Hot! Supreme Court Decision No.190/2023 Offenses against the Narcotics Lack of Evidence and Hearsay

Under the Name of the King

No. 190/2023                                                              Supreme court

Date January 13, 2023

Criminal

    The prosecutor of Kamphaeng Phet Province                                    Plaintiff

Between

1st Defendant

2nd Defendant

3rd Defendant

4th Defendant                                                                                      Defendant

Re. Offenses against the Narcotics Act, offenses against the Road Traffic Act, and offenses against the Motor Vehicle Act.

Defendants 2 to 4                   Objection petition                   Judgment

Court of Appeal,                     Dated             October 5,       2020

Supreme Court                        Accepted on    June 13,          2022

The plaintiff claims that on January 24, 2019, during the daytime, the 1st and 2nd defendants consumed methamphetamine, a narcotic classified as category I, with 1 tablet consumed per person, although the exact weight is unclear. They consumed the drug by lighting it on fire and inhaling the smoke into their bodies. The second defendant was found to be in possession of 200 tablets (unit of use) of methamphetamine, with a net weight of 18.489 grams, which can be calculated as 2.927 grams of pure substance. The drug was being kept for the purpose of sale, and the second defendant sold it to a named person for a price of 9,000 baht. The incident took place in the Lan Krabue District, Kamphaeng Phet Province. Before this case, on June 18, 2009, the first defendant was sentenced to 12 years and 9 months in prison and was released on August 28, 2011, for murder with a firearm and ammunition possession without a license. According to the Criminal Case Red No. 626/2552 of the Phitsanulok Provincial Court, the third defendant had a final verdict on April 5, 2012, and was sentenced to 4 years and 12 months imprisonment and was released on August 24, 2018, for possession of methamphetamine without permission. According to the criminal case red number 706/2555 of the Phitsanulok Provincial Court, the fourth defendant was sentenced on June 30, 2014, and was imprisoned for 3 years and 3 months and was fined 200,000 baht. The fourth defendant was released on September 7, 2016, for possession of methamphetamine for sale according to the criminal case red number 1437/2557 of the provincial court. Within five years from the date of their release, the first, third, and fourth defendants committed the offense again. Please punish them accordingly under the Narcotics Act B.E. 2522 (1979) Section 4, 7, 8, 15, 57, 66, 91, 97, 100/1, 102, the Road Traffic Act B.E. 2522 Section 4, 43 bis, 157/1, and the Motor Vehicle Act B.E. Increase the penalty for the first, third, and fourth defendants according to the law, revoke the driver’s license, or suspend the driver’s license of the third defendant for a period of not less than six months.

The first defendant confessed and admitted that he was the same person as the defendant in the case. That the plaintiff asked to increase the penalty.

The second defendant pleaded guilty to the charges of using methamphetamine. The other allegations are denied.

The third  Defendant pleaded guilty to the charges of using methamphetamine and acknowledged that he is a methamphetamine addict who was driving with an expired driver’s license. He denied the other charges but admitted to being the same person as the defendant in the case where the plaintiff requested an increase in penalty.

The fourth defendant denied it but admitted that he was the same person as the defendant in the plaintiff’s case. Please increase the penalty.

The Court of First Instance considered and ruled that All four defendants were guilty under the Narcotic Drugs Act 1979, section 15 paragraph three (2), 66 paragraph three in conjunction with section 83 of the Criminal Code. Narcotics, BE 2522, sections 57, 91. The third defendant is guilty of an offense under the Road Traffic Act, 1979, section 43 bis, paragraph one, 157/1, paragraph two, the Motor Vehicle Act, 1979, section. 65 The actions of the first to third defendants are different crimes. Punishment for every act as an offense according to the Criminal Code Section 91 for joint possession of methamphetamine for the purpose of distributing. The four defendants were sentenced to death. Methamphetamine addiction base Imprisonment for the 1st and 2nd defendants, each for 6 months, for the use of methamphetamine and for being a driver of the use of methamphetamine as a single offense. It is an offense against many laws. Punishment under the Road Traffic Act 1979, section 157/1, paragraph two, together with the Narcotics Act, 1979, section 91, which is the law with the heaviest penalty under the Criminal code section 90 imprisonment for the third defendant. There is a period of 8 months for driving when the driver’s license expires. Find the third defendant in the amount of 2,000 baht, increasing the penalty for the first defendant for using methamphetamine. One-third according to the Criminal Code, Section 92 is 8 months imprisonment, increasing the penalty for the third defendant for being a methamphetamine driver, half according to the Narcotics Act, 1979, Section 97 is imprisonment. 12 months. The common base possesses methamphetamine for sale. When the death penalty was imposed on the first, third, and fourth defendants, their punishment could not be increased accordingly. According to Criminal Code Section 51, the first defendant confessed to the crime. The second defendant confessed to using methamphetamine, and the third defendant confessed to driving while using methamphetamine and driving with an expired license. These factors were considered for a reprieve and to reduce the punishment to half per count, according to the Criminal Code Section 78 in conjunction with Section 52(2). The punishment for the first defendant for joint possession of methamphetamine for sale remains a life imprisonment sentence. The punishment for the use of methamphetamine is imprisonment for 4 months for the first defendant and 3 months for the second defendant. The punishment for driving with an expired license is 6 months imprisonment and a fine of 1,000 baht for the third defendant. After including all the offenses, the first defendant is sentenced to life imprisonment according to section 93(3) of the Criminal Code. When the court sentenced the defendants to death for the offense of possessing methamphetamine for the purpose of distribution, the imprisonment for other offenses of the second and third defendants could not be arranged. The second defendant is sentenced to death, and the third defendant is sentenced to death with an additional fine of 1,000 baht. The intermediate rib met amphetamine and suspended the driver’s license of the third defendant for a period of six months.

The second to fourth defendants appealed, and the first defendant did not appeal. The Court of First Instance sent the case to the Court of Appeal under the Criminal Procedure Code, section 245, paragraph two, in conjunction with the Drug Case Procedure Act B.E. 2550, section 16.

The Court of Appeal’s Narcotics Division ruled to reduce the punishment for the second, third, and fourth defendants on the joint possession of methamphetamine with the intent to sell by one-third each according to Section 78 of the Criminal Code in conjunction with Section 52 (1). However, the second, third, and fourth defendants would still be punished with life imprisonment when combined with the penalty for their other offenses as determined by the court of the first instance. The second defendant would still be imprisoned for life, and the third defendant would be imprisoned for life and fined 1,000 baht according to Section 91 (3) of the Criminal Code, in addition to the amendments made according to the judgment of the Court of First Instance.

The second to fourth defendants appealed with permission from the Supreme Court.

After several consultation meetings, the Supreme Court has conducted a preliminary hearing of the case’s facts. On January 24, 2019, during the day, police officers bought 200 methamphetamine tablets for 7,000 baht from Mr. Suthat and Mrs. Ratree Noipong. Mr. Suthat and Mrs. Ratree testified that the drugs were purchased from the first and second defendants. On the same day, they led the police to the residence of the second and third defendants, who were living together as husband and wife in a rented room at House No. 14 Village No. 11, Tambon Lan Krabue, Lan Krabue District, Kamphaeng Phet Province. The police searched the room and found bags containing drugs under the bed. The first defendant claimed that the drugs were deposited by the third and fourth defendants and that he was supposed to return them later. The next day, on January 25, 2019, at 5:30 a.m., the police arrested the third defendant when he came to the same room, and they subsequently arrested the fourth defendant. The investigation officer sent the seized drugs for examination. It was discovered that the drugs were methamphetamine hydrochloride in tablet form, with a net weight of 5,538.654 grams, and 888.649 grams of pure substance in a flake form. There was one white bag with a net weight of 969.840 grams, calculated as 897.878 grams of pure substance, making the total net weight 6,508.494 grams, calculated as 1,786.527 grams of pure substance, according to document verification, report E.8.The report indicates that the first and second defendants are charged with using methamphetamine, while the third defendant is charged with using methamphetamine and driving under the influence of the drug with an expired driver’s license. The first to third defendants have confessed to the charges. The Court of First Instance has convicted the second defendant of possession of 200 methamphetamine tablets with a net weight of 18.489 grams, calculated as 2.927 grams of pure substance, for distribution and the distribution of methamphetamine. However, the second defendant has denied these charges, and the Court of First Instance has dismissed the case. The party has not appealed, and the case is now terminated according to the judgment of the Court of First Instance. The first defendant has been found guilty of possessing methamphetamine with a net weight of 6,508.494 grams, calculated as 1,786.527 grams of pure substance, for sale, to which the first defendant has confessed. The Court of First Instance has convicted the first defendant, and the Court of Appeal has upheld the judgment.

The Supreme Court has addressed the offense of the second defendant for using methamphetamine. The Court claimed that the second defendant did not commit the offense, and was of the opinion that the defendant had confessed to the charge, and the facts presented in the Court of First Instance and the Court of Appeal indicated that the second defendant had actually committed the offense of using methamphetamine. The Court found that the second defendant’s denial of the offense contradicted their earlier confession, and was not a fact that had been raised adequately in the previous court proceedings. Therefore, it was not possible to petition under the Civil Procedure Code, section 225, and section 252, in conjunction with section 252 of the Criminal Procedure Code. Based on the Narcotics Criminal Procedure Act, BE 2550, Section 3, the Supreme Court rejected the ruling.

The problematic case hinges on whether the second to fourth defendants jointly committed an offense with the first defendant for having methamphetamine, net weight 6,508.494 grams, calculated as pure substance 1,786.527 grams in possession for distribution according to the judgment of the Court of Appeal. The decision should be made first on the part of the second defendant. The results of the detection of methamphetamine according to document verification report No. Jor. 8 are hearsay evidence and evidence sent for inspection, and it is unclear whether they were seized by the investigation officer as an object or not. Therefore, the Court cannot consider the Jor. 8 documents to punish the second defendant.The Court of First Instance, in its ruling on June 3, 2019, noted that all four defendants admitted that the officials had verified the methamphetamine of such intermediate and made a report of verification according to the report on the verification of the first document, Note Jor. 8. The second defendant’s allegations are therefore contrary to this admission and are not facts that have been properly raised in the Court of First Instance and the Court of Appeal. Thus, the Supreme Court did not accept the decision. As for the second defendant, the petition alleges that they had no involvement in the fact that the third and fourth defendants had deposited drugs in the middle of the incident to the first defendant at the crime scene. The second defendant claims they had gone back to live with their mother at house number 2/1, Village No. 2, Tambon Nong Kula, Bang Rakam District, Phitsanulok Province several months before the child was born. According to the birth certificate, Document No. Lor.1, the second defendant had just given birth on January 19, 2019, at Phitsanulok Hospital, and had no previous experience in child-rearing. Therefore, they had to live with their mother for assistance in raising the child. After that, on January 24, 2019, the second defendant quarreled with his mother. Therefore returned to stay with the first defendant at the incident room where the second defendant did not know that there were drugs in the middle of the said room. While the second defendant went out to buy food, the police officer took the second defendant back to the room and told the second defendant to call the third defendant to pick up the drugs back. To create evidence in convicting the second defendant without the plaintiff having no evidence to testify that the second defendant had the intent to commit the crime. In this problem, the plaintiff has Police Major Teerapop Duangmala. and Police Captain Winai Nakprasit, who was the co-arrestor. The witness testified similarly, saying that on the day of the incident after the police officer lured him to buy methamphetamine from Mr. Suthat Mr. Suthat and Mrs. Ratree said that they got the drugs from the first and second defendants and took the two witnesses and their companions to the crime scene room. So asked to search but found no illegal items. The police officer asked for the 2nd defendant. The first defendant said that the second defendant went to buy food to eat. The police officer went to look for him and found the second defendant and invited himself to the room. When searching the room, the drug was found in the middle of the bag. Placed under the bed, the first defendant testified that such artifacts were deposited by the third and fourth defendants in the evening of January 23, 2019, so that the first and second defendants telephoned the defendant at 3 To come to pick up the things that were deposited back. The second defendant telephoned and informed the defendant who came to pick up the things. Later, on January 25, 2019, at 5.30 a.m., the third defendant came to pick up the things in the middle of the police. therefore arrested. The court found that the plaintiff had a duty to present evidence to establish the involvement of the second defendant in the joint offense of possessing methamphetamine for distribution. Based on the testimonies of both witnesses, it can only be assumed that they searched the room and found the intermediate methamphetamine exhibits. The first defendant claimed that the third and fourth defendants had deposited them in the room on the evening of January 23, 2019, and that the second defendant had no involvement. In this case, there were a lot of intermediates, and the offense was punishable by life imprisonment or death, so if the accused was found guilty, it would greatly affect their rights and liberties. Therefore, the plaintiff had to seek evidence to show how the second defendant was involved in the offense. Although evidence was not difficult to prove and support, the plaintiff could only rely on the police officers who jointly searched the middle and arrested the second defendant, as mentioned above. The plaintiff did not have evidence of the circumstances surrounding the case to prove that the second defendant had lived in the room with the first defendant and co-wrote with the first defendant to keep the exhibits brought in by the third and fourth defendants, as claimed by the first defendant. The defendant testified that the second defendant occasionally resided with the first defendant because she was pregnant and needed to stay with her mother at House No. 2/1, Village No. 2, Tambon Nong Kula, Bang Rakam District, Phitsanulok Province, for her mother to take care of her. As for the first defendant, he would come and go and did not have much time to take care of the second defendant. The second defendant gave birth on January 19, 2019, at Phitsanulok Hospital in Phitsanulok Province. According to the birth certificate (document no. Lor.1), the second defendant prepared for childbirth. After giving birth, the second defendant stayed in the hospital for about three days until January 22, 2019, and then returned to her mother’s house to receive help with raising the child. As it was her first childbirth, she had no experience in parenting. On January 24, 2019, which was the day of the incident, the second defendant argued with her mother about the first defendant’s rare visits to care for the child. She then made a phone call to contact the first defendant to pick her up. The first defendant came to pick up the second defendant and her child at around 10 o’clock and escorted them to the incident room. The first defendant and Mrs. Somkuan Phairoj, the mother of the second defendant, testified in support of the second defendant’s statement. According to the evidence presented by the second defendant, she gave birth on January 19, 2019, and had a birth certificate (document no. Lor.1) as evidence, which the plaintiff did not question. Therefore, it can be established that the second defendant actually gave birth on that day at the maternity hospital in Phitsanulok Province, which is not the same province as the place where the incident occurred, Amphoe Lan Krabue, Kamphaeng Phet Province. As for the claim that after giving birth, the second defendant recuperated at her mother’s house until the first defendant came to pick her up on January 24, 2019, which was the day of the incident, only the first defendant and his mother, who were all close relatives, testified in support, without any supporting evidence. This part of the second defendant’s evidence should be approached with caution as it may be an attempt to solicit support. However, since the plaintiff did not cross-examine this part, it cannot be concluded that it is untrue. Furthermore, considering that the second defendant had just given birth, it is possible that she needed to recuperate at the hospital and then return to her mother’s house for her mother to take care of her due to it being her first childbirth. The second defendant has no experience in caring for newborns. The evidence provided by the second defendant in this section is weighty. Please note that from January 19, 2019, which is the day that the second defendant gave birth, until January 23, 2019, the second defendant did not live with the first defendant at the incident room. The second defendant only returned to the incident room on the day of the incident, January 24, 2019, shortly before the police officer searched the aforementioned room as follows: Although the second defendant lived with the first defendant as husband and wife and stayed together at the incident room, several days before the incident, the second defendant did not stay in the incident room with the first defendant. Moreover, the second defendant kept refusing from the arrest to the trial stage. Even if it means that after the police officer found the object, the second defendant telephoned and talked to the third defendant, it was the action that the police officer said. The aforementioned circumstances were not enough to be considered as having a detrimental effect on the second defendant for being involved in the commission of the crime. The plaintiff did not have any evidence to prove how the second defendant was involved in the commission of the offense. Even on the day of the incident, the second defendant used methamphetamine or had known and talked with the third defendant, and it did not appear that the second defendant had accused the third defendant of causing trouble to him. As the Court of Appeal ruled, the aforementioned facts are insufficient to hear that the second defendant was a co-offender. The circumstances of the case raise reasonable suspicion as to whether the second defendant participated in the possession of methamphetamine in the medium for sale or not. The benefit of the doubt shall be given to the second defendant under the Criminal Procedure Code, section 227, paragraph two, accompanying the Narcotic Procedure Act, B.E. 2550, section 3 for the third and fourth defendants. The plaintiff’s evidence in the documentary part is the defendant’s testimony at the arrest and interrogation stages as documentary evidence arising from intimidation and commitment, that if the defendant No. and No. 4 confessed the police officer would not prosecute the wife of the third and fourth defendants. The plaintiff alleged that the third and fourth defendants had deposited drugs in the middle of the first defendant as an accompaniment for the first defendant to be acquitted. The Court therefore could not consider such evidence to punish the third defendant and the fourth defendant. Therefore, facts can be obtained from both witnesses of the plaintiff, as mentioned above. Items were discovered in the room where the incident occurred, and the first defendant gave a squeal that the third and fourth defendants had deposited it and saw that the squealing witness. The Criminal Procedure Code, section 227/1, paragraph one, stipulates that the court must weigh carefully, and the evidence should not be believed alone to punish the defendant unless there is a strong reason or there are special circumstances of the case or other supporting evidence. Such laws apply to drug cases. According to the Narcotics Criminal Procedure Act, BE 2550, Section 3, when considering the squeal of the first defendant, not in the case of the first defendant giving evidence about the exhibits, the first defendant is still liable, but squealing away their liability with the hope that the first defendant will be freed from guilt without being prosecuted. As can be seen from the arrest and interrogation stage, the first defendant denied it. The aforementioned exhibits were received by the first defendant from Mr. Aek on January 23, 2019, which contradicted the statement of the first defendant, leading to doubt that any of the squealing or testimony of the first defendant was the truth. Therefore, the first defendant’s squealing must be carefully listened to. The Court of Appeal listened to the squealing of the first defendant, including the statement of the first defendant in the arrest memorandum of the document No. Jor. 5 as part of the reason for punishing the third and fourth defendants. The Supreme Court did not agree.The plaintiff’s evidence, besides the statement of the first defendant, was also a police colonel, Thaphon Kongtapan. The investigating officer testified that at the initial interrogation stage, the third and fourth defendants confessed. But after the third and fourth defendants rejected according to the testimony of documents No. 25 and 26, when considering the testimony of the third and fourth defendants as mentioned above, and the third and fourth defendants testified for the first time on January 25, 2019, confessing that the aforementioned medium was the third and fourth defendants jointly transporting. It came from Chiang Rai and was brought to the room where the crime occurred on January 23, 2019, in the evening, but the third defendant did not sign the testimony. In particular, when the investigating officer examined the testimony of the third and fourth defendants two more times, on 29 January 2019 and 27 March 2019, the third and fourth defendants refused, which made the testimony confessed to the third and fourth defendants for the first time. The Court of Appeal believed that it was the testimony given by the third and fourth defendants based on actual events. The Supreme Court disagreed. In the plaintiff’s evidence, it was stated that the police officer had the second defendant call and notify the third defendant to pick up the deposited items. On 25 January 2019 at 5:30 pm, the third defendant came to the crime scene room. In this case, the third defendant admitted that the second defendant had telephoned and talked to him, and he had come to pick up the goods at the actual incident room. However, the third defendant claimed that he did not come to the crime scene to buy methamphetamine from the second defendant. Instead, he had told the second defendant that if there were 200 methamphetamine tablets, he would come and buy it for the third time. When the third defendant came to the crime scene room, there was a reasonable suspicion that he had come to buy methamphetamine as previously discussed, or he was receiving the deposited methamphetamine medium as claimed by the plaintiff’s witnesses. The intermediate methamphetamine police officer can be searched in the room of the first defendant, who testified as a witness and admitted that he had received the aforementioned methamphetamine from another person. At the trial, the first defendant confessed that he had the aforementioned methamphetamine in possession for sale. The Appeal Court upheld the verdict of the First Instance Court that the first defendant committed such offenses and sentenced him to life imprisonment. When the aforementioned artifacts were searched in the 1st defendant’s room, the third and fourth defendants refused to be investigated and claimed that they were not involved in committing an offense. The plaintiff has a duty to take the evidence firmly and listen to punish the third and fourth defendants without any suspicion. However, the plaintiff’s evidence does not have a strong reason and there are reasonable doubts. As there are no witnesses from other circumstances to testify and support the evidence, the plaintiff cannot testify without any doubt that the third and fourth defendants were involved in the commission of the offense. According to the circumstances of the case, there is a reasonable suspicion whether the third and fourth defendants committed an offense together with the first defendant for having methamphetamine in possession for sale or not. The benefit of the doubt shall be given to the third and fourth defendants under the Criminal Procedure Code, section 227, paragraph two, accompanying the Narcotics Criminal Procedure Act, B.E. 4 In the aforementioned offense, the Supreme Court disagreed with the petition of the third and fourth defendants. In addition, the second defendant filed a petition to impose a new penalty on the second defendant, which must be considered in relation to the offense of using methamphetamine. The offense of the third defendant for using methamphetamine is also based on being a methamphetamine driver. It appears that the Act on Narcotic Drugs B.E. and the Narcotics Code annexed to that Act instead of the Narcotics Act, 1979, Section 57, must be applied to the offense of using methamphetamine, and the penalty under Section 91 must be imposed, which was the law in effect at the time of the offense. The penalty for the offense is imprisonment from 6 months to 3 years or a fine from 10,000 baht to 60,000 baht or both. Section 104 of the drug law provides for the penalty under section 162, which is imprisonment for a term not exceeding 1 year or a fine not exceeding 20,000 baht, or both. It can be seen that the Narcotics Code, which is a subsequent and new law, still makes the use of methamphetamine a crime. For the offense of being a driver of using methamphetamine, Section 7 of the Road Traffic Act, B.E. 2564 (2021) stipulates that any provision of the law that references the provisions of the Narcotics Act, 1979 shall be deemed to refer to the provisions of the Drug Code. When the Road Traffic Act, B.E. 2522, Section 157/1, paragraph two, refers to the Narcotics Act, B.E. 2522 (1979), Section 157/1, paragraph two, the penalty must be one-third higher than what is stipulated in the law in narcotics. This means including Section 162 of the Narcotics Code. The plaintiff asked to increase the penalty for the third defendant under Section 97 of the Narcotic Drugs Act, 1979, which allows for adding another offense while still being punished or within five years from the date of release from punishment. However, the new law does not provide for an increase in punishment as before, so the court cannot increase the penalty under the old law that has been abolished or under the new law. But when the Criminal Code, Section 17, stipulates that the provisions applicable to general offenses in the Criminal Code shall also apply to cases of offenses under other laws, it does not prescribe additional punishment for committing another offense. This means that the court can increase the punishment according to the provisions applicable to general offenses in the Criminal Code. When the third defendant commits another narcotic offense without recklessness and the plaintiff asks to increase the penalty for the third defendant according to the original law, Section 97, it can be considered that the plaintiff wishes to increase the penalty not recklessly, as stated in the complaint under the Criminal Procedure Code, Section 159, paragraph one. The court would have the power to increase the punishment of the third defendant by one-third according to Section 92 of the Criminal Code, which is a general provision, even if the couple does not petition. The Supreme Court has the power to review and amend the decision on its own under the Criminal Procedure Code, Section 145, paragraph two, and Section 225 in conjunction with the Narcotic Procedure Act B.E. 2550, Section 3.

The revised verdict finds the second defendant guilty under the Narcotics Code, Sections 104 and 162, and imposes a 6-month prison sentence. The third defendant’s act constitutes multiple offenses punishable under several laws, including the Road Traffic Act, B.E. 2522, Section 157/1 Paragraph 2 of the Narcotics Code, and Section 162 of the Drug Code, which carries the heaviest penalty under Section 90 of the Criminal Code. The third defendant is sentenced to 8 months imprisonment, with an additional one-third penalty according to Section 92 of the Criminal Code, resulting in a total sentence of 10 months and 20 days. With the punishment reduced by half for both the second and third defendants under Section 78 of the Criminal Code, the second defendant’s imprisonment is reduced to 3 months, while the third defendant’s imprisonment is reduced to 5 months and 10 days. Additionally, the third defendant is fined 1,000 baht for driving with an expired license, as per the judgment of the Appeal Court. Finally, the possession-for-sale offense is also corrected according to the judgment of the Court of Appeal.

 

 

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