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Clemency letter for Kho Jabing: “No reason why the prosecution should appeal against the life sentence imposed”

Below is a letter seeking clemency for Kho Jabing, a Malaysian sentenced with death sentence from  President. It was written before the date for execution was set, which is this Friday, 6 Nov and sent on 3 November 2015.

Your Excellency

Clemency for Kho Jabing, aged 31

We, the undersigned, are deeply disturbed and dismayed that a clemency petition for 31-year-old Kho Jabing was rejected on 19 October 2015. We feel that Kho Jabing, who is a native of Sarawak and who came to Singapore to work as a manual worker, is deserving of our compassion and mercy. We urge Your Excellency to spare his life.

Kho Jabing is the only son of his mother who lives in Sarawak and is too poor to visit him in prison since he was arrested in February 2008. His father died while he is in prison. The loss of Jabing will have a huge impact on his mother who is already suffering from health problems. To hang him now is not right for many reasons. We will plead for clemency solely from the criminal justice aspect.

Singapore is proud, and rightly so, for its administration of fair justice. In Kho Jabing’s case, nothing seems right from the very beginning.

The facts that were not disputed were that Kho Jabing, Galing Anak Bujat, and three friends were in Tiong Bahru on 17 February 2008. They had intended to rob persons they knew. But the plan did not come to fruition because their prospective victims were not at their worksite. Kho Jabing and his friends then went for a drink. They consumed Narcissus Ginseng Wine Tonic.

After drinking, Kho Jabing and his friends decided to go to Geylang. It is not clear whether they intended to rob anyone in Geylang but it was there that Kho Jabing and Galing Anak Bujat were involved in attacking and robbing two Chinese workers. One of them, Cao Ruyin was injured in the process and his handphone was taken by Galing. (Cao died of his injuries later.) They then went to meet their three friends at a coffee shop further down the road. Galing sold the mobile phone for $300 and each of them received $50 with the remaining $50 being used to pay for more drinks at the coffee shop.

Despite the fact that the mobile of the deceased was robbed and in the hands of one of Kho Jabing’s friends, the police took six days to arrest him and Galing. By that time presumably, they were no longer in any intoxicated state. The two were charged for murder.

The trial judge convicted both Kho Jabing and Galing Anak Bujat and sentenced them to death on 30 July 2010. They appealed.

Before the Court of Appeal [CA (Conviction)] (see http://www.singaporelaw.sg/…/14573-kho-jabing-and-another-v…) comprising Chan Sek Keong CJ, Andrew Phang Boon Leong JA and V K Rajah JA on 24 May 2011, the charge for Galing was reduced to robbery with hurt and he was sentenced to 18.6 years imprisonment and 19 strokes of the cane. Kho Jabing was sentenced to death.

In 2012, the Penal Code was amended to allow limited discretion to judges in capital cases. They could hand down life sentences with caning should circumstances warrant. All death row inmates were allowed to have their death sentences reviewed by a High Court Judge. It was thus with the hope that the judge would commute the death sentence to life imprisonment that Kho Jabing filed the application.

On 18 November 2013, Kho Jabing appeared before Justice Tay Yong Kwang for re-sentencing under the new law. It was revealed at the hearing that the Narcissus Ginseng Wine Tonic, which Kho Jabing and his friends were consuming on that fateful day, had been classified by the Agri-Food and Veterinary Authority of Singapore as a product that contains excessive levels of methanol in 2009. Counsel submitted that Narcissus Ginseng Wine Tonic could have caused methanol poisoning and affected Kho Jabing’s mental state. As the re-sentencing judge, Tay Yong Kwang rightfully rejected this submission of methanol poisoning since it was not raised at the trial as well as the appeal before the Court of Appeal [CA (Conviction)] in 2011. Nevertheless, Tay Yong Kwang J re-sentenced (see http://www.singaporelaw.sg/…/15426-public-prosecutor-v-kho-… Kho Jabing) to life imprisonment and 24 strokes of the cane. Justice Tay took into consideration the age of Kho Jabing (he was then 24 years old) and the weapon he used to attack the victim, which was a piece of wood he had picked up from the pavement. He described the attack on the deceased as “opportunistic and improvisational” and not part of a pre-arranged plan. His last reason was that there was no clear sequence of events concerning the attack on the deceased.

The prosecution appealed against this exercise of discretion. We find this disturbing because from the judgement of Tay Yong Kwang J, it appeared that he was not acting as a trial judge but rather as a sentencing judge, receiving submissions and hearing mitigating factors and deciding whether the applicant deserved life or death. There is no reason why the prosecution should appeal against the life sentence imposed on Kho Jabing which to our mind is already a very harsh sentence for a robbery gone wrong.

The appeal was heard before a five judge court – Chao Hick Tin JA, Andrew Phang Boon Leong JA, Woo Bih Li J, Lee Seiu Kin J and Chan Seng Onn J.

Kho Jabing was again sentenced to death by a majority judgement i.e. three out of five judges in the Court of Appeal on 14 Jan 2015. (see http://www.singaporelaw.sg/…/15869-public-prosecutor-v-kho-…) They were Chao Hick Tin JA, Andrew Phang Boon Leong JA and Chan Seng Onn J. Two judges, Lee Seiu Kin and Woo Bih Li JJ, delivered dissenting judgements.

Justice Andrew Phang Boon Leong was one of the three appeal court judges in CA (Conviction) who condemned Kho Jabing to death in 2011. He should therefore have recused himself from the bench. He may think that he will not let his earlier decision affect his thoughts in re-deciding Kho Jabing’s fate. But this is not good enough because as the common saying goes: “Not only must Justice be done; it must also be seen to be done."

As it turned out, the majority judgement in this final Court of Appeal were clearly influenced by the judgement of the Court of Appeal CA (Conviction). The majority held the view that it should accept the findings of fact of the CA (Conviction) unless such findings were absent and/or ambiguous. [See paras 76 and 77 of the judgement delivered by Chao Hick Tin JA].

We are deeply troubled by the comments made by the majority judges, particularly para 78, part of which we quote:

“… the minority have embarked on a total reconsideration of all the findings of fact made by the CA (Conviction); they have, in effect, not only re-opened as well as questioned those findings but also sought to reverse them. Indeed, if the analysis in these judgements is taken to its logical conclusion, there might be at least a strong case for finding that the Respondent ought not to have even been convicted under s 300(c) in the first place…”

The two dissenting judges, Lee Seiu Kin and Woo Bih Li held the view that the Court of Appeal is “entitled to revisit any findings of fact made in the CA (Conviction) decision in view of the difference in the nature of the inquiry then and now” [para 204 of Woo Bih Li J’s judgement].

As members of the public, we are of the opinion that it is wrong for Andrew Phang Boon Leong JA to hold the view that the court cannot re-examine the findings of facts of the CA (Conviction) of which he was one of the three judges of appeal. By doing so, he is upholding his own judgement. He has clearly revealed a preference towards his own judgement and is therefore biased.

We are impressed with the reasoning of dissenting judges, Lee Seiu Kin and Woo Bih Li. We agree with them that as members of the five judge Court of Appeal, they have every right, indeed the duty to scrutinise the evidence recorded at the trial. They are deciding on the fate of a human being. The Court of Appeal has the same standing and status as the Court of Appeal CA (Conviction). No stone should be left unturned. Indeed, in deciding the fate of Kho Jabing, we would have thought that the benefit of every doubt should be given to a man who has been on death row for more than six years and who had earlier been given a life sentence with caning. We bear in mind too that Justice Tay Yong Kwang who had presided at the resentencing of Kho Jabing had also decided that he deserves to live. There are therefore three judges who are of the view that Kho Jabing should be given a life sentence and three judges who thought otherwise. The benefit of life should therefore be given to Kho Jabing.

We urge Your Excellency to be merciful and to commute the death sentence of Kho Jabing to one of life. Our judicial system is the best in the world. We cannot and should not allow this case to tarnish this image. To us, it is a clear case of bias because the judgement of the majority reveals this when the majority judges refused to review findings of fact made in the CA (Conviction) decision.

Yours sincerely

Teo Soh Lung
Phyllis Tan Poh Lian
Han Li Ying, Kirsten
Pak Geok Choo
Tan Tee Seng
Chan Wai Han
Chng Suan Tze
Wong Souk Yee
Heok Kay Heng, Adrian
Teo Eng Seng
Salbiah binte Ahmad
Hong Lysa
Leila binte Abdul Rahman
Jean Mary Marshall

Cc Prime Minister: [email protected]
Cc Minister for Home Affairs & Minister for Law: [email protected]