Thailand Law Journal 2010 Spring Issue 1 Volume 13

The defence successfully challenged the evidence submitted by the prosecution. It was argued that the search warrant was issued for forged trademarks of Adidas and Nike. Even though the legality of confiscation of the illegal product was not affected, the credibility of the intelligence was undermined.  Further, it was established that the factory did not produce any jeans, and there were products with other trademarks.

There are at least two issues in this case which are relevant to moral discourse of Thai folktales. Even though it was a criminal case, no serious inquiry was carried out in relation to the personality of Mr. Somchai. It is very much unlikely that the alleged owner of 2.600 jeans left no traces of himself, even though he could take significant precautions of remaining unidentified. It would be impossible to obtain intelligence about the factory without the fact that the defendant was a lasting business partner of the producer of the jeans. It is likely that the defendant was unwilling to identify the owner. As in the folk story of A Tricky Wife,¹⁷ the unwillingness to provide evidence can be morally justified in some cases.

It is also noteworthy that neither the police nor the court seemed to be willing to press on the inquiry further. This difficulty uncovers the flaw of criminal proceedings against intellectual property violations: they have all features of private law litigation, with a passive role of courts who are unwilling to undertake the inquisitorial role of examining evidence. The courts feel more comfortable with a detached adversarial model which suits better private law dispute adjudication. The police appeared to be little motivated to get involved in this case too. That can be seen in the careless preparation of the search warrant, and lack of any desire to find Mr. Somchai. The explanation to this phenomenon can be the lack of moral blameworthiness (as opposed to legal blameworthiness) in producing and selling jeans with a forged trademark. When criminal law is divorced from morals, and crime ceases to be evil, then the police lose its steam based on their public perception as the guardians against social evil.  

The case of 80 DVD disks¹⁸

In this copyright violation case, a Thai prosecutor sued a man for an illegal attempt of selling 80 DVD disks with four movies, whose copyright owners were two American firms and one from Hong Kong. It is noteworthy that neither prosecutor nor Thai courts, as appeared from the text of the decision, inquired concerning the responsible for making those disks. A person was caught in Bangkok during daytime as bringing the disks to distribute among the public by offering to sell them by seeking commercial benefit from that act. The prosecutor asserted that the defendant knew the fact that the disks were illegal. The defendant was found in the possession of other over a thousand disks, but the police was unable to determine whether other disks were violating somebody else’s copyrights. The court’s decision relied on several articles of Thai Copyright Act1994.¹⁹ The defendant at first denied the charge but then confessed the guilt. The court of first instance sentenced him to four months of imprisonment but considering the fact of confession, reduced it to two months. No fine was imposed except that the seized disks were confiscated in favour of the copyright owners. The defendant appealed arguing that he did not have intention to commit wrongdoing and that confession was forced from him during the proceedings before court hearing. The Supreme Court rejected the appeal on the grounds that the defendant did not raise the issue of forced confession at the court of the first instance. It appears from the decision that the appeal was poorly argued. The defendant asked for a probation sentence and at the same time asserted his own innocence.

Ironically, the Supreme Court granted the request of the defendant by giving a probation sentence on the grounds that the prosecution did not submit sufficient evidence indicating the seriousness (as it is said in Thai: เรื่องร้ายแร้ง, ร้าย on its own means evil) of the offence. The court did not see much evil in a mere fact of bringing disks for sale since the defendant did not produce them. It further took into consideration the fact that the defendant had no previous conviction. However, the court decided instead of sending the defendant to a prison, to impose a heavy fine: 400.000 baht in order to terrify (Thai: ให้จำเลยเข็ดหลาบ) him not to commit crime again. It is the heaviest amount of fine possible under Thai legislation. At the same time, the Supreme Court decided to take mitigating circumstances into consideration (it did not say which one but it is likely the fact of the confession which the defendant claimed to be forced). It eventually reduced the fine to 200.000 baht.
The Supreme Court satisfied the desire of the defendant to keep his liberty by not going to prison, but at the same time imposed a very heavy fine instead. It is not clear whether there was some consideration of the personality of the offender. It is clear, however, that the court followed the philosophy of punishment as a deterrent rather than as retribution or the means of rehabilitation. Thus, Thai court follows the international trend in accepting criminal sanctions in the issue of intellectual property violations as it is expressed in TRIPS Agreement.

Article 61 of the Agreement states:²⁰ “Members shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity. In appropriate cases, remedies available shall also include the seizure, forfeiture and destruction of the infringing goods and of any materials and implements the predominant use of which has been in the commission of the offence. Members may provide for criminal procedures and penalties to be applied in other cases of infringement of intellectual property rights, in particular where they are committed wilfully and on a commercial scale.”

There is an apparent contradiction between Thai folk moral principles as they can be seen in Thai folktales on the one hand and Thai judicial practices displayed in court cases. It was asserted by the author in the research on Thai folktales and law,²¹ that Thai folk concept of punishment favours restoration of the relationship between the offender and his victim. The function of the state is to facilitate this restorative process. It is true, however, that in this case, the Supreme Court ordered that the half of fine should go to the victims. Nevertheless, there is an apparent inconsistency in the judgment. The court did not look at the actual harm caused by the offender. It acknowledged that it could not perceive significant seriousness of the offence to justify an imprisonment sanction. The only rationale for the high fine is the desire to deter. In these circumstances, giving a half of fine to the victim does not appear justifiable since it does not come from the evaluation of the actual harm. The copyright owners receive money not because they suffer specific damage, but because the court decided to terrify the offender. The folk principles of love and social harmony are clearly ignored. The principle of fear is superimposed.