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LEGAL ANALYSIS OF THE CASE OF YORM BOPHA

BACKGROUND

Yorm Bopha, a 29 year oldmother and representative of the BoeungKak Lake (BKL) community, became prominent during the campaign to release the 13 women who had been arrested on May 22, 2012 while demonstrating peacefully in the area that had been Village 1 in BoeungKak. Since February 2007, the BKL community has been campaigning for their land and housing rights after the Municipality of Phnom Penh granted a 99-year lease to the private developer ShukakuInc, which covered 133 hectares of land inclusive of the nine villages in the BoeungKak area and the lake. The effect of the lease was the appropriation of the land rights of the BKL community and the forceful eviction of the area’s estimated 20,000 residents.

As of December 2011, more than 3000 of approximately 4000 families have been coerced into accepting compensation for their evictions; however the amount awarded is only a small percentage of the market value of their homes and land. As a result of this injustice, BKL residents have fought for their rights through the courts of Cambodia, and by sending letters of complaint to government authorities and holding many peaceful demonstrations.  The latter have been met with threats, arrests and the use of excessive force by authoritie Yorm Bopha maintained a high public profile by her constant presence at every demonstration in the fight for land and housing rights, became a media spokesperson for the campaign, and was unafraid to publicly criticize government officials. Prior to her arrest, she was threatened, harassed and intimidated as a result of her prominence in the campaign. The police told her that she was “on the blacklist”, and that she would be “in trouble soon.”[2] 

SUMMARY

This legal analysis was written for the use of Housing Rights Task Force (HRTF).  HRTF is a non-profit, non-partisan coalition of international and Cambodian organizations and individuals working to prevent forced evictions and housing rights violations, and to promote inclusive and sustainable development processes that lead to the full enjoyment of housing rights for all Cambodians. HRTF is the first point of contact for Phnom Penh communities threatened with eviction, and has supported the BKL community since 2008.

More information about HRTF, including this analysis, is available at www.hrtfcambodia.org.

[1]‘Aggravated Rebellion’ over Cambodia’s BoeungKak Lake, Waging NonViolence, August 272012, available at www.wagingnonviolence.org; Eleven BKL villagers and children beaten and detained, Bridges Across Borders Cambodia, available at www.babcambodia.org

[2]Legal Persecution of Land Rights Activists Must End and Yorm Bopha Should be Released Immediately and Unconditionally, Cambodian League for the Promotion and Defence of Human Rights  December 27 2012, available at www.licadho-cambodia.org

ARREST AND DETENTION

A dispute occurred on August 7, 2012 after a man stole the side mirrors on Yorm Bopha’scar.Shewas arrested on September 4, 2012, with her husband,LousSakhorn. It was alleged that she, her husband and her two brothers, YormKanlong and Yorm Seth, assaulted two men, Vat Thaiseng and Nget Chet, and the Phnom Penh Municipal Court charged the four with intentional violence. On the day of the arrest, police in plain clothes followed Yorm Bopha and her husband when they left their home, and arrested themwhile they were travelling to obtain their identity cards.

The Court declined to reveal why they had been arrested, or state the nature of the charges. The Investigating Judge, Te Sam Angreiterated that they were accused of intentional violence ‘with aggravating circumstances’ and therefore had been detained.

Yorm Bopha was held in pre-trial detention subsequent to her arrest to await her trial, while her husband was released on bail.

On December 27, 2012, Yorm Bopha was sentenced to three years imprisonment, and ordered to pay a sum of 30 million riels (approximately $7,500) in compensation to both victims after being convicted for intentional violence with aggravating circumstances under Article 218 of the 2009 Penal Code. The Penal Code characterizes this as a misdemeanor, due to the punishment incurred.[1]Her husband received the same sentence, but it was suspended, while her brothers, who were sentenced in absentia, received the same penalties, and arrest warrants have been issued.

Judge Sam Ath stated that “according to the evidence and witnesses, the four defendants came together and committed the attacks on the victims. LousSakhorn was at the scene but he didn’t commit the attack.”[2]The judge found that the defendants had no evidence for their claims that they did not see the attack occur.  The court heard evidence against the defendants concerning the attack only from the purported victims.Other witnesses of the prosecution who testified did not see the attack occur. As a result, it was a question of the victims’ word against that of the accused. Ny Chakrya, ADHOC’s head of monitoring, stated that the court relied upon the victims’ evidence, despite the fact that they were drinking before the incident.[3]

A number of other irregularities marred the case, including multiple inconsistencies in prosecution witness testimony, as well as a notable uniformity:  the witnesses all testified that the handle of the screwdriver used in the alleged assault was blue, despite being unprompted for this fact, and also stated that the fight broke out at exactly 7:10 p.m. This is significant as the two victims had been drinking, and the other two witnesses admitted to arriving after the fight had started.[4]Importantly, all witnesses except the victimsstated that Yorm Bopha and her husband had not been violent themselves, and had only been present after the fight had broken out.[5]Their neighbour corroboratedYorm Bopha’s and her husband’s testimony that she and her husband had been chatting with the neighbor when they heard the fight andwent to investigate.

The merits of the decision are undermined by the serious lack of evidence presented against the defendants at trial. Accordingly, Amnesty International has designated Yorm Bopha as a prisoner of conscience, with Rupert Abbott, Amnesty International’s researcher on Cambodia stating that both she and Tim Sakmony “are being persecuted purely for their work defending the rights of those in their communities who have lost their houses through forced evictions.”[6]

International and Domestic Law

The Constitutionof the Kingdom of Cambodia (“Constitution”) states that “The Kingdom of Cambodia recognizes and respects human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the covenants and conventions related to human rights, women's and children's rights.”[7]Effectively, this provision of the Constitution incorporates international human rights law and standards into domestic law. Additionally, Cambodia is bound by the terms of the International Covenant on Civil and Political Rights[8] (“ICCPR”) as of its ratification of the covenant on May 26 1992.

The Constitutional Council of Cambodia ruled in 2007 that law applicable before domestic courts is to include the Constitution as the supreme law, and the international human rights conventions recognized by Cambodia[9].  A decision of the Constitutional Council is final and binding; all laws and regulations must strictly conform witha Constitutional Council decision.[10]Therefore, all international instruments which Cambodia has adopted form part of the Constitution.[11]

The Constitution of the Kingdom of Cambodia, the Penal Code and the Code of Criminal Procedure also apply to Yorm Bopha’s case.

LEGAL ANALYSIS

1.Rights upon arrest, charging, trial and sentencing

Freedom from arbitrary arrest or detention

The ICCPR states in article 9 that “Everyone has the right to liberty and security of the person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” This is part of Cambodian law by virtue of the Constitutional Council noted above. The Code of Criminal Procedure also contains relevant provisions. 

Reasons for arrest 

Articles 9 and 14(3)(1) of the ICCPR also provide that “Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him”, and “In the determination of any criminal charge against him, everyone shall be entitled .. . .  in full equalityto be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him”.

Upon arrest, Yorm Bopha and her husband were informed that they were charged with intentional violence with aggravating circumstances. However, they were not informed as to the reasons for their arrest. This is a clear violation of articles 9 and 14, and of article 97 of the Code of Criminal Procedure.

Pre-Trial Detention

Article 203 of the Code of Criminal Procedure provides that “in principle, the charged person shall remain at liberty. Exceptionally, the charged person may be provisionally detained under the conditions stated in this section.”Therefore, provisional detention may be ordered only under exceptional circumstances defined as follows: to stop the offence or prevent it from happening again; to prevent any harassment of witnesses or victims; to prevent collusion between the charged person and accomplices; to preserve evidence or exhibits; to guarantee the presence of the charged person during the proceedings against him; to protect the security of the charged person; or to preserve public order from any trouble caused by the offence.[12]

The Phnom Penh Municipal Court, Judge Te Samhang, issued an ‘order to bring’ for both Yorm Bopha and her husband, which is a step above the usual summons for questioning. Essentially, an order to bring is the equivalent of an arrest warrant as it allows for immediate detention, and implicitly

recognizes the possibility of imprisonment.[13]After some questioning, Yorm Bopha was detained, while her husband was released. Given the requirements for pre-trial detention under the Code of Criminal Procedure, it does not appear that the order for her detention was made according to the law. None of the ‘exceptional’ circumstances elaborated in article 205 of the Code of Criminal Procedure apply to her. Therefore, her pre-trial detention violated Yorm Bopha’s right to freedom from arbitrary detention as guaranteed by the ICCPR.

Article 10(2)(1) of the ICCPR also states that “accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as un-convicted persons.”  It is possible that, in not separating convicted persons from those in pre-trial detention, the latter will be subjected to mistreatment, which is prohibited under article 38 of the Constitution. In Prey Sar Prison, pre-trial detainees are held in the same cells as those who have already been convicted and sentenced.[14]Yorm Bopha, while in pre-trial detention, was detained in a cell with convicted persons, and given that no ‘exceptional circumstances’ apply in her case, this is  a breach of article 10 (2)(1).

Burden of Proof and Deprivation of Liberty

Under the ICCPR, a person may only be deprived of their liberty on grounds established by law.[15]Article 38 of the Constitution states that “The accused shall have the benefit of the doubt”, meaning that, in criminal cases, there is a high standard of proof that must be satisfied in order to convict a person.  Article 351 of the Code of Criminal Procedure enunciates this principle clearly:  “The accused always has the benefit of the doubt”.

In Yorm Bopha’s case, there is considerable doubt that she, her husband and two brothers had any involvement in the assault of the victims. There are many issues with the evidence presented, as the benefit of the doubt was given to the two victims, and all other evidence seemingly ignored in order to obtain the desired outcome:  her imprisonment. The Court applied a standard of proof that is unacceptably low for criminal charges, and failed to give Yorm Bopha the benefit of the doubt.There was insufficient credible evidence to support a criminal conviction.

Therefore, her conviction and imprisonment were not decided according to the law, and Yorm Bopha is being arbitrarily deprived of her liberty in violation of international and domestic law.

Sentencing

Yorm Bopha received a sentence of three years of imprisonment, and a fine of 30 million riels.  The Penal Code provides for alternative penalties to incarceration and fines.  Either community service or a reprimand are available in cases in which the sentence is less than or equal to three years.[16]The Court has the option of imposing only a fine, only a sentence of community service, or only a reprimand.[17]  The Court considers the penalty based on a number of sentencing factors:  seriousness of circumstances; personality, mental state, resources of accused; motives of accused; conduct of accused towards the victim.[18]  All of the enumerated factors militate in favour of Yorm Bopha. 

In addition, both aggravating and mitigating factors can be considered in sentencing.  Articles 77 to 82 of the Penal Code list a number of aggravating factors, none of which applies to the facts alleged in Yorm Bopha’s case:  organized gang; premeditation; breaking in; climbing in; use of weapons; ambush.  Article 93-1 gives broad discretion to the trial judge to consider mitigating factors, and reduce a sentence of three years by six months.

The Court failed to properly apply the sentencing factors, to consider mitigating circumstances, or to impose less severe, alternative penalties.  Further, the Court could have suspended the sentence imposed (with or without restrictions), ordeferred the sentence.[19]   All of these failures contravene the right of Yorm Bopha to deprived of her liberty only “on such grounds and in accordance with such procedure as are established by law”.[20]

2.  Presumption of Innocence; Independent and Impartial Tribunal

Article 14 of the ICCPR provides several rights for which an accused person is entitled. These include the right to a fair and public hearing by a competent, independent and impartial tribunal, and the right to be presumed innocent until proved guilty according to law. Additionally, the accused has the right to adequate time and facilities to prepare a defense, to be tried without undue delay and to legal counsel.

Article 10 of the Universal Declaration of Human Rights(“UDHR”)states that “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

Article 38 of the Constitution guarantees several rights for an accused person, which include that the accused shall be considered innocent until the court has judged finally on the case.  It also states that every citizen enjoys the right to defense through judicial recourse. The Code of Criminal Procedure outlines the process for appeal. [21]

Article 128 of the Constitution states that “The Judiciary is an independent power” and “The Judiciary shall be impartial and protect the rights and freedoms of the citizens”.  Article 130 states that “Judicial power shall not be granted to any legislative or executive body”.  These two articles establish the legal framework for the independence of the judiciary.

The conduct of Yorm Bopha’s case might suggest a lack of judicial independence and impartiality. The charges against her appear baseless; the evidence that was present at trial was extremely weak and lacked credibility.  The absence of independent corroboration of the alleged assault is particularly egregious. The lack of evidence might suggest that the charges against her were fabricated, and that there could have been external influence. This impression is supported by the threats and harassment by members of the executive branch of government (the police) prior to her arrest, suggesting that Yorm Bopha was charged with a crime she did not commit in order to silence her.

If the Court was not independent and impartial, that seriously undermines the presumption of innocence.

Therefore Yorm Bopha’s trial, along with that of her husband and brothers, for intentional violence with aggravating circumstances, appears not to have been conducted in compliance with article 14 of the ICCPR.

Following Yorm Bopha’s conviction, she has the right to an appeal to a higher authority under article 14(5) of the ICCPR.  An appeal has been filed; however, the hearing date has not been scheduled.  Article 387 of the Cambodian Code of Criminal Procedure requires the Court of Appeal “to decide without delay and within a maximum of 15 days calculating from the date the case file was received”.  It is not known whether the case file has been forwarded to the Court of Appeal.  The Court of Appeal cannot impose a greater sentence than that given by the Municipal Court, and may reverse the initial judgment after re-deciding it on the merits.[22]

3. All persons deprived of their liberty must be treated with respect

Article 10 of the ICCPR states that “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”.Article 38 of the Constitution provides that “Coercion, physical ill-treatment, or any other mistreatment that imposes additional punishment on a detainee or prisoner shall be prohibited, and that “The law protects the life, honor and dignity of all citizens.” 

Yorm Bopha wasinitially detained in a cell with 62 other women.[23] At Prey Sar (Correctional Centre 2 or CC2) Women’s Prison in Phnom Penh, women are generally held in appalling conditions; the cells are dirty, overcrowded, extremely hot, and with little ventilation or natural light. Basic commodities, like clean drinking water and a place to sleep are not provided, so women have to pay for these, while there is no access to medical care. Such conditions can only be described as inhumane, and therefore would violate article 10 of the ICCPR, as the people detained in Prey Sar prison are not treated with humanity.

Article 38 of the Constitution is also breached, as the conditions in the prison would certainly constitute “mistreatment that imposes additional punishment”, if not “physical ill-treatment”. The conditions also violate the International Covenant on Social, Economic and Cultural Rights(ICSECR), which provides that everyone had the right to an adequate standard of living, including adequate food, clothing and housing.[24]

Yorm Bopha’sconditions have improved somewhat from those reported on by LICADHO in late 2012.  She now shares a cell with 7 other women, and the guards no longer charge visitors to see her (unlike other prisoners whose visitors continue to pay). LICADHO has provided her with a mosquito net (the other prisoners do not have nets), and a doctor for a minor medical problem.  However, the overall conditions are dirty, with poor food, one unsanitary washroom per cell, and only four hours per day outside of her cell.  She sleeps on the floor, as the sleeping benches /beds are too narrow.  She believes that the slight improvements are due to NGO and international attention.[25]

The Court of Appeal denied Yorm Bopha’s application for bail on November 7, 2012, because of the seriousness of the charge against her.  The Supreme Court upheld this decision on March 27, 2013.   Yorm Bopha will therefore remain imprisoneduntil the appeal from her conviction is heard.  There is no date set for the hearing of that appeal.[26]

4.  Freedom of Expression

Article 19 of the ICCPR states that “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”. This right is subject to certain duties and responsibilities, but only such as are provided by law and are necessary “for the respect of the rights and reputations of others” and “for the protection of national security or of public order (ordre public), or of public health or morals”. Article 41 of the Constitution provides that “Khmer citizens shall have freedom of expressionof their ideas, freedom of information, freedom of publicationand freedom of assembly”. The exceptions are: “No one shall exercise this right to infringe upon the rights of others, to affect the good traditions of the society, to violate public law and order and national security”.

It is noteworthy that of the four charged, Yorm Bopha was the only one to receive a prison sentence, suggesting that she was the intended target as the sole activist in the group.Although there are qualifications to freedom of expression in the ICCPR that demand a balance between what can and cannot be lawfully expressed, Yorm Bopha has not infringed on any person’s rights or reputation, threatened national security or public order, or incited discrimination or violence.[27]As a result, there is no lawful reason why her right to freedom of expression should be breached.In any event, she has not been charged with an offence concerning her campaigning, but a totally separate offence. Her conviction and imprisonment, if motivated by her campaigning, would be a clear violation of the right to freedom of expression as provided for in both the ICCPR and the Constitution.

5. Peaceful Assembly

Article 21 of the ICCPR provides that the right of peaceful assembly shall be recognized. No restrictions may be placed on this right, other than what is necessary in a democratic society “in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others”. Article 41 of the Constitutionalso guarantees the right to freedom of assembly.

This right protects the ability of citizens to organize to attempt to influence their leaders and government.  “Mass protest is a potent symbol of the exercise of this right”.[28]

Yorm Bopha’s participation in peaceful protest has not breached any of the limitations placed on the exercise of this freedom. She was exercising her rights to freedom of assembly legitimately when she demonstrated for the rights of the BKL community, and those of the women imprisoned for campaigning for that community’s housing rights.

Yorm Bopha was denied her rights when she was arrested, detainedand convicted apparentlyin order to prevent her participation in peaceful assembly.

6.  Equality before the law

Article 26 of the ICCPR states that”All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. . .the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.

The Constitution provides that “Every Khmer citizen shall be equal before the law, enjoying the same rights, freedom and fulfilling the same obligations regardless of race, color, sex, language, religious belief, political tendency, national origin, social status, wealth or other status”. [29]

Given that the charges laid againstYorm Bopha were groundless, and the judicial process appears to have been used in order to prevent her campaign, her rights to equality before the law and non-discrimination have been violated.  She has been discriminated against for political or other opinion, or for political tendency.  This conclusion is supported by the difference in the sentences imposed on Yorm Bopha and her husband – a three year prison sentence and large fine for the former; a suspended sentence for the latter. 

CONCLUSIONS AND RECOMMENDATIONS

Conclusions

There are definitive grounds for concluding that Yorm Bopha’s rightsunder the following legal instruments have been breached:

ICCPR–articles 9(1), 10(1), 10(2)(a), 26

ICESCR – article 11

Constitution – articles 31, 38

Code of Criminal Procedure – articles 97,351

There are strong grounds for considering that Yorm Bopha’s rights under the following legal instruments have been breached:

ICCPR – articles 14, 19, and 21

UDHR – article 10

Constitution – articles 38 (presumption of innocence), 41

Recommendations

Yorm Bopha’s case A new, independent, and complete investigation of the facts alleged against Yorm Bopha, and the other defendants, must be ordered, and completed in theshortest possible time.  Articles 445 and 446 of the Code of Criminal Procedure establish the process for a motion for review.  The Minister of Justice may order the general prosecutor with territorial jurisdiction to conduct further investigations, before filing the motion.  Pending this investigation, the Court may release her immediately.[30]If the investigation concludes that there are not reasonable grounds for the charges, all must be withdrawn, and the convictions expunged from the records of the accused. [31]

Alternatively, the scheduling and hearing of Yorm Bopha’s appeal should be expedited so that her rights are fully protected, and so that the Court of Appeal can consider the options available on an appeal by the accused.  An early hearing of her appeal from a conviction based on problematic, uncorroborated evidence should ensure Yorm Bopha’s release. 

It is even more important that the above procedures be expedited, after the Supreme Court’s decision on March 27, 2013 to uphold the decision to refuse her bail.  The longer Yorm Bopha remains in prison, the more serious the violation of her human rights.

General Recommendations

Upon arrest, the authorities must tell the person the nature of the charges against them, and inform him or her as to the reasons for arrest.

The authorities must ensure that those in pre-trial detention are separated from those who have been convicted.

Those detained in Prey Sar prison must have access to an adequate standard of living, include adequate shelter, food and water. The current conditions are unacceptable.

The separation of powers between the three branches of government must be maintained.

All rights of the accused must be observed and respected. The government must observe and respect the right to freedom of expression, peaceful assembly, and should never use arbitrary arrests or detention.

The right to equality before the law and non-discrimination must be recognized and respected.  No one should be discriminated against for the grounds set out in the UN instruments, the Constitution, and the laws of Cambodia.

Pre-trial detention should be used in only exceptional cases.  Articles 203 and 205 of the Code of Criminal Proceduremust be applied correctly to prevent injustice and the violation of human rights.

[1]Penal Code 2009, article 47

[2]BoeungKak Anti-Eviction Activist Gets Three Years in Jail for Assault, KhuonNarim and Simon Lewis The Cambodia Daily (online) December 28 2012  available at www.cambodiadaily.com/

[3]Ibid.

[4] Supra, foot note 2

[5] Ibid.

[6]Convictions of activists in Cambodia demonstrates dire state of justice, Amnesty International, December 27 2012, available at  www.amnesty.org/

[7]Constitution  of  the  Kingdom  of  Cambodia, article 31

[8]International Covenant on Civil and Political Rights, opened for signature  December 16 1966, 999 UNTS 171 (entered into force March  23 1976),  article 2

[9] CASE No. 131/003/2007 of June 26 2007; Decision No. 092/003/2007 CC.D. of 10 July 2007

[10]Introduction to Cambodian Law; Konrad Adenauer Stiftung, page 15

[11]Legal Analysis of the Charging and Sentencing of 13 BoeungKak Community Representatives on 24 May 2012, Cambodian Center for Human Rights, June 11 2012, available at www.cchrcambodia.org/

[12]Code of Criminal Procedure, article 205; see also article 48 which requires that detention orders be made in accordance with article 205 (reasons for provisional detention)

[13]Two Days, Two Unjustified Pre-Trial Detention Orders, LICADHO: Cambodian League for the Promotion and Defense of Human Rights, September  6 2012, available at www.licadho-cambodia.org/; Cambodian Code of Civil Procedure, articles 190 and 194

[14]Ibid.

[15]ICCPR, article 9(1)

[16]Penal Code, articles 72-2, 76

[17]Penal Code, articles 97, 98-1

[18]Penal Code, article 96

[19]Penal Code, articles 104, 106, 107, 117, 124

[20]ICCPR, article 9

[21]Code of Criminal Procedure, articles 382 to 399

[22]Code of Criminal Procedure, articles 399, 405, 406

[23]Human Rights Defender Yorm Bopha: Another Mother from BoeungKak Imprisoned, LICADHO, available at www.licadho-cambodia.org/

[24]International Covenant on Economic, Social, and Cultural Rights, opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1976), article 11

[25] Visit to Yorm Bopha at Prey Sar, Fran Crowhurst (Human Rights Volunteer) for HRTF, Karen Coates (journalist), March 19, 2013

[26] Ham Sunrith, lawyer for Yorm Bopha, March 27, 2013

[27]ICCPR, article 19

[28]Study Guides – Freedom of assembly and association, Human Rights Education Association, available at www.hrea.org/

[29]Constitution of the Kingdom of Cambodia, article 31

[30]Code of Criminal Procedure, article 449

[31]See Code of Criminal Procedure,articles 7(3) and 455which allow for a pardon, or ‘grant of general amnesty’; and Constitution, article 27

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