunction with section 83 of the Penal Code. The second Defendant is also guilty of section 335 (1) Paragraph One of the Penal Code and sections 12 (1), 18 Paragraph Two and 62 Paragraph One of the Immigration Act B.E. 2522. The acts of the two Defendants were found guilty under several offences. Section 91 of the Penal Code provides that the Court shall determine punishment for each and every offence. For the offence of murdering the first victim, the sentence for both Defendants is death penalty. For the offence of murdering the second victim for the purpose of concealing other offences committed by the Defendants, the sentence for both Defendants is death penalty. For the offence of raping a woman who is not wife in form of gang rape, the sentence for both Defendants is 20-year imprisonment. For the offence of theft at night time, the sentence for the second Defendant is 2-year imprisonment. For the offence of entering the Kingdom not via legally-specified channel and time, the offence of entering the Kingdom without a valid passport and without permission by law, the offence of entering the Kingdom not via immigration channel and not completing the forms prescribed by law, all alledged offence are based on the similar wrongdoing and intention. The Court considered that these are the same conduct which gave rise to multiple offence. Since each offence carries the same scale of punishment, under Section 90 of the Penal Code, the charge of illegal entering into the Kingdom, shall be applied to the second Defendant having the sentence of 6-month imprisonment. For the offence of residing in the Kingdom without permission, the punishment for the second Defendant is 6-month imprisonment. The second Defendant’s confession on this charge of illegal entering and residing in the Kingdom without permission, established mitigating factor during the trial, the Court thereby reduces the sentence for each offence by half. 
Regarding the confession of the second Defendant under the interrogation stage for the offence of theft at night time, which facilitated interrogations and led to the seizure of the exhibited mobile phone, the Court reduces the sentence by one-fourth for the offence of theft at night time, Section 78 of the Penal Code, the sentence for the second Defendant thus being 1-year and 6-month imprisonment.  For the offence of illegally entering the Kingdom without permission, the sentence for the second Defendant is 3-month imprisonment. For the offence of illegally residing in the Kingdom without permission, the sentence for the second Defendant is 3-month imprisonment. 
Whereas both Defendants are sentenced with death penalty, the sentence of imprisonments for other offences cannot be included. As a result, only death penalty is imposed on both Defendants. The Court hereby orders that the exhibited hoe be returned to the original owner, and that the second Defendant reimburse 15,000 Baht being the value of the exhibited mobile phone to the descendants of the first victim. Other charges and requests are dismissed.
A full translation is in process.

Thursday, December 24, 2015

Koh Tao murders: "A flawed and muddled investigation"

This morning, 24th December, sentence of death was passed on two Myanmar workers,  Zaw Lin and Win Saw, for the murder last year of two young Britons, David Miller and Hannah Witheridge. The headline of the related news item on the BBC website, is a trenchant appraisal of the whole affair, “A flawed and muddled investigation”. The investigation was certainly flawed, the police proved incapable of protecting the site of the murder by using the usual cordoning, allowing crowds to trample the site and disturb who knows what relevant evidence. It became muddled by the early accusations, with little or no evidence, by the police of suspects who quickly proved their innocence. In brief, the two young Burmese admitted guilt, but later claimed their confessions were coerced under torture. Certainly, their rights to legal advice and qualified translators were denied in the time leading up to their confession. The evidence which led to the sentence was DNA samples found on the body of the raped victim, but not on the alleged murder weapon.

The evidence and the sequence of events is detailed and complex. The full BBC account may be read on the website, But this we can say at this stage, there are serious difficulties and questions to be asked, and must be presented to the Court of Appeal for a more reasoned treatment. Meanwhile doubt is justified and the judgement is hardly “beyond reasonable doubt”, the criterion of a valid judgement that involves the death penalty.

Finally, the trial leads to a reflection on the death penalty itself. The trial has raised immense interest and strong feelings regarding guilt or innocence. In such cases the truth often outs only long after the event. Many who have been imprisoned for long years are released. But for those who have been executed there is little impetus to continue the search for truth; a posthumous declaration is cold justice indeed. The death penalty serves no purpose in our judicial system and may cause great injustice.  

Thursday, December 03, 2015

Vietnam Abolishes Death Penalty for Drug Crimes

Thai woman sentenced to death on drug charge in Vietnam
News of a significant advance in abolition of the death penalty relates to penal code reformation in Vietnam. In South East Asia the majority of death sentences relate to drug related crimes. It is thus of great interest that Vietnam has abolished the death penalty for drug related crimes. However, the full implications of the change are still unclear. We reproduce the following news item from Aljazeera, but await more complete information on the change.
There are at least two Thai women condemned to death in Vietnam as drug couriers. Presumeably their lives will be saved by the new legislation. Meanwhile Indonesia has executed a Vietnamese woman on drug charges despite appeal by the Vietnamese government that she be spared.
The report of the penal code reform will certainly have influence on the execution on drug charge policies of other South East Asian countries.
A revision to the penal code eliminates the death penalty for crimes such as drug possession, fraud and corruption
November 27, 2015 8:11AM ET

Death sentences imposed on corrupt Vietnamese officials will now be commuted to life in prison if they pay back at least 75 percent of the illegal money they made. The change is part of a revised Penal Code that an overwhelming majority passed in the National Assembly on Friday, online newspaper VnExpress reported.
Under the revision, which takes effect July 1, 2016, the country also will abolish the death penalty for seven crimes: surrendering to the enemy, opposing order, destruction of projects of national security importance, robbery, drug possession, drug appropriation and the production and trade of fake food.

The revised law will also spare the lives of those who are 75 years old or older.
The ruling Communist Party has made fighting corruption one of its top priorities. However, some lawmakers had voiced opposition to the changes when they were debated in the assembly in June, arguing that they would weaken the fight against corruption. "This would create a loophole for corrupt officials to use money to trade for their life," state media quoted deputy Do Ngoc Nien as saying at the time.

International human rights groups and some international governments have been urging Vietnam to abolish its death penalty. Local media reports estimate that there are 500 people on death row in the country
Aljazeera Report