PRACTICAL ASPECTS OF MUTUAL LEGAL ASSISTANCE IN
FINANCIAL INVESTIGATION AND ASSET RECOVERY IN
CORRUPTION CASES
Akareeya Ngamwongpaiboon*I. INTRODUCTION
Corruption is one of the most serious crimes that affects economic stability, the rule of law
and healthy democracy in all jurisdictions. According to the Corruption Perception Index 2018,
more than 120 countries failed to reach a 50/100 score-benchmark, revealing ineffective control
over corruption.1 Corruption is found to be one of the five major crimes in Thailand, inter alia,
drug offences, tax evasion, unfair securities trading and customs evasion, which all together
contribute to 86 per cent of all crime-generated assets. 2 The reason why corruption persists isbased on its economic and monetary incentives. The risk of punishment, in the view of corruptors,
outweighs the risk of their opportunity for pecuniary gains. Money is clearly seen as the ultimate
goal which incentivizes the criminals as well as the proceeds of crime itself. In most cas es,
government financial resources are moved, in disguise, mostly from one country and placed intoanother country which would be layered through more complicated means, and subsequently
gathered by innovative integration. Transnational corruption, rather than traditional domestic
corruption, is the trend. This transnational corruption calls for effective international legal
cooperation to combat such crime. UNCAC and UNTOC are the two prominent international
legal instruments that strengthen and promote international legal cooperation. The framework
introduces, inter alia, mechanisms to facilitate formal cooperation, mutual legal assistance (MLA)
and informal cooperation among relevant agencies.
II. LEGAL BASIS FOR MUTUAL LEGAL ASSISTANCE
In accordance with international norms, seeking and providing mutual legal assistance incriminal matters to and from Thailand is premised on treaty and domestic law. The Act on MutualAssistance in Criminal Matters 1992 (the MLA Act), Thai domestic MLA law, has been thefoundation for mutual legal assistance in Thailand. It permits Thailand to provide assistance to aRequesting State based on an MLA treaty and even in the absence of treaty on mutual assistancein criminal matters, provided that the Requesting State must demonstrate its commitment toprovide assistance in a similar manner if Thailand so requests. The Act also sets forth preconditions
for granting assistance including dual criminality, grounds for refusal and specific conditions toeach type of assistance. The Attorney General or a person designated by him shall be the Central
Authority of Thailand for both MLA and extradition requests. With regard to MLA, the Central
Public Prosecutor, International Affairs Department, Office of the Attorney General, Thailand.
https://www.transparency.org/cpi2018 (accessed 12 October 2019).
2Anti-money-laundering and counter-terrorist financing measures Thailand Mutual Evaluation Report December
2017, p. 5 and p. 16.
*1- 124 -Authority has the power and duty to handle and process both incoming and outgoing requests,
transmit them to the competent authority, draft the outgoing request, and to approve and monitor
requests.
In 2016, the MLA Act was significantly amended to be in line with international standards byincluding necessary measures that allow the Central Authority to accord financial investigation
requests and the asset recovery process. Four additional competent authorities, namely theDepartment of Special Investigation (DSI), the National Anti-Corruption Commission (NACC),
the Anti-Money-Laundering Office (AMLO) and the Office of Public Sector Anti-Corruption
Commission (PACC), are included and vested with power to conduct investigations upon request.3
Prior to this amendment, the execution of an MLA request was required to have been conductedby the Royal Thai Police, the only competent authority.
Moreover, Part 9 of the MLA Act also welcomed the concept of enforcement of value-based
confiscation, return of assets and asset sharing. Previously, the asset requested to be confiscatedby the Requesting State shall devolve to Thailand, without exception. However, with thisamendment, the Court can order the return of forfeited assets as prescribed in a bilateral treaty
between Thailand and the other State. In this case, the Central Authority, the Attorney General ofThailand, shall file an application asking the Court to issue an order to submit such asset to theCentral Authority to return to the Requesting State.
III. MUTUAL LEGAL ASSISTANCE AND FINANCIAL INVESTIGATIONThe reason supporting the assumption of AMLO as the competent authority under the MLA
Act is that AMLO plays a prominent role as a specialist financial investigation unit (FIU). The
Anti-Money-Laundering Act of B.E. 2542 (1999) established the national financial intelligenceunit with the authority to gather financial information and to analyse and disseminate information
to relevant legal enforcement officers. With its large information database including suspicioustransaction reports (STRs), financial transactions deriving from domestic reporting entities anddatabases from other agencies, such as land title, vehicles and immigration. In cases wherefurther information is needed, they can request further information from reporting entities for thepurpose of investigation of money-laundering and predicate offences, including corruption
offences. As a part of the network of international financial intelligence units, the Egmont Group,
AMLO can acquire informal financial intelligence through the network as well as from its 54
international partners under their memorandum of understanding. The information obtained canbe later distributed to assist domestic money-laundering investigations conducted by otheragencies.
The National Anti-Corruption Commission (NACC) is the key agency for preventing andcombating corruption, especially cases involving high-ranking officials. Through theirinvestigation process, the NACC can order any public official, individual or public organization
to give a statement, documents or other evidence. Despite the fact that the NACC is not afinancial intelligence unit, they are equipped with the authority and budget to hire advisors orexperts to conduct financial investigation and asset tracing in foreign jurisdictions. The NACC
can also obtain and provide informal cooperation in corruption cases, including information if
3The Act of Mutual Legal Assistance in Criminal Matters B.E. 2535 and its amendment, Section 12.

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they deem it appropriate through other anti-corruption counterparts.4
When foreign countries request evidence or financial information, if the request meets theconditions set forth in the MLA Act, the Central Authority shall transmit the request to thecompetent authority for execution. Nevertheless, financial intelligence exchange via informalcooperation is applied by practitioners to accelerate the process prior to the submission of aformal MLA request. Once a request is made and transmitted, the execution of such request canbe done very quickly. Such good practice, nevertheless, requires a level of mutual understanding,trust and communication among domestic and international counterparts. However, in somejurisdictions, obtaining financial information is more difficult as it requires coercive measures.
Therefore, the only means to obtaining financial information must be made through an MLA
request to the Central Authority. Therefore, it is important for the requesting agency to understandthe different legal culture and standards in order to employ effective approaches.
IV. MUTUAL ASSISTANCE, ASSET CONFISCATION AND ASSET RECOVERY
During the investigation, proceeds of corruption or targeted assets must be secured to ensure
the success of asset confiscation and return at a later stage. Measures to secure the assets may
differ depending on the law of such jurisdiction. In Thailand, if there are reasonable grounds tobelieve that any asset connected with the commission of a money-laundering offence includes acorruption offence,5 AMLO shall have the power to order a provisional seizure or attachment ofsuch asset for the duration of not more than ninety days. In the case where there is convincing
evidence that an asset is connected with the commission of an offence, the Secretary -Generalshall refer the case to the public prosecutor for consideration and filing a petition in court for anorder that such asset be vested in the State without delay. 6 The NACC is also vested with thepower to temporarily seize or confiscate an asset connected with the offence, and with respect tounusual wealth, such order can be limited within 1 year from the dated of seizure or freezing or
until the case is final.
According to Thai law, as a general rule, forfeiture of property related to a criminal case isconsidered as a form of criminal punishment. 7 Therefore, the traditional means is to apply
criminal forfeiture to recover the proceeds of the corruption crime. However, it should be notedthat in most corruption cases, the corruptors are very powerful, which might affect the possibilityof effective criminal investigation or prosecution or there might be cases where evidence gathered
is insufficient to conduct criminal prosecution. In this regard, non -conviction-based asset
forfeiture is considered by practitioners to be a more preferable mechanism, 8 or at least analternative mechanism to criminal forfeiture.
Thailand incorporates non-conviction-based approaches to forfeiture of proceeds of crime inmany laws, including the Anti-Money-Laundering Act B.E. 2542 (1999) and the Act on theThe Organic Act on Counter Corruption B.E. 2561 Section 34 and 142.
The Anti-Money Laundering Act B.E. 2542 (1999) Section 3(5).
6Ibid., Sections 48 and 49.
7Thai Penal Code, Section 18.
8Theodore et al. (2009) Stolen Asset Recovery A Good Practices Guide for Non-Conviction Based Asset Forfeiture,p 13.
45- 126 -Measures for the Suppression of Offenders in an Offence Relating to Narcotics, B.E. 2534 . In
corruption cases, Thailand’s non-conviction-based approach can be found under the Organic Act
on the Prevention and Suppression of Corruption B.E. 2561 (2018). However, it merely applies
to the offence of “unusual wealth”. Unusual wealth under the Act is defined as having an
unusually large quantity of assets, having an unusual increase of assets, having an unusual
decrease of liabilities or having illegitimate acquisition of assets as a consequence of theperformance of duties or the exercise of power in office or in the course of duty. Under such
legislation, the standard of proof required to forfeit proceeds of crime is the preponderance of theevidence. The accused must prove to the court that the property does not result from the unusual
wealth,9 otherwise the asset shall devolve upon the State. As it requires a different legal basis
from its related criminal offence, non-conviction-based measures can be proceeded withindependently, and with shifting the burden of proof to the accused culprit, assets can berecovered from NCB measures and the result of the case are totally separate from the criminalcase.
In the case of Mr. Supoj Saplom, the former permanent secretary of the Transport Ministry
holding the position between 2009-2011, the Court of Appeal made a decision to orderconfiscation of assets of Mr. Saplom worth 64 million baht or to make payment in lieu thereof.
Such assets included cash, bank deposits, gold, six parcels of land, houses, condominiums andluxury vehicles. The investigation began in 2012 after burglars broke into Saplom’s house inBangkok on a night in November 2012 during a severe flood in Thailand. The Burglars were later
arrested with 18-million-baht cash and 10 bath weight gold. They also revealed that millions ofbaht in cash were inside the house. The NACC later inspected Mr. Saplom’s house and conducted
an investigation. It appeared that Mr. Saplom could not explain the source of such assets. TheNACC finalized the case file and submitted it to the Office of the Attorney General. The publicprosecutor filed a petition to the Civil Court to devolve such assets to the State as unusual wealthand due to his failure to declare assets under the Organic Act on Counter Corruption B.E. 2542
(1999). With regard to the criminal case, in 2018, the Supreme Court’s Criminal Divisionsentenced Mr. Saplom to 10 months’ imprisonment for political officeholders deliberately
avoiding declaration of assets under Section 119 of the same Act.
In Juthamas’s Case, the former Governor of the Tourism Authority of Thailand was charged
with demanding bribes from American investors in exchange for a contract to manage aninternational film festival. During the criminal proceedings, the NACC asked the Central
Authority to make mutual assistance requests to freeze the accounts of Juthamas’s daughter, theco-defendant, which were opened abroad. The civil forfeiture was based on an unusual wealthallegation. That case is being conducted in parallel and is still pending.
However, in international corruption cases, such seizure or freezing of assets in Thailand forthe purpose of confiscation and asset recovery must be made through mutual assistance requests.
As mentioned earlier, the MLA act was amended allowing assets to be returned. The Requesting
State can send a request for seizure/freezing of property during its investigation or prosecution
with its seizure/freezing order issued by its authority, or the court judgment, although it is not yet
final. The public prosecutor shall later file the case of such request to the Court to issue a seizureor freezing order. Thailand can also accord the request to confiscate the asset if the case in the9Anti-Money Laundering Act B.E. 2542, Section 51.

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Since its amendment, nevertheless, the application of these provisions has not yet been tested
before the Court. It should also be noted that the MLA itself does not stipulate whether the orderor judgment must be criminal forfeiture or non-conviction-based asset forfeiture. As Thailand isparty to the UNCAC and UNTOC and with its utmost efforts to combat corruption andtransnational organized crime, the application of the MLA Act is to provide the widest measures
to enable effective asset recovery, or at least to become aware of the issues with possible solutions
based on the context of their own legal culture. 10 This pro-cooperation concept is, however,being tested in the case requested by Thailand in a drug-trafficking and money-laundering case.
The Civil Court ordered the forfeiture of proceeds of drug trafficking that were transferredabroad. The Central Authority of the Requested Stated in which the three accounts were foundagreed to return the frozen accounts.
V. CONCLUSION
Investigation, prosecution and asset recovery of proceeds of corruption are very challenging,
especially in cases of transnational corruption. Thailand has developed its domestic legal
framework to establish agencies specialized in financial and corruption investigation to combat
corruption crime. Civil forfeiture is also put in place to ensure proceeds of crime are recovered.
Furthermore, the international asset recovery regime and asset sharing are now incorporated into
the MLA Act. Such measures can only fully be implemented through international cooperation.
Differences in approaches in financial investigation, asset confiscation and asset recovery willremain with respect to legal systems and legal cultures in each jurisdiction. Nevertheless, directcommunication between agencies, Central Authorities, efforts to informal consultation and themindset to accord the widest assistance will narrow such gaps and move towards the common
goal to combat and break the corruption chain.

10UNCAC, Article 51.

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