Public Prosecutor v Kho Jabing

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 14 January 2015
• Neutral Citation: [2015] SGCA 1
• Date: 14 January 2015
• Docket Number: Criminal Appeal No 6 of 2013
• Published date: 09 April 2016
• Plaintiff Counsel: Hay Hung Chun, Seraphina Fong and Teo Lu Jia (Attorney-General's Chambers)
• Hearing Date: 20 March 2014
• Defendant Counsel: Anand Nalachandran (Braddell Brothers LLP), Josephus Tan and Keith Lim (Fortis Law Corporation)
• Court: Court of Appeal (Singapore)
• Subject Matter: Criminal Procedure and Sentencing,Murder,Sentencing,Offences,Criminal Law,Principles

Chao Hick Tin JA (delivering judgment of the majority consisting of Andrew Phang Boon Leong JA, Chan Seng Onn J and himself): Introduction

In Public Prosecutor v Galing Anak Kujat and another [2010] SGHC 212 (“the Trial Judge’s decision”), Jabing Kho (“the Respondent”), and his co-accused, Galing Anak Kujat (“Gailing”), were convicted of murder under s 300(c) read with s 34 and punishable under s 302 of the Penal Code (Cap 224, 2008 Rev Ed) (“PC”), and Kan Ting Chiu J (“the Trial Judge”) passed the mandatory death sentence on them accordingly.

On appeal, the Court of Appeal in Kho Jabing and another v Public Prosecutor [2011] 3 SLR 634 (“the CA (Conviction) Decision”) affirmed the Respondent’s conviction and sentence. This CA (which for ease of reference will be referred to as “CA (Conviction)”), however, allowed Galing’s appeal and his conviction of murder was substituted with a conviction of the offence of robbery with hurt committed in furtherance of a common intention under s 394 read with s 34 of the PC. Galing’s case was then remitted back to the Trial Judge for resentencing and he was eventually sentenced to an imprisonment term of 18 years and 6 months and 19 strokes of the cane.

The Penal Code (Amendment) Act 2012 (Act No 32 of 2012) (“the PCAA”) was then enacted by Parliament to amend the PC. Pertinently, s 2 of the PCAA provide that:

Repeal and re-enactment of section 302 2. Section 302 of the Penal Code is repealed and the following section substituted therefor: “Punishment for murder 302.—(1) Whoever commits murder within the meaning of section 300(a) shall be punished with death. (2) Whoever commits murder within the meaning of section 300(b), (c) or (d) shall be punished with death or imprisonment for life and shall, if he is not punished with death, also be liable to caning.”.

…

As a result of these amendments, except for an accused person who is convicted of a charge under s 300(a) of the PC, an accused person will no longer face the mandatory death penalty and the court is given the discretion to sentence the accused to life imprisonment and caning instead.

Sections 4(5) and (6) of the PCAA then provided for certain transitional provisions:

Savings and transitional provisions …

4. —(5) Where on the appointed day, the Court of Appeal has dismissed an appeal brought by a person for an offence of murder under section 302 of the Penal Code, the following provisions shall apply:

…

(f) if the Court of Appeal clarifies under paragraph (c)(ii) or (d) that the person is guilty of murder within the meaning of section 300(b), (c) or (d) of the Penal Code, it shall remit the case back to the High Court for the person to be re-sentenced;

(g) when the case is remitted back to the High Court under paragraph (f), the High Court shall re-sentence the person to death or imprisonment for life and the person shall, if he is not re-sentenced to death, also be liable to be re-sentenced to caning;

…

(6) If –

(a) any Judge of the High Court, having heard the trial relating to an offence of murder, is unable for any reason to sentence, affirm the sentence or re-sentence a person under this section…

…

any other Judge of the High Court… may do so.

On 30 April 2013, the Court of Appeal confirmed that the Respondent was convicted under s 300(c) of the PC and allowed his application for his case to be remitted to the High Court for re-sentencing pursuant to s 4(5)(f) of the PCAA.

The hearing for re-sentencing came before another High Court judge (as the Trial Judge had by then retired from the Bench) (“the Re-sentencing Judge”), who re-sentenced the Respondent to life imprisonment with effect from the date of his arrest (ie, 26 February 2008) and 24 strokes of the cane (see Public Prosecutor v Kho Jabing [2014] 1 SLR 973 (“the Re-sentencing Judge’s Decision”)).

The Prosecution then appealed against the Re-sentencing Judge’s decision, urging this Court to impose the death sentence upon the Respondent on the ground that this was an extremely vicious attack on the victim.

Our decision

At the very heart of this appeal lies a critical legal question – for an offence of murder where the mandatory death penalty does not apply, in what circumstances would the death penalty still be warranted?

This seemingly simple question belies a great deal of difficulties and complications, along with the severe consequences and implications any answer brings. Given that this is the first case of its kind to reach the Court of Appeal since the amendments to the mandatory death penalty were enacted, previous case law was, at best, marginally helpful. In fact, both the Prosecution and counsel for the Respondent were hard-pressed, very understandably so, to suggest any local authority which might be helpful to us.

This appeal therefore requires this Court to set down some guidelines and principles as to how this discretion ought to be exercised. After considering the submissions made by the Prosecution and counsel for the Respondent, we allow the Prosecution’s appeal and impose the death sentence on the Respondent. Our detailed reasons for this decision are set out hereunder.

The discretionary death penalty

During the appeal, we had raised a number of queries to both the counsel for the Respondent and the Prosecution with the objective of clarifying exactly how the court should come to its decision as to the circumstances when the death penalty, as compared to life imprisonment and caning, would be the more appropriate sentence in a case like this. In sum, the numerous questions can be condensed into two broad questions which accurately capture our concerns: What circumstances should the Court take into consideration? Do the normal sentencing principles apply? Keeping these two questions in mind, we examine three areas which might be potentially helpful – (1) the parliamentary debates for the amendments to the mandatory death penalty, (2) decisions of foreign jurisdictions, and (3) analogous local case authorities.

Parliamentary debates

Obviously the first matter which we ought to consider in this regard would be the parliamentary debates concerning the enactment of the PCAA. In the debates during the introduction of the amendments (see Changes to the Application of the Mandatory Death Penalty to Homicide Offences (Statement by Minister for Law), Singapore Parliamentary Debates, Official Report (9 July 2012) vol 89), the Minister for Law explained that three factors would be relevant in deciding when the death penalty is appropriate:

In deciding whether and how to apply the death penalty to a particular offence, several factors have to be considered. In particular I will mention, in broad terms, three interconnected factors: (1) the seriousness of the offence, both in terms of the harm that the commission of the offence is likely to cause to the victim and to society, and the personal culpability of the accused; (2) how frequent or widespread an offence is; and (3) deterrence.

These three factors must be considered in their totality. For example, the fact that an offence is not widespread or that its incidence is low may not, by itself, be a decisive factor. The overarching aim of the Government is to ensure the safety and security of Singapore, while maintaining a fair and just criminal system.

Intentional killing within the meaning of 300(a) is one of the most serious offences in our books. Put simply, this is a case where the offender intends the death of the victim. It is right to punish such offenders with the most severe penalty. It is right to provide for the most powerful deterrent against such offences. It is right, therefore, that the mandatory death penalty should continue to apply to such intentional killing.

In respect of other categories of murder, under section 300(b) to (d), there could be different degrees of intention, and these offences are committed in a variety of situations. Today, that is something considered by the Public Prosecutor when he decides the appropriate charge in each case. The factors he considers include the precise intention of the accused, the manner in which the homicide occurred and the deterrent effect a charge may have on others. We want to move towards a framework where the court also has the discretion, to take the same factors into account during sentencing.

This change will ensure that our sentencing framework properly balances the various objectives: justice to the victim, justice to society, justice to the accused, and mercy in appropriate cases. … We now have a relatively low incidence of homicides – last year we had 16 recorded homicides, or about 0.3 per 100,000 population. As our society becomes safer, less violent, and more mature, we believe that today’s changes are a right step to take.

[emphasis added in italics and bold italics]

In trying to show how the Re-sentencing Judge had erred, the Prosecution in their submissions for this appeal had analysed these three factors and then “categorized” the circumstances of the case according to these three factors. While the Prosecution should not be faulted for doing so, in our opinion, we find that these factors are best considered in totality, and should serve as guiding considerations rather than distinct factors in deciding whether the death penalty is appropriate. As can be seen, the Minister for Law had explained these three factors in “broad terms”, suggesting that a broad and holistic approach should be taken. At the risk of stating the obvious, the factual matrix and circumstances of each case would be extremely varied, and Parliament could not have intended a formulistic approach in applying these three factors in deciding whether or not the death penalty would be the appropriate sentence for a particular case.

In any event, these three factors, by their nature, do not lend themselves to a...