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| Kho Jabing |
SINGAPORE: In a unanimous decision, Singapore’s apex court on Tuesday (Apr 5) sent
Malaysian Kho Jabing back to death row for the second time.
Kho, 31, had been sentenced to hang in 2010 for killing a man by striking his head with a tree branch in a botched robbery attempt. The victim sustained multiple skull fractures and died six days later.
He appealed against this sentence, but his appeal was dismissed in 2011.
Koh appealed again in 2013, after changes to the law abolishing the mandatory death penalty in certain categories of murder and allowing judges the discretion to sentence an accused to life imprisonment with caning instead. This time Kho’s appeal was successful, and he was re-sentenced to life imprisonment with 24 strokes of the cane.
But the prosecution appealed, urging the Court of Appeal to reverse the re-sentencing judge’s decision and send Kho back to the gallows. They were successful, and Kho was sentenced to death in January 2015 in a split 3-2 decision.
In a last-ditch attempt to save Kho from the gallows, his lawyer Chandra Mohan K Nair filed an eleventh-hour motion just two days before his execution was supposed to take place in November last year. Mr Chandra said that his
client’s latest appeal was “concerned with matters of fundamental constitutional importance”, as Kho’s right to “a fair trial and fair sentencing” were not addressed at the previous hearing. Kho was consequently granted a stay of execution.
In court on Tuesday, Judge of Appeal Chao Hick Tin dismissed Kho’s last-ditch attempt to escape the gallows.
JA Chao, delivering the judgement on behalf of the five judges, called Kho’s last-minute motion “not a genuine application, but an attempt to re-litigate a matter which had already been fully argued and thoroughly considered”.
He added that the apex court’s January 2015 decision was to have been final.
The judge said the number of applications to reopen concluded criminal appeals “has increased dramatically in recent years”. “Of the 24 criminal motions filed to the Court of Appeal last year, 11 were applications to reopen concluded appeals”, JA Chao said.
“We do not think that this state of affairs is desirable”, said JA Chao. “Finality is an integral part of justice. It would be impossible to have a functioning legal system if all legal decisions were subject to constant and unceasing challenge”, he added.
Such unmeritorious applications also “place a great strain on the court system”, the JA said. “(They) take up scarce judicial resources which can and should go towards the disposal of cases which are coming up on appeal for the first time.”
JA Chao, together with JA Andrew Phang Boon Leong and Justices Woo Bih Li, Lee Seiu Kin and Chan Seng Onn, also set out guidelines as to when, and in what circumstances, the Court of Appeal could exercise its power of review to reopen concluded criminal appeals.
The five judges said the apex court’s power of review should be “exercised sparingly”, and only in “exceptional” circumstances in order to prevent a miscarriage of justice.
To justify a review, an applicant must produce new and compelling evidence which shows the court’s prior decision was “demonstrably wrong” or “tainted by fraud or a breach of natural justice”, said JA Chao.
In an 89-page judgement, JA Chao outlined in detail why Kho’s appeal failed, addressing four main arguments put forth by his lawyer, including assertions that Kho did not have a fair trial and that the requirement of unanimity of decision-making in capital cases was breached.
JA Chao said Kho’s arguments “fell far short of even showing that this court’s decision was wrong, let alone demonstrably or blatantly wrong”.
Kho’s distraught mother and sister were allowed to spend a few minutes with him before he was taken away.
According to statistics from the Singapore Prison Service, four people were executed last year - one for murder and three for drug-related offences.
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