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Update on Lawyers submitted appeal motion “Ar Kong SMS” Case bail denied

Case update Lawyers submitted appeal motion in “Ar Kong SMS” Case Bail request guaranteed by seven academics denied and request for a German mobile forensic expert as witness

On 20 February 2012 at 13.00, at the Criminal Court on Ratjadaphisek Rd., Bangkok, attorneys submitted their motion of appeal on the case of Mr. Amphon T., aka “Ar Kong SMS” case. Meanwhile, the state prosecutor has also filed the motion to postpone the appeal process. In the motion the defendant lawyer also requested more witness examination shall be proposed including opinions of mobile phone experts from Germany. The decision on more witness examination is still pending. On 23 February 2012, the appeal court on the motion on bail was denied due to the possible risk of the defendant to jump bail.

Mr. Amphon was convicted by the Court of the First Instance to 20 years imprisonment for allegedly sending four SMS to the phone belonging to Mr. Somkiat Krongwattanasuk, personal secretary of the former Prime Minister, Mr. Abhisit Vejjajiva. He was accused of defaming, insulting and threatening the King and the Queen as per Section 112 of the Thai Penal Code, or lèse majesté law.

In addition, an appeal motion shall be submitted with an argument that the IMEI number alone is insufficient to be cited as supporting evidence since it could be easily forged. Including, the documentary evidence supplied by the prosecutor including DTAC’s SMS log data did not store IMEI data as claimed by the prosecutor. More witness examination shall be proposed including opinions of mobile phone experts from Germany.

The verdict of the Red Case No. O4726/2554 delivered on 23 November 2011 notes that computer traffic information supplied by the Total Access Communication PLC and True Corporation PLC used by the prosecution was credible since if such data had been improperly recorded, it could have tarnished their corporate integrity and affected their business interest. Though the Court concurs with an argument of the accused that an IMEI number could be forged, but given that the accused had failed to get any expert to support the argument, the Court was not convinced so. The Court also noted that the phone was exclusively used by Mr. Amphon and that the perpetrator used two SIM cards, one of which was used by Mr. Amphon himself, and another used for sending the offensive messages to Mr.Somkiat’s phone. According to the traffic data, the two SIM cards were in use during the same course of time, but never exactly at the same time and the traffic data of the two SIM cards was transmitted from the neighborhood where the accused lived. In addition, the Court noted that though the prosecution’s adduction had failed to clearly indicate that the messages had been sent by the accused, but that was due to difficulty in the acquisition of eyewitnesses. Since the accused had committed the offence, he would have attempted to conceal evidence.

But relying on circumstantial evidence, the Court’s was convinced of the intent of the accused as claimed by the prosecutor. In addition, flaws are found in the investigation process including a lack of orderly sequences of documents supplied by the inquiry officials. Therefore, the assumption that the accused committed the offence was made in advance and evidence was simply corroborated to support the assumption without being based on rationale. The prosecutor thus fails to prove beyond doubt that the accused really committed the offence and according to the presumed innocence principle, the case should be dismissed.

During the submission of appeal motion on 20 February, another bail request shall be made and it is guaranteed by seven academics including Asst Prof Boonsong Chaisingkanond, Faculty of Arts, Silpakorn University, Asst Prof Dr. Puangthong Pakawaphan, Faculty of Political Science, Chulalongkorn University, Asst Prof Dr. Yukti Mukdavijit, Faculty of Sociology and Anthropology, Thammasat University, etc, as well as financial deposit from the Justice Fund, Rights and Liberties Protection Department. On 23 February 2012, the appeal court on the motion on bail was denied due to the possible risk of the defendant to jump bail.

In addition, since 8.00 am on Sunday 19 February until 8.00 am Monday 20 February, Mrs. Rosarin, Mr. Amphon’s wife, was on hunger strike to demand the bail which is a fundamental right of any citizen.

Mr. Amphon case is being handled pro bono by lawyers from the Human Rights Lawyers Association (HRLA), a network of young generation of lawyers.