The highest court of the land has laid down the touchstone for the imposition of the death penalty in murder cases where judges have the leeway to spare offenders the gallows.
When a murderer clearly demonstrates a "blatant disregard for the sanctity of human life" the punishment of death will be appropriate, a specially-constituted 5-judge Court of Appeal ruled in a landmark case today (Jan 14).
By a 3-2 split decision, the apex court sentenced a Malaysian general worker, Jabing Kho, to hang for the 2008 murder of a construction worker, cancelling a reprieve that had been handed to the 31-year-old following changes to the death penalty regime in 2012.
Kho, who had been sentenced to hang and failed in appealing against the decision, escaped the noose in 2013 - he got life in prison with 24 strokes of caning - after the changes to the law giving judges sentencing discretion for certain murder and drug trafficking offences. His was the 1st case where prosecutors had challenged a court's re-sentencing - on the grounds that the attack had been extremely vicious - thereby requiring the apex court to set down guidelines and principles on how discretion given to judges ought to be exercised.
"At the very heart of this appeal lies a critical legal question - for an offence of murder where the mandatory death penalty does not apply, in what circumstances would the death penalty still be warranted?" the judges wrote, at the beginning of their grounds of decision. "This seemingly simple question belies a great deal of difficulties and complications, along with the severe consequences and implications any answer brings."
They added: "In our judgment, the punishment of death will be appropriate when the offender had committed murder in a manner which clearly demonstrates a blatant disregard for the sanctity of human life." The judges noted that what constitutes blatant disregard for life would be very fact-sensitive.
Kho and fellow Sarawakian Galing Anak Kujat attacked Chinese national Cao Ruyin and another man near Geylang Drive in February 2008 to rob them. Galing's murder conviction was reduced to robbery with hurt on appeal and he was sentenced to 18 years and 6 months' jail and 19 strokes of the cane.
In Kho's case, Judges of Appeal Chao Hick Tin and Andrew Phang and Justice Chan Seng Onn concluded that the "sheer savagery and brutality displayed by (Kho) shows that during the course of the attack, (he) just simply could not care less as to whether the deceased would survive although his intention at the time was only to rob".
The apex court found he had struck the victim's head at least 3 times with a tree branch and did not stop even after Cao was no longer able to respond.
The 2 judges in the minority, Justices Lee Seiu Kin and Woo Bih Li, disagreed with the majority on a matter of fact and not law. They found there was insufficient evidence to establish beyond reasonable doubt that Kho had hit Cao on the head at least thrice, or that Kho had hit his victim with such force as to cause most of the fractures in his skull.
Justice Lee wrote that although he agreed with capital punishment for murderers with blatant disregard for human life, he felt that the facts were not conclusive that Kho had acted in such a way.
The majority judges disagreed with the minority's total reconsideration of findings of fact made by the Court of Appeal when Kho was sentenced to death the 1st time, saying the 2 judges had questioned the previous apex court findings and sought to reverse them. But to say that Cao's fall after being hit the 1st time by Kho and the strike with a belt buckle by Galing to his right eyebrow could have caused further fractures and thus mitigated the viciousness of Kho's attack, is "a non-plus to us", the majority judges wrote, emphasising Cao's completely shattered skull.
Speaking to reporters after the hearing, Kho's lawyer Anand Nalachandran said his client had been "understandably" hopeful, and that he would now look into filing a petition for the President's clemency.
Source: todayonline.com, January 14, 2015
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