GROUP 3

TRIAL AND SENTENCING IN CORPORATE CRIME CASES
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Members

Mr. Mohamed Ahmed Abani
Mr. Takeshi Hashimoto
Mr. McSyd Hubert Chalunda
Mr. Trimulyono Hendradi
Ms. Sitang Tangsiri
Mr. Noboru Shimizu(Niger)(Japan)(Malawi)(Indonesia)(Thailand)(Japan)Advisers

Prof. Jun Oshino
Prof. Ryuji Tatsuya(UNAFEI)(UNAFEI)

I. INTRODUCTION
Group 3 started its discussion on 23 September 2007. The Group elected by consensus Mr. Mohamed
Ahmed Abani as its chairperson, Mr. Takeshi Hashimoto as its co-chairperson, Mr. Mc Syd Hubert Chalunda as
its rapporteur, and Mr. Trimulyono Hendradi as its co-rapporteur. The Group, which was assigned to discuss“Trial and Sentencing in Corporate Crime Cases”, agreed to conduct its discussion according to the following
agenda: 1) The nature of corporate trials in respective countries; 2) The rule of evidence in the different
jurisdictions i.e. the hearsay and documentary evidence rule; 3) Fair and speedy trials, i.e. preparation for trials:
disclosure of evidence, clarification of disputes, utilization of forensic analysis or expert witnesses for the fact
finding; 4) Sentencing procedures in participating countries; 5) Effective sanctions against corporate crimes,
i.e. sanctions against individuals, such as directors, senior supervisors and ordinary employees as well as
sanctions against corporate entities.

II. THE CURRENT SITUATION OF THE NATURE OF CORPORATE CRIME TRIALSThe group first reviewed the current situation of the nature of corporate crime trials in participants’countries.

A. Thailand
The participant from Thailand said that in her country they use the civil law system and there is nodifference in the trial of corporate crimes and other criminal trials. However, in many corporate crime trials
there are many forensic expert witnesses. The trial process is time consuming as the cases are complicated.
More time is needed to present the evidence in court. She went on to say that the trials are presided over by
no fewer than two judges. There is no jury. If there is an appeal of the case to the Court of Appeal or theSupreme Court, three judges preside over the case. In Thailand some corporate crimes regarding
intellectual property are tried in the Central Intellectual Property and International Trade Court. Since
intellectual property cases possess different characteristics from ordinary criminal cases, a new procedure
has been devised to achieve convenient, speedy and fair proceedings in these cases. There is no special
court for tax crimes. The tax court is only for civil cases.
B. Malawi
The participant from Malawi said that his country uses the common law system. Corporate criminalcases are tried in the same way as other criminal cases using the same courts. The cases are normally
initiated in the Magistrate Courts. However, due to their complexity, the cases are transferred to the High
Court for trial. In the Magistrate and High Courts, the cases are presided over by a single magistrate or
judge respectively. Even though the law provides that cases at the High Court can be presided over by thejury, in reality a single judge presides over them. (The law also provides for the single judge in the absenceof the jury). On appeal, the cases are presided over by no fewer than three judges in the Supreme Court.
Malawi does not have a special court for tax crimes. There is only a special department for the enforcementof tax laws and investigating tax evasion.
C. Indonesia
The participant from Indonesia said that in his country they use the civil law system. Corporate criminal

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cases are tried in the same courts as other criminal cases. At first instance, the cases are examined by three
judges. If any of the parties is not satisfied with the judge’s verdict, an appeal is made to the High Court
where three judges also hear the case. If the verdict of the High Court is not satisfactory to any of theparties, an appeal is made to the Supreme Court. Three judges again will hear the appeal. Indonesia does nothave a special court for tax crimes. There is only a special department for the enforcement of tax laws andinvestigating tax evasion.

D. Niger
The participant from Niger said his country uses the civil law system which is different from other groupmembers’ legal systems. Corporate criminal cases are tried in the same courts as other criminal cases. The
cases that are serious in nature are tried by a panel of seven, comprising three professional judges and four
jurors. The jurors are selected from the citizenry and are of different professional backgrounds. The verdictin the case is made by all seven in consultation. The participant expressed his concerns with this system as
he feels that it can result in injustice as most of the jurors do not know the law and might reach a wrong
conclusion in the case. He concluded by saying that there are neither special courts in Niger which try tax
cases nor special departments to deal with them.
E. Japan
The participants from Japan said that in their country corporate criminal cases are tried in the same
courts as other criminal cases. The trials for corporate crime cases frequently take a long time due to theircomplexity. Trials are conducted by professional judges. They said that at first instance, if the case is simple,
it is decided by a single judge; if the case is complex, it may be decided by three judges. If there is an appealof the case to the High Court, three judges will preside over the case. Moreover if there is an appeal of thecase to the Supreme Court, in principle five justices will preside over the case. However, if the case hassignificant issues, such as constitutional considerations, all 15 justices may preside over the case. The
participants said that two major District Courts (Tokyo District Court and Osaka District Court) have special
departments for tax evasion cases.
At the conclusion of the discussion, the Group unanimously confirmed that there are no special courts intheir respective countries which try corporate criminal cases. The cases are tried in the same way as allother criminal cases. However, in Thailand, corporate crimes regarding intellectual property are tried by theCentral Intellectual Property and International Trade Court.

III. THE RULE OF EVIDENCE
A. Hearsay RuleThe Group afterwards discussed the rules of evidence in respective countries regarding hearsay anddocumentary evidence. The participants from Thailand, Malawi, Indonesia and Japan said that hearsay
evidence is inadmissible in their courts. The person who perceived the crime with his or her senses isrequired to give testimony in court to allow the court to cross-examine him or her. The participant from
Niger said that in his country’s legal system hearsay evidence is admissible during trial. The participantsfrom Indonesia and Malawi went on to say that despite the general inadmissibility of hearsay evidence intheir courts, the testimony of an expert witness can be admitted in court in the absence of the expert. The
Japanese participants said that one of the exceptions to the ban on hearsay evidence is when the defence
agrees to its use in court. Other exceptions are provided in the Code of Criminal Procedure. For example,
when the witness cannot testify in court because he or she has passed away, is outside the country etc., thewritten statement recorded by the prosecutor is admitted in court as hearsay evidence. If the witness haschanged the statement since it was recorded by the prosecutor and the requirements provided in the Code of
Criminal Procedure are satisfied, the statement is admitted in court as hearsay evidence. Financial
statements and general ledgers are regarded as hearsay evidence in Japan; however, such evidence isadmissible as an exception to the hearsay rule, which is stipulated in the Code of Criminal Procedure.
B. Documentary Evidence
The participants from Thailand, Malawi, Indonesia and Japan all explained that original documents areadmissible as evidence in their courts. However, there is an exception to this rule whereby copies can beadmitted in evidence. In Thailand, if the originals are not available, certified copies or oral evidence of theircontents are acceptable. If official documents are cited as evidence, even where the originals are still134

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available, copies certified by the authorities may be sent to court as evidence, unless otherwise directed in
the summons. In Malawi and Indonesia, the copies can be admitted if they have been certified by public
notaries, government officials or commissioners of oaths as true copies of the original documents. As forJapan, there is no statutory law that prohibits the use of copies as evidence, however, according to theprecedent, it is necessary to meet the following conditions:
a)
b)
c)

when it is known that the original document did exist
when the original document can not be foundwhen the copy is the true copy (exact copy) of the original document. In this case the person who
originated the document must satisfy the court that the copy is exactly the one he or she originated.

The scenario, however, was different for the participant from Niger. He explained that both original andcopied documents are admitted in evidence provided that the evidence was collected in the presence of theaccused/offender and the court has agreed to its use.
All the participants concluded that in their respective jurisdictions, any evidence to be admitted in court
must be collected by the investigators or any person conducting the investigation legally. Unlawful collectionof evidence will render its inadmissibility in court.

C. Electronic Evidence
The participants from Thailand, Indonesia, Japan and Malawi said that in their countries electronic
evidence is admitted in court. In Thailand, the Electronic Transaction Act allows electronic documents to be
used as evidence in the courts and makes digital signatures legally binding. Many Thai governmental rules
and regulations have been revised to allow electronic documents as evidence. The Malawian participant,however, said that the law has not clearly taken care of the use of electronic evidence but with theadvancement of technology and the increase in cases committed through computers, the courts allow its use
provided the court is satisfied that the evidence has not been tampered with. The participant from Niger
informed the group that electronic evidence is also admissible in Niger courts provided it is legally obtained.
IV. FAIR AND SPEEDY TRIAL
A. Preparation for Trial: Disclosure of Evidence and Clarification of Disputes
1. Japan
The participants from Japan said that the trials of complex cases, including corporate crime cases,
sometimes take a very long time which earns public criticism. In order to speed up the trial process, they
introduced pre-trial arrangement proceedings in November 2005. At these proceedings both parties sort out
all preliminary issues like the evidence or witnesses to be used during trial, etc. All the factual disputes andclarifications in issue are sorted out before the actual trial.
The participants went on to say that until the pre-trial arrangement proceeding was introduced in Japan itwas enough for the prosecutor to disclose evidence which he or she planned to use for the trial prior to thefirst trial date. In addition, according to Supreme Court precedent, the defence counsel could request thejudges to order the prosecutor to disclose the particular evidence during trial in limited circumstances. By
using the new pre-trial arrangement proceedings, now both parties can request such disclosure in a wider
and earlier manner than before, which leads to speedy trials. The pre-trial arrangement proceedings arealways in camera.
2. Niger
The participant from Niger informed the Group that there is no pre-trial proceeding in his country’s legal
system. There is no law requiring the disclosure of evidence before trial. However, in most cases thedefence counsel is given the evidence against the accused before trial. The accused is also informed of thecharges against him or her before the actual trial, and is further requested to find a defence counsel torepresent him or her in the case. In the case that he or she can not hire a defence counsel, it is the duty of
the government to assign one to represent him or her during trial in order to ensure a fair trial. The
participant went on to say that the trials are always held in open court. When the trial starts it is held
continuously until the case is disposed of.

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3. Indonesia
The participant from Indonesia said there is no pre-trial proceeding in his country’s legal system todisclose evidence. The pre-trial proceedings are only done to examine whether the arrest and/or detention
was legal or not and to decide whether the district court has the jurisdiction to try the case at hand. In
Indonesia the evidence is disclosed during the trial. However, if the defence counsel needs more evidence
from the prosecutor, he or she is free to ask the judge that he or she be given the evidence by the prosecutor
in order to prepare for the case. To ensure a fair trial the offender is allowed to bring his or her own evidence
into court during trials.
4. Malawi
The Malawian participant explained that even though the law is silent on the disclosure of evidence, theprosecutor is expected to disclose all the evidence he or she will use during the trial at least 14 days before
the trial date. This enables the defence counsel to prepare the defence and also speeds up the trial as there
will be no unnecessary adjournment. The prosecutor is also expected to furnish the defence counsel withthe list of its witnesses and their statements.
The participant further said that before the actual trial, the defence counsel is free to seek any clarifications
from the prosecutor or judge. They can object to the charges themselves if they are improper or defective.
They can even seek an amendment of the charges. The law allows that any clarification should be madebefore the trial commences. The law does not allow the clarification of disputes at the appeal stage of a case.
The participant informed the Group members that criminal trials in Malawi are very long and slow. This ishappening mainly because of a shortage of legal personnel in the country who can handle the cases. As aresult, there are a lot of adjournments during the trial.
5. Thailand
Finally, the Thai participant said the law in her country provides for the disclosure of evidence by both theprosecutor and defence counsel before the commencement of trial. In case of the accused not making astatement or making a negative statement, when any of the parties requests, or the court deems suitable, thecourt may designate the date and notify both parties of evidence inspection not less than 14 days before thetrial. Any disputes in the case are clarified before the trial. The prosecutor and the defense counsel agree inadvance the number of witnesses and who is to testify at the trial. Trials in Thailand are continuous. There isno break or adjournment once the trial has commenced. However, if the witness does not appear or if there
are reasonable grounds for the adjournment of the trial, the court shall adjourn the case as it thinks fit.
6. Summary
In conclusion, it was observed that Japan, Thailand and Malawi recognize pre-trial proceedings to clarify
any disputes in the case in order to speed up the trial. Niger and Indonesia do not have pre-trial proceedings.
Secondly, it was observed that Japan, Malawi, Thailand, and to some extent Niger, have a disclosure ofevidence principle before the trial commences. Indonesia on the other hand does not have the disclosure ofevidence principle. Lastly, it was observed that all the countries except Malawi, and to some extent Japan,
have a continuous trial process which speeds up the trial. The shortage of legal personnel (judges,
prosecutors and defence lawyers) was cited as a reason for the adjournments of trials in Malawi.

B. Utilization of Forensic Analysis and/or Expert Witnesses in Fact Finding
1. Thailand
The Thai participant was the first to comment on this topic. She said that in her country, forensic analysis
is used in some criminal cases such as drugs and murder as well as in corporate crimes. The person who
does the forensic analysis becomes a witness and is required to testify in court under oath on the analysis
done. The courts also utilize the expert witnesses. The experts give evidence in their area of expertise. The
experts can give evidence in person or use their witness statements provided the defence counsel has
agreed to it. She concluded that the only problem facing Thailand is the lack of experts in some fields.
2. Malawi and Indonesia
The participants from Malawi and Indonesia said that in their respective countries forensic analysis isused in the courts to prove the case. For example, computer experts are used to retrieve and analyse datadeleted from a computer. However, the Indonesian participant said that for corporate crime in his country

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they do not need forensic analysis but opinions of expert witnesses. Soon after the analysis, a report is
prepared which is tendered in court as part of evidence. The two participants further explained that the laws
in their respective countries allow expert witnesses to be used and give evidence in court in the area of theirexpertise. The experts give evidence under oath in person. However, in some instances the court can allow
their reports or statements to be admitted in evidence in their absence. The Malawian participant said it is
up to the court to assess the capability of the expert witness before allowing him or her to give evidence as
an expert. It is mainly done through assessing his or her past experience and previous work.
3. NigerIn the case of Niger, as stated by its participant, forensic analysis and expert witnesses are also used. On
the issue of forensic analysts and expert witnesses, there is a prepared list of experts who are chosen whenneed arises to analyse a matter or give expert opinion. The defence counsel has to agree to the choice of theanalyst or expert. However, the participant said that if there is no one on the list, another expert can bechosen. After the analysis or examination, they produce a report which is tendered in court as part ofevidence. They are also called in court to give their evidence in person.
4. JapanFinally, the Japanese participants informed the group members that forensic analysis is used in Japanesecourts in several ways, like fingerprinting and DNA and computer analysis. The police have specialists who
testify in court on their analysis. On the issue of expert witnesses, the participants explained that they are
frequently used and testify in court. Their opinions and analysis are used in court as part of evidence. For
example, psychiatrists are sometimes called to give opinions on the mental condition of a defendant. The
prosecutor chooses the expert witnesses. However, the court has the final decision whether or not to allow aparticular expert witness to give evidence. The participants said that reports by expert witnesses aretreated as hearsay evidence. Unless the defence counsel has agreed to use it, the expert witness is called incourt to testify concerning the admissibility or credibility of the report. In some cases, if necessary, the court
has the authority to choose an expert witness without request of the parties.

C. Fair Trial
1. Japan
The Japanese participants were the first to address this topic. They said that in Japan, a fair trial is aconstitutional right of every accused person. In order that the accused is accorded a fair trial, the trial shouldbe open to the public. In addition to that it must be presided over by unbiased judges. In this regard, the only
information available to the presiding judges before the trial is the indictment. They continued in saying that
the Japanese court system would like as much as possible to have a continuous trial after commencement
but in reality it is virtually impossible because defence counsels are busy with other cases. As a result, there
are adjournments which delay the cases. The pre-trial arrangement proceedings are aimed at speeding up
the trial where unnecessary issues are eliminated and relevant matters are isolated and are discussed at theactual trial. The participants were of the view that in order to accord the accused a speedy trial, there is aneed to increase the number of defence counsels.
Finally on the issue of trial, the two participants narrated that in principle in Japan if the accused is absent
from court, the trial can not proceed. However, in minor cases where a fine of up to five hundred thousand
yen will be imposed in case of conviction, the trial can proceed in the absence of the accused. However, evenin such a case, he or she is usually present at the trial.
2. Malawi, Thailand and Indonesia
The three participants from Malawi, Thailand and Indonesia expressed similar sentiments regarding fairtrial in their respective countries. They explained that fair trial is maintained by making sure that theaccused is afforded the chance to answer to the charges leveled before him or her. He or she should not be
condemned before he or she is heard. Secondly, the trial must be presided over by unbiased judges. Thirdly,
the accused has the right to find a lawyer of his or her choice to represent him or her. Fourthly, the trial
should be held in public and the accused should be given a chance to cross-examine the witnesses against
him or her or contradict the evidence against him or her. In addition to the above, in Malawi and Indonesia,
fair trial is afforded to the accused by separation of duties between the investigator and the prosecutor. In
these countries, one can not be an investigator and prosecutor of the same case. In Thailand, in special cases

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specified by law, the prosecutor may be required to inquire or participate in order to give advice and examine
the evidence from the beginning of the investigation process. In cases of serious transnational crimecommitted by an organized crime group or a criminal case in which a politically or socially influential personis the principal, instigator or supporter, a prosecutor is required to conduct a joint investigation with thespecial case inquiry official. Moreover, in cases where the offence is alleged to have occurred outside
Thailand, the Attorney General, or any other official(s) in charge of his or her functions, is the inquiry officer.
3. Summary
Lastly, all the participants said that in their respective countries, as far as criminal trials are concerned,
the accused must be present in court during the proceedings otherwise the trial will be seen to be unfair.
The absence of the accused before court is enough reason to cause an adjournment of the trial. On the same
matter, the participant from Niger explained that in his country an accused is required to be present in courtfor his or her trial. However, in some cases the trial can proceed in the absence of the accused in court.

V. SENTENCING
A. Sentencing Procedures
1. Thailand
Each participant explained the sentencing procedures in their respective countries and the factors thecourt takes into account in passing sentences. The Thai participant explained that the two trial judges pass a
verdict after hearing evidence from both the persecutor and defence counsel. A judgment is read in an open
court either on the day the trial is over or within three days from such date. However, if there are reasonablegrounds the court may postpone the reading of the judgment to a later date. Upon conviction and in coming
up with the sentence several considerations are taken into account by the judges such as the gravity of theoffence committed, past criminal record of the accused, etc.
2. Malawi
The participant from Malawi said that after both the prosecutor and defence counsel have closed theircases, they make final oral and written statements that will be submitted to the court. Based on thesesubmissions and the evidence submitted during the trial, the trial judge passes a verdict of guilty or not
guilty. In the event that the accused is convicted, sentencing is in most cases passed separately. It can bedone the very day of the judgment, after a day or two, or even after a week. At this moment the accused(now a convict) is kept in prison. On the day of sentencing, the prosecutor submits to the court its
antecedents and pleads with the court as to what they think should be the right sentence for the convict. On
the other hand, the defence counsel submits its mitigations pleading with the court to be lenient with theconvict based on the facts they put forward. The judge therefore passes an appropriate sentence based on
the facts put forward by both parties, the gravity of the offence and the past criminal record of the convict.
3. Indonesia
In Indonesia, before the judges give a verdict, both the prosecutor and the defence counsel submit theirarguments. Normally, the prosecutor submits that the offender should be convicted and proposes a possible
sentence. The defence counsel on the other hand submits that the offender should be acquitted and set free.
The participant went to say that the judges make a decision based on the prosecutor’s recommendations, thefacts that came up during trial and the defence counsel’s arguments. Many considerations are taken into
account by judges in sentencing such as the gravity of the offence committed, the offender’s past criminal
record, etc.
4. Niger
According to Mr. Abani, sentencing in Niger, especially in serious offences, is decided by three judges andfour jurors at the end of the trial. In simple offences, a verdict and sentence is passed by a single judge. The
verdict and sentence is reached by the consensus of the said seven people. In Niger, it is possible to pass a
prison sentence on the offender and impose a civil penalty on him or her, which normally is compensated to
the victim of his or her crime.
5. JapanThe matter of sentencing procedures was concluded by the explanation of the two Japanese participants138137TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE

as to the procedure followed in their country. They said that there are no clear sentencing guidelines in theircountry. In closing argument, the prosecutor recommends a particular sentence. The judge gives a verdicton the case. In the event of a conviction a sentence is rendered taking into consideration the content of thecrime such as motive, gravity of the offence, etc. The prosecutor’s recommendation is also important forsentencing. In practice, judges usually consider the prosecutor’s sentencing recommendation as animportant guideline for similar cases. In contrast to Niger, the Japanese participants said that criminal andcivil sanctions are not pronounced together. Recently, the Code of Criminal Procedure has been amended toallow victims to use the outcome of the criminal proceedings to claim damages. However, this procedure canbe applied only to certain types of serious offences such as homicide, not corporate crime.

B. Sentencing Guidelines
1. JapanIt was agreed before addressing the last topic on our agenda, which was effective sanctions against
corporate crime, that there was need to discuss the sentencing guidelines in the respective countries. The
matter was brought to the floor by the co-chairperson, Mr. Hashimoto, who was also the first to contribute.
He said that in Japan there is no standardization or formal guideline in giving sentence. Sentences varydepending on what the judge deems appropriate, therefore in corporate crime deciding the sentence is very
difficult. He was of the view that it would be good if there were formal guidelines to guide judges, especiallyfor corporate crime.
The other Japanese participant added that prosecutors on the other hand have very precise guidelines in
deciding the sentence to give as a sentencing recommendation to the judge. For instance in corporate crime
there is a special standard which they use and follow.
2. Niger
The participant from Niger said that there are no formal sentencing guidelines in his country. The law in
Niger provides for the minimum and maximum sentence for every offence. Judges are at liberty to pass a
sentence which they deem fit depending on the facts of the case. They can even pass a lower sentence thanthe one provided for in law. He went on to explain that in Niger sentences are categorized into three groups:•••

If it is a petty crime, the penalty is a fine ranging from 500CFA to 100,000CFA or imprisonment of 1
day up to 29 days;
If it is an offence, the penalty is imprisonment of 30 days to not more than 10 years, deportation andsometimes fine;
If it is a serious crime, the penalty is 10 to 30 years’ imprisonment, life imprisonment or the death
penalty.

3. Malawi
In Malawi there are no clear sentencing guidelines. The penalties are provided for in laws. The law
provides the maximum sentence on every offence. However, in practice, judges are very reluctant to impose
the maximum sentence unless the offender has previous convictions for the same offence or the offence isvery serious. Judges sometimes follow previous judgments on sentencing, especially if they are rendered by
the Supreme and High Courts. The participant further explained that the Magistrate Courts in Malawi
cannot pass a sentence of more than 14 years’ imprisonment. If the magistrate thinks the offender should besentenced to more than 14 years, he or she transfers the case to the High Court which has jurisdiction topass sentences of more than 14 years. Lastly, the participant said that the offender has the right to appeal
both the conviction and sentence.
4. Indonesia
On his part, the Indonesian participant said there are no formal sentencing guidelines in his country.
However, in similar cases there is a custom among the judges to pass similar sentences. In Indonesia theprosecutor would be guided by his or her supervisor on the appropriate sentence to recommend to thejudge. Before recommending to the judge the possible sentence, the prosecutor must report to his or her
supervisor and propose a suitable sentence. The supervisor will either agree or disagree with theprosecutor’s proposal. The proposed sentence will be submitted to the judge as the prosecutor’s
recommendation on the possible sentence to be imposed on the offender. In most cases, the judge will follow

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the recommendation of the prosecutor.
5. Thailand
The participant from Thailand explained that there are no formal sentencing guidelines in her country.
However, judges have informal guidelines that they use among themselves. The sentences are provided forin the legislation and other judicial precedents, especially those from the Supreme Court. The judges havethe power to pass the sentence they deem fit depending on the facts of the case and what the law provides.
In concluding the matter, it was found that none of the five countries have clear and formal sentencing
guidelines which judges can use. Judges rely on the penalties provided for in the laws or previous
precedents. It was felt by the Group members that it is important that the countries have clear and formal
guidelines on sentencing to aid judges in coming up with appropriate and consistent sentences since
corporate crimes are so complicated, even though they should not be bound by them. The guidelines willremove the disparities in sentencing seen now in the countries where similar cases end up with different
sentences.

VI. EFFECTIVE SANCTIONS AGAINST CORPORATE CRIMES
A. The Situation in Participating Countries
1. Thailand
The Thai participant said that in her country there are criminal sanctions that are imposed on both theindividuals and corporate entities committing corporate crimes. Upon conviction, the individuals are subject
to all types of penalties. However, as for corporate entities, there are only certain penalties that can be
imposed; such penalties are fines and forfeiture of property. On administrative sanctions, Thailand also
imposes administrative sanctions on individuals and corporate entities. For instance, if there is evidence thatthe condition or operation of any securities company has caused damage to the public interest, the Office of
the Securities and Exchange Commission has the power to order such company to remove its directors,
managers or persons who are responsible for its operation who have caused the damage (the Securities andExchange Act B.E 2535). As for the corporate entities, administrative sanctions also include various
measures such as forcing the closure of business or daily fine by the competent officials. Civil sanctions arealso imposed on individuals and corporate entities as punishment for corporate crimes. They have to pay
compensation for damages to the victims of crime.
2. Niger
The Niger participant explained that criminal, civil and administrative sanctions are imposed on perpetratorsof corporate crimes in Niger. Criminally, individuals are sentenced to death, imprisonment (life or determinate),or they are expelled from Niger for a specified period of time, their proceeds are confiscated, and further, theircivil rights, such as voting, are denied (revoked). The corporate entities are, on the other hand, fined and theirassets are confiscated. Also the company is debarred from conducting business with the government,
judicially suspended from carrying on their business for a specified period of time, or dissolved. However,the law provides that the corporate entities and individuals that report any criminal acts in their company or
their association with others are exempted from criminal sanctions. Civil sanctions are imposed on corporate
entities to compensate the victim of the crime for damage.
3. Indonesia
The Indonesian participant said that in his country both criminal and administrative sanctions are
imposed on the accused. Criminally, the accused may be imprisoned or fined and the accused company’s
trading licence would be revoked and the business dissolved followed by the liquidation of the company. He
went on to say that criminal and administrative sanctions are decided in separate courts. According to theparticipant, there is no civil sanction in Indonesia for the accused of corporate crimes.
4. Malawi
In Malawi, as expressed by its participant, criminal and administrative sanctions are imposed on theoffenders of corporate crimes. The main sanctions are imprisonment or fine. Administratively, the government
can revoke the work permit granted to the individual if he or she is a foreigner and request him or her to leave
the country. Coming to the sanctions imposed on the corporate entity, the participant explained that the law,140

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especially on money laundering and terrorism financing, imposes criminal sanctions on the corporate entity
itself. Upon conviction, the corporate entity is fined and automatically loses its business. Administratively, thecorporate entity’s business licence can be revoked. Furthermore, the corporate entity can be disbarred fromconducting business with the government.
5. Japan
In Japan, according to its two participants, criminal sanctions imposed on individuals are mainly
imprisonment and fine. In addition, a director sentenced for certain types of corporate crime is disqualified
from his or her position which will result in difficulties in securing another job. If the individual is of a lower
position, the corporations have their own internal mechanics in dealing with him or her. Normally, he or she
will be fired from the company. There is no punitive damage sanction imposed on the offenders of corporate
crimes. Regarding sanctions on the corporate entity, the participants explained that the criminal sanctions
are imposed on corporations when they violate the law which provides for double punishment.
Administrative sanctions (e.g. an order for business suspension, revocation of licence) can also be imposedon corporations.

VII. RECOMMENDATIONS
After a lengthy discussion on all the above topics the group members came up with the following
recommendations:
1.

There is no need to establish or create special courts in respective countries to deal with corporate
crime cases. The procedure currently followed in dealing with such cases is appropriate. However, it
would be useful to establish specialized departments to deal with corporate crime cases like tax
evasion in order to ensure speedy and fair trials;

2.

Every country should have legislation to provide for the use of electronic evidence to avoid theevidence being challenged in court. The legislation will make its use in court unequivocally binding;3.

As much as possible, the countries should use original documents as evidence in courts. Copied
documents must be used with strict conditions to avoid the use of tampered evidence;4.

Preparation before the actual trial is vital in all the countries where clarifications of disputes anddisclosure of evidence should be made. The preparation will speed up the trial process because it will
cut unnecessary objections which may arise during the trial;

5.

The court should maintain a list of qualified forensic analysts and experts who can be called to give
testimony, rather than the parties calling their own analysts and experts; this would avoid possible
conflicts of opinion between opposing experts. The list would be prepared by the court inconsultation with relevant bodies. However, the parties should not be bound to use only the analysts
and experts on the list;

6.

Countries must have adequate jurists and legal personnel to handle corporate crime cases in order toensure fair and speedy trials. Countries should strive to have as much as possible a continuous trial
process without adjournments so that there is a speedy trial process;7.

Judgment and sentencing should be rendered within a reasonable time after the trial. Preferably, thejudgment and sentence should be delivered together at the end of the trial;

8.

In order to avoid disparities in sentencing and speed up trial, it is useful to establish sentencing
guidelines. However, judges should not be bound by the guidelines in determining (passing)sentence;

9.

In order to combat corporate crimes, there should be a balance amongst criminal (penal), civil, andadministrative sanctions imposed on both corporate entities and the individuals concerned.

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