MADPET: Questionable validity of Appeal Court’s re-sentencing is enough reason to stay execution of Kho Jabing

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The following is a press release by the Malaysians Against Death Penalty and Torture (MADPET)

JUSTICE MUST NOT ONLY BE DONE BUT SEEN TO BE DONE 

MADPET is worried that Kho Jabing may be executed based on a possibly tainted or invalid Court of Appeal judgment, which reversed the High Court decision that commuted the death sentence to imprisonment and caning.

COURT OF APPEAL JUDGMENT TAINTED AND/OR VOID

Having perused the relevant judgments, MADPET discovered that one of the 5 judges, who reportedly sat in the coram of this Court of Appeal (Criminal Appeal No 6 of 2013) that send Kho Jabing to the gallows again, also did sit as judge in an earlier court case concerning Kho Jabing, being Criminal Appeal No 18 of 2010. The coram in the 2013 case was Chao Hick Tin JA, Andrew Phang Boon Leong JA, Woo Bih Li J, Lee Seiu Kin J and Chan Seng Onn J, whilst the coram for the 2010 case was Chan Sek Keong CJ, Andrew Phang Boon Leong JAand V K Rajah JA, and as can be seen Andrew Phang Boon Leong JA was in the coram of both Appeals.

Article 10 of the Universal Declaration of Human Rights states, ‘Everyone is entitled in full equality to a fair and public hearing by anindependent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.’ This necessarily implies that the judges must be independent, impartial and unbiased, and as such a judge who had previously heard and determined a case involving the same accused person reasonably would not satisfy these important conditions, more so when the earlier Appeal in which Andrew Phang Boon Leong JA was involved in was also the appeal against conviction for the very same offence.

As such, Andrew Phang Boon Leong JA should never have been included in the coram of the Court of Appeal that heard the appeal by the prosecution against the decision of the High Court that re-sentenced Kho Jabing to imprisonment and caning. Even, if Andrew Phang was appointed, the said Judge should have appropriately recused himself on the basis that he was previously involved in a case involving Kho Jabing. The relevant Court of Appeal judgment, which is available to the public, never disclosed, that this point was even considered by that Court. We recall the important principle that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

The presence of Andrew Phang in the coram of the Court of Appeal, that overturned the re-sentencing High Court’s decision, and re-sentenced Kho Jabing to death, would possibly make that entire judgment invalid or ‘void’, and thus restoring the High Court judgment that commuted the death sentence to imprisonment.

Alternatively, even if Andrew Phang’s vote is not to be taken into consideration, the  result would be a 2-2 decision, and as such again, the prosecution’s Appeal would have failed, and the High Court’s decision will not have been overturned, and Kho Jabing would be facing imprisonment and caning – not death.

PREJUDICED WHEN RE-SENTENCING HIGH COURT JUDGE WAS DIFFERENT

Another concern with regard the Kho Jabing’s case, was that when the case was sent to the High Court for re-sentencing, the judge that heard and considered the re-sentencing was not the High Court judge that originally heard and convicted Kho Jabing.

Singapore Parliament, wisely appreciated the importance that it be the same judge, possibly because that judge may have recalled elements in the trial, including demeanour, which at the end of the day can never be properly or comprehensively captured in any Notes of Evidence/Proceedings and/or Judgments. In the Kho Jabing’s case, the original trial judge had retired, and hence another judge heard the re-sentencing case. This fact, in itself, was most prejudicial to Kho Jabing.

Further, even if the re-sentencing judge had been the same judge, noting the lapse of time plus the fact the many other cases would have come before the same judge, the question would be whether it was even reasonably possible for the original judge in the Court of First Instance to effectively recall from memory aspects of the said case that was not fully and clearly stated in his/her written records.

RE-TRIAL NEEDED AFTER AMENDMENT TO ENSURE JUSTICE

Justice demands that, unless there is a re-trial, the death sentence of Kho Jabing and all others before the amendment came into force should now be commuted. The risk of miscarriage of justice, especially in cases where the death sentence is retained, is just too high to be acceptable.

We see from the re-sentencing judgments of both the High Court, and the Court of Appeal, the struggle the judges concerned had to undergo in order to establish relevant facts that have now become relevant following the amendment, that were really not relevant or not as relevant before the coming into force of the new amendments.

Re-sentencing was needed, after Singapore amended the law concerning murder vide Penal Code (Amendment) Act 2012 (Act 32 of 2012), which effectively resulted in the ‘repeal and re-enactment of section 302’. The law before the amendment provided only the mandatory death penalty for murder (section 302). Now after the amendment came into effect, not only was there now discretion of the court with regard sentencing – death penalty or imprisonment with caning, but also a consideration of other matters including mental capacity.

As such, reasonably re-sentencing simply based on the evidence adduced and submissions made in the original trial is not possible and most dangerous – there should rightly be a new trial or re-trial.

The presentation of the case, be it by the prosecution and/or the defence, would reasonably be very different following the amendments. This was a concern, which was also acknowledged and/or admitted by the Court of Appeal that heard the re-sentencing Appeal, which amongst others said, ‘Admittedly, as that court [referring to Court of First Instance] was dealing with the pre-amendment position, there was no reason for it to assess the savagery (or otherwise) of the Respondent’s actions; put simply, it was merely making its findings of fact based on the evidence and submissions raised by the counsel concerned’. As such, the only remedy to ensure that justice is really done is a re-trial or a new trial, not merely a ‘re-sentencing’ exercise. In light of the amendment, a new trial is needed to ensure relevant evidence and submissions are before the court.

As such, in the absence of a re-trial or new trial, MADPET calls for the commutation of the death sentence of Kho Jabing and all others currently on death row in Singapore for murder.

The Singapore government, President, Attorney General/Public Prosecutor and/or the Judiciary can and must take note of these serious concerns, irrespective of whether there is any application in court by Kho Jabing, and immediately stay the planned execution of Kho Jabing in the interest of justice.

MADPET, in light of the matters raised above, amongst others, the questionable validity of Court of Appeal that reversed the High Court decision and re-sentenced Kho Jabing to death,call for an immediate stay of execution of Kho Jabing, which is now allegedly scheduled for this coming Friday(20/5/2016).

MADPET also urges Singapore to adhere to the 5 United Nations General Assembly Resolutions, the first being in 2007 and the fifth being on 2014, whereby the support has obviously grown over the years, calling for the abolition of the death penalty, and for a moratorium pending abolition.

Charles Hector

For and on behalf of

MADPET (Malaysians Against Death Penalty and Torture)