Translation:Act Amending the Penal Code (No. 21), 2551 BE

by National Legislative Assembly of Thailand

Table of contents 

The Act

Preamble

Section

1. Title
2. Commencement
3. Amendment to §41: child incarceration
4. Amendment to §46: execution of bond
5. Amendment to §73: liability of children not yet over 10 years of age
6. Amendment to §74: liability of children between 10–15 years of age
7. Amendment to §§75–76: liability of persons between 15–20 years of age
8. Amendment to §94: increase of punishments for persons not yet over 18 years of age

Statement of grounds

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Seal of the Royal Command

Act
Amending the Penal Code (No. 21),
2551 BE

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Bhumibol Adulyadej R
Given on the 31st day of January 2551 BE
Being the 63rd year of the present reign

Phra Bat Somdet Phra Paramin Maha Bhumibol Adulyadej gives a great royal command by which He orders with His pleasure that it be announced as follows:

Whereas it is appropriate to amend the Penal Code;

Therefore, by and with the advice and consent of the National Legislative Assembly, He orders with His gracious pleasure that the following Act be enacted:

Section⁠1.⁠This Act is called the "Act Amending the Penal Code (No. 21), 2551 BE".

Section⁠2.⁠This Act shall come into force from the day following the day of its publication in the Royal Gazette onwards.

Section⁠3.⁠The stipulations of paragraph 2 of section 41 of the Penal Code shall be repealed and replaced by the following stipulations:

"Offences committed by offenders whilst aged under eighteen years shall not be deemed to be offences which may be taken into consideration for the incarceration under this section."

Section⁠4.⁠The stipulations of section 46 of the Penal Code shall be repealed and replaced by the following stipulations:

"Section⁠46.⁠If it becomes known to a court from a proposal of a public prosecutor that any person would cause an unfavourable incident by which danger would be brought about to a person or property of another person, or would commit any act by which injury would be brought about to the environment or natural resources according to the law on environment and natural resources, [or] in trying any offence, if [the court] finds a reasonable cause to believe that the charged person is likely cause an unfavourable incident by which danger would be brought about to a person or property of another person, or likely to commit an offence by which injury would be brought about to the environment or natural resources according to the law on environment and natural resources, regardless of whether or not the court would punish the charged person, the court shall have the power to order him to post a bond in which an amount of money not more than fifty thousand baht is designated, with him promising that, throughout the time designated by the court but not over two years, he will not cause the unfavourable incident or will not commit the offence as said, and [the court] may order the provision of security also.

If he refuses to post the bond or fails to provide security, the court shall have the power to order his confinement until the bond is posted or the security is provided successfully, but the confinement shall not be longer than six months, or [the court] may order prohibiting him from entering the areas as designated under section 45.

The acts of a person aged under eighteen years shall not be subject to the provisions of this section."

Section⁠5.⁠The stipulations of section 73 of the Penal Code shall be repealed and replaced by the following stipulations:

"Section⁠73.⁠⁠A child aged still not over thirteen years who commits an act which the law prescribes to be an offence shall not be punished

The inquiry official shall send the child under paragraph 1 to a competent official under the law on child protection so that the welfare protection under the law thereon would be implemented."

Section⁠6.⁠The stipulations of paragraph 1 of section 74 of the Penal Code shall be repealed and replaced by the following stipulations:

"Section⁠74.⁠A child aged above ten years but still not over fifteen years who commits an act which the law prescribes to be an offence shall not be punished, but the court shall have the power to proceed with him in the following manners:

(1)⁠⁠the child may be given admonition or warning and then released, and if the court finds it appropriate, it may summon the father, mother, guardian, or person with whom the child resides to appear and receive warning also;

(2)⁠if the court finds that the father, mother, or guardian is still able to take care of the child, the court may issue an order entrusting the child to the father, mother, or guardian, laying down an ordinance requiring the father, mother, or guardian to prevent the child from causing an unfavourable incident throughout the time designated by the court, which must not be over three years, and designating an amount of money as may be found appropriate, but not over ten thousand baht, which the father, mother, or guardian will have to pay to the court every time the child causes the unfavourable incident;

if the child resides with another person than the father, mother, or guardian, and the court finds that it is not appropriate to summon the father, mother, or guardian to appear and attend the laying down of such an ordinance as said above, the court may summon the person with whom the child resides to appear, and ask him if he would accept an ordinance similar to one prescribed for the father, mother, or guardian as said above; if the person with whom the child resides accepts such ordinance, the court shall issue an order entrusting the child to such person and laying down the said ordinance;

(3)⁠⁠in the event that the court entrusts the child to the father, mother, guardian, or person with whom the child resides according to (2), the court may also designate for the child the same conditions for supervision of behaviour as those prescribed in section 56; in such event, the court shall appoint a probation official or any other official to supervise the behaviour of the child;

(4)⁠⁠if the child has no father, mother, or guardian, or has one whom the court, however, finds unable to take care of the child, or if the child resides with another person than the father, mother, or guardian, and the person does not accept such ordinance as said in (2), the court may issue an order entrusting the child to a person or organisation that the court finds appropriate for the purpose of providing care, instruction, and teaching for a period of time designated by the court, when the person or organisation consents thereto; in such event, the person or organisation shall have the power as a guardian only for the purpose of providing care, instruction, and teaching, as well as for designating the residence and arranging for the child to carry out work as appropriate; or the welfare protection under the law thereon may be implemented for the child; or

(5)⁠⁠the child may be committed to a school, or place of training and instruction, or place set up for training and instructing children, throughout a period of time designated by the court but not longer than the day the child completes the eighteenth year of age."

⁠Section⁠7.⁠The stipulations of section 75 and section 76 of the Penal Code shall be repealed and replaced by the following stipulations:

"Section⁠75.⁠Whoever aged above fifteen years but under eighteen years commits an act which the law prescribes to be an offence may be dealt with in accordance with section 74, if the court finds it inappropriate to adjudge him to punishment after considering his sense of right and wrong and all other things relating to him in order to rule as to whether he should be adjudged to punishment, or may have the scale of punishment designated for his offence deceased by one half, if the court finds it appropriate to adjudge him to punishment.

Section⁠76.⁠Whoever aged above eighteen years or but still not over twenty years commits an act which the law prescribes to be an offence may have the scale of punishment designated for his offence decreased by one third or one half, if the court finds it appropriate."

Section⁠8.⁠The stipulations of section 94 of the Penal Code shall be repealed and replaced by the following stipulations:

"Section⁠94.⁠Negligent offences, petty offences, and offences committed by offenders whilst aged under eighteen years, whether committed on previous occasions or on subsequent occasions, are not deemed to be offences for which the punishment can be increased in accordance with the stipulations of this chapter."

Countersignatory:
General Surayud Chulanont
Prime Minister

Note: The grounds for promulgation of this Act are as follows: At present, the child age criteria designated for cases in which criminal offences are committed by children are not yet proper and still disagree with the child age criteria designated in various laws of Thailand as well as the the United Nations' Convention on the Rights of the Child 1989 and International Covenant on Civil and Political Rights 1966, to which Thailand has become a party. Medical studies reveal that children aged between seven years and twelve years are void of the sense of conscience and lack the ability to conjecture the outcome which may arise from their action, due to their still imperfect cognitive, intelligent, and ethical development. In addition, statistical studies have been carried out in regard to the commission of offences by children in various ages, which show low or no any statistic of offences committed by children aged between seven years and twelve years. Moreover, many of the Thai laws designate the fifteenth year of age as child age criteria, such as section 5 of the National Identity Cards Act, 2526 BE, which requires Thai nationals to apply for national identity cards upon completing the fifteenth year of age, section 44 of the Labour Protection Act, 2541 BE, which prohibits employers from accepting children under fifteen years of age as their employees, and section 17 of the National Education Act, 2542 BE, which designates that there be compulsory education for nine years and requires children turning seven years old to attend institutions of basic education until turning sixteen years old, thus indicating that fifteen-year-old children are legally accepted as having come of age and being capable of responsibility. Furthermore, children at the said age are still in school and should be given a chance to change and reform their behaviour instead of suffering a criminal punishment. At the same time, the United Nations' Convention on the Rights of the Child 1989 and International Covenant on Civil and Political Rights 1966, as well as the Act Establishing Juvenile and Family Courts and Juvenile and Family Case Procedure, 2534 BE, designate the age under eighteen years as child age criteria. It is appropriate to amend the Penal Code so as to designate in a proper manner and in line with laws of Thailand and the said international conventions the child age criteria for cases of criminal offences committed by children. Therefore, it is necessary to enact this Act.

Bibliography

• "Phra Ratcha Banyat Kaekhaiphoemtoem Pramuan Kotmai Aya (Chabap Thi Yisip Et) Phoso Song Phan Ha Roi Hasip Et" [Act Amending the Penal Code (No. 21), 2551 BE]. (2008, 7 February). Ratchakitchanubeksa [Royal Gazette], 125(30A), 19–23. (In Thai).