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Kho Jabing loses second 11th-hour appeal against execution

One day before his scheduled execution, Kho challenged the impartiality of Justice of Appeal Andrew Phang, who presided over two of his previous appeals.

SINGAPORE: The Court of Appeal has dismissed a second eleventh-hour bid by convicted murderer Kho Jabing to escape the gallows on Thursday (May 19). The Sarawakian had launched an appeal a day before his scheduled execution.

Kho challenged the involvement of Justice of Appeal Andrew Phang, who has presided over two of Kho’s previous appeals – one in 2010 and another in 2013. The Malaysian’s lawyer Mr Gino Singh argued JA Phang’s involvement in the 2013 appeal essentially involved the judge deliberating over an appeal against his own decision – the one made in 2010. In both appeals, Kho was sentenced to death.

Kho’s last-minute motion ahead of his imminent execution was heard before five judges sitting in the Court of Appeal – including JA Phang, who disputed Kho’s claims of biasness.

Mr Singh, pointing to the Supreme Court of Judicature Act, argued JA Phang should not have presided over Kho’s appeals due to a possible conflict of interest. He added the court’s decision “might have been tainted with apparent biasness”, urging the apex court to postpone Kho’s imminent execution in the interests of justice.

CONVICTION AND SENTENCE 'INEXTRICABLE PARTS OF A WHOLE': JUDGE

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 14 skull fractures and a brain injury and died six days later.

He appealed against the murder conviction, but his appeal was dismissed in 2011 and he was sent back to death row. JA Phang presided over this appeal.

Singapore's Changi Prison, Kho Jabing
Singapore's Changi Prison, Kho Jabing
In 2013, Kho appealed yet again after changes to the law abolishing the mandatory death penalty in certain categories of murder that allowed 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. JA Phang was involved in this appeal as well.

On Thursday, JA Phang explained the difference between the two appeals he had previously presided over. The first was an appeal against Kho’s murder conviction, which was upheld. At the time, the death penalty was mandatory. The second appeal, after the law had changed and Kho had been re-sentenced to life imprisonment, considered Kho’s culpability in killing the victim. The court ultimately decided he was culpable enough to overturn the life sentence, sending him back to death row for the second time.

JA Phang said considering Kho’s conviction and sentence were part and parcel of the court’s work. “Conviction and sentence are inextricable parts of a whole. We cannot divorce them,” he said, urging Mr Singh to be “fair, objective and logical” in this regard.

In a last-ditch attempt to save Kho from the gallows in November last year, his lawyer Chandra Mohan K Nair had previously filed another eleventh-hour motion just two days before Kho’s execution date. Mr Chandra had said his client’s appeal was “concerned with matters of fundamental constitutional importance”, as Kho’s right to “a fair trial and fair sentencing” had not been addressed. Kho was subsequently granted a stay of execution.

However in a unanimous decision, Singapore’s apex court sent Kho back to death row for the second time in April this year.

In that decision, JA Chao Hick Tin had dismissed Kho’s last-ditch attempt to escape the gallows, calling his appeal “not a genuine application, but an attempt to re-litigate a matter which had already been fully argued and thoroughly considered” and adding that the apex court’s January 2015 decision was to have been final.

Mr Singh touched on this point on Thursday, saying the apex court had said a miscarriage of justice would outweigh the importance of finality of proceedings or it would “bring into question the integrity of the criminal justice system and the judicial process itself”.

“The life of (Kho) is at stake. (The integrity of the system) can be redeemed, the (life of Kho) cannot”, Mr Singh said.

Channel NewsAsia understands that opposition politician and lawyer Jeanette Chong-Aruldoss filed an application for a stay of execution for Kho Jabing on Thursday morning. Prosecutors called it an "abuse of the system".

Source: Channel NewsAsia, May 19, 2016

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