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January 6, 2017

Foreign Directors and the Criminal Court Summons Process: Bound by Duty

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Bangkok Post, Corporate Counsellor Column

The criminal summons process can affect a company director for a number of reasons and at virtually any time. For example, a director may be summoned as a witness, as a representative for an accused company, or even as an individual accused of a crime. Further complicating matters is the possibility that a criminal summons could be issued to a company director without his or her direct knowledge. This increases the risk of noncompliance with a summons, possibly subjecting the director to additional liability.

It is often presumed that a person who is merely acting as an authorized director for a company has limited individual liability. This is generally true, but Thai law includes numerous circumstances in which a director may be named not only as a witness or company representative in criminal litigation, but also as an accused. Many laws extend a presumption of liability to a company director, including those related to construction licensing, customs clearance, labor law, and the Foreign Business Act, to name a few. Understandably, a person taking on the responsibilities of a director has increased exposure to criminal claims.

This article provides guidance in dealing with the unique issues that affect foreign directors served with a criminal summons.

The Criminal Summons

A criminal summons is a significant document that may affect the freedoms of an authorized foreign director. Failure to respond to a summons may also have significant consequences, including the issuance of an arrest warrant.

A criminal summons may be issued by any authorized law enforcement officer at the investigation stage under the Thai Criminal Procedure Code, as well as under other criminal laws. Some summonses are issued in relation to an investigation of business transactions focused on whether a company and its relevant directors have broken the law.

Take the following example. After conducting an audit of company documents, Customs or Revenue Department officers suspect that the company has committed a criminal offense under the Thai Customs Act or the Revenue Code and file criminal claims with the relevant law enforcement agency. In such case, the company and its authorized director will receive a summons to appear before a law enforcement officer.

If provided by the facts or by the relevant statute after completion of an investigation, many authorized foreign directors will be named as joint accused. Another summons will then be issued and served to the foreign director as an individual accused. While the company and others may also be named as accused, the authorized director must nonetheless defend the case separately as an individual.

Alternatively, a criminal summons may be issued in cases where a plaintiff files a criminal case to the court without an investigation undertaken by law enforcement. In such case, the court will issue a summons to inform the defendant of the details of the criminal charge against the company and the authorized director and the scheduled proceedings at the court. If the court does not accept the plaintiff’s complaint for criminal trial, the defendant has nothing to do. But if the court accepts the plaintiff’s complaint, the court will issue another summons requiring the defendant to appear and defend the case.

Responding to the Criminal Summons

A criminal summons is served by an officer of the court but according to no specific schedule. Sometimes the officer will make a surprise visit or ask to meet the director. Therefore, it is important to prepare for this potential scenario in advance. For example, company representatives should know that the summons process is important and know how to communicate with the court officer. It is critically important that nobody sign and receive the summons on behalf of the director. The director should also be advised urgently of the service.

Prior to receiving the summons it is important to review all details carefully. A summons will be served in Thai and should be translated to the language of a foreign director. This is so that the director fully understands the content, since the document may relate to his or her individual liabilities. If the officer requests to meet the director and serves the summons, the foreign director should contact an attorney immediately.

If a representative for the director receives the summons from the officer, the representative can mention in the summons receipt that the appointment date in the summons cannot be confirmed at this time. Otherwise, nonappearance may be considered a ground for issuing an arrest warrant. Should the director not be available to meet the officer on the appointment date, he or she should inform the officer in writing to reschedule based upon reasonable grounds.

If the summons names the director as a witness at the investigation stage, the director is not allowed to have an attorney to accompany him at the interview. Besides preparation for the interview, the director should assign an interpreter to join the interview. This interpreter should have experience and knowledge of the criminal inquiry process.

If the summons names the director as an accused, he or she should contact an attorney and assign an interpreter to attend the interview. The officer will inform the director of the allegation and arrange for the fingerprinting process on the first appearance date.

If the summons is served to the director by a court officer, the director should request clarification of the purpose of the summons. If the summons requires the director to appear at hearing, he or she will need to attend with an attorney and interpreter. Failure to appear without reasonable explanation may result in criminal liability.

Limiting Liabilities

Many foreign directors and their representatives mistakenly presume the summons process is simple and that there is time to manage. Some may therefore set the matter aside for review without a proper understanding of the serious nature of the court document and of their obligations to comply within a set time. But as this overview explains, the process is extremely important, and directors and their representatives need to take steps to address and, thereby, limit potential liabilities.

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