Criminal Law in Thailand. IMPORTANT!

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Criminal law in Thailand: Part V Getting arrested without a warrant - the flagrant offence
Published: 4/04/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum

This week we'll start to discuss arrests without warrants. Until now, we've been talking about arrests that arise from warrants issued.

As we've already mentioned, an arrest warrant is a document signed by a judge that gives a police officer the right to arrest someone. If the police officer arrests that person, he or she can't claim wrongful arrest, which we will cover later.

But what if a police officer doesn't have a warrant? Can he or she arrest someone?

This, of course, depends on the circumstances. In general, an officer can arrest a suspect when the suspect has committed a "flagrant" offence. This is when the police officer sees the suspect commit the crime or comes upon the scene and the suspect has obviously just committed it.

Here's an example of flagrant commission that contains a little of the uncertainty of real life legal issues. The police officer comes upon a screaming, hysterical crowd, pushes to the centre of it and finds a man holding everyone at bay with a knife and someone lying stabbed on the ground. Someone in the crowd tells the officer that the man with the knife was fighting with the victim and stabbed the victim.

Even though he or she didn't see the crime committed, the police officer is justified in arresting the person with the knife for stabbing the victim.

But you can see the problem - the person in the crowd who told the officer the man with the knife had done the stabbing could have been against the person with the knife for some reason and lied. The police are, in these situations, forced to use their best judgment - but sometimes they are wrong. It's tough being a police officer.

Here's another example that demonstrates a situation in which an officer can properly arrest someone without a warrant, and without having witnessed the crime. Let's say a policeman is walking down the street. Mr X is running toward him. Behind Mr X is Mr Y, shouting "Stop, thief!"

The policeman is justified in arresting Mr X because Mr X is being pursued by others who are calling out that he has committed a crime.

This is another of the well known circumstances under which a warrant is not needed.

Let's look at an example that illustrates the other side of the coin, however. In the example above, let's change it so that Mr X is simply running down the street, but not being pursued by anybody. The police officer has seen Mr X around, doesn't like him, and just decides to arrest him. This wouldn't fall under any of the categories in which an officer can arrest someone without a warrant.

What if Mr X is arrested under these circumstances? In such a case, he can apply to a court to release him. The police officer may, moreover, be guilty of a crime or possibly be sued by the arrestee.

We'll discuss remedies that an arrestee has later.

Next time we'll continue our discussion of circumstances under which the police can arrest without a warrant.

James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com) and
Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researcher: Chanakarn Boonyasith.
For more information visit
http://www.chavalitfinchlaw.com.
Comments? Questions?
Contact us at the email addresses above.

[Admin]

Criminal law in Thailand Part VI: Being arrested without a warrant - the wrong man
Published: 11/04/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum

Here's a more difficult example that illustrates another circumstance under which a policeman can arrest without a warrant because it's a flagrant offence. Let's say a police officer is walking down the street and comes upon the victim of an attack by some heavy instrument, bleeding and unconscious on the pavement.

Witnesses tell the officer the direction in which the perpetrator headed and the police officer runs off in pursuit. A block away, the officer encounters Suspect A holding a tyre iron and walking quickly in the direction away from the crime, looking as though he is fleeing the scene. The officer arrests Suspect A.

This brings us to another ground for arrest in the flagrant category in which a police officer can, under Thai law, arrest without a warrant. This is where a suspect is arrested near the site of the crime and has with him the spoils of the crime or items used in its commission or there is clear indication that he committed the crime on his body or clothes. The tyre iron could have been used in the commission of the crime, because the victim's injuries generally fit those of a heavy instrument such as a tyre iron.

Let's say, however, that hours later, when the dust on all of this settles, Suspect A with the tyre iron can prove he had nothing to do with the attack on the victim and had just borrowed the tyre iron from his bartender to fix a flat tyre incurred as a result of running over a whiskey bottle he'd mistakenly left under the car.

Was this arrest proper? In this case, the Suspect A was carrying the tyre iron, which could easily have been the item used to attack the victim. Although it turned out that Suspect A was innocent and should be released, the police officer was probably not guilty of improper conduct in arresting Suspect A.

We say "probably" because a judge making the decision would have wide discretion in deciding what was reasonable on the part of the officer in a case like this. The judge might look to see if the police officer had seen some clear indication that Suspect A had committed the crime on his body or clothes, because, as mentioned above, this is an alternative possibility for this category of arrest without a warrant.

But let's change the facts in the case again, as lawyers often do to explain legal issues. Let's say instead the Suspect A hadn't been carrying a tyre iron or appearing to flee. Instead, he had simply been a man in the street, a block away from the attack, walking normally in a direction away from the incident. If the officer arrested this man, there was no obvious flagrant offence, and the officer could be guilty of improper arrest. What you must do when you're improperly arrested will be covered later.

For now, we'll continue with our explanation of what is and isn't proper arrest. There are additional grounds upon which a police officer can arrest without a warrant and we'll cover these next.

James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com) and
Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researcher: Chanakarn Boonyasith.
For more information visit
http://www.chavalitfinchlaw.com.
Comments? Questions?
Contact us at the email addresses above.

[Admin]

Criminal law in Thailand: Part VII Getting arrested without a warrant - more grounds
Published: 18/04/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum

We're talking about situations in which a police officer can arrest you without a warrant. Last time we mentioned that a police officer may arrest without a warrant if the crime is committed in their presence, or if it is obvious the perpetrator just committed the crime. These are examples of the "flagrant" offence, as discussed. This time we will discuss the three additional grounds for an officer to arrest without a warrant.

Here's the first. If the police officer becomes aware that a person is armed or is carrying tools that can be used to commit a crime, such as a crowbar, and suspects they will be used in the commission of a crime he or she may arrest without a warrant. The obvious example is that a police officer sees Mr X, a known burglar, running late at night down an alley with a crowbar. The officer could arrest Mr X on this ground.

But here's another example of the same exception that shows the subtleties of criminal procedure. What if you are in a bar having a drink? It's in a pretty rough neighbourhood, so you've brought a knife with you for protection. The blade is about 10cm long, and it's in a sheath on your belt. A police officer in the bar happens to see it. Can the officer arrest you on the suspicion that the knife may be used in the commission of a crime?

The answer to this question depends on whether the officer's suspicion is reasonable. So we must look to other facts. For example, does the officer know you? And do you have past convictions for stabbing people in bar fights? If so, his suspicion would be reasonable. Likewise, are you acting belligerently, reasonably suggesting to the officer that you might be getting ready to use the knife? This is another factor that should be weighed in making a decision whether or not to arrest.

Here's another reason a police officer can arrest a suspect without a warrant - urgent circumstances. This is when a police officer sees a situation that would require a warrant to arrest the suspect, but because of the pressure of time, and/or emergency circumstances, there isn't the opportunity to obtain one.

Let's say, for example, a police officer sees a known bank robber running down the street, toward a bank. None of the reasons for arrest without a warrant mentioned earlier would apply, because the officer is not aware that any crime has been committed. Likewise, the officer doesn't see tools of crime or a weapon. But because the officer is trying to prevent a crime, and can't wait to get a warrant to do so, he or she may arrest the suspect based on the necessity of time pressure.

The final ground for arresting without a warrant is that an officer can arrest an escaped or accused offender. Let's say, for example, a policeman sees an escaped prisoner, who was convicted for robbery and the policeman knows has escaped. The policeman can arrest this escapee without a warrant.

Likewise, and we will discuss this at length later, the police often arrest a suspect and release him or her, explaining that if they need this suspect for further proceedings the suspect may again be called in by the police.

If a suspect has been called again by the police as part of an ongoing investigation but is evading the police, such a suspect can be arrested without a warrant.

Next time we'll begin discussing what happens if you're arrested, and what you can do if the arrest is unlawful.

James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com) and
Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researcher: Chanakarn Boonyasith.
For more information visit
http://www.chavalitfinchlaw.com.
Comments? Questions?
Contact us at the email addresses above.

[Admin]

Criminal law in Thailand Part VIII: What happens when you're arrested
By James Finch and Nilobon Tangprasit
Published: 25/04/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum

Let's talk now about your rights if you are arrested. As mentioned earlier, many police speak only the Thai language. Once you are under arrest and brought to the inquiry office, the police station, for example, an interpreter competent in your native language must be provided for you.

This requirement of a translator is at state expense and applies for all stages of the proceeding, for example, preliminary hearings, trial and sentencing. If you do not get an interpreter or you want to use one you designate and compensate yourself, you have a right to do so.

The same rights apply to the case of an arrestee who is hearing or speech impaired. You must be provided with someone who can sign, so that you understand and can express yourself at every stage of the proceedings.

The rules about interpreters, incidentally, also apply to witnesses to crimes. So if you are brought to a police station to give a statement about a crime that somebody else has allegedly committed, an interpreter must be appointed for you. There are other items that have to be explained to you by the police if you are arrested:

- You must receive an explanation of the reason for the arrest and a copy of the arrest warrant, if there is one;

- you can make a statement, but that statement can in the future be used against you in evidence at a trial;

- you have the right to call and have a lawyer present, meet with the lawyer in private and have the lawyer attend hearings in the proceeding with you;

- you can call a relative, friend or other party, and the police have a duty to let you use a telephone to do so. You can also request that the police contact these parties on your behalf;

- you have a right to medical treatment if you need it.

But when do you have to have these rights explained to you? The arresting police officer has a fair amount of discretion as to this. For example, let's say you're arrested in a nightclub, and it's crowded and difficult to hear. The police in such a case would clearly have the authority to arrest you and take you outside. At the first possible moment, however, you must be told 1) the reason for the arrest and shown a copy of the warrant, if there is one, and 2) that you can make a statement, but if you do, it may be used against you in evidence at trial. If you ask that someone be notified of the arrest, the arresting officer must, under reasonable circumstances, do so.

When you arrive at the police station all of the rights in the list above must be explained to you, even though some of them have already been told to you by the arresting officer. How much delay by the arresting officer is permissible in telling you your initial rights as discussed above? The delay must be reasonable. Certainly, in our example, if you're taken outside the nightclub and immediately told these rights, this would be adequate.

But what if you're then left locked in a police car for a few hours? Or taken somewhere, left alone in a locked room and no one explains anything to you? In these cases, the police would have the obligation to explain the above rights to you, before you were locked somewhere.

Let's say, alternatively, that inside the nightclub, when the police tried to make the arrest, you put up a fight and tried to hit one of the arresting officers with a beer bottle? The police would have the right to take the action they consider necessary to effect the arrest. This might delay their obligation to let you know about your rights. For example, if they felt you would fight until they had you in a secure location, say, at the police station, they could wait until then. We'll continue our discussion of your rights when arrested next time.

James Finch of Chavalit Finch and
Partners (finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researcher: Chanakarn Boonyasith.
For more information
visit http://www.chavalitfinchlaw.com.
Comments? Questions?
Contact us at the email addresses above.

[Admin]

Criminal law in Thailand Part IX - More about your rights when you are arrested
Published: 2/05/2010 at 03:07 AM
Bangkok Post: Newspaper section: Spectrum

This time we're going to expand on our discussion of your rights after you've been arrested. Let's say when you're arrested, it's by a plain clothes officer. That officer always has to identify themselves to you. Thus, if you are arrested by someone who presents him or herself as a plain clothes officer, and you have any doubt as to whether the arrest is official, you can ask to see the officer's badge and ID card. Though the Supreme Court of Thailand has not ruled that under all circumstances the officer must show these, it has ruled that an arresting officer must show by reasonable means that he or she is an officer. The obvious way would be to show a badge.

You should give the information about the officer to anyone at the scene with you who is not being arrested, for future reference. If the person purporting to arrest you can't produce a badge and ID, get someone to call the police to identify the person. Also, unless it's one of the situations where a warrant is not needed, as discussed in earlier columns, the officer can only arrest pursuant to a court order or arrest warrant. Remember, improper arrest can subject the officer to criminal penalties.

There have been instances in the past where people purporting to be police officers have kidnapped unsuspecting individuals, and getting anyone who claims to be a police officer to identify themselves is a way to protect oneself against this. Impersonating a police officer is a crime and can subject the impersonator to up to one year in jail.

When you're arrested, the police have to take you to an ``inquiry office'', usually the local police station. This must be a government office and can't be a non-governmental place, such as a hotel or a home. Officially, it's where the prisoner is turned over to an ``inquiry official'', such as a superior police officer. Apart from minor delays, such as calling the station or obtaining evidence or statements from others at the scene where you were arrested, you have to be taken to the inquiry office immediately.

We talked last week about what must happen at the police station or other facility. We have had several emails from readers requesting confirmation or further discussion of a person's rights at a police station if you are brought there under arrest.

At the police station you must be told the reason for your arrest, even if this was done when you were arrested. If there is an arrest warrant, this must be read to you. If you don't speak Thai, an interpreter must be provided to you, at state expense.

Immediately after any charges are read to you at the police station, the police must help you call a lawyer, relatives or friends. This help must include use of police phones without charge, particularly if your mobile phone has been confiscated pursuant to the lawful search of an arrested person's possessions allowed by law. Although the law is not explicit, calls at police expense to lawyers, relatives and friends should even include international calls.

The police must allow you to meet in private with a lawyer, friends or relatives. These individuals must be allowed to attend any hearing in connection with your arrest.

Also, if you are arrested, the police must assist you with any medical problems. For example, if you were injured in the arrest, you are entitled to immediate medical attention. If you can't be treated at the inquiry office, you have to be taken to a place such as an emergency room, where you can. The police may, of course, accompany you to the hospital to make sure you don't flee, and take you back to the inquiry office when you are medically stable. In fact, if you are seriously injured or sick, the arresting officer must see to your medical treatment before you are taken to the police station.

James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researcher: Chanakarn Boonyasith.
For more information
visit www.chavalitfinchlaw.com.
Comments? Questions?
Contact us at the  email addresses above.

[Admin]

Criminal Law in Thailand Part X: How long can they hold you?
By James Finch and Nilobon Tangprasit
Published: 9/05/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum

If you're arrested, how long can you be held? This is not a question of how long you can be put in jail if you're convicted. What we're talking about here is is how long the police can hold you at the time of arrest. This is prior to the formal phase of the process where your guilt or innocence is decided and you are sentenced, if adjudged guilty.

After arrest, and once formal charges have been read to you (called the arraignment), in most cases you have to be released to await further proceedings such as the trial.

If you have been arrested for a petty offence, as defined in Title 3 of the Thai Criminal Code, you can only be held for the time reasonably required to record your identity, your address and to obtain a statement from you about the crime.

Generally, you cannot be held in connection with a petty offence for more than 48 hours. Petty offences are those for which the maximum imprisonment is one month and/or a maximum fine of 1,000 baht.

Examples of petty offences are fighting and public intoxication. The police may keep a suspect longer than just the time to identify them and get a statement under two circumstances.

The first circumstance is that the suspect was arrested via an arrest warrant and the warrant, which must be signed by a judge, specified that the arrestee had to be kept until he or she should be brought before a judge.

The second circumstance under which the police can keep a suspect for an extended period is if a court has issued a detention warrant as a result of a request filed by the police.

A court may issue such a warrant after requesting testimony from the accused, who may, of course, already be in custody. The police may be asked to give testimony or other evidence to the judge, as well.

The amount of time the accused can be held depends on the severity of the penalty of the crime.

FOR EXAMPLE:
 - for offences that have a maximum penalty of no more than six months in jail - seven days;

 - for offences that have a maximum penalty of more than 10 years in jail - 48 days.

Depending on the offence, the maximum number of days mentioned above is a total of lesser extensions that must be requested by the authorities.

In cases of serious offences where the accused may be in jail after arrest for up to 48 days, the Public Prosecutor can get the accused kept in jail longer by filing a petition with a court.

A court is likely to grant such a petition in cases where the accused is violent or likely to flee. While you are in custody the police must explain to you that you can either make a statement or not, but if you do, what you say can later be used in evidence against you.

If and when the police take your statement, you have to be allowed to give your side of the story and have it written into the record prepared by the police.

This again highlights the necessity to have a representative with you who speaks Thai, because everything will be written in Thai. Incidentally, if you are giving a statement through an interpreter, the interpreter must give an affirmation swearing to translate truthfully. Failure by the interpreter to do so may affect the admissibility of the statement in court.

Remember, all of the above relates to what the police can do prior to trial. We will talk about formal accusation, trial and conviction later.

James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com) and
Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researcher: Chanakarn Boonyasith.
For more information visit
http://www.chavalitfinchlaw.com.
Comments? Questions?
Contact us at the email addresses above.

[Admin]

Criminal law in Thailand: Part XI Bail and provisional release
Published: 16/05/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum

Last week we discussed the fact that after arrest but before trial the police may release a suspect or, pursuant to the procedures we discussed, hold him or her temporarily until trial. We were deluged after the column ran with callers asking about friends or relatives currently being held after arrest. Virtually all wanted to know about the procedure for getting an accused released prior to trial.

If an accused is being held pending trial, he or she - or any interested person such as a parent, child or relative - may file an application with a court for provisional release pending trial.

With whom must this application be filed? This depends on the stage of the proceeding. Generally, if the accused has not yet been formally charged in court, the application must be filed with the police or the public prosecutor.

Even if the accused has not been formally charged, but is held pursuant to a detention order issued by a court, the application must be filed with the court. If the accused has already been formally charged, the application must be to the court that will try the case.

The official deciding on whether provisional release will be allowed must consider these factors:

- How serious is the charge?

- How reliable is the evidence?

- What are the general circumstances of the case?

- How reliable is the accused?

If bail or security will be required, how reliable is it?

- Once the accused is out will he or she flee?

- Will there be any collateral damage to society from releasing the accused?

Based on the above inquiry, provisional release will not be allowed if the person deciding on it concludes the accused:

- will flee

- will interfere with the evidence in the case

- will cause society any other danger or that the bail or person posting bail is unreliable, provisional release will not be allowed.

Normally, if provisional release is allowed, and the punishment for the offense exceeds imprisonment for five years, the accused must post bail.

This can be done by depositing cash, securities or having someone else put up some form of security. The accused must sign an oath or affirmation agreeing to the terms of the bail.

With lesser crimes, bail is more discretionary, and many people who are accused of lesser crimes are released without bail upon the signing of an oath or affirmation that they will appear at the trial.

Provisional release is valid during the official inquiry or until the accused is ordered to be detained by a court. Generally it can't exceed three months from the date of release, but it can be extended, with the court's approval, up to as much as six months.

James Finch of Chavalit Finch & Partners
finch@chavalitfinchlaw.com and
Nilobon Tangprasit of Siam City Law Offices Limited
nilobon@siamcitylaw.com
Researcher: Chanakarn Boonyasith
For more information see
http://www.chavalitfinchlaw.com
Comments? Questions?
Contact us at the email addresses above.

[Admin]

Criminal law in Thailand Part XII: Remedies if the arrest is not proper
Published: 23/05/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum

This week we'll begin to examine how your rights are protected if something goes wrong with your arrest. We're going to do this initially by looking at some fictitious examples.

The first is where the police come to your door. They have a warrant to arrest someone at a nearby address and they simply make a mistake. They tell you you must come with them, and you do. On the way you call a Thai friend who meets you at the police station. The friend is told your identity must be verified and your passport is taken.

You are then kept waiting for six hours. After this, with no explanation, your passport is returned and you are released. This is a borderline case. If you lodged a complaint, as discussed below, and the official in charge decided that the police officers involved acted in good faith, without serious negligence, you can't do much about it, despite the inconvenience to you.

But read on. The second fictitious example sees you in a restaurant with some friends. One of them has a running feud with a local police officer, who happens also to be in the restaurant. The officer approaches your table and speaks to your friend. They are both Thai and you don't understand what is said, and then the officer arrests everyone at the table.

Outside the restaurant the officer pulls out a baton, swings it at your friend, but hits you, breaking your arm. In a few minutes a uniformed police sergeant appears and sees what has occurred. He berates the police officer, who disappears. He then apologises and releases everyone. From earlier columns you know the arrest was improper, because it required a warrant. You have a number of options:

- Police officers wrongfully or dishonestly discharging their duties are subject to criminal penalties of up to 10 years in jail and a fine. You could, therefore, go to the Public Prosecutor, complain of the policeman's behaviour, and ask that he be prosecuted;

- Under the Act on Liability for Wrongful Acts of Officials, you could claim compensation for your broken arm from the Royal Thai Police Office;

- The police have internal rules that protect the rights of individuals and punish officers violating these rules. You could initiate an investigation against the offending officer, by lodging a complaint with the Office of the Inspector-General of the Royal Thai Police.

What if the officer in this case had been off duty when the incident occurred? Unlike the above case, the police officer would not be considered discharging the duties of a police officer. He would thus not be exposed to the criminal penalties mentioned above. Also, since he was not acting in an official capacity, you could not make a claim for your injuries against the Royal Thai Police Office.

Here is what you could do. The Criminal Code of Thailand provides that anyone, police officer or otherwise, who commits grievous bodily harm to another, is subject to a criminal penalty of up to 10 years' imprisonment and, in effect, to pay damages to the person injured. You could, therefore, complain to the Public Prosecutor, who could prosecute the police officer.

Even though the officer was off duty, moreover, he did arrest someone as though he had been on duty and can be disciplined if the arrest was improper. So you could lodge a complaint against him with the Office of the Inspector-General of the Royal Thai Police for arresting you without a warrant.

James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com) and
Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researcher: Chanakarn Boonyasith.
For more information visit
http://www.chavalitfinchlaw.com.
Comments? Questions?
Contact us at the email addresses above.

[Admin]

Criminal law in Thailand Part XIII - Arrest and confession
By James Finch and Nilobon Tangprasit
Published: 30/05/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum

Last week we gave a couple of examples of arrest situations and how your rights are protected under Thai law. This week we'll cover one additional area of the law concerning your rights when arrested - the confession.

The fictitious example we will use this time is that you are involved in a car accident. You were going over the speed limit, and couldn't stop for a red light. You hit a car turning legally into your lane. It went off the road, having been hit quite hard. The police and an ambulance arrive. The lady in the passenger side of the other car has hit the windscreen and has bruises on her forehead. Her hand is bleeding and she has to be taken to a local hospital.

You are told you're under arrest and taken to the police station with your wife, who is Thai and who is translating for you. No one says anything else. For a while you wait in a room containing several desks at which police officers are meeting with groups of people. Finally, you are told to go to one of the desks, where there is a young officer, recording statements in a logbook. He asks you for your name and address and for a copy of your passport, which you give him. That's all. Then he asks you what happened.

You tell the officer that you ran the red light because you were in a hurry to get home because your wife wasn't feeling well. Also, you go on, though the arresting officer may have thought you were drunk, you weren't. You say you'd had a few drinks, but know your limit and had no trouble driving. This is written down in the log book and you sign it.

What you said to the officer who took your statement was a confession. You admitted you ran the light and had been drinking in a situation that caused an accident. Forget the self-deceiving justifications you gave about your wife being sick and the fact that you're a good driver even when drinking. Confessions always contain a few of these.

But can this confession be used against you in a criminal case against you for speeding, failing to stop at a red light or drink-driving?

Probably not. The Criminal Code of Thailand provides that defendants must be informed of their rights to make a statement, but if they do, it can be used against them in evidence. Also, defendants have to be told they have a right to have a lawyer present and that lawyers will be provided at state expense if the defendants can't afford them. Confessions made before these warnings are given, as in your case, cannot be used in evidence.

You should understand, however, that the rules regarding admissibility of confessions in later proceedings are complex. For example, if you have been fully informed of the details and reason for the arrest or read the arrest warrant, things you say that are not a confession but that might incriminate you may be later used against you.

In the above case, let's say the arresting officer had told you that you were under arrest for drink-driving, running a red light and causing an accident, and the officer taking your statement had said the same thing, but still neglected to tell you your full rights as mentioned above. Other statements you made that did not amount to a confession, but that might incriminate you, could be used against you in the future.

For example, you might have said in your statement that you went straight from buying alcohol to the place where everybody was drinking together. You might also have told the police that your wife told you to slow down just before the accident. Neither of these statements is a confession, because they don't necessarily mean you were at fault. A judge, however, might infer from them that you had been drinking, and driving too fast. Because they are not confessions they might be used against you later.

More next time about the defendant's rights in cases of wrongful arrest.

James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com) and
Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researcher: Chanakarn Boonyasith.
For more information visit
http://www.chavalitfinchlaw.com.
Comments? Questions?
Contact us at the email addresses above.

[Admin]

Dear members,

I have attached here some VERY interesting articles regarding Thai law.
Read it and send this link to your friends.
I think its very useful to know.

 

[somchai]

Very insightful and interesting reading....even helpful. But reality and fancy might not jell so well, as we all know that dealing with police and a judicial system here in LOS - what is mandated on paper and what is practiced are two different beast.

[Admin]

Criminal Law in Thailand Part XVII - Police internal procedures that protect you
Published: 4/07/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum



Last time we talked about how you would complain if you were treated improperly by the police in an arrest or other situation. In short, there are several ways, including a simple explanation of what happened to the superior of the officer you're complaining about. And remember, if you're arrested the police have to provide an interpreter if you don't speak Thai, so you can make the complaint yourself.

This time we'll explain what happens when a complaint is lodged.

No matter how the process is initiated, the superior of the officer against whom the complaint has been made must conduct a primary investigation to determine whether there is enough evidence to take administrative action against the police officer.

The superior officer must then make one of three possible decisions:

- That the officer is innocent and that no penalty should be imposed;

- that the officer has committed a minor infraction of police procedure and impose a penalty, or;

- that the officer has committed a major infraction of police procedure and a committee of police officers must be formed to formally investigate, afford the accused officer his or her rights and impose a penalty, if this is warranted.

All of the above must be reported to the commanding officer of the superior of the officer complained against. It must also be reported to the Commissioner General. Both the commanding officer and the Commissioner General have the right to decrease or increase the penalty imposed, within the limits of the law.

What penalties can be imposed against a police officer for violating police rules for protecting those arrested and otherwise denying members of the public their rights? Here are the options:

- Probation. This is noted in the offender's personnel file and may result in dismissal if the offender commits offences in the future.

- Additional work in addition to regular duty, such as guard duty, not exceeding six hours a day.

- Being placed under guard.

- Detention in one place in police custody, not exceeding six hours a day.

- A pay cut.

- Discharge. Laying the offender off the police force, but with the normal termination benefits.

- Firing the offender. If the offender is fired he or she does not receive normal benefits for being terminated and cannot be rehired as a government employee.

Some of the above punishments can be combined. For example, an officer can be confined to the police station and compelled to perform public service or extra police duties without pay, provided such punishment doesn't exceed six hours a day.

You may be wondering who cares what happens to an officer who violates my rights, as long as he or she is punished? We've explained the penalties above to show you how the administrative route, in additional to suing or prosecuting the offending officer, is a real deterrent. Nobody wants to be complained about on the job, or fired. These penalties mean police officers in Thailand must think twice before denying you your rights.

Next we'll summarise what to do when you're arrested and your options if you feel you are not treated properly. Then we'll move on to other criminal problems you may face in Thailand.

James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researcher: Sutatip Raktiprakorn.
For more information
visit http://www.chavalitfinchlaw.com.
Comments? Questions?
Contact us at the email addresses above.

[Admin]

Criminal Law in Thailand Part XIX - Arrest: Your rights and what to do
Published: 11/07/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum



This time we're going to summarise the procedures, your rights and what to do when you're arrested. Remember, you can only be arrested in Thailand if there is a warrant for your arrest, or if some special circumstance exists, such as if you committed the crime in the presence of the police officer who arrested you.

The officer has to identify him or herself as a police officer, using reasonable means, such as showing you a badge. You should take down any such information and give it to any companions you have who are not under arrest.

Excessive force can't be used against you, and you can't be restrained in a way that is excessive or intended only to humiliate you.

At the scene of the arrest the officer also has to show you the warrant or tell you the charge. If the circumstances allow, the officer also has to tell you that:

- You can make a statement, but that the statement can in the future be used in evidence at a trial;

- you have to right to call and have a lawyer present;

- you may call a relative, friend or other party, and the police have a duty to let you use a telephone to do so.

The arresting officer has to take you to the police station immediately and help you with any medical emergencies you may have, even before taking you to the police station.

Once at the police station you must be provided with a translator at state expense if you don't speak Thai. A police officer must explain all of the above information and rights to you, even if they were previously explained by the arresting officer. You must also be allowed to call a lawyer, friend or other person at state expense. It must be explained to you that you may have a lawyer present at any stage of the procedure. You must be helped with any medical problem you have.

Before the above rights have been explained to you, a confession you have given will probably not be admissible against you in later proceedings. Because the law relating to this issue is technical, however, you should consult with a lawyer about it before assuming the police cannot use statements you have given against yourself.

As soon as you can, you should call a friend or lawyer who speaks Thai and your native language fluently. This person should meet you either at the point of arrest or the police station. The person you choose to do this must be a person who will be respectful and tactful with the police. Likewise, you should never, ever lose your temper with them. More often than not, the police are just doing their jobs, and the best way to resolve criminal issues is by being co-operative and polite.

Except under a few circumstances, the police cannot keep you for more than 48 hours in the arrest phase. We will talk later about what happens if you're convicted of a crime, but this will come later. What we're talking about now is the arrest phase only.

If the police do not comply with any of the above rules you may have the right to sue the offending officer or have them prosecuted for any crime they may have committed. On a more practical basis, you can also make a complaint to the police Commissioner General, which will trigger an inquest. There are several ways to do this, including an oral complaint to the offending officer's superior.

What if the police won't release you? You can, under criminal law, have a lawyer file a petition with a judge, who can review the case and order you released if the grounds for detaining you are improper.

This will conclude our general discussion of arrest. We will continue with other basic criminal issues, but first we want to cover a couple of specific, related issues asked about by readers. Next week we will begin coverage of the ownership and use of weapons in Thailand.

James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researcher: Sutatip Raktiprakorn.
For more information
visit http://www.chavalitfinchlaw.com.
Comments? Questions?
Contact us at the email addresses above

[Admin]

Criminal Law in Thailand Part XX: Weapons in Thailand

In a recent column we discussed an example that involved a member of the public carrying a long knife in a public place.
This has triggered a number of queries from readers about who can and can't possess and carry deadly weapons, including guns, in Thailand.
Published: 18/07/2010 at 12:00 AM
Bangkok Post: Newspaper section: Spectrum

Let's look at the basic law. Section 371 of the Thai Criminal Code prohibits openly carrying arms to a public place or carrying them to a gathering of people assembled for any purpose. One can be arrested and convicted with a small fine for this, and the weapon confiscated. The word "arms" in section 371 includes all weapons such as hunting knives, clubs, nightsticks, machetes and firearms. It also includes anything not necessarily intended to be used as a weapon, but that can be, such as a golf club or a rolling pin.



Let's look at an example involving items that aren't exclusively weapons. How about a baseball bat? Let's say some friends were trying to learn the game of baseball and you had a party at a local park to teach them. You showed up at the park carrying the bat, and 50 people had already arrived. Could you be arrested and the bat confiscated?

No, because although a bat can be used as a weapon, the circumstances and your intention were that the bat was to be used in a game, not to hurt somebody.

Let's look at the flipside of the rule. Say after the game you and your friends went out for a few drinks in a rough part of town and you took the same bat along for protection. In this case, you could be arrested and the bat confiscated because the circumstances and your obvious intent suggest that you would use the bat as a weapon, not in a game.

Here's another example that takes place in the same rough part of town. Let's say you had broken your ankle and were using a cane to help you walk and went with friends to that part of town. The cane, because of the circumstances and your obvious intention is simply something to help you walk. Thus you couldn't be arrested or the cane confiscated.

What if, on the other hand, you didn't have anything wrong with your ankle and had taken the cane for protection? Again, you can see that sometimes it's difficult to be a police officer. Your intention would have to be decided from the circumstances and sometimes the police walk a pretty fine line. If you were brandishing it as a weapon or hit somebody with it, the police might decide the circumstances allowed them to arrest you and confiscate it.

So just to put things in perspective, what we've been talking about above are mostly items that can be used both as weapons and for other purposes. For items such as machetes, swords and hunting knives, tasers and pepper spray, since they are practically only used as weapons, if you show up at a public gathering with these, you can be arrested and the item confiscated.

Other than firearms, are any of the above weapons required to be licenced or illegal to be kept in the home for protection? There is no law that would prevent you from having them in the home and using them as protection from intruders. Please remember, though, that there are limits on how these weapons can be used, even in the home. In a later column we will discuss the circumstances under which the use of force is justified and when it is not. Section 371 does allow for carrying concealed arms in public places with "reasonable cause", which would be defined on a case-by-case basis. This is, however, a very limited exception. Examples of this reasonable cause would be:Transporting arms to be used for sport;keeping arms in the car while transporting large amounts of cash;arms transported along with other household goods as part of the process of moving.

Just as a footnote, chainsaws of more than two horsepower and with a chainplate exceeding 30.5cm are also required to be licensed with the Royal Forest Department, even for use in the home.

The legislative purpose for this is to prevent deforestation, not crimes in the vein of those portrayed in The Texas Chain Saw Massacre, but we thought you'd want to know.

Firearms are what lawyers call sui generis - unique, in a class by themselves. Next time we will discuss the rules governing them.

James Finch of Chavalit Finch and
Partners (finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researcher: Sutatip Raktiprakorn.
For more information
vist http://www.chavalitfinchlaw.com.
Comments? Questions?
Contact us at the email addresses above.
A Word of Advice on July 4 was incorrectly numbered part XVII.
It should have been numbered part XVIII.
No installment has been missed, simply misnumbered.

[Admin]

Criminal Law in Thailand Part XXI: Owning a gun in Thailand
Published: 25/07/2010 at 09:10 AM
Bangkok Post: Online news: Crimes

Several readers have asked whether it is legal to own a gun in Thailand.



Although the law relating to weapons discussed last week would also apply to firearms, there is a law that applies specifically to firearms. It is the Firearms, Ammunition, Explosive Articles, Fireworks and Imitation of Firearms Act _ or, the act. The act prohibits the making, buying, possessing, using or importing of guns or ammunition without a licence from the local registrar. In Bangkok, the registrar would be the director-general of the provincial administration, under the Ministry of the Interior.

In the provinces outside Bangkok, the registrar would be the sheriff, otherwise known as nai amphur.

This means that even if you have a gun or ammunition in your house and never take it out, you are violating the law unless you have a licence. Any of the above offences, including just keeping an unlicensed gun in your house, subjects you to imprisonment of up to 10 years and a fine.

Gun licences are personal to the gun owner. If you borrow or buy a gun, even if it's licensed by its owner or the person from who you bought it, it is crime to possess it.

Likewise, it's a crime even if you just keep it in your house for self-defence. This would subject you to imprisonment of up to five years and a fine unless you get a licence for it yourself.

There are additional penalties for taking an unlicensed gun to a town or village or in a public way  _ up to five years' imprisonment.

Also, if you take an unlicensed gun to a public gathering such as for worship, entertainment or political purposes, you  could face up to five years in jail.

This offence carries with it a minimum sentence of six months in jail.

Even if you have a licence, by the way, taking a gun to a public gathering, including a political rally or protest, subjects you to imprisonment of up to a year and a fine.

The act prohibits certain people from getting a gun licence. They are:

 Anyone who has been convicted of an emimprisonable offence under the act emor the Criminal

 anyone who has been convicted of emcertain offences other than those emabove more than twice in the five-emyear period before applying for the emlicence;

 anyone who is not able to properly emuse a gun due to physical disability or eminfirmity. Such a person may, however, emown certain guns, but not shoot them;

 anyone adjudged incompetent or emquasi-incompetent by a court or who emappears to the registrar, discussed emabove, to be of unsound mind or emhave a mental infirmity;

 anyone unemployed and without inemcome;

 anyone without a permanent resiemdence;

 a person who has been guilty of gross emmisconduct that might affect the pubemlic order. The registrar has wide disemcretion in connection with this item emand might, for example, deny a licenceemto someone who appeared to be in a emviolent frame of mind or whose beemhaviour was erratic;

 anyone who cannot produce a house emregistration document pursuant to emthe Civil Registration Act that has conemtained his or her name for more than emthan six months.

This means, of course, that a Thai person must have had his or her name in a blue house book for more than six months. Likewise, a foreigner must have had his or her name in a yellow house book for more than six months. But see below.

The law does not prohibit a foreigner from licensing a gun, and many foreigners have gun licences. Foreigners' applications are now, however, much more strictly scrutinised than those of Thai nationals.

We believe it is fair to say that few, if any, gun licences will be issued to foreigners in the near future. More about this next time.

James Finch of Chavalit Finch and Partners
(finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com).
Researcher: Sutatip Raktiprakorn.
For more information visit
www.chavalitfinchlaw.com.
Comments? Questions? Contact us at
the email addresses above.