What is Fair Trial, Independent Judge ...for Singapore? Kho Jabing Life At Stake?

Singapore has a difficult choice to make very soon on whether Kho Jabing will be executed tommorow, Friday(20/5/2016) or not? 

Administration of Justice in Singapore is on trial as the world watches...

Well, the basis of his death sentence now is the decision on the Court of Appeal(re-sentencing Court of Appeal)[Criminal Appeal No 6 of 2013] - but the problem that has emerged now is that one of the judges in the Court of Appeal that overturned the Re-sentencing High Court's decision, and re-sentenced Kho Jabing to death was a judge that also did sit in an earlier Court of Appeal in 2011 [Court of Appeal in Kho Jabing and another v Public Prosecutor [2011] 3 SLR 634] that heard the appeal on conviction, and affirmed the said conviction. The said judge was Andrew Phang Boon Leong JA

See Relevant Post:

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

In brief, that Judge can no longer be said to be 'independent' - Why? Because he had certainly prior 'personal knowledge of the facts of the case'... which is one of the many usual grounds why a judge should recuse himself... 

Why? Because we require 'independent'...truly independent, impartial and unbiased judges sitting to hear a case or an appeal... A judge who sat on an earlier appeal(or case) that decided that Kho Jabing convictions for murder is maintained, whilst deciding the co-accused conviction be varied to a lesser offence not murder - certainly is most aware of the 'facts of the case'...and most likely  would have already held an opinion about Kho Jabing..or the case. Judges are human beings...and it would so difficult to not be affected..

Most commonly such motions for recusal are predicated upon a claim that the judge is biased in favor of one party, or against another, or that a reasonable objective observer would think he might be.  But such motions are also made on many other grounds, including the challenged judge’s:

            ●          Interest in the subject matter, or relationship with someone who is interested in it

            ●          Background or experience, such as the judge’s prior work as a lawyer

            ●          Personal knowledge about the parties or the facts of the case

            ●          Ex parte communications with lawyers or non-lawyers

            ●          Rulings, comments or conduct [Source: A quick internet search]

Now, there was the possibility for the said Judge to raise this matter, and ask if Kho Jabing and/or the Prosecutor had any problem with him still sitting in the coram of the Court of Appeal, and if the parties agreed to this, it may be OK.

A judge who has a personal conflict of interest in the case may nonetheless stay on the case instead of recusing herself if all the parties and the judge understand the conflict, but agree the judge should stay on anyway.  In these cases, which are not common, the parties and the judge usually put their decision on the record in case one of the parties tries to appeal later on the grounds that the judge should have recused herself. 

But then, this is criminal case - a death penalty case, and here you have a Judge who had previously decided against Kho Jabing and sent him to hang. If Kho Jabing, and/or his lawyers had agreed to him remaining in the coram, I would be most shocked and wonder whether something was amiss... 

Now, the prosecutor who has the the obligation to 'uphold the cause of justice', even though he may feel that is favourable for their appeal to keep this judge in the coram is duty bound to serve justice, and should rightly have objected to his continuous presence in the coram. Remember, a prosecutor is duty bound to bring everything relevant to the attention of the court, even if it is evidence favourable to the accussed - their duty is to ensure justice be done - not to 'win a case'.

In any event, this issue was never raised by the affected Judge himself or the prosecutor or Kho Jabing (or his lawyer) or any of the other judges on the coram - that, by itself, is a mystery to me...

Now, if there is a question whether a judge should remain on the coram raised, and the final outcome is that the judge remains in the coram - then reasonably that fact must be reflected in the court's Judgment. However, if the Judge removes himself - well, then maybe, there is no need to reflect this issue in the judgment.

In any event, the ignoring of this fact simply by reason of saying that since Kho Jabing failed to protest earlier before the Court of Appeal sat, heard the case and delivered judgment will be LAME and grossly unjust - since this is a case of man who is going to be hanged to death. JUSTICE MUST BE DONE AND SEEN TO BE DONE.

It should never have happened in the first place...

The fault is on the person/s who chose the coram of this Court of Appeal (how could they have not seen this obvious fact - that this Judge had heard previously another case involving the same Kho Jabing - nay the same case in fact that decided on the appeal against conviction). Surely, there is no shortage of judges in Singapore to sit in a coram of the Court of Appeal.

The fault is on the said Judge - for surely, if others missed this fact, he would have known, and being a Judge, he should reasonably been aware of the requirement of independence, impartiality and bias-free judge. Remember, it is not a question of whether he thought he could be independent - the question is also a question of public perception...  

The fault is also on the fellow Judges on the Coram, the Prosecutor and Kho Jabing(and his lawyers) - for none of them seem have seen the wrong ...

Thankfully, finally this has come to light ..

What is worse in this Kho Jabing case, is that re-sentencing Court of Appeal clearly did not just look and considered the Judgment and/or Notes of Proceedings/Evidence of the Re-sentencing High Court Judge >>>BUT THEY THEMSELVES WENT AND LOOKED AGAIN at the Grounds(and possibly the Notes of Proceedings/Evidence) of the Court that first convicted Kho Jabing,  and also those of the Court of Appeal that heard the appeal from conviction  - and this was the very court in which Andrew Phang Boon Leong JA was also sitting on. The Coram there was Chan Sek Keong CJ, Andrew Phang Boon Leong JA and V K Rajah JA

We also note that the Re-sentencing Judge did not make any findings as to the number of times the Respondent had struck the deceased. There are however a number of observations concerning this in the CA (Conviction) Decision. After considering the statements given to the police by Galing, the CA (Conviction) observed at [25] to [27] that:...(para 53)

The paragraphs above, read together, clearly show that the CA (Conviction) found that the Respondent had struck the deceased on the head with severe force more than two times. Of course, as earlier explained, neither the CA (Conviction) nor the Trial Judge was required to make a specific finding as to the exact number of times the Respondent had struck the deceased on the head. We also note that the Trial Judge (at [24] to [28] of his decision) had made similar observations as to the medical evidence before him, but did not conclusively state the number of strikes the Respondent had inflicted upon the deceased:..(para 56)

Hence, from the above quotes(just examples), it is obvious that re-sentencing Court of Appeal was not just reviewing the findings of the re-Sentencing High Court Judge - but was going back and perusing carefully the findings of the first High Court that convicted Kho Jabing, and also the Court of Appeal that considered and decided on the appeal against conviction - which  Andrew Phang Boon Leong JA was part of the coram.

Out of curiousity, I checked how many times reference reference was made to 'CA (Conviction)' in the re-sentencing Court of Appeal's Judgment - well it came up more than 30 times..

They wanted to find something - i.e. how many times did Kho Jabing strike the deceased and how...something that was irrelevant earlier before the law was amended, because now ..the what the Court said was " Central to our inquiry is the manner in which the Respondent had committed the murder." - that really was the main factor that the Court was going to determine whether Kho Jabing hangs or spends his life in prison... 

Now, what the court should look at ...or the 'Guiding Principles' were being and was determined by the Court of Appeal - of, course the re-sentencing High Court was not aware of this...

The effort to determine facts ... or even 'Guiding Principles' - now by a Court in dealing with an actual case, I wonder whether it is even right...maybe, it should have been considered and determined by some Judicial Committee...

My apologies, I side tracked...

HOW DOES A COURT OF APPEAL WITH A CORAM OF 5 DECIDE? 

Do they hear the submissions, consider the submissions and make decisions on their own without discussing with one another?

Well, they do not - they do sit and discuss the case...and even the points of law....and so  Andrew Phang Boon Leong JA is also involved in these discussions. Was he able to forget all that happened in the CA(Conviction) - or was he now the 'expert' of what really happened in the CA(Conviction) when it came to this coram's discussion .. we will never know? But it matters, not - the Court of Appeal should not have even been put in that position in the first place...

The discussion and consultation of judges in the coram results in - Chao Hick Tin JA (delivering judgment of the majority consisting of Andrew Phang Boon Leong JA, Chan Seng Onn J and himself)..

Of course, some judges will not agree with majority - and so, in this case we also have judgments written by  other judges, usually on matters they disagree. Or it can be, how they took a different path to come to the same conclusion. 

In this case, of the re-sentencing Court of Appeal, 2 judges wrote dissenting judgments - they did not feel that Kho Jabing's sentence should be death. They agreed with some of things that the 3 other judges said, this is also reflected in the judgment.., for example:-

 

The difference in views between the majority and the minority is a matter of fact and not of law. As a matter of law, there is a concurrence in views on the test that is to be employed in determining when the death penalty should be imposed. It is common ground, however, that the disagreement is one of fact. Particularly, we note that the minority found that there was insufficient evidence to establish beyond reasonable doubt that the Respondent had hit the deceased on the head at least three or more times, or that the Respondent had hit the deceased with such huge force as to cause most of the fractures in the deceased’s skull. Given this insufficiency, the minority was of the opinion that therefore, the threshold of the test (ie, whether the Respondent had acted in a way which exhibits viciousness or a blatant disregard for human life), had not been crossed.(para 74)

 

The point of disagreement was whether,  'the Respondent had hit the deceased on the head at least three or more times, or that the Respondent had hit the deceased with such huge force as to cause most of the fractures in the deceased’s skull.'

Is it even possible to determine this question because establishing this one way or the other was never in the mind of the prosecution and/or the accused in the trial of first instance. 

So, should the re-sentencing High Court or Court of Appeal try to even 'guess' from what happened in the Court of first instance? If they find it, it is maybe by luck...and should that determine whether one is to be sentenced to death or otherwise?

One option will be a RE-TRIAL - not merely a return of the case to High Court for re-sentencing. A RE-TRIAL will ensure that all these relevant evidence and/or submissions are made. Failing which, in my humble opinion, all persons now on death row for murder should have their sentence commuted.  

SO, WHAT DO WE DO NOW WITH THE COURT OF APPEAL(RE- SENTENCING) - THE WAY FORWARD

Now, what has been discovered in the Re-sentencing Court of Appeal - the presence of  Andrew Phang Boon Leong JA is material, not just for Kho Jabing but also the administration of justice in Singapore. 

Singapore and/or the Public Prosecutor may try to 'cure' this wrong to possibly 'save face' (WRONG motive, in my opinion)  OR they can do the right thing as it has serious implications for the future. What is the meaning 'to be tried by an INDEPENDENT, IMPARTIAL AND UNBIASED judge'? What is Singapore's understanding by the term  'INDEPENDENT,IMPARTIAL AND UNBIASED' Judge?

Remember also that this is a Criminal Case - and Death Penalty is involved.

I see no problem, if required, to have a new Court of Appeal convened to re-hear the appeal by the Prosecution.

Being a lawyer myself, I am bound to uphold the cause of justice without fear or favour. What I see, if not highlighted, may result in a great injustice and a young man may be hanged..

I hope the Attorney General of Singapore/Public Prosecutor, even if Kho Jabing's lawyers do not, will file the necessary application to allow the Court to consider this important point, and in the interim stay the execution of Kho Jabing.

I hope the President of Singapore will intervene and stay the execution - better still commute the sentence of Kho Jabbing.

This is a matter that cannot be rushed - there must be time for all parties to prepare properly, so that all relevant authorities and arguments can be before the court when it decides on this issue.

I apologize, and I have been forced to rush this opinion given the fact that Kho Jabing's is scheduled for execution tommorow(20/5/2016).

If there was more time, I would, of course, be more substantive in my arguments, and may also be able to present relevant authorities that ought to be considered...

This is merely my opinion, ...a rushed opinion at that.