Kho Jabing v Attorney-General

CourtCourt of Appeal (Singapore)
JudgeChao Hick Tin JA
Judgment Date20 May 2016
Neutral Citation[2016] SGCA 37
Citation[2016] SGCA 37
Defendant CounselFrancis Ng, Mohamed Faizal, and Zhuo Wenzhao (Attorney-General's Chambers)
Published date25 June 2016
Plaintiff CounselAlfred Dodwell (Dodwell & Co LLC) (instructed), Chong Yean Yoong Jeannette-Florina (Archilex Law Corporation)
Hearing Date20 May 2016
Docket NumberCivil Appeal No 73 of 2016
Date20 May 2016
Subject MatterEquality 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 One originating summons was eventually withdrawn.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...

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8 cases
  • Nagaenthran a/l K Dharmalingam v AG
    • Singapore
    • Court of Appeal (Singapore)
    • 29 d2 Março d2 2022
    ...Jin [1997] 3 SLR(R) 649; [1998] 1 SLR 374 (refd) Juma'at bin Samad v PP [1993] 2 SLR(R) 327; [1993] 3 SLR 338 (refd) Kho Jabing v AG [2016] 3 SLR 1273 (refd) Kho Jabing v PP [2016] 3 SLR 135 (refd) Ladd v Marshall [1954] 1 WLR 1489 (refd) Miya Manik v PP [2021] 2 SLR 1169 (refd) Nagaenthran......
  • Nagaenthran a/l K Dharmalingam v Attorney-General and another matter
    • Singapore
    • Court of Appeal (Singapore)
    • 29 d2 Março d2 2022
    ...if they are to mean anything at all, must confer certainty and stability. As we noted further in Kho Jabing v Attorney-General [2016] 3 SLR 1273 (“Kho Jabing”) (at [2]), “no court in the world would allow an applicant to prolong matters ad infinitum through the filing of multiple applicatio......
  • Prabagaran a/l Srivijayan v Public Prosecutor and other matters
    • Singapore
    • Court of Appeal (Singapore)
    • 2 d5 Dezembro d5 2016 CM 1, CM 3 and CM 4, who were convicted and sentenced after the commencement of the Amendment Act. In Kho Jabing v Attorney-General [2016] 3 SLR 1273 at [2], we noted that “no court in the world would allow an applicant to prolong matters ad infinitum through the filing of multiple appli......
  • Iskandar bin Rahmat and others v Attorney-General and another
    • Singapore
    • Court of Appeal (Singapore)
    • 4 d4 Agosto d4 2022
    ...another matter [2021] 2 SLR 1169 at [32]–[33]. This is plainly even more so the case after an appeal. In Kho Jabing v Attorney-General [2016] 3 SLR 1273, we held that where the appellant expressly declined to adduce evidence at trial and did not take up the opportunity on appeal it was not ......
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3 books & journal articles
    • Singapore
    • Singapore Academy of Law Journal No. 2019, December 2019
    • 1 d0 Dezembro d0 2019
    ...Republic [2016] 5 SLR 536; Swissbourgh Diamond Mines (Pty) Ltd v Kingdom of Lesotho [2019] 1 SLR 263. 28 Kho Jabing v Attorney-General [2016] 3 SLR 1273; Tan Cheng Bock v Attorney-General [2017] 2 SLR 850. 29 PH Hydraulics & Engineering Pte Ltd v Airtrust (Hong Kong) Ltd [2017] 2 SLR 129; O......
  • Administrative and Constitutional Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2016, December 2016
    • 1 d4 Dezembro d4 2016
    ...269 at [62]. 5 [2016] 3 SLR 135 at [125]. 6 Kho Jabing v Public Prosecutor [2016] 3 SLR 135 at [125]. 7 Kho Jabing v Attorney-General [2016] 3 SLR 1273 at [9]. 8 [2016] 2 SLR 301 at [22]. 9 Cap 3, 2009 Rev Ed. 10 1985 Rev Ed, 1999 Reprint. 11 Cap 161, 2009 Rev Ed. 12 [2016] 4 SLR 192. 13 De......
  • Criminal Procedure, Evidence and Sentencing
    • Singapore
    • Singapore Academy of Law Annual Review No. 2016, December 2016
    • 1 d4 Dezembro d4 2016
    ...Prosecutor [2016] 3 SLR 1259 at [3]. 17 Kho Jabing v Public Prosecutor [2016] 3 SLR 1259 at [9]. 18 Kho Jabing v Attorney-General [2016] 3 SLR 1273 at [2]. 19 Kho Jabing v Attorney-General [2016] 3 SLR 1273 at [13]. 20 [2016] 3 SLR 1023. 21 [2017] 1 SLR 1. 22 [2017] 1 SLR 173. 23 Act 30 of ......

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