The Official Receiver of the Bangkok of Commerce Public Company Ltd v Rakesh Saxena
| Jurisdiction | England & Wales |
| Judge | Dame Clare Moulder DBE |
| Judgment Date | 14 March 2023 |
| Neutral Citation | [2023] EWHC 521 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2018-000105 |
[2023] EWHC 521 (Comm)
Dame Clare Moulder DBE
Sitting as a Judge of the High Court
Case No: CL-2018-000105
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Scott KC (instructed by Baker & McKenzie LLP) for the Claimant
The First Defendant in person
Hearing dates: 27 & 28 February 2023
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be Tuesday 14 March 2023 at 10:00am.
Index
| Background | 2 |
| Introduction | 2 |
| Evidence of Mr Lyons | 5 |
| Hearing bundle | 5 |
| Capacity of the OR to bring these proceedings | 6 |
| Preliminary issues | 6 |
| English assets | 7 |
| Human rights | 7 |
| Legal principles for enforcement of judgment | 7 |
| Exclusionary rule | 9 |
| The substance of the right sought to be enforced | 12 |
| The letter from the Attorney General to the CPS and to the Guernsey authorities | 13 |
| Discussion | 15 |
| Expert evidence | 3, 14 |
| 17 | |
| Whether enforcement of the right would, either directly or indirectly, involve the execution of the penal law of another State/exercise of sovereignty? | 20 |
| Conclusion | 21 |
Introduction
This is the judgment on the application by the Claimant (the “Claimant” or the “OR”) to enforce the judgment of a Thai court against Mr Saxena, the First Defendant for the sum (the “Judgment Sum”) of 1.132 billion Thai Baht (“THB”) (approximately £27.3 million). Judgment in default has been entered against the Second and Third Defendants.
This reserved judgment is being handed down following a hearing on 27 and 28 February 2023. The hearing was held remotely given that Mr Saxena is currently in prison in Thailand and was representing himself. The Claimant's expert is also located in Thailand and therefore permission had been given for him to appear remotely. The OR is and was represented by leading counsel, Mr Scott KC.
This judgment has not been circulated in draft in advance of handdown given the difficulties in sending a draft judgment to Mr Saxena. A copy of this judgment will be sent to the parties after this handdown as well as being published in the usual way.
Background
By way of background, in November 2009 the Thai Public Prosecutor brought proceedings against Mr Saxena in respect of his part in the fraud on the Bangkok of Commerce Public Company Limited (formerly known as the “Bangkok Bank of Commerce Public Company Limited”)(“BBC”).
The proceedings were instituted by a complaint (the “Complaint”) dated 23 November 2009 to the South Bangkok Criminal Court (“SBCC”).
Mr Saxena was extradited from Canada to Thailand on 30 October 2009 and was present throughout the proceedings before the SBCC.
In its judgment dated 8 June 2012 the SBCC found Mr Saxena guilty of offences under the Thai Securities and Exchange Act and the Thai Penal Code of essentially assisting a director of dishonest conversion of property. The SBCC sentenced Mr Saxena to a period of imprisonment of 10 years, imposed a fine of THB 1 million and ordered him to make a payment of the Judgment Sum to the BBC as the “aggrieved party” (the “repayment order”). The repayment order was in a sum less than the amount sought by the Thai Public Prosecutor (the court finding that repayments had been made which reduced the principal outstanding).
Mr Saxena unsuccessfully pursued appeals to the Thai Court of Appeal and the Supreme Court. The Supreme Court dismissed his appeal on 17 August 2016.
The OR is the official receiver of the BBC. It seeks to enforce the repayment order against Mr Saxena on the basis that the common law requirements for the recognition and enforcement of judgments are satisfied.
In summary Mr Saxena resists the order primarily on the basis that it is subject to the exclusionary rule that the English courts will not enforce a foreign penal order. Mr Saxena's case is that the judgment of the SBCC is a criminal judgment disclosing a cause of action of conversion, rendered by a criminal court in Thailand, pursuant to a trial conducted by the Thai Public Prosecutor for offences against the securities laws of the Thai State. Accordingly Mr Saxena's primary defence is that the judgment is of a penal nature which cannot be entertained by the English court.
The Claimant's case is that the exclusionary rule is engaged where the claim amounts to an attempt by a foreign state to exercise its sovereign authority in England but that this case is a claim to enforce in substance a claim for damages which in England might have been brought in a civil case. The Claimant also relies on the Thai law context in support of their case and submits that the repayment order, although pursued in the criminal case, was separate and distinct from it and fell to be determined in accordance with Thai civil law.
Mr Saxena's response is that there is no evidence that a civil claim was brought by the Claimant.
I deal with these submissions in more detail below.
Expert evidence
Permission had been given for both parties to rely on evidence from a Thai law expert in relation to the nature of the underlying Thai proceedings and the enforceability of the SBCC judgment. The Claimant adduced expert evidence in the form of a report from Mr Praphan Subsaeng, a full time judge in Thailand from 1973 to 2017 including as a Presiding Justice of the Supreme Court from 2007–2017.
Mr Saxena did not adduce any expert evidence. Mr Saxena did however serve a written question on Mr Subsaeng pursuant to CPR 35.6 (Written questions to experts) and at the hearing, cross examined Mr Subsaeng.
The written question served in July 2022 was whether Mr Subsaeng had seen proof of a case under section 40 of the Thai Criminal Procedure Code being filed by the Claimant. Mr Subsaeng served a written response in which he stated that he had seen the Complaint and that the judgment of the SBCC was in two parts, a judgment in the criminal case that ruled that Mr Saxena was guilty and a judgment in the civil case which ordered Mr Saxena to pay restitution for the crime. Mr Subsaeng noted that section 40 was a procedural law which gives the Criminal court the power to try both criminal and civil elements of the case but that since the parties did not dispute the jurisdiction of the SBCC there was no need for the SBCC to include explicit reference to section 40 in the judgment.
Mr Saxena made an application dated 10 October 2022 to exclude the expert evidence on the basis that Mr Subsaeng had failed to answer the question. However at the hearing Mr Saxena cross examined Mr Subsaeng and had the opportunity to put his question orally to Mr Subsaeng.
Mr Subsaeng's oral evidence was that under Thai law there can be a civil case “ in connection with the criminal case”.
Mr Subsaeng's evidence was as follows:
“ For example, for the offence of theft, when you steal something from someone, the person who is injured has a civil claim against you to claim back the property. That is a civil claim in connection with a criminal case. When this kind of case happens the injured party has the following rights. Number one, they can claim at the criminal court and put in the civil claim in the criminal court to claim back a property or they can separately claim in the civil court as well. So the injured party has the option to choose whether they would concede the claim at a criminal court with a civil claim. That is the case. The matter of this case is an offence of misappropriation committed against the injured party, which is the bank. For this case to proceed the public prosecutor can file a criminal charge against the offender and also put in a civil claim to claim back the money from the offender. That is a civil case in connection with criminal case. And the claim for the return of the property is made on behalf of the injured party. Naturally, in a case like this, as you can see in the complaint there will be two requests. Request number 1 is the request to charge against the offender for the criminal offences committed. The second request will be a civil request to return the misappropriated asset or property.” [emphasis added]
Mr Saxena appeared to accept that in light of the exchange in cross examination it was not necessary to pursue his application. Mr Saxena observed:
“ There is no civil process. There is no civil case as such. No witnesses coming in, no competent court making a determination. That is the distinction. I think I got your point. I got his point. He's talking about a claim which a court orders. A court order is different, very different from a proceeding which goes from the bottom.”
In light of how the cross examination unfolded, Mr Scott KC for the OR did not address the Court on the application to exclude the expert evidence and it is not necessary in my view for the Court to rule on this issue.
In his oral closing submissions Mr Saxena submitted that the Thai Court had not engaged in a civil process and there was no evidence to support the Claimant's case in this regard other than the evidence of Mr Subsaeng. Mr Saxena asserted that he had not argued this with Mr Subsaeng because he would not give an honest answer.
It is clear from the transcript [Day 1 p38 line 23] that Mr Saxena did put his case to Mr Subsaeng in cross...
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