- Important case
Ekkachai: seller of ABC’s news documentary CD and Wikileaks cables
Defendant
Case Status
Case Started
Complainant / Plaintiff
Table of Content
Ekkachai was accused of selling CDs contained a documentary of ABC Channel (Australiand TV) and distributing documents printed from Wikileaks. He was charged with Article 112 (Lese Majeste) and Film and Video Act for selling CDs without license.
Ekkachai argued during his trial that he has no intention of defamation or insulting but he wanted Thai people to understand how foreigners thought about their country and the content was not illegal. The Criminal Court and the Court of Appeal sentenced him under Lese Majeste law for 5 years given the reason of 'Reasonable Person' priniciple and fined him for 100,000 bath under Film and Video Act. The penalty was reduced by one third.
The Supreme Court, later, reduced the penalty to 2 years 8 months. Ekkachai is now served his prison term and released.
Defendant Background
Offense
Allegation
According to information from the Criminal Court, on 10 March 2011, Mr Ekkachai sold video discs (CDs) without a license, which showed images and sounds, and messages with images and moving pictures in public view, which defamed, insulted and threatened the King, the Queen and the Heir Apparent.
Circumstance of Arrest
Trial Observation
Black Case
Court
Additional Info
Reference
[1] The summary of the verdict was translated by Pipob Udomittipong
Reference:
- Criminal Court (Accessed 7 April 20120
- Discussion board of กลุ่มสื่อประชาชน (Thai Free News) (Accessed 27 June 2012
- อัยการยื่นฟ้องหนุ่มขายซีดี-วิกิลีกส์คดีหมิ่นสถาบัน ศาลนัดตรวจหลักฐาน 11 ก.ค. (Public prosecutor files charge against CD-Wkileaks seller under Lèse Majesté Law. Court sets hearing for 11 July), Prachathai, 27 June 2012. Criminal Court (Accessed 7 April 2012)
11 March 2011: Ekkachai was arrested at Sanam Luang.
The Court of Lower Instance schedules to read verdict on the case against Mr. Ekkachai Hongkangwan, seller of CD containing a news documentary produced by Australian Broadcasting Corporation (ABC) and Wikileaks cables. The Court found the content of the CD defamatory and offensive to the Crown Prince and Her Majesty the Queen. The accused in this case sold the CDs during a rally organized by the Red Siam Group to campaign for Mr. Surachai Sae Dan, who was facing lèse majesté charge. The Court was convinced that by selling the CD to the demonstrators, Mr. Ekkachai wanted them to believe in its content. Even though the accused said he did not find the content convey any insult or slight against either the Queen or the Crown Prince, but the Court maintained that the person who could best assess it must be a person of high morals, not the accused himself. Thus, the Court found Mr. Ekkachai guilty on Article 112 of the Penal Code and sentenced him to five years in jail. And on selling VCD without license, he was fined 100,000 baht. Given benefit from his presentation to the Court, the punishment shall be reduced by one thirds to three years and four months in jail and a fine of 66,666.66 baht.
On selling VCDs without license, it was heard by the Court that the accused sold VCDs without permission. The accused presented to the Court that before he sold his VCDs at the rally, a number of vendors in the same event had sold VCDs without any license to the Red Shirt Demonstrators, and thus, the accused simply followed that they had done. But since the accused failed to come forward with any evidence to prove that he was authorised to sell the VCDs, the Court did not find his presentation satisfactory.
In terms of the violation of Penal Code’s Article 112, the content, both pictures and text, had to be reviewed to determine if they might have caused damage to the reputation and made the royalties despicable or not. And the fact that the monarchy is highly revered in the heart of Thai people had to be taken into account. Article 2 of the 2007 Constitution stipulates that Thailand adopts a democratic form of government with the King as Head of the State; while Article 8 states that the King shall be enthroned in a position of revered worship and shall not be violated. Article 70 cites that every person shall have a duty to uphold the Nation, religions, the King, and the democratic regime of government with the King as Head of the State. And Article 77 provides that the State shall protect and uphold the monarchy. According to both the constitutional provisions and Article from the Penal Code, it is obvious that His Majesty the King should be held revered as Head of the Nation. He warrants reverence and is inviolable. It is prohibited for any person to violate or exercise one’s rights and liberties to act against His Majesty in whatsoever way. Both the state and people are obliged to protect the monarchy making it last forever with the nation. The existence of the monarchy shall not only be guaranteed by in the letter of law, but even in the feeling of Thai people toward the institution.
From testimonies of three prosecution witnesses, it can be concluded that the content in the VCD and Wikileaks cables is defamatory and offensive to the Crown Prince, an Heir-apparent, accusing him of inappropriate behaviour unfit for his title as the Heir-apparent. In addition, it further accused that Her Majesty the Queen was responsible for the 2006 coup and supported the demonstrations of the People Alliance for Democracy (PAD). It specifically insulted and damaged reputation of both the Queen and the Crown Prince and thus was an offence against the Queen and the Crown Prince.
In addition, based on the presentation of prosecution witnesses, the accused sold the VCD and Wikileaks documents during the rally of the Red Siam Group during which speeches were made about Mr. Surachai Sae Dan who was already charged for defaming the King. It indicated the intent of the accused to persuade the demonstrators to believe in the content of the CD.
The accused admitted to making the CD and documents himself by downloading the content from internet During the trial, the accused admitted to coming across the news for the first time in internet. And as the content intends to defame, insult, or threaten the King, it even affirmed the fact that prior to making more copies of the CD for sale, the accused must have known well that the content was defamatory, insulting, or threatening to the Queen and the Crown Prince.
The accused presented to the Court that content in the VCD was produced by ABC and was downloaded from the internet. It was not produced by domestic TV network. As for the Wikileaks cables, the accused said he read it and found it credible making him grasp views of foreigners toward Thailand. He did not find it defamatory or offensive to either the Queen or the Crown Prince. But such assessment has to be made by people with high morals, not based on the understanding of the accused who produced and sold the VCD.
Thus, the Court found the accused violate the Penal Code’s Article 112 and the Film Act B.E. 2551 (2008)’s Article 54(1). He has committed several distinct and different offences and the Court inflicted upon the offender the punishment prescribed for each offence as per the Penal Code’s Article 91 including five years in jail for the offence regarding the insult, defamation and threatening of the Heir-apparent, and a fine of 100,000 baht for conducting video business without license. Since the presentation of the accused was found to have been useful during the trial, his punishment shall be reduced by one thirds and the punishment for the insult, defamation and threatening of the Heir-apparent shall be reduced to three years and four months and the fine for conducting video business without license to 66,666.66 baht and the evidence shall be forfeited.
After the verdict was read, Mr. Ekkachai’s attorney applied for bail while pending the trial in the Appeals Court. About 19.30, Mr. Ekkachai’s father was informed by the Court of Lower Instance that the motion for his son’s temporary release was transferred to the Appeals Court. He was told to wait for the decision from the Appeals Court, which should be made known within three working days. Currently, Mr. Ekkachai is being held in custody at the Bangkok Remand Prison.
Verdict
A summary of the verdict by the Court of First Instance
In this case, the Court ruled that the accused has committed an offence as per the Penal Code’s Article 112 for defaming, insulting or threatening the Queen and the Hier Apparent and sentenced him to five years and also found him guilty as to the Film and Video Act B.E. 2551 (2008)’s Articles 54 first paragraph and 82 for operating a business to sell vidoe without permission. For this, he is to be fined one hundred thousand baht. Since the accused has given evidence useful for the trial, his sentence shall be reduced by one third to three years and four months and a fine of 66,666 baht.
A summary of the verdict by the Appeals Court
The Appeals Court ruled that that the Lower Court had found the accused guilty of the Film and Video Act B.E. 2551 (2008)’s Articles 54 first paragraph and 82 was incorrect. The Court, however, found the accused guilty as per the Film and Video Act B.E. 2551 (2008)’s Articles 38 first paragraph and 79. Apart from this correction, the rest shall remain identical to the verdict of the Lower Court and the accused shall be punsihed as sentenced by the Lower Court.
A summary of the verdict by the Supreme Court
The Supreme Court ruled that the imprisonment of five years, reduced by one third to three years and four months as per the Penal Code’s Article 112 and as sentenced by the Appeals Court, was too severe. The Court revised the sentencing to four years, reduced by one third to two years and eight months. As for the fine according to the Film Act, it remained the same at 66,666 baht.