Public Prosecutor v Kho Jabing

CourtCourt of Appeal (Singapore)
JudgeChao Hick Tin JA
Judgment Date14 January 2015
Neutral Citation[2015] SGCA 1
Citation[2015] SGCA 1
Defendant CounselAnand Nalachandran (Braddell Brothers LLP), Josephus Tan and Keith Lim (Fortis Law Corporation)
Published date09 April 2016
Plaintiff CounselHay Hung Chun, Seraphina Fong and Teo Lu Jia (Attorney-General's Chambers)
Hearing Date20 March 2014
Docket NumberCriminal Appeal No 6 of 2013
Date14 January 2015
Subject MatterCriminal 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 Section 302 of the Penal Code is repealed and the following section substituted therefor: Punishment for murder 302.—(1) Whoever commits murder within the meaning of section 300(a) shall be punished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

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;

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...

To continue reading

Request your trial
11 cases
  • Kho Jabing v Public Prosecutor
    • Singapore
    • Court of Appeal (Singapore)
    • 5 April 2016
    ...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 rejecte......
  • Public Prosecutor v Yeo Tian Ming, Benedict
    • Singapore
    • District Court (Singapore)
    • 23 December 2022 these twin objectives of deterrence and retribution, all the facts of the case must be considered: Public Prosecutor v Kho Jabing [2015] 2 SLR 112 at [51(a)]. This would include considering factors that go towards (a) the harm from the offence and (b) the offender’s culpability. I will......
  • PP v Chia Kee Chen
    • Singapore
    • Court of Appeal (Singapore)
    • 27 June 2018
    ...Inc [2008] 2 SLR(R) 491; [2008] 2 SLR 491 (folld) PP v Goh Lee Yin [2008] 1 SLR(R) 824; [2008] 1 SLR 824 (refd) PP v Kho Jabing [2015] 2 SLR 112 (folld) PP v Mohd Ariffan bin Mohd Hassan [2018] 1 SLR 544 (refd) Ong Chee Hoe v PP [1999] 3 SLR(R) 273; [1999] 4 SLR 688 (refd) Soh Meiyun v PP [......
  • Kho Jabing v Public Prosecutor
    • Singapore
    • Court of Three Judges (Singapore)
    • 5 April 2016
    ...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 rejecte......
  • Request a trial to view additional results
4 books & journal articles
    • Singapore
    • Singapore Academy of Law Journal No. 2019, December 2019
    • 1 December 2019
    ...v Public Prosecutor [2014] 3 SLR 721; Abdul Kahar bin Othman v Public Prosecutor [2018] 2 SLR 1394. 18 Public Prosecutor v Kho Jabing [2015] 2 SLR 112; Kho Jabing v Public Prosecutor [2016] 3 SLR 135; Kho Jabing v Public Prosecutor [2016] 3 SLR 1259. 19 The STX Mumbai [2015] 5 SLR 1; The Ch......
  • Criminal Procedure, Evidence and Sentencing
    • Singapore
    • Singapore Academy of Law Annual Review No. 2015, December 2015
    • 1 December 2015
    ...up to the matter of judicial discretion. Seen in that context, the five-member Court of Appeal decision of Public Prosecutor v Kho Jabing[2015] 2 SLR 112 (‘Kho Jabing’) was particularly apposite as it provided an authoritative delineation of the sentencing considerations that ought to apply......
  • The discretionary death penalty for drug couriers in Singapore
    • United Kingdom
    • International Journal of Evidence & Proof, The No. 20-1, January 2016
    • 1 January 2016
    ...Death Penalty to HomicideOffences, Singapore Parliament Reports, 9 July 2012 (Kasiviswanathan Shanmugam); Public Prosecutor vKho Jabing[2015] 2 SLR 112 at [3].5. Sections 5 and 7 read with s. 33 of the MDA make it an offence for a person to traffic in controlled drugs, while the SecondSched......
  • Criminal Procedure, Evidence and Sentencing
    • Singapore
    • Singapore Academy of Law Annual Review No. 2017, December 2017
    • 1 December 2017
    ...v BDB [2018] 1 SLR 127 at [62]. 196 Public Prosecutor v BDB [2018] 1 SLR 127 at [76]. 197 [2017] 5 SLR 627. 198 [2017] 1 SLR 450. 199 [2015] 2 SLR 112, discussed at some length in (2015) 16 SAL Ann Rev 396 at 432–435, paras 14.88–14.95. 200 [2017] 1 SLR 748. 201 Micheal Anak Garing v Public......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT