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KHO JABING – Unfairness And Possible Errors in Thursday (19/5/2015) hearing

MADPET concerned about the unfairness of the hearing of application by Kho Jabing challenging the validity of a Court of Appeal decision because Justice Andrew Phang was on that coram.

By Charles Hector, for and on behalf of  MADPET (Malaysians Against Death Penalty and Torture)

Stay the execution of Kho Jabing - Have another Court of Appeal hear the appeal on sentencing

MADPET(Malaysians Against Death Penalty and Torture) was appalled by the fact that it was reported in the media that Andrew Phang Boon Leong JA  was in the coram on Thursday(19/5/2015) that heard the motion that was, amongst others, about  the same Andrew Phang ‘s presence in the coram of the re-sentencing Court of Appeal, where it was alleged that he should not have been in that Court of Appeal given the fact that he had previously sat on the coram of the Court of Appeal that heard the appeal on conviction in 2011.

Channel News Asia, in their report stated that, ‘Kho’s last-minute motion ahead of his imminent execution was heard before five judges sitting in the Court of Appeal – including JA Phang, who disputed Kho’s claims of biasness.’(Channel News Asia, 19/5/2016).

Allegedly, Kho’s lawyers’ basis for the application was that   ‘…JA Phang should not have presided over Kho’s appeal on re-sentencing due to a possible conflict of interest. He added the court’s decision “might have been tainted with apparent biasness”…’.

MADPET is of the view that in such an application, it would not have been proper for JA Phang himself to be part of the coram.  It can easily give rise to a situation that the affected judge may be pre-occupied in demonstrating that he did no wrong – hence forgetting to be simply the independent and impartial judge hearing the motion/application as it should be.

The news report also allegedly indicated that JA Phang, was not merely in Thursday’s application’s coram, but was also played an active role trying to justify that there was nothing wrong in his being in the Court of Appeal that heard the appeal from re-sentencing High Court. If so, would that now raise doubts about the fairness of that hearing on Thursday itself?

It was reported that’ JA Phang said considering Kho’s conviction and sentence were part and parcel of the court’s work. “Conviction and sentence are inextricable parts of a whole. We cannot divorce them,” he said.’

MADPET’s view is that such an argument that was allegedly advanced by  JA Phang may apply for any other ordinary criminal trial, but certainly not for this case, which resulted in a necessary review of death penalty cases for murder, and re-sentencing, which came about by exceptional reason of  the fact a  new law was enacted by the lawmakers of Singapore – the Penal Code (Amendment) Act 2012.

It must be pointed out that the new law is very specific, as to when it can be presided/heard by same Judge be it at the High Court or the Court of Appeal, who heard the trial at first instance, or original Appeals on conviction.

With regard to the judges of the Court of Appeal, one needs to refer to section 4(6) Penal Code (Amendment) Act 2012

(6)  If —

(a)….

(b) any Judge of Appeal, having heard an appeal relating to an offence of murder, is unable for any reason to affirm the sentence or remit the case back to the High Court under subsection (5),

any other Judge of the High Court or any other Judge of Appeal, respectively, may do so. 

It is clear that JA Phang, who was in the coram of the Court of Appeal that considered the original appeal against conviction, should or could  have only been in the coram of the Court of Appeal that affirmed the sentence, hence deciding that the case will not be remitted back to the High Court for re-sentencing; OR in the coram of the Court of Appeal that remitted the case back to the High Court for re-sentencing.

There is no provision in the Act that allows for JA Phang to sit in the coram of the Court of Appeal that hears  an appeal on the decision of re-sentencing High Court.

MADPET, is of the opinion that when an Act of Parliament specifically provides for when exactly a judge in Court of Appeal that considered the original appeal on conviction could sit, it is reasonable to state that Parliament never intended JA Phang to sit in the coram of the Court of Appeal that heard the appeal from the re-sentencing High Court’s decision, or any other applications to the Court of Appeal by Kho Jabing. If he could, it would reasonably been provided for in the Act.

It is certainly unsafe to discuss and provide an opinion based on a news report, but given the fact that Kho Jabing may be executed  in a few hours, in the interest of justice, MADPET believes we have duty to raise now these relevant points we consider relevant  – which, if correct, may render the decision to reject this recent application of Kho Jabing  this Thursday(19/5/2016) possibly wrong in law. No one wants a man to be hanged to death wrongly because of a mistake or an error in law.

MADPET applauds Singapore decision to return sentencing discretion to judges for murder, by the enactment of Penal Code (Amendment) Act 2012.

Of concern, is the fact that the prosecution and the accused, never had the opportunity to adduce evidence and make submissions relevant to this new law during trial, and this is a fact that has been acknowledged and/or is obvious from the Kho Jabing judgments. We see that it is an onerous, nay impossible, task that the judges in the Kho Jabing’s  re-sentencing High Court, and the Court of Appeal that heard the appeal, had to go through in determining whether there was sufficient evidence to maintain the death penalty, or commute the sentence to imprisonment and caning.

As such, it would be reasonable and just for Singapore to commute the sentences of all those currently on death row for murder. Alternatively, the only other way is to have a re-trial of all these cases.

MADPET urges Attorney General/Public Prosecutor to consider the points we make here, do the needful, and immediately stay the execution of Kho Jabing and/or any others on death row for murder.

MADPET urges Singapore to immediately commute the sentence of all those on death row for murder, including Kho Jabing.

MADPET urges Singapore to abolish the death penalty.