Thailand Law Journal 2010 Spring Issue 1 Volume 13

In such cases, there is a danger of the abuse of police powers and the unfair business competitive practices where one business tries to use the police force to harm the commercial interests of a competitor. If we suppose that the plaintiff in this case was correct in his allegations, then it would be easier for him to find a redress to the wrongdoing by means of a civil law suit. The burden of proof in civil cases is much lower than in criminal cases. The police, prosecution and the courts themselves appear to be uncomfortable in investigating such cases. If it were a serious offence deserving a criminal sanction, the plaintiff must be a prosecutor. A more careful gathering of evidence should be conducted. The courts themselves in criminal cases could send the case back for further investigation. None of those things has been done because there is a significant lack of moral grounds in invoking the repressive power of criminal law in commercial disputes of this type which do not affect significantly the vital interests of the public.

Thai folk wisdom as displayed in Thai folktales favours restitution over retribution. It aims at social harmony between the members of the society which cannot be achieved through the mechanism of criminal law.⁷ The Thai folk story “Unfair”⁸ speaks about 2 otters. They had a dispute over fish and went to seek help from a fox in the role of a judge. None of the otters eventually received any benefit from fox’s mediation. The case of ceiling panels is a good illustration of the moral lessons of the folktale. The plaintiff lost the case. The defendant lost the panels. None has been satisfied. The case ended with the sense of bitterness on the both sides, waste of time and money spent on legal costs. In such cases as this, Thai law must strive for bringing the litigants to the table of negotiations and compromise in order to reach the noble goal of public peace and harmony maintained by Thai folk wisdom.

“Grongthip 90” Cigarettes case⁹

This case is unusual, since the defendant was a low rank policeman and he contended the charge of offering, distributing, and possessing with the purpose of distributing cigarettes with a forged trademark. He was caught with 2 other adults and 1 teenager in the possession of 41 thousands of cigarettes with a forged trademark. Selling the cigarettes was done by avoiding excise payments which was detrimental to public finances. The value of cigarettes was evaluated at almost 600.000 thousand baht. 2 other adult defendants confessed the guilt. The case of the teenager was directed to another channel of criminal justice according to the Act on Establishing Juvenile Court.¹⁰ The prosecution claimed that the defendant knew that the trademark was forged.

The Central Court of Intellectual Property dismissed the charge. The prosecutor appealed to the Supreme Court. The Supreme Court reversed the decision, and held the defendant guilty. In the consideration of the case, the main attention was paid to the circumstances of the arrest. The proof whether the defendant knew or not about the illegality of the cigarettes, was deduced from the behaviour of the defendant at the time of the arrest. The arrest took place at a shop where the product was brought. Unlike the other accused, the defendant denied the fact that he knew that the product was illegal. He claimed that he was there by accident. According to the defendant, he knew one of the accused for several years, and he came to see him to borrow a car to take part in a religious ceremony. He accompanied his friend and helped him to carry the goods into the shop where the arrest took place without knowing that the goods were illegal. The other accused persons confirmed this claim of the defendant.

The Supreme Court did not believe the defendant and the other accused. It held unreasonable that the defendant, while coming to borrow a car, should help to unload the goods and carry them to the shop while there were other 5 people who could do the job. The court said that it believes that the other accused simply wanted to help their friend to keep him out of trouble, and dismissed their testimony. The court “believes that the defendant is a principal (ตัวการ) together with others” in bringing the illegal product to the shop. It sentenced the defendant to 1 year of imprisonment and fine of 400.000 baht. Considering the fact, that the defendant did not have previous criminal record, it gave a probation sentence.

There is doubt in the correctness of the decision of the Supreme Court. The main problem is how it is possible to infer from the fact that the defendant was actively involved in a single transportation of goods, that he knew that the goods had a forged trademark. It appears unreasonable to rely only on the testimony of the people who arrested the defendant without other supportive evidence to condemn him on the ground that he knew that the goods were illegal, and that he was distributing them. It is possible that Supreme Court failed to act in this case on the presumption of innocence. The indication of this failure is a frequent use of the word that the court “believes.” Beliefs certainly are important in decision making, but they must be supported by sufficient evidence. If the defendant was really guilty, there must be other indications of his involvement apart from transportation. There must be evidence that he was a distributor who knew the fact of the illegality of the product. It appears that the amount of trade was significant, and clearly it must bring significant amount of profits. Why was there no evidence considered in relation to the wealth of the defendant? Further, the case appeared to be incomplete, since it did not identify the whole chain of the illegal trade starting from the producers of the cigarettes. Apparently, the owner of the shop in this case was not prosecuted, probably on the ground that he did not know that the goods were illegal. (The other adults convicted in this case were from the transportation team. The owner could not be the involved teenager, since the transaction with the accused on his behave was done by his grown up son.) Why was there no evidence given by the owner of the shop and heard in relation to the involvement of the defendant since it was not the first transaction when the arrest took place? There are many unanswered questions in this case.