*** Relevant Channel News Asia report found below statement
Media Statement – 19/5/2016
Media Statement – 19/5/2016
MADPET CONCERNED ABOUT THE UNFAIRNESS OF THE HEARING OF APPLICATION BY
KHO JABING CHALLENGING THE VALIDITY OF A COURT OF APPEAL DECISION BECAUSE JA
PHANG WAS ON THAT CORAM.
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.
Charles Hector
For and on behalf of
MADPET (Malaysians Against Death Penalty and Torture)
Kho Jabing loses second 11th-hour appeal against execution
One day before his scheduled execution, Kho challenged the impartiality of Justice of Appeal Andrew Phang, who presided over two of his previous appeals.
- Posted 19 May 2016 16:33
- Updated 19 May 2016 16:52
Sarawakian Kho Jabing will be hanged after his appeal was dismissed. (Photo: Singapore Police Force)
SINGAPORE: The Court of Appeal has dismissed a second
eleventh-hour bid by convicted murderer Kho Jabing to escape the gallows
on Thursday (May 19). The Sarawakian had launched an appeal a day
before his scheduled execution.
Kho challenged the involvement of Justice of Appeal Andrew Phang, who has presided over two of Kho’s previous appeals – one in 2010 and another in 2013. The Malaysian’s lawyer Mr Gino Singh argued JA Phang’s involvement in the 2013 appeal essentially involved the judge deliberating over an appeal against his own decision – the one made in 2010. In both appeals, Kho was sentenced to death.
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.
Mr Singh, pointing to the Supreme Court of Judicature Act, argued JA Phang should not have presided over Kho’s appeals due to a possible conflict of interest. He added the court’s decision “might have been tainted with apparent biasness”, urging the apex court to postpone Kho’s imminent execution in the interests of justice.
CONVICTION AND SENTENCE 'INEXTRICABLE PARTS OF A WHOLE': JUDGE
Kho, 31, had been sentenced to hang in 2010 for killing a man by striking his head with a tree branch in a botched robbery attempt. The victim sustained 14 skull fractures and a brain injury and died six days later.
He appealed against the murder conviction, but his appeal was dismissed in 2011 and he was sent back to death row. JA Phang presided over this appeal.
In 2013, Kho appealed yet again after changes to the law abolishing the mandatory death penalty in certain categories of murder that allowed judges the discretion to sentence an accused to life imprisonment with caning instead. This time, Kho’s appeal was successful and he was re-sentenced to life imprisonment with 24 strokes of the cane.
But the prosecution appealed, urging the Court of Appeal to reverse the re-sentencing judge’s decision and send Kho back to the gallows. They were successful, and Kho was sentenced to death in January 2015 in a split 3-2 decision. JA Phang was involved in this appeal as well.
Kho challenged the involvement of Justice of Appeal Andrew Phang, who has presided over two of Kho’s previous appeals – one in 2010 and another in 2013. The Malaysian’s lawyer Mr Gino Singh argued JA Phang’s involvement in the 2013 appeal essentially involved the judge deliberating over an appeal against his own decision – the one made in 2010. In both appeals, Kho was sentenced to death.
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.
Mr Singh, pointing to the Supreme Court of Judicature Act, argued JA Phang should not have presided over Kho’s appeals due to a possible conflict of interest. He added the court’s decision “might have been tainted with apparent biasness”, urging the apex court to postpone Kho’s imminent execution in the interests of justice.
CONVICTION AND SENTENCE 'INEXTRICABLE PARTS OF A WHOLE': JUDGE
Kho, 31, had been sentenced to hang in 2010 for killing a man by striking his head with a tree branch in a botched robbery attempt. The victim sustained 14 skull fractures and a brain injury and died six days later.
He appealed against the murder conviction, but his appeal was dismissed in 2011 and he was sent back to death row. JA Phang presided over this appeal.
In 2013, Kho appealed yet again after changes to the law abolishing the mandatory death penalty in certain categories of murder that allowed judges the discretion to sentence an accused to life imprisonment with caning instead. This time, Kho’s appeal was successful and he was re-sentenced to life imprisonment with 24 strokes of the cane.
But the prosecution appealed, urging the Court of Appeal to reverse the re-sentencing judge’s decision and send Kho back to the gallows. They were successful, and Kho was sentenced to death in January 2015 in a split 3-2 decision. JA Phang was involved in this appeal as well.
On Thursday, JA Phang explained the difference between the
two appeals he had previously presided over. The first was an appeal
against Kho’s murder conviction, which was upheld. At the time, the
death penalty was mandatory. The second appeal, after the law had
changed and Kho had been re-sentenced to life imprisonment, considered
Kho’s culpability in killing the victim. The court ultimately decided he
was culpable enough to overturn the life sentence, sending him back to
death row for the second time.
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, urging Mr Singh to be “fair, objective and
logical” in this regard.
In a last-ditch attempt to save Kho from the gallows in November last year, his lawyer Chandra Mohan K Nair had previously filed another eleventh-hour motion
just two days before Kho’s execution date. Mr Chandra had
said his client’s appeal was “concerned with matters of fundamental
constitutional importance”, as Kho’s right to “a fair trial and fair
sentencing” had not been addressed. Kho was subsequently granted a stay
of execution.
However in a unanimous decision, Singapore’s apex court sent Kho back to death row for the second time in April this year.
In
that decision, JA Chao Hick Tin had dismissed Kho’s last-ditch attempt
to escape the gallows, calling his appeal “not a genuine application,
but an attempt to re-litigate a matter which had already been fully
argued and thoroughly considered” and adding that the apex court’s
January 2015 decision was to have been final.
Mr Singh touched on
this point on Thursday, saying the apex court had said a miscarriage of
justice would outweigh the importance of finality of proceedings or it
would “bring into question the integrity of the criminal justice system
and the judicial process itself”.
“The life of (Kho) is at stake. (The integrity of the system) can be redeemed, the (life of Kho) cannot”, Mr Singh said.
Channel
NewsAsia understands that opposition politician and lawyer Jeanette
Chong-Aruldoss filed an application for a stay of execution for Kho
Jabing on Thursday morning. Prosecutors called it an "abuse of the
system".
- CNA/mz - Channel News Asia, 19/5/2016
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