Thailand Law Journal 2011 Fall Issue 2 Volume 14

e. Asset Forfeiture

The Act incorporates the civil forfeiture principle to deal with assets related to money laundering.⁹⁶ Unlike criminal forfeiture, civil forfeiture need not be carried out as part of the criminal proceeding⁹⁷ and does not rely upon the outcome of a criminal judgment. ⁹⁸ This means that although the money launderer may be acquitted in a criminal case, the forfeiture of the money launderer's asset may nonetheless be achieved if a judge finds probable cause that certain assets at issue were involved in the commission of money laundering offences.

With respect to the burden of proof, when the prosecutor proves the offender was involved in the commission of money laundering offences, then it is presumed that the asset is related to the money laundering offences.⁹⁹ To prevail the case, the person claiming ownership of such asset must prove he obtained the asset legally or the asset is not related to the money laundering.¹⁰⁰

E. Predicate Offences under Thai Anti Money Laundering Law

            1. Legislative Development

Originally, the anti-money laundering law drafting committee specified only drug trafficking offences as predicate offences because it focused on conforming to the U.N. Drug Convention.¹⁰¹ However, while the draft act was under consideration by Parliament, another six categories of offences were added as predicate offences.¹⁰² While considering the draft Anti-Money Laundering Act, some Parliament members believed that only a limited number of material categories of offences should be included as predicate offences because they feared that enforcement officials would abuse their power.¹⁰³

When the Anti-Money Laundering Act came into effect, therefore, it had only seven categories of predicate offences. However, to comply with U.N. resolution about financing Terrorism, the Anti-Money Laundering Act was amended to add terrorism as a predicate offence.¹⁰⁴ In addition, for the purpose of solving the illegal gambling problem, the Anti-Money Laundering Act was amended to include the illegal gambling as a predicate offense.

            2. List and Coverage of Predicate Offences

At the present, the Anti-Money Laundering Act has nine categories of predicate offences. Section 3 of the Anti-Money Laundering Act pertains to the predicate offences:

(1) Offences relating to narcotics under the law on narcotics control or the law on measure for the suppression of offenders in offences relating to narcotics.

(2) Offences relating to sexuality under the Penal Code only in respect of procuring, seducing or taking away for an indecent act a woman and child for sexual gratification of others, offences of taking away a child and a minor, offences under the law on measures for the prevention and suppression of women and children trading or offences under the law on prevention and suppression of prostitution only in respect of procuring, seducing or taking away such persons for their prostitution, or offences relating to being an owner, supervisor or manager of a prostitution business or establishment or being a controller of prostitutions in a prostitution establishment.

(3) Offences relating to public fraud under the Penal Code or offences under the law on loans of a public fraud nature.

(4) Offences relating to misappropriation or fraud or exertion of an act of violence against property or dishonest conduct under the law on commercial banking, the law on the operation of finance, securities and credit foncier business or the law on securities and stock exchange committed by a manager, director or any person responsible for or interested in the operation of such financial institutions.

(5) [Offences relating to] malfeasance in office or malfeasance in judicial office under the Penal Code, offences under the law on offences of officials in State organizations or agencies or offences of malfeasance in office or dishonesty in office under other laws.

(6) Offences relating to extortion or blackmail committed by claiming an influence of secret society or criminal association under the Penal Code.

(7) Offences relating to smuggling under the customs law.¹⁰⁵

(8) Offences relating to terrorism under the Penal Code.¹⁰⁶

(9) Offences relating to gambling under the law on gambling, limited to offence relating being an organizer of gambling activity without permission and there are more than one hundred players or gamblers at one time, the total amount of money involved exceeds ten million Baht.¹⁰⁷

Because the Act defines the predicate offences in the nature of categorization, the details below will describe the list of the specific statues, which fall within each category of the predicate offences and then be used as a background to determine in the next sub-section whether the existing predicate offences of the Thai Anti-Money Laundering Act can satisfy the conventional requirement regarding the predicate offences definition.

            Categories of Predicate Offences in Section 3(1)

Offences as stipulated in (i) the Narcotic Control Act B.E. 2522 (A.D. 1 979), (ii) Act on Measures for the Suppression of Offenders in an Offences Relating to Narcotics B.E. 2534 (A.D. 1991), (iii) Act on Psychotropic Substances B.E. 2518 (A.D. 1975), and (iv) Act on controlling the use of volatile substances B.E. 2533 (A.D. 1990).¹⁰⁸

            Categories of Predicate Offences in Section 3 (2)

Offences in respect of (i) procuring, seducing or taking away for an indecent act a woman and child for sexual gratification of others, taking away a child and a minor as stipulated in sections 282 and 317-319 of the Penal Code (ii) Act on Prevention and Suppression of Trafficking in Women and Children B.E. 2540 (A.D.1997) and (iii) Act on Prevention and Suppression of Prostitution B.E. 2539 (A.D. 1995) in section 9 and 11.¹⁰⁹

            Categories of Predicate Offences in Section 3 (3)

Offences in respect of (i) public fraud as stipulated in sections 341 and 343 of the Penal Code and (ii) Emergency Decree on Loans of a Public Fraud Nature B.E. 2527 (A.D. 1984).¹¹⁰

            Categories of Predicate Offences in Section 3(4)

Offences in respect of misappropriation or fraud or exertion of an act of violence against property or dishonest conduct as stipulated in (i) Act on Commercial Banking B.E. 2505 (A.D. 1962), (ii) Act on the Operation of Finance, Securities and Credit Fonder Business B.E. 2522 (A.D.1979) and (iii) Act on Securities and Stock Exchange B.E. 2535 (A.D.1992).¹¹¹

            Categories of Predicate Offences in Section 3(5)

Offences in respect of (i) malfeasance in office and judicial office in sections 147-166 and 200-204 of the Penal Code and offences as stipulated in (ii) Act on Offences of Officials in State Organization or Agencies B.E. 2502 (A.D. 1959 and (iii) Organic Act on Counter Corruption B.E. 2542 (A.D. 1999).¹¹²

                Categories of Predicate Offences in Section 3(6)
Offences in respect of extortion committed by claiming an influence of secret society or criminal association and blackmail committed by claiming an influence of secret society or criminal association as stipulated in section 337 and 338 of the Penal Code.¹¹³

            Categories of Predicate Offences in Section 3 (7)
Offences in respect of custom evasion under the Customs Act B.E. 2476 (A.D.1923).¹¹⁴

            Categories of Predicate Offences in Section 3 (8)
Offences in respect of terrorism as stipulated in sections 135/1 -135/4 of the Penal Code.¹¹⁵

            Categories of Predicate Offences in Section 3(9)
Offences in respect of illegal gambling under the Gambling Act B.E. 2478 (A.D. 1925).