Een aantal lezers heeft de redactie verzocht ook de Engelse vertaling van het vonnis te publiceren ivm de soms moeilijke leesbaarheid van de Nederlandse versie. Wij voldoen gaarne aan dit verzoek.
Vertaling overwegingen plus vonnis van Thai naar Engels
After deliberation of the Plaintiff and both Defendants’ evidence, the undisputed facts are that the first Defendant had 4 coffee shops in the Netherlands and did business dealing in cannabis, using the business name The Grass Company. The two Defendants are legally married to each other. Later, Mr. Ben Olde Engberink, a police officer in the Netherlands over the Southeast Asia, wrote a letter dated 14 July 2014 to the Office of the Attorney General of Thailand, requesting a criminal investigation into both Defendants regarding operating the said business and money laundering. The results of the investigation found that the actions of both Defendants were involved with the Kingdom of Thailand as follows: (Note: 1-43 according to the Plaintiff’s charge, except for the case of Swift, which merely say that there was a transfer on money from Deutsche Bank in Germany to K Bank.)
The total amount of money transferred to the account was 9,595,070.68 Euros or 388,802,827.72 THB according to the document showing ownership of property in Thailand belonging to the first Defendant, and the chart of transactions in exhibit Jor.11 and Jor.13 respectively.
Both Defendants used the names of other persons or companies to hold the properties. For example, Miss Wasana Theparak, a maid; Mr. Dechanat, the father-in-law of the first Defendant were shareholders or directors as shown by the company papers and auditor’s report in exhibit Jor.16 and Jor.17.
Mr. Dechanat opened 4 bank accounts: at Krung Thai Bank Central Pattaya Branch and Baan Amphoe Branch; Kasikorn Bank Pattaya Branch and Jom Tien Branch. The second Defendant opened 2 bank accounts at Krung Thai Jom Tien Branch to deposit assets into the account as shown on the document showing details of the investigation into the domestic financial trails of the first Defendant and the application to open an account, and the account statement of Mr. Dechanat and the second Defendant according to exhibit Jor.12 and Jor.20.
In the Netherlands, the case against the first Defendant under the charges of money laundering and criminal organizations related to drugs crimes by receiving or receiving benefits from the said business, and being involved with the coffee shops is under the investigation stage.
In both the arrest stage and the interrogation stage, the officials who arrested the two Defendants informed them of the charges of transnational criminal organization and money laundering. Both Defendants denied the charges according to exhibit Jor.33 and Jor.43 – Jor.46.
The matter that must be deliberated is whether both Defendants committed the offenses as charged or not. Both Defendants’ lawyers submitted a plea to rule on the basic legal points on 25 December 2014 (regarding unclear plaint). It is deemed that the Plaintiff described in the plaint that on unspecified dates and times, both Defendants were jointly involved with drugs, and illegally had drugs in their possession; namely cannabis; cultivated cannabis and sold cannabis by retail in large amounts; and jointly committed money laundering in the Netherlands and overseas.
They attempted to transfer, receive transfers or attempted to transform the form of assets that were gained from or related to drugs offenses; jointly concealed or hid the source of the assets and made any transaction to conceal or disguise the true nature of the source, location, sales, transfers and gain of any rights to property involved with the offenses. Therefore, this matter relates to the predicate offense involving drugs, and is not necessary to clearly specify the times and dates and places that are relevant. This is because the Plaintiff did not directly charge that both Defendants committed drugs crimes.
The Plaintiff’s plaint is therefore a plaint that describes the known actions of both Defendants. The relevant facts and details regarding persons, places, times and dates are sufficient for the defendants to understand the charges. It is lawful pursuant to Article 158(5). The Plaintiff’s plaint is not unclear or obscure and fulfills the elements of offense as charged by the Plaintiff.
The plea to rule on legal on basic legal points on 17 March 2015 summarized that the predicate offense did not occur in Thailand and the Thai government therefore is not the injured party, the Plaintiff has no authority to investigate and the Plaintiff has no jurisdiction to pursue a case.
It is deemed that the deliberation must be along the same direction: whether or not the Defendants committed the offenses according to the Plaintiff’s plaint.
In the first point, does the Attorney General have the authority to investigate that will allow the Plaintiff to have jurisdiction over the case? The basic facts are concluded that the first Defendant had coffee shops selling cannabis at many locations in the Netherlands. This is deemed to be an offense committed outside the Kingdom as charged in the plaint, but as to whether or not this is an offense under the Money Laundering Act in which it can be deemed that the investigative officials and the Plaintiff have jurisdiction to sue, it must be considered by the aforementioned law.
Article 3 gives that definition of predicate offense to be drugs crimes according to anti-drugs laws or laws regarding measures to suppress drug offenders. In paragraph 2, the meaning includes crimes committed outside the Kingdom in the case that if the crime had been committed in the Kingdom, it would have been a predicate offense. This law is related to national security that aims to prevent any person from using the Kingdom of Thailand as a tool to transform the form of assets gained through offenses, especially offenses committed outside the Kingdom, and using the Kingdom of Thailand as a passageway, tool or means to cause another offense to occur as stipulated by law. Also, drug offenses committed outside the Kingdom cannot be deliberated according to the laws of each country, because it is the sovereignty of each country and state.
Therefore it can only be deliberated whether the offense in other states is an offense or not depends on whether or not the same action would be a predicate offense by law if committed in the Kingdom. As the facts are concluded that the first Defendant sold cannabis, and had cannabis in possession the Netherlands, if The first Defendant had committed the same actions in Thailand, it is deemed that had the first Defendant distributed or possessed cannabis, which is a Schedule 5 drug, without permission to do so in Thailand, it would be an offense according to Article 26 of the Drugs Act, which is a law regarding the suppression and prevention of drugs. Even though the first Defendant had cannabis in his possession or sold cannabis in the Netherlands, which is an action outside of the Kingdom, regardless of whether it is and/or may be or may to be an offense in the Netherlands, it must be deemed to be a predicate offense according to Article 3 of the Money Laundering Act.
Since the predicate offense committed outside the Kingdom according to Article 20 of the Criminal Procedures Code is stipulated that the Attorney General is to be responsible, or to delegate the task. Therefore, as the Plaintiff presented that on 18 July 2014, the Attorney General issued order No. 1297/2557 (exhibit Jor.22) and the appointment order according to the Transnational Criminal Organizations Act (exhibit Jor.24), it must be deemed that the investigation of both Defendants was lawful and the Plaintiff has jurisdiction to proceed with the case against both Defendants.
It is also deemed that the actions of both Defendants according to the Plaintiff’s charge constitute a predicate offense according to Article 5 of the Money Laundering Act. In this matter both Defendants presented in rebuttal that the Prosecutor conducted investigation beyond their authority and beyond what the Public Prosecutor in the Netherlands had requested. The court views that according to the plaint, the investigative officials conducted investigation into money laundering, so it was within the authority of the investigative officials according to the Criminal Procedures Code which gives authority to compile evidence and proceed as stipulated by law. The investigative officials conducted their investigation into the alleged offense in order to find out the facts to the fullest extent.
Whatever was requested by the Public prosecutor of the Netherlands is not a point of deliberation and it is deemed that the investigation was lawful. As for the matter that the Defendant claimed that the said action is not a crime in the Netherlands, and there has been no case whatsoever pursued against the first Defendant a court in the Netherlands, when an action committed outside the Kingdom and is considered to be a predicate offense under the Money Laundering Act, it is restricted only that is the said action is committed outside the Kingdom and is a drugs offense, as accused, it is not necessary to consider the court procedures in the Netherlands.
Therefore it is necessary to adjudge whether or not both Defendants jointly committed offenses and made transactions according to the charges in clauses 1.1-1.43 of the plaint. The court views that the Plaintiff presented Mr. Eric van Otterlo, a policeman in the Netherlands, as a witness who testified that he investigated the involvement of the various juristic persons. Details are shown by the chart of the company structure of the Grass Company according to exhibit Jor.9. The first Defendant was the true beneficiary. The first Defendant has an elder brother named Mr. Francis. He was the joint owner with the first Defendant of properties in the Netherlands, for example, the building that was searched, 3 in 4 coffee shops were in the name of someone named Het Laar… and Het Laar Investment BV.
The witness investigated the financial trails and found that money from the coffee shops in the Netherlands was transferred to accounts in Luxembourg, to accounts in Singapore, and Thailand by electronic transfer. And the Plaintiff witness from the DSI testified in consistence that the witness investigated the companies and information from the deposits of foreign currency into both Defendants’ bank accounts. This was done by issuing letters of request to investigate to the various banks and also investigated the account pages. It was found that money was transferred to Kasikorn Bank which still had deposits of interest as before, (as shown by exhibit Jor.12) of the first Defendant. This came from the account of the first Defendant through a system of transfer through the internet which must use the code of the source account owner in Germany. Money could then be transferred to Thailand.
From the investigation, of the place of business of both Defendants, it was not found that they were conducting business as specified in the Partnership registration papers. An empty room was found, and the people in the locality said that no one was doing business there. And was appointed according to exhibit Jor.20 page 80/2 to be responsible for the first Defendant’s account books in which money was transferred to accounts in Thailand. Furthermore, the Plaintiff presented evidence on assets, houses, land and cars in the various periods of time according to exhibit Jor.13, which matches the Plaintiff’s charges of conducting transactions in clauses 1.1-1.43.
Both Defendants did not present evidence to counter this charge at all, only claimed that they had money from other business in the coffee shops, such as snooker tables, souvenirs, food and non-alcoholic drinks. This were merely claims, and no evidence was shown to prove that the money came from other business from proper shops in how much amounts and… how much. The claims of both Defendants are baseless, and unbelievable. Therefore the evidence presented by the Plaintiff regarding the various transactions of both Defendants is believed.
However, it is viewed that as the Plaintiff had charged that both Defendants jointly committed the offense according to the plaint, the Plaintiff has the responsibility to clearly prove that the first Defendant and The second Defendant jointly committed the offense. When the various types of transactions according to the plaint are considered, such as transferring money from overseas into accounts, and withdrawing that money according to the Plaintiff’s plaint in clauses 1.1, 1.2, 1.9, 1.10, 1.12, 1.14, 1.16, 1.17, 1.21, 1.22, 1.25, 1.26, 1.32, 1.34, 1.35, 1.36, and 1.37; plus the purchase of a yacht in clauses 1.4 and 1.13; and the purchase of land under Mr. Dechanat’s name as director according to clauses 1.27, 1.28, 1.29, 1.30, 1.31, 1.33, 1.38, 1.39, 1.42 and 1.43, the Plaintiff did not prove that The second Defendant had any participation with The first Defendant in this offense or had any involvement with the purchase of assets. So it is only believed that the first Defendant committed the offenses as charged. The second Defendant was not involved with the commission of offenses in clauses 1.1, 1.2, 1.4, 1.9, 1.10, 1.12, 1.14, 1.16, 1.17, 1.21, 1.22, 1.25, 1.26, 1.27, 1.28, 1.29, 1.30, 1.31, 1.32, 1.33, 1.34, 1.35, 1.36, 1.37, 1.38, 1.39, 1.42 and 1.43.
As for the offenses in clauses 1.3, 1.5, 1.6, 1.7, 1.8, 1.11, 1.15, 1.18, 1.19, 1.20, 1.24, 1.40, and 1.41, it is viewed that even though the name of the second Defendant only was involved, which the Plaintiff presented evidence all along and both Defendants also presented evidence that it was money from the first Defendant, and the second Defendant did not have income or sources of the money to be able to purchase those assets. It is deemed to be money gained from the first Defendant. Therefore it is believed that both Defendants collaborated to commit the offenses according to the Plaintiff’s charges. In clauses 1.3, 1.5, 1.6, 1.7, 1.8, 1.11, 1.15, 1.18, 1.19, 1.20, 1.24, 1.40 and 1.41; a total of 13 counts. It is ruled that both Defendants are in violation of the Money Laundering Act.
The first Defendant according to clauses 1.1, 1.2, 1.16, 1.17, 1.22, 1.23, 1.24, 1.25, 1.26, 1.32, 1.34, and 1.37; a total of 12 counts. The penalty shall be imprisonment for 5 years on each count; a total of 60 years.
According to clauses 1.4, 1.9, 1.10, 1.11, 1.12, 1.13, 1.14, 1.21, 1.35, 1.36, 1.42, and 1.43; a total of 12 counts. The penalty shall be imprisonment for 2 years on each count; a total of 24 years.
According to clauses 1.3, 1.5, 1.6, 1.7, 1.8, 1.15, 1.18, 1.19, 1.20, 1.27, 1.28, 1.29, 1.30, 1.31, 1.33, 1.38, 1.39, 1.40, and 1.41; a total of 19 counts. The penalty shall be imprisonment for 1 year on each count; a total of 19 years.
The total is 43 counts; for a total of 103 years.
As for the second Defendant, according to clause 1.24, the imprisonment shall be 5 years; according to clause 1.11, the imprisonment shall be 2 years; according to clauses 1.3, 1.5, 1.6, 1.7, 1.8, 1.15, 1.18, 1.19, 1.20, 1.40 and 1.41, a total of 11 counts, the imprisonment shall be 1 year per count for a total of 11 years. The total is 13 counts and altogether 18 years imprisonment.
The testimony and evidence of both Defendants was beneficial to the deliberations, and is a cause for commutation of the sentences for both Defendants by 1 third. The first Defendant shall be imprisoned for 68 years and 8 months; the second Defendant shall be imprisoned for 12 years. As for the first Defendant, when all counts are compiled, the imprisonment shall be 20 years according to the Criminal Code Article 91 second parenthesis.
The charges against the second Defendant shall be dismissed in regards to clauses 1.1, 1.2, 1.4, 1.9, 1.10, 1.12, 1.13, 1.14, 1.16, 1.17, 1.21, 1.22, 1.23, 1.25 – 1.39, 1.42 and 1.43.