Thailand amends drug law to reduce penalties and ensure more proportionate sentencing

After about two years of debate on drug policy reform in Thailand, the first amendments to the drug law were adopted and took effect on 16 January 2017. The reform momentum was driven largely by serious problems with prison overcrowding and a burgeoning prison population. Thailand has the largest prison population in Southeast Asia and the 6th largest in the world, along with the world’s highest rate of female incarceration, mostly in relation to minor drug offences. Some key milestones over the past two years have been discussed on the IDPC blog:

• A push for decriminalisation and harm reduction approaches to methamphetamine in Thailand, 17 January 2017.
• Is drug decriminalisation on the cards for Thailand?, 30 June 2016.
• Drug law reform is coming to Thailand but how far will it go?, 16 July 2015.

The key changes adopted by the country’s National Assembly concern reductions in penalties for possession, import/export and production for sale. These legislative amendments also modify how culpability is determined, replacing mandatory sentences (in cases where the amounts seized exceed a designated threshold) with a rebuttable presumption of the intention to sell controlled drugs. In this new framework, the role of lawyers could be significantly more important, as the legal defence is given broader latitude to put forward evidence and arguments to contest the presumed supply offence.

Further details about the legislative amendments are provided in the summary translation of an article, originally in Thai, below.

For another perspective on these reforms, see this blogpost by Mel Larcombe.

SUMMARY TRANSLATION

Approval of amendments to Thailand’s drug law allowing for drug dealers not to be executed and opportunities for the accused to prove his or her innocence. [article by iLaw in Thai at this link: https://ilaw.or.th/node/4352, dated 2 December 2016]

On November 24, 2016, the National Legislative Assembly (NLA) approved the adoption of new amendments to Thailand’s Narcotics Act. The changes were unanimously voted 196 Yes and 0 No.

The Narcotics Act institutes 5 categories of drugs as follows:

Category 1: Heroin; Amphetamine; Methamphetamine; MDMA (Ecstasy); LSD

Category 2: Cocaine; Codeine; Methadone; Morphine

Category 3: Narcotics in the form of medicinal formulas containing narcotics of Category 2;

Category 4: Narcotics which consist of chemicals used for producing narcotics in Category 1 or 2, such as acetic anhydride, or acetyl chloride and;

Category 5: Cannabis, psychoactive mushrooms, and the kratom plant

Under the former Narcotics Act BE2522 (1979), anyone in possession of drugs was automatically assumed to be intending to sell them. But the new amendments lift this assumption.

The previous Narcotics Act made anyone in possession of drugs to be "regarded" as intending them for sale. Under these amendments, anyone in possession of drugs is now "presumed" to have them for sale.

Changing the word "regarded" to the word "presumed", allows designated officers to investigate the circumstances and the real intent of the accused. Simultaneously, it also gives judges more freedom to use their discretion to determine the penalty for the accused. The accused can further defend their innocence during the criminal proceedings.

Amendment to Article 15 of the Narcotics Act: sale of drugs

"Producing, importing, exporting, or having in possession of drugs in Category 1” is to be presumed for the sale of drugs when the accused if found in possession of:

(1) Dextrolyzer or LSD with purity amounting to 0.75 milligrams or more, equivalent to 15 doses or more, or in pure weight of 300 milligrams or more.

(2) Amphetamine or derivatives of amphetamine with purity amounting to 375 milligrams or more, equivalent to 50 doses or more, or in pure weight of 1.5 grams or more.

(3) Category I drugs, unless falling under (1) and (2) above, of a quantity computed to be 3 grams or more in purity.

Amendment to Article 65 (1): change of penalty to be less punitive for "those who produce, import or export":

Old Act
“Life imprisonment and a fine of 1 million baht - 5 million baht."

Amendments
Imprisonment ranging from 10 years to life imprisonment and a fine of 1 million baht - 5 million baht

Amendment to Article 65 (2): change of penalty to be less punitive for "the sale of drugs":

Old Act
Death Penalty

Amendments
Life imprisonment and a fine of 1 million baht - 5 million baht, or death penalty.

Amendment to Article 65 (3): (the quantity thresholds are under Section 15, para 3) The old version of the Act defined the quantity thresholds in article 15, para 3, and the penalty for production of drugs for retail in cases where the threshold quantities are not met. However, with the amendments, the reference to quantity thresholds have been removed, creating ambiguity in terms of the penalty to be applied in cases where the quantity thresholds are not met. This is the case with Article 67 as well, outlined below.

Old Act:
If the offence in para 1 is production for retail or wholesale and the quantity registered does not reach the quantity thresholds prescribed in Section 15(3), the offender shall be liable to imprisonment for a term of 4 years to 15 years, or to a fine of 80,000 - 300,000 baht, or to both

Amendments
If the offence in para 1 is production for retail or wholesale the offender shall be liable to imprisonment for a term of 4 years – 15 years, or to a fine of 80,000 to 300,000 baht or to both.

Article 65 (4), keeps the same provision; that is: “If the offence under para 3 is committed for sales, the offender shall be imprisoned for a term of 4 years to life and imposed a fine of 400,000 - 5 million baht.”

Article 67 – penalties have been reduced for the possession of drugs:

Old Act
Anyone in possession of drugs under para 1 without permission and in a quantity that does not reach the quantity thresholds prescribed in Section 15 (3), shall be liable to imprisonment for a term of 4 years to 15 years, or to a fine of 20,000 to 200,000 baht or to both.

Amendments
Anyone in possession of drugs under para 1 without permission shall be liable to imprisonment for a term of 1 year to 10 years, or to a fine of 20,000 - 200,000 baht, or to both.

The amendments can apply to an offender who has already received their judgement from a court of first instance, but has yet to start serving their sentence. As such, they have a chance to be sentenced in accordance with the amended Narcotics Act.

The application of the amended Narcotics Act is divided into 2 categories;

Article 8, para 1: An offender, who has already received their judgement as specified in Article 15 (3), Article 17 (2) and Article 26 (2) before the amendment of the Act, is to comply with the old version of the Act until the judgement is finalised by the highest court.

Article 8 para 2: For any pending cases in the court of first instance, the offender can appeal to the court for further evidence and investigation to prove their innocence. This is because in the old version of the Act, there is no need for the accused to prove their innocence i.e. if the quantity found in possession by the accused exceeds the threshold limits, the accused is automatically liable for the penalty of ‘selling drugs’. However, under the amendments, the accused can now only be ‘presumed’ to have drugs in possession for the intention to sell.

Article 9: in the case of an accused who has received their judgement from the court of first instance according to article 65 (1) before amendment of the Narcotics Act, or where the accused has not yet received the penalty or started serving the sentence, or where an appeal is made to the court of the first instance to revise the sentence in accordance with the amendments to article 65 (1), the court may order any additional relevant investigations as deemed necessary. If an offender has already started to serve their sentence, the court can order for the offender to finish the remaining sentence or the court can make an order to release the offender.