Media
Statement – 15/5/2016
QUESTIONABLE VALIDITY OF THE COURT OF APPEAL THAT RE-SENTENCED KHO JABING
TO DEATH REASON ENOUGH FOR IMMEDIATE STAY OF EXECUTION OF KHO JABING, NOW SCHEDULED
FOR FRIDAY 20/5/2016
-
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 JA and 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 an independent 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)
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