“The five United Nations General Assembly Resolutions on the death penalty, the first being in 2007 and the fifth being on 2014, also refers.”
The Singapore Government, President, Attorney-General/Public Prosecutor and/or the Judiciary can and must take note of serious concerns, irrespective of whether there is any application in court by Kho Jabing, stressed MADPET spokesman Charles Hector in a statement. “They should immediately stay the planned execution of Kho Jabing in the interest of justice.”
The questionable validity of the Court of Appeal that reversed the High Court decision and re-sentenced Kho Jabing to death, also calls for an immediate stay of execution of Kho Jabing, which is now allegedly scheduled for this Friday, added the NGO.
Briefly, MADPET was 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.
Having perused the relevant judgments, MADPET discovered that Andrew Phang, one of the five judges who sat in the Court of Appeal (Criminal Appeal No 6 of 2013) that sent 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.
It cited Article 10 of the Universal Declaration of Human Rights which 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”.
Alternatively, even if Andrew Phang’s vote was not to be taken into consideration, said MADPET, 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 and not death.
Another concern with regards to Kho Jabing’s case, was that when the case was sent to the High Court for re-sentencing, the judge who heard and considered the re-sentencing was not the High Court judge who originally heard and convicted Kho Jabing.
The 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 Kho Jabing’s case, the original trial judge had retired, and hence another judge heard the re-sentencing case, reminded MADPET. “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 that 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-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”, continued the NGO. “The law before the amendment provided only the mandatory death penalty for murder (Section 302).”
Under the amendment that came into effect, not only was there now discretion of the court with regards to sentencing i.e. death penalty or imprisonment with caning, but also a consideration of other matters including mental capacity.