Koh Tao Verdict: Lingering Questions as Protests Continue

By Saw Yan Naing 30 December 2015

CHIANG MAI, Thailand — On Dec. 24, the Koh Samui Provincial Court sentenced Wai Phyo and Zaw Lin to death for the murders of British tourists Hannah Witheridge and David Miller on the Thai resort island of Koh Tao.

Thai journalists, forensic experts, rights activists and social media activists have highlighted numerous flaws in the police investigation, and doubts over the guilt of the Burmese migrant duo have sparked protests in various locations across Burma in the days since.

Military chief Snr-Gen Min Aung Hlaing has joined Buddhist monks, Burma’s envoy to Thailand and the Myamar National Human Rights Commission in questioning the evidence used to convict the pair.

On the other hand, at least one of the victims’ families believes the verdict was justified by the “overwhelming evidence” of Wai Phyo and Zaw Lin’s guilt.

“We came to realize that the [Thai] police investigation and the forensic work performed was not the so-called shambles it was made out to be,” said Michael Miller, brother of David, reading from a statement on behalf of his family on the courtroom steps soon after the Burmese men were condemned to death.

While the murders of Witheridge and Miller garnered an avalanche of press coverage in the United Kingdom, British authorities have been circumspect in their comments on the case. A UK Foreign Office spokesman was quoted in the Guardian shortly after the verdict, reiterating the British government’s opposition to the death penalty. A reference to the murders of Miller and Witheridge remains on the government’s travel advisory website.

A British police delegation visited the island late last year, later telling the families of the deceased that the evidence against the accused was overwhelming. Migrant activist Andy Hall, who assisted with and raised funds for the defense of the accused, claimed that the UK investigators had not considered allegations the pair were tortured into their confession. A UK High Court judge later blocked the release of the delegation’s full report, not without first stating his misgivings.

“The UK government role was disappointing and concerning,” Hall told The Irrawaddy, also stating that the defense team respected the opinion of the Miller family while disagreeing with their opinion of the investigation, trial and verdict.

Hall added that the failure to provide a full and prompt disclosure of all information relating to the case may have led the UK government into a passive breach of its protocols on overseas criminal cases involving the death penalty.

Several other observers have suggested that the British police delegation took representations made to them by Thai investigators on trust, rather than jeopardizing the smooth bilateral relationship to combat drug trafficking, smuggling and terrorism.

With Zaw Lin and Wai Phyo’s death sentence, the pair have been transferred to a high security prison in Nakhon Si Thammarat. They are expected to lodge an appeal in the coming weeks. Whatever really happened on the night of the murder, and no matter what the outcome of any future cases, doubts over the pair’s guilt are never going to subside.

 But the facts remain.

Credible accusations that the accused were tortured while in the custody of Thai police were not considered by the court or the Scotland Yard investigation.

The initial investigation linked members of a powerful local family as suspects, before the officer in charge was suddenly transferred away from the island.

Sean Mcanna, A Scottish tourist who knew Miller and was on the island the night of the murders, claimed that local organized crime figures were conspiring to lay blame for crime at his feet, shortly before he fled Koh Tao.

Dr. Pornthip Rojanasunan, a forensics expert and head of that country’s Central Institute of Forensic Science, has criticized the Thai police investigation for relying on DNA evidence without properly documenting the chain of custody—in other words, failing to demonstrate that the DNA samples had not been tampered with. Additionally, the DNA samples on the murder weapon did not match those of the accused.

As has become de rigeur since the coup of May 2014, the Thai junta has blamed widespread criticism of the investigation, trial and verdict on “instigators” from the ranks of its political opponents, including most recently the Pheu Thai party of deposed PM Yingluck Sinawatra.

At a press briefing on Monday, junta leader Prayuth Chan-ocha, testily hit back at critics, saying there would be no fresh examination of the initial police investigation.

“They have the right to appeal, right? Laws all over the world have this,” he said. “Or should Thai law not have this? Is it the case that we should release all people when pressured?”At the same press conference, Police Maj-Gen Piyaphan Pingmuang suggested the protests were opportunistic, noting that no protests had arisen over 126 other murder cases involving Burmese migrant workers in the past year.

Perhaps not. Certainly this case has attracted more attention because of the deaths of British nationals—but if the investigation had been conducted professionally, and if the evidence against Wai Phyo and Zaw Lin was overwhelming, it is hard to imagine protests of the magnitude and intensity as what has been seen in Rangoon in the last week.