On Thursday the 29th of August 2019, the Supreme Court of Thailand handed down its decision to uphold the death penalties for Zaw Lin and Wai Phyo, the Burmese migrant workers found guilty of the rape and murder of British holidaymaker Hannah Witheridge and the murder of fellow countryman David Miller in September 2014 on Koh Tao in Thailand. Since then the Samui Times has been inundated with emails and messages from every corner of the globe expressing grave concerns over the outcome of the last and final appeal.
From the day the two men were arrested in October 2014 there has been widespread speculation that the Burmese migrants were scapegoats for the murders. One week earlier, one senior Thai police officer had appeared on Thai television saying arrests in the case were imminent and the suspects were Thai nationals. Shorty after he was taken off the investigation.
It is widely believed by Thai and expatriates living in the archipelago that the murders on Sairee Beach Koh Tao were committed by influential figures living on the island. Koh Tao is renowned for being run by a local family ‘mafia’.
I have personally closely followed this case, attended the trial at the courthouse on Koh Samui, regularly visited Zaw Lin and Wai Phyo in Koh Samui Provincial Prison, spent time with their mothers, spent time with Andy Hall, the front man of the defence team of lawyers, and actively researched the case. I have also followed the comments on social media.
To say that I believe the verdict in this case is unsafe is an understatement.
To that end I would like to bring some facts to the world’s attention once more, now some years after they were first reported. The DNA of the two accused, and now convicted, was never found on the presumed murder weapon.
The guilty verdict that resulted in the two men being sentenced to death relied heavily on the DNA evidence put forward by prosecutors who claimed a 100% match to the defendants. The DNA was said to be taken from inside the female victim. It is scientifically impossible that a mixed sample consisting of DNA from Hannah Witheridge, Zaw Lin and Wai Phyo could be a 100% match to any one person.
Jane Taupin, an Australian expert on DNA flew to Koh Samui to testify at the trial.
Jane Taupin is one of the world’s foremost experts on DNA profiling and has worked as an internal laboratory auditor. She has also written books on the use of forensic evidence in courtrooms. Her testimony, with regards to the DNA which the prosecution was relying upon to find the men guilty would without a doubt changed the outcome.
She had noted that the DNA evidence had handwritten alterations on it and was not stamped with the
laboratory stamp which would have been present had the DNA been tested in a laboratory which complied with international testing standards.
The defence lawyers had summoned her to support their case, but then never called her to the stand, and chose not to highlight her findings.
In news reports Jane Taupin said “Crime scenes, she said, are notoriously difficult to gather quality DNA samples from. Cases like the one on Koh Tao, which deal with mixed samples, are fraught with danger: complex and sometimes unreliable statistical calculations must be carried out to determine the probability that someone other than the accused could match the recovered sample.
Yet no statistical analysis was made available to the defence team or the court.
Instead, the judges were simply told by prosecution witnesses the evidence “confirmed” that DNA recovered from the crime scene belonged to the two accused, a claim Ms Taupin said is not strictly possible to make; instead, a probability ratio must be given. Whatever way you want to determine the statistics, they’ve got to be validated in your laboratory, and you’ve got to have them. But Thailand doesn’t have them. Not at all,” she said.
“DNA profiling is predicated on statistics, that’s the whole point. You don’t just say it’s a match — it’s not fingerprinting … You need to give significance to that match.”
It is important to note there was not a single witness to this crime.
Wai Phyo and Zaw Lin both have no criminal history whatsoever and had no apparent motive to commit this crime.
Both Wai Phyo and Zaw Lin maintain they were tortured into confessing during police interrogations where they had no legal representation. When the two men were given legal representation they immediately recanted their confessions. A description of the torture they reported appears later in this press release.
Sarah Yuen is an international freelance journalist who covered the trial for Sky News and various UK national and regional publications. She said she was astounded by the revelations made in the court.
She reported on every day of the trial on Koh Samui and listened to evidence which highlighted the lack of safe chain of custody for DNA samples; the lack of signature on the pathologists report and the refusal by the pathologist, testifying in court, to explain why.
The first man to find the hoe, deemed to have been the murder weapon, explained in court that he took it back to his vegetable patch because it belonged to him. Police found it hidden among black plastic bags and simply handed him a rubber glove and told him to take it back to where he found it. This man was never questions by the police about possible involvement in the killings.
“There were so many inconsistencies in the various testimonies that UK police observer’s present in the court where shaking their heads,” said Yuen. “Then, inexplicably, after fighting for days to get the court
to agree to a retesting of the DNA, the defence team suddenly announced they were not going to bother. The lead defence lawyer said ‘it probably wasn’t worth it’. He had summoned me to the courthouse to tell me that. After that statement he slept through much of the remaining court proceedings showing very little interest in the information being put forward in six days of defence witnesses. That behavior was inexplicable to me given the gravity of the court case. As was a comment by the lead judge, while looking at the Koh Tao police’s haphazard presentation of apparent CCTV footage of Wai Phyo running away from the scene of the crime. The judge told them they should “make sure it was better organized for the appeal.” – But we were still only half way through the trial.”
“Every alarm bell was ringing in the heads of almost everyone in that court room. I myself was intimidated by Koh Tao police officers present during the trail, and one of my translators was harassed and forced to stop working for me. No one was allowed to take notes in court, even the international observers. Strict etiquette in comportment was enforced in the court, right down to not being allowed to cross ones arms or legs, but members of the Koh Tao police sat slumped on the court benches, wearing only vests, and staring at the press contingent and the judge. When reprimanded by the lead judge they ignored his orders. International DNA experts resident in Thailand who had come to observe the trail told me the standards of handing the DNA by Thai police was generally dire, and they had been struggling for years to teach the police officers how to handle it without contaminating it “
Yuen went on to add that she believed the Thai police lied at the time of the arrest of the two Burmese workers.
Yuen told the Samui Times “A police spokesman, who had lived in Essex and spoke perfect English, told me in a recorded interview that police had sent the DNA samples to Singapore for testing in an international laboratory and they had received the result back within 24 hours, at 8am, that morning, and it was a match for Wai Phyo and Zaw Lin. However, in court, it became apparent that the DNA samples had never been sent to Singapore, and even if they had been, it would have been impossible to secure a match in 24 hours. The court heard that the DNA samples were only ever tested by Thai police and were not even sent to the country’s leading DNA testing laboratory. The head of that laboratory, Pornthip Rojanasunand, testified in court for the defence!.”
In her testimony Pornthip Rojanasundand said her laboratory had independently tested the murder weapon, and had found two DNA samples on the how. One belonged to David Miller the other belonged to an Asian male who was not Zaw Lin or Wai Phyo.
After the Burmese men were arrested they were forced to reinact their crime on Sairee Beach on Koh Tao. Despite the press being told the two men had confessed to the crimes, the Burmese migrants told gathered journalists they had not killed the British holidaymakers.
A man called Maung Maung, who was the other person seen on CCTV footage with Zaw in and Wai Phyo on the night of the murders was at the reenactment, being escorted by the police wearing the same motorcycle helmet and stab vest as the two accused. But he was never charged or brought back to the court to testify”
On the night Hannah Witheridge and David Miller died, there were reports of an altercation at the AC Bar which was close to where the British tourists were found dead on the beach, and where they had spent the hours before their death. In court Police Colonel Cherdpong Chiewpreecha said he was aware of rumors that 23 year old Hannah Witheridge had been involved in an altercation inside the AC Bar, while she was there with friends, but he said neither he nor his officers had actively followed up that line of enquiry.
Neither Ms Witheridge, nor fellow backpacker David Miller, 24, were seen alive again after entering the AC Bar separately, between midnight and 2am, in the early hours of September 15 2014.
The court was also told that out of the 300 CCTV cameras in the area, 200 were not working, and only 22 captured images of the victims.
In an article for the UK Eastern Daily Press in 2015 the testimony of Wai Phyo with regards to his arrest and torture made the headlines when he said he had been ‘sexually abused’ by Thai police –
It read: “Waei Phyo, a 22 year-old migrant worker from Myanmar, has told a panel of three judges investigating the deaths of Ms Witheridge and fellow British tourist David Miller from Jersey, that police stripped him naked in a freezing room and flicked his genitalia hard to make him confess. He explained he was handcuffed at the time and tried to protect himself from the abuse but could not.
Waei Phyo said he was also kicked, punched and slapped repeatedly, and threatened with dismemberment, electrocution, and a burial at sea before he finally confessed.
“Police told me that as I had no passport I had no rights, and they told me it had happened before, where Burmese migrant workers were burned in a circle of blazing tyres on Koh Tao island” Waei Phyo said in court. “The man said I was young, and I could just say I did it and go to prison for several years. If I didn’t I would certainly be killed. The interpreter told me he was in a position to help me, so I decided I should confess. After that, I signed many documents but I didn’t know what they said.”
Waei Phyo said he was then instructed by police officers and the translator in how he should say he killed Ms Witheridge and Mr Miller at the reenactment.
Under Thai law there is no requirement for a trial if a suspect confesses to a crime. But Waei Phyo and his co-accused Zaw Lin retracted their confessions when they were given access to lawyers in the following weeks.
In 2018 a young British backpacker’s mother reported to the Samui Times that her daughter had been raped on Koh Tao on the 26th of June 2018 at 1am on the same beach where the Miller and Witheridge murders took place. The young girl allegedly fled Thailand after the police on the neighboring island of Koh Phangan refused to take her report, Later her travel companion went back to Koh Tao with a T-shirt which she said could have the DNA of the rapist on it. The police refused to make a report stating any report would need to be made by the alleged victim. The T-shirt returned to the UK with the travel companion.
When the Samui Times reported these developments the Thai authorities issued a warrant for my arrest for fake news and computer crimes. But at the same time Thailand sent officers to the UK to interview the victim. During that interview they took possession of the T-shit. They took it back to Thailand for testing. Later they said that the DNA on that T-shirt did not match anybody in their system. The rape victims mother made this statement to the Samui Times.
“The fact that the Thai police came all the way over to England to ‘interview’ my daughter and take the T-shirt with the DNA on it back to Thailand smacks of total corruption. I do believe this DNA was linked to the horrific killings of Hannah Witheridge and David Miller. On their return they misquoted my daughter and rebuffed the DNA was not matching anyone on their records. It seems to me that if the court had retracted the death penalty for Zaw Lin and Wai Phyo, the Burmese scapegoats, it would open up a whole can of worms which were brushed under the carpet in 2014”.
There have been many more suspicious deaths on Koh Tao since 2014 including Christina Annesley, a 23 year old Briton who was found dead in a bungalow owned by Montriwat Toovichien, the brother of the local headman who was also arrested in connection with the murders of Hannah Witheridge and David Miller before being released. Not long later lead investigator Panya Maman was off the case. Her father has never had any confidence in the police investigation surrounding the death of his daughter as they never tracked down or interviewed the last man to see her alive. He told the Samui Times “when is the world going to wake up to the fact mongrels in Thailand are getting away with murdering our kids while two innocent Burmese face losing their lives for murders I believe were committed by a Thai mafia thug while the Thai police stand by and do nothing.”
The Samui Times is now calling on the international human rights groups, who have already expressed their concerns about how the trial of the two Burmese migrants was conducted, to reopen their investigations.
The family of David Miller who welcomed the upholding of the guilty verdict for the Burmese men who were found guilty of the killing of their son, have said they do not want to see the death sentence carried out and would urge clemency. The family of Hannah Witheridge have not made any comment since the Supreme court ruling was made and indeed only attended the first couple of days of the original trial. They issued a statement at the same time saying they hoped the “real killers would be brought to justice”.
Yesterday 3rd September 2019, high ranking Myanmar Military General Myat Tun Oo visited Zaw Lin and Wai Phyo in the Bangkwang Central Prison where they sit on death row. Htoo Chit, from Myanmar’s Foundation for Education & Development, told the Samui Times “We were so surprised at the Supreme Court of Thailand’s decision on the final appeal on 29th August 2019. We still believe Zaw Lin and Wai Phyo are innocent and have been used as scapegoats; however we have to accept the decision from the Thai judicial system. We are now encouraging and requesting that the Myanmar Government, the Myanmar Army, Civil Society Organizations, Religious Groups, NGO’s as well as members of the business sectors request a King’s Pardon. The Myanmar Government and some opposition parties have prepared and submitted letters to His Majesty the King of Thailand. The visit by Myanmar Military General Myat Tun Oo gave great encouragement to Wai Phyo and Zaw Lin.
The people of Myanmar lead by Buddhist monks have been peacefully demonstrating and praying.
Prior to the verdict last Thursday Zaw Lin and Wai Phyo looked physically and mentally well. They were devastated when the decision to uphold the death penalty was announced and looked very frustrated. Zaw Lin emotionally asked the judge “are you going to kill us with injection”. The two men told representatives from the Myanmar Embassy they did not commit the crime and asked their government to support them and defence lawyers to help them. They also requested their mothers to be told not to worry about them as they can survive.
A concerned group of people have started the Justice for Zaw Lin & Wai Phyo in the Koh Tao Murder Case Facebook page to raise awareness of the two men’s plight.