The Appeals Court on Wednesday upheld the acquittal of computer programmer Surapak Phuchaisaeng on a charge of lese majeste.
Mr Surapak, of Bung Kan province, was arrested in 2011. On Oct 31, 2012 the Criminal Courtfound him not guilty of lese majeste charges, giving him the benefit of the doubt.
The Appeals Court rectified the "incomplete verdict" of the court of first Instance and ordered the return of Mr Surapak's computers that were seized by police.
The court ruled the prosecution had presented poor evidence on a sensitive charge that required thorough and fair judgement in a time of political crisis.
The clear-cut verdict brought beamng smiles to the faces of 42-year-old Surpak and his 71-year-old mother, who travelled from the northeastern province to Bangkok for the judgement..
"I'm grateful to the court for fully understanding core justice principles and also giving a clear order to release my computer from police forensic custody," said Mr Surapak, who has been living and working in Bangkok as a computer programmer and software provider.
Surapak Phuchaisaeng (Photo by Thanarak Khoonton)
Mr Surapak was arrested on Sept 2, 2011 in the parking lot of a Ladprao apartment building where he lived, several months after the Technology Crime Suppression Division (TCSD) had begun surveilling him.
The police accused Mr Surapak of owning the dorkao@hotmail.com account allegedly used as a log-in name for the Facebook page “We Would (reign) the Land by Coup”.
Five postings on the Facebook page from May to August 2011 were deemed insulting of the monarchy.
The Appeals Court said prosecutor's appeal documents did not shed any new light on the case. It was not the defendant's obligation to defend these accusations but the duty of the prosecutor to bring strong evidence to the court.
The court also asked why the prosecution had not brought police informant Manaschai Saengsawasdi, who spied on Mr Surapak, to testify to the court. This was unfair and an abuse of police power.
The court said the lawsuit was brought against Mr Surapak in the context of a volatile Thai society. Such accusations of lese majeste are very sensitive, so in weighing evidence, a judge needed to be very careful and assert utmost and thorough consideration and judgement, even more than for other criminal lawsuits.
"The obligation to prove that defendant committed a crime was the prosecutor's, not the defendant's, but the prosecutors failed to do so even during the appeal process," the court said.
The prosecutor's claim that the defendant was a "computer wizard" which made finding proof of his alleged offence more difficult was not a valid point, the court said.
In reading the verdict, the court spent eight minutes glorifying the values and role of the monarchy.
"The institution has proven indispensable and valuable in our history and even more importantly in the current time of political transition as a body that will help seal Thailand against being separated," the court said.
The constitutional monarchy was a suitable political regime that would cement national security, the court said.
"The charges could have sent the defendant to jail, restraining his rights and liberty. Hence, given the benefit of the doubt, the Appeals Court decided to uphold the Court of First Instance's judgement that he did not commit the crime," the court said.
Mr Surapak was detained without bail throughout the first trial until he was acquitted in October last year.
During the Criminal Court proceedings he and a scholar who taught computer science at the Royal Thai Navy Academy explained how he was framed by the police.
The defendant argued that usually an internet temporary file or cache file would appear in the first partition of the computer disk, but the two files which the police provided as evidence to nail him appeared in the second partition.
Also, data about the time and date of the last access and the modified date should be the same, but the figure (of the computer time) in the police paper did not show this, he told the court.
Mr Surapak said the data of the source post (the temporary files/or cache) showed strange information that the alleged Facebook page was open and closed immediately within the same second, which no Facebook user would normally do.
"The source post that appeared here has used freeware to develop and paste and save into the cache file in the third partition of the exhibit computer," said Mr Surapak during the first trial.
He demonstrated to the court how the alleged temporary file saved in HTML form was created. The demonstration showed that the Facebook normal page would appear in the URL in PHP form, not HTML.
He also explained that a smart computer user normally erased the internet cache from time to time to prevent any virus such as a trojan from penetrating the computer files.
Mr Surapak showed the court that a Microsoft report showed a Windows connection on Sept 2 at 8.13pm, an attempted link via local area network (LAN)) and again on Sept 7 at 9.12pm via Wifi.
"This means somebody was activating my computer while I was in police custody and before the computers were handed over to the police computer forensic experts," Mr Surapak told the court.
Defence witness Kittipong Piyawanno, a lecturer at the Royal Navy Academy's Engineering Department, said usually the source post of the HTML document would appear in both header and body and the user normally saw the document in body form, but the police evidence showed only the header form, which did not have all letters that should appear in the header form.
Mr Kittipong, a German educated computer expert, said the source post log that police showed as a Facebook page but saved in the HTML form could never occur.
If the Facebook use was to appear in the cache file, it must be in the form of a php file, said navy Capt Kittipong, adding that the source post provided by the police looked like it was created manually and amended.
The real form of either header or body of the source post would also be longer than the lines provided here.
Also, letters appeared in the source post would appear in same form, not italic, but the police document showed italic on the word "dorkao@hotmail.com", he said.
Mr Kittipong emphasised that using Facebook would not create a cache file as that was the Facebook owner's security and privacy policy. The system would show no cache, no store. This HTML file would definitely not appear when browsing Facebook. Someone must have saved it into the exhibit computer.
The expert also said that the IP address appearing in the police document on Sept 7 was the IP address of a very large organisation. Individual and/or normal organisations would begin with 192.68. ... but those in the police paper began with 10.100.....
The defence lawyer asked the expert if the police computer forensic report used to charge his client was adequate and credible He said the document did not show that the police had followed appropriate protocol.
The exhibit computer must not be touched at all, Mr Kittipong said, "They have to do the hashing (copying) of the hard disk, by taking out the hard disk and using this hashed copy, considered to be like a fingerprint of the computer, for further checks," Mr Kittipong said.
"Providing evidence that did not conform with normal protocol ... meant the police evidence was not credible," he said.
He added the police evidence even showed that the computer was activated twice while it was not in the possession of the defendant.
In conclusion, he said that the defendant might be the victim of a witch hunt by people who believed he might be disloyal to the monarchy.