20th Jun 18: Unofficial English language translation/key summary of Appeals Court judgement acquitting Andy Hall of criminal charges in Natural Fruit case

NF judgement English Translation (Final) link will take you to an unofficial English language translation in PDF of Thailand’s Appeals Court 31 May 2018 landmark verdict/judgement overturning my September 2016 criminal conviction in the main Natural Fruit vs. Andy Hall criminal prosecution (Thai version of original judgement available at Andy Hall Appeal Court Verdict or here). As the judgement is lengthy, for ease of reference, I highlight the key points from the judgement in yellow in this PDF unofficial translation and copy them below in this post also. I am most grateful to the Business and Human Rights Resource Center (BHRRC) for providing the funds to enable an unofficial English language translation of this landmark verdict/judgement to be undertaken.

For more information on this verdict and Natural Fruit vs. Andy Hall saga cases, also see:

  1. 31st May 2018 Statement by Andy Hall on Appeals Court Acquittal https://andyjhall.wordpress.com/2018/05/31/statement-by-andy-hall-31-may-2018-on-appeals-court-verdict/
  1. Finnwatch Press Release 31st May 2018: Thai Appeals Court rules in favour of Andy Hall quashing criminal conviction https://finnwatch.org/en/news/550-thai-appeals-court-rules-in-favour-of-andy-hall-quashing-criminal-conviction
  1. Finnwatch Q&A document Natural Fruit vs. Andy Hall cases, last updated on 31st May 2018, available at http://finnwatch.org/images/pdf/NaturalFruitvsAndyHallQA_May312018.pdf
  1. Andy Hall vs. Natural Fruit blog pagewww.andyjhall.wordpress.com

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KEY POINTS OF APPEALS COURT VERDICT (as translated into English and highlighted in yellow in PDF full version of judgement)

**”What the plaintiff deemed as defamatory imputations were all the facts stating to the effect that there were human trafficking and violations of human rights and labour protection law. The actions related to human trafficking and human rights violation are the infringements of people’s fundamental rights, which were protected by Thailand’s constitution at the time of the offense and the current constitution also recognizes such rights. In addition, the violation of workers’ rights, which is an offense against the labour protection law, could be an action involving human trafficking that the public or a concerned person that witnesses such offense has the right to inform the public of the fact about it.” 

**”… Taking into account the fact that the plaintiff carried on business as a company limited, it should produce (but didn’t produce) their documents or a name list of all its employees, including each employee’s evidence of identification in detail….  The evidence of the plaintiff was thus in the nature of only … unsupported testimony.”

**”It can be inferred from his testimony that even though defendant’s reports on his interview was allegedly false, the government office’s inspection was an official visit, rather than an investigation. The plaintiff, when inspected, is unlikely to provide evidence or information that could jeopardize their position to a government officer. Accordingly, access to evidence or fact of the plaintiff’s treatment to migrant worker is hardly feasible. There is discrepancy in testimonies also, from Sukij, Panun and Aung Nyang (3 of the plaintiff’s witnesses), and evidential documents prepared by the prosecution’s site inspecting officer.”

**”Further, regarding the earlier mentioned interview (of government officials) conducted by randomly picking migrant employees, the interview was recorded at the prosecution’s worksite, such that it is likely that the given information was monitored by the employer. It is not feasible for an interviewee to give any information which is unfavorable to their employer, as this will risk their employment. Therefore, interviews records in such situations are less reliable as evidence…Additionally, the prosecution’s witness, Mr. Aung Nyang, was still under the prosecution’s employment at the time his testimony was given. In this situation, Mr. Aung Nyang cannot be considered as an independent witness, as he was still dependent on the prosecution and it was not possible to produce testimony to jeopardize the prosecution’s position. Hence, his testimony requires cautious attention.”

**”The testimony of three defendant’s witnesses (former migrant workers at the Natural Fruit factory) testifying the facts about their employment with the plaintiff and the working conditions of the plaintiff’s pineapple factory are difficult to fabricate. The fact is in coherence with the interview of Burmese migrant workers interviewed by the plaintiff in the research report exhibit Lor.27 and some fact is supported according to the record of the testimony of Mr. Sukit Goyavanich in Exhibit Lor.1 and Lor.4. The plaintiff’s attorney did not cross-examine or introduce any evidence to argue that the three defendant witnesses had never been the plaintiff’s employees. The fact also appears in the copy of Mr. Petch’s health insurance card in Exhibit Lor.78., passport and work permit of Mr. Htun Ye, in Exhibit Lor.41 and in Exhibit Lor.42, and Mr. Aung Kyi’s employee’s card in Exhibit Lor.43 states that the three persons were the plaintiff’s employees. The plaintiff did not dispute the accuracy and authenticity of the said documents. In addition, the fact remains that Mr. Petch, Mr. Htun Ye and Mr. Aung Kyi did not work for the plaintiff or have a stake in the work with the accused/defendant. Therefore Mr Petch, Mr Tun Hye and Mr Aung Kyi could be deemed as having no special interest at stake in the case and thus were neutral witnesses. So, their testimonies were admissible. Though at the trial stage, the defendant did not produce the recording of the 12 interviewed workers from Myanmar, the evidence adduced by the defendant was reasonably well-grounded enough to establish that the plaintiff had really mistreated the migrant workers, as described in the research findings document No Lor. 27. And the fact, according to the testimony of the defendant, further established that subsequently, the defendant had produced and presented a report to Finnwatch.”

**”Taking into account the fact that apart from the plaintiff’s company, the defendant had also sent email messages about the research to the other two factories, which received them as well and even agreed to have the defendant visited the factories and talked with the executives of the said factories. It was thus believed that the plaintiff had also been contacted by the defendant, who would like to visit the factory and talk with the executive of the plaintiff as well. But the plaintiff preferred to be uninterested in working with the defendant to examine the fact and address the problems that had been informed to the defendant by migrant workers working at the plaintiff’s factory. And the said fact also showed that the defendant and Finnwatch had been interested in listening to the plaintiff’s fact and explanation, which was a well-rounded and fair approach to hearing all sides information.”

**”Finnwatch’s purpose was to have the defendant conducted a research to find out if there had been any human rights violation in the plaintiff’s factory because Finland focused on the safety of consumer goods. It was necessary for the consumers to know where the goods came from and if there was any human rights violation involved, which was to comply with the standards of the International Labour Organization in association with the Business Social Compliance Initiative (BSCI) system. BSCI was an organization jointly set up by many companies to oversee the supply chain standards, which was the work similar to Finnwatch’s auditing system. Therefore, Finnwatch could be regarded as a representative of the consumers to engage in examining the fact about the said issue. When Finnwatch received the research report, according to document No Lor 27 from the defendant, the organization then read and analysed the said information. A summary, according to document No Lor 28, was made and a contact with the plaintiff was made again through email, faxes and telephone calls. The defendant was asked to contact with the plaintiff to clarify the said fact, but the plaintiff did neither answer nor clarify. In such case, it should be deemed as basic information showing that the plaintiff mistreated migrant workers, who were the plaintiff’s employees. Such mistreatment could imply that the workers’ rights and human rights might have been violated, such incident was deemed as a serious issue, and the plaintiff refused to be examined or make any clarification on the said fact. Therefore, when Finnwatch was aware of the information about the plaintiff’s mistreatment of its migrant workers and refusal to cooperate in finding the fact and ways to address the said problem, the organization then disseminated, via email,  the said information in the form of document No Jor 2, which was a summary of the fact based on an analysis of the information derived from the defendant’s research report, to various agencies whose names were listed in document No Jor 2. Those agencies, to which Finnwatch sent its email messages according to document No Jor 2, were organizations or agencies directly responsible for the examination, protection and promotion of workers’ rights. Apart from the dissemination of the said information, the press conference organized by Finnwatch to inform those attended the conference was in the public interest. And it was something that the public as well as concerned people had the right to disclose the said information so that the problems could be solved in the future. The act of Finnwatch was thus deemed as an expression of opinion or statement in good faith, by way of self-justification or defence or for the protection of legitimate interest and by way of fair comment on any person or thing subjected to public criticism, as provided by Section 329 (1) and (3) of the Criminal Code. Such act of Finnwatch was therefore not deemed as an offense. This appeal of the defendant was admissible and there was no need to further adjudicate if the defendant cooperated with Finnwatch in the said act, as the outcome of the case would not change.”

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