On 31 October 2012, Thailand’s Criminal Court in Bangkok dismissed charges against Mr. Surapak P., a defendant facing charges under the lèse majesté law (Article 112) and the Computer-related Crime Act 2007. It is very rare for a defendant to be able to convince the Court that the evidence used against him could have been fabricated. Prior to this, only one lèse majesté defendant, “Bento”, was acquitted for similar reasons by arguing that the phone line used to access the internet was not registered in her name.
The lawyer of Mr. Surapak P is Mr. Thitipong Srisaen, aka “Attorney Siang”. Experienced in intellectual property rights cases, Thitipong took this case, his first involving national security and a highly sensitive issue. He shares with us his experience in this landmark case.
Thitipong Srisaen, lawyer
Please tell us your background as a lawyer.
I am just a freelance lawyer and have been working a lot on cases concerning Computer-related Crime Act and intellectual property rights cases. In the past two years, I have handled many of the red-shirt cases; many of my clients are just grassroots villagers, not the core members, who have been prosecuted for violating the Emergency Decree. On 19 May 2010, during the dissolution of the demonstrations, I received phone calls from fellow red-shirts informing me about those being arrested and brought to Court, so I decided to give them help.
How did you come to take up Surapak’s case?
There were lessons learned from the Ah Kong case. I have found both the verdicts and details of cases like these “fishy and flimsy” and they could not have led to the convictions of the accused. By chance I got to talk with Surapak’s mother. Listening to her account, I felt sympathetic towards her.
Most importantly, Surapak, the accused in this case, is a fellow red-shirt. I took the case, maybe because I am a red-shirt or I was inclined toward their ideas. After all, I believe that those who are inclined toward the red-shirt ideas are basically good people.
Didn’t you feel any scared at first?
Yes, I did. The plaint was so well prepared, detailed and logical. I even grumbled with my fellow lawyers that this case caused me a lot of stress.
Surapak’s case is even more difficult than Ah Kong’s case. In that case, it could be said like Ah Kong could not fire a gun. But accidentally, someone had used a gun to kill somebody and left it in his house and he was not aware of it. It could be proven clearly that Ah Kong had never fired and did not know how to shoot. But Surapak is a programmer and experienced computer user. And the incriminating evidence was found in his computer. It was very difficult. And there were a lot of documents to puzzle through in this case file. I went through them and stumbled on one sentence that said his laptop computer had been turned on and used on 2 and 7 September, after he had already been arrested.
Do you have any basic knowledge of computers?
Yes, I do, just like any other user. It would have been much more convenient if Surapak had been temporarily released. The accused is a computer expert. But because he was held in custody, he could only explain to me through the iron bars and had no chance to demonstrate to me using a real computer. He simply told me the data (found in his laptop computer) had been fabricated. But at first I had no idea how it had been fabricated. Without a support team, I had to do the research myself. Experts were reluctant to give me any help. So I had to do a lot of reading and researching. One thing that the accused confirmed with me was the incriminating evidence had been forged; the cache files were fabricated. It was my duty to prove how they could be forged.
How long did it take to prepare the case?
Around three months.
What is the difference between CCA cases concerning intellectual property and CCA cases concerning national security? Which are easier or more difficult?
They are different in many ways. But a case like Surapak’s is difficult due to the pressure. Those who agree to take up such cases end up being put under sheer pressure. Of course, you cannot go around pleasantly bragging to anyone that you have taken on a lèse majesté case. It is very difficult to reach out for help if you take such a case. Also, these cases are highly technical, and personally I am not a computer geek. Any case can be easy or difficult. But a case like this can be much more difficult given the circumstances.
Has agreeing to take the case affected your career?
I have no fear for that. Most of my clients have almost opposite political ideologies from mine. But they know what I am doing and how I perform my role. If they refuse to hire me simply because I am a red shirt, it doesn’t worry me. If we are confident that the things we do are right, we should be prepared for any consequences. People around me often warn me. Out of concern they ask me if I really like taking cases like this since they are highly controversial in Thailand. Whether the accused are guilty or not, they are just condemned once the cases are filed against them. Over the past one year, Surapak has already been judged by society, even though the evidence against him has been proven to be flimsy all along.
Will the person who reported the case against Surapak be sued?
It is up to Surapak. I will simply give him advice if he asks me. The crux of the matter is that it is too easy to report someone. It is so easy to initiate a lèse majesté case invoking Section 112. In the case against Surapak, someone reported to the police about an allegedly lèse majesté Facebook page. That person insisted that Surapak was the owner of the Facebook page and he was the “Mr. Manachai” whose name appeared on the Facebook page. The police simply pursued the case based on this claim and had never made any attempt to investigate further who the owner of the Facebook page really was. On the day they came to Surapak’s house, the officials had only a search warrant, no arrest warrant. They could not arrest him instantly since he had not committed any flagrant offence. But they asked Surapak to write down on a piece of paper the password of the Facebook page. Surapak did not understand, but he did write down the password of his computer. Then, the police took the piece of paper as evidence and submitted it to the Court to apply for an arrest warrant.
Well, the whole process was corrupt and mixed up. It all went wrong from the beginning. It started with someone casually reporting the case, telling the police that this guy had committed an offence, even though the accuser had no idea who exactly he wanted to bring charges against.
It is very likely that the incriminating evidence in this case has been fabricated. Is it possible for the accused to sue the inquiry officials in order to set a precedent?
Possible. An expert witness in this case also shared with me after witness examination that as a computer expert, he was confident that the evidence was forged. So after Surapak is released from prison, I shall let him think and ask him what he wants to do next.
The justice process has been subjected to controversy. What is your take on this?
After listening to the verdict today, I think we should have some hope in the justice process. But for me personally, I find it very unjust to the accused or the victims if their constitutional rights are not upheld, particularly their right to be temporarily released. I find that the accused in Article 112 or other cases will suffer minimum damage if they are allowed to fight the case and granted bail. Look at what Surapak suffered over the past one year in jail. Nothing can sufficiently compensate him. Nothing can heal the damage he suffers from his loss of time, career, etc.
Temporary release seems to be a big issue in a case like this.
Being granted bail is very important. The bail request should not be denied for unfounded claims or reasons. For example, the Court often said that bail is denied because of the fear of flight, fear that the accused will tamper with evidence, etc. But there have been many cases where the basic investigation has been completed prior to the hearings. And as to the claim that the accused might run away, we must seriously assess the validity of such a fear. Would it be worth it for them to jump bail and lose their collateral?
The issue of the right to temporary release has been discussed extensively. But we hardly touch on the power to deny bail; how much power a person can exercise to deny bail. In my opinion, the exercise of such power has so far been subject to personal discretion and they can take advantage of a legal loophole. We should try to address the loophole in the legal system to prevent anyone from exercising his or her power beyond what is provided for. For example, we should set up a system which spells out clearly what is needed for a person to be entitled to temporary release. In addition no one must be allowed to exercise their power or discretion beyond what is provided for. But right now, the legal system has loopholes.
We should talk about an overall reform of the justice system. It should be that every person can benefit from such a system, including those accused of violating Article 112, to ensure justice to all people.
Will the public prosecutor appeal the case?
It is up to them. If they do, we will have to fight. The results are not known and we shall not interfere with the Court. But based on the decision of the Lower Court, I am confident that our evidence has rebutted all of their incriminating evidence.
What are the factors contributing to the success of legal cases like this?
Case preparation is very important. We have to dig into it and try to single out any flaws or any fabricated evidence.
Will the judge’s understanding of computer technology be an important factor?
It depends on how we present the case. It depends on what is presented by both the plaintiffs and the accused. We were lucky in this case that the judges allowed us to demonstrate every detail of the case in the courtroom. We were allowed to bring in a projector and showed to them on the screen how the cache files could be forged.
Well, we should call it a fundamental right, not “luck”, right?
It was our luck; this won’t be allowed in other cases.
Because this case has been dismissed, you will certainly be contacted to help in similar cases. Does that cause you any worry?
As long as the justice process concerning Article 112 cases continues to be like this, as long as it uses an accusatorial system, but the accused is denied bail, I am reluctant to take up such cases. It makes me feel stressed and uncomfortable.
Let’s take this as a case study. Any lawyer can learn from the case; how to prepare the case, how to prepare witness examination, and this varies from case to case. Anyone can study the approach I used to present or rebut any evidence. This should set an example to help other victims who share the same ordeal as Surapak.
Those who were not present during the hearings might not understand your approach. It seems to have been a computer crime hearing during which very few questions are asked.
I did ask a lot of questions. I tried to ask questions to bring out my arguments. We don’t have to ask many questions. I skipped questioning one witness, since that person had nothing to do with the case. If we are able to rebut all the evidence used against us in the case, the judges cannot write a verdict any different from this. I tried to plug the holes. The Ah Kong case already taught us that if we failed to plug every possible hole, the Court might just exploit it. But I prepared my case very meticulously and plugged every hole. If you sit from the beginning of the hearings to the end, you will be convinced without any doubt that the accused did not commit the offence.
Will you fight on the content, it the content of the Facebook page was used against the accused?
Yes, I will. I will fight any issue. But since the first day I met Surapak in prison, I told him I did not want to fight on Article 112, but will fight on the computer-related offences.
Given the outcome of this case, will it affect the conventional belief that cases like this are lost causes?
Indeed. When I promised his mother to help, I did not know any detail about the accusation or how many counts he was accused of. What I knew was that as an accused he has the right to a lawyer. The problem with Article 112 is how it has been exploited. Personally, I am reluctant to challenge the content of the law. But I feel unhappy with the way it has been used. For example in Surapak’s case, it is as if anyone can accuse other person without solid evidence and it causes that person to languish in jail for over one year. Some are lucky and get bail. Others are not.
Surapak also faced pressure and was asked to confess to the charges. Many people think it is impossible to fight the case, so they give up and just make a confession in the hope that their sentence will be reduced as a result of being granted a royal pardon. The point to emphasize is making it possible to prove that a person is guilty or not.
Have your received a big fee from this case?
I don’t even know who I can ask for my expenses (laugh). Of course, as a lawyer, I want to earn money from my work. But I took this case because I wanted to do it. What I get in return is moral support from fellow red shirts. I feel overwhelmed by their support. I got that instead of any remuneration.
Translated by Pipob Udomittipong