Translation:Judgment of the Supreme Court of Justice No. 6083/2546/Syllabus

by the Supreme Court of Justice's Bureau of Judge Trainees

Final Appeal on the Basis of the Questions of Fact

Judgment of the Supreme Court of Justice No. 6083/2546

The Public Prosecutor, Office of the Attorney-General: Prosecutor

Mrs Suda PRATYAPHAT: Joint Prosecutor

Mr Soem SAKHONRAT: Defendant

CC, § 298

CrPC, § 218

The court of first instance adjudged the Defendant guilty of premeditated murder pursuant to the Criminal Code (“CC”), § 289 (4), and sentenced him to capital punishment. By virtue of the CC, § 78 in conjunction with § 52 (1), the capital punishment was reduced by one third to imprisonment for life. The court of second instance amended the judgment of the court of first instance that he was also found guilty of torturous or cruel murder under the CC, § 289 (5). On account of the offence of premeditated and torturous or cruel murder which was subject to the severest punishment, it sentenced him to capital punishment and, with reference to the CC, § 78 in collaboration with § 52 (1), reduced such punishment by one third to imprisonment for life. The Supreme Court saw the facts that the court of second instance merely amended the offence of premeditated murder in accordance with the CC, § 289 (4), to the offence of premeditated and torturous or cruel murder in connection with the CC, §§ 289 (4) and 289 (5), but retained the punishment of imprisonment for life. This is the insignificant amendment and the infliction of imprisonment for a term exceeding five years, in which event the prosecutor is prohibited from entering a final appeal on account of the questions of fact by the Criminal Procedure Code, § 218, ¶ 2. Such prohibition applies also to the Joint Prosecutor.

The facts that the Defendant shot the Deceased’s head, and that the bullet shot came into her left temple and went out of her right temple, indicated the Defendant’s intent to have her died immediately. Though the Deceased did not die at the very time she was shot and she was still alive whilst being decapitated by the Defendant, it was not certain as to how he did perform in order to commit an act of torture or cruelty against her. The facts that the Defendant shot the Deceased at her head and dismembered her remains, and that he then flushed certain parts of the remains away into toilet and threw the other parts into the Bang Pakong River, indicated the Defendant's intent to merely destroy the Deceased's remains for the purpose of concealing her death or cause thereof, not to have her sustaining affliction prior to murdering her. It was unable to hold the Defendant guilty of torturous or cruel murder pursuant to the CC, § 289 (5).

The facts that the Defendant had a gun and several knives in his room led to no other conclusion than the Defendant preparing for murdering the Deceased and remembering the Deceased's corpse. The facts that the Defendant, in short time and without having been seen, could bring the corpse of the Deceased away from his room to be discarded, had his gun and knives and her belongings hidden in various places as well as burnt her cloths away, indicated that he had previously planned on the places for discarding her remains and concealing her belongings and prepared the materials required for taking the parts of her dead body away. The Defendant was therefore adjudged guilty of premeditated murder.

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THE PROSECUTOR PREFERRED a charge remarking: On and at an uncertain date and time during January 1, 1998 to January 28, 1998, the Defendant committed several offences liable to several punishments, i.e. he had in his possession without having been licensed by the local registrar other person’s registered .38 short colt―official register no. RYG 177, filled with three .38 bullets―and carried it into the public roads and town without urgent needs according to the circumstances, and also shot it two times in town, village and community areas. Such event came to pass in Tambon Bang Pla Soi, Amphoe Mueang Chon Buri, Changwat Chon Buri, and connectedly in Khwaeng Phaya Thai, Khet Ratchathewi, Bangkok. Moreover, on and at an uncertain date and time during January 26, 1998 to January 28, 1998, the Defendant, intentionally and premeditatedly, murdered Ms Chenchira PHLOI-A-NGUNSI by shooting her head for one time. The bullet came into her left temple and went out of her right temple. The Defendant, with knives, dissected the corpse of Ms Chenchira, decollated her, enucleated both her eyes, cut her ears and nose off, slit her lips up and sliced her scalp, causing death to her. Such act of the Defendant was a kind of torture and cruelty, pursuant to the biometric report and the autopsic report annexed to the charge. Having murdered the Deceased, the Defendant threw certain parts of her remains, including her head, arms, legs and bones, into the Bang Pakong River, Changwat Chachoengsao, and further flushed the other parts, including fleshes, viscera and scalp, away into toilet, so as to conceal her death and the cause thereof. Also, the Defendant dishonestly took away her belongings, i.e. of two thousand baht cash, a chintz single-strap shoulder bag costing three thousand baht, a wristwatch costing six thousand baht, a tri-coloured necklace weighing one salueng and costing one thousand and four hundred baht, an animal-shaped bracelet weighing two saluengs and costing three thousand baht, a pager costing four hundred baht, a compact disc player costing five thousand baht, a talking dictionary costing nine thousand and five hundred baht and a wallet costing five hundred baht, being three hundred thousand, four thousand, four hundred and fifty baht in total. Such event occurred in Khwaeng Phaya Thai, Khet Ratchathewi, Bangkok, connectedly in Tambon Lat Khwang, Amphoe Ban Pho, Changwat Chachoengsao and in Tambon Bang Pla Soi, Amphoe Mueang Chon Buri, Changwat Chon Buri. On January 28, 1998, the police officers discovered the skull of the Deceased. Later on March 5, 1998, the police officers pursued and arrested the Defendant, and seized the exhibits, i.e. one short colt filled with one bullet, two .38 cartridges, one flower-designed bed sheet, one zinc bucket with burning marks and one black cloth bag. The Prosecutor applied for the punishments of the Defendant in pursuance of the CC , §§ 33, 91, 199, 288, 289, 334, 335, 371, 376, the Guns, Munitions, Explosive Devices, Fireworks and Improvise Guns Act, BE 2490 (1947) (“Guns Act”), §§ 7, 8 bis, 72 bis, and applied for confiscation of the gun and its munitions which were exhibits.

THE DEFENDANT PLEADED not guilty. However, in the course of examining the prosecution evidence, the Defendant admitted his guilt, but asserted that the murder was not premeditated or an act of torture or cruelty.

In the course of the trial, Mrs Suda PRATYAPHAT, mother of Ms Chenchira PHLOI-A-NGUNSI, Deceased, entered a motion for associating herself as Joint Prosecutor. The court of first instance granted the motion (in respect of the offence against life and the offence of theft).

THE COURT OF FIRST INSTANCE HELD that: The Defendant was guilty in connection with the CC, §§ 199, 289 (4), 334, 376, the Guns Act, §§ 7, 72 ¶ 3. As the Defendant committed several and different offences, he was thereby sentenced on account of each offence pursuant to the CC, § 91, as follows: In respect of the offence of premeditated murder and the offence of shooting gun in town which were committed concurrently, being one act liable to several punishments, the Defendant could only be punished by the most serious one―capital punishment. In regard to the offence of destroying a dead body or part thereof, imprisonment for a term of one year was imposed. In the matter of the offence of theft, imprisonment for a term of two years was inflicted. Apropos of the offence of possessing a registered gun of other person, imprisonment for a term of one year was given. Nonetheless, the Defendant’s admission of guilt during the arrest proceedings, the enquiry and the trial was information in favour of the court and in the interest of the trial which led to the extenuating circumstances under the CC, § 78 in collaboration with § 52 (1), whereby the punishments inflicted upon him could be reduced by one third as follows: As for the offence of premeditated murder, the punishment was reduced to imprisonment for life. As regards the offence of destroying a dead body or part thereof, the punishment was reduced to imprisonment for a term of eight months. Apropos the offence of theft, the punishment was reduced to imprisonment for a term of one year and four months. With respect to the offence of possessing a registered gun of other person, the punishment was reduced to imprisonment for a term of eight months. Nevertheless, when the Defendant was sentenced to imprisonment for life by result of the offence of premeditated murder, he did not need to undergo the other punishments any further. All other applications and accusations were dismissed.

THE JOINT PROSECUTOR AND THE DEFENDANT APPEALED to the court of second instance.

THE COURT OF SECOND INSTANCE AMENDED the judgment of the court of first instance as follows: The Defendant was also held guilty of torturous or cruel murder under the CC, § 289 (5). Since the offence of premeditated and torturous or cruel murder and the offence of shooting gun in town without justifiable grounds were committed simultaneously, being one act subject to several punishments, the Defendant could only be punished by the heaviest one only. He was thereby sentenced to capital punishment solely, on account of the offence of premeditated and torturous or cruel murder. Nonetheless, by virtue of the CC, § 78 along with § 52 (1), the capital punishment could be reduced by one third to imprisonment for life. Having calculated all the punishments inflicted upon the Defendant, the court of second instance sentenced him to imprisonment for life only. Apart from this, the judgment of the court of first instance was applied.

THE JOINT PROSECUTOR AND THE DEFENDANT FILED the final appeals.

THE SUPREME COURT OF JUSTICE (“Supreme Court”) RENDERED the following decision:

"THE SUPREME COURT ADJUDGED the following facts firm: The Defendant established his domicile in Changwat Chon Buri. He has graduated in bachelor’s degree of engineering. At the time of commission, the Defendant was twenty two whilst Ms Chenchira PHLOI-A-NGUNSI, Deceased, was twenty three. At such time, both were medical students: the Defendant was in the second year, and the Deceased, fifth. The Defendant and the Deceased knew each other as they were in a romantic relationship. According to the date and place indicated in the charge, the Defendant lured the Deceased to his rented room at the P.S. House apartment where he murdered the Deceased by shooting her head and decapitated and dissected her by himself. He then flooded into flush toilet certain parts of her remains, including fleshes, skins and viscera, and threw into the Bang Pakong River the other parts, including her bones and head. He also left her car at Mueang Thong Thani Village, and had his gun and knives and her belongings hidden and burnt away. On March 5, 1998, the police officers pursued and arrested him. In this Last Resort, the Joint Prosecutor, by a final appeal, argued that there existed not any extenuating circumstances whereby the punishments of the Defendant could be reduced; whereas the Defendant, by a final appeal, argued that he did not murder the Deceased torturously or cruelly, and he did murder her unpremeditatedly or by result of his sudden heat of passion. The Supreme Court found expedient to decide the final appeal of the Joint Prosecutor first.

"AS REGARDS THE QUESTION the Joint Prosecutor raised through her final appeal, the Supreme Court was of an opinion that: The court of first instance adjudged the Defendant guilty of premeditated murder pursuant to the CC, § 289 (4), and sentenced him to capital punishment. By virtue of the CC, § 78 incorporating § 52 (1), the capital punishment was reduced by one third to imprisonment for life. The court of second instance amended the judgment of the court of first instance that he was also found guilty of torturous or cruel murder under the CC, § 289 (5). On account of the offence of premeditated and torturous or cruel murder which was subject to the severest punishment, it sentenced him to capital punishment and, with reference to the CC, § 78 in collaboration with § 52 (1), reduced such punishment by one third to imprisonment for life. The Supreme Court saw the fact that the court of second instance merely amended the offence of premeditated murder in accordance with the CC, § 289 (4), to be the offence of premeditated and torturous or cruel murder in connection with the CC, §§ 289 (4) and 289 (5), but retained the punishment of imprisonment for life. This is the insignificant amendment and the infliction of imprisonment for a term exceeding five years, in which event the prosecutor is prohibited from entering a final appeal on account of the questions of fact by the Criminal Procedure Code (“CrPC”), § 218, ¶ 2. Such prohibition applies also to the Joint Prosecutor, for the reason that the CrPC, § 2 (14), prescribes: “‘Prosecutor’ defines a public prosecutor or victim who prefers a charge before the court, or, where a public prosecutor and a victim are Joint Prosecutors, both.” Since the Joint Prosecutor submitted the final appeal arguing that the Defendant deserves capital punishment, both inferior courts ought not to reduce the punishments inflicted upon him and there were no extenuating circumstances, her final appeal was demonstrably based on the questions of fact and thereby debarred from being lodged with the Supreme Court by virtue of the aforementioned law. Even though the court of first instance accepted her final appeal, the Supreme Court decided that it was unlawful and therefore dismissed it.

"THE FIRST QUESTION the Defendant raised through his final appeal was whether or not he murdered the Deceased torturously or cruelly, the Supreme Court entertained an opinion that: For a gun is destructively powerful by nature, it may be used to cause lethal danger to either human beings or animals. The facts that the Defendant shot the Deceased’s head―one of the most essential parts of the body―and that the bullet shot came into her left temple and went out of her right temple, indicated the Defendant’s intent to have her died immediately. Though it could be admitted according to the decision of the court of second instance that the Deceased did not die at the very time she was shot and that she was still alive whilst being decapitated by the Defendant, the evidence produced by both the Prosecutor and the Joint Prosecutor could, however, not demonstrate the Defendant’s intent to have her undergoing severe pain and suffering before dying, and it was not certain as to how he did perform in order to commit an act of torture or cruelty against her. Having taken into account the facts that the Defendant shot the Deceased at her head and dismembered her remains, and that he then flushed certain parts of the remains away into toilet and threw the other parts into the Bang Pakong River, the Supreme Court believed that he merely intended to destroy her remains for the purpose of concealing her death or the cause thereof, not to have her sustaining affliction prior to killing her. Hence, the Supreme Court, determining not to hold the Defendant guilty of torturous or cruel murder pursuant to the CC, § 289 (5), decided that it disagreed with the decision of the court of second instance and that this point of appeal of the Defendant was reasonable.

"THE NEXT QUESTION the Defendant raised in his final appeal was whether or not the Defendant murdered the Deceased premeditatedly or by result of his sudden heat of passion, the Supreme Court deemed that: It did not appear that the Defendant, who was a student at the time being, had many valuable property or any individual aiming for his life. Although the Defendant asserted he possessed a computer and a car, the Supreme Court considered computers and cars are owned by the general public, and both things are not valuable to the extent that the Defendant needed to possess any weapon for protecting them as argued. Furthermore, the rented room where the crime scene took place is part of the apartment without kitchen, and it did not appear that the Defendant prepared himself food; he did not need to have in his room the kitchen knives sharp to such an extent that they could be used for dissection. The fact that the Defendant had the said gun and knives in his room led to no other conclusion than the Defendant preparing for murdering the Deceased and remembering her corpse. Moreover, since the strong smell, bloodstains and lymph would be produced from the dissected remains, certain materials for envelopment and package, e.g. cloths, papers, plastic bags and boxes, were required in order to take the remains away from the room, to eliminate the bloodstains, lymph and strong smell and to conceal from the sights of other persons the parts of the dead body whilst being taken away; and since the Defendant, in short time and without having been seen, could bring the corpse of the Deceased away from his room to be discarded, had his gun and knives and her belongings hidden in various places as well as burnt her cloths away; all of these indicated that he had previously planned on the places for discarding her remains and concealing her belongings and prepared the materials required for taking the parts of her dead body away. As the court of second instance held the Defendant guilty of premeditated murder, the Supreme Court agreed. This point of appeal of the Defendant was therefore unreasonable. Moreover, as the Defendant argued that he murdered the Deceased for he was mentally oppressed by the seriously unfair circumstances, i.e. the Defendant and the Deceased were in a romantic relationship, but the latter desired to terminate their relationship in order to begin a new one with another male; the Supreme Court viewed that: Love irrepressibly accrues from heart. True love is goodwill to the one a person loves, gladness when that one is glad, forgiveness when that one does thing wrong and self-sacrifice for that one’s sake. The Defendant, however, wished to take possession of the Deceased for his own sake. Disappointing with her, he murdered her. This was such a selfish and covetous act of the Defendant singly, without being mindful of her heart and mind. And absolutely, it was not love, but the absence of understanding which would gravely be detrimental to the social. Even if the facts could be admitted as argued, the Supreme Court could never hold that she placed him under the seriously unfair circumstances. There were no grounds for imposing upon the Defendant lighter punishments than those provided for by law. As both inferior courts inflicted capital punishment on the Defendant and reduced it to imprisonment for life, the Supreme Court concurred in this decision. This point of appeal of the Defendant was therefore unjustifiable."

HEREBY, the judgment of the court of second instance is amended to be in conformity with the judgment of the court of first instance.

( Kamthon PHOSUWATTHANAKUN - Surachat BUNYASIRIPHAN - Kittisak KITTIKHUNPHAIROT )

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