Exercising discretion in capital cases 'no easy task'

Justice Chong
Justice Chong

Former A-G delivers lecture on challenges of administering amended death penalty laws

In his two years as attorney-general, Justice Steven Chong was involved in more criminal cases than most criminal lawyers would have taken on in their entire careers.

But he says it was the legal, ethical and practical challenges of administering the amended death penalty laws that dominated his time as A-G from 2012 to 2014.

Delivering the annual Singapore Law Review lecture last week, Justice Chong said that while the changed laws are significant, they fall short of inaugurating "any paradigm shift in policy".

One academic's view that the Government had "dramatically shifted its position on the mandatory death penalty" was "somewhat overstated", added the judge. He pointed out that the "longstanding emphasis on deterrence still acts as a side constraint on any change in this area".

The lecture titled "Recalibration of the Death Penalty Regime: Origin, Ramifications and Impact", sponsored by law firm Withers KhattarWong at its auditorium in Raffles Place, was attended by judges, academics and others from the legal fraternity, including National University of Singapore law students.

FINE BALANCE

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, on the perennial tension between "individualised justice and consistency in sentencing".

Parliament made changes to the law in 2012. The death penalty for murder - which had been mandatory for 120 years - remained mandatory for intentional killings; but for other forms of murder, the courts were given discretion to order a life sentence in lieu of death.

Changes were also made to the Misuse of Drugs Act, allowing for discretion - instead of the mandatory death penalty - to be exercised when sentencing convicted drug traffickers found to be couriers, as long as they satisfied prescribed conditions.

His talk, which also discussed the case of executed killer Kho Jabing, showed that exercising discretion in capital cases was "no easy task". He noted that challenges arose in the context of applications for re-sentencing that followed the amendments.

Kho was convicted of murder and sentenced to death in 2010, and his appeal failed. Following the amendments, he applied to be resentenced, and in 2013 he was jailed for life and given 24 strokes of the cane by the High Court. Prosecutors appealed to the apex court which, in a 3-2 decision, allowed the appeal and sentenced Kho to death last year.

Justice Chong pointed out that the court was unanimous on the principle involved even though it was " divided on the outcome".

He noted all five judges agreed that in cases where the death penalty was not mandatory, death was justified where the offender's acts "outraged the feelings of the community". Kho's subsequent move to challenge this test set by the court for imposing the death penalty failed and he was executed in May this year.

Justice Chong said it was arguable whether the apex court should have set out a "balance sheet" of aggravating and mitigating factors to be taken into account in exercising discretion. At 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."

He made it clear that the court still has to examine all the facts and circumstances of the case to decide if the death sentence is appropriate. "It seems to me that the approach taken by the Court of Appeal is with respect the right one."

A version of this article appeared in the print edition of The Straits Times on November 15, 2016, with the headline 'Exercising discretion in capital cases 'no easy task''. Print Edition | Subscribe