Kho Jabing v Public Prosecutor

• Jurisdiction: Singapore
• Court: Court of Three Judges (Singapore)
• Judge: Chao Hick Tin JA
• 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
• Docket Number: Criminal Motion No 24 of 2015
• Plaintiff Counsel: Chandra Mohan K Nair (Tan Rajah & Cheah)
• Defendant Counsel: Francis Ng, Zhuo Wenzhao and Marshall Lim (Attorney-General's Chambers)
• Hearing Date: 05 November 2015,23 November 2015
• Published date: 09 April 2016

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

In our recent decision in The Royal Bank of Scotland NV (formerly known as ABN Amro Bank NV) and others v TT International Ltd (nTan Corporate Advisory Pte Ltd and others, other parties) and another appeal [2015] 5 SLR 1104 (“TT International”) at [185] and [215], we explained that the principle of finality is an integral part of justice. Judicial decisions, if they are to mean anything at all, must confer certainty and stability. People must be able to order their affairs according to the settled conviction that the last word of the court is the last word, and that the last full stop in a written judgment is not liable to be turned into an open-ended and uncertain ellipsis. As Harlan J said in Mackey v United States 401 US 667 (1971) at 690–691:

… 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 exceptional cases, be able to review its previous decisions where it is necessary to correct a miscarriage of injustice. The question would then be this: when do these conditions obtain? In the present criminal motion (“the Present Application”), we confront this very issue.

The facts

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 Public Prosecutor v Galing Anak Kujat and another [2010] SGHC 212 (“HC (Conviction)”) (the said Galing Anak Kujat in this case report was the Applicant’s co-accused at the trial). The Applicant’s appeal against his conviction was dismissed in 2011 (see Kho Jabing and another v Public Prosecutor [2011] 3 SLR 634 (“CA (Conviction)”)). Following the enactment of the Penal Code (Amendment) Act 2012 (Act 32 of 2012) (“the 2012 Amendment Act”), all persons who commit the offence of murder, save for those who commit murder within the meaning of s 300(a) of the Penal Code (Cap 224, 2008 Rev Ed) (“the PC”), may be sentenced to a term of life imprisonment and caning instead of being sentenced to death. Crucially, the 2012 Amendment Act also provided that all persons who were convicted of murder before the entry into force of the Act could apply to be re-sentenced under the new sentencing framework.

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(c) of the PC and remitted the matter to the High Court for a fresh sentence to be passed. On 14 August 2013, a High Court judge (“the Re-sentencing Judge”) re-sentenced the Applicant to a term of life imprisonment and 24 strokes of the cane (see Public Prosecutor v Kho Jabing [2014] 1 SLR 973 (“HC (Re-sentencing)”)). The Prosecution appealed and the matter came before us. On 14 January 2015, we allowed the Prosecution’s appeal by a majority of 3:2, and substituted the sentence of life imprisonment and caning with a sentence of death (see Public Prosecutor v Kho Jabing [2015] 2 SLR 112) (“CA (Re-sentencing)”)). The Applicant then petitioned the President of the Republic of Singapore for clemency, but his application was rejected, and on 19 October 2015, the President ordered that the sentence of death be carried into effect on 6 November 2015.¹

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 sentence of death imposed on him. The Attorney-General was named as the respondent in CM 23/2015, while the Public Prosecutor was named as the respondent in the Present Application. Both applications were scheduled for hearing before us on an urgent basis, and we heard them on the morning of 5 November 2015. At the start of the hearing, counsel for the Applicant, Mr Chandra Mohan K Nair, informed us that he had only been instructed the day before and therefore had not had sufficient time to prepare his client’s case. In the circumstances, we thought it fair and prudent to adjourn both applications, and ordered that the sentence of death imposed on the Applicant be stayed pending their determination.

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 locus standi to bring the application (the Public Prosecutor contended that he did not) did not arise for decision, and further, that we expressed no views on that issue. We then heard Mr Mohan on the merits of the Present Application and reserved judgment.

The issues

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 Brown v Allen 344 US 443 (1953) at 537, “[i]t must prejudice the occasional meritorious application to be buried in a flood of worthless ones”. We are still paradigmatically a one-appeal jurisdiction. The filing of unmeritorious applications to reopen concluded criminal appeals takes up valuable resources which can and should go towards the disposal of cases which are coming up on appeal for the first time. For this reason, we propose to lay down some guidelines to explain when, and in what circumstances, this court should reopen a concluded criminal appeal. First, we will examine the way in which this issue has developed in our jurisprudence. Second, we will consider the position in other jurisdictions in search of guiding principles which may be used to develop a coherent system in Singapore. Finally, we will gather up the threads of our analysis and distil certain guidelines for application in future cases.

The development of the Court of Appeal’s power of review

Prior to 2010, this court held, in a quartet of decisions, that once it had delivered its judgment in a criminal appeal, it was functus officio and had no jurisdiction to reopen the matter and reconsider its substantive merits: see Abdullah bin A Rahman v Public Prosecutor [1994] 2 SLR(R) 1017 (“Abdullah”), Lim Choon Chye v Public Prosecutor [1994] 2 SLR(R) 1024, Jabar bin Kadermastan v Public Prosecutor [1995] 1 SLR(R) 326 and Vignes s/o Mourthi v Public Prosecutor [2003] 4 SLR(R) 518 (“Vignes”). These cases will be collectively referred to hereafter as “the Vignes line of decisions”. The reason given was that once this court had heard and disposed of an appeal, its statutorily-conferred appellate jurisdiction ceased; and as a creature of statute, it did not, in the absence of specific statutory authorisation, have any jurisdiction to reopen the case to entertain further arguments on the merits of the matter (see Vignes at [4]). We will refer to this line of argument as “the functus officio argument”.

The exception laid down in Koh Tony

In Koh Zhan Quan Tony v Public Prosecutor and another motion [2006] 2 SLR(R) 830 (“Koh Tony”), an important gloss was added to the above position. The applicants in Koh Tony were charged with murder, but were convicted by the High Court of the lesser offence of robbery with hurt. Upon appeal by the Prosecution...