The Royal Thai Police (the police) is the main investigating authority empowered by the Criminal Procedure Code to conduct an investigation on criminal cases. However, in certain cases, the Department of Special Investigation (DSI), often referred to as the ‘Thai FBI', is empowered to conduct investigations on ‘special cases' as prescribed by the Special Case Investigation Act B.E. 2547 (2004), which include certain cases under the Revenue Code, Customs Law, Excise Law, Foreign Business Act, Computer Crime Act, Board of Investment Commission Act, Copyright Act, Patent Act and the Trade Competition Act.
The police and DSI have similar investigatory powers, although the DSI has additional powers in certain areas. In exercising their powers, both entities are subject to the Criminal Procedure Code and the protections provided to alleged offenders under its provisions.
Specific legislation may also empower governmental authorities to investigate matters under their supervision. For example, the new Customs Act B.E. 2560 (2017) (the Customs Act) empowers the Customs Department to conduct searches and seizures; the Foreign Business Act B.E. 2542 (1999) (FBA) empowers officials of the Ministry of Commerce to investigate by issuing an inquiry letter or summoning a person to give oral testimony; and the Organic Act on Counter Corruption B.E. 2542 (1999) empowers the National Anti-Corruption Commission (NACC) to investigate allegations that a political office holder or a government official is unusually wealthy, corrupt or guilty of malfeasance in office.
In practice, businesses generally cooperate with governmental authority investigations in order to avoid more excessive measures or future inspections. It is also the case that Thai laws generally provide penalties for failure to cooperate with government requests or to facilitate the conduct of investigations. Nonetheless, if a business considers that the measures taken by the governmental authority are unreasonable or unlawful, it may take an adversarial stance against the authority. In addition, businesses may reserve the right to challenge the inspectors' authority to take certain documents on the grounds of either relevance under the terms of the warrant or authority or, to a lesser extent, legal privilege (for documents held by lawyers).
Even though it is unclear the extent to which political agendas or domestic priorities have an impact on investigations, governmental authorities often perform in accordance with the policies of the government. For example, in February 2015, the European Union put Thailand on formal notice for not taking sufficient measures to tackle illegal, unreported and unregulated (IUU) fishing, making the elimination of IUU fishing a priority issue. Therefore, the government has requested that the relevant authorities (the Marine Police Division, the Royal Thai Navy and the Customs Department) give it their full cooperation in supporting the implementation of the IUU fishing elimination plan formulated by the Ministry of Agriculture and Cooperatives. This is a case in point of how political agendas or domestic priorities affect governmental authorities and any resulting investigations in Thailand.
Thai laws generally do not include a self-reporting requirement in the event of wrongdoing. It is also generally the case that self-reporting does not reduce applicable penalties.
Individual regulators may introduce their own self-reporting mechanism, for example, the voluntary audit programme (VAP) initiated by the Customs Department. The VAP is a self-reporting or self-review programme initiated to foster good relationships between the Customs Department and the business sector, by allowing businesses to pay deficit duty and the Customs Department to consider waiving penalties and surcharges. While the VAP is not supported by a specific legislative provision, case law supports the potential waiver of penalties in the event the plaintiff has provided documentation and evidence to the post-audit officer that indicates no intent to evade tax. The key limiting factor for the use of the VAP is that it cannot be utilised where the Customs Department views there was an intent to evade tax.
The existence of settlement programmes may encourage self-reporting, particularly as a settlement would typically indemnify the offender against any further prosecution on account of such offence and may also provide a significant reduction in penalties. For example, Section 256 of the new Customs Act provides a mechanism for the settlement of alleged offences upon the payment by the alleged offender of the amount as negotiated and agreed between the alleged offender and the Customs Department. The settlement amount represents a substantial reduction of the total fines payable in the event of a successful prosecution of the offence. Leniency programmes are currently not well developed under Thai law.
ii Internal investigations
Thai businesses may conduct internal investigations as they deem appropriate and there is no requirement to share the results of an internal investigation with any government body.
The Labour Protection Act B.E. 2541 (1998) provides that, during the investigation of an offence allegedly committed by the accused employee, the employer is not permitted to suspend an employee from work unless there are work rules or an employment agreement specifying that the employer has the right to do so. If there is such language in the work rules or employment agreement, the employer shall issue a written order of suspension to the accused employee stating the offence allegedly committed and a suspension period not exceeding seven days. The employer shall pay the employee not less than 50 per cent of the working day wages received by the employee prior to the suspension. If it appears that the employee is not guilty, the employer shall pay wages to the employee equivalent to the wages of a working day from the date of suspension. There is no law requiring that the employer provide the employee with legal representation during the investigation.
The investigations are typically conducted by internal counsel with support from external counsel in certain situations, for example, where the case involves violations of law or regulations. Where a lawyer has been retained for the purpose of the internal investigation, the confidential information that the lawyer received from or provided to the client in the internal investigation shall not be disclosed. The disclosure by a lawyer of such confidential information of a client may be a violation of Section 323 of the Criminal Code.
Thailand does not have a specific law on whistle-blower protection dealing with management within a private organisation and, as such, whistle-blower reports of potential illegal conduct are rarely submitted to government authorities.
Legal protection for witnesses is prescribed by the Witness Protection Act, in which the witnesses and relatives in criminal proceeding shall receive special protection measures in respect of cases related to offences under the laws on narcotics, money laundering, anti-corruption, customs, etc.
In relation to the incentives programme for whistle blowers, only specific legislation may empower governmental authorities to grant rewards to public participation in crime prevention. For example, Section 255 of the new Customs Act empowers the Director-General of the Customs Department to order the payment of money as bribe and reward to customs officials and third-party whistle-blowers for reporting under any offences thereof. Another example is that the Office of the Narcotics Control Board is empowered to grant rewards to informants who give information in drug cases.
i Corporate liability
As the concept of piercing the corporate veil is not explicitly provided for by law, shareholders of a limited company or partners in a limited partnership have liability up to the amount of the unpaid value of shares or capital invested in the company or the partnership, as the case may be. Under Thai law, a juristic person (i.e., an entity recognised by law, such as a company or partnership) may be subject to both civil and criminal liability.
With regard to civil liability under the tort regime, to consider whether a juristic person is liable for the conduct of its employees, the Civil and Commercial Code (CCC) provides that an employer is vicariously responsible for its employee if the employee's action is attributable to his or her employment. Vicarious liability can be established only for the relationship between an employer and an employee under an employment agreement with remuneration. Therefore, if such link could be established, a juristic person employer will almost always be responsible for the actions of its employee, unless it can prove that such action is not attributable to the course of employment. The court usually interprets ‘course of work' in an expansive manner to include, for instance, conduct that does not relate to work but occurs during working hours, or does not follow directions given by the employers but the ultimate objective of the action is for the benefit of the employers. This interpretation places a high burden on a company. Another key point to consider is that, even though the employee's conduct is not attributable to the ‘course of work' of an employer, a company may still be held liable under the principle of ‘agency by estoppel' enshrined in the CCC. For example, the company may be held responsible for the conduct of the employee that is not considered as the ‘course of work' of an employer if the company explicitly or implicitly accepted such conduct.
At present, there are no general legislative provisions that define the principles governing the criminal liability of a juristic person. As a juristic person is represented and managed by a director or directors who are elected by the shareholders, where a company has conducted an unlawful act, it can only be subjected to a particular penalty (e.g., a criminal fine) due to its nature. Certain laws explicitly impose criminal liability on a juristic person if it breaches its duties. For example, the Securities and Exchange Act B.E. 2535 (1992) imposes a fine on any company that violates the regulations issued by the Securities and Exchange Commission.
In an exceptional circumstance, the Supreme Court has ruled that a company is criminally responsible for manslaughter. In this case, the court held that the juristic person and its representative acted in gross negligence for failure to comply with the ministerial regulations. Although its employee was the person driving the gas tanker, which was involved in an accident and caused a gas leakage and explosion resulting in high casualties, the court decided that such action arose due to gross negligence. The Court also applied a standard of care higher than a reasonable man test. This case resembles corporate manslaughter liability under English law.
There is no specific legislation prohibiting a company and an individual from being represented by the same counsel. In practice, if there is a risk that the interest of the individual and the interests of the company may conflict, it is advisable that separate counsel be appointed.
In Thailand, the range of sanctions available against business include fines (both administrative and criminal), confiscation of property and revocation of licences, based on the offences that the business commit.
Recent legal amendments have clarified that, where an offender is a juristic person, if the offence of such juristic person derives from an order or an action of a director or a manager or any person who is responsible for the operations of the said juristic person, or where the said person has the duty to issue an order or to take an action but failed to do so and thereby caused the said juristic person to have committed the offence, the said person shall be liable for the punishment provided for such offence as well.
Apart from criminal penalties, a juristic person may be subject to administrative fines if it violates or does not comply with an administrative order imposed by an administrative agency. The general regulation governing administrative fines is the Administrative Procedure Act B.E. 2539 (1996), which determines the maximum administrative fine of not exceeding 20,000 baht per day unless a specific governing regulation stipulates otherwise.
In addition, the governmental authority that grants a licence to the juristic person to conduct a specific type of business may exercise its power to suspend or revoke the licence if the licensee does not comply with the law or the conditions prescribed in such licence. The result of this can be damaging and can potentially lead to a further criminal offence if the business continues to operate without a proper licence. Also, revocation of the licence may lead to debarment as it will disqualify a person from applying for a new licence in the future.
iii Compliance programmes
Recent developments in this area indicate a greater recognition of the importance of compliance programmes as a defence to or as a mitigating circumstance for criminal liability; nevertheless, the area remains largely untested.
In mid-2015, amendments to the Organic Act on Counter Corruption introduced new language in Section 123/5 imposing liability on a juristic person where the offender has committed an offence in the interests of such juristic person. Interestingly, this provision introduced into law the defence of having ‘appropriate internal control measures to prevent the commission of the offence', which is a significant advance towards recognising the importance of internal corporate compliance measures. There is as yet no indication as to how the defence will be interpreted by the courts. While there is no specific requirement prescribed by law, guidelines issued by the NACC recommend that companies should internally adopt measures to prevent bribery from the top, risk assessment, anti-bribery programmes for business partners and associated subsidiaries, adequate record systems, support for the reporting of wrongdoing, and periodic evaluation of anti-bribery assessments.
iv Prosecution of individuals
Thai criminal law recognises the concept of ‘principals', ‘instigators' and ‘supporters' of an offence. Under the provisions of the Criminal Code, two or more persons may be subject to the same penalty for an offence, while a supporter would be liable for two-thirds of the penalty.
For example, a private-sector entity or individual may become involved in an NACC investigation and any subsequent proceedings if the private party has allegedly participated in or aided in the commission of such offence, either as an instigator or supporter of the alleged violation and accused official, including where such person has provided some property or benefit to the political office holders or officials to induce them to act contrary to their duties. A recent example where private entities or individuals were investigated and sued as co-defendants, together with the accused officials, was the ‘fire truck scandal', which involved the procurement of fire-fighting vehicles and equipment by the Bangkok Metropolitan Administration from a consortium. Another example is the Rubber Seed case, where three private companies and a number of their respective directors, as well as those authorised persons who signed key documentation, were sued as ‘supporters' of the commission of the offence.
An employer is not required to terminate an employee convicted of a criminal offence; however, if such employee is sentenced to imprisonment by a final court judgment, the employer may terminate employment without the requirement to pay statutory severance to the employee. It is generally the case that an employer may terminate an employee, provided that all required statutory severance payments and notice provisions have been met, although the employee may nevertheless choose to allege that the dismissal was unfair and seek the payment of additional compensation. There are only limited circumstances in which an employer can terminate the employment without making the required severance payment to the employee.
i Extraterritorial jurisdiction
According to the Criminal Code, Thailand recognises the territorial principle on a criminal offence that is either partially or wholly committed in Thailand, or has consequences in Thailand. Thailand has adopted the passive personality principle in 13 categories of offences aiming to protect public security, economic security, personal integrity and property.
In addition, Thailand also exercises the universal jurisdiction principle regarding crimes committed outside Thailand and specific offences that are considered threats to national and international security, or known as transnational crimes, such as human trafficking, terrorism financing, piracy, sexual offences, as well as corruption of government officials and money laundering as prescribed in the Criminal Code and certain specific legislation. For example, Section 6 of the Anti-Money Laundering Act provides the universal jurisdiction principle over any person who has committed a money laundering offence whether inside or outside Thailand.
With respect to investigative powers, specific investigation authorities, such as the NACC and the Anti-Money Laundering Board, are empowered by their respective legislation to conduct investigations on offences committed outside Thailand.
ii International cooperation
Thailand cooperates with other countries according to both informal cooperation via diplomatic channels and formal cooperation as prescribed in international agreements or treaties. Thailand has entered into international agreements with certain countries on both civil and criminal matters.
With respect to civil matters, the Civil Procedure Code provides that a Thai court may request a foreign court to conduct civil proceedings on its behalf. At present, Thailand has entered into an agreement on judicial cooperation with six countries.
With respect to criminal matters, the Act on Mutual Assistance in Criminal Matters B.E. 2535 (1992) provides that the government of Thailand, as coordinated by the Attorney-General's Office, may request assistance from foreign states, and vice versa, regarding investigation, inquiry, prosecution, forfeiture of property and other proceedings relating to the criminal matters. At present, Thailand has entered into mutual legal assistance treaties with seven countries. The DSI recently utilised a mutual legal assistance treaty with the United States by requesting the investigation of a witness who resides in the United States. In this case, the US Department of Justice instructed the FBI to obtain testimony as per the DSI's request. The testimony obtained from the FBI's investigation was later admitted in a Thai court.
In addition, Thailand is a member of Interpol, which connects it to the global police information system, enabling the exchange of information on criminal conduct; however, the obtained information would be subject to the investigation principle prescribed by the Criminal Procedure Code that the evidence derived by any unlawful means shall not be admitted in the court. Thailand commonly cooperates and coordinates with other countries in the areas of trafficking in persons and people smuggling; child exploitation; drug trafficking; cybercrime; economic crime; terrorism; arms smuggling; and intellectual property crime. For example, the co-investigation between Interpol and Indonesia, Malaysia, Myanmar, Philippines, Singapore, Thailand, and Vietnam on cybercrime. Another example is the strengthening of border security networks to prevent the movement of criminals and terror suspects within ASEAN. In addition, Thailand has joined the Global Forum on Transparency and Exchange of Information for Tax Purpose to reach international standard of exchange of information to combat tax avoidance and tax evasion.
At present, Thailand has entered into 11 extradition treaties covering 15 countries. According to the Treaty on Extradition, the contracting states are not obliged to extradite their own citizens to other states. Grounds of refusal are statute of limitations, lack of the same criminal offences, political offences, violation of right to a fair trial, insufficiency of evidence and double jeopardy.
iii Local law considerations
In the case where multiple jurisdictions are implicated in an investigation, the local law in Thailand that may need to be taken into consideration is the data privacy law. Even though Thailand has not yet enacted a general law on data privacy, the concept of personal data protection can be found in various legislation, such as the Telecommunications Business Act B.E. 2553 (2010), the Financial Institution Business Act B.E. 2551 (2008), and the Lawyers Council Regulation on Lawyer Conduct B.E. 2529 (1986). The scope of data privacy protection depends on the relevant provisions prescribed under specific legislation.
For example, the Financial Institution Business Act B.E. 2551 (2008) provides that any business information obtained from a financial institution, such as a commercial banking business, is to be kept confidential except for the case of disclosure for investigation or proceedings conducted by the government authority. Additionally, Clause 11 of the Lawyers Council Regulation on Lawyer Conduct B.E. 2529 (1986) provides that lawyers with certified licences shall not disclose any confidential information of the client that has come into their possession in the course of performance of their duties as a lawyer unless approval has been obtained by the client or due to a court order. Therefore, even though the concept of data privacy has been acknowledged in Thailand, the disclosure of such information for the purposes of investigation or court trial is an exception. However, the exception provided under these laws is not clear as to what extent an investigation conducted by an international investigation body or the investigation agency of other jurisdictions shall also be covered. In our view, international cooperation either through diplomatic channels or international agreements would be an option for a multiple-jurisdiction investigation.
V YEAR IN REVIEW
As reported in the 2016 Corruption Perceptions Index by Transparency International, Thailand is ranked at 101 out of 176 countries, which indicates that corruption remains an important issue.
In recent years, there have been some interesting cases relating to the investigation of alleged corruption in Thailand, for example, the Rolls-Royce case in which there is an accusation that Rolls-Royce made illicit payments over more than 20 years to officials in the Thai state-owned enterprises; and the Krung Thai Bank (Krung Thai) case in which the executives of the bank were sentenced to 18 years in prison by the Supreme Court for approving more than 9.9 billion baht in loans to one real estate developer company, even though the company was already listed with the bank as a non-performing debtor with non-performing loans (NPLs).
As shown by the recent amendment to the Organic Act on Counter Corruption, the existence of a strong internal compliance measure may provide a defence or factor mitigating the application of penalties. In addition, the NACC is drafting ‘Guidelines for Internal Control Measures in Preventing Bribery of Public Officials, Foreign Public Officials, and Agents of Public International Organisations,' which aims to assist juristic persons in establishing appropriate measures to prevent bribery and cultivate a culture of corporate governance in the private sector. The guideline is expected to be officially launched in 2017.
VI CONCLUSIONS AND OUTLOOK
Regulatory authorities, such as the police and DSI, and tax authorities such as the Revenue and Customs Departments and the local authorities, have extensive powers of search and seizure under Thai law. It is also common for raids to be conducted at the onset of government investigations; therefore, there is a need to prepare the relevant personnel for such a possibility.
It is advisable for a company to prepare a ‘telephone tree' and assign an inspection coordinator, as well as replacements, where there is the risk of a raid. The inspection coordinator should be familiar with the action plan and act as the main contact when investigators arrive, which is usually without notice.
Investigators typically present a search warrant upon arrival at the premises and such search warrant will specify the time period for conduct of the raid. Some laws allow searches without a warrant, but in practice a warrant is usually provided. While the phrase ‘dawn raid' is often used to describe these raids, it is typically the case that a raid would be conducted during the hours of daylight to sunset or, even more commonly, during business hours. Investigators will generally ask for an authorised director of the company and may already have an affidavit of the company which contains such details, as such names are a matter of public record on file with the Department of Business Development of the Ministry of Commerce.
External legal counsel should be called to assist during the raid. It is preferable that officials be asked to wait until the arrival of the designated external lawyers, although there is no guarantee that they will do so. During the raid, each inspector should be accompanied at all times by an external or in-house lawyer or such person as has been designated by the company. In the event any inspectors have questions, the inspector should be asked to put their questions in writing. In the event the inspectors request a company representative to sign notes or documents, the representative should only sign to acknowledge that a record was taken and a copy received on the relevant date, and not that the representative agrees with or accepts any information set out in the record.
1 Melisa Uremovic and Visitsak Arunsuratpakdee are partners at R&T Asia (Thailand) Limited.
2 The new Customs Act will become effective on 13 November 2017, which is the required 180 days from the date on which this Act was published in the Royal Gazette.
3 Section 157 of the Customs Act:
In the case where there are reasonable grounds to suspect or there is a detection of an offence under this Act or other provisions of law relating to customs, for the purposes of conducting an investigation in connection with the offence, the competent official shall have the following power: enter into the place of business operation or any places related to the operation of the importer, exporter, agent of a vessel, agent of such person or a person involved as prescribed by the Director-General, in an interval hour between sunrise until sunset, or during business hour of such place. The official has the authority to order such persons or persons in that place to perform as necessary for the purpose of inspection; arrest the offender according to this Act without an arrest warrant, when such person has committed the flagrant offence, or other grounds that are specified in the Criminal Procedure Code for further proceedings conducted by the inquiry officer; seize or attach accounts, documents, evidence or data in any form or other things that may be used to prove an offence under this Act or other laws relating to customs; issue an order to the importer, exporter, agent of a vessel, agent of such person or a person involved in the importation or exportation, to give an oral statement or facts or a written statement or order such persons to send the accounts, documents, evidence and data in any form or other things involved in the commission of the offence for inspection whereby a period of time for preparation shall not less than seven days as from the date of receipt of the order shall be given to such person.
4 Section 30 of the FBA: ‘The Registrar and competent officials have the following powers: (1) to address in writing enquiries or summons requiring any person to give explanations on any facts and furnish documents or evidence necessary for factual examination…'
5 Thailand's Roadmap on IUU Fishing. Available at: www.thaigov.go.th/index.php/en/issues/item/91850-91850.
6 Judgment of the Supreme Court No. 8952/2543.
7 Section 323 of the Criminal Code: ‘Whoever knows or acquires a private secret of another person by reason of his functions as a competent official or his profession as a medical practitioner, pharmacist, druggist, midwife, nursing attendant, priest, advocate, lawyer or auditor, or by reason of being an assistant in such profession, and then discloses such private secret in a manner likely to cause injury to any person, shall be punished with imprisonment not exceeding six months or fined not exceeding one thousand Baht, or both.'
8 Section 6 of the Witness Protection Act: ‘In a case where a witness loses his/her security, a competent official from criminal investigation, interrogation, prosecution or the Witness Protection Bureau as the case may be shall design for the witness protection measures as deemed appropriate or as requested by the witness or other concerned party. Where necessary the said person may request a police officer or other official for protection and this must be subject to the witness's consent…'
9 Section 255 of the Customs Act:
The Director-General shall have the power to order the payment of money as bribe and reward according to the rule determined by the Director-General with the approval of the Minister in the following cases: (1) For the offence under Section 242, Section 244 in case of evasion of prohibition, and Section 246, 40 per cent of the proceeds of sale of the exhibits shall be deducted and paid as bribe and reward, of which 20 per cent shall be paid as a bribe and 20 per cent shall be paid as a reward, but in case where the exhibits are not obtained or cannot be disposed of, the amount of such payment shall be deducted from the fine. (2) For the offence under Section 202, Section 243, and Section 244 in case of evasion of restriction, 20 per cent of the proceeds of sale of the exhibits shall be deducted and paid as reward, but in case where the exhibits are not obtained or cannot be disposed of, the amount of such payment shall be deducted from the fine. (3) In the case where there is a deficit in the inspection and collection of duties, and the official auditing the duty discovers it, resulting in the levying of additional duties, 10 per cent of the additional duty levied and collected by the Customs Department shall be paid as reward.
The bribe and reward deducted under (1) and (2) shall be paid as a bribe not exceeding five million Baht per case, and as a reward not exceeding five million Baht per case and under (3) shall be paid as a reward not exceeding five million Baht per inspection.
10 The Prime Ministerial Office Regulation Re: Rewards in Narcotics Case B.E. 2537 (1994).
11 Section 425 of Civil and Commercial Code: ‘An employer is jointly liable with his employee for the consequences of a wrongful act committed by such an employee in the course of his employment.'
12 Section 821 of Civil and Commercial Code: ‘A person who holds out another person as his agent or knowingly allows another person to hold himself out as his agent, is liable to third persons in good faith in the same way as such person was his agent.'
13 Bunyat Sucheeva, Bot Bundit (Law Journal of the Thai Bar), Volume 33, B.E. 2519, Part 1, pp. 1-6.
14 Judgment of the Supreme Court No. 3446/2537.
15 According to the judgment of the Supreme Court No. 787-788/2506, the Supreme Court ruled that the criminal penalties that can be enforced against a corporate entity are limited to fines and the confiscation of property. However, there are also provisions in specific legislation that include the revocation of licences as a related penalty.
16 Act Amending Provisions of Laws Relating to Criminal Liability of Juristic Person Representatives B.E. 2560 (2017) came into effect on 12 February 2017 to amend the presumption of liability provisions in 76 acts.
17 Section 58 of the Administrative Procedure Act B.E. 2539 (1996): ‘The administrative order which stipulates the doing or omission of certain act, its violation or non-observance by the person who is subject to such administrative order provides that the official may exercise any of the following administrative enforcement measures: (1) the official who personally enters into the handling of the subject matter or designates other persons to act on his behalf in which case the person who is subject to such administrative order shall be reimbursed for the expenses and extra money at the rate of 25 per cent per annum of the said expenses; (2) there shall be paid the administrative penalty in reasonable amount, but such penalty shall not exceed twenty thousand Baht per day […]'.
18 Section 66 of the Organic Act on Counter Corruption B.E. 2542 (1999): ‘[…] a principal, an instigator or a supporter, including a person who gives, asks to give or promises to give property or other benefits to the person under paragraph one [i.e., the official] with a view to inducing him to act or omit or delay an act resulting in a dishonest act in the performance of duties.'
19 Section 49 of the Act for the Establishment of and Procedure for Labour Court B.E. 2522 (1979): ‘In the dismissal case, if the Labour Court considers the dismissal unfair, it shall order the employer to reinstate the employee at the same level of wage at the time of dismissal. However, if the Labour Court thinks that such employee and employer cannot work together, it shall fix the amount of compensation to be paid by the employer which the Labour Court shall take into consideration the age of the employee, the working period of the employee, the employee's hardship when dismissed, the cause of dismissal and the compensation the employee is entitled to receive.'
20 Section 119 of the Labour Protection Act B.E. 2541 (1998):
An employer may not pay severance pay to an employee when employment is terminated upon any of the following conditions: (1) performing his/her duty dishonestly or intentionally committing a criminal offence against the Employer; (2) wilfully causing damage to the Employer; (3) committing negligent acts causing serious damage to the Employer; (4) violating work rules, regulations or orders of the Employer which are lawful and just, and after written warning having been given by the Employer, except for a serious case with no requirement for the Employer to give warning. The written warning shall be valid of not exceeding one year from the date when the employee commits the offence; (5) absenting himself/herself from duty without justifiable reason for three consecutive working days regardless of whether there is holiday in between; and (6) being sentenced to imprisonment by a final court judgment.
In item (6), if the imprisonment is for offences committed by negligence or a petty offence, it shall be the offence causing damage to the Employer.
Upon termination of employment without severance pay under paragraph one, when the Employer fails to specify the fact which is a cause of termination in a letter of termination of employment or fails to inform the cause of termination to the employee at a time of termination of employment, the Employer cannot afterwards claim for such cause.
21 Section 8 of the Criminal Code:
‘Whoever commits an offence outside the Kingdom shall be punished in the Kingdom; provided that, and, provided further that the offence committed be any of the following namely:
(a) The offender be a Thai person, and there be a request for punishment by the Government of the country where the offence has occurred or by the injured person; or
(b) The offender be an alien, and the Thai Government or a Thai person be the injured person, and there be a request for punishment by the injured person;
If such offence to be the offence specified as following shall be punished within the Kingdom namely:
• Offences Relating to Cause Public Dangers as provided in Section 217, Section 218, Section 221 to Section 223 excepting the case relating to the first paragraph of Section 220, and Section 224, Section 226, Section 228 to Section 232, Section 237, and Section 233 to Section 236 only when it is the case to be punished according to Section 238;
• Offences Relating to Documents as provided in Section 264, Section 265, Section 266 (1) and (2), Section 268 excepting the case relating to Section 267 and Section 269;
• Offence Relating to the Electronic Card according to be prescribed by Section 269/1 to Section 269/7;
• Offences Relating to Sexuality as provided in Section 276, Section 280 and Section 285 only for the case relating to Section 276;
• Offences Against Life as provided in Section 288 to Section 290;
• Offences Against Body as provided in Section 295 to Section 298;
• Offences of Abandonment of Children, Sick or Aged Persons as provided in Section 306 to Section 308;
• Offences Against Liberty as provided in Section 309, Section 310, Section 312 to Section 315, and Section 317 to Section 320;
• Offences of Theft and Snatching as provided in Section 334 to Section 336;
• Offences of Extortion, Blackmail, Robbery and Gang-Robbery as provided in Section 337 to Section 340;
• Offences of Cheating and Fraud as provided in Section 341 to Section 344, Section 346 and Section 347;
• Offences of Criminal Misappropriation as provided in Section 352 to Section 354;
• Offences of Receiving Stolen Property as provided in Section 357;
• Offences of Mischief as provided in Section 358 to Section 360.'
22 Section 6 of the Anti-Money Laundering Act B.E. 2542 (1999):
Any person who commits an offence of money laundering shall, even if the offence is committed outside the Kingdom, be punished under this Act in the Kingdom if it appears that: (1) the offender or any of the co-offenders is a Thai national or has a residence in Thailand; (2) the offender is an alien and commits the offence with the intent that the consequence thereof shall have occurred in the Kingdom, or the Thai Government is the injured person; or (3) the offender is an alien and the act so committed is an offence under the law of the State in whose jurisdiction the act occurs, provided that such person remains his or her appearance in the Kingdom without being extradited in accordance with the law on extradition.
For this purpose, Section 10 of the Penal Code shall apply mutatis mutandis.
23 Section 226 of the Criminal Procedure Code: ‘Any material, documentary or oral evidence, likely to prove the guilt of the innocence of the accused, is admissible, provided it is not obtained through any inducement, promise, threat, deception or other unlawful means; such evidence shall be produced in accordance with the provisions of this Code or other laws governing production of evidence.'
24 Interpol, Mission and Crime priorities. Available at: www.interpol.int/Member-countries/Asia-South-Pacific/Thailand.
25 Interpol, cybercrime operation across ASEAN unites public and private sectors. Available at: www.interpol.int/News-and-media/News/2017/N2017-051.
26 Interpol, training looks to enhance border security in Southeast Asia. Available at: www.interpol.int/News-and-media/News/2017/N2017-054.
27 Thailand joins the Global Forum. Available at: www.oecd.org/countries/thailand/thailand-joins-the
28 Section 154 of the Financial Institution Business Act B.E. 2551 (2008): ‘Whoever, in the performance of his duty upon the power and duty prescribed under the law or in the performance of assisting those performing their duties upon the power and duty prescribed under the law, having acquired knowledge of the business of a financial institution which, in a normal business, is to be held in confidence, discloses such knowledge to other persons shall be liable to imprisonment for a term not exceeding one year or a fine not exceeding one hundred thousand Baht or both. The provision under the first paragraph shall not apply to disclosure under the following circumstances:
(1) disclosure in the performance of his duty or for the purpose of investigation or trial […]'.
29 Thailand, Corruption Perceptions Index. Available at: www.transparency.org/country/THA.