Supreme Court Decisions

Interesting Article
Defendant Company No. 1, whose management was controlled by foreign nationals, was accused of violating the Foreign Business Act B.E. 2542 by unlawfully carrying on a restricted business under List Three (3), namely a service business, through Thai nationals holding shares as nominees in order to circumvent the restrictions imposed by law.The Court of First Instance held that Defendants Nos. 1 to 4 were guilty of jointly carrying on a restricted business without a licence. The penalties included imprisonment and fines. The Court also ordered the defendants to cease the business operations and ordered the Thai nominee shareholders to cease holding shares on behalf of the foreign nationals. However, the judgment of the Court of First Instance did not specify the daily fine under Section 37 for failure to comply with the Court’s order.The Court of Appeal subsequently amended the judgment by imposing a daily fine of 10,000 baht if Defendants Nos. 1, 3, and 4 continued to fail to comply with the Court’s order to cease the business operations. The fine was calculated retrospectively from the date of the judgment of the Court of First Instance, namely 28 November of the year in which the judgment was rendered, until the date on which the defendant company was dissolved.The defendants appealed to the Supreme Court, arguing that the Court of Appeal had unlawfully imposed an additional penalty retroactively. The Supreme Court held that the judgment of the Court of First Instance became immediately enforceable under Section 188 of the Criminal Procedure Code, even though it had not specified the daily fine. The Court of Appeal had merely supplied the omitted part of the judgment so that it fully reflected the penalty prescribed by law. The retrospective calculation of the daily fine was therefore lawful.

Interesting Article
Defendant Company No. 1, a juristic person registered in Thailand, carried on a service business prohibited under List Three of the Foreign Business Act B.E. 2542 without obtaining the required licence. It was also found to be under the control of foreign nationals who used Defendants Nos. 5 and 6, both Thai nationals, to hold shares as nominees in order to mislead government officials into believing that the business was Thai-owned.Defendants Nos. 2 to 4 were directors who jointly managed the business and participated in the offence. The Court of First Instance held that Defendants Nos. 1 to 4 were guilty under Sections 8(3) and 37, imposed imprisonment and fines, and ordered the business to cease operations. It also ordered the Thai nationals to cease holding shares in Defendant Company No. 1. However, the Court did not impose the “daily fine” prescribed in the final paragraph of Section 37 for failure to comply with the Court’s order.Thereafter, Defendants Nos. 1 to 4 failed to comply with the Court’s order. The Court of Appeal therefore amended the judgment to provide that, if the violation continued, Defendants Nos. 1, 3, and 4 would be fined 10,000 baht per day for as long as the non-compliance continued, with the fine calculated retroactively from the date of the judgment of the Court of First Instance.The three defendants appealed to the Supreme Court, arguing that the addition of the daily fine amounted to an unlawful retroactive increase in punishment. The Supreme Court held that the case became final upon the reading of the judgment of the Court of First Instance and that the judgment was enforceable under Section 188 of the Criminal Procedure Code. The final paragraph of Section 37 of the Foreign Business Act B.E. 2542 prescribes a daily fine of 10,000 to 50,000 baht for failure to comply with a court order. Accordingly, the Court of Appeal’s addition of the daily fine did not amount to imposing a new or excessive punishment, but merely made the judgment complete in accordance with the law.The Supreme Court therefore affirmed that Defendants Nos. 1, 3, and 4 were jointly liable to pay a daily fine of 10,000 baht from 28 November 2018, the date on which the judgment of the Court of First Instance was read, until 2 March 2020, the date on which Defendant Company No. 1 registered its dissolution.

Interesting Article
Defendant Company No. 1, a juristic person registered in Thailand, carried on a service business prohibited under List Three of the Foreign Business Act B.E. 2542 without obtaining the required licence. It was also found to be under the control of foreign nationals who used Defendants Nos. 5 and 6, both Thai nationals, to hold shares as nominees in order to mislead government officials into believing that the business was Thai-owned.Defendants Nos. 2 to 4 were directors who jointly managed the business and participated in the offence. The Court of First Instance held that Defendants Nos. 1 to 4 were guilty under Sections 8(3) and 37, imposed imprisonment and fines, and ordered the business to cease operations. It also ordered the Thai nationals to cease holding shares in Defendant Company No. 1. However, the Court did not impose the “daily fine” prescribed in the final paragraph of Section 37 for failure to comply with the Court’s order.Thereafter, Defendants Nos. 1 to 4 failed to comply with the Court’s order. The Court of Appeal therefore amended the judgment to provide that, if the violation continued, Defendants Nos. 1, 3, and 4 would be fined 10,000 baht per day for as long as the non-compliance continued, with the fine calculated retroactively from the date of the judgment of the Court of First Instance.The three defendants appealed to the Supreme Court, arguing that the addition of the daily fine amounted to an unlawful retroactive increase in punishment. The Supreme Court held that the case became final upon the reading of the judgment of the Court of First Instance and that the judgment was enforceable under Section 188 of the Criminal Procedure Code. The final paragraph of Section 37 of the Foreign Business Act B.E. 2542 prescribes a daily fine of 10,000 to 50,000 baht for failure to comply with a court order. Accordingly, the Court of Appeal’s addition of the daily fine did not amount to imposing a new or excessive punishment, but merely made the judgment complete in accordance with the law.The Supreme Court therefore affirmed that Defendants Nos. 1, 3, and 4 were jointly liable to pay a daily fine of 10,000 baht from 28 November 2018, the date on which the judgment of the Court of First Instance was read, until 2 March 2020, the date on which Defendant Company No. 1 registered its dissolution.