EAIC find the police responsible for death of Dharmendra in Police Custody?

While allegedly some police officers may have already been charged for killing Dharmendran, I believe that the others who fabricated and/or covered up should also be charged in court. An internal 'secret' disciplinary action will just not do...EAIC have made references to the sections of the law that have been violated, and hopefully our Public Prosecutor would do the needful and charge them all in court...

Senior police officers, especially, should be seriously penalized and maybe even terminated - for they have certainly not provided a good example to junior police officers..

 PRESS RELEASE

EAIC’S INVESTIGATION FINDINGS  ON THE DEATH OF N. DHARMENDRAN IN POLICE CUSTODY

Putrajaya 28 April 2016 – The Enforcement Agency Integrity Commission (EAIC) in pursuant to section 30(5) of the Enforcement Agency Integrity Commission Act 2009 [Act 700], hereby announces the findings of its public hearing on the investigation into the death of Dharmendran a/l Narayanasamy (N. Dharmendran, the deceased) in the police custody at the Special Crime Investigation Division (D9) Lock-up, Criminal Investigation Department (CID), Kuala Lumpur Police Contingent Headquarters (IPK Kuala Lumpur) on 21 May 2013.

Five (5) sessions of public hearings were held, the first three sessions were held at Menara TH Perdana, Kuala Lumpur on 27 to 31 July 2015 (first), 17 to 21 August 2015 (second) and 14 to 18 September 2015 (third), while the fourth and fifth sessions were held at Menara Usahawan, Putrajaya on 26 to 29 October 2015 and 16 November 2015.

The public hearings were co-chaired by Yang Arif Datuk Yaacob bin Haji Md. Sam (Chairman of EAIC), members of EAIC’s Commissioner Dato' Sri Robert Jacob Ridu, Mr. Vinayak Prabhakar Pradhan and Mrs. Leong May Chan assisted by three (3) consultants, namely Tan Sri Dato' Seri Mohd Jamil bin Johari (Former Deputy Inspector-General of Police), Professor Tan Sri Dato' Seri Dr. Sharifah Hapsah binti Syed Hasan Shahabuddin (Former Vice-Chancellor of Universiti Kebangsaan Malaysia) and Mr. Lim Chee Wee (Former President of Malaysian Bar Council). 

The public hearings were also attended by watching brief counsels representing the Malaysian Bar Council, counsels representing the families of the deceased and the representatives from the police. The public hearing sessions were opened to media representatives and public.

The Commission would like to reiterate that the scope of the public hearing was restricted to the issues within the terms of reference given by the Commission during the setting up of the Task Force under section 17 of Act 700. The Commission would like to express its gratitude to all witnesses and watching brief counsels for their co-operation and assistance during the hearings, and members of media, both online and print, for their coverage of the hearings.

A total of 62 witnesess were called to testify at the hearings. There were 72 exhibits including post-mortem report and photographs of the deceased, pictures of the D9 Lock-up of IPK Kuala Lumpur, D9 Lock-up Diary [Polis 40 (Pin 4/890], official directives and other relevant documents tendered in the course of the hearings.

In the course of the hearing, the Task Force of the Commission made two visits on the D9 Lock-up and the Special Criminal Investigation Division’s office of IPK Kuala Lumpur.

EAIC INVESTIGATION FINDINGS

The findings of the Commission are based on the testimonies of the witnesses and the evidence presented before the public hearings. Hence, the Commission has prepared a full report on the investigation and its findings.

The findings of the Commission are as follows:

1. THE DEATH OF THE DECEASED RESULTED FROM THE USE OF PHYSICAL FORCE BY THE POLICE

(i) The Commission found the death of Dhamendran a/l Narayanasamy (I.C Num 811028-14-5551) on 21 May 2013 resulted from the use of physical force by the police.

(ii) Evidence of the pathologist from Forensic Department of Hospital Kuala Lumpur (HKL) who conducted the post-mortem on the body of the deceased on 22 May 2013 revealed that the cause of death was due to “diffuse soft tissue injuries due to multiple blunt force trauma". The post-mortem conducted also confirmed the injuries of the deceased as follows:

(a) A total of 52 bruises on the deceased caused by a blunt force object (blunt force trauma) causing acute massive loss of blood into the tissues causing hypovolemic shock.

(b) The injuries were estimated between 2 to 3 days prior to the post mortem, but not more than 4 days.

(c) There were two staples found embedded on the deceased’s ears, one on the right ear and the other on left ear causing puncture wounds on both ears. The pathologist confirmed the deceased’s ears were stapled while he was alive estimated between 2 to 3 days prior to the post morterm.

(iii) The Commission found the physical force that had caused injuries and the death of the deceased while in the custody and during interrogation has violated the Para 33 of Inspector General of Police’s Standing Order (IGSO) Part A '118' which prohibits the use of physical force against detainee during interrogations.

2. FALSE / MISREPRESENTATION OF ENTRIES IN D9 LOCK-UP DIARY

(i) The Commission found the last six (6) entries in the D9 IPK Kuala Lumpur lock-up diary i.e. entry 3150, 3151, 3152, 3153, 3154 and 3155 written by the two lock-up sentries (SP24 and SP25) were false / misrepresentation.

(ii) The Commission also found the following entries 3156, 3157, 3158, 3159, 3161 in the lock-up diary were written in an unusual manner by the lock-up sentry (SP25) in which the entries were not written in contemporaneous while he was on duty, but only after two or three days after the death of thedeceased.

(iii) The Commission also found that entries 3150 to 3153 were jointly made-up (fabricating) by the senior officers of the police, comprising the Deputy Head of the Criminal Investigation of Intelligence and Operations Department (SP60), the Officer in-charge of D9 IPK Kuala Lumpur (SP27), the Deputy officer in-charge of D9 IPK Kuala Lumpur (SP39) and the officer of D9 IPK
Kuala Lumpur (SP44) (at that time) by instructing the two lock-up sentries SP24 and SP25 respectively to write false entries into the lock-up diary (Exhibit P32) on the night of 21 May 2013.

(iv) It is also the findings of the Commission that entries 3154 to 3161 were jointly made-up (fabricating) by the senior officers of the police comprising the Deputy Head of the Criminal Investigation Department of Intelligence and Operations IPK Kuala Lumpur (SP60), the Officer in-charge of D9 IPK Kuala Lumpur (SP27), the Deputy Officer in-charge of D9 IPK Kuala Lumpur (SP39),SP41, SP42 and SP43 of the D9 IPK Kuala Lumpur by instructing the two lock-up sentries SP24 and SP25 respectively to write false entries into the lock-up diary (Exhibit P32) after two or three days after the death of the deceased.

(v) The Commission found a serious misconduct have been committed by the senior officers of the police in making-up those false entries in order to coverup the actual fact surrounding the death of the deceased preventing a fair and just investigation of the death.

(vi) The Commission found in providing the false or incorrect information /misrepresentation as stated above, SP60, SP39, SP27 and SP44 may have committed an offence under sections 192, 201 and / or 203 of the Penal Code.

3. THE TAMPERING OF TIME IN D9 LOCK-UP DIARY (EXHIBIT P32)

(i) The Commission found two entries in D9 Lock-up Diary (Exhibit P32) i.e entry 3149 and 3150 had been tampered from the original entries by SP24 upon the instructions of SP60, SP39, SP41 dan SP43 in order to synchronize with the time stated in the rearrest report of the deceased (Exhibit P50).

(ii) The Commission found that the act of tampering an official document that is the D9 Lock-up Diary by SP60, SP39, SP41 dan SP43 is an offence under section 177 or section 182 of the Penal Code.

4. FALSE CONTENTS OF POLICE REPORT REGARDING THE DEATH OF THE DECEASED

(i) The Commission found the police report on the death of the deceased lodged by SP25, the D9 Lock-up Sentry made upon the instructions of the Deputy Head of the Criminal Investigation Department of Intelligence and Operations IPK Kuala Lumpur (SP60) and written by Sergeant Major Ali (D9 personnel) contained false / misrepresentation of actual state surrounding the death of the deceased.

(ii) Lodging a false police report is an offence under section 177 or section 182 of the Penal Code.

5. THE ABUSE OF POWER IN RELATIONS TO THE RE-ARREST OF THE DECEASED ON 21 MAY 2013 (LAST DAY OF REMAND)

(i) The Commission found the re-arrest of the deceased by the D9 members SP41 and SP43 at 1.00 p.m. of 21 May 2013 was made upon the instructions by the Officer in-charge of D9 IPK Kuala Lumpur (SP27) and the D9 Officer (SP44). The re-arrest was made based on the Police Report Petaling/001384/13 (Exhibit P71) taken at random from the Police Reporting System (PRS), which has nothing to do with the deceased in which the investigation paper of the said police report has been ordered as No Further Action (NFA) by the Deputy Public Prosecutor on 17 May 2013.

(ii) The Commission found the Officer in-charge of D9 IPK Kuala Lumpur (SP27) and the D9 officer (SP44) has committed a serious misconduct of abuse of power by instructing the re-arrest of the deceased on the 21 May 2013 (who was scheduled to be released on that day after the expiry of his remand period) without a just and valid justification.

6. INOPERATION OF D9 CCTV LOCK-UP SINCE 2009

(i) The Commission found the CCTVs in D9 Lock-up and the D9 Office has not been in operation since 2009 during to the construction and renovation works of the IPK Kuala Lumpur new building. The CCTVs remained inoperation even after the completion of the construction. The CCTVs were put into operation only after the death of the deceased.

(ii) Due to the inoperation of the CCTVs, the movement of detainees as well as the D9 personnels went unmonitored and not recorded. As such, the Commission has been denied with the best evidence on how the deceased was taken back into the D9 Lock-up during the absence of the D9 Lock-up Sentries (SP24 and SP25) after he was taken out at 2.20 p.m. on 21 May 2013, the fatal day.

(iii) The Commission found the Officer in-charge of D9 IPK Kuala Lumpur (SP27) and the Logistic Unit of IPK Kuala Lumpur, (knowing the inoperation of the CCTVs) have not taken sufficient effort in ensuring the CCTVs of D9 Lock-up and D9 Office be put back into operation.

7. BREACH OF LOCK-UP RULES 1953 AND HUKUMAN TETAP KETUA POLIS DAERAH CAMPBELL KUALA LUMPUR BIL. 1/89 TUGAS PENGAWAL LOKAP IPK, KUALA LUMPUR

(i) The Commission found that the deceased was taken back into the D9 Lockup by D9 personnel during the absence of lock-up sentries (SP24 and SP25).As a result, the entry of the deceased into the lock-up was not recorded in thelock-up diary (Exhibit P32).

(ii) The Commission found that the failure of the two D9 Lock-up Sentries on duty (SP24 and SP25) at the lock-up between 2.30 p.m. until 4.30 p.m on 21 May 2013 has allowed the D9 personnel to place the deceased into the lock-up without a need to comply with the required procedures on entry of detainee into the lock-up.

(iii) The admission of detainee into the lock-up without being recorded in lock-up diary and leaving lock-up unattended is a serious breach of the Lock-up Rules 1953, Hukuman Tetap Ketua Polis Daerah Campbell Kuala Lumpur Bil. 1/89 Tugas Pengawal Lokap IPK, Kuala Lumpur and IGSO Part A '118'.

8. CONNECTION OF THE D9 PERSONNEL WITH THE DEATH OF THE DECEASED

The Commission found that SP41, SP42, SP43 and SP44 (the D9 Project Team members) assigned for the investigation and interrogation of the deceased have a close connection with injuries and the death of the deceased. This is based on the testimonies and documents which showed that the deceased was under the sole custody of the D9 Project Team commencing from 13 May 2013 to 21 May 2013. The evidence also disclosed that only the D9 Project Team has an access over the deceased during that period.

9. ABSENCE OF INVESTIGATION / INTERROGATION ON THE DECEASED BY D9 PROJECT TEAM FROM 13 MAY 2013 TO 19 MAY 2013

(i) The Commission found that there was no investigation / interrogation carried out by the D9 Project Team on the deceased from the date of his admission into the D9 Lock-up up to the afternoon of 19 May 2013. It remained unexplained by the Project Team and the officer in-charged of D9 (SP27) on why no investigation / interrogation taken place on the deceased during that period.

(ii) The Commission is of the view that with the short period of remand left, (in this case the deceased’s remand was due to expire in two days time) has placed the Project Team in the ‘last ditch’ situation in obtaining information from the deceased, resulted to the use of force on the deceased.

(iii) In the absence of explaination of the D9’s officers and the Director of CID of Bukit Aman, it remained unresolved whether the investigation / interrogation on the deceased has no priority or the Project Team was occupied with heavy workload.

(iv) The Commission observed that a subpoena had been issued and delivered to the Director of CID Bukit Aman in order to get clarification over the workload faced by the Criminal Investigation Department. However, it is disappointed that notwithstanding the two sessions allotted, the Director has failed to appear at the hearings.

10. DELAYED IN GIVING ACCESS TO FAMILY MEMBERS ON THE DECEASED DURING DETENTION PERIOD

(i) The Commission found there was a delay in access to the deceased by family members (SP2 and SP16) which was only given on 19 May 2013, that was 8 days after the deceased was placed under remand commencing from 12 May 2013 to 15 May 2013 (first remand) and further extended from 16 May 2013 to 21 May 2013 (second remand).

(ii) It is observed that both the Officer in-charge of D9 IPK Kuala Lumpur (SP27) and D9 Officer in-charge of the Project Team (SP44) had no valid justification in denying early access on the deceased by his family members, in particular the deceased wife (SP2).

(iii) Unreasonable delay in giving an access of family member to the detainee or detainee to his family member contravenes the provision of section 28A (2) of the Criminal Procedure Code and Para 8.2.1 of the IGSO Part A '118'.

11. EXCESSIVE OF DETAINEES IN D9 LOCK-UP

(i) The Commission found that not less than 4 detainees have been placed in D9 lock-up since 13 May 2013 until 20 May 2013. In specific, on 14 May 2013 there were 16 detainees placed in the D9 Lock-up of IPK Kuala Lumpur as recorded in the D9 Lock-up Station Diary (Exhibit P31/32).

(ii) In placing of more than 4 detainees at one time in D9 Lock-up has infringed Article 2 of Hukuman Tetap Ketua Polis Daerah Campbell Kuala Lumpur Bil.1/89 and D9 Lock-up Gazette which clearly stated the maximum number of detainee allowed in the D9 Lock-up shall only be four (4).

(iii) It is observed by the Commission that on the 21 May 2013, the fatal day, only the deceased remained in D9 Lock-up.

12. LACK OF KNOWLEDGE ON SOP AMONGST THE D9 PERSONNELS

(i) Based on testimonies of D9 personnels and admission at the hearing, it is observed that certain officers and members of D9 neither had no knowledge of nor had seen the contents of IGSO Part A ‘118’ and Hukuman Tetap Ketua Polis Daerah Campbell Kuala Lumpur Bil. 1/89 governing the management and administration of D9 Lock-up which are still in force.

(ii) As a result, detainees have been handled based on the D9 own practices ignoring the requirements and existence of SOPs.

13. LACK OF BLOOD SAMPLING FOR DNA ANALYSIS

(i) The Commission found although two staplers (Exhibit P54 pic. no. 8 and 9) from the D9’s office (based on the two staples found on the deceased’s left and right ears) were seized by the investigating officers (SP53 and SP54), however no DNA samples that obtained from any of the D9 personnels who have an access over the deceased for purposes of DNA analysis and comparison.

(ii) The lack of blood sample has caused the DNA comparison analysis unable to be done in order to ascertain the identity of "Male 1" found on the stapler (“K5(a)”) by an expert from the Malaysia Chemistry Department to resolve the issue whether the Male 1 identity belongs to any of D9 personnels.

EAIC RECOMMENDATIONS

Based on the findings as stated above, the Commission recommends the following:

1. DISCIPLINARY ACTION BY THE DISCIPLINARY AUTHORITY OF PDRM AGAINST:

(i) The Deputy Head of the CID (Intelligence and Operation) of IPK Kuala Lumpur (SP60), Officer in-charge of D9 (SP27), Second Officer in-charge of D9 (SP39) and D9 Officer (SP44) for jointly or abetting in fabricating false information / misrepresentation of the entries in D9 Lock-up Station Diary (Exhibit P32) in relation to the fact surrounding the death of the deceased.

(ii) The Deputy Head of the CID (Intelligence and Operation) IPK Kuala Lumpur (SP60) and the two members of the Project Team (SP41 and SP43) for instructing the lock-up sentry personnel SP24 to tamper times in entries 3149 and 3150 of the the D9 Lock-up Station Diary (Exhibit P32).

(iii) The Deputy Head of the CID (Intelligence and Operation) IPK Kuala Lumpur (SP60) and Sergent Major Ali of D9 for jointly or abetting in making false police report (Exhibit P38) by using SP25 as the complainant of the report pertaining to the death of the deceased.

(iv) The Officer in-charge of D9 (SP27) and the Project Team Leader (SP44) for an abuse of power or position in instructing the re-arrest of the deceased on 21 May 2013 without any valid justification (Exhibit P50).

(v) The Officer in-charge of D9 (SP27) and Project Team Leader (SP44) for unreasonable delay in giving an access of family member to the deceased which has violated the provision of section 28A of the Criminal ProcedureCode.

(vi) The Officer in-charge of D9 (SP27) and Project Team Leader (SP44) for the failure to supervise the members of the Project Team (SP41,SP42 and SP43) in conducting prompt investigation / interrogation on the deceased which was only carried out on the seventh day (19 May 2013) of the remand.

(vii) The D9 Lock-up sentry personnel (SP24) for leaving the lock-up unattended between 2.30 p.m to 3.00 p.m on 21 May 2013.

(viii) The D9 Lock-up sentry personnel (SP25) for failure to station himself at the lock-up between 3.00 p.m to 4.30 p.m on 21 May 2013.

2. ADHERENCE / REVIEW OF SOPs / STANDING ORDERS

PDRM should review the existing supervising and monitoring mechanisms in relation to:

(i) Compliance of the IGSO / SOPs

PDRM to ensure the understanding and strict compliance of the IGSO including Part A "118" and Standard Operating Procedures (SOPs) by all members of the police force.

(ii) Compliance of Lock-Up Management SOP

PDRM to make compulsory that every officers in-charge of the police lock-up and lock-up personnel including any member of the police who has an access over the detainee to adhere to the Police’s Lock-up Management SOP /Standing Orders issued by Bukit Aman on 21 April 2014 and the Lock-up Rules 1953, including on the limit of the number of detainee that can be
placed in a cell or lock-up and prohibition of use of force on detainee.

(iii)Use of Pocket Book / Diary and Its Supervision / Monitoring

PDRM to review and provide effective supervision / monitoring on the use of pocket book / diary and its up-dating including its safekeeping. Any loss or damage of the same should be reported promptly to the immediate officer incharge of the said police personnel.

3. REFRESHER COURSE

PDRM to carry out continuous training (i.e refresher course and refresher training), including on job training and to issue constant reminders on all police personnels involved in law enforcement activities on the requirement and compliance of the SOPs / Standing Orders.

4. WHISTLEBLOWER / COMPLAINT MECHANISM

PDRM should review the existing procedure or mechanism to allow its personnel to file or to lodge a complaint or report of any illegal instructions / orders /directions by the superior officer that against the SOPs / Standing Orders or laws.

Investigation on the complaint shall be carried out by an independent special committee within the PDRM.

5. INVESTIGATION ON CUSTODIAL DEATH

It is recommended that all cases involving death in custody shall be investigated by an independent and experienced investigating officer who is holding an office not from the same state police contingent where the death occured. This is to ensure transparency and credibility of the investigation.

6. COMPLIANCE OF RULE 10 OF PRISON REGULATION 1953 AND PARA 24 OF IGSO A '118'

PDRM to adhere strictly on the compliance of Rule 10 of the Prison Regulation 1953 and the para 24 of IGSO Part A '118' requiring detainee to undergo medical examination by a medical officer upon his/her entry into the lock-up.

7. ROLES OF THE MINISTRY OF HEALTH (MOH)

MOH should review and amend its existing SOP in relation to the following:

(i) Coordination Between MOH and Enforcement Agencies Particularly PDRM

MOH to coordinate with enforcement agencies especially the PDRM on the proper implementation of Rule 10 and Para 24 of the IGSO Part A '118' requiring detainee to undergo medical examination by a medical officer upon his/her entry into the agencies’ lock-up. The implementation shall take into consideration the safety of all parties including the medical staffs.

(ii) MOH’s Procedure / Method of Examination

MOH to provide a comprehensive guidelines and procedures including method of examination involving custodial deaths for medical officers /assistants / personnels guidance with emphasizing on body inspection, photo/ image recording, examination kit and the preservation of the evidence at the scene / lock-up (not contaminated or tampered).

(iii) Guideline on the Preparation of Post-Mortem Report

MOH to formulate a comprehensive guideline by taking into considerations of the international standards on preparation of post-mortem report by pathologist, and in particular the cause of the death must be stated precisely.

8. GUIDELINES FOR THE MAGISTRATE / CORONER

The Chief Registrar of the Federal Court is urged to provide comprehensive guideline to be used by Magistrate / Coroner on examination of the deceased body involving custodial death.

9. CONSIDERATION OF CRIMINAL CHARGE

The Commission recommends that the Attorney General Chambers (AGC) to consider criminal charge to be filed against the police personnels identified in this report for committing an offence of fabricating false information / misrepresentations and tampering of the D9 Lock-up Station Diary (Exhibit P32).

10. AMENDMENT OF PENAL CODE (ACT 574) AND EVIDENCE ACT 1950

The Commission recommends that the AGC and Ministry of Home Affairs (KDN) to amend the Penal Code (Act 574) and Evidence Act 1950 to provide for a provision of presumption that placed the burden of proof on the enforcement agencies personnel who has a custody of the detainee to be liable for any injury or death occured on detainee while in custody, until proven otherwise.

The recurrence of deaths in custody and the use of force against detainee is A SERIOUS VIOLATION OF LAW AND INTEGRITY AND DEEPLY REGRETTED.

EAIC urges all findings and recommendations in the report to be considered and serious actions to be taken by all parties, particularly the PDRM in order to prevent the recurrence of such cases in future.

Members of the public may log on to www.eaic.gov.my to download the full report of the investigation.

-ENDS

DATUK YAACOB BIN HAJI MD. SAM
Chairman
Enforcement Agency Integrity Commission (EAIC)
28 April 2016

Source: Official Website of  Enforcement Agency Integrity Commission (EAIC)/ Suruhanjaya Integriti Agensi Penguatkuasaan

Kho Jabing - the High Court Judgment that sentenced him to life imprisonment - Save the Life of this Sarawakian?

Kho Jabing, a Malaysian from Sarawak, had his sentence commuted by the High Court from death to life imprisonment and caning on 14/8/2013. This happened because Singapore had amended the law, now giving judges the discretion when it comes to sentencing. No more just the mandatory death sentence for murder...

This good news was short-lived because the Court of Appeal thereafter quashed this High Court decision, and sentenced him again to Death. 

As we still campaign for the life of this Malaysian...it may be best for us to also look again at the High Court decision...where the Judge decided that this was NOT a case which required Kho Jabing to hang...

See earlier post:-

Singapore, do not execute Sarawakian Kho Jabing

Abolish the mandatory death penalty and restore judicial discretion in sentencing — Bar associations of Malaysia(Malay Mail)

The Malaysian Bar, Advocates’ Association of Sarawak and Sabah Law Association are also extremely concerned over the case of Kho Jabing, a Sarawakian currently on death row in Singapore. 

The Singapore courts had initially imposed the mandatory death penalty on him, for murder. However, pursuant to amendments to the law in Singapore that abolished the mandatory death penalty for murder (with retrospective effect), he was resentenced by the High Court to life imprisonment and whipping (24 strokes). The prosecution appealed, and the Court of Appeal, by a slim 3-2 majority, reinstated the death penalty....the Malaysian Bar, Advocates’ Association of Sarawak and Sabah Law Association call on the Malaysian Government to support any further application for clemency, and urge it to do its utmost to intercede with the Singaporean authorities to commute Kho Jabing’s death sentence to one of life imprisonment.

Public Prosecutor v Kho Jabing [2013] SGHC 251

High Court — Criminal Case No 31 of 2009

Tay Yong Kwang J

14 August 2013

Criminal Law — Statutory Offences — Murder Re-sentencing

18 November 2013 Tay Yong Kwang J:

1 Jabing Kho (“the convicted person”) and Galing Anak Kujat (“Galing”) were convicted of murder under s 300(c) read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) and punishable under s302 of the same by Kan Ting Chiu J and the then mandatory death sentence was passed on them accordingly. The present proceedings concern the resentencing of the convicted person pursuant to s 4(5)(f) of the Penal Code (Amendment) Act 2012 (Act No. 32 of 2012) (“the PCAA”). After hearing thesubmissions made by both parties, I re-sentenced the convicted person to life imprisonment with effect from the date of his arrest (26 February 2008) and to receive 24 strokes of the cane.

2 The prosecution, which urged me to re-sentence the convicted person to death, has appealed against my decision. 

The background

3 The convicted person was born on 4 January 1984. The charge against him at the trial read as follows:

That you, Jabing Kho, on or about the 17th day of February 2008, at about 8.19pm, at the open space near Geylang Drive, Singapore, together with one Galing Anak Kujat, in furtherance of the common intention of both of you, committed murder by causing the death of one Cao Ruyin, male 40 years old, and you have thereby committed an offence punishable under section 302 read with section 34 of the Penal Code, Chapter 224.

4 The co-accused, Galing, faced a similar charge and both the convicted person and Galing were tried together. On 30 July 2010, Kan J convicted both of them of them of murder committed in furtherance of their common intention and sentenced them to receive the then mandatory death penalty. Kan J accepted that the convicted person’s offence fell within s 300(c) of the Penal Code. His judgment appears at Public Prosecutor v Galing Anak Kujat and another [2010] SGHC 212 (“Kan J’s judgment”).

5 Both Galing and the convicted person appealed against Kan J’s decision. On 24 May 2011, the Court of Appeal affirmed the decision against the convicted person. Galing’s appeal was allowed by the Court of Appeal which substituted his conviction for murder with an offence of robbery with hurt committed in furtherance of a common intention under s 394 read with s 34 of the Penal Code (see Kho Jabing and another v Public Prosecutor [2011] 3 SLR 634 at [38] – “the Court of Appeal’s judgment”). Galing’s case was remitted to Kan J for sentencing in respect of the substituted offence and he was subsequently sentenced to imprisonment for 18 years and 6 months and to receive 19 strokes of the cane.

6 On 30 April 2013, the Court of Appeal confirmed that the convicted person was convicted under s 300(c) of the Penal Code. It allowed his application for his case to be remitted to the High Court for re-sentencing

under s 4(5)(f) of the PCAA. The relevant sections of the PCAA are as follow:

2 Section 302 of the Penal Code is repealed and the following section substituted therefor:

Punishment for murder

302 -(1) Whoever commits murder within the meaning of section 300(a) shall be punished with death.

(2) Whoever commits murder within the meaning of section 300(b), (c) or (d) shall be punished with death or imprisonment for life and shall, if he is not punished with death, also be liable to caning.

… 4

-(5) Where on the appointed day, the Court of Appeal has dismissed an appeal brought by a person for an offence of murder under section 302 of the Penal Code, the following provisions shall apply:

… (f) if the Court of Appeal clarifies under paragraph (c)(ii) or (d) that the person is guilty of murder within the meaning of section 300(b), (c) or (d) of the Penal Code, it shall remit the case back to the High Court for the person to be re-sentenced;

(g) when the case is remitted back to the High Court under paragraph (f), the High Court shall re-sentence the person to death or imprisonment for life and the person shall, if he is not re-sentenced to death, also be liable to be re-sentenced to caning;

…

(6) If –

(a) any Judge of the High Court, having heard the trial relating to an offence of murder, is unable for any reason to sentence, affirm the sentence or re-sentence a person under this section; or

(b) …any other Judge of the High Court or any Judge of Appeal, respectively, may do so.

7 Kan J has retired as a Judge of the High Court. The case was therefore placed before me for re-sentencing pursuant to s 4(6) set out above.  

8 Briefly, the facts of the case are as follow. The convicted person and Galing are from Sarawak, Malaysia. At the time of the offence, they were both working in Singapore on work permits. On 17 February 2008, both of them had agreed with three of their fellow countrymen, Vencent, Anthony and Alan, to rob two of Vencent’s co-workers at a worksite in Tiong Bahru. However, as the two co-workers had fortuitously left the worksite, the robbery plan was aborted. The five men remained at Tiong Bahru to consume liquor. Subsequently, they left for Geylang intending to find some victims to rob.

9 At Geylang, the convicted person and Galing walked some distance away from their fellow countrymen and spotted two possible male prey, Cao Ruyin who is the deceased person named in the charge (“the deceased”) and Wu Jun, walking along a path in an open space near Geylang Drive. Galing assaulted Wu Jun with a belt wrapped around his fist with the metal buckle exposed. The convicted person attacked the deceased with a piece of wood that he had picked up while approaching the deceased. Galing also assaulted

the deceased with the metal buckle.

10 The deceased suffered severe head injuries from the attack and passed away in a hospital on 23 February 2008. The cause of death was certified by a pathologist to be severe head injury. Wu Jun escaped with minor injuries and called the police. When they went to the scene of crime, the deceased was lying on the ground unconscious, with his face covered in blood.

11 The deceased’s mobile phone was taken away by Galing. The five Sarawakians regrouped at a coffee shop in Geylang where Galing sold the said mobile phone to Vencent for $300. The five of them took $50 each from the sale proceeds and spent the remaining $50 on food and drinks.

The prosecution’s submissions

12 When the law provides a maximum sentence for an offence, that maximum sentence is reserved for the worst type of cases. This expression should be understood to be marking out a range and an offence may be within it notwithstanding the fact that it could have been worse than it was (see Sim Gek Yong v Public Prosecutor [1995] 1 SLR(R) 185 at [12]).

13 Where the law provides for a limited choice of the death penalty or of life imprisonment, neither of the options should be considered the default position. Instead, all the facts and circumstances must be taken into

consideration in order to determine if the accused person ought to suffer the death penalty (Sia Ah Kew and others v Public Prosecutor [1974 – 1976]SLR(R) 54). In that case, which involved kidnapping for ransom, the Court of Appeal opined that the maximum sentence would be appropriate where the manner of the kidnapping or the acts or conduct of the kidnappers were such as to outrage the feelings of the community. The Court of Appeal also held that it would be wrong to take the view that the alternative sentence of life imprisonment should be imposed only when there were some very exceptional circumstances which did not justify the imposition of the death penalty.

14 The views in Sia Ah Kew and others v Public Prosecutor were endorsed by the Court of Appeal in Panya Martmontree and others v Public Prosecutor [1995] 2 SLR(R) 806. This was a case of gang-robbery with murder under s 396 of the Penal Code (Cap 224, 1985 Rev Ed) which provided that:

If any one of 5 or more persons who are conjointly committing gang-robbery, commits murder in so committing gang robbery, every one of those persons shall be punished with death or imprisonment for life, and if he is not sentenced to death, shall also be punished with caning with not less than 12 strokes.

The Court of Appeal held (at [66]) that the appellants’ “acts of violence were mercilessly executed and gravely abhorrent in their execution” and “were amply sufficient to outrage the feelings of the community”. The death sentences were therefore upheld.

15 During the introduction of the amendments to the law on the mandatory death penalty in homicide cases, the Minister for Law made a statement in Parliament (see Changes to the Application of the Mandatory

Death Penalty to Homicide Offences (Statement by Minister for Law), Singapore Parliamentary Debates, Official Report (9 July 2012) vol 89):

In deciding whether and how to apply the death penalty to a particular offence, several factors have to be considered. In particular I will mention, in broad terms, three interconnected factors:

(1) the seriousness of the offence, both in terms of the harm that the commission of the offence is likely to cause to the victim and to society, and the personal culpability of the accused;

(2) how frequent or widespread an offence is;

(3) deterrence.

These three factors must be considered in their totality. For example, the fact that an offence is not widespread or that its incidence is low may not, by itself, be a decisive factor. The overarching aim of the Government is to ensure the safety and security of Singapore, while maintaining a fair and just criminal system.

…

In respect of other categories of murder, under section 300(b) to (d), there could be different degrees of intention, and these offences are committed in a variety of situations. Today, that is something considered by the Public Prosecutor when he decides the appropriate charge in each case. The factors he considers include the precise intention of the accused, the manner in which the homicide occurred and the deterrent effect a charge may have on others. We want to move towards a framework where the court also has the discretion, to take the same factors into account during sentencing. This change will ensure that our sentencing framework properly balances the various objectives: justice to the victim, justice to society, justice to the accused, and mercy in appropriate cases. … We now have a relatively low incidence of homicides – last year we had 16 recorded homicides, or about 0.3 per 100,000 population. As our society becomes safer, less violent, and more mature, we believe that today’s changes are a right step to take.

16 Relying on the three factors spelt out in [15] above, the prosecution submitted that the convicted person had acted in a vicious and pernicious manner. The Court of Appeal described his act of raining heavy blows on the deceased’s head, a vulnerable part of the body, as a “violent assault”. The forensic pathologist had testified that the injuries suffered required “very severe” or “huge” blunt force from multiple blows. Galing had described the deceased’s head as “cracked open”. Wu Jun had testified that the convicted person and Galing attacked him and the deceased stealthily from behind.

17 The prosecution highlighted that the attack occurred in an open public place. The “sheer brazenness of the convicted person and Galing, and their gratuitous use of violence would bring disquiet to society. Also, the fact that the brutal attack was prompted only by greed leaves the public in fear that such ill-fortune may befall on them some day”.

18 The personal culpability of the convicted person was also high. He targeted vulnerable or “easy” victims – those walking alone or with only one other person. He armed himself with a piece of wood that he had picked up. Excessive force was used to immobilize the deceased. Even after the deceased fell to the ground facing up and there was blood coming out from his head, the convicted person did not stop his attack but swung the piece of wood at him a second time. There was no provocation by the deceased whatsoever.

19 The only motivation for this cold-blooded and wanton use of violence was greed. There was scant regard for human life. As the Court of Appeal opined at [37] of the Court of Appeal’s judgment, such violent crimes cannot be condoned in any civilised society and severe condemnation is required.

20 The defence of intoxication was raised at the trial and on appeal and was rejected by both courts. Indeed, the law is that self-induced intoxication is an aggravating, rather than mitigating, factor. The convicted person was able to recount the events with details and that showed his mind was clear at the time of the offence despite his evidence that he was drunk. His personal circumstances, absence of previous conviction and remorse do not warrant “exceptional leniency”.

21 The prosecution also produced statistics that showed that in the ten years since 2003, there were 25 cases of fatal assault committed in the course of robbery. Out of these 25 cases, 15 involved groups of at least two or more assailants. In 2008, the year in which the present offence took place, there were four cases of fatal assault during robbery by young foreign workers below the age of 30, like the convicted person here. The prosecution argued that “the confidence which society has in the safety and security of Singapore can only be upheld by ensuring that those who contemplate such atrocious actions know that those who show no mercy to their victims will receive no mercy from the law”.

22 A deterrent sentence would be appropriate where the offence was committed with premeditation and planning. Examples of particular circumstances of an offence which may attract general deterrence include

offences committed by two or more persons and those which, in addition to harming their immediate victims, also have the wider-felt impact of triggering unease and offending the sensibilities of the general public (see Public Prosecutor v Law Aik Meng [2007] 2 SLR(R) 814 at [25]).

23 The deceased was 40 years old at the time of his demise. He was from a rural village in China and had come to Singapore to earn a living as a construction worker. His untimely death would doubtlessly bring

indescribable grief to his family in China.

24 For all these reasons, the prosecution urged the court to re-impose the death penalty on the convicted person.

The convicted person’s submissions

25 Counsel for the convicted person relied upon the Ministerial statement set out at [15] above to submit that Parliament’s intention was for the death penalty to be applied restrictively and to a narrower category of homicides and that for cases under s 300(b) to (d) of the Penal Code, the death penalty would not be the appropriate starting or default position. Citing Sia Ah Kew and others v Public Prosecutor, they argued that the starting or default position in the three categories of homicide cases should be life imprisonment, with the

death penalty being the exception rather than the rule.

26 Counsel for the convicted person also cited cases from India, the United States and South Africa to bolster their arguments at [25] and to conclude that the restrictive approach to the exercise of judicial discretion whereby “the death penalty is only imposed in situations where the offender’s conduct and/or the offence’s facts are exceptionally heinous is consistent with the international trend”.

27 It was proposed that the answers to the following two questions would aid in the exercise of judicial discretion:

(1) Is there something uncommon about the crime that outrages the feelings of the community and that renders life imprisonment inadequate and calls for a death sentence?

(2) Are the circumstances such that there is no alternative but to impose the death sentence even after according maximum weight to the mitigating circumstances of the offender?

Each case has to be considered on its own facts to allow for “individualised justice” in sentencing.

28 In the present case, the injuries were intended but the fatal outcome was not. The convicted person only intended to incapacitate or temporarily subdue the deceased in order to carry out the robbery. There was no subjective knowledge of the outcome. The use of weapons by both attackers was purely “opportunistic and improvisional” (see the Court of Appeal’s judgment at [35(b)]) and was not premeditated. Further, the piece of wood used was not “a patently deadly weapon such as a knife”. The injuries were inflicted during “a

frantic and frenetic fracas”. The deceased was still alive when the convicted person left the scene of the attack and only tragically succumbed to his injuries six days later in the hospital. The conduct of the convicted person and the manner of the deceased’s death were “not exceptionally brutal, heinous, cruel

and/or depraved” and the deceased was not vulnerable due to age or infirmity.

29 There was no clear and undisputed sequence of events and circumstances surrounding the offence (see the Court of Appeal’s judgment at [8] to [10]), including but not limited to the number of times the convicted

person hit the deceased. While this was not material for the purpose of a conviction, it was relevant for sentencing. The extent of intoxication, while insufficient to constitute a defence, was not fully and thoroughly explored. There was also no credible objective evidence of the convicted person’s level of intoxication. The death penalty should only be imposed where there was clear and convincing evidence leaving no room for an alternative explanation of the facts. It would be appropriate only in the most aggravated circumstances, for instance, where the manner of the fatality and/or the conduct of the offender are particularly aggravated. The present case did not fit into these criteria.

30 The personal circumstances of the convicted person were also highlighted. At the time of the offence, the convicted person was at the relatively young age of 24. He has been in custody for about five years without incident. He had no criminal antecedents and had cooperated fully during the investigations. He is single and is the only son in his family. His father passed away while the convicted person was awaiting his trial. His

mother lives alone and works as a chambermaid in a hotel in Sarawak. She misses the convicted person terribly but does not have the financial means to visit him during his long incarceration. She has mentioned in her clemency plea to the President of Singapore that the death penalty for her son would also be the death sentence for her. While the deceased’s family could be in a similar position, the loss of another life would only add to the tragedy and sorrow from this unfortunate and ill-fated robbery and would not serve the ends of justice.

31 On 26 August 2009, the Agri-Food and Veterinary Authority of Singapore (“AVA”) issued a media release stating that excessive levels of methanol had been detected in one of the alcoholic products consumed by the convicted person prior to the offence. Methanol poisoning was not contemplated nor assessed during the investigations and the recall of the product was not highlighted during the trial or the ol could not be discounted and should be considered in sentencing because he would not have known about the excessive amounts of methanol present in the drink that he consumed that night.

32 The convicted person is deeply remorseful about the tragic consequences of his actions. During his incarceration, he “has developed a  a result of his relentless and continuous Islamicprayers (through the act of bowing his head onto the floor) asking Allah forforgiveness”. If given the opportunity, he intends to locate the deceased’sfamily to seek forgiveness and to do whatever is possible and within his powerto aid the deceased’s family in coping with their lives.33 Statistics from the Singapore Police Force’s website show that thenumber of homicide cases registered a 20-year low in 2012, dropping from 16cases in 2011 to 11 cases in 2012. Fatal assaults in the course of robbery havealso been on a steady decline in the past ten years.34 Galing was convicted on a lesser charge. Considering the respectiveroles and culpability, parity in sentencing would suggest that lifeimprisonment is appropriate for the convicted person. Further, in another resentencing case (Criminal Case No. 40 of 2009), where the facts were largelysimilar to the present case, Chan Seng Onn J imposed life imprisonment and24 strokes of the cane on 16 July 2013. The convicted person in that case was18 years old at the time of the offence in question. No written grounds ofdecision were given and there was no appeal. The decision of the Courtmark on his forehead as a result of his relentless and continuous Islamic

prayers (through the act of bowing his head onto the floor) asking Allah for forgiveness”. If given the opportunity, he intends to locate the deceased’s family to seek forgiveness and to do whatever is possible and within his power to aid the deceased’s family in coping with their lives.

33 Statistics from the Singapore Police Force’s website show that the number of homicide cases registered a 20-year low in 2012, dropping from 16 cases in 2011 to 11 cases in 2012. Fatal assaults in the course of robbery have also been on a steady decline in the past ten years.

34 Galing was convicted on a lesser charge. Considering the respective roles and culpability, parity in sentencing would suggest that life imprisonment is appropriate for the convicted person. Further, in another resentencing case (Criminal Case No. 40 of 2009), where the facts were largely similar to the present case, Chan Seng Onn J imposed life imprisonment and 24 strokes of the cane on 16 July 2013. The convicted person in that case was 18 years old at the time of the offence in question. No written grounds of decision were given and there was no appeal.

The decision of the Court

35 As I was not the trial Judge in this case, I relied entirely on Kan J’s judgment and the Court of Appeal’s judgment where the findings of fact were concerned. I do not think I should look further into the evidence adduced at the trial and make further conclusions on the facts.

36 The issue of intoxication was raised and rejected at both levels and it is not open to the convicted person at this stage to revisit this issue. The AVA’s  media release was in 2009 and if it was relevant to the defence of the convicted person, then such evidence should have been adduced during the trial or, in any case, at the appeal after leave has been obtained to adduce fresh evidence. It is certainly improper to attempt to introduce the fresh evidence before me during the re-sentencing submissions.

37 I agree with the prosecution that there should not be a default position preferring the death penalty or life imprisonment in considering the appropriate sentence under s 300(c) of the Penal Code. In other legislation

providing for punishment for offences, the courts have consistently accepted that there is no presumptive preference that the least severe punishment should be the starting or default position. So if a law allows the court to impose imprisonment with or without caning or a fine or both, the court does not begin its inquiry by asking why the offender should not be fined. Instead, it looks at all the circumstances of the case before deciding to impose one or the other or both of the punishments. The Minister’s statement at [15] above also

does not show a presumptive preference for life imprisonment as the starting point. Similarly, it would be wrong to regard the death penalty as the starting point and then see if there are factors which would justify the less severe alternative (see Sia Ah Kew and others v Public Prosecutor). All the facts of the case should be looked at before deciding which is the appropriate punishment for offences under s 300(b) to (d) of the Penal Code although there are only two stark choices of literally life or death.

38 I do not find it necessary or fruitful to look at decisions in other jurisdictions as to when the death penalty would be appropriate. Each society must decide for itself what type and degree of punishment it wants and needs in the unique context of its values and the level of development on all fronts, including social, cultural and economic ones.

39 I do not accept the submission (at [30] above) that the loss of another life (that of the convicted person if the death penalty is imposed) would only add to the tragedy and sorrow and not serve the ends of justice. Such reasoning amplifies the potential grief and sense of loss of an offender’s family while diminishing the already existing grief and loss of a deceased victim’s family. An offender’s life is precious beyond measure to him and his family. A victim’s life is equally precious to him and his family. When a right to life is claimed, it must be remembered that it was the offender who took away the victim’s right to life. While the offender is alive and able to plead his case in court, his victim’s voice can no longer be heard.

40 After considering all the factors put forward by the parties, I am of the view that the death penalty is not the appropriate sentence for the convicted person for the following reasons:

(a) He was relatively young at 24 at the time of the offence in 2008 although he was not as young as the convicted person in Criminal Case No. 40 of 2009 (see [34] above);

(b) The convicted person’s choice and use of the piece of wood during the attack were, in the words of the Court of Appeal (see the Court of Appeal’s judgment at [35(b)]), “opportunistic and improvisational” and not part of a pre-arranged plan. Equally so was Galing’s use of his belt as a weapon;

(c) There was no clear sequence of events concerning the attack. There was no clear evidence that the convicted person went after the deceased from behind without warning and started hitting him on the head with the piece of wood. There was evidence that a struggle could have taken place first between Galing and the deceased before the convicted person stopped chasing Wu Jun and returned to assault the deceased.

41 I therefore re-sentenced the convicted person to life imprisonment with effect from the date of his arrest on 26 February 2008. In addition, his acts ofviolence and the resulting dire consequences warrant that the maximumnumber of strokes of the cane be imposed. Accordingly, I also ordered him toreceive 24 strokes of the cane.

Tay Yong Kwang,  Judge

Seraphina Fong, Lee Lit Cheng and Teo Lu Jia DPPs (AttorneyGeneral’s Chambers) for the prosecution;

Anand Nalachandran (Braddell Brothers LLP), Josephus Tan andKeith Lim (Patrick Tan LLC) for the convicted perso