The Obscenity Case Against Ekkachai Hongkangwan

Written by Ekkachai Hongkangwan; Thoetthoon Bhasathiti and Boontham Wisetla (Court of First Instance judges); Panon Katchapanan, Dusit Chimplee, and Pornchai Liaopattanapong (Court of Appeal judges)
Translated by Peera Songkünnatham

[คลิกที่นี่เพื่ออ่าน “เอกชัย หงส์กังวาน กับคดีอนาจาร” เป็นภาษาไทย]

“ ‘Can you suck it for me’ ”

“ ‘Suck my nipple for me’ ”

“ ‘Hey, I want to fuck your ass’ ”

“He stuck out his left nipple to me. I sucked on it while masturbating him. He let out soft moans. A while later he kissed me. He inserted his tongue into my mouth”

These four quotes from a prison anecdote have been repeated over and over again in one of the cases against anti-coup writer and activist Ekkachai Hongkangwan, from the police to the prosecutor to the courts. Are these quotes obscene? Five Thai judges certainly think so—“self-evidently” so, in fact, according to the Court of Appeal—and they sentenced Ekkachai to one year’s imprisonment for posting the anecdote on Facebook.

This obscenity case is the latest in a wide variety of tactics for cowing Ekkachai into silence, all unsuccessful. Here’s a non-exhaustive list: in 2020, charged with “violating the liberty of the Queen” after participating in a rally where a royal motorcade drove by without prior notice; in 2019, his car set on fire on two separate occasions; in 2018, charged with sedition for demonstrating for elections to be held; that same year, physically attacked and had fermented fish sauce thrown at him after direct action against a general-cum-politician during his wristwatch-themed corruption scandal; in 2017, detained without a warrant and taken on a multi-day “trip” to Kanchanaburi after declaring he would wear red and do something unexpected on the day of King Bhumibol’s funeral.

All these followed Ekkachai’s first encounter with the lese majeste law in 2011, when he was arrested and detained for selling home-burned CDs of an Australian news documentary and for distributing WikiLeaks documents. His sex anecdote came from this first detention. In 2013, the Criminal Court sentenced him to five years’ imprisonment, later reduced to 2 years 8 months by the Supreme Court.

Pertinent to our archive, the 2013 Criminal Court verdict made telling value judgments about feelings. On one side, ultraroyalist feelings were mapped onto a litany of laws:

“It is necessary to consider the place of the monarchy in the feelings of the Thai people, as manifest in Article 2 of the 2007 Constitution, which states that Thailand has a democratic system of government with the King as head of state; Article 8, which states that the King shall be enthroned in a position of revered worship and shall not be violated; Article 70, which states that everyone shall have a duty to uphold the nation, religions, the King, and the democratic form of government with the King as head of state; and finally Article 77, which states that the state must protect the monarchy.”

On the other, the defendant’s feelings of innocence were readily dismissed in favor of a hypothetical person’s interpretation:

“In deciding whether the defendant had the intention to defame or insult, it is necessary to look at the understanding of a reasonable person who reads the content, and not the understanding or feeling of the defendant.”

The reference to a “reasonable person” (winyūchon), a principle in civil and commercial law for creating an ad-hoc standard to settle disputes over property and contracts, is problematic when it is applied to criminal law. As iLaw analyzed, in Prach Panchakunathorn’s translation:

In this case, the prosecution did not present any evidence at all on the understanding of the ‘reasonable person’, meaning that it did not present any ordinary person or any expert to testify how they felt when they saw the content of the CDs and read the messages in the documents. There was only the testimony of the police officer who decided to proceed with this case who could not be used as a representative of the reasonable person. The understanding of the ‘reasonable person’ cited in the verdict is therefore merely the understanding according to the ‘personal’ standards of the judges in this case.

Nearly a decade later, the Court of Appeal in 2022 invoked yet another “reasonable person” to dismiss yet another claim of no criminal intent by Ekkachai:

[The Court] views that the passages in the indictment […] are explicitly worded statements about the Defendant’s sexual relations with another male convict, statements which are out of character for a reasonable person who knows right from wrong in accordance with normal conduct, for if one were to shed light on problems in prison to get them fixed as the Defendant argued, one could use other words that are appropriate to convey it. Self-evidently, such passages indicate lewdness and obscenity, and are disgusting in moral aspects to normal people.

The Court of First Instance, meanwhile, inferred criminal intent from Ekkachai’s admittance that he wrote the story in a certain—let’s say gay—fashion to cater to (ao-jai) his readers:

[The Court] considers that if the Defendant really wished to write articles in order to shed light on problems in prison, the Defendant could have conveyed that in writing in a manner that was not lewd or obscene. Moreover, the cross-examination by the Plaintiff yielded the testimony that the Defendant wrote the story in the aforesaid way to cater to the people who liked to watch men-loving-men movies, currently a popular genre. This, therefore, points to the Defendant’s intent to disseminate messages of lewd character.

Both courts’ reasoning that one can shed light on problems in prison using only appropriate language mirrors a rule in Thai prison for writing letters: inmates must use polite wording and grammatically correct language. But when three of the four “lewd” quotes are themselves quoting the words spoken by another prisoner, how can one do justice to the story by omitting or euphemizing what was said? How chaste, how disembodied, must a sex anecdote be to pass muster with the censors?

The case is now pending at the Supreme Court. In September 2022, after five months in prison and six requests for release on bail, Ekkachai was finally granted bail. The translator thanks Ida Aroonwong, Ekkachai’s current bail bondsperson, for acquiring translation rights from the defendant as well as tracking down the original draft of the never-before-seen final appeal to the Supreme Court penned in prison. Thanks are also due to iLaw’s Freedom of Expression Documentation Center for acquiring and storing copies of the full verdicts online.

To kick off our fourth issue How Obscene‽, Sanam Ratsadon presents Ekkachai’s prison sex anecdote in full, the two verdicts on the case so far, and Ekkachai’s final appeal. The rest of the issue will showcase the art of sex writing in Thai literature and the debates over its obscenity in different political formations including the struggle for gay acceptance, marxism, and regionalism. By shooting many-sided questions over the premature ejaxclamation “How obscene!”, we hope to shed some light on the darkness that is Thailand’s justice system.

Photo by Yossathorn Traiyos, from his interview about queer love life in and after prison “Love You Less Than Democracy: Ekkachai Hongkangwan” posted on Valentine’s Day in 2018 on Realframe.


เอกชัย หงส์กังวาน updated his status.
23 April 2017 · Bangkok, Thailand ·

My life in prison for the first time (9)

I went to sleep immediately after the prison officers turned off the television. It started to rain. Thunder crashed every now and again. The temperature gradually dropped, and so the inmate who had given me his sleeping space offered his big blanket for me to share, but I refused.

I turned my back to the inmate who had given me his sleeping space. A while later he reached out an arm to place over my legs. I immediately knew his intent. I let him keep his arm resting on my legs.

Then, he began aggressively advancing on me. His hand rubbed my leg. I stayed still and let him keep rubbing. He rubbed more and more of my leg until I could not take it any longer, so I hit his arm with my hand.

He quickly retracted his arm and was silent for a while. Now I was the one to make advances. I reached behind me to touch his sexual organ. I kneaded his sexual organ until he was aroused.

“Hey, turn this way,” he whispered next to my ear.

I turned my face to him. He looked at my face.

“Can you help me with it?”

“You’re crazy! There’s tons of people around.”

“It’s okay. No one will see.”

He pulled the blanket over me. We were entirely covered by the blanket, heads and all. Under this blanket, he began tugging down his pants. His sexual organ was fully hard.

“Can you suck it for me?”

“No, I don’t like sucking. Let me help you with it, then you can go wash it yourself. Do you have something for your cum?”

He groped for a cup on the top of his sleeping space. He brought out a Knorr Jok cup.

“I’ll help you and then you cum in this, okay?”

With my hand I carefully masturbated him. His face was in bliss. He hiked his shirt up to his neck.

“Suck my nipple for me.”

He stuck out his left nipple to me. I sucked on it while masturbating him. He let out soft moans.

A while later he kissed me. He inserted his tongue into my mouth. The cigarette smell in his mouth was so strong I had to hold my breath.

He took the Knorr Jok cup and held it under his sexual organ. His semen was released into this cup. This mission wrapped up in only a few minutes so as to avoid detection by other inmates in the room. He pulled his shirt and pants back into place, then took the cup to the toilet block to clean. I pulled down the blanket and turned back to lie on my side as if nothing had happened.

After he finished cleaning, he walked back to his sleeping spot. Then he pulled the blanket over my head again.

“Hey, I want to talk to you.”

I turned my face to him.

“Someone’s interested in you, you know?”

I felt a little angry in that moment, and thought to myself, You think I’m easy, don’t you? (Actually, I am that.)

“No, I don’t want that, whoever it may be.”

He went quiet for a while, probably afraid of having upset me.

“Hey, I have a wife and child, but I will break up with her.”

“How old is she?”

“18.”

He had clean-looking fair skin, but his face indicated over 25 years of age. No idea why he had to lie about it.

“I don’t believe that she’s 18.”

He went quiet for a while. He was getting on my nerves so I stuck my hand in his pants to squeeze his sexual organ one more time.

“Let me touch it. I like touching. No need to get hard.”

“It is hard.”

He tugged his pants down. His sexual organ was fully hard.

“Hey, I want to fuck your ass.”

“Didn’t you just finish doing it?”

“I can still go.”

“Told you, I’m just touching it for fun.”

I pulled down the blanket and turned away from him, so he turned away and went to sleep.


For use by the court

Verdict                                                                       Decided Case No. CRI 1032/2562
Undecided Case No. CRI 764/2564

In the Name of His Majesty the King
The Criminal Court
28 April 2564[2021]
Criminal Matter

Between Prosecuting Officer, Attorney General Office,                         Plaintiff
And                 Mr. Ekkachai Hongkangwan,                     Defendant

Re: Violation of the Computer-Related Crime Act

The Plaintiff charged that on 23 April 2560[2017] during the daytime, the Defendant posted a message on the computer system of the Defendant’s Facebook social network under the name Ekkachai Hongkangwan. The message included the descriptions “Can you suck it for me”, “Suck my nipple for me”,“Hey, I want to fuck your ass”, “He stuck out his left nipple to me. I sucked on it while masturbating him. He let out soft moans. A while later he kissed me. He inserted his tongue into my mouth” which amounted to inputting into a computer system computer data of lewd character that were accessible to the general population. The incident occurred in Thung Song Hong Subdistrict, Lak Si District, Krung Thep Maha Nakhon. Before this case, on 23 March 2556[2013], the Defendant had been sentenced to 3 years 4 months’ imprisonment and 66,666 baht’s fine in the Undecided Case No. 4088/2556 for defaming, insulting, or threatening the king, the queen, et al. Within five years of release from prison, the Defendant reoffended in the same offense. Moreover, the Defendant was the same person as the Defendant in Decided Case No. CRI 3090/2561 and Decided Case No. CRI 3207/2561 of the Southern Bangkok Criminal Court, Decided Case No. CRI 765/2562 and Decided Case No. CRI 900/2562 of the Criminal Court, and Decided Case No. CRI 8327/2561 of the Northern Bangkok Municipal Court. Punishment was requested in accordance with the Computer-Related Crime Act BE 2550, Article 14(4). The Criminal Code, Article 92, would add to the punishment and count the Defendant’s prison time for this case on top of the Defendant’s prison sentences from Decided Case No. CRI 3090/2561 and Decided Case No. CRI 3207/2561 of the Southern Bangkok Criminal Court, Decided Case No. CRI 765/2562 and Decided Case No. CRI 900/2562 of the Criminal Court, and Decided Case No. CRI 8327/2561 of the Northern Bangkok Municipal Court.

The Defendant denied the charge, but admitted to being the same person as the Defendant in the cases cited by the Plaintiff as the basis for counting prison time, and admitted to having been convicted and released from prison as charged.

In the trial, the Plaintiff attested that on 23 April 2560, at 10.08 hours, the Defendant posted a message on the Defendant’s Facebook social media under the account name “เอกชัย หงส์กังวาน” where the Defendant typed the message, “My life in prison for the first time (9) I went to sleep immediately after the prison officers turned off the television. It started to rain. Thunder crashed every now and again. The temperature gradually dropped, and so the inmate who had given me his sleeping space offered his big blanket for me to share, but I refused. I turned my back to the inmate who had given me his sleeping space. A while later he reached out an arm to place over my legs. I immediately knew his intent. I let him keep his arm resting on my legs. Then, he began aggressively advancing on me. His hand rubbed my leg. I stayed still and let him keep rubbing. He rubbed more and more of my leg until I could not take it any longer, so I hit his arm with my hand. He quickly retracted his arm and was silent for a while. Now I was the one to make advances. I reached behind me to touch his sexual organ. I kneaded his sexual organ until he was aroused. “Hey, turn this way,” he whispered next to my ear. I turned my face to him. He looked at my face. “Can you help me with it?” “You’re crazy! There’s tons of people around.” “It’s okay. No one will see.” He pulled the blanket over me. We were entirely covered by the blanket, heads and all. Under this blanket, he began tugging down his pants. His sexual organ was fully hard. “Can you suck it for me?” “No, I don’t like sucking. Let me help you with it, then you can go wash it yourself. Do you have something for your cum?” He groped for a cup on the top of his sleeping space. He brought out a Knorr Jok cup. “I’ll help you and then you cum in this, okay?” With my hand I carefully masturbated him. His face was in bliss. He hiked his shirt up to his neck. “Suck my nipple for me.” He stuck out his left nipple to me. I sucked on it while masturbating him. He let out soft moans. A while later he kissed me. He inserted his tongue into my mouth. The cigarette smell in his mouth was so strong I had to hold my breath. He took the Knorr Jok cup and held it under his sexual organ. His semen was released into this cup. This mission wrapped up in only a few minutes so as to avoid detection by other inmates in the room. He pulled his shirt and pants back into place, then took the cup to the toilet block to clean. I pulled down the blanket and turned back to lie on my side as if nothing had happened. After he finished cleaning, he walked back to his sleeping spot. Then he pulled the blanket over my head again. “Hey, I want to talk to you.” I turned my face to him. “Someone’s interested in you, you know?” I felt a little angry in that moment, and thought to myself, You think I’m easy, don’t you? (Actually, I am that.) “No, I don’t want that, whoever it may be.” He went quiet for a while, probably afraid of having upset me. “Hey, I have a wife and child, but I will break up with her.” “How old is she?” “18.” He had clean-looking fair skin, but his face indicated over 25 years of age. No idea why he had to lie about it. “I don’t believe that she’s 18.” He went quiet for a while. He was getting on my nerves so I stuck my hand in his pants to squeeze his sexual organ one more time. “Let me touch it. I like touching. No need to get hard.” “It is hard.” He tugged his pants down. His sexual organ was fully hard. “Hey, I want to fuck your ass.” “Didn’t you just finish doing it?” “I can still go.” “Told you, I’m just touching it for fun.” I pulled down the blanket and turned away from him, so he turned away and went to sleep.” Upon reviewing the Defendant’s Facebook profile, it was found that the Defendant set the post to Public; the general public could access the Defendant’s Facebook profile to read the aforesaid message. It was also found that the post garnered 146 likes from Facebook accounts, 21 comments from Facebook accounts, and 3 shares.

The Defendant attested that on 23 April 2560, the Defendant posted the message as alleged by the Plaintiff on the Defendant’s Facebook online social media under the account name “เอกชัย หงส์กังวาน,” but did not do so with the intent to post a message of lewd character: the Defendant was a writer; the Defendant did not exclusively write about life in prison; the Defendant also wrote various other articles. As for the reason behind the posting of the aforesaid message, the Defendant wanted to disseminate stories about the Defendant’s life in prison, by writing the article Life in Prison in 14 parts. Part 9 of the article had to do with the Defendant’s sexual encounter in prison. Because prison was a closed off place, people in society would naturally be curious about how sex was, how masturbation was in there. The Defendant, therefore, wished to shed light on (sa-thawn) social problems by disseminating a story based directly on the Defendant’s own experience. The people who left comments under the post did not criticize that it was a lewd, obscene story; rather, it had a novelistic character so as to facilitate others’ understanding. The Defendant had no intent of inputting into a computer system any computer data of lewd character that would be accessible to the general population.

After deliberation over the testimonies from the Plaintiff and the Defendant, basic facts can be established that at the alleged time and place of the incident, the Defendant posted a message into the computer system of the online social network Facebook where the Defendant used the account name Ekkachai Hongkangwan. The Defendant typed the message, “My life in prison for the first time (9) I went to sleep immediately after the prison officers turned off the television. It started to rain. Thunder crashed every now and again. The temperature gradually dropped, and so the inmate who had given me his sleeping space offered his big blanket for me to share, but I refused. I turned my back to the inmate who had given me his sleeping space. A while later he reached out an arm to place over my legs. I immediately knew his intent. I let him keep his arm resting on my legs. Then, he began aggressively advancing on me. His hand rubbed my leg. I stayed still and let him keep rubbing. He rubbed more and more of my leg until I could not take it any longer, so I hit his arm with my hand. He quickly retracted his arm and was silent for a while. Now I was the one to make advances. I reached behind me to touch his sexual organ. I kneaded his sexual organ until he was aroused. “Hey, turn this way,” he whispered next to my ear. I turned my face to him. He looked at my face. “Can you help me with it?” “You’re crazy! There’s tons of people around.” “It’s okay. No one will see.” He pulled the blanket over me. We were entirely covered by the blanket, heads and all. Under this blanket, he began tugging down his pants. His sexual organ was fully hard. “Can you suck it for me?” “No, I don’t like sucking. Let me help you with it, then you can go wash it yourself. Do you have something for your cum?” He groped for a cup on the top of his sleeping space. He brought out a Knorr Jok cup. “I’ll help you and then you cum in this, okay?” With my hand I carefully masturbated him. His face was in bliss. He hiked his shirt up to his neck. “Suck my nipple for me.” He stuck out his left nipple to me. I sucked on it while masturbating him. He let out soft moans. A while later he kissed me. He inserted his tongue into my mouth. The cigarette smell in his mouth was so strong I had to hold my breath. He took the Knorr Jok cup and held it under his sexual organ. His semen was released into this cup. This mission wrapped up in only a few minutes so as to avoid detection by other inmates in the room. He pulled his shirt and pants back into place, then took the cup to the toilet block to clean. I pulled down the blanket and turned back to lie on my side as if nothing had happened. After he finished cleaning, he walked back to his sleeping spot. Then he pulled the blanket over my head again. “Hey, I want to talk to you.” I turned my face to him. “Someone’s interested in you, you know?” I felt a little angry in that moment, and thought to myself, You think I’m easy, don’t you? (Actually, I am that.) “No, I don’t want that, whoever it may be.” He went quiet for a while, probably afraid of having upset me. “Hey, I have a wife and child, but I will break up with her.” “How old is she?” “18.” He had clean-looking fair skin, but his face indicated over 25 years of age. No idea why he had to lie about it. “I don’t believe that she’s 18.” He went quiet for a while. He was getting on my nerves so I stuck my hand in his pants to squeeze his sexual organ one more time. “Let me touch it. I like touching. No need to get hard.” “It is hard.” He tugged his pants down. His sexual organ was fully hard. “Hey, I want to fuck your ass.” “Didn’t you just finish doing it?” “I can still go.” “Told you, I’m just touching it for fun.” I pulled down the blanket and turned away from him, so he turned away and went to sleep,” in accordance with Plaintiff Document 3.

The crux of the case is whether or not the Defendant is guilty of the offense as charged. The Plaintiff brought Police Lieutenant Colonel Ekkaphon Saeng-arun as a witness who testified that he, the Witness, was tasked by his superior officer to check the Facebook postings of the account name Ekkachai Hongkangwan. Upon checking, it was found that the aforesaid Facebook account belonged to the Defendant. On 23 April 2560[2017], the Defendant posted a message into the computer system of the online social network called Facebook in the Defendant’s account called Ekkachai Hongkangwan. The message included the descriptions “Can you suck it for me”, “Suck my nipple for me”,“Hey, I want to fuck your ass”, “He stuck out his left nipple to me. I sucked on it while masturbating him. He let out soft moans. A while later he kissed me. He inserted his tongue into my mouth” of lewd character, where the privacy settings of the Defendant’s Facebook were set to Public, in which the general population could view the data posted. And there were other people who liked, commented, and shared the aforesaid message. As a result, the Witness made an investigation report to present to the superior officer, and was later tasked with filing a police report against the Defendant. [The Court] views that as the word “lewd” (lāmok) is a common term that is not specifically defined, but is a word used as an element of crime according to Article 287 of the Criminal Code, to ascertain whether or not any computer data is of lewd character, the same standard must therefore be applied from Article 287 of the Criminal Code, which defines it as vulgar (yāpchā), depraved (tamsām), crude (yāplōn), shameful in a sexual manner, embarrassingly disgraceful (nā-ujāt-batsī), that which is disgusting to good, moral people (khondī-mī-sīnlatham). Therefore, the fact that the Defendant posted the message with the descriptions “Can you suck it for me”, “Suck my nipple for me”,“Hey, I want to fuck your ass”, “He stuck out his left nipple to me. I sucked on it while masturbating him. He let out soft moans. A while later he kissed me. He inserted his tongue into my mouth,” with the content in Plaintiff Document 3 also taken into consideration, indicates a character of lewdness and obscenity. Therefore, when the Defendant input into the computer system the aforesaid data which were accessible to the general population, the action of the Defendant was tantamount to the act of inputting into a computer system computer data of lewd character that were accessible to the general population. As for the Defendant’s claim that the Defendant had no intent of committing an offense because the Defendant did so to disseminate stories about the Defendant’s life in prison in order to shed light on social problems, [the Court] considers that if the Defendant really wished to write articles in order to shed light on problems in prison, the Defendant could have conveyed that in writing in a manner that was not lewd or obscene. Moreover, the cross-examination by the Plaintiff yielded the testimony that the Defendant wrote the story in the aforesaid way to cater to (ao-jai) the people who liked to watch men-loving-men movies, currently a popular genre. This, therefore, points to the Defendant’s intent to disseminate messages of lewd character. The Defendant’s testimony does not disprove the Plaintiff’s testimony. The facts are thus convincing that the Defendant committed the offense as charged.

The Defendant is ruled to be guilty of the offense as per Article 14(4) of the Computer-Related Crime Act BE 2550, 1 year’s imprisonment, plus one-third in accordance with Article 92 of the Criminal Code, minus one-third in accordance with Article 78 of the Criminal Code. As the plus and the minus are equal, [the Court] considers it appropriate to neither add nor subtract in accordance with Article 54 of the Criminal Code, which leaves it at 1 year’s imprisonment. As for the Plaintiff’s request to count prison time on the basis of prison sentences in Decided Case No. CRI 3090/2561 and Decided Case No. CRI 3207/2561 of the Southern Bangkok Criminal Court, Decided Case No. CRI 765/2562 and Decided Case No. CRI 900/2562 of the Criminal Court, and Decided Case No. CRI 8327/2561 of the Northern Bangkok Municipal Court, there does not appear to be a verdict for these cases, so this request is denied.

(Criminal Court Seal)
Mr. Thoetthoon Bhasathiti              (Signature)
Mr. Boontham Wisetla                    (Signature)


For use by the court

Verdict                                                                                   Decided Case No. 1751/2654
Undecided Case No. 252/2565

In the Name of His Majesty the King
The Court of Appeal
12 January 2565[2022]
Criminal Matter

Between Prosecuting Officer, Attorney General Office,                         Plaintiff
And                 Mr. Ekkachai Hongkangwan,                     Defendant

Re:       Violation of the Computer-Related Crime Act
            The Defendant          appealed the verdict of        the Criminal Court
Dated 28 April 2564[2021]
Received by the Court of Appeal on 5 October 2564[2021]

The Plaintiff charged that on 23 April 2560[2017] during the daytime, the Defendant posted a message on the computer system of the Defendant’s Facebook social network under the name Ekkachai Hongkangwan. The message included the descriptions “Can you suck it for me”, “Suck my nipple for me”,“Hey, I want to fuck your ass”, “He stuck out his left nipple to me. I sucked on it while masturbating him. He let out soft moans. A while later he kissed me. He inserted his tongue into my mouth” which amounted to inputting into a computer system computer data of lewd character that were accessible to the general population. The incident occurred in Thung Song Hong Subdistrict, Lak Si District, Krung Thep Maha Nakhon. Before this case, on 23 March 2556[2013], the Defendant had been sentenced to 3 years 4 months’ imprisonment and 66,666 baht’s fine for the defamation of, insult to, or expression of ill-will toward the king, the queen, et al in the Undecided Case No. 4088/2556 of the Court of First Instance. Within five years of release from prison, the Defendant reoffended in the same offense. And the Defendant was the same person as the Defendant in Decided Case No. CRI 3090/2561 and Decided Case No. CRI 3207/2561 of the Southern Bangkok Criminal Court, Decided Case No. CRI 765/2562 and Decided Case No. CRI 900/2562 of the Criminal Court, and Decided Case No. CRI 8327/2561 of the Northern Bangkok Municipal Court. Punishment was requested in accordance with the Computer-Related Crime Act BE 2550, Article 14(4). The Criminal Code, Article 92, would add to the punishment and count the Defendant’s prison time for this case on top of the Defendant’s prison sentences from Decided Case No. CRI 3090/2561 and Decided Case No. CRI 3207/2561 of the Southern Bangkok Criminal Court, Decided Case No. CRI 765/2562 and Decided Case No. CRI 900/2562 of the Criminal Court, and Decided Case No. CRI 8327/2561 of the Northern Bangkok Municipal Court.

The Defendant denied the charge, but admitted to being the same person as the Defendant in the cases cited by the Plaintiff as the basis on which to add and stack prison time.

After deliberation the Court of First Instance ruled that the Defendant was guilty of the offense as per Article 14(4) of the Computer-Related Crime Act BE 2550, plus one-third in accordance with Article 92 of the Criminal Code, minus one-third in accordance with Article 78 of the Criminal Code. As the plus and the minus were equal, [the Court] considered it appropriate to neither add nor subtract in accordance with Article 54 of the Criminal Code, leaving it at 1 year’s imprisonment. As for the Plaintiff’s request to count prison time on the basis of prison sentences in Decided Case No. CRI 3090/2561 and Decided Case No. CRI 3207/2561 of the Southern Bangkok Criminal Court, Decided Case No. CRI 765/2562 and Decided Case No. CRI 900/2562 of the Criminal Court, and Decided Case No. CRI 8327/2561 of the Northern Bangkok Municipal Court, there did not appear to be a verdict for these cases, so this request was denied.

The Defendant appealed the verdict.

The Court of Appeal has reviewed the case file and met in consultation. The facts are settled in accordance with the indictment, the testimonies given by plaintiff and defendant, and the verdict by the Court of First Instance; in the appeal the Defendant did not dispute the allegation that at the time and place of the incident the Defendant posted the message which was computer data and input it into a computer system on the online social network Facebook in the Defendant’s account using the Defendant’s own name, Ekkachai Hongkangwan, as the prosecution detailed in Plaintiff Document 2, pages 2 and 3, and Plaintiff Document 3, and that the Facebook was set to Public making it accessible to the general population.

The crux of the case following the Defendant’s appeal is whether or not the Defendant is guilty as ruled by the Court of First Instance. The gist of the Defendant’s appeal on this point was that the computer data message that the Defendant posted on Facebook as manifest in the indictment was not computer data of a lewd character; the Defendant merely intended to post to tell stories from experience or to shed light on the problem of sexual relations which actually happened to the Defendant in prison so that society learned of it, so that it could be fixed; there was no intent to input any computer data of lewd character. [The Court] views that the passages in the indictment, from “Can you suck it for me”, “Suck my nipple for me”,“Hey, I want to fuck your ass” to “He stuck out his left nipple to me. I sucked on it while masturbating him. He let out soft moans. A while later he kissed me. He inserted his tongue into my mouth”, which form part of what the Defendant posted publicly on the Defendant’s own Facebook, as manifest in Plaintiff Document 2, pages 2 and 3, and Plaintiff Document 3, are explicitly worded (chai thoi-kham … yāng jōngjāeng) statements about the Defendant’s sexual relations with another male convict, statements which are out of character (phit wisai) for a reasonable person (winyūchon) who knows right from wrong in accordance with normal conduct, for if one were to shed light on problems in prison to get them fixed as the Defendant argued, one could use other words that are appropriate to convey it. Self-evidently (hen dai chat nai tua), such passages indicate lewdness and obscenity, and are disgusting in moral aspects to normal people (pakati-chon). Following the circumstance of the Defendant’s action of setting the Facebook to Public making it accessible to the general population, it is strongly credible and plausible beyond doubt that the Defendant did intend to commit the offense as the Court of First Instance ruled. As for the next matter, which the Defendant wrote at the end of the appeal, of the request for light punishment, when considering the circumstance of the case, in comparison to the penalty according to the provisions of the law, [the Court of Appeal] views that the Court of First Instance did not impose an excessive penalty; there is no reason for revision. The Court of Appeal concurs with what the Court of First Instance ruled. The Defendant’s appeal is not plausible. It is not necessary to deliberate or decide on other points of the appeal, because they are immaterial to the outcome of the verdict.

The verdict stands.

(Court of Appeal Seal)
Mr. Panon Katchapanan                 (Signature)
Mr. Dusit Chimplee                          (Signature)
Mr. Pornchai Liaopattanapong     (Signature)


Decided Case No. CRI 1032/2565

Criminal Matter
Between the Prosecutor, Plaintiff
And Mr. Ekkachai Hongkangwan, Defendant

I Mr. Ekkachai Hongkangwan
Citizen Identity Number █████████████
Ethnicity Thai Nationality Thai Occupation Independent Writer
Date of Birth ██████ 47 Years of Age
Address ███████████ Phone Number ███████████
Hereby submit the following complaint / declaration / request

In this case, the Court of Appeal on the 19th of April upheld the verdict of the Court of First Instance sentencing me to one year’s imprisonment.

However, I do not concur with these verdicts. I simply wrote articles about my experience of being imprisoned, which was an exercise of a constitutional right, not illegal whatsoever.

After my release from prison toward the end of 2558[2015], people asked me for stories about living in prison. So I frequently told stories about that for them to listen to. Everyone complimented my storytelling; no one ever criticized that my stories were lewd or obscene. What’s more, they demanded that I publicize my experiences on social network as well.

For this reason, I gradually posted articles about my experiences in prison in parts from mid-2559[2016] to mid-2560[2017], totaling almost 200 parts. What I wrote encompassed every issue, for example eating, sleeping, and working.

The 14-part article “Life in Prison” was part of those articles. It was drawn from my experience in prison in March 2544[2011]. I chose to write it novelistically in order to create flavor (attharot) for the reader. A part of it was related to sexual relations in prison. Even though some words may seem impolite, I am confident that they definitely do not constitute an offense as defined in the Computer Crime Act. Furthermore, this article featured no still or moving image that might make it qualify as sexually arousing.

My intention in writing these articles of in-prison experiences was to shed light on the problems of living for detainees in prison. My articles led to multiple changes in prison rules: condoms were subsequently distributed to male detainees for free, for example.

Besides, I consider the one-year sentencing by these courts to be an excessive punishment. My article did not cause damage to persons or to society in any way.

For the reasons stated above, I petition the Court to reconsider, in light of my counterarguments, the mistaken verdict by the Court of Appeal. I request that the Court order an acquittal, or reduce the sentence proportionally to a release on parole for the sake of justice. May the Court grant me this allowance.

The matter rests upon Your Honor’s judgment,

Signed

For my lawyer

1. Extension of petition submission deadline is not allowed
2. I will If the petition cannot be submitted by the 17th of May in a version prepared by the lawyer, use this version I have written and forwarded on the 11th of May instead.

In any case, I accept the petition being dismissed the Supreme Court’s decision no matter which way it turns out, because I may be granted pardon by this July. [This likely refers to the royal pardon given en masse annually on the occasion of King Vajiralongkorn’s birthday, the 28th of July. –trans.]

3 thoughts on “The Obscenity Case Against Ekkachai Hongkangwan

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