Kho Jabing v Attorney-General

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 20 May 2016
• Neutral Citation: [2016] SGCA 37
• Date: 20 May 2016
• Docket Number: Civil Appeal No 73 of 2016
• Published date: 25 June 2016
• Plaintiff Counsel: Alfred Dodwell (Dodwell & Co LLC) (instructed), Chong Yean Yoong Jeannette-Florina (Archilex Law Corporation)
• Hearing Date: 20 May 2016
• Defendant Counsel: Francis Ng, Mohamed Faizal, and Zhuo Wenzhao (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Subject Matter: Equality before the law,Res judicata,Right to life and personal liberty,Fundamental liberties,Abuse of process,Protection against retrospective criminal laws,Constitutional Law

Chao Hick Tin JA (delivering the judgment of the court ex tempore):

We last saw the appellant yesterday. He had attended before us for the urgent hearing of his second application to set aside the sentence of death imposed on him. That application proceeded by way of a criminal motion to reopen a concluded criminal appeal and it had been filed on Wednesday evening. We heard his application and we dismissed it. After we delivered judgment in that matter, we learnt that yesterday morning – even before we had urgently convened to hear his second application – he had filed two separate originating summonses in the High Court seeking a series of declarations that various provisions in the Penal Code (Cap 224, 2008 Rev Ed) and the Penal Code (Amendment) Act 2012 (Act 32 of 2012) (“Amendment Act”) are unconstitutional. One originating summons was eventually withdrawn. We will come to the details shortly, but it suffices to say for now that he seeks these declarations in order that he might obtain a stay of execution of the sentence of death that is to be carried out today. Once again, an urgent hearing was convened and a Judicial Commissioner heard arguments late into the evening and at about 9.00pm last night, the Judicial Commissioner dismissed the application. An urgent appeal was filed at 10.19pm the same night. This is the appeal now before us.

This case has been about many things. But today, it is about the abuse of the process of the court. In a 19th century decision of the House of Lords called The Rev. Oswald Joseph Reichel, Clerk (Pauper) v The Rev John Richard Magrath, Provost of Queen’s College, Oxford University (1889) 14 App Cas 665 at 688, Lord Halsbury LC said that

… it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again.

This is precisely what has happened here. The applicant has tried twice to obtain relief by engaging the criminal jurisdiction of this court. After his applications were dismissed, he has gone away and sought relief by means of a civil action. This cannot be allowed. Yesterday, we said that no court in the world would allow an applicant to prolong matters ad infinitum through the filing of multiple applications. This principle applies here. And it applies with greater force because what the appellant seeks to do is to use the civil jurisdiction of the court to mount a collateral attack on a decision made by the court in the exercise of its criminal jurisdiction. Indeed, what the appellant has tried to do is even worse, for he has come to this court presenting arguments which are largely the same as, if not identical with, the arguments he presented in his criminal motions. What the appellant has done today, if allowed, would throw the whole system of justice into disrepute.

We will return to these points in a moment. But first, we propose to deal with a preliminary matter. When Mr Dodwell appeared before us, he sought to impress upon us that this appeal concerns only the decision of the Judicial Commissioner not to grant an interim stay. He therefore submits that there is no basis for us to consider the substantive merits of the application. We disagree. In the course of oral arguments, Mr Dodwell referred to the decision of the Privy Council in Thomas Reckley v Minister of Public Safety and Immigration and others [1995] 2 AC 491. There, the Privy Council was asked to grant a stay of a scheduled execution pending the determination of an eleventh hour constitutional challenge. The Privy Council said, and here we quote (at 496H-497A):

Their Lordships accept that, if the constitutional motion raises a real issue for determination, it must be right for the courts to grant a stay prohibiting the carrying out of a sentence of death pending the determination of the constitutional motion. But it does not follow that there is an automatic right to a stay in all cases. If it is demonstrated that the constitutional motion is plainly and obviously bound to fail, those proceedings will be vexatious and could be struck out. If it can be demonstrated to the court from whom a stay of execution is sought that the constitutional motion is vexatious as being plainly and obviously ill-founded, then in their Lordships' view it is right for the court to refuse a stay even in death penalty cases.

We therefore hold that the merits of the present originating summons are clearly relevant to this appeal. We turn to summarise the appellant’s arguments. He has raised...