Lèse-majesté SCRIBBLES ON WALLS

Opas, a 67-year-old Thai of Chinese descendant, was arrested on 15 October 2014 for allegedly writing messages deemed defamatory to the Thai monarchy or lèse-majesté on a restroom door in a shopping mall in Bangkok.

On 20 March 2015, Bangkok Military Court made a final judgement sentencing Opas to 3 years of imprisonment but reduced to 1 year and 6 months as the defendant pleaded guilty. The sentence was due to complete on March 2016.

On 16 October 2015, Bangkok Military Court sentenced him to 3 years in prison for allegedly writing messages deemed defamatory to the Thai monarchy or lèse-majesté on another restroom door in the same shopping mall. The Court reduced the sentence to 1 year and 6 months because the defendant pleaded guilty. His imprisonment sentences are to be served consecutively, in total of 3 years for 2 scribbles on the walls.

Circumstances of the case

  • Arrest and detention Martial Law

On 15 October 2015, Opas was arrested after the security guard found the messages allegedly illegal on the restroom door on a shopping mall’s second floor. He was detained with the pen that he used to scribble. The military took Opas in custody for inquiry and questioning and detained him for 7 days under Martial Law at Crime Suppression Division (CSD). Lt. Kampha Mongputh reported to the CSD to take legal actions against Opas. At the arrest, Opas confessed that he wrote the messages as alleged.

Details that are missing from the police’s criminal charges paper include the date of arrest and that armed military officers went to search Opas’ residence, but did not find anything.

On 17 Oct 2015, the military informed Opas that the police would do the questioning, but it appeared to be a press conference instead. Lt. Col. Burin Thongpraphai, the judge advocate, distributed the defendant’s real name and the alleged messages to the press.

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The First Scribble

  • Criminal charge of first case

On 20 Oct 2015, an inquiry official of Sub-Division 1, CSD, informed the criminal charges to Opas. Then, Lt. Col. Burin brought him to the Bangkok Military Court for pre-trial detention request.

  • Pre-trial Detention

Opas’s lawyer filed a petition against the pre-trial detention and application for provisional release with title deed worths 2.5 million Baht as a bail deposit. The application also included that “the accused has never committed a criminal offence before, has a permanent residence, holds no influence nor ability to tamper with evidence, and has given useful statement in the proceeding of inquiry. Has the inquiry officer desire to make an additional inquiry or require evidence, the accused is willing to follow the order.

Further, there is a concern about Opas’ health. The accused is an elderly of 67 years old. He cannot sit or lie down on the floor because of herniated disk. The prison may not provide a proper facility to the need of the elderly. The alleged offender also has hypertension and needs regular medication. Imprisonment may deteriorate the accused’s health. The environment in prison may not facilitate his health care, and may not provide an adequate medical treatment in time if his condition relapses.

The accused appealed to the court for the provisional release order, so that the accused can fully put up a defence. Should the court see the necessity of any condition, or enquire the accused and relate evidence in corroboration to the application, the accused is willing to accept and strictly follow the condition.

However, the Court granted permission for pre-trial detention to the inquiry officer’s request, as well as the extension of pre-trial detention. The Court dismissed all of the accused’s objections to pre-trial detention requests and the bail applications. The Court claimed that ‘the case is serious and the penalty rate is high. As for the provisional release application concerning health problem, the accused has the right to immediate medical care, hence the health excuse is unreasonable. In addition, the Court had previously denied the provisional release requests and there is no additional reason to release. Therefore, the Court dismissed the application’.

On 3 December 2014, before the 5th renewal of pre-trial detention, TLHR wrote to the Commander of Bangkok Remand Prison to closely monitor for Coats’ disease, a complication from hypertension that requires special treatment by retinal vessel injection. If the complication occurs, Opas shall be delivered immediately to Chulalongkorn hospital, where there is specialist and Opas’s medical record. A delayed treatment can result in Opas’s temporary or permanent blindness. However, the Court still insisted on pre-trial detention of Opas and denied the provisional release requests.

  • Prosecution order by military prosecutor

On 9 January 2015, Opas was indicted to Bangkok Military Court by military prosecutor of violating a lèse-majesté offence.

Judgement of the first case: scribble on the first door

On 18 March 2015, Opas’ lawyers filed a motion with plea of guilty to the Court to request for consideration of a light sentence and for suspension of the punishment. The reasons given are that it was his first-time offence, and the concern over the health care as there is no specialist or equipment to examine and treat the defendant’s disease and symptom, which results in the defendant not given a proper medical treatment as provided in the International Covenant on Civil and Political Rights.

Moreover, the defendant is concerned about his wife and daughter. The wife is handling business alone; the couple used to do the business together, whereas the daughter has emotional disorder and the defendant is the only person who is able to relieve the symptom. If the head of the family is missing, economically and emotionally, the family will live a worse condition.

On 20 March 2015, the Court sat the preliminary hearing. Opas pleaded guilty. The Bangkok Military Court then made a judgement that the defendant was found guilty of defamation and insult of the King according to Article 112 of the Thai Criminal Code, and convicted him to 3 years of imprisonment. The defendant pleaded guilty and gave useful information to the trial, which the Court considered as extenuating circumstances according to Article 78 of Criminal Code to reduce the punishment by half to 1 year and 6 months in prison.

As for the request that the defendant filed for a minimum punishment and suspension of punishment, with behaviour certificate and relating documents attached, the court considered that the offence was against the King whom people highly respect, so it hurts the public’s feeling critically. No good cause is made to suspend the sentence, and the court’s verdict is of the minimum punishment. Therefore, the Court dismissed the motion for the suspension of punishment, and confiscated the pen.

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The Second Scribble

  • Criminal charge of the second case

On 18 January 2015 at 15.00 Pol.Lt.Col. Jatupoom Moodsaken, Inquiry Official Professional Level, Prawate police station, informed Opas of criminal charge of lèse-majesté by the fact that, on early October 2014, the accused dared to write a message which defames, insults or threatens the King, Queen, and Heir-Apparent on the eighth bathroom door on the first floor of the same shopping mall.

On 18 March 2015, a police officer from Prawate Police Station pressed charges against Opas, alleging that on 20 March 2014, he also wrote another lèse-majesté message on a restroom door on another floor at the same shopping mall. A military prosecutor then indicted him of the lèse-majesté offence under Article 112 of the Thai Criminal Code.

  • Prosecution order of the second case

On 7 July 2015, a military prosecutor indicted the charge against Opas to the Bangkok Military Court, alleging that Opas committed a lèse-majesté crime according to Article 112 of the Thai Criminal Code, the offence which is subject to the jurisdiction of the military court authorized by the announcement of the National Council for Peace and Order No.37/2557 Subject: Offences under Jurisdiction of the Military Court Announced on 25 May B.E. 2557 (2014).

The defendant committed the offence during the period in which the NCPO Announcement was enforced, that is, sometime in 1-15 October 2014, when Martial Law was declared nationwide. The defendant defamed and insulted the king to third party by using a pen to publicly write a message on a men bathroom door on the first floor at a shopping mall. The message slandered the King, which is a defamation and an offence against the dignity of the King, as to insult and ruin the King’s reputation, with an intention to make people lose faith and respect.

The offence occurred in Bangkok, an area under the enforcement of Martial Law.

Inquiry Official has investigated the case, and the defendant entered initial pleas of guilty during police investigation.

At this moment the defendant is convicted and serving a sentence in prison for defaming and insulting the King. The Bangkok Military court sentenced him to 1 year and 6 months, yet to complete.

For the offence that the defendant committed as indicted, the prosecutor considers to be a violation of Article 112. The prosecutor requests the court to count the defendant’s sentence in this case consecutively from the sentence of the former case ruled by the Bangkok Military Court, and to not deduct the imprisonment time that overlaps with the sentence of the former case from the sentence in this case.

Judgment of the second case: scribble on the second door

On 16 October 2015, Bangkok Military Court sentenced “Opas” to 3 years in prison for allegedly writing messages deemed defamatory to the Thai monarchy or lèse-majesté on a restroom door in a shopping mall. The Court reduced the sentence to 1 year and 6 months because the defendant pleaded guilty. The trial was held in camera and no members of public were allowed in.

The military prosecutor asked the judge to try the case behind closed door, as it was an offence against the King, and details in the trial would affect the public moral negatively. The defence lawyer objected that the trial was only to hear plea and the defendant had read the charge, so the trial should be in open court for transparency. The judges agreed with the prosecutor, and ordered all observers had to leave the courtroom.

At 09.30, the Court, a panel of three military judges, then read out the indictment to Opas after which he pleaded guilty. The military prosecutor asked the defence lawyer to remove some texts in the motion requesting for minimum sentence submitted with the plea which stated that this offence was considered as one count of two continuous actions because his two alleged actions occurred in same passage of time, committed with one single intent, and ended almost at the same time. This referred to the first prosecution against him of lèse-majesté from the same incident of writing messages on restroom doors at the same shopping mall on the same day. The prosecutor argued that such texts contradicted Opas’ own confession and if such texts were not removed, the examination of defendant’s criminal intent would be proceeded. The defendant consented to delete such part of his plea as instructed by military prosecutor. The judges then sentenced Opas to 3 years of imprisonment. Since he confessed, the sentence was reduced to 1 year and 6 months.

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Notes

In March 2015, prior to this verdict, Opas, a 67-year-old man, was found guilty of violating a lèse-majesté offence and was sentenced to 3 years in jail, reduced to 1 year and 6 months for his guilty plea, due to his action of scribbling messages on another restroom door at the same shopping. The two prosecutions against him stemmed from his actions of writing messages allegedly lèse-majesté on the same day in October 2014, in restrooms at the same shopping mall, but on different floors. The Court tried the two offences separately and punished Opas for two different distinct actions. Therefore, despite the jail sentence was reduced by half to 1 year 6 months, Opas will have to serve consecutive sentences in prison, on top of his current jail-term sentence, instead of finishing the concurrent sentences in March 2016.

TLHR has an opinion in this case that Opas’ actions might have been considered as ‘one count’ according to Article 90 of the Thai Criminal Code, in which Professor Jitti Tingsapat explained that “one count” may include one or more actions. For example, “an offence that continues and extends” consists of the following elements:

1.  Involving many actions

2.  Violating the same offence

3.  Committed continuously by the same perpetrator with the same purpose.

If the Court had agreed that both Opas’ writings meet all elements, the court could have considered the second scribble to be one count incorporated with the former case.

However, the judgments were made on two different counts and Opas has to serve a total of 3 years in prison.

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