Kho Jabing v Public Prosecutor
Court | Court of Appeal (Singapore) |
Judge | Chao Hick Tin JA |
Judgment Date | 05 April 2016 |
Neutral Citation | [2016] SGCA 21 |
Citation | [2016] SGCA 21 |
Defendant Counsel | Francis Ng, Zhuo Wenzhao and Marshall Lim (Attorney-General's Chambers) |
Published date | 09 April 2016 |
Plaintiff Counsel | Chandra Mohan K Nair (Tan Rajah & Cheah) |
Hearing Date | 05 November 2015,23 November 2015 |
Docket Number | Criminal Motion No 24 of 2015 |
Date | 05 April 2016 |
Subject Matter | Court of Appeal,Equality before the law,Jurisdiction,Constitutional Law,Power to reopen concluded appeals,Courts and Jurisdiction,Appellate |
In our recent decision in
… It is, I believe, a matter of fundamental import that there be a visible end to the litigable aspect of the criminal process. Finality in the criminal law is an end which must always be kept in plain view. … If law, criminal or otherwise, is worth having and enforcing, it must at some time provide a definitive answer to the questions litigants present or else it never provides an answer at all. Surely it is an unpleasant task to strip a man of his freedom and subject him to institutional restraints. But this does not mean that in so doing, we should always be halting or tentative. No one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing [that] a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation on issues already resolved.
However, the cost of error in the criminal process is measured not in monetary terms, but in terms of the liberty and, sometimes, even the life of an individual. For this reason, where criminal cases are concerned, the principle of finality cannot be applied in as unyielding a manner as in the civil context, and it seems that the court should, in
In 2010, the applicant in the Present Application, Jabing Kho (“the Applicant”), was tried and convicted of the offence of murder, and was sentenced to suffer the then mandatory punishment of death: see
The Applicant duly applied to be re-sentenced. On 30 April 2013, the Court of Appeal clarified that he was guilty of murder within the meaning of s 300(
On 3 November 2015, Mr Ravi s/o Madasamy filed Criminal Motion No 23 of 2015 (“CM 23/2015”) seeking to have the Applicant’s conviction set aside on the ground that it was unconstitutional. On 4 November 2015, the Applicant applied by way of the Present Application to set aside the
At the resumed hearing of the applications on 23 November 2015, Mr Ravi applied to withdraw CM 23/2015. We granted that request, but clarified that as a result of the withdrawal, the issue of whether Mr Ravi had the
In broad terms, the Present Application raises two issues. The first is whether, and in what circumstances, the Court of Appeal may reopen its previous decision in a concluded criminal appeal, which was to have been final. The second is whether it should do so in the present case. We will discuss each issue in turn.
When should the Court of Appeal reopen its decision in a concluded criminal appeal?Applications to reopen concluded criminal appeals have burgeoned. In 2015, 11 criminal motions of this nature were filed by accused persons in the Court of Appeal alone: six seeking leave to appeal against the outcome of Magistrate’s Appeals2 and five seeking to move this court to re-examine its own decisions in concluded criminal appeals arising from decisions made by the High Court at first instance.3 Of these 11 criminal motions, eight were dismissed summarily for being wholly without merit (oftentimes without the respondent in the application concerned being called on to respond);4 one was withdrawn;5 one has yet to be heard;6 while the last (the Present Application, which was also the last criminal motion of this nature filed in this court in 2015), we reserved to consider more carefully. This figure does not include the innumerable criminal motions filed in the High Court, some of which, we have no doubt, also sought to have the High Court reopen its previous decisions in concluded Magistrate’s Appeals, there being no avenue for a further appeal against a decision made by the High Court in the exercise of its appellate criminal jurisdiction.
We do not think the present state of affairs conduces to justice. As Jackson J candidly remarked in
Prior to 2010, this court held, in a quartet of decisions, that once it had delivered its judgment in a criminal appeal, it was
In
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