Kho Jabing
Kho Jabing (4 January 1984 – 20 May 2016), later in life Muhammad Kho Abdullah, was a Malaysian of mixed Chinese and Iban descent from Sarawak, Malaysia who robbed and murdered a Chinese construction worker named Cao Ruyin in Singapore on 17 February 2008. Kho Jabing was convicted of murder and sentenced to death on 30 July 2010, and lost his appeal on 24 May 2011. Later, when the changes to Singapore's death penalty laws took effect in January 2013, Kho Jabing was granted a re-trial, and thus have his death sentence commuted to life imprisonment and 24 strokes of the cane on 14 August of that same year. However, on 14 January 2015, the life sentence was overturned and the death sentence was reinstated on Kho Jabing once again upon the prosecution's appeal. After a lengthy appeal process, Kho Jabing was finally put to death by long drop hanging on 20 May 2016 for his crime.[2]
Kho Jabing | |
|---|---|
| Born | 4 January 1984 |
| Died | 20 May 2016 (aged 32) |
| Cause of death | Death by hanging |
| Other names |
|
| Criminal status | Executed. Sentence fulfilled on 20 May 2016 |
| Conviction(s) | Murder under Section 300(c) of the Penal Code of Singapore (1 count) |
| Criminal penalty |
|
| Partner(s) | Galing Anak Kujat (robbery with hurt); 18.5 years' imprisonment and 19 strokes of the cane |
| Details | |
| Victims | 1 |
| Date | 17 February 2008 |
| Country | Singapore |
Date apprehended | 26 February 2008 |
Kho Jabing‘s fellow accomplice of the crime, Galing Anak Kujat, was also convicted of murder and received the death sentence, though unlike Kho Jabing, Galing Kujat managed to escape execution following an appeal to the Court of Appeal, which reduced Galing Kujat’s conviction to one of robbery with hurt and resulted into Galing Kujat to serve a final sentence of 18-and-a-half years’ imprisonment and 19 strokes of the cane.
During the later part of the 6-year-long period when Kho Jabing was putting up a legal battle against the death penalty, his case attracted not just the attention from the anti-death penalty segments of Singaporean society, but also the international attention from foreign organisations supporting the abolition of capital punishment. Until Kho Jabing's execution, there had been efforts from legal representatives, anti-death penalty advocates and political figures from both in and outside Singapore to save his life.
The prosecution's appeal in the case of Kho Jabing was also a landmark in Singapore's legal history, setting the main guiding principles for all judges in Singapore to decide where the discretionary death penalty is appropriate in future murder cases, which directly or indirectly impacted on both the sentencing and appeal outcomes of some murder cases that occurred in Singapore. Other than the death penalty issues in Singapore, Kho Jabing had also made an impact on the requirements of the Singaporean courts to reopen concluded criminal appeals and cases, which made its first impact on an unrelated capital case on 2 August 2017,[3] leading to the acquittal of 34-year-old Nigerian citizen and alleged drug trafficker Ilechukwu Uchechukwu Chukwudi on 17 September 2020.[4][5]
Early life
Kho Jabing was born on 4 January 1984, the eldest of two children and the only son in his family.[6] His mother Lenduk Anak Baling reportedly gave birth to him in a taxi while on the way to the hospital.[7]
Kho grew up in Ulu Baram, Sarawak, living in a longhouse with his parents and younger sister Kho Jumai (born on 20 May 1988). His sister, with whom Kho shared a close bond with, described him as a loving brother, never having fought with his teachers, friends or any others.[8] He was also said to be active, helpful, hard working and responsible.
Kho left school after finishing Primary 6 because his family was not well-off and could not afford to send him to secondary school to further his studies. After he left schooling, Kho worked at his family's plantation, and later on as a technician for two years in Miri. After this, in 2007, Kho decided to leave Sarawak and move to Singapore to find employment, in hopes of earning a higher income to provide a better life for his family. While in Singapore, he would make phone calls daily - once in the morning, and once in the night - to his mother.[7]
Murder of Cao Ruyin
On the afternoon of 17 February 2008, Kho Jabing, then 24 years old and an employee of a rag and bone company, together with four others - Galing Anak Kujat, Vencent Anak Anding, Alan Anak Ajan, and Anthony Anak Jaban - agreed and intended to rob two Bangaladeshi construction workers and Vencent's colleagues from Vencent's workplace in Tiong Bahru. However, before the plan could be executed, the two workers had left with their boss. The five remained in Tiong Bahru for drinks.
After that, at about 7 pm, they all travelled to Geylang for more drinks, and for this, they had a quarrel over whether they should commit robbery in Geylang in view of their aborted robbery attempt earlier that day. Later on, Kho and Galing, then a shipyard worker, separated from the group. They walked for some distance before spotting two Chinese men walking along a pathway in an open space near Geylang Drive, forming a plan to rob the pair.
The two Chinese men - Chinese nationals and construction workers Cao Ruyin (Traditional Chinese: 曹如銀; Simplified Chinese: 曹如银; Pinyin: cáo rúyín) and Wu Jun (Traditional Chinese: 吳軍; Simplified Chinese: 吴军; Pinyin: wú jūn) - were walking together in that same area after dinner when they were unknowingly targeted by the two Sarawakians. Kho picked up a fallen tree branch, and used it to hit one of the men, Cao, from behind. As Kho began to assault Cao, Galing went after Cao's companion Wu and assaulted him, but the 44-year-old managed to escape from Galing with minor injuries. However, Cao was continually struck on the head by Kho. Galing later joined in by using his belt to hit Cao. The assault eventually stopped and the pair also took away Cao's mobile phone.
The unprovoked attack left Cao with 14 skull fractures, in which its severity also caused injuries to the brain. Cao was subsequently rushed to Tan Tock Seng Hospital where doctors operated on him twice to treat his head injuries, but despite the efforts of the doctors, Cao did not recover from these injuries and slipped into a coma. Six days later, on 23 February 2008, Cao Ruyin died at the age of 40. After Cao's death, forensic pathologist Teo Eng Swee conducted an autopsy on the deceased construction worker, and Teo later certified that it was the severe head injuries that killed him.
Arrest and trial
Arrests and indictments of Kho Jabing and Galing Anak Kujat
After robbing Cao Ruyin and Wu Jun, Kho Jabing and Galing Kujat regrouped with their three friends and they together sold Cao's mobile phone for S$300. The five men each received S$50, and the remaining S$50 was used to pay for their drinks and food. Nine days later, police investigations based on the retrieved phone records from Cao's handphone led to the arrests of both Kho and Galing on 26 February 2008 (3 days after Cao's death).[9] They were charged with murder, which is a hanging offence and thus carries the mandatory death penalty under Singapore law at that time.
Subsequently, their three friends - Vencent Anak Anding, Alan Anak Ajan, and Anthony Anak Jaban - are also arrested in connection to their attempted robbery of the Bangladeshi workers. The trio were all later found guilty and sentenced to imprisonment between 3.5 and 6 years and caning between 12 and 16 strokes of the cane in June 2009, a month before both Kho and Galing stood trial for murder.[10]
When a police officer contacted them about Kho's arrest and involvement in the murder, Kho's family and friends in Sarawak were stunned and shocked to hear that Kho was involved in such a violent crime, given the non-violent personality they knew of him. Kho's sister said to a newspaper in 2015 about the news of her brother's arrest, "Since young, he is not fierce or naughty at all. He is good. When we were growing up, he has never committed a crime, so we don't know why this happened to him."[11]
Murder trial of Kho Jabing and Galing Anak Kujat
The trial of Kho Jabing and Galing Anak Kujat began in July 2009. Kho was represented by lawyers Johan Ismail and Zaminder Singh Gill, while Galing was represented by lawyers Chandra Mohan s/o K Nair and Chia Soo Michael, while the prosecution consisted of Deputy Public Prosecutors (DPPs) Leong Wing Tuck and Gordon Oh of the Attorney-General's Chambers (AGC). The case was heard before Justice Kan Ting Chiu in the High Court.
Dr Teo Eng Swee, the pathologist who performed an autopsy on the victim Cao Ruyin, testified at the trial and presented his medical report, stating that he believed that the skull fractures on Cao was caused by at least 5 blows or more, and one of these were possibly caused by either a blow or a fall on the back of the head. He added that the first fractures were caused with severe force, and the subsequent ones resulted from less severe impacts on the head. When presented with Galing's belt buckle by the prosecution as a possible weapon used to cause the injuries, Dr Teo could not make any conclusions, but he confirmed from Galing's account that the tree branch which Kho used to hit Cao was capable enough to cause the fractures on Cao's skull. When cross-examined by Kho's lawyer over the possibility of a fall might cause the fractures, Dr Teo noted that he could not rule out that the fracture as being due to a fall, but the injuries were generally due to blunt force. When re-examined by the prosecution, Dr Teo confirmed that a fall could not cause all the injuries sustained by Cao.
Cao's companion Wu Jun also testified how he was attacked by Galing and how he managed to escape and call the police, but he could not tell the court how his friend was attacked, whether himself or Cao was attacked first, or who attacked the deceased.[12]
Kho testified that he only struck the deceased twice, but claimed he did not know the force exerted or where he aimed at; the prosecution later indicated that he said so in his police statements that he hit the victim on the head twice. Kho also insisted that he did not have the intention to kill Cao Ruyin, but only to rob him, stating that he felt deep remorse for causing the death of the victim. Kho also added that he was drunk when he robbed and assaulted Cao.
Galing also claimed no intention to commit murder. His account differed from his police statements; he initially told police he saw Kho hitting the victim several times, but at the trial, he insisted that Kho hit the victim only once. The police officers interrogating Galing were called to the stand and cross-examined by Galing's lawyer over the alleged inaccuracy of the statements. The officers maintained that they did not record the statements incorrectly.
High Court verdict
The trial ended on 30 July 2010, around two years and five months after Cao's death. Justice Kan Ting Chiu found both Kho Jabing and Galing Kujat guilty of murder and sentenced both of them to death by long drop hanging (the standard method of execution in Singapore).[13]
In his judgement, Justice Kan determined that both Kho and Galing shared a common intention to commit robbery. He also determined that Kho's actions of causing the injuries on the deceased victim was in the furtherance of the common intention of the pair to rob the victim and his friend, and that the injuries he intentionally caused were in the ordinary cause of nature to cause death, which constitutes an offence of murder committed under section 300(c) of the Penal Code. He also reject Kho's claim of alcohol intoxication as he cited that Kho was able to clearly recount the events that took place, showing full control of his faculties at the time.
Justice Kan stated that Galing's participation in the robbery was an indication of him knowing that his accomplice's actions were likely to cause death and thus he also has to bear that same responsibility as Kho and thus he also convict Galing of murder in lieu of both their common intention, and sentence him to death together with Kho.[13][14][15]
Defence's appeal
Hearing of appeal and outcome
After their conviction and sentence, both Kho and Galing jointly filed an appeal against their conviction and sentence. For the appeal process, one of Kho's original lawyers Johan Ismail was replaced by James Bahadur Masih, and Zaminder Singh Gill remained as Kho's defence lawyer. For Galing, his original defence counsel was completely replaced by lawyers N Kanagavijayan and Gloria James to help him in his appeal. DPP Gordon Oh remained in the prosecuting team while his partner Leong Wing Tuck was replaced by DPP Lee Lit Cheng from the AGC. Both men's appeals were heard before Chief Justice (CJ) Chan Sek Keong and two Judges of Appeal (JA) V. K. Rajah and Andrew Phang in the Court of Appeal.
On 24 May 2011, the Court of Appeal released their judgement, and Justice Rajah delivered the verdict. For Kho's appeal, the three judges dismissed his appeal and upheld both his conviction and sentence. Chan stated that they were of the opinion that Justice Kan was correct to convict Kho, then aged 27, of murder as they agreed that Kho did intentionally caused the fatal injuries on Cao, which were sufficient to cause death even if he had no intent to kill the victim. They also agreed that from the review of evidence presented at the original trial, Kho had demonstrated a considerable amount of violence by inflicting several severe blows on the victim.[16] Later, Kho petitioned to the President of Singapore for clemency on 5 December 2011, but it was rejected.[17]
Fate of Galing Anak Kujat
Coming to the appeal of Galing Kujat, however, the Court of Appeal disagreed with Justice Kan's decision to convict Galing of murder. They agreed that Galing did share a common intention with Kho to commit robbery and cause hurt, but not to intentionally cause any lethal injuries on the victim. They also added that there was no evidence to show the type of injury inflicted by Galing on Cao, no evidence on any discussion or planning, and also no evidence of Galing making any moves to make Kho to assault Cao more easily to cause him to sustain fatal skull fractures and death.[18]
Therefore, the Court of Appeal found Galing not guilty of murder and set aside his death sentence. Instead, they convict him of a lower charge of robbery with hurt under section 394 of the Penal Code, and ordered that his case was to be remitted to the original trial judge for re-sentencing.[18] For his part in the robbery of the Chinese nationals, Galing was re-sentenced to 18 years and six months' imprisonment and 19 strokes of the cane on an unspecified date before Justice Kan's retirement on 27 August 2011. The outcome of Galing's re-sentencing went unreported, but this information was revealed in subsequent court documents and news articles covering Kho Jabing's murder case from 2013 onwards.[6][19] If Galing maintains good behaviour while serving his sentence in prison, he would be released on one-third remission after serving at least two-thirds of his sentence (12 years and 4 months). Assuming that he was eligible for early release, Galing's possible release date would be between mid-2020 to late-2023, depending on when he started to serve his sentence.
The allowing of Galing's appeal left Kho Jabing the sole robber to hang for the murder of Cao Ruyin.
Changes to the law
Re-sentencing
In July 2011, the government decided to make a review of the mandatory death penalty applied to certain drug trafficking or murder offences. In the midst of this review, a moratorium was imposed on all the 35 pending executions in Singapore at that time, including Kho Jabing's. This review was completed in July 2012 and the amendments to the law were set to take effect on a later date.[6][20]
In January 2013, the law was amended to make the death penalty no longer mandatory for certain capital offences. Through the removal of the mandatory death penalty, the judges in Singapore were given an option to impose a discretionary sentence of life imprisonment with or without caning for offenders who commit murder but had no intention to kill (the death penalty remains mandatory only for murder offences committed with intention to kill, which came under section 300(a) of the Penal Code). This discretion is similarly applied to those convicted of drug trafficking, provided that they only act as couriers, suffering from impaired mental responsibility (e.g. depression) or any other conditions. For this, all death row inmates were given a chance to have their cases to be reviewed for re-sentencing.[21][20]
For this, through his newly appointed defence counsel (which consisted of lawyers Anand Nalachandran, Josephus Tan and Keith Lim), Kho Jabing applied for re-sentencing. His case, together with that of another convicted murderer Bijukumar Remadevi Nair Gopinathan (who was eventually re-sentenced to life imprisonment and 18 strokes of the cane for the 2010 robbery and murder of a Filipino prostitute), became the first two cases to be sent back to the High Court for re-sentencing.[22][23] Kho's case was ordered to be remitted to the original trial judge for re-sentencing; however, by this time, High Court judge Kan Ting Chiu had retired from the Bench since 27 August 2011 at the age of 65, and High Court judge Tay Yong Kwang was appointed to do the work instead.[6]
DPP Seraphina Fong, the prosecutor who took over the case in the retrial, argued that the death penalty should be reimposed on Kho. She raised the fact that Kho possess a high culpability by setting upon vulnerable victims, arming himself with a weapon and using excessive force. He had also exhibited violence and viciousness when bludgeoning the victim on the head with the tree branch. In her prosecution, Fong said that the death penalty ought to be imposed on persons who use "gratuitous violence without regard to the risk of fatality to their victims". In addition, she also said that Kho's crime "would outrage the feelings of the community" and called on the court to take a strong stance against "violent, opportunistic and heinous crimes". She also said that the crime was concocted out of Kho's greed and committed with a scant disregard for human life, which warrants severe condemnation and lack of condonement by the community. Fong described the self-induced alcohol intoxication by Kho as aggravating, and she said there should be no leniency even with the offender's remorse, personal circumstances and lack of criminal record, as Cao's family had suffered grief as a result of his untimely death at the hands of Kho himself.[6]
In defence, Anand and Tan urged Justice Tay to reduce Kho's death sentence to life imprisonment. Both of them argued that Kho may have had the intention to rob Cao Ruyin, but before that, he did not bring any weapons or masterminded the robbery of the Chinese nationals. They also cited their client's lack of criminal records or records of violent crime in Singapore and Malaysia and his full cooperation with the police in their arguments. They also argue over Kho's young age at that time, his deep remorse over the tragic incident and his wish to seek forgiveness from the victim's family while helping them to cope with their grief as best as he could, and the tragedies which his family had to face before, during and after the court proceedings of Kho, especially the death of Kho's unnamed father a year before his son's trial (it is mentioned from a source that Kho's unnamed father never got to see his son one last time before his death on Gawai Dayak, which fell on 1 June 2008),[24] and that the family were financially unable to visit him during his time in prison. They also pointed out the words of Kho's mother written in the clemency petition submitted earlier to the President, which said that her son's death sentence would also be a death sentence for her. The lawyers conceded that the victim Cao Ruyin's bereaved family could be in the same position as Kho's, but they said that "the loss of another life would only add to the tragedy and sorrow from this unfortunate and ill-fated robbery and would not serve the ends of justice."[6]
Not only that, the defence counsel also said that life imprisonment should be the “starting and default position” for all cases in subject to their respective factors, and that the death penalty should be imposed restrictively and “ought to be the exception rather than the rule”. They cited that there was a decline in the number of homicidal cases and the number of fatal assaults during a robbery throughout the years. They also added that there was an unclear and undisputed sequence of events and circumstances of the crime, the insufficient aggravation surrounding the case, the brutality displayed was not exceptional to require a death sentence and that the fatal outcome of the injuries were inadvertent.[6]
Sentence
As he was not the original trial judge for Kho's murder trial, Justice Tay referenced Justice Kan's written verdict, as well as that of the Court of Appeal in order to reach his decision in this case. It was on 14 August 2013 when Justice Tay released his decision, in which he decided that the death penalty would be inappropriate in the case of Kho Jabing, as he had taken into consideration Kho's young age (24 years old) at the time of the offence and his choice and use of weapon during the robbery, which was "opportunistic and improvisational", and there is an unclear sequence of events on that night, as noted by the Court of Appeal's verdict. He additionally disagreed with the defence's earlier argument that a life term would be the starting and default position in sentencing when it comes to all cases in relation to its respective circumstances. He also disagreed that the death of another would not serve the ends of justice and only deepens the tragedy because the murderer himself is the one who deprives the victim of his right to life; the victim's life is as equally precious to him and his family as the murderer's life is to himself and his family.
Nevertheless, Justice Tay revoked Kho's death sentence, and instead exercised his discretion to sentence the 29-year-old Malaysian to life imprisonment. He ordered that Kho's life sentence would commence from the date of his arrest on 26 February 2008. Tay also ordered that Kho was to receive the maximum of 24 strokes of the cane, based on the violence he exhibited during his attack on Cao and the resulting grievous consequences. As a result of this re-trial, Kho Jabing became the second convicted murderer to escape the gallows after 23-year-old convicted killer and death row convict Fabian Adiu Edwin, who was similarly re-sentenced to life imprisonment and 24 strokes of the cane in July 2013 for robbing and murdering a security guard in August 2008, when he was merely 18 years old.[25] According to his lawyers, Kho expressed relief and gratitude to the fact that he would be not hanged before being taken away.[19][6][26]
Prosecution's appeal
Hearing of prosecution's appeal
In November 2013, the prosecution filed an appeal against the re-sentencing of Kho; it was the first time an appeal was made against the High Court's decision to re-sentence a convicted murderer to life imprisonment since the 2013 death penalty law reforms in Singapore.[27]
A rare five-judge Court of Appeal, consisting of two Judges of Appeal Chao Hick Tin and Andrew Phang, and three High Court Judges Chan Seng Onn, Lee Seiu Kin and Woo Bih Li, was set to hear the appeal. Normally, in the Court of Appeal, all appeals were heard before three judges. Proceeding with its appeal on 20 March 2014, the prosecution mainly argued for Kho to be sentenced to death instead of giving him life imprisonment with 24 strokes of the cane, on the grounds that during his attack on Cao Ruyin, Kho had done so in an extremely vicious manner and did not relent even after Cao Ruyin was knocked down by the first blow and continued to assault him repeatedly. They said that Kho may have chanced upon the murder weapon (the tree branch), but the fact was he used it when he rained strikes with great force on Cao's head.
In response, the defence counsel argued that Kho only planned to commit robbery and the assault was not premeditated; they also highlighted that since there was no establishment of an undisputed account detailing what really happened on that fateful night of 17 February 2008, it would be unsafe to sentence Kho to death. They also submitted that the case did not sufficiently warrant the harsh penalty of death and thus urged the Court of Appeal to uphold Kho's life sentence and caning.
After hearing the appeal, the five-judge Court of Appeal reserved its judgement till a later date.[28]
Decision
On 14 January 2015, the five-judge Court of Appeal returned with a 3-2 majority decision in favour of allowing the prosecution's appeal. As a result of this decision, the life sentence was overturned and 31-year-old Kho Jabing was once again sentenced to death.[29][30] Among the five judges, Chao, Phang and Chan were all in favour of allowing the appeal, while both Lee and Woo dissented with separate judgements.[25]
Considerations and majority judgement
Due to the fact that this particular appeal marked the first time when a decision of re-sentencing was challenged by the prosecution, the judges detailed their considerations that led to them reaching their decision to sentence Kho to death. Before they came to the decision regarding Kho's final sentence, the five judges asked this question in the verdict, "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?" In order to answer this question, which led to them deciding that in this appeal, there should be some guiding principles laid down for judges to decide the appropriacy of the death penalty in future murder cases committed with no intention to kill since the mandatory death penalty was removed for such offences. Not only do they took into consideration both Kho and Galing's court testimonies and police statements, they also took into consideration three factors - death-penalty-related parliamentary debates, foreign and local cases - before reaching the final decision of the main guiding principles which judges should follow in deciding if the death penalty should be imposed.
Firstly, the judges made reference to the speech of Law Minister K Shanmugam regarding the death penalty law reforms. In the speech, Shanmugam had highlighted that the purpose of removing the mandatory death penalty for acts of murder with no intention to kill was to balance the objectives of serving justice with mercy where appropriate in some cases while maintaining the protection of the public and deterring of crime. Shanmugam also expressed three broad factors to be considered before reaching a decision to mete out the death penalty: the seriousness of the offence, the frequency of an offence and deterrence. Having considered these factors, the judges found that despite the worth to take note of these factors, they did not form a formulistic approach, and instead of acting as a legal test to the imposition of the death sentence, it was a general guideline of how to come to the decision to sentence an offender to death.[31][32]
As they made reference to the foreign jurisdictions and cases, the judges took note that in countries like India and USA, there were legal guiding principles which set the imposition of the death penalty were to be applied to cases that came under the category of the "rarest of the rare" or "worst of the worst". For which they rejected the adoption of such a principle, as they found it not meeting the purpose of having a discretionary death penalty included as one of the sentencing options for murder under the new death penalty laws. When they made reference to the local cases, they took note of a ruling set by the Court of Appeal in a 1970s appeal in relation to a case of kidnapping by ransom (Sia Ah Kew and others v Public Prosecutor [1974–1976] SLR(R) 54), in which all the five convicted kidnappers, who were all initially found guilty and sentenced to death by the High Court, had won their appeals and successfully had each of their death sentences reduced to life imprisonment and caning per person by the Court of Appeal (under Singapore law, kidnapping by ransom warrants either a sentence of death or life in prison with/without caning).[33][34][35]
The appeal judgement of this 1970s kidnapping case made it clear that the death penalty are to be used in cases where the actions of the offender would outrage the feelings of the community (for in this 1970s case, the Court of Appeal felt that the kidnappers did not reflect so as to deserve the death penalty). Similarly, they referred to another appeal verdict from a 1990s case of gang-robbery with murder (Panya Martmontree and others v Public Prosecutor [1995] 2 SLR(R) 806), in which the Court of Appeal dismissed the appeals of all five people, who were Thai workers convicted of committing the crime of gang-robbery with murder and sentenced to death by the High Court. The Court of Appeal, while upholding the death sentences of the five robbers, stated that with regards to the five men, who had armed themselves with weapons with the intention of causing grievous bodily harm or even death to those who might hinder them in their plan to commit robbery on their three victims (whom they killed during the gang robbery), their acts of violence were "mercilessly executed and gravely abhorrent in their execution." and "were amply sufficient to 'outrage the feeling [sic] of the community.'", which is a similar principle to that of the 1970s appeal ruling (under Singapore law, it is ruled that if one of five or more people committed murder while committing gang-robbery, the punishment would be either death by hanging or life imprisonment with/without caning).[36]
As such, they adopted this common principle set by the above two separate appeal rulings, and decided that in murder cases where an offender demonstrated viciousness and/or a blatant disregard for human life and the actions of the offender led to the outrage of the feelings of the community, the death penalty was ought to be imposed.[37] The majority three of the five judges also wrote, "It is the manner in which the offender acted which takes centre stage. For example, in the case of a violent act leading to death, the savagery of the attack would be indicative of the offender's regard for human life. The number of stabs or blows, the area of the injury, the duration of the attack and the force used would all be pertinent factors to be considered."[25]
Justice Chao, who delivered the majority judgement in the court, stated that they found that in Kho Jabing's case, he simply did not care less as to whether Cao Ruyin would survive even though his mere intention was, together with his accomplice Galing Anak Kujat, to rob both Cao and Cao's companion Wu Jun. The verdict also found that "this was a case where even after the deceased (referring to Cao Ruyin) was no longer retaliating (after the first blow), the Respondent (referring to Kho Jabing) went on to strike the deceased an additional number of times, completely unnecessary given that his initial intention was merely to rob him." In addition, Justice Chao also addressed the minority judges' view of insufficient evidence to prove beyond a reasonable doubt that Kho did struck Cao on the head at least thrice or more (a point which Chao, Chan and Phang disagreed with). From the verdict, Chao said, "Even if we were to accept the position that it was unclear as to how many times the Respondent had struck the head of the deceased, what is vitally important to bear in mind is that what we have here was a completely shattered skull. Bearing in mind the fact that the alleged intention of the Respondent and Galing was merely to rob the deceased, what the Respondent did underscores the savagery of the attack which was characterised by needless violence that went well beyond the pale."[25]
As such, the majority three of the five judges were satisfied that Kho Jabing had demonstrated both a blatant disregard for human life and viciousness while killing Cao Ruyin, and Kho's actions were such that it outraged the feelings of the community. Hence they overturned the High Court's re-sentencing decision and increased Kho's life sentence to death with effect by the majority judgement of the five-judge Court of Appeal. The 24 strokes of the cane, which Kho Jabing received in addition to his life sentence in August 2013 and postponed pending the outcome of the appeal, were also scrapped since the law does not allow caning for convicts who were sentenced to death.
Dissenting judgements
On the other hand, the remaining two dissenting judges - Lee and Woo - made a total reconsideration over the finding of facts made by the Court of Appeal when Kho was sentenced to death the first time. In their separate, but dissenting judgements, both Justice Lee and Justice Woo agreed with the majority that the discretionary death penalty should be applied to those particular murder cases where an offender demonstrated viciousness and/or a blatant disregard for human life despite having a substantiated lack of intention to kill, as laid out by the majority. However, they disagreed with the fact that Kho had substantially demonstrated any of the above to warrant a death sentence for his case.
In his individual judgement, Justice Lee said that there is no clear evidence of the exact number of blows Kho inflicted on Cao's head - Kho's statements and oral testimonies in court said that he only hit the victim twice; Galing told police that he saw Kho hitting the victim repeatedly, yet he said in court that Kho did it only once; the medical evidence had suggested one or more blows from each man and a possible fall causing one of the fractures - or that he had inflicted more than two strikes with great force on Cao's head, as well as many other facts. As such, Justice Lee concluded that the life sentence and reprieve given to Kho should be upheld while dismissing the prosecution's appeal, as there is insufficient evidence to suggest a repeated cycle of assaults on the victim by Kho and that the injuries were intended minimally to incapacitate the victim. Justice Woo reflected his agreement with Justice Lee's finding of facts through the writings in his own individual dissenting judgement, though he additionally stated that there is some risk relying on Galing's evidence due to the discrepancies in his evidence to the police and on court and that he might be inclined to concoct some of it to deflect blame from himself for Cao's unfortunate death.[31]
Reactions to appeal ruling
After the conclusion of the appeal process, Kho's lawyer Anand Nalachandran told reporters that Kho's feelings were one of "understandably hopeful" after the sentence was passed. The only hope left for him, was an appeal to the President of Singapore for clemency.[30] Upon hearing the verdict, Kho's family felt devastated and disappointed over the decision.
Clemency plea and stay of execution
Second clemency plea
After he was sentenced to death the second time, Kho Jabing filed for clemency a second time, to President Tony Tan in a final bid to have his death sentence commuted to life imprisonment. The petition was submitted to the Istana on 24 April 2015, and Kho later submitted an addendum to his second clemency appeal on 15 May 2015. Later, on 27 May 2015, Kho's family also submitted another petition for clemency to the President.[38] During that time, or long before that presumably, Kho began to convert from Christianity to Islam, and adopted a Muslim name, Muhammad Kho Abdullah.[39]
Kho's three lawyers submitted in the clemency appeal that the death penalty is inappropriate, given that it was not an unanimous decision from the Court of Appeal when they passed a death sentence on Kho. Lawyer Anand Nalachandran stated that they proposed that the death penalty should require an unanimous decision before a convict's sentencing, citing that in certain countries, their laws decreed that without reaching an unanimous decision, which is required for capital punishment, the convict will be sentenced to the next highest punishment of life imprisonment. In his own words, Mr Anand said, "Our legislation does not have a similar threshold but clemency could have the same effect." He also said that in Singapore, the death sentence is meted out on appeal by a two-tier system and there was no further avenue for appeal.[40]
A YouTube video was posted by an anti-death penalty advocate group in Singapore, in which both Kho's sister Kho Jumai and Kho's orphaned blood cousin Juliah Jau were featured speaking about Kho's life prior to the murder and the emotional turmoil the family had to go through during the time Kho was standing trial for murder and subsequent court proceedings. Visibly emotional, both Jumai and Juliah (who lost her parents since young and was thus raised by Kho's parents) pleaded for mercy from the President of Singapore and sought forgiveness from Cao Ruyin's family for Kho's actions. Juliah also stated she could not bear to see Kho's mother to suffer and expressed that she was willing to take Kho's place if she could.[24]
The anti-death penalty group who interviewed Juliah and Jumai also highlighted that Kho's mother Lenduk Baling, who worked as a chambermaid in a hotel, was suffering from poor health and could no longer continue working and had to depend on the kindness of the neighbours to live through, and because of Kho's status as a breadwinner of the family, it led to Kho's family suffering from a precarious financial situation. Kho Jumai, who married at age 16, was a homemaker and could not take care of her mother since she was living away from home, and Jumai's husband's salary was barely enough to support their own small family of four. Having highlighted the sympathetic circumstances of Kho's loved ones, the group asked for mercy from the President on behalf of these aforementioned factors.[41]
Dismissal of clemency appeal and first execution order
On 19 October 2015, on the advice of the Cabinet, President Tony Tan decided to not grant Kho Jabing clemency and turned down his petition, which therefore finalized the death sentence and effectively setting Kho to hang for Cao Ruyin's murder. Anand Nalachandran told reporters of The Straits Times on 30 October 2015 that his client had received news of the plea's rejection the week before during his visit in prison with both his co-counsel Josephus Tan and Keith Lim, stating that they are contacting the Malaysian High Commission in Singapore and there will be arrangements for Kho's mother and sister to travel from Sarawak to Singapore to visit him. The lawyer also requested the Singapore Prison Service to inform them about the execution date once a date is fixed to fulfill Kho's sentence, adding that he and his fellow colleagues will help Kho to fulfill his last wishes.[40]
Soon after, an execution order was issued for Kho, scheduling him to be hanged at dawn on Friday, 6 November 2015. Kho's family were not informed of the pending execution long beforehand.
Shortly after the dismissal of the clemency appeal, a motion was filed by human rights lawyer M Ravi to avert the execution. When it was heard, Ravi argued that he did so as a "concern citizen" and "anti-death penalty activist", he had the legitimacy to argue for Kho. Later on however, when the Court of Appeal asked Ravi to reconsider proceeding with the case since Kho currently had legal counsel representing him, Ravi declined to.[42]
James Masing, a senior state minister from Sarawak, acknowledged the execution and said it would not be appropriate for the Malaysian government to interfere in Singapore's justice system, just as they themselves do not want other countries to interfere with their country's judicial system. He also urged Sarawakians working overseas to respect and abide by the law of the other countries where they currently work or live in.[43]
On 3 November 2015, Kho's sister Jumai told Malaysian newspaper Malay Mail in a phone interview that she and her family are appealing for help from the Malaysian and Singaporean governments to reduce her brother's sentence, citing that their family were in distress and suffered from nightmarish moods regarding the upcoming execution of her brother. She also added that during the time her brother was imprisoned in Singapore, her then 11-year-old son had been asking her when his uncle (referring to Kho Jabing) will be home, while her then two-year-old daughter has never met her uncle, highlighting the turmoil that her family was in over Kho's imminent fate.[44] Masing's earlier comment for non-intervention caused disappointment to Kho's family, who had earlier sought help from the Malaysian government to help save Kho from the hangman's noose.[45]
Stay of execution granted
Upon hearing that Kho was going to hang, Kho's family scrambled for efforts to save Kho from the gallows. Amidst these efforts, they managed to engage another lawyer, Chandra Mohan K Nair (Galing Kujat's original defence lawyer), to take over Kho's case on 3 November 2015, merely three days before Kho was due to hang. After being appointed, on 4 November 2015, Chandra filed a criminal motion to reduce his client's sentence and petitioned for a stay of execution to allow more time to prepare his client's case.
The next day, on 5 November 2015, the day before Kho's scheduled hanging, the Court of Appeal granted a stay of execution, effectively suspending Kho's scheduled execution while pending the outcome of the appeal.[42] The prosecution objected to this decision, arguing that there were no arguable issues raised in the criminal motion. Chandra told reporters that he wanted the court "to give us a second chance to go back to the hearing to go through all those all over again before the trial judge". He also said that Kho's original trial did not go into details of the evidence surrounding the severity of the injuries and the degree of force exerted to inflict these injuries.[46]
The appeal was heard more than two weeks later on 23 November 2015, and the original five judges who heard the prosecution's appeal were set to hear it. Chandra mainly argued for the Court to reopen its decision by pointing out that the court had applied the wrong guiding principle as every murder case outraged the feelings of the community and the court was restricting its own discretion. He also said that Kho was not given a chance to testify in the re-trial about the number of blows and the force used when he attacked the victim Cao. In rebuttal, the prosecution pointed out that Kho had given a testimony in the original trial on how many times he hit the victim and the degree of force he exerted during the assault. Not only that, DPP Francis Ng of the AGC, who was the prosecutor at the appeal ruling, described Kho's case at this moment was "a disappointed litigant's attempt to convince the court to revisit a point that has been thoroughly considered". The judgement was reserved till a later date, which prolonged the stay of execution till such time the Court of Appeal's final decision was released. Kho's family, who were given a chance to speak to Kho before he left, left in tears and declined to be interviewed.[47]
Meanwhile, the case caught the attention of Amnesty International and We Believe in Second Chances (WBSC), an anti-death penalty group in Singapore. The WBSC stated that it will help get accommodation for Kho's family during their stay in Singapore, and also to help both Kho and his loved ones and raise awareness of Kho's story and case in order to let more people to think about his case and the issue of the death penalty in Singapore. It was reported that Kho's family was relieved that Kho would not be hanged for now, even though they knew the appeal might not succeed.[46] Amnesty International stepped up to pressurise the government to grant Kho clemency and reduce his death sentence to a life sentence.[48]
At the same time, Malaysian lawyers from the Malaysian Bar, Advocates' Association of Sarawak (AAS) and Sabah Law Association (SLA) lobbied the Malaysian government to intervene and commute Kho Jabing's sentence to life imprisonment, if the appeal were to fail and the death sentence on Kho Jabing was maintained.[49] WBSC also facilitated a press conference with Kho's family and several activist groups appealing to the President of Singapore for clemency, in which Kho's 54-year-old mother Lenduk Anak Baling apologised for her son's actions and stated that her son regretted his actions.[50] Amnesty International Malaysia, Civil Rights Committee of the Kuala Lumpur and Selangor Chinese Assembly Hall (KLSCAH), Suaram (Suara Rakyat Malaysia) and the Singapore Anti-Death Penalty Campaign (SADPC) also joined in to rally for a successful clemency outcome for Kho Jabing.
On 31 March 2016, it was reported that the Court of Appeal will release its verdict regarding Kho's case in the following week on 5 April 2016, at 9.30 am.[51]
Appeal dismissed and second execution order
On 5 April 2016, the five-judge Court of Appeal unanimously dismissed Kho Jabing's appeal and maintained the death sentence. Justice Chao Hick Tin stated in the judges' verdict that the defence had rehashed their arguments and produced little new material, much less compelling ones to sufficiently made them re-consider their earlier decision to sentence Kho to death. They also took note of the rise in numbers of applications made to reopen concluded criminal appeals (including Kho Jabing's); he said that the court would only reopen exceptional cases where there is new and compelling evidence to show that there had been a miscarriage of justice, or that a decision is wrong, tainted by fraud or is a breach of natural justice, for which Kho's case was not one of them. The judgement considered "the present application ... an attempt to re-litigate a matter which had already been fully argued and thoroughly considered". A new date was to be set once again to carry out the hanging of Kho. Before he was led away, Kho, who was given a chance to speak to his family, told his weeping mother and sister to accept his fate. Kho's family members, including a young niece, declined to speak to the media.[52][53][54][55]
Eventually, a fresh death warrant was made, and Kho's family received news of the second execution order from the Singapore Prison Service on 12 May 2016. In this new execution order, Kho's execution was re-scheduled to be carried out 8 days later on the Friday morning of 20 May 2016 at 6 am.[56] Coincidentally, that day happened to be the 28th birthday of Kho's younger sister Kho Jumai.[57]
Final efforts to save Kho Jabing's life
5 April
On 5 April 2016, the same day when Kho Jabing lost his appeal against the death sentence, the International Federation for Human Rights (FIDH) from Paris, France, called on the Singapore government to stop the imminent execution of Kho Jabing, which would be authorised by the President of Singapore. The president of FIDH, Karim Lahidji, released a statement on Twitter, "Singapore's President must do the right thing and not authorize Kho Jabing's execution and grant him clemency. It is unbecoming of a modern state like Singapore to sanction such a barbaric and outdated practice." The FIDH, which is a member of the World Coalition Against the Death Penalty (WCADP), also called for Singapore to reinstate a moratorium on all executions and make its first steps towards the abolition of the death penalty while reiterating its stance against the death penalty.[58]
6 April
On 6 April 2016, the International Commission of Jurists (ICJ) also joined in to pressurise Singapore to commute Kho's death sentence and to abolish the death penalty, calling it an unjustifiable punishment and labelled Singapore for not following the global trend to stop the use of capital punishment and opposing human rights through its decision to uphold Kho's death sentence.[59]
2 May
On 2 May 2016, the final 18 days before Kho was scheduled to hang, Kho Jabing's family - including Kho's mother, sister and two uncles Sunggoh Baling and Lunchom Gansi - and activist groups gathered at another press conference in Sarawak, once again asking for clemency and the reduction of Kho's sentence. The WBSC also attempted to gather signatures to petition the President for clemency. Leonard Shim, president of the Sarawak Advocates' Association, expressed his support to this move. He said that there was no questioning of Singapore's legal system, but he said that Kho deserves a second chance and the death penalty, which is also used in Malaysia, should be abolished.[60]
13 May
On 13 May 2016, after hearing that Kho was going to hang on the day of her birthday, Jumai told a Malaysian newspaper, "I can’t believe that they are going to hang my brother on my birthday." She expressed that her family will try their best to help her brother, hoping that a miracle can happen. Jumai also reportedly stated that the family will ask for her brother's sentence to be lowered to life imprisonment so that they can, in the future, regularly visit her brother, and she did not want her brother to return home in a coffin.[61]
On the same day, Kho Jabing's lawyer received a letter from the President saying that he would be willing to consider a clemency petition if it is filed, but will not be postponing the scheduled execution.[56]
14 May
On 14 May 2016, two days after Kho Jabing's second execution order was released, a coalition of NGOs and individuals, most notably We Believe in Second Chances, Singapore Anti-Death Penalty Campaign, Amnesty International and others, rallied up to urge the President of Singapore to grant Kho clemency and reduce his death sentence to life imprisonment. It was reported that they were shocked when they received news of the execution order, as they expected a chance from the authorities for a fresh clemency appeal to the president, which would have bought Kho three more months to live.
The coalition made a statement in a news report, "Considering that past practice shows that the President usually takes three months before any decision regarding clemency is announced, we are concerned that this current state of affairs will leave the Cabinet and the President with insufficient time to properly consider a fresh plea from (Kho) Jabing." It added that there are many circumstances of Kho's case which were persuasively in favour of clemency, and his death sentence should be lowered to a life sentence. They also urged the Cabinet of Singapore to advice President Tony Tan to grant clemency to Kho and also re-impose a moratorium on executions and to abolish the death penalty.[56]
Sarawak's Chief Minister Tan Sri Adenan Satem stated that his state government were putting in efforts to save Kho's life. He said that he had wrote to Singapore's Ambassador to Malaysia on this issue and the federal government will do its best. Lawyer and opposition politician Jeanette Chong-Aruldoss, who took over Kho Jabing's case, stated that there is a strong chance to allow Kho be granted clemency since the Court of Appeal's decision in 2015 was not a unanimous one. She commented that there is hardly any time to petition for clemency and questioned why is there a rush to carry out the execution.[62]
15 May
On 15 May 2016, five days before Kho was going to hang, an Indonesian human rights group named ELSAM (Institute for Policy Research and Advocacy) released a statement, urging Singapore to halt Kho's pending execution, as well as urging Indonesia to spare its 15 death row inmates from imminent execution[63] (four drug traffickers were later executed by firing squad in Indonesia in July 2016[64]). It reiterates that both Singapore and Indonesia should abolish the death penalty in view of the growing international trend to ban such a practice. It said that for Kho's case, the lack of unanimity in sentencing him to hang had raised a reasonable doubt over whether Kho Jabing deserved the death penalty, and pointed out that the members of Association of Southeast Asian Nations (ASEAN), which included both Singapore and Indonesia, had continually emphasised on the importance of protecting human rights and the rule of law, which makes the death sentence all the more inappropriate in society.[65]
16 May
On 16 May 2016, four days before Kho was due to hang, Human Rights Watch (HRW), an organisation which opposes the death penalty for its "inherent cruelty and irreversibility", also stepped up to urge the President of Singapore to pardon Kho with clemency and spare him from the gallows. Phil Robertson, deputy Asia director at Human Rights Watch, claimed that Kho's sentencing opposed the rights of a fair trial and called the death penalty "cruel". He described that a human life should not be placed on a line by legal technicality. He cited a 2005 statement by the United Nations regarding extrajudicial, summary or arbitrary executions, "A mandatory death sentence makes it impossible [for the court] to take into account mitigating or extenuating circumstances and eliminates any individual determination of an appropriate sentence in a particular case.... The adoption of such a black-and-white approach is entirely inappropriate where the life of the accused is at stake."[66][67]
On the same day as the HRW's protest, a published article from Free Malaysia Today (FMT) newspaper recorded a written protest from Malaysians Against Death Penalty and Torture (MADPET) against Kho Jabing's death sentence, starting with its first line, "All others currently on death row in Singapore for murder must have their sentences commuted as well on the grounds that the death penalty was being abolished all over the world." MADPET referred to the judgements related to Kho's case and cited that there is a tainted judgement in the 2015 decision to sentence Kho to death, pointing out that Judge of Appeal Andrew Phang, one of the three judges who opted for the death penalty on Kho in 2015, was the same judge who heard Kho's first appeal with two others in 2011, which possibly alleged that Justice Phang is prejudicial towards Kho while making the decision to sentence Kho to death. Another thing is MADPET saying that a different judge was present at the 2013 retrial of Kho instead of the original trial judge who convicted and sentenced Kho in 2010, which is prejudicial for Kho by using a different judge to hear his case instead of the original trial judge (who was retired by then), as the same judge would have the benefit of observing the inmate's demeanour and other emerging elements during the original trial, which could not be comprehensively expressed through the written verdicts concerning the case. The MADPET also made a plea to the government to spare Kho Jabing from the gallows, as well as to abolish the death penalty from Singapore's jurisdiction.[68]
17 May
On 17 May 2016, three days before Kho's scheduled execution, another press conference was once again held by activist groups and Kho's family, in which they once again asked for mercy on Kho's life.[69] On the same day itself, Singapore's local human rights group and non-governmental organisation (NGO) MARUAH also sent a message to the President of Singapore to ask for Kho's execution to be deferred. Braema Mathi, president of MARUAH, stated that Kho should not be sentenced to death since the Court of Appeal's decision in 2015 was not an unanimous one, and given the recent legal changes of the death penalty laws in Singapore, Kho deserved a review of his sentence. Mathi also said in her own words about Kho's case, "While we may have different views on the death penalty, it is equally important that Kho Jabing has the full weight of our law and justice behind him. Currently we do not feel that this is so and are concerned that Kho Jabing might pay this price."[70][71]
18 May
The next day, on 18 May 2016, two days before Kho was to be hanged, Andrew Khoo, a representative of the Malaysian Bar also submitted an appeal signed by three Malaysian lawyers association groups to the President of Singapore for clemency on Kho Jabing. Mr Khoo argued that the mandatory death sentence is an ineffective deterrent to crime, and that death sentences would put society on the same level as convicted killers. Mr Khoo, who was the Bar Council's Human Rights Committee chairman, said that justice cannot be served by mandatory sentencing, and killing the convicted person is not the answer to the condemned's act of killing a victim. The appeal contained the pleas from Malaysian lawyers to the President to review Kho's sentence since the judges were divided over the death penalty in Kho's case, and in its own words, the appeal stated, "The fact that learned judges of Singapore have expressed doubts that Kho Jabing exhibited sufficient mens rea or intention to commit the crime of murder, should, in and of itself, give rise to concerns whether Kho Jabing should be made to pay the ultimate price for his crime and be sentenced to hang."[72]
At the same time, an article was published from The Online Citizen. The article was writing about Kho, stating Kho's regret over his crime and his wish to be a good Muslim and have a chance to tell others to avoid crimes and not make the terrible mistake he made. It also questioned the state's decision to execute Kho, wanting to get like-minded citizens to take part in the appeal for Kho's life to be spared even if it was hopeless to save him from the gallows.[69]
On the same day of the article's publication, the United Nations also voiced out against Singapore for their imminent decision to execute Kho; they also called for the government to show mercy to Kho and to join in the effort to abolish capital punishment.[73]
19 May
On 19 May 2016, the final day before Kho was due to be hanged, the Embassy of Switzerland to Singapore and European Union (EU) also released statements to the Singapore government to protest against the pending state-sanctioned hanging of the Malaysian and called for Kho to receive clemency. Despite their acknowledgement of the seriousness of Kho's crime, they argued that the death penalty was an ineffective deterrent to crime and voiced out their opposition to the punishment. They also declared they would continue to push for the abolition of the death penalty.[74]
At the same time, Amnesty International-Malaysia, the Civil Rights Committee of the Kuala Lumpur and Selangor Chinese Assembly Hall and Suaram jointly sent a letter to President Tony Tan for clemency, and also stated that they are not condoning Kho's actions or seek to erase the grief caused to the victim Cao Ruyin's family. They also said there would be international condemnation if Singapore proceeded with the execution.[75]
20 May (Kho Jabing's execution date)
On 20 May 2016, the same day when Kho was scheduled to be hanged, Amnesty International Malaysia asked for the President of Singapore Tony Tan and Prime Minister of Singapore Lee Hsien Loong to intervene and stop Kho's execution. They said that Kho's family had undergone continuous “mental anguish” from Kho facing the gallows and the cancellation of his reprieve by sending him to the gallows again. Amnesty International Malaysia executive director Shamini Darshni said that the 6-year-long series of emotional struggles experienced by Kho's family were cruel and unfathomable. In her own words, Shamini said of Kho's upcoming execution, "An execution at this juncture would only mean that Singapore has taken a step back towards being in the ranks of countries that have abolished this cruel and inhumane form of punishment. Additionally, we might be witnessing a strong case where miscarriage of justice might be taking place".[76]
Final appeals and execution
Dismissal of two last-minute appeals
On 19 May 2016, the final day before Kho Jabing was due to be executed, a last-minute appeal, filed by one of Kho's two newly engaged lawyers Gino Hardial Singh (on the instructions of Kho's sister), was heard, and the same five judges who heard the 2015 appeal earlier were once again set to hear it. In the appeal, Singh argued on behalf of Kho that in both the appeal processes in 2011 and 2013, Judge of Appeal Andrew Phang was present in both appeal hearings. Singh argued that this could have made Justice Phang considering over and repeating his previous decision to uphold Kho's death sentence during the second appeal hearing when it comes to the Court of Appeal's imposition of the death penalty in 2015, suggesting biasedness on Phang's part (for which the prosecutors argued otherwise in rebuttal).
However, Justice Phang, who was one of the five judges hearing this particular last-minute appeal, stated that both appeals were different. The first appeal was related to Kho's murder conviction, the judge reportedly said, at a time when the mandatory death penalty still applied to the charge for which Kho was convicted of. The second appeal was during the time when the death penalty is no longer mandatory and Kho was re-sentenced, the appeal court at that time had considered carefully before reaching the conclusion that Kho's culpability and actions ultimately deserves the death penalty. Hence the appeal is dismissed, because the court could not accept this argument of bias.[77][78]
Not only that, Justice Phang said to Singh, "I know you are trying your best to argue on behalf of your client but you need to be fair, objective and logical as well", citing that the conviction and sentence are "part of an inextricable whole, you (Singh) can't divorce them" since the appeals for conviction and sentence were heard separately due to the amendment of the death penalty laws; he said that if the amended laws applied at the time of Kho's appeal, the same three judges hearing it will consider both the issues of sentence and conviction. Judge of Appeal Chao Hick Tin even asked Singh why he could not accept Justice Phang being the judge involved in the appeal processes for conviction and re-sentencing and yet he accepted the notion of the judge who convicted Kho in the original trial being the same one who re-sentenced Kho (this is likely an error since the original trial judge was retired by the time Kho was re-sentenced). The court also labelled Kho's legal actions as an "abuse of the court process" and called his arguments of bias were plainly wrong.[79]
On the same day itself, Kho's other lawyer Jeanette Chong-Aruldoss separately tried to seek a stay of execution after filing a civil application and appealing to Judicial Commissioner Kannan Ramesh, but it was dismissed. However, she was given an 11 pm deadline to file a criminal appeal, and later in that day, Chong-Aruldoss successfully met the deadline and secured a temporary stay of execution for Kho Jabing pending the outcome of the newly filed appeal, for which Kho would not be hanged till the appeal was heard.[80] For her appeal, Chong-Aruldoss sought help from Alfred Dodwell, another lawyer, who agreed to help her in this appeal. Over this appeal, the five same judges who heard Singh's appeal earlier that day gathered overnight. Kho's family members also came to Singapore to hear the outcome of the appeal, with the help of the anti-death penalty activists who raised funds to pay for their trip to Singapore.
On 20 May 2016, at 9 am in the morning, after hearing the appeal, the Court of Appeal once again rejected this appeal, reiterating that the lawyers representing Kho had been rehashing their old arguments made before or withdrawn by Kho's previous lawyers in the previous appeals. Judge of Appeal Chao Hick Tin said, "This court should not be seen as a device to undermine the legal process. We cannot allow applications made at the eleventh hour, one after another" Justice Chao also said that the legal system of Singapore would be thrown into disrepute if it is allowed to be scuttled. He was also surprised at Chong-Aruldoss's decision to file a civil application when it was a criminal matter. Another civil application filed by Mr Dodwell to stay Kho's execution was also thrown out.[81][82] The outcome of the final last-minute appeal had also effectively put an end to Kho's 8-year long legal challenge against the death penalty. After the rejection of his final appeal, Kho, who was then resigned to his imminent fate, smiled and waved at the activists and bowed to them.
Shortly after his final appeal was thrown out by the Court of Appeal, the stay of execution was lifted and Kho Jabing's execution was ordered to take place in the afternoon of 20 May 2016 at 4.30 pm, according to the Malaysian High Commission.[83] Kho's family went to Changi Prison to see him one last time. Rachel Zeng, an anti-death penalty activist, expressed that this is the first time ever in Singapore where an execution was not carried out in the usual timing of dawn, and expressed why is there a rush to hang Kho.[84]
Execution
At 3.30 pm on the Friday afternoon of 20 May 2016, more than 8 years after the unfortunate death of Cao Ruyin, and merely hours after the dismissal of his final appeal, 32-year-old Kho Jabing was finally hanged to death in Changi Prison.[2][85] The execution was carried out an hour earlier than the scheduled timing of 4.30 pm.[86]
Before his death, Kho Jabing reportedly told his sister Jumai that he wanted her to celebrate her birthday (which is on 20 May). "Don't worry about me," Kho told her. "You should celebrate your birthday and not think about me. When you blow out the candles, you have to think that I am by your side." Kho also left behind a birthday card to his sister before he died.[57][87]
On the same day of 20 May 2016, shortly after Kho was executed, the Singapore Police Force released a statement and confirmed Kho's execution. They stated that the 32-year-old Malaysian had been "accorded full due process under the law" and was represented by legal counsel through the legal process.[88]
It was reported that on the same day of Kho's execution, there was another death row inmate who was executed at dawn. However, there is no confirmation of the executed prisoner's identity.
Reactions to Kho Jabing's execution
20 May (the death date of Kho Jabing)
Rachel Zeng, an anti-death penalty campaigner, reportedly said in an article that the execution of Kho Jabing was an immense shock to her and her fellow activists. She also said that the activists would help fund the funeral for Kho's family, and asked for the public to donate to help them in funding it.[91]
After Kho's execution, on the same day itself, Kirsten Han, another anti-death penalty advocate and founding member of the WBSC, published an emotional tribute dedicated to Kho Jabing on Facebook, titled "The life of Kho Jabing". In the tribute, she wrote in details of Kho's life in Sarawak and his time of employment in Singapore prior to the murder of Cao Ruyin, and also included some photographs of Kho's childhood. Han also wrote that Kho was drunk that night and the alcohol had impaired his mental responsibility at the time of the crime, but it was never properly put up in his original trial. She lashed out at Singapore's criminal justice system for placing Kho on a harrowing roller-coaster bid to escape the gallows since the first time he was sentenced to death and his period on death row.[7] The tribute was shared more than 1,000 times on Facebook.
Many users of Facebook were angered at the tribute's publication; many of them posted furious comments, accusing the activist for romanticising the deceased Kho and giving the convicted killer a hero treatment while not paying the same respect to the murdered victim Cao Ruyin. To an extent, some even questioned the true moral character of Kirsten Han, and pointed that even Cao Ruyin himself had a childhood and his death made him unable have a second chance at life and yet no details of his life in China and his family were given. One Facebook user, in response, made a tribute dedicated to Cao and described in graphic detail of how Kho attacked Cao on that fateful night of 17 February 2008, and another asked if Han cared to write a similar tribute about the victim and called her shameless. In general, many of these commentators condemned Kho as a murderer, with some stating that he deserved to die.
In response to these comments, Han stated she will not apologise for it, because it was not a news article she was publishing and said she would have interviewed Cao's family and wrote about him but she could not have possibly be "everywhere at once writing everything at once". She also added, however, she would document the struggles faced by the victims and anyone can contact her anytime, asking people to pay more attention to and help the victims and their families if they felt not enough attention is given to them.[92]
At the same time, according to a Malaysia news report, Suaram strongly condemned Singapore for sending Kho Jabing to the gallows. Sevan Doraisamy, Executive Director of Suaram, stated that the Singapore government had defied the public call to spare Kho from the gallows and unconscionably hanged him to death in the gallows. Doraisamy also accused the Singapore government for violating Kho's entitlement to a fair trial and failing to uphold the impartiality of the law when allowing Judge of Appeal Andrew Phang, who was involved in all the appeal hearings of Kho before and after the changes to the law and also one of the judges electing to sentence Kho to death, to be present in hearing Kho's last-minute appeal. He also accused the Singapore government for being "callous and unconscionable" for refusing to respond to and showing apathy to calls from Kho's family and members of the public to show mercy on Kho's life, and cited that Singapore's use of the death penalty had deviated from the international trend of abolishing the punishment. They said that the punishment will not serve the ends of justice and only created greater injustice to the deceased's family, and Suaram will continue its stance to oppose the death penalty and its call to all governments using it to abolish it.[93] Simultaneously, Amnesty International also issued a statement condemning Kho's execution, calling the execution "disgraceful".[94]
22 May
On 22 May 2016, two days after Kho's death, Ustaz Fadlon Osman, who acted as Kho's counsellor during the period Kho was on death row, recounted his experiences with Kho while the man is still on death row, saying that during tazkirah sessions, Kho would sit quietly and listen to talks by others. Kho was also able to quote verses of the Quran and hadith (religious texts) and recite the former fluently, and fasted during Ramadan and even voluntarily did so regularly. Fadlon also added that Kho had recited the Surah Yasin (prayer) before his death, requesting his friends to perform haj on behalf of him and prayed that his family would receive the guidance of Islam. Fadlon also held the funeral for Kho in Sarawak.[95]
At the same time, a Chinese-language newspaper published an article detailing the case of Kho. It stated that Kho's family and friends, and the anti-death penalty advocates and organisations tried to make use of the public opinion through media to save Kho's life, and to an extent, the abolitionists even tried to make use of the case's sensational nature to achieve their goal, which reflected criticism of such actions. On the other side, it cited that despite the local and international responses towards the case, the Singaporean government was not wavered by them and still carried out the hanging of the Malaysian, which tested and fully showed the true depth of Singapore's criminal justice system in the face of such interference, reflecting its praise to the government and the judicial system.[87]
On the same day itself, a Facebook page titled Humans of Singapore posted a photo of both Kho's mother Lenduk Anak Baling and sister Kho Jumai at a shop in Singapore, purchasing some new clothes and shoes for Kho to wear in order to take his final picture before he was hanged, and for him to wear before placing him in a coffin. The post contained the words of Jumai, who reiterated that her brother had only wanted to rob Cao Ruyin but not to kill him. She added that even though her brother is a murderer in the eyes of the public, her brother is still her brother and she still loves him, expressing the grief and longing both her mother and herself felt for his imprisonment and death.[96]
23 May
On 23 May 2016, a spokeperson representing the European Union (EU) made a statement that by executing Kho Jabing, Singapore had gone against the international trend of imposing a moratorium on the death penalty. The EU also expressed that the death penalty is ineffective in deterring crime and they would continue to push for Singapore to abolish the death penalty.[97]
24 May
On 24 May 2016, four days after Kho's death, The Independent, a newspaper in Singapore, published an article titled "How Kho Jabing affect us all". The article voiced its support for Kho's lawyers, citing the dedication and sincerity the lawyers had demonstrated in their final attempts to rescue Kho from the hangman's noose and that all accused persons deserves a fair trial, and yet the government is condemning them for "abusing the court process". The article is also questioning the decision of the justice system to send Kho to die on the scaffold; it points out that having the same judge (referring to Judge of Appeal Andrew Phang) to hear the two different appeals concerning Kho's case is affecting the neutrality of judging a person's guilt under the law. The article also wrote that the justice system affecting Kho is also affecting to all Singaporeans governed by it, given that it displays "procedural irregularity" (which the article claimed is the reason behind sending Kho to the gallows) and it should be a concern for all since it flouted the basic principles of the system. The article also blamed the condemnation by the public figures on Kho's lawyers as "politically-motivated" and "baseless accusations".[98]
Aftermath
AGC's criticism of Kho Jabing's lawyers
On 25 May 2016, five days after Kho Jabing's death, for the abuse of legal and court processes and "legal opportunism", Kho's lawyers - Jeanette Chong-Aruldoss, Alfred Dodwell and Gino Hardial Singh - were all severely reprimanded by the Attorney-General's Chambers (AGC).[99] The AGC also said that the actions by Kho's lawyers were not upholding the paramount duty a lawyer owes to the court and the abuse of process cannot be justified by the lawyer's duty to his/her clients. They noted that "cherished principle in our legal tradition that a legal practitioner must do his utmost to uphold the administration of justice", but the proceedings should be held in a fair and efficient manner with integrity. They considered the conduct of the lawyers amounted to an abuse of process since the case of Kho Jabing was already exhausted of all avenues of appeal and that there were repeatedly old arguments in all the last-bid attempts to save his life. The Ministry of Home Affairs (MHA) additionally commented on the same day, agreeing with the AGC's statements, saying that the last-ditch attempts by Kho's lawyers appeared to be solely trying to delay Kho's execution.
On the other hand, some people, including lawyer Choo Zheng Xi and Kirsten Han, spoke up for Kho's lawyers in support. Choo said on Facebook, "In the best traditions of the bar, Jeannette (Chong-Aruldoss) and Alfred (Dodwell) stepped into the breach and argued their client’s case with vigour." Han also shared Choo's Facebook post and thanked "all the lawyers, past and present, who have tried so hard against such massive odds." Chong-Aruldoss and Dodwell also spoke up their side of the story to the media. Chong-Aruldoss said that after the conclusion of the case, she received a phone call from Kho's sister Kho Jumai, who thanked her for her efforts, "I was merely her lawyer acting under her instructions. A lawyer’s job is to explore, pursue and exhaust his/her client’s legal recourses. Jumai would not regret that she had not done enough for her brother. Neither will I regret that I did not do my best for my client." Dodwell also said that there is a firm belief among lawyers that Kho did not deserve capital punishment, and in his own words, he added, "So we mounted a constitutional challenge. Only in Singapore can a constitutional challenge be characterised as an abuse of process. If we invoke the supreme law of the land, the courts should not wave it away to hurry toward execution."[100] Later on however, Dodwell retracted his allegations against the court, and issued a letter of apology to the Supreme Court of Singapore, acknowledging the criticisms of his conduct after the AGC pointed out to him that certain allegations he had made were in contempt of court and entirely untrue. This apology was made public on Dodwell's Facebook page.[101]
Steven Chong's 2015 lecture
On 15 November 2016, five months after the hanging of Kho Jabing, there was a lecture titled "Recalibration of the Death Penalty Regime: Origin, Ramifications and Impact", sponsored by a law firm (Withers KhattarWong), at its auditorium in Raffles Place. The lecture was attended by judges, academics and others from the legal industry, including National University of Singapore law students. The lecturer was Supreme Court Justice Steven Chong Horng Siong, who was previously the Attorney-General of Singapore from 25 June 2012 to 25 June 2014 before his appointment as a judge in the Supreme Court of Singapore.
In his lecture, Justice Steven Chong said that while the amended laws are significant, they fall short of initiating "any paradigm shift in policy". He said it was an overstatement to say that the government had made a dramatic shift in its position on the mandatory death penalty (which remained so for all degrees of murder for around 120 years before 2013). He said that there will still be an emphasis on deterrence regardless of any change in the area. Citing the case of Kho Jabing, Justice Chong stated that it was not an easy task to the exercising of discretion in capital cases, as there are challenges arising from many applications of re-sentencing since the 2013 law reforms. Regarding the 3-2 decision of the Court of Appeal (which led to Kho Jabing being sentenced to hang again), Justice Chong pointed out that the five-judge panel was unanimous on the principle involved and adopted even though it was " divided on the outcome". He noted that all five judges had agreed that in cases where the death penalty was not mandatory, a death sentence was justified if the offender's actions had "outraged the feelings of the community".
Justice Chong also said it is arguable whether the Court of Appeal, in its 2015 decision, should have established a balance sheet of aggravating and mitigating factors, which could be taken into account in exercising discretion. The issue was the "perennial tension" between "individualised justice and consistency in sentencing":
The balance between the two is delicate. Incline too far in favour of the former, and you risk arbitrariness and capriciousness in sentencing; lean too far in favour of the latter, the benefits of individualised consideration brought about by the amendment Act would be lost.
Justice Chong also did not neglect to make it clear that the courts would still has to examine all the facts and circumstances of every case to determine whether a death sentence is appropriate. He commented that the principle and approach adopted by the five-judge Court of Appeal in its 2015 judgement of Kho Jabing's case was the right one.[102]
Kirsten Han's TED speech
On 18 March 2017, nearly a year after Kho Jabing's death, Kirsten Han, member of the WBSC, gave a speech in TEDxNUS, an independently-organised TED event. The speech was about the death penalty in Singapore. In her speech, Han stated the emotional turmoil and stigma which death row inmates' families go through when the inmate was undergoing court proceedings for a capital offence and sentenced to death, and executed. She also brought up the life of prisoners in death row confinement and the method of how Singapore hanged the prisoners; Han also expressed her anti-death penalty views and hope that more public awareness can be raised about the death penalty in Singapore. In her speech, Han also brought up the case of Kho Jabing and talked about the emotions of Kho's family to support the evidence of the struggles which families had to experience when their loved ones were sentenced to death. In midst of her speech, she also mentioned that an unnamed death row inmate was executed the day before she made her speech. This speech was uploaded on YouTube on 30 May 2017.[103][104][105]
Fates of Kho Jabing's family members
After the execution of Kho Jabing, Kho's family, especially his mother and sister, returned to Sarawak. There were no further reports since Kho's execution regarding details of the subsequent lives of Kho's loved ones.
Impact on other cases
Singapore's death penalty guidelines for murder (2015–present)
The outcome of the prosecution's appeal set the main guiding principles for judges to decide when the death penalty should be warranted - whether an offender had demonstrated a blatant disregard for human life or viciousness or both during the killing - and when it was inappropriate based on the circumstances of whichever murder case even without an intention to cause death. The below sequential list of cases are the murder cases and appeals that were directly or indirectly impacted by the landmark ruling of the Court of Appeal regarding Kho Jabing's fate in 2015.
Murder of taxi driver Yuen Swee Hong (11 April 2009)
Shortly after the conclusion of the prosecution's appeal, it did not take long before the appeal verdict of Kho Jabing's case made a direct impact on another appeal made by the prosecution against another High Court decision to re-sentence a murderer to life imprisonment.
Another appeal filed by the prosecution for the re-sentencing of a murderer was that of convicted murderer and Chinese national Wang Wenfeng. Wang was initially sentenced to death for killing 58-year-old taxi driver Yuen Swee Hong during an attempted armed robbery, but he was eventually re-sentenced to life imprisonment and 24 strokes of the cane on 14 November 2013 after the new death penalty laws took effect in January of that same year. Wang committed the crime on 11 April 2009 when he tried to rob Yuen and threatened him from behind the driver's seat with the knife. A struggle ensued, and the driver was injured with knife wounds and bled heavily. Panicked upon seeing the driver's limp body, Wang thought that the man had died and abandoned the body in a nearby forest. He later attempted to extort ransom by using Yuen's phone to contact Yuen's widow, Mdm Chan Oi Lin, lying to her that her husband was kidnapped. Chan, who had a son and daughter with Yuen, contacted the police without the realisation that her husband had died. Wang was promptly arrested and despite his denials of the crime, Wang later confessed to the killing out of eventual guilt and led the police to the place where he disposed Yuen's body. Wang, who was married with a daughter back in China, was charged with murder and later sentenced to death in September 2011; he also lost his appeal sometime before his re-sentencing.[106][107] The reasons behind his re-sentencing was that he had no intention to murder but to rob, and there was no premeditation to cause death.
DPP Bala Reddy, who led the prosecution in the re-sentencing trial, argued in that trial itself that Wang's case deserved the death penalty because Wang had shown a high degree of premeditation and planning in committing the crime and the time he chosen to commit the crime - 4 in the morning - was the time likely to have a lower risk of detection of his crime, and there should be a deterrence of future crimes committed against public transport workers, especially taxi drivers; and the courts should severely punish those who commit violent, opportunistic and heinous offences. Wang's defence lawyer Wendell Wong meanwhile, argued for a life term with not more than 10 strokes of the cane, pointed out that there is no increase in the number of cases where taxi drivers were killed, a point which Justice Lee Seiu Kin (the High Court judge presiding Wang's original trial) agreed with. He also said if Wang had wanted to kill Yuen, he would not have to wait for the struggle to erupt. Wong also said, "He (referring to Wang Wenfeng) had every opportunity and the upper hand to stab Yuen the moment he stepped into the rear passenger side of the taxi." But Wang did not do so.[108][109][110]
Like in Kho Jabing's case, the prosecution filed an appeal for the death penalty on Wang. At the time of the delivery of the judgement of the appeal over Kho's case, the prosecution is still appealing against Wang's sentence. While pending its appeal, the prosecution reviewed Wang's case extensively while they referred to the written verdict of Kho's case. Eventually, on 19 April 2015, they decided to drop the appeal against Wang, effectively making Wang Wenfeng escaping the gallows, as the high degree of decomposition of Yuen Swee Hong's corpse made it so that the prosecution could not fully assess the level of brutality of Wang's attack on the deceased victim. They also took note that unlike Kho's premeditated assault on Cao Ruyin, Wang injured the taxi driver during a struggle.[111] Wang is currently in prison serving his life sentence. He was the fifth convicted murderer to escape the gallows since the changes to the law, as preceded by Kamrul Hasan Abdul Quddus, a Bangladeshi national who was re-sentenced to imprisonment for life with 10 strokes of the cane for the 2007 murder of his girlfriend.[112]
The death of Shanmuganathan Dillidurai (29–30 May 2010)
One notable case that was affected by the appeal verdict was the 2010 Kallang Slashings, where a group of robbers from Sarawak committed a series of violent robberies around Kallang Area, leading to the violent death of Indian construction worker Shanmuganathan Dillidurai during the last of these four robberies. One of the perpetrators, Micheal Anak Garing, who used a 58 cm long parang to fatally attack and slash Shanmuganathan while robbing him, was convicted of murder on 20 January 2014 and sentenced to death on 20 April the following year (as the trial judge found that he had violently attacked his victims in each robbery and thus his conduct warrants the death penalty).[113][114] In upholding Micheal's death sentence in 2017, the Court of Appeal, with reference to the judgement of Kho's case, were satisfied that Micheal had attacked Shanmuganathan in a savage and merciless manner and demonstrated a blatant disregard for human life during the attack.
Another one of the perpetrators, Tony Anak Imba, who stood trial together with Micheal, was also found guilty of murder; however, unlike Micheal, he was spared the gallows and sentenced to life in prison and 24 strokes of the cane, with the sentence backdated to the date of his conviction.[115] The prosecution appealed for the death penalty, but the Court of Appeal dismissed the appeal in 2017, as they found that Tony did not sufficiently reflect a blatant disregard for human life from the review of his conduct and mental state at the time of the crime, citing that even if he likely knew that Micheal would use the parang on Shanmuganathan as he did on all their previous victims, and had been the one initiating the attack, it is insufficient to indicate any blatant disregard for human life on Tony's part. Thus, they upheld Tony's life sentence, and currently, Tony Imba is still placed under incarceration with respect to his life sentence since 20 January 2014.[116][117][118] The other two main accomplices were each sentenced to severe penalties of 33 years’ imprisonment with 24 strokes of the cane each in 2013 and 2018 respectively for four charges of armed robbery with hurt while the remaining four arrested in connection to the crime spree of Kallang were imprisoned between 2 and 6 years and caned between 6 and 12 strokes of the cane.[119][120]
On 22 March 2019, after losing his final appeal for clemency, 30-year-old Micheal Garing was put to death in Changi Prison for his crime. A day after his execution, Micheal's body was sent back to his hometown in Sarawak, Malaysia for burial.[121][122]
Murder of Dexmon Chua Yizhi (28–29 December 2013)
Another example is a 58-year-old murder convict named Chia Kee Chen, whose life imprisonment sentence was overturned by the Court of Appeal upon the prosecution's appeal and was given the death penalty on 27 June 2018 for the brutal killing of his wife's 37-year-old former lover Dexmon Chua Yizhi. On 28-29 December 2013, Chia abducted the victim with two accomplices, Indonesian Febri Irwansyah Djatmiko and Singaporean Chua Leong Aik from a carpark in Choa Chu Kang, and inside their van, he and Febri electrocuted and grievously assaulted the victim until he died (during the assault, Chua Leong Aik fled half-way out of fear) and later abandoned Dexmon Chua's dead body in a Singapore Armed Forces live firing area in Lim Chu Kang. Prior to the cold-blooded murder, Chia was said to have discovered the affair between his own 47-year-old wife Serene Goh Yen Hoon and the victim Dexmon Chua (who was Goh's colleague) in November 2012, and at Chia's demands, Mdm Goh ended the affair. In February 2013, Chia discovered a Chinese New Year greeting mistakenly sent to his wife by Dexmon Chua over WhatsApp, which made him enraged. He subsequently made threatening calls to the murdered victim and stalked him twice throughout the year 2013 until Christmas Eve, he finally hatched a revenge plan to kill Dexmon Chua, which he planned together with Febri and Chua Leong Aik. Chia was arrested on 31 December 2013 and the next day, after leading the police to where he disposed the dead victim's body, Chia was charged with murder and placed under remand pending his trial.
Chua Leong Aik, who acted as driver, was subsequently arrested on 9 January 2013 and nearly 3 years later, on 8 January 2016, Chua Leong Aik was sentenced to 5 years' imprisonment by Senior judge Kan Ting Chiu[123][124] for abetting the abduction while Febri fled Singapore and went on the run in Indonesia (he was later caught in Indonesia but was not extradited due to no extradition treaty made between two countries). As for Chia meanwhile, he was brought to trial for murder in late 2016, and he was found guilty of murder under Section 300(c) of the Penal Code on 17 January 2017. Chia had denied in his trial that he did the abduction out of revenge for the affair Dexmon Chua had with his wife, and even denied having taken part in the assault and even pushed the blame on a man named "Ali", which were all rejected by High Court judge Choo Han Teck, who found that Chia had intentionally assaulted the victim together with Febri with the common intention to cause the fatal injuries on the victim, and labelled him as an "unreliable witness". Sentencing for Chia was postponed till a later date.[125][126]
The prosecution, led by DPP Tan Wen Hsien, sought the death penalty on account of the brutal and bloody nature of Dexmon Chua's murder and the cruel, savage and callous execution of Chia's fatal assault on the victim. DPP Tan even argued in her submissions that Chia had an utter lack of remorse for his actions and had acted in a calm and collected manner during the killing, which made it more appropriate for Chia to serve a death sentence. The defence, led by defence lawyer Anand Nalachandran, argued for life imprisonment as there was no conclusive evidence that Chia planned to murder Dexmon Chua. He also argued that there was only a plan to abduct, not to kill the victim, in contrast to Febri's account (which he made to the Indonesian police) which detailed a murder plan. Anand said Febri's account was "self-serving" and should not be accepted.[127] On 4 August 2017, Chia was sentenced to life imprisonment, as Justice Choo said there is a possibility that Febri may have inflicted the fatal blow even though Chia had the motive and intention to kill, and the murder charge which Chia faced was under Section 300(c) of the Penal Code instead of Section 300(a) (under which the death penalty is mandatory if found guilty), which was why he decided to not pass a death sentence on Chia.[128] The life sentence was backdated to 1 January 2014, the date of Chia's first remand. After the conclusion of the trial, the prosecution, which was now led by DPP Hri Kumar Nair, appealed for the death penalty, and hence, after hearing the appeal, the Court of Appeal unanimously allowed the appeal on 27 June 2018 and raised Chia's life sentence to death, condemning him to hang on a later date for Dexmon Chua's murder.
The Court of Appeal, in sentencing Chia to death, citing the guiding principles set by Kho's case, stated that the unremorseful Chia had "exhibited such viciousness and such a blatant disregard for the life of the deceased, and are so grievous an affront to humanity and so abhorrent that the death penalty is the appropriate, indeed the only adequate sentence", given that he masterminded the abduction out of revenge for his wife's adultery, shown a high degree of premeditation and planning and his only regret for not giving the victim more suffering before his unfortunate death. The three-judge panel, led by Chief Justice Sundaresh Menon, also cited that although it may be true that Febri could have inflicted the fatal injuries, he did so under Chia's directions and Chia himself not only do not tell Febri to stop the assault, but joined in the attack. Before his arrest, Chia even calmly went for a holiday trip to Malaysia with his wife and two daughters (then aged 18 and 22 respectively) while taking the chance to help Febri to flee the country.
CJ Menon, who read out the judgement he made together with two other judges Judith Prakash and Tay Yong Kwang, said in his own words regarding Chia's role, "One who hires an assassin to kill another or who otherwise controls a killer, cannot be less culpable than the one who does the killing." Additionally, Chia's appeal against his conviction was dismissed by the same three judges in the same court where the prosecution's appeal was heard and allowed.[129][130]
When her daughter informed her that her son's killer was sentenced to death, Dexmon Chua's elderly mother made a comment in Chinese, "Justice is finally served for my son, but my beloved son will never come back to life anymore." She described her son, who was the second of her three children, as a filial and dutiful son who cared about his parents and always buy his parents' favourite snacks for them to eat. She described her son's death as a huge blow for her, and she took it very badly when she heard that Chia was sentenced to life imprisonment instead of death. Dexmon Chua's mother had earlier begged for the prosecution to argue for the death penalty in their appeal against Chia's life term.[131]
Since then, it is possible that Chia Kee Chen was hanged sometime in 2019 since prison statistics showed a total of four executions of two locals and two foreigners[132] carried out in the year 2019 itself, which consist of two reported hangings of Malaysians Micheal Anak Garing[133] and Abd Helmi Ab Halim[134] for murder and drug trafficking respectively and two unreported hangings of Singaporeans (whose identities were not publicly verified) for murder and drug trafficking.[135]
Chan Lie Sian v Public Prosecutor [2019] SGCA 44 (14 January 2014)
The prosecution's appeal against Chia Kee Chen's case, as well as the case of Kho Jabing, was also crucial to helping 55-year-old brothel owner Chan Lie Sian to escape the gallows. Chan, alias Benny Seow, was initially sentenced to death on 31 May 2017 for the 2014 murder of 35-year-old William Tiah Hung Wai, but on 30 July 2019, the Court of Appeal allowed Chan's appeal and reduced his death sentence to life imprisonment.[136][137][138] Chan's case was that he found some $6,500 in cash missing from his brothel, and suspected Tiah, who pimped at his brothel, as the one who stole the money. After Tiah, who is also known as "William Kia", came to the brothel as summoned by Chan, Chan physically assaulted Tiah (who denied stealing the $6,500) by using a dumbbell to hit him while asking for the whereabouts of the missing money until the victim fell unconscious. 10 injuries were caused on Tiah's head and it landed him to hospital, where he would die exactly a week later on 21 January 2014, the day before Tiah's 36th birthday.[139]
Chief Justice Sundaresh Menon, and Judges of Appeal Andrew Phang and Judith Prakash, who heard Chan's appeal, found that Judicial Commissioner Hoo Sheau Peng, the original trial judge of Chan's case, had erred in convicting Chan of murder under Section 300(a) of the Penal Code and sentencing him to the mandatory penalty of death, as there was no intention on Chan's part to cause death, and that some of William Tiah's injuries were caused by "interventing objects" and not from Chan's assault as evidenced by the forensic expert's court testimony.
Furthermore, if Chan intended to cause death, he would have done it during those moments where there were no witnesses and the victim being helpless on the bed, and he would not have splashed water on Tiah's face to attempt to revive him and threatened to further attack the victim once he woke up under the eyes of a witness. Hence, they instead convicted Chan of murder under Section 300(c) of the Penal Code. With regards to the sentence, the Court of Appeal also found that from the facts of the case, Chan did not deserve the death penalty as he did not exhibit any blatant disregard for human life or viciousness in contrast to Kho Jabing's case. They also accept that Chan was not aware of the fatality of the injuries he caused to Tiah from the time of and aftermath of the attack. Chan had in fact surrendered himself to the police 2 days after the assault, with the assumption that Tiah's injuries were not fatal, and he thought he would be charged and tried for voluntarily causing grievous hurt. Hence, Chan escaped with his life and received a life term instead. No caning is imposed due to his age of 55 at the time of the conclusion of his appeal process.[140]
Circuit Road flat murder (21 March 2016)
The murder of Zhang Huaxiang at a rented flat in Circuit Road on 21 March 2016 was another case where Kho Jabing's case was once again, mentioned and referred to. The 28-year-old Chinese national and nurse was found strangled to death on her bed, and the owner of the flat and Zhang's murderer, 47-year-old Malaysian and cafeteria worker Boh Soon Ho, fled Singapore into Malaysia, where he was arrested on 4 April of that same year. Boh was said to have a close relationship with Zhang since 2011 or 2012, regarding her as his girlfriend but his feelings for her were not reciprocated and they never been physically intimate. He found out that she was seeing other men and was angry and suspicious. When he asked her about it and received an reply that she did, Boh was enraged and used a towel to strangle her to death, before attempting to have sex with Zhang's corpse. The case became known as the Circuit Road flat murder.
Boh Soon Ho, who was represented by prominent lawyer Eugene Thuraisingam, was subsequently brought to trial in September 2019 and convicted of murder under Section 300(c) of the Penal Code on 7 February 2020, as the trial judge, Justice Pang Khang Chau, rejected Boh's defence of grave and sudden provocation and loss of self-control despite acknowledging that Boh was indeed provoked into killing Zhang, as he found the provocative acts from Zhang was not sufficiently grave enough to have Boh convicted of a reduced charge of culpable homicide not amounting to murder. The next day, 51-year-old Boh Soon Ho was sentenced to life imprisonment, nearly 4 years after the death of Zhang Huaxiang. Justice Pang stated in his judgement that he accepted Boh's killing of Zhang was not premeditated, and that there were no viciousness or blatant disregard for human life in the case as compared to Kho Jabing's case, which made the death penalty inappropriate in Boh's case; the judge also took note of Boh's low IQ of 74 and his remorse over the incident during sentencing. As he is aged more than 50 at the time of sentencing, Boh was thus not caned.[141][142]
On the same day of Boh's sentencing, Thuraisingam confirmed that his client will appeal against his murder conviction. On 28 October 2020, more than 8 months after his conviction by the High Court, 52-year-old Boh Soon Ho's appeal was dismissed by the Court of Appeal. The three judges hearing the appeal - Judges of Appeal Tay Yong Kwang and Judith Prakash and High Court judge Woo Bih Li - unanimously found that Boh was not suffering from sudden and grave provocation when he murdered Zhang Huaxiang. They additionally rejected the original trial judge's finding that Boh was indeed provoked, albeit not gravely or lost his self-control in killing Zhang Huaxiang. Justice Tay, who delivered the judgement, read that they felt Boh was more frustrated and agitated that he never got to have sex with the victim. He also cited a psychiatric report which the judges referred to, in the aftermath of the murder, some aspects of Boh's conduct at that time, such as fleeing Singapore and went into hiding in his hometown in Malacca, reflected a state of mind that was "unfettered by any loss of self-control or impulse control". Despite upholding Boh's conviction for murder, they did not commute Boh's life sentence to a death sentence and hence Boh is currently in prison serving his sentence.[143][144] Although his life sentence was taken to mean spending the rest of his natural life in jail, Boh will be entitled to a possible chance of release on parole after spending at least 20 years in jail provided that he maintained good conduct in prison.
Public Prosecutor v Toh Sia Guan [2020] SGHC 92 (9 July 2016)
Kho Jabing's case, as well as Chia Kee Chen's, was once again mentioned in the case of 67-year-old Toh Sia Guan, a rag and bone man who was sentenced to life in prison in March 2020 for murdering a 52-year-old coffee shop assistant named Goh Eng Thiam by inflicting a fatal stab wound across Goh's right upper arm, which cut through a major blood vessel and caused him to bleed to death. Earlier before the incident on that fateful day of 9 July 2016, 64-year-old Toh was involved in a dispute with Goh, and got into a fight before Toh left to purchase a knife to settle scores with the man once more. This resulted into a second fight which cost Goh Eng Thiam his life. After the fight (in which Toh escaped to another place to clean himself up and change his clothes), Goh, who laid down and rested his head on the kerb, was subsequently pronounced dead at the scene by paramedics arriving at the scene. Toh was arrested 12 days later at Labrador Park MRT station and charged with murder, and his trial started on 6 August 2019.
High Court judge Aedit Abdullah, who found Toh Sia Guan guilty and convict him of murder under Section 300(c) of the Penal Code on 12 February 2020 before reserving his judgement until 2 March 2020, accepted that Toh did not reflect any blatant disregard for human life or viciousness during the fight with Goh Eng Thiam, because of the absence of premeditation and planning as compared to Chia's case, and also unlike Kho Jabing (who injured Cao Ruyin by surprise and further assaulted him even after he was down), Toh injured the victim during a fight where he is still retaliating against him and never further made any additional injuries on the victim. In Toh's case, there is only one fatal injury sustained by Goh Eng Thiam in contrast to the multiple fatal injuries which Cao Ruyin received from Kho Jabing's attack; and the fight was the elderly Toh pitted against the younger, stronger and more aggressive victim. Justice Aedit also accepted that Toh was unaware of the fatality of the stab wound. He further noted that the prosecution is not seeking the death penalty while the defence argued for life imprisonment for the accused.
Because of these above factors, and the absence of outrage of the feelings of the community from Toh's actions, Justice Aedit found the death penalty inappropriate in Toh's case and hence sentenced him to incarceration for life with effect from 21 July 2016, the date of Toh's remand. Toh was not subjected to caning due to his age. Not only did Justice Aedit referred to Kho Jabing and Chia Kee Chen's cases in his verdict while making his decision, he also cited the cases of Chan Lie Sian and Micheal Anak Garing while determining whether Toh acted in a manner where it particularly warranted the death penalty while murdering Goh.[145][146][147][148]
In the aftermath, nearly a year later since he was convicted and sentenced, Toh Sia Guan's appeal against his sentence and conviction was dismissed on 2 February 2021 (Toh argued the appeal on his own without a lawyer this time). The three-judge Court of Appeal (consisting of Judges of Appeal Tay Yong Kwang, Andrew Phang and Belinda Ang), in its ex tempore judgement, cited that Justice Aedit was not incorrect to convict Toh of murder and also rejected his defence that he done the stabbing accidentally or the deceased coffee shop assistant being the one starting the fight. They rejected that Toh's life sentence was harsh on the basis that murder under Section 300(c) of the Penal Code only warranted two alternative penalties and thus the trial judge could not impose any other punishment lower than life imprisonment.[149] Toh is currently in jail serving his life sentence since 21 July 2016.
Gardens by the Bay murder (12 July 2016)
Through Chia Kee Chen's case, the guiding principles from Kho's case had also indirectly determined the final fate of 51-year-old Leslie Khoo Kwee Hock, who was sentenced to life imprisonment on 19 August 2019.[150][151] He was convicted of murder under Section 300(b) of the Penal Code the month before for the death of his 31-year-old lover, Chinese national Cui Yajie, on 12 July 2016.[152] Cui, who was an only child in her family, was an engineer from Tianjin, China. She first came to work in Singapore since 2012. When both Khoo and Cui first met in 2015, Khoo lied to Cui that he was single and was an owner of a laundry business when he himself was actually married with a son and was a retail manager of that same laundry business he claimed was his. Later, when Cui became suspicious, Khoo told her that he was divorced.
The relationship would later on be riddled with quarrels over Khoo spending less time with Cui and a debt of $20,000 which he owed her for making investment with that same amount of money in gold (half of that amount was eventually paid back by Khoo asking a former lover to remit the money in Cui's father's bank account). It was on that fateful day of 12 July 2016, in an unexpected turn of events, when Cui wanted to go to Khoo's workplace, supposedly to expose Khoo's lies, but Khoo intercepted her, taking her to a secluded place near Gardens by the Bay to calm her down. It was then during a heated quarrel, Khoo strangled Cui to death, and after he drove aimlessly around Singapore, he went back home with Cui's corpse, covered in laundry bags, still in the car. The next day, Khoo took the body to Lim Chu Kang Lane 8 after buying some charcoal and kerosene, where he burnt it for three consecutive days before his arrest on 17 July 2016. There were only a few clumps of hair, a bra hook and partially burnt pieces of Cui's dress left at the site where Khoo burnt Cui's body. This case was known as the Gardens by the Bay murder in media reports. Khoo's case was the second case in Singapore's legal history where a person was charged with and tried for murder in the absence of a body (the first was that of Sunny Ang Soo Suan, who was sentenced to death in 1965 for the murder of his barmaid girlfriend during a scuba diving trip, solely based on circumstantial evidence and without the body).
After the conviction of Leslie Khoo, the prosecutors, led by DPP Hri Kumar Nair, sought a life sentence for Khoo in their submissions on sentence while the defence asked for the sentence to be backdated to Khoo's date of remand. After receiving these submissions, High Court judge Audrey Lim noted in her judgement that in contrast to Chia Kee Chen's case (and indirectly, Kho Jabing's case), Khoo did not show any blatant disregard for human life or viciousness from the manner of killing, for which his case would not warrant the death penalty. She also accept that there is no premeditation of killing Cui Yajie on Khoo's part, as his intention all along was just to calm her down and dissuade her from confronting his supervisors, before the tragic incident. She also noted that even though Khoo had gone to great lengths to dispose the body to cover up his crime and never called for help when Cui went motionless, it was not an relevant factor to be considered during sentencing. Hence, she decided to sentence Khoo to life in jail instead of death and backdate Khoo's life term to the date of his remand, as what Khoo's lawyers requested for (and the prosecution did not object to it). Khoo, who denied having an affair with Cui and claimed abnormality of mind and other factors in his defence during his trial (which lasted from March to July 2019), was spared the cane as he was above 50 years old at the time of sentencing.[153] Leslie Khoo is currently appealing against his murder conviction and sentence. He also faced a total of six charges of cheating and criminal breach of trust by misappropriating $88,600 in total, for which he would stand trial after the conclusion and outcome of his appeal process for Cui Yajie's murder.[154]
The case was re-enacted in the year 2020's season of Crimewatch, and it aired as the fifth episode of the show's year 2020 season on 20 September 2020. A few details of the case were altered in the re-enactment for dramatic purposes (e.g. the victim Cui Yajie's name was changed to Chen Peipei; while Khoo still keeps his name in the re-enactment).[155]
Re-opening of concluded criminal appeals
Not only did Kho Jabing leave an impact on Singapore's legal history through the death penalty, he also left behind a legacy for the requirements of reopening any concluded criminal appeals through the first of his three last-minute appeals made in November 2015, which effectively suspended his hanging. The Court of Appeal, in dismissing Kho's appeal in April 2016 (the month before Kho's execution in May), earlier ruled that the reviews of concluded criminal appeals would be allowed "only in truly exceptional cases" to avoid potential miscarriage of justice.
Ilechukwu Uchechukwu Chukwudi v Public Prosecutor [2020] SGCA 90 (2 August 2017)
On 2 August 2017, for the first time, the Court of Appeal ordered a review of its previous decision from 2015 regarding the case of a convicted drug trafficker who was pending the mandatory death penalty in Singapore.
The case was about a Nigerian man named Ilechukwu Uchechukwu Chukwudi, who, at age 25, came to Singapore on 13 November 2011 to purchase laptops to sell back home in Nigeria. In Ilechukwu's account, he said that he was told by a childhood friend to pass a black suitcase to the friend's Singaorean contact, which Ilechukwu did by passing it to Hamidah bte Awang, a 45-year-old Singaporean woman. Ilechukwu was arrested in a Chinatown hotel the next day when nearly 2kg of methamphetamine were found in the suitcase during Hamidah's arrest at the Woodlands Checkpoint. Both Ilechukwu and Hamidah were tried in the High Court together for drug trafficking, but on 5 November 2014, only Hamidah was found guilty while Ilechukwu was acquitted of the crime, as the trial judge, High Court judge Lee Seiu Kin, accepted that Ilechukwu did not know that the suitcase contained drugs.[156] Nearly a year later, on 16 October 2015, 49-year-old Hamidah, who was certified to be a drug courier and had substantively assisted the Central Narcotics Bureau in disrupting drug trafficking activities from in and/or out Singapore, was sentenced to life in prison, with her life sentence backdated to the date of her arrest (13 November 2011).[157] She was not caned since caning is not allowed for women under Singapore law.
However, as for Ilechukwu, the prosecution appealed against the acquittal of the Nigerian, and after hearing the appeal, the Court of Appeal overturned Ilechukwu's acquittal in June 2015 and convicted him of drug trafficking, making Ilechukwu potentially facing the gallows. The three-judge court found that Ilechukwu had lied numerous times in his statements to the police to distance himself from the methamphetamine found in the suitcase he had brought into Singapore and passed to Hamidah. Ilechukwu earlier said in court that the reason he told these lies was he did not know the full facts of what had occurred, so he felt that the safest thing to do was to deny anything that was not in his possession. He also earlier denied passing the suitcase to Hamidah and other facts (which were disputed by Hamidah's testimony and other evidence like CCTV footages of Ilechukwu passing the suitcase to Hamidah). The Court of Appeal also rejected the Nigerian's reasoning behind his lies, saying they were "no more than convenient excuses". The case was subsequently remitted back to the High Court for sentencing, meaning that Ilechukwu will either be sentenced to death, or at least to life imprisonment.[158] The defence sought for medical evidence to see if Ilechukwu was eligible for a requirement under the Misuse of Drugs Act which would warrant life imprisonment instead of death for Ilechukwu if the requirement is met (the requirement is that if a person who is convicted of capital drug trafficking is substantially suffering from diminished responsibility at the time of the offence, the punishment would not be the mandatory death penalty but mandatory life imprisonment without caning).
During a psychiatric evaluation in preparation for the sentencing of Ilechukwu, psychiatrists found that Ilechukwu was suffering from post-traumatic stress disorder (PTSD) at the time of his interrogations and giving his statements to the police. The illness was a result of a childhood trauma from Ilechukwu witnessing a massacre at Wukari, Nigeria in 1990, including the Hausa tribe, armed with choppers and cutlasses, attacking Ilechukwu's native tribe (the Igbo tribe), a corpse outside Ilechukwu's mother's shop, and the deaths that happened before Ilechukwu, who was merely five or six years old at that time. Dr Jaydip Sarkar from the IMH, one of the four psychiatrists assessing Ilechukwu, said the PTSD was likely to have caused Ilechukwu to lie in the statements he gave to the anti-narcotics officers interviewing him shortly after his arrest. In light of this new evidence, Ilechukwu applied to reopen the case, and the Court of Appeal allowed the application and reopen his case on 2 August 2017,[159][3] ordering the High Court to assess if Ilechukwu was indeed suffering from PTSD during the time of the alleged offence. It cited and referred to the case of Kho Jabing (regarding the reopening of his case), stating that from Ilechukwu's case and his new medical evidence, "The present motion is, in our view, such a 'truly exceptional' case because of the unique turn of events. It is entirely fortuitous that the IMH report - issued only at the sentencing stage and emanating from the prosecution's request for a psychiatric report - has raised a matter which has a crucial bearing on our decision."[3]
On 5 July 2019, the original trial judge Lee Seiu Kin found that Ilechukwu was indeed suffering from symptoms of PTSD during the recording of his statements.[160] On 17 September 2020, after reviewing Ilechukwu's case, a rare five-judge Court of Appeal, by a historic split decision of 4 to 1, overturned Ilechukwu's conviction and acquitted him once again, allowing Ilechukwu, then 34 years old, to walk out of prison a free man nearly 9 years after his arrest. Four judges hearing the appeal - Chief Justice Sundaresh Menon, Judges of Appeal Andrew Phang and Judith Prakash, and Senior Judge Chao Hick Tin - consisted of the majority who quashed Ilechukwu's conviction while the fifth and last judge, Judge of Appeal Tay Yong Kwang, was the sole judge who upheld Ilechukwu's conviction.
CJ Menon, who read out the judgement in court, said that the majority had concluded that the 2015 decision was "demonstrably wrong". In his own words, CJ Menon read, "In our judgment, there is now a plausible innocent explanation that accounts for the applicant's lies and omissions in his statements." He also said that the majority accepted the defence psychiatric team's report that due to PTSD, Ilechukwu had overestimated the threat on his life in being accused of a capital crime that potentially will lead to him being hanged and prompted the Nigerian to "utter the unsophisticated and blatant falsehoods in his statements in an attempt to escape from the death penalty and to save his life." He additionally commented that if the medical evidence was presented earlier in 2015, the outcome would have been different.
In his individual dissenting judgement, Justice Tay opined that the new evidence did not reveal much error in the previous appeal decision in 2015 regarding Ilechukwu's alleged guilt of the crime. Although the judge expressed his sincere sympathy to Ilechukwu for the horrors of the massacre he witnessed back in his homeland as a young boy of five or six years old, he said in his own words, "However, in the final analysis of all the evidence here, (Ilechukwu)'s defence was truly a highly unlikely account from a totally unreliable and untruthful source." He described Ilechukwu's defence as "a case of hypothesis built upon hypothesis built upon hypothesis, in order to try to explain away a continuous and consistent stream of very focused lies".[161][162][163][4][164] Ilechukwu Uchechukwu Chukwudi was the second case of a Nigerian escaping the death penalty in Singapore in the last two years after Adili Chibuike Ejike, who was initially sentenced to death in 2017 for a 2013 drug trafficking crime but acquitted on 27 May 2019 by the Court of Appeal.[165][166]
After his acquittal, Ilechukwu, however, could not immediately return to Nigeria because he faced issues of travelling restrictions due to the ongoing Covid-19 pandemic in Singapore. These issues were eventually settled, allowing Ilechukwu to be able to return to Nigeria in late November 2020. Singapore's leading criminal lawyer Eugene Singarajah Thuraisingam, who represented Ilechukwu since 2011, cited that having gone through ups and downs together with his client in this case, it became a special case to him in his heart and he would remember it.[5]
As for Hamidah bte Awang, she is in prison serving her life sentence since 13 November 2011. She will be possibly be in prison for the remainder of her natural lifespan, unless she was deemed eligible for release on parole upon the pending review of her conduct, which is to take place from 13 November 2031 onwards once she finished serving at least 20 years of her sentence.
The failed application of Abdul Kahar bin Othman (16 August 2018)
Another case which was impacted by Kho Jabing's November 2015 appeal was that of convicted drug trafficker Abdul Kahar bin Othman, who was under a sentence of death since February 2015 for two different charges of drug trafficking for trafficking 26.13g of diamorphine and 40.64g of diamorphine respectively. Arrested on 6 July 2010, Abdul Kahar was found guilty in a High Court trial on 27 August 2013, but sentencing was postponed in light of the newly enacted death penalty laws more than seven months earlier, in order to certify if Abdul Kahar was merely a drug courier.[167] Two months later, the High Court judge Choo Han Teck ruled in a follow-up judgement that Abdul Kahar was indeed a courier and gave him the benefit of the doubt, which would spare him from a death sentence, though he still adjourned his sentencing till a later date.[168]
Subsequently, the prosecution filed an appeal against the October 2013 verdict, which was simultaneously heard with another prosecution's appeal against the case of another drug trafficker Chum Tat Suan, who was also judged as a courier by the same judge.[169] Chum was arrested in an unrelated case on 16 January 2010 for trafficking 94.96g of diamorphine. Both appeals were allowed by the apex court in November 2014, which quashed both the courier verdicts against the two drug traffickers, and the three-judge panel of the Court of Appeal ordered both cases to be sent back to the High Court for a re-trial to test if they were really couriers. The panel made clear that the meaning of a courier is limited only to transporting, sending or delivering the drug; if a drug trafficker is found to have any intention of selling the drug, he/she would not be considered as a mere courier. In Abdul Kahar's case, they held that the judge was wrong to consider him as a courier by disagreeing with a ruling that repacking and collecting payments were "ancillary acts" not excluded from the definition of courier, while in Chum's case, they judged that the High Court judge was incorrect to hold that it was unsafe to explore the evidence from the first phase of the trial to decide if he was a courier, while noting that the evidence of Chum's mental state should have been presented earlier in the original trial.[170][171]
Subsequently, while 68-year-old Chum Tat Suan was eventually certified as a courier and sentenced to life imprisonment on 7 March 2016 (with his sentence backdated to the date of his arrest),[172][173] it was the opposite for 59-year-old Abdul Kahar bin Othman, who was found to not be a courier in the re-trial and thus sentenced to death on 4 February 2015. Abdul Kahar's appeal against the death sentence was dismissed on 1 October 2015.[174] A judicial review application filed in 2016 to challenge the Public Prosecutor’s decision not to grant Abdul Kahar a certificate was also dismissed.
On 16 August 2018, while he still remains on death row, Abdul Kahar filed for an application to reopen his case through his lawyer Rupert Seah. Seah, in the application, argued against the constitutionality of the alternative sentencing regime in the Misuse of Drugs Act, stating that it violates the principles of equality before the law and separation of powers. After hearing it and several other arguements relating to other constitutionality issues of the law, the Court of Appeal dismissed the application. In their written grounds of decision published on 25 October 2018, the five-judge panel stated that Abdul Kahar, then 62 years old, had no basis in to reopen the case, and based on the requirements to reopen concluded cases laid out by Kho Jabing's case, Abdul Kahar had not passed the test.
Besides the fact that some of these arguments were already raised in his previous appeals, his overall arguments that the law was unconstitutional would not have affected the case's outcome, and therefore could not establish a "miscarriage of justice" to justify any reopening of his case. As for Abdul Kahar's argument that it was unconstitutional for the Public Prosecutor to determine whether a drug courier has provided substantive assistance to the Central Narcotics Bureau (which would have warranted a life sentence in lieu of death), they find no merit in this argument and that it was already been rejected in a previous case.[175][176][177]
As of February 2021, Abdul Kahar is currently awaiting execution in Changi Prison as there were ongoing confiscation proceedings against him.[178]
The case of Gobi Avedian (25 February 2020)
The case of alleged drug trafficker Gobi A/L Avedian, a Malaysian of Indian descent, was another concluded case reopened as a result of the Kho Jabing case. This is also the first capital case in Singapore's legal history where a death sentence was revoked on a review by the Court of Appeal after exhausting all the usual avenue of appeals.
Born on 7 April 1988 in Malaysia, Gobi Avedian, who lived in Johor Bahru, was a security guard working in Singapore on a work permit, and was also married with two children. Prior to his arrest on 11 December 2014 for illegal importation of 40.22g of heroin, Gobi's daughter suffered from a health issue and required an operation. As he was burdened with the expensive hospital bills since his salary as a security guard was very low and could not afford the medical fees, he was asked by two friends to transport drugs to Singapore. According to Gobi after his arrest and on his trial, he was paid RM500 to transport each bag of "chocolate drugs" from Malaysia to Singapore. At first, he declined to do so, but it was due to his daughter's date of operation drawing near, he agreed to help transport the drugs.
Gobi claimed that he asked if the drugs were dangerous, and he was assured by the two men that these drugs were merely disco drugs mixed with chocolate, and are not dangerous, and the punishment if caught with these drugs would be a small fine or light punishment. While Gobi argued that he did not know that these "chocolate drugs" contained 40.22g of heroin, the prosecution argued otherwise in the trial that Gobi was wilfully blind to the drugs' existence, and has failed to rebut the statutory presumption of knowledge of the nature of the drugs he was carrying. Should he be found guilty of capital drug trafficking, Gobi would either be sentenced to death or life imprisonment, and was also liable to minimally 15 strokes of the cane should his sentence was life imprisonment.
At the end of Gobi's trial on 15 May 2017, the High Court's judge Lee Seiu Kin accepted that he did not know the bundles he was carrying contained heroin. As such, Justice Lee convicted Gobi of a lesser charge of attempted trafficking of a Class C drug, and sentenced him to 15 years' imprisonment and 10 strokes of the cane, and backdate Gobi's jail term to the date of his arrest.[179] However, the prosecution appealed against Gobi's acquittal, arguing that Gobi did not take enough steps to satisfy himself that the drugs he transported were not those that would attract the death penalty, such as probing the people who gave him assurances. On 25 October 2018, the Court of Appeal decided to overturn the High Court's decision and convicted Gobi of the original charge. Since Gobi was not certified to have assisted the Central Narcotics Bureau in a substantive way, and did not suffer from diminished responsibility, he was sentenced to death.[180]
In its judgement, the Court of Appeal agreed with the prosecution that Gobi had failed to rebut the statutory presumption of knowledge of the nature of the drugs he was carrying, and stated Gobi should have done more to find out what exactly was the substance he was told to bring in to Singapore, but he simply "did not bother". The court also commented that while Gobi did ask about the possible penalties for the crime he was committing, the court said this would not have helped him identify the drug. It was insufficient to just state that he did not know what sort of drugs he was transporting. And, if Gobi really did not want to bring in any illegal drugs that could warrant a death sentence, he should have go and research what are the drugs that might attract such a harsh punishment and identify them but he did not do so.[181]
Subsequently, after he was sentenced to death, Gobi filed for clemency, but it was denied in July 2019. Later, in January 2020, Gobi, together with another death row inmate Datchinamurthy Kataiah (a convicted drug trafficker), also filed a joint lawsuit over allegations that illegal methods are used to carry out executions in Singapore, which was also dismissed.[182] After this, Gobi, through his lawyer M Ravi. filed for an application to reopen his case in light of a recent appeal ruling by the Court of Appeal over an unrelated drug trafficking case (in this ruling, the Court of Appeal held that the legal concept of wilful blindness is irrelevant in considering whether the presumption of possession under Section 18(2) of the MDA has been rebutted.). Making use of this above appeal ruling, Ravi argued on behalf of his client that since the prosecution's case in the original trial was one of wilful blindness, the prosecution could not have invoked the presumption in the first place.[183]
On 19 October 2020, in accordance to the framework laid out by Kho Jabing's case based on the reopening of concluded criminal cases, the Court of Appeal approved Gobi's application and review the case on the same day of the application's approval. After reviewing the case, the five-judge Court of Appeal decided that Gobi's failure to rebut the presumption of knowledge could no longer become the foundation of his conviction on the capital charge. They judged that Gobi was not wilfully blind to the nature of the drugs, and noted that Gobi did questioned the nature of the drugs but felt assured that they are not serious. As such, they overturned Gobi's death sentence, and reinstated his initial conviction by the High Court, and restored Gobi's original sentence of 15 years' imprisonment and 10 strokes of the cane, and backdate it to the date of his remand.[184][185]
Currently, since his second acquittal, Gobi is filing a pending lawsuit against the prosecutors who prosecuted him in the original trial, claiming that the prosecution had "abused their powers and acted in bad faith by improperly performing a legal act which resulted in harm to the plaintiff", and have "breached their fundamental duties to assist in the administration of justice".[186] At the same time, Gobi was currently serving his 15-year jail term since the date of his remand in December 2014. If Gobi had served his sentence with good behaviour, he will be given an early release from prison in December 2024 after serving at least two-thirds of his sentence (10 years).
See also
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