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.
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.
2 Section 302 of the Penal Code is repealed and the following section substituted therefor:Punishment for murder302 -(1) Whoever commits murder within the meaning of section 300(a) shall be punished with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.
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.
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.
(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?