Kho Jabing v Attorney-General
Jurisdiction | Singapore |
Court | Court of Appeal (Singapore) |
Judge | Chao Hick Tin JA |
Judgment Date | 20 May 2016 |
Neutral Citation | [2016] SGCA 37 |
Citation | [2016] SGCA 37 |
Defendant Counsel | Francis Ng, Mohamed Faizal, and Zhuo Wenzhao (Attorney-General's Chambers) |
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 |
Docket Number | Civil Appeal No 73 of 2016 |
Date | 20 May 2016 |
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 |
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 One originating summons was eventually withdrawn.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
… 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.
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
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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