As this island is a magnet for tourism, trade and investment, the application of the law and the legal process in Phuket are always a hot topic, for foreign nationals as well as Thais.
Given the multinational and multicultural nature of Phuket’s population, not to mention the vast range of first languages and the wide disparity of income levels, it is indeed fortunate that the legal system here is based on international standards. Everybody should be able to have confidence that they will be treated fairly by, and be protected by, the relevant branch of the Phuket courts – whether civil, commercial or criminal.
Looking at the criminal justice system in Phuket, it may surprise foreign nationals to learn that anyone can go to the police and make an accusation that a crime has been committed against them. Once the police have accepted and documented the accusation, they are obliged to investigate / collect evidence and submit the case to the public prosecutor.
Perhaps even more surprising, the injured party has the right to gather all the evidence themselves and take their case direct to the court, bypassing the police and the public prosecutor.
In both cases, the public prosecutor and the injured party will assess the evidence and decide whether to go ahead with a criminal prosecution. When it comes to criminal offences such as cheating, fraud or criminal misappropriation, the prosecutor many recommend that the accuser and accused meet to try and reach a compromise before trial. Even once a trial has commenced, the judge may – having listened to some of the evidence – try to get the parties to agree to a compromise to save everyone time.
Assuming a prosecution is on the cards, and depending on the circumstances, the accused may remain free during this process, attending the public prosecutor’s office as required to progress the case. However, once a court date is set for the first hearing, the accused must present him or herself to the police and be taken to court in their custody, where they will be placed in a holding cell beneath the court while they wait to be called to hear the case against them.
In an alternative scenario, where the accused has been arrested by the police, he or she may be locked up in police cells until the trial begins, or may be released on police bail.
Once brought before the court, and if the case is adjourned to a subsequent hearing, the accused may apply for bail and, if it is granted, go about his or her life in the usual way, attending court when required. If, however, the accused is a foreign national, it is likely that his or her passport will have been confiscated pending the outcome of the trial.
Note that, following the end of the first day’s court proceedings, and while waiting for bail to be processed and paid, the accused may ‘enjoy’ another few hours’ stay in the cells beneath the courthouse – something that can be avoided if you retain a lawyer who is familiar with the system and knows how to organise these things.
As is the case in most criminal legal systems, the burden of proof rests with the prosecution – but do not expect a trial by jury; this does not exist in Thailand, where you’ll find yourself facing a single judge who may directly participate in questioning witnesses.
It is worth noting that, should an individual’s criminal allegations prove to be false and malicious in their intent, the accuser may find him or herself facing a penalty for bringing a false action.
Criminal court proceedings in Phuket will usually take no more than one year. Persons convicted of a criminal offence may appeal to the Appeal Court and ultimately to the Supreme Court; judgement in both these courts should take no more than six months and bail maybe applied for pending the outcome of these procedures.
By Akenarin Thongplod (Lawyer & Notary)
Ake & Associates
Ake & Associates is a law firm with in-depth experience in both civil and criminal law and regularly handles real estate transactions on behalf of Thai and foreign clients who want an experienced local law firm.