Friday, July 27, 2012

Friday, July 27, 2012
A Flying Sporran Environmental Report

July 27 2012

If this story has seems like it comes out of Disneyland well its true it has fairy tale dimensions. Additionally, behind Thailand’s Public Sector Anti-Corruption Commission’s investigation into land grabs on the holiday island of Phuket there is an American, who, funnily enough provided 'image support' for Disney's ‘The Lion King’.

And this story, which involves a somewhat courageous man who also worked on confidential projects for the U.S. Defense Department, does appear to have villains ranking up there alongside  'Scar', 'Cruella De Vil' and 'Shere Khan'. But will it have a happy ending?

Andrew Drummond reports on one foreigner's fight against corruption in Thailand.

Software Park

In his 28th floor office in Software Park, Bangkok, I asked Police Colonel Dusadee Arayuwuthi if by chance the island of Phuket could be rising out of the sea.

While property developers are complaining of the lack of it, the land on which resorts can be built seems to be increasing by the year.

The director of Thailand’s Public Sector Anti-Corruption Commission laughed.

"No. Some properties look like they are actually in the sea already. What you see is not necessarily what is properly recorded in documents and maps."
'Yo Yo'

It looks on paper at least that the island is defying global warming and rising out of the waters, but, when you visit them, many resorts seem bang up against the receding coastline.

Then again some maps seem to show the coastline way out to sea.Phuket appears to be bobbing up down in the Andaman like a yo-yo.

Yet there are strict environmental rules, dictating that this could not happen.  In fact nothing should be built within 20 metres of the highest high tide line and from 20-50 metres metres can only be 6 metres high – and even then 75 per cent should be left green.

No More Mr. 'A' 'B' or 'C'

Police Colonel Dusadee sees the joke, but then again he is deadly serious about his job. He is going high profile. This is not one of these typical government investigations which are announced and which we hear little of later before they finally disappears into obscurity.*

The Colonel is banging a drum. So far he has named sixteen Phuket officials and a Vice Governor who have assisted in the plundering of the island. Gone are the days of  the anonymous Messrs 'A' 'B" and 'C'.
 Corruption in Thailand?...zzzzzzzzz!

For a foreign correspondent writing about corruption in Thailand is a 'No. No'.  That's not because we do not wish to blot our accreditations - its simply because when you mention Thailand and corruption to Foreign Desks back home they tend to react with a paused bored silence and ask:'Next?' Environmental reporters, once the vogue, have had to give way to the financial guys.

Back home if politicians did this to Britain or France, or Germany, or anywhere in the west, despite press contols, they would face a media lynching. Reporters and crews would be parked outside their doorsteps. They wouldn't get a minute's sleep. Newspapers would know the names of their mistresses and if they were school bullies, and how much their bar bills were. They will have committed sacrilege in the public's mind.

In Thailand of course it is different.

 Foreigners at fault?

The press reports it. But is muted.  Where is the shame? Often somebody else is blamed.  Earlier this year there were for instance reports that 90 per cent of the coast of Phuket was owned by foreigners. How could that happen? Well, that's the first question that comes to mind.

Still that was a 'gut reaction'; a nationalistic 'them and us' story, which, while it may not have been totally accurate in the telling, did raise the profile of a scandalous issue.

While clearly trillions of foreign dollars have been invested in the Phuket honeypot, foreigners will never of course have control. They have to buy into the system.

Col. Dusadee
Meanwhile in a country of a'free press persons of influence actually control the press locally.  Unlike Britain for instance, one does not slag off the local mayor. There is the matter of  journalistic self preservation, which in Thailand still seems to mean not just worrying about your job.

"Ah but you know that may be true, but in fact journalists are our eyes and ears too," said the Colonel. "They may not be able write certain things in their newspapers, but they are very good informants as to what is really going on."

So here information is flowing regularly into the PACC files from not only journalists but members of the public..

Lt. Colonel Dusadee makes occasional public tours of Phuket himself. That is to raise the profile of the enquiry. It almost certainly causes discomfort locally. That's why while he is elsewhere his footsoldiers like worker ants are quietly crawling over the undergrowth logging what is devastated. On Phuket and PhangNa he is looking at developments in the hills and on the beaches. He has already singled out some definitive cases.

"Er, about these resorts in the sea," I ask. 'Could a resort called 'Eva Beach' be one of them, more than plucking a name out of a hat. Eva Beach is a controversial resort in Rawai, Phuket. 
'Nae Non' 'Certainly!

The Ultimate Paradise Island Nightmare

Eric Kenly

Back on Phuket Eric Kenly and his Taiwanese wife Yaling are digging in for long legal battle which is testing Thailand’s anti-corruption and environmental laws.

They have received threats. They have been investigated on orders from the governor's office (but not necessarily personally from him) they say.

They have been told quite specifically that their safety in Thailand cannot be guaranteed.

Well, that’s a bit of a blow. They came here for the peace and quiet.

But they are hanging on.

Eric is no fool.  In the field of ‘imaging’ he is at the top of the tree. He’s the man Disney calls for colour management on its cartoon movies.  A former RIT student with an M.Sc. in ‘Imaging’ he is also a man who has been called by the US government to work on projects which apparently it would be treasonous to talk about.

But Eric Kenly came to Thailand to slow down his pace and impart his knowledge in a series of  technical books called ‘Getting it Printed’ which have become standard reference books worldwide.

Nothing cloak and dagger here.  They are reviewed as 'the ultimate printing resource'.

The last of his books he has actually written in the peace and quiet of Rawai, an old sea gypsy village.

Eric knows what happens in Asia. You buy a house, and bob’s your uncle,  if you're not careful a year or two year later, somebody plonks a condominium at your front door.

So after he arrived and found a house he went to the Tessaban  (local authority) to check. He was informed – no way could anybody build in front of him and ruin his perfect sea view. It was against strictly laid down environmental regulations.

Building Eva Beach

Six years later the hoes and diggers moved in. On went the pile driving and out went his 45 million baht paradise home,  his life's reward, the stuff of brochures. 

In came the Eva Beach Resort rising into his view of  tropical islands and swaying palms. Eric and Yaling were horrified but not speechless. They knew they had a case and Eric was not going to roll over.

His view used to be this above of  a couple of cottages set amongst the trees and the sea and islands beyond (they're out of sight to the right).

It has become this (above) - oh and there's another building going up on the right to block the view completely.

As the resort rose in front of his house he took civil action against the companies Phuket Rawai Friendship, and EVA Beach run by an Italian called Paride Bruno, and a Thai national called Authanop Pankamnerd.

They had advertised on the net with the slogan ‘We develop property just as if we are going to live in it ourselves’ and started taking deposits.

If this is in Zone 2 - where has Zone 1 gone - In the sea? Good Guess! So Phuket is actually sinking?

The property looked smart and after all it was smack on the beach. What a location! How could that be? Publicity pictures like the one above appeared to defy zoning laws. But in documents submitted for legal cases they say they are not there at all.

Local Thai villagers were also concerned. With Kenly, 40 of them signed a petition against the development. That's when the trouble started.

The Kenlys did not have much time to sit back and let the law take its course. Ten men in uniform turned up at his village and came knocking at his house.

'Miracle Year'

At the dawn of the Tourist Authority of Thailand's 'Miracle Year'  he says he was told that his future safety not only in Phuket but in Thailand could not be guaranteed.

Villagers were also approached and they backed down quickly. They knew the risks it seems.

“They told me they were now too scared. Influential influences were being brought to bear and they wanted their names taken off the petition. We had to cancel a press conference we were organizing.”

Meanwhile Eric and his wife Yaling contacted their respective embassies expressing fear for their lives.  The U.S. Embassy did nothing on the basis it does not interfere with the internal affairs of Thailand, but the Taiwanese Embassy contacted the Foreign Affairs Division of the Royal Thai Police, who dispatched a Lt. Colonel Warawat to Phuket.

After meeting ‘all parties’ he gave the couple the assurance that their safety was guaranteed. Problem solved?
Local government men

A  couple of months later along came the government officials from Immigration and Labour Departments. On orders signed within the governor's department they asked the foreigners to produce all their papers.  They were in order. But there was no subtlety in their actions.

When Eric Kenly’s case against the developers got to court the earliest trial start date they could get was in 2013, which was not good. The buildings rose and rose.

But by now the PAAC were champing at the bit and having a look at the Eva Resort themselves.

They were not impressed. Colonel Dusadee named Eva Beach in a press conference as one of the cases where he was dealing with official corruption and spoke of influential figures who had grabbed other parcels of land.

To counter negative publicity Eva called their own press conference.

Phuket News Picture: Eva Beach Managing Director Gives Press Conference

They said they were acting totally within the law, and had all the right planning permissions and permits…which indeed was true. The question was, were these permits issued legally?
From the Phuket News: “We have been affected by the inaccurate news,” said Mr Authanop. “Our future is being ruined.” He said that the buyers of nine villas had declared their intention to return their partly-constructed villas to the Eva Group. The group’s reputation has been tarnished, he added.

Mr Authanop said that the investigation by the PACC might be the result of “defamation by an individual who is not satisfied” with the Eva beach project.

Mr. Authanop also referred to a foreigner who was trying to sell the company his house, but the company would not buy.


There is of course a political angle behind this. Most of the encroachers in the PACC investigation are aligned to the Democratic Party. South Thailand is of course the Democratic stronghold.  The Pheu Thai government is cleaning out corruption in its rival party perhaps.

There is an element of 'If you think we're corrupt, well take a look at this!' about it.

And in this case former Prime Minister and Democratic leader Abhisit Vejjajiva is understandably remaining silent. A lot started on his watch.

Lt. Colonel Dusadee is aware of  politics behind this situation. When I asked about it he replied:
“I take your point. But I am investigator investigating wrong doing and dealing with each case as it comes up.  There are Pheu Thai members involved in another areas.  I will not be expressing any political preferences."

The Colonel seems fearless. Teams of PACC officials in combat fatigues and jungle boots have been scouring the coastline and protected jungles of Phuket, Phang Nga, and Krabi for breaches of environmental laws.

Their findings have so far been massive and they are giving them to their committee to adjudicate. Large chunks of Thailand have been misappropriated or depending on your view point destroyed or turned into ‘dream resorts’.

Thai investigations into corrupt officials, politicians, police etc., have not in the past ended in many jail sentences.  Those convicted tend to leave the country and return forgiven and seemingly richer than ever.

Less noble people get 'transferred' to 'inactive posts'. Those who make jail seem to get bed linen and room service.

In this case Police Colonel Dusadee, who has a meticulous air about him insists:
“ My job is to go after the officials who have allowed this destruction of our country and even encouraged it. I will complete my job. 
“As for the illegal structures We want them torn down.”

Kenly is also encouraged in his action by officers of the Administrative Court in Nakorn Sri Thammarat which is now handling complaints of malfeasance against both the Tessaban in Rawai and the Natural Resources and Environment Committee in Phuket, which he says both ignored the environment and the island’s natural resources by issuing permits to Eva Beach. Here his treatment has been a breath of fresh air, he says.
“They have been very helpful and informative. They keep us informed of the progress of their panel and even correct us if we lodge something which contains an inaccuracy.”

'The foreigner has no right(s)'

Meanwhile Eva Beach has joined in the defence of the Tessaban and Natural Resources and Environment Committee.  They complain that as Mr. Kenly is a foreigner and that his company is more foreign owned than Thai then he is not entitled to lodge a complaint.  The foreigner just wants to make money. These complaints, say Kenly, are invalid. He has a working company. He has invested in Thailand.

For most its all about money.  But Eric Kenly says he just wants his quality of life and peace of mind back.

So what is it about the Eva Beach Resort which sounds so outrageous? Well, Eva claims not only is their resort not in Zone 1 (beachfront property which must be 20 metres back from the highest high tide mark and 75 per cent undeveloped) - but is actually in Zone 2 - property which is more than 50 metres back from the high tide mark.

Their own pictures above and below seem to defy this claim.

And the Environmental Impact report below denotes the high tide mark at a place where it looks like one might be able to park a pocket battleship.*

The red denotes the beginning of Zone 1. The green line is where construction starts.

"We have tried to approach this issue without causing trouble. We were hoping this would not be brushed under the table. Everything has been done low key and methodically.  I came here to relax," says Eric, from Arvada, a suburb of Denver, Colorado.

 "Sticking up for our rights has been debilitating and of course costly. But we have been given strong hope that this issue will resolve itself in the right way."

Will this story have a happy and judicious ending? Millions of dollars are at stake.

It’s hard to see. But it looks like the Administrative Court and the PACC could rule well against these developments and the officials involved.

The beauty of the investigation for Lt. Colonel Dusadee is that the environmental laws are carved in stone and environmental officials and local authorities have to sign off on every bit of land. Of course there are further complications over ownership papers but that's a good starting point.

A Flying Sporran
Will the foreign investors squeal and say how much they really paid if they see their resorts go up in smoke - or will they just walk away?

Below I have added below a very specific letter from the Office of the Governor of Phuket.

Of course with the Thai justice system as it is there seems plenty of scope to return to ‘old values’ particularly if there is a change of government, but that's not on the immediate horizon and its been a long time since Thailand has been so stable, whatever one's political views.

*Of course battleships cannot anchor there. Rawai  Beach is quite flat and the tide goes out a long way. But you get the drift.

* Colonel Dusadee was removed from the Public Sector Anti Corruption Commission and this investigation frizzled out.


  1. Sometimes you have to wonder. We all know very well about corruption in Thailand, we put up with it and many of us have had the BENEFIT of it from time to time. But we cannot put our heads in the sand and say it will never interfere in my life and my surroundings. Simple fact of life in Thailand, many of just go with the flow. However, the other side of the coin is that other people may also be using corruption as a tool in order to get thiings done. View Talay 7 in Jomtien was a case in point, but it still went up. This resort in Phuket is probably too well established to be knocked down no, so I fear for Mr Kenly's case.

  2. Good luck Eric but for my money I wouldn't think of buying property in Thailand. Lets face it with no zoning you could have a factory blasting away 24 hour a day? right next door to you at any stage. A condo is easier but of course you still don't know what you may look at outside your balcony one day but the old story, just have what you need!!!& who needs a headache. Best of luck as think you will need it as the Eva boys look pretty set on what they want!!!!

  3. There are lots of project like this at Phuket.

    It’s good to know to hear that Police Colonel Dusadee seems to be serious about this issue and I wish him good luck. However, I would bet that the Eva will continue as planned.

    I am curious where and how those 16 government officials have been named?

    Yes, considering the picture and numerous actual sights in Phuket, the island is sinking. I would not be surprised at all if the explanation will be:
    “Those construction plans have been approved before the 2004 Tsunami (or recent earthquakes etc. etc.) which made Phuket sink a little…… etc. etc…”

  4. I forgot to mention that Phuket has similar problems like Pattaya with its media.

    The local media channels are somehow not willing or maybe even scared to write and report about all those serious issues as in this article.

    I personally forwarded articles, facts and information to phukets media (such as your article ) and all has been totally ignored.

    Phuket’s online media does allow reader comments, but any hint on serious crime is heavily censored!

  5. This really is the tip of a giant ice-berg of corruption and land rustling that has been going on in Phuket. I have a source in the Phuket land department. He told me virtually anything was possible provided the right amount of cash was handed over to the right people. He said certain officials left Phuket 200-300 million baht richer after their time in Phuket. Last time I spoke to him I asked about places at Nai Thon which were built at a 90 degree angle to the road, way above the 80 metre mark from the sea. He laughed and made a gesture indicating big money in backhanders. About 2 weeks ago I spoke to a Patong local. She told me a certain 'Mr P' has made a fortune stealing government land by changing the titles to Chanote and flogging it off to investors. He also has fingers in virtually anything done in Patong. I don't hold much hope for change as the corruption goes all the way to the highest positions in the civil service and Police. It's not as if it is a big secret either, everybody knows but who can you complain to?

  6. Thailand VisitorJuly 28, 2012 at 6:01 AM

    You have not put the source of the map/plan. Who added the green and red lines? Do they have any legal significance?
    Mean tide is a complicated calculation made over many years of data (often 19 years) and has to take into account the variability of sea levels over time.
    The photos appear to suggest that the rules have been broken but that may not be the case. Only an expert evaluation will provide the basis for legal action.
    VT7 in Jomtien demonstrated the difference between 'high tide' as sometimes observed and mean high tide as technically defined and measured.

  7. Thailand Visitor: I think I have already stated that this is the Environmental Assessment map. I find your mean tide comments intriguing and if we go down that route that's really going to be fun. The fun in Thailand is watching people prove black is white. Its a spectacular experience. I might suggest you take your argument to Eva though. However I have added some material at the end of this article now which might go a little way to explaining why this piece of land cannot be in Zone 1

  8. Why would a 'Thailand Visitor' leave such irrational and possibly confusing remarks about the tide marks on the map?
    The facts are very clear in Thai law, dear 'Thailand Visitor' and others: the building setbacks are measured from the 'highest high tide mark'. That mark is very, very simple to see by visiting Chalong Bay on any spring high tide - every 14 days. Of course see a normal high tide every 12 hours will do.....
    But without that everyone can see that Eva Beach and all other permanent structures built right up against the beach on Phuket are clearly breaking the law. Just look at Eva's advertising impression! They advertise the fact that their building is going to break the set-back law.

    The officials' attempts to place the high tide mark way out to sea is simply ridiculous. The map shown here is both absurd and solid evidence of their illegal actions. The Chalong corruption is now exposed, and any builder who went along with such an obviously stupid and illegal means of breaking the law should face punishment. In the case of Eva Beach the minimum is tearing down their illegal constructions.
    And then let's hope Col Dusadee can throw some of these corrupt officials and business people into jail. Thailand and Phuket needs it - desperately.

  9. "They have been told quite specifically that their safety in Thailand cannot be guaranteed".

    This old cliche - funny isn't it? As if the safety of people not involved in land disputes IS guaranteed! As if land developers and government regulators of such are EVER charged with guaranteeing safety.


    "We can't guarantee we won't be complicit or wilfully blind to acts which threaten your safety"

  10. I remember asking my source what percentage of buildings around the beach front of Phuket were legal. He said 80% were technically illegal but most had been given 'special' approval by high ranking officials. If you use the above laws and also consider that nothing is supposed to be built on a slope of more than 35 degrees or 80 metres above sea level, you don't have to be Pythagoras to see how many obvious illegal constructions there are. I know of 3 places currently under construction on the road between Patong and Surin beach. Two of them are on sharp corners and god knows what sort of traffic problems they are going to cause in the future. One is also so steep, it is hard to imagine how buses are going to safely get in and out. The other one has already caused one journalist to be knocked after he named names. The one near Kamala has not only undermined the road that runs above it, it also has completely blocked what was once a beautiful view to the beach front. It is also on a sharp corner. Add in all the ugly green sheets of iron fencing that are going up all around the coastline and it seems the whole coastline has been claimed by various 'owners.' Even Laem Sing beach which was a quiet little spot has been claimed and fences and a gate have gone up. Nai Thon beach was one of the last really old style Phuket beaches in that it was undeveloped and still had a nice village feel to it. Not any more, one company even decided to build their own road up the hills without permission. The end of the beach has a huge hotel under development that backs on to a national park. They claim they have titles yet others claim they have rustled part of the national park. Hopefully that hard case who cleaned out all the resorts in Khorart will bring his wrecking ball and crew down. He is one of the few thinking of future generations.

  11. This appears more of a money arrangement than a political one. What I'm seeing is a corrupt xxxxxx greasing the skids at the Rawai Tessaban and Phuket Natural Resources and Environment Committee to push the high tide line out to sea...(Fake high tide line and using an old fishing outbuilding to claim Grandfather clause are the standard methods for building on the water…and they are certainly on the water). EVA now has the best licenses and permits money can buy and that is their defense...question is, "Will the system come to their rescue with some interpretation that allows them to complete their project or as Colonel Dusadee says, “We'll knock them down”. That they continue to build after being called out by the PACC, Governor’s office and the Administrative Court is amazing and testament to their unwavering confidence that money and a little (something else) will solve their problems. The SYSTEM in Thailand favors their little enterprise but Eric's tenacity may have rendered this one a toss-up. Go Team Eric.

  12. I've seen this development going up from day one and can confirm that it is not set back 50 metres, nor even 20 metres. On days with big tides, the water laps on the (illegal) retaining wall that was put up. There might be 5 metres from the wall to the structure.......maybe.

    Strangely enough this development is across the street from the house you showed in the article talking about those British swindlers named penguin or whatever. The house in that story was not in Baan Bua as stated, but actually across from Eva Beach!

  13. What would happen in the following scenario?

    A house is claimed to be in Zone 2 but is actually right on the sea. During a storm a big wave comes in and takes a family member. The family member drowns.

    Is somebody guilty of criminal manslaughter?

  14. Then we've got the whole climate change angle: rising seas, homes at risk. The UN will get their climate refugees after all, fleeing Phuket with their Samsonite luggage packed!

  15. Yes, Eva beach is continuing to build, suggesting that they do indeed have confidence that money & corruption will win the day. But if so, it will be very sad for Phuket.

    This is really a make or break test case for Phuket. If Eva cannot be stopped completely in view of all evidence going against them, and the corrupt practices of the local officials exposed, it will be a powerful message to all other corrupt developers: you can build anything illegal and get away with it. The set-back laws will never be taken seriously again. The shores of Phuket will then become littered with buildings right up to the sand, and the island will grow uglier and uglier by the year.

    If, however, this case can indeed stop Eva Beach the opposite will become reality: developers will be too afraid to ignore the set-back laws, and building right up to the sand will stop or slow right down. Little guys will probably still do it, but big investments and hotels will certainly not take the risk. The shoreline of Phuket will be a lot greener as a result, and better for everyone - except corrupt developers.

    For anyone with an interest in the future of Phuket, this is a critical case. Tell others who live here.

  16. I wouldn't hold my breath hoping for any action given today's news.

  17. Logbags: Even though this may be bad news for K'Damrong—that does not mean our case has been weakened. We have solicited and implemented the generous advice of many experienced Thais and taken a process that that we believe will provide us a resolution that is as transparent as possible. We have involved as many Thai agencies as possible and collected evidence in a methodical way, as we believe a resolution to our inquiries will not involve just one government agency. Our strategy may not be the quickest, but we believe in the long run it will be the best.

  18. EVA states that customers are backing out of their purchases...any indication if that is true or simply posturing on the part of EVA, trying on the victim’s mantle? While it is common practice for developers to pay off local officials for their “On-the-water buildings” it is also common for these same officials to come back to the new owners and demand monies for ignoring the "On-The-Water" code violations they themselves approved...that can happen year after year...EVA may have misjudged the timing… thinking they could delay the courts (common practice in Thailand) get out and leave the new owners hanging before this really busts loose.

  19. Well I sincerely hope it all works out ok for you. These cases can drag on and on for so long it can become a war of attrition where they will try to wait you out. As people have said, this builder seems confident enough to keep right on building, he probably figures once built it will be even harder to get him out. Hopefully the bad publicity will make people forget about buying these properties.

  20. Zorlog: A couple of months ago I was invited to be a witness in a Phuket Provincial civil court case involving Eva Beach (or Phuket Rawai Friendship). The Eva Beach opponents wanted their money back from the Eva Beach project and there were three witnesses to support the couple; myself, the lead engineer for the Phuket Public Works and a proxy for the couple. The result of the case is the judge awarded the couple a full refund and costs as it was deemed the contract was not clear. As you said logbags these processes can take a long time and the case is now going through an appeal process.

  21. It is almost as if there was no tsunami.

  22. I was involved in a case that went over 10 years and the 3 courts. Even if they lose the appeal they can appeal again. It can take years just for the appeal to come up. I see on their website there are 22 villas ranging from 32 to 46 million baht. They have got some serious money invested here so someone must have got a pretty sizeable incentive to 're-zone' the land.

  23. Logbags - I do not think the appeal procedure against the PACC is quite the same.

  24. I was thinking of the people who may of paid a deposit on a unit. It really does open up a can of worms because if you pay a deposit on place that claims a title and it turns out later the chanote was issued illegally, who do take up the issue with? A lot of people must conspire together to get all the right papers. I can imagine how much help the outside investigators must get from local officials.