Criminal Procedure, Evidence and Sentencing

Published date01 December 2016
Publication year2016
AuthorMOHAMED FAIZAL Mohamed Abdul Kadir LLB (Hons) (National University of Singapore), LLM (Harvard); Attorney and Counsellor-at-law (New York); Director & Deputy Senior State Counsel/Deputy Public Prosecutor, Criminal Justice Division, Attorney-General's Chambers. LEE Jwee Nguan LLB (Hons) (National University of Singapore), LLM (NYU), LLM (National University of Singapore); Advocate and Solicitor (Singapore); Divisional Director (Legal Services Division), Ministry of Manpower.
Citation(2016) 17 SAL Ann Rev 382
Date01 December 2016
Reopening concluded cases – The death penalty

14.1 It is perhaps reflective of the current trends that the Court of Appeal has seen, in recent times, a marked increase in the number of challenges arising in instances where convicted individuals have been sentenced to capital punishment. Indeed, this distressing move of having multiple challenges filed one after another for the very same case was denigrated by the Court of Appeal which, quite understandably, takes “exception to such a drip-feeding approach which clearly squanders valuable judicial time”, with the court making plain that it will not countenance itself “to be used by either ingenious counsel or a determined applicant as a means for delaying the conclusion of a case”.1

14.2 Unsurprisingly, therefore, 2016 was marked by the issuance of numerous judgments by the Court of Appeal, each of which involved some form of belated challenge either on account of a subsequent variation of the facts, thereby seeking a fundamental reconsideration of the propriety of the conviction, or some variant of the contention of the unconstitutionality of the capital punishment regime itself. None of these challenges succeeded.

14.3 We turn first to a series of three judgments involving satellite litigation surrounding the conviction of one Kho Jabing for murder

under s 300(c) of the Penal Code,2 and the attendant imposition of capital punishment by the Court of Appeal on the said individual. The line of judgments surrounding the prosecution of Kho in years prior has received considerable attention in past iterations of this chapter.3

14.4 The first of these three cases is that of Kho Jabing v Public Prosecutor4 (“Kho Jabing”), a five-member-coram Court of Appeal decision that sketches out, in some detail, the applicable principles in dealing with applications for a review of a concluded criminal appeal. The facts surrounding this case had been set out in the past chapters and it may not be of much utility to set them out here once more.5 For present purposes, it will be sufficient to note that the applicant's criminal motion sought to re-open a concluded matter in which he was sentenced, by a majority of three to two before the same five-member coram of the Court of Appeal, to capital punishment.

14.5 In dismissing the application, the Court of Appeal observed that as the final appellate court in Singapore, it possessed an inherent power to reopen a concluded criminal appeal in order to prevent a miscarriage of justice. On the matter of the test to be applied in reopening such matters, the Court of Appeal concluded that such test comprised two essential components. The first is the evidential requirement of “sufficient material”. This, the court noted, meant that the material adduced in support of the application would have to be both “new” and “compelling” before the court would consider the application, with the upshot being that any application for review would fail in limine should these criteria not be satisfied. The second is that there must have been a “miscarriage of justice” occasioned before a concluded criminal appeal might be reopened.6

14.6 Each of the terms highlighted in the preceding paragraph were then unpacked by the Court of Appeal. On the constituent elements of “sufficient material”, the court observed that, in light of the fact that a review of the conviction was neither an appeal nor a rehearing and was merely intended to correct a miscarriage of justice rather than to allow the aggrieved party a second chance to rehash the same issues in the hope of achieving a different outcome, the “new” material must not have hitherto been considered at any stage of the proceedings leading to the decision under challenge and must have been material that could not,

even with reasonable diligence, have been adduced in court prior to the filing of the application for review. On the matter of when legal arguments alone would meet this threshold, the Court of Appeal noted that such criteria of non-availability would only be satisfied if the legal arguments were made following a change in the law.7

14.7 On the matter of the requirement that the material in question had to be “compelling”, the Court of Appeal observed that this is a high threshold and means that the material in question should be reliable, substantial, and powerfully probative in that it had to be capable of showing almost conclusively that there had been a miscarriage of justice. This, in turn, necessitated that the material must be “reliable” in that it possessed a high degree of cogency and was credible and trustworthy in respect of the matters to which it pertained, and had to be “substantial” and “powerfully probative” in the sense that it was logically relevant to the precise issue in dispute. Put another way, the question that the court would have to consider was whether, taken as a whole, the material in question was capable of showing “almost conclusively” that there had been a miscarriage of justice and was, therefore, “compelling” enough to warrant the exercise of the Court of Appeal's inherent power of review.8

14.8 Turning then to the secondary requirement of a “miscarriage of justice”, the Court of Appeal elucidated that this would have been occasioned where there was a manifest error and/or an egregious violation of a principle of law or procedure which struck at the very heart of the decision under challenge and, thereby, robbed it of its character as a reasoned judicial decision.9 This, the Court of Appeal noted, would be chiefly found in one of two situations. The first is where a decision on conviction or sentence is “demonstrably wrong” in the sense that there is a powerful probability that it is wrong – given the high threshold this is intended to be, it will be insufficient to merely show a real possibility that the decision is wrong.10 On matters pertaining to sentence, this exacting threshold can only be satisfied in the exceedingly rare situations where the decision has been based on some fundamental misapprehension of the law or the facts or where the error is plain on the face of the record.11 The Court of Appeal also noted that an application of this nature is usually available only to the accused and not the Prosecution, which will be absolutely precluded from applying for a review of the decision where it believes that an acquittal is unjustified or where the sentence is unjustifiably lenient based on a

fundamental misapprehension of the law or the facts.12 The second is where there is a fraud or a breach of natural justice such that the integrity of the judicial proceedings themselves have been impugned; in such an instance, given the wider public interest considerations involved, both the Prosecution and accused can apply for a review, though the court stressed that it is not necessarily going to be the case that the court will treat an application for a review from the Prosecution in the same manner as it will from an accused person.13

14.9 The Court of Appeal made two further observations of principle that are of particular significance. The first pertained to the importance of the principle of finality, with the Court of Appeal noting the impossibility of a functioning legal system should all decisions be open to constant and unceasing challenge, as well as observing that there is nothing as corrosive of general confidence in the criminal process as an entrenched culture of self-doubt engineered by abusive and repetitive attempts to relitigate decided matters.14 The second was an obiter by the court in which it commended suggestions for the Parliament's consideration of reforming the procedure and practice in relation to applications to reopen concluded criminal appeals. Noting in this regard that certain jurisdictions have erected a process for applications for leave to be filed by those seeking to revisit concluded matters, applications which can be heard on paper and disposed of without having the other party respond, the court noted that the introduction of such a leave stage for applications to reopen concluded criminal appeals will, in its view, better balance the rights and interests of all persons who make use of scarce judicial resources as this allows for unmeritorious applications to be weeded out at an early (or preliminary) stage.15

14.10 The above decision was not the last of satellite litigation pertaining to the conviction of Kho. Indeed, later in 2016, two days before the scheduled date of execution, the same individual filed an application before the Court of Appeal seeking to set aside the death sentence imposed on him on grounds of apparent bias. This was, it should be noted, the same argument made in similar terms in Kho Jabing, but which was eventually withdrawn by the applicant in Kho Jabing. In its ex tempore judgment dismissing the application, the court highlighted that this secondary application amounted to a plain abuse of process, noting that it was unacceptable for the applicant to “prolong matters ad infinitum by drip-feeding their arguments one by one

through the filing of multiple applications”.16 In dismissing the application, the Court of Appeal once again reiterated the importance of finality, urging the applicant to accept and respect the outcome from the court process and not to subject the matter to further litigation, by making following forceful but reflective riposte – “there comes a point, after the appeals have been heard and the applications for reviews have been decided, when the legal process must recede into the background and give way to the search for repose. We think that time has come”.17

14.11 Such advice to let the legal process recede into the background was not heeded. Almost immediately thereafter, Kho proceeded to file another challenge, this time filing an originating summons (that is, civil proceedings) contending that the sentence that was imposed upon him...

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