General Principles of Thai Criminal Law Alessandro Stasi

General Principles of Thai Criminal Law Alessandro Stasi Mahidol University International College Nakhonpathom, Thailand

ISBN 978-981-15-8707-8 ISBN 978-981-15-8708-5 (eBook) https://doi.org/10.1007/978-981-15-8708-5

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This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore Preface

This book is not intended to be a complete and analytical treatise of the Thai legal system, but rather to present what its title says: the general principles of Thai criminal law. Its primary purpose is to introduce and explain the essential characteristics of the Thai criminal law to an Anglophone audience, answering the fundamental question: what is a crime under Thai law? Criminal law (in Thai got maai aa-yaa) is an intriguing area of great practical signifcance, performing a crucial role in the protection of the rights of individuals within the justice system. Even individuals who have no professional interest in legal education often realize the overall role and importance of criminal law to their personal life. In fact, our society is not yet so developed that an individual can be certain that adopting the wisest and most reasonable conduct will be suffcient to avoid dealing with criminal matters. General Principles of Thai Criminal Law is designed as a traditional textbook of criminal law which provides a succinct focused coverage of all the relevant aspects of Thai laws, judgments, and legal reforms in a manageable, concise, and reader- friendly manner. It presents the salient features of the Thai criminal law to a wide readership of academics, researchers, students, and practitioners concerned with Thai law. Each of the 12 chapters in this book is derived from a lecture given at the Ramkhamhaeng University and aims to present a detailed analysis of a particular area of Thai criminal law. To some extent, each chapter is designed to stand alone and none require reading any other part of the book for easy understand of the topic in one sitting. The book begins with the elementary legal concepts to be learned by the reader, by defning the fundamental principles underlying the Thai criminal system and outlining its objectives. It then extensively describes the main offences under the Thai Penal Code and classifes those breaches of law that are crimes from those that are merely illegal without being criminal. The frst chapter is devoted to the analysis of the origins of the Thai legal system. It explores the history of the codifcation of the Penal Code and examines some of the major perspectives and defnitions of crime. The second chapter investigates, discusses, and problematizes the nature, purpose, and function of the criminal law. This chapter is guided by the following

v vi Preface questions and issues: What is the function of criminal law in society? Must a penalty be proportionate to the gravity of the offence and the degree of responsibility of the offender? When do principles of justice and fairness restrict how punishment can be applied? What is the purpose of criminal punishment? The third chapter discusses the notion of imputability under Thai criminal law. More precisely, it discusses the concepts of mens rea and actus reus required in general criminal law. It also consid- ers some particular categories of crimes, usually grave ones, in which a greater degree of mens rea is necessary as well as other types of crimes, usually of a petty character, in which a lower degree of mens rea is required. The fourth chapter encompasses excusatory and justifcatory defenses to criminal liability. It discusses the fve groups of cases of exemption which in point of law exclude the presence of a guilty mind (i.e., mental illness, minority, necessity, constraint, mistake of fact, and other extenuating circumstances) and the three cases of justifcatory defenses involving no legal penalty (i.e., order of a legitimate authority, necessity, and legitimate defense). The ffth chapter of the book covers the crime of attempt in particular instances. It also analyzes impossible attempts and those instances where the wrong- ful purpose of the offender is voluntarily abandoned before the act is put in process for fnal execution. Chapter 6 focuses on the fundamental principles of criminal responsibility, concurrence, and causation. Four ways of taking part in a crime are considered: principal in the frst degree, principal in the second degree, accessory before the fact, and accessory after the fact. The seventh chapter of the book focuses on crimes against the person and more specifcally on offences causing death. It presents a lengthy treatment of murder and the two different forms of manslaughter: the so-called gaan kâat-dtà-gam doi jàyt-dtà-naa (i.e., voluntary manslaughter) and the so-called gaan kâat-dtà-gam doi bprà-màat (i.e., involuntary manslaughter). It also covers other offences related to death such as suicide, euthanasia, and abortion. Chapter 8 focuses on non-fatal offences against the person and explains how in Thailand crimes of this class have been minutely particularized by statutory enact- ment according to the varying circumstances, degree, and character of the injury inficted. The frst fve sections of this chapter will attempt to defne those crimes that are unconnected with sexual relations while section six will deal with those offences relating to sexuality. In consideration of the lèse-majesté laws which are in force in the kingdom of Thailand, Chap. 9 will only provide an overview of the most relevant legal provisions relating to the security of the kingdom rather than a complete and uniformly comprehensive disquisition on the subject. Chapters 10 and 11 cover offences against property. Chapter 10 discusses the various offences which violate rights of ownership and specifcally those groups which center round two crimes of peculiar heinousness—gaan kà-moi (i.e., theft) and gaan kà-moi sòp (i.e., snatching)—whose importance can be traced to the peculiar sacredness which the law attaches to individuals’ property. Chapter 11 deals with other crimes against property, including robbery, gang robbery, extortion, blackmail, and fraud. The con- cluding twelfth chapter of the book deals with the law of evidence. The initial overview of the obligatory presumptions of law and the discretionary presumptions of fact is followed by a discussion of the rules of evidence which are applied in Thai courts. Preface vii

Before proceeding to a discussion of the Thai criminal system, it may be useful to make some considerations regarding the genealogy of this book. Much of the material presented in this book is loosely based on the studies of Professor Courtney Stanhope Kenny. His monumental work Outlines of Criminal Law has exerted a profound infuence on the drafters of the Thai Penal Code and still constitutes today an essential reference for most scholars, students, and researcher focusing on the Thai criminal system. This choice has been dictated not only by the various points of contact between English law and the law of Thailand, but also by the pressing need to provide students with a coherent, readable, and accessible introduction to criminal law in English language. Inspired by the engagement of my students and driven by the responsibility to bring more clarity to this area of Thai law, I started a research project which took almost 4 years to complete, undergoing various improvements, and consuming liter- ally thousands of hours of work. This initial project has fnally grown into the frst, and so far the only, book-length work in the English language about Thai criminal law. The present book will undoubtedly provide a reference for all those who want, now and in the future, to gain some knowledge in this feld. During the long period of conception, development, and writing of this book, I have received constructive suggestions from a number of friends, colleagues, and legal practitioners. These include, in particular, Alexei Blanc, Nazim Foury, Jing- woean Chuang, Parisa Mahakantha, Pariya Patchimnan, Phatcharaporn Chokbunsuwan, Somkit Keskowit, Suppaluk Jakkrod, Nattakorn Punkun, Jompon Pattapeesin, Kittapat Singh, Setthavut Jindachotsiri, Wuttipatra Sribusdee, Peeranut Tankongchamruskul, and Chanakan Sapniti. I am also grateful to Professor Roman Meinhold, Professor Voraphat Diloksampan, Professor David Tan, Professor Sasiwimon Santhidej, and Professor Teetuch Suanmalee for meticulously reviewing the entire manuscript and providing valuable comments; Philip Sweeney, Chatchaya Sukkua, Korpong Chimplee, Ravipont Mathanukraw, Siravich Wuttiwongsaree, Sophonvich Sae-Tae, and Phiraya Aeowamornrut for their encouragement, criti- cism, and useful discussions; Tidarat Jittasinnawa, Somboon Supphatada, Krittinon Choavaratana, and Alice Jindamanee for translating the original Thai version of the Penal Code; and Kamolporn Vimoluksorn and Pajaree Aunhabundit for obtaining references. Thanks are extended to Thammasat University Research Institute for providing access to their collections, Mahidol University International College for giving me the means to conduct my research, and the many students, past and present, who have contributed to the work. From a personal level, I would like to thank Alhena and Davide who have helped and inspired me in many different ways. While all of these persons and institutions helped shape the book, all omissions, errors, and inaccuracies are my responsibility alone. Every effort has been made to ensure that the information contained in this book is accurate at the time of publication.

Nakhonpathom, Thailand Alessandro Stasi

Contents

1 Basic Concepts and Principles of Criminal Law �� 1 1.1 History and Function of Thai Criminal Law �� 2 1.2 Criminal Law, Public Law, and the Expression of State Sovereignty �� 3 1.3 The Dynamics of Criminal Law and Morality �� 5 1.4 Intersection and Coordination Between Criminal Law and Civil Law �� 6 1.5 Public Wrongs, Private Actions, and Civil Lawsuits �� 9 1.6 Limits of Criminal Jurisdiction in Regard to Time, Person, and Place �� 11 References �� 14 2 The Function of Criminal Law in Society �� 15 2.1 The Purpose of Criminal Punishment �� 15 2.2 The Philosophy and Politics of Punishment and Sentencing �� 17 2.3 Constructing Criminal Liability �� 19 2.4 Yee-Tok and the Proportion Between Crime and Punishment �� 20 References �� 23 3 Actus Reus and Mens Rea �� 25 3.1 The Notion of Imputability in Criminal Law �� 25 3.2 The Concept of Mens Rea Under Thai Law �� 27 3.3 Special Intention �� 28 References �� 30 4 Excusatory and Justificatory Defenses �� 31 4.1 Hàyt Yók Wáyn Tôht �� 31 4.2 Kwaam Chôp Dûay Gòt Măai �� 39 4.3 Intoxication �� 41 4.4 Liability of Legal Persons �� 43 References �� 47

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5 Attempts �� 49 5.1 Defnition of Attempt �� 49 5.2 Impossible Attempts �� 50 5.3 Withdrawal from an Attempt �� 51 References �� 52 6 Secondary Party Liability �� 53 6.1 Principal in the First Degree �� 54 6.2 Principal in the Second Degree �� 54 6.3 Accessory Before the Fact �� 56 6.4 Accessory After the Fact �� 58 References �� 59 7 Offenses Causing Death �� 61 7.1 Murder �� 61 7.2 Voluntary Manslaughter �� 65 7.3 Involuntary Manslaughter �� 68 7.4 Beginning and End of Life for the Purposes of Homicide Offenses �� 71 7.5 Suicide, Euthanasia, and Abortion �� 72 References �� 74 8 Nonfatal Offenses Against the Person �� 75 8.1 Voluntary Bodily Harm �� 75 8.2 Grievous Bodily Harm �� 78 8.3 Involuntary Bodily Harm �� 79 8.4 Justifable Violence �� 81 8.5 Offenses Against Liberty and Reputation �� 84 8.6 Offenses Relating to Sexuality �� 90 References �� 93 9 Offenses Relating to the Security of the Kingdom �� 95 9.1 Constitutional Provisions �� 95 9.2 Penal Code Provisions �� 98 Reference �� 102 10 Offense of Theft �� 103 10.1 Change of Possession �� 105 10.2 The Ownership �� 107 10.3 The Subject Matter �� 110 10.4 The Value �� 111 10.5 The Claim of Right �� 113 10.6 The Intent �� 115 10.7 Theft Between Spouses �� 118 References �� 119 Contents xi

11 Other Property Offenses �� 121 11.1 Robbery and Gang-Robbery �� 121 11.2 Extortion �� 123 11.3 Blackmail and Fraud �� 124 11.4 Restitution of Possession �� 127 References �� 130 12 Modes of Judicial Proof and Rules of Evidence �� 131 12.1 Legal Evidence, Presumptions of Fact, and Presumptions of Law �� 131 12.2 The Nature of Evidence �� 135 12.3 Paara Nai Gaan Pisoot and the Role of the Public Prosecutor �� 139 12.4 Section 176 of the Penal Procedural Code and Testimonial Evidence �� 141 12.5 False Testimony and Malicious Criminal Accusations �� 142 12.6 Principles of Criminal Evidence �� 145 12.7 Payan Bok Lao Evidence and Other Exclusions �� 148 References �� 150

Index �� 153 Table of Legislation

A Act on Offences Concerning Registered Partnerships, Limited Partnerships, Limited Companies, Associations and Foundations B.E. 2499 (1956), 45 Act on the Standard of Export Goods B.E. 2503 (1959), 45 Act on the Transportation by Land B.E. 2522 (1979), 45 Act Supplementing the Constitution Relating to the Prevention and Suppression of Corruption B.E. 2542 (1999), 45 Anti-Corruption Act B.E. 2551 (2008), 45 Anti-Money Laundering Act B.E. 2542 (1999), 44

C Civil and Commercial Code, 7, 9, 112 Section 15, paragraph 1, 71 Section 48, 134 Section 61, paragraph 1, 135 Section 61, paragraph 2, 135 Section 63, paragraph 1, 135 Section 66, 44 Section 67, 44 Section 70, 44 Section 70, paragraph 2, 46 Section 143, 127 Section 237, 126 Section 420, 124 Section 423, 87 Section 425, 56, 57 Section 429, 30 Section 1317, 128 Section 1318, 108 Section 1501, 135 Section 1711, 108 Commercial Banking Act B.E. 2505 (1962), 44 Consumer Protection Act B.E. 2522 (1979), 45 Copyright Act B.E. 2537 (1994), 45 Cosmetic Act B.E. 2558 (2015), 45

xiii xiv Table of Legislation

D Drug Act B.E. 2510 (1967), 45

F Factory Act B.E. 2512 (1969), 45 Food Act B.E. 2522 (1979), 45

H The Hague Convention on the Civil Aspects of International Child Abduction B.E. 2523 (1980), 86

I Immigration Act B.E. 2493 (1950), 45 International Civil Cooperation on the Breach of Rights of Custody Act B.E. 2555 (2012), 86

L Life and Non-Life Insurance Acts B.E. 2535 (1992), 45

M Measure for Suppressing Narcotic Offenders Act B.E. 2534 (1991), 41 Medical Device Act B.E. 2551 (2008), 45 Mining Act B.E. 2461 (1918), 44

N Narcotic Addict Rehabilitation Act B.E. 2545 (2002), 41 National Health Act B.E. 2550 (2007), 73

O Offences Arising from the Use of Check Act B.E. 2534 (1991), 112

P Palace Law on Succession B.E. 2467 (1924), 97 Patent Act B.E. 2522 (1979), 45 Penal Code, v, vii, 3, 7, 15, 18, 26, 28, 38, 51, 53, 61, 73, 76, 83, 86, 93, 120, 121, 130 Book II, Title IX, 90 Book II, Title XI, Chapter 1, 84 Book II, Title XI, Chapter 3, 87 Section 1, 9, 16, 104, 116 Section 3, 11 Section 4, 12 Section 5, 13 Section 8, 13 Section 11, 13 Section 18, 17 Section 40, 17 Table of Legislation xv

Section 44, 18 Section 46, 18 Section 48, 18 Section 50, 18 Section 63, 34 Section 64, paragraph 2, 28, 38, 133 Section 65, paragraph 2, 32 Section 66, 41 Section 66, paragraph 2, 42 Section 67, 39 Section 68, 40 Section 69, 40 Section 71, 104, 118 Section 74, 35 Section 75, 35 Section 76, 35 Section 77, 30 Section 78, 39 Section 80, 49 Section 82, 51 Section 87, 57 Section 92, 19 Section 95, 11 Section 96, 12 Section 98, 12 Section 99, 12 Section 107, 98 Section 108, 98 Section 109, 26, 98 Section 110, 98 Section 111, 99 Section 112, 99 Section 113, 99 Section 114, 99 Section 115, 99 Section 116, 99 Section 117, 100 Section 118, 100 Section 119, 100 Section 120, 100 Section 121, 100 Section 122, 100 Section 123, 101 Section 124, 101 Section 125, 101 Section 126, 101 Section 127, 101 Section 128, 101 Section 129, 101 Section 130, 102 Section 131, 102 Section 132, 102 Section 133, 102 xvi Table of Legislation

Section 134, 102 Section 135, 102 Section 173, 145 Section 177, 143, 144 Section 178, 143 Section 180, 143 Section 214, 58 Section 218, 50 Section 236, 29 Section 237, 79 Section 240, 10 Section 264, 112, 126 Section 265, 112 Section 277, 83, 91 Section 277 bis, 90 Section 279, 91 Section 281, 91 Section 288, 62, 72 Section 289, 65 Section 290, 66, 68, 84 Section 291, 68 Section 292, 73 Section 294, 67 Section 295, 75, 76 Section 297, 78, 84 Section 298, 84 Section 299, 78 Section 300, 79 Section 301, 73 Section 303, 73 Section 304, 73 Section 306, 70 Section 307, 70 Section 311, 84 Section 312, 85 Section 313, 85 Section 317, 85 Section 319, 92 Section 326, 87 Section 328, 88 Section 329, 88 Section 330, 89 Section 332, 90 Section 334, 103, 121 Section 335 bis, 104 Section 336, 104 Section 337, 123 Section 338, 124 Section 339, 121 Section 340, 123 Section 340-bis, 122 Section 340-ter, 122 Section 341, 124 Table of Legislation xvii

Section 344, 125 Section 349, 126 Section 350, 126 Section 362, 82 Section 378, 16 Penal Procedural Code Section 17, 141 Section 31, 140 Section 36, 7 Section 45, 7 Section 176, 132, 141–142 Section 226, 136 Section 226/3, 149 Section 227, 133 Section 231, 150 Section 234, 149 Section 238, 136 Section 241, 136 Section 243, 142 Psychotropic Substance Act B.E. 2518 (1975), 41 Public Prosecution Organ and Public Prosecutors Act B.E. 2553 (2010), 20, 140

R Revenue Code B.E. 2481 (1938), 45

T Thailand Narcotics Control Act B.E. 2522 (1979), 41 Trademark Act B.E. 2534 (1991), 45

W Wildlife Preservation and Protection Act B.E. 2562 (2019), 109 About the Author

Alessandro Stasi is an assistant professor in law at Mahidol University International College (MUIC), Thailand. He has authored several books, including General Principles of Thai Private Law, Springer; Elements of Thai civil law, Brill; and Principles of Thai business law, Cengage, and academic articles in leading international journals. Prior to joining Mahidol University International College, he held academic posts at Ramkhamhaeng University and King Mongkut’s Institute of Technology Ladkrabang. Alessandro Stasi is also executive director of the law frm MILA Law International Legal Advice (mila-law.com) in Bangkok and works as a legal consultant for Opus Law (opus-law.com). He read law at the University of Naples Federico II, Italy, and subsequently obtained an LLM with merit and two PhD degrees at the University of Nice Sophia-Antipolis in France.

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