SINGAPORE: A last-minute stay of execution was granted for convicted murderer Kho Jabing late Thursday (May 19), just hours before he was scheduled to go to the gallows on Friday. This came after opposition politician and lawyer Jeannette Chong-Aruldoss filed an application for a stay of execution for Kho on Thursday morning.
While this was dismissed by the court late Thursday, Ms Chong-Aruldoss appealed against the decision and a hearing was set for 9am on Friday at the Court of Appeal.
Prosecutors called the application for a stay of execution an "abuse of the system".
Earlier in the day, the Court of Appeal dismissed a separate 11th-hour bid by Kho, a Sarawak native, to escape the gallows. He was represented by lawyer Gino Singh.
The appeal launched by Ms Chong-Aruldoss for a stay of execution late on Thursday was the second bid by Kho in two days to escape the gallows.
The first time Kho launched a last-minute bid to save his life was in November last year, when he filed a motion two days before his scheduled execution.
In the latest appeal, Kho challenged the involvement of Judge of Appeal(JA)Andrew Phang, who has presided over two of Kho’s previous appeals - one in 2010 and another in 2013. Kho's lawyer, Mr Gino Singh, argued JA Phang’s involvement in the 2013 appeal essentially involved the judge deliberating over an appeal against his own decision - the one made in 2010. In both appeals, Kho was sentenced to death.
Kho’s last-minute motion ahead of his imminent execution was heard before five judges sitting in the Court of Appeal - including JA Phang, who disputed Kho’s claims of biasness.
Mr Singh, pointing to the Supreme Court of Judicature Act, argued JA Phang should not have presided over Kho’s appeals due to a possible conflict of interest. He added the court’s decision “might have been tainted with apparent biasness”, urging the apex court to postpone Kho’s imminent execution in the interests of justice.
KHO SENT TO DEATH ROW TWICE
Kho, 31, had been sentenced to hang in 2010 for killing a man by striking his head with a tree branch in a botched robbery attempt. The victim sustained 14 skull fractures and a brain injury and died six days later.
He appealed against the murder conviction, but his appeal was dismissed in 2011 and he was sent back to death row. JA Phang presided over this appeal, together with two other appeal judges.
In 2013, Kho appealed yet again after changes to the law abolishing the mandatory death penalty in certain categories of murder that allowed judges the discretion to sentence an accused to life imprisonment with caning instead. This time, Kho’s appeal was successful and he was re-sentenced to life imprisonment with 24 strokes of the cane.
But the prosecution appealed, urging the Court of Appeal to reverse the re-sentencing judge’s decision and send Kho back to the gallows. They were successful and Kho was sentenced to death in January 2015 in a split 3-2 decision. JA Phang was involved in this appeal as well and was in the majority camp.
CONVICTION AND SENTENCE 'INEXTRICABLE PARTS OF A WHOLE': JUDGE
On Thursday, JA Phang explained the difference between the two appeals he had previously presided over. The first was an appeal against Kho’s murder conviction, which was upheld. At the time, the death penalty was mandatory so Kho’s sentence was never an issue, JA Phang said.
The second appeal, after changes to the law and Kho’s re-sentencing to life imprisonment, considered what the appropriate sentence for Kho should be, as opposed to whether he was guilty or not.
In dismissing Kho’s motion, JA Chao Hick Tin said the issues considered in the two appeals were “completely different issues" and there was "no basis for saying (JA Phang) was being asked to review his own earlier decision”.
JA Chao also noted Kho raised the same issue in a motion filed in November last year by his then-lawyer Chandra Mohan K Nair. However, Kho decided to withdraw this point later that month. “That is his prerogative,” JA Chao said.
But he added that it must be considered an abuse of process to file a fresh application “premised upon the first application that was withdrawn”. “No court would ever allow this," the judge stated. Otherwise, offenders could prolong matters “by drip-feeding their arguments one by one through the filing of multiple applications”, JA Chao said.
JA Phang said considering Kho’s conviction and sentence was part and parcel of the court’s work. “Conviction and sentence are inextricable parts of a whole. We cannot divorce them,” he said, urging Mr Singh to be “fair, objective and logical” in this regard.
8 YEARS AND NUMEROUS APPEALS LATER, KHO STILL STANDS BEFORE US: JUDGE
In a last-ditch attempt to save Kho from the gallows in November last year, his lawyer Chandra Mohan K Nair had previously filed another 11th-hour motion just two days before Kho’s execution date. Mr Chandra had said his client’s appeal was “concerned with matters of fundamental constitutional importance”, as Kho’s right to “a fair trial and fair sentencing” had not been addressed. Kho was subsequently granted a stay of execution.
However in a unanimous decision, Singapore’s apex court sent Kho back to death row for the second time in April this year.
In that decision, JA Chao Hick Tin had dismissed Kho’s last-ditch attempt to escape the gallows, calling his appeal “not a genuine application, but an attempt to re-litigate a matter which had already been fully argued and thoroughly considered” and adding that the apex court’s January 2015 decision was to have been final.
Mr Singh touched on this point on Thursday, saying the apex court had said a miscarriage of justice would outweigh the importance of finality of proceedings or it would “bring into question the integrity of the criminal justice system and the judicial process itself”.
“The life of (Kho) is at stake. (The integrity of the system) can be redeemed, the (life of Kho) cannot”, Mr Singh said.
Kho was arrested in 2008, JA Chao noted, and “eight years and an innumerable number of applications later, he still stands before this court”. “There comes a point after a case has been heard … (the) legal process must recede into the background and give way to the search for repose… (we) think the time has come," he said.