SINGAPORE - Convicted murderer Jabing Kho's eleventh-hour bid to quash his death sentence, which he made last year less than 24 hours before he was due to be hanged, has failed.
A five-judge Court of Appeal - the same panel that gave a 3-2 split decision last year in favour of sending him to the gallows - on Tuesday (April 5) unanimously threw out the Malaysian’s attempt to escape the hangman's noose.
Kho was calm on hearing the decision but his mother and sister, who came to Singapore from Sarawak for the judgment, sobbed uncontrollably as they talked to him before he was led away by guards.
In 2008, Kho, 31, who is from Sarawak, bludgeoned Chinese national Cao Ruyin, 40, with a tree branch while robbing him, together with an accomplice. Mr Cao died of head injuries six days later.
Kho has gone through many twists and turns since he and his accomplice were given the death penalty - then mandatory for murder - in 2010.
The accomplice, who used his belt buckle as a weapon, escaped the gallows after successfully appealing for his charge to be reduced to robbery with hurt.
Kho's appeal failed. But he was re-sentenced to life imprisonment by the High Court in 2013, after the law was changed to give judges the discretion to opt for a life term for murder with no intention to cause death.
But the prosecution appealed, arguing that Kho's vicious crime warranted the death penalty.
In January last year, the five-judge appeal court gave a 3-2 decision to send Kho to the gallows. The case was landmark as it laid down the legal principle for judges to apply when deciding when the death penalty was warranted in murder cases where it is discretionary.
Kho's case attracted the attention of human rights groups, including local outfit We Believe in Second Chances.
He was due to go to the gallows on Nov 6 last year, after his appeal for clemency was rejected by the President the month before.
Less than 24 hours before he was to be hanged, lawyer Chandra Mohan K. Nair got a temporary stay of execution to prepare his case and later argued for the appeal court to reopen the case.
Dismissing the bid on Tuesday (April 5), Judge of Appeal Chao Hick Tin noted that the number of applications to the court to revisit its decisions - which are supposed to be final - have “increased dramatically in recent years”. Of the 24 criminal motions filed to the Court of Appeal last year, 11 were applications to reopen concluded criminal appeals, such as Kho’s.
Justice Chao said that finality is an integral part of justice as the legal system cannot function if all decisions were subject to “constant and unceasing challenge”. Also, the filing of unmeritorious applications to revisit concluded cases take up scarce judicial resources, which could be used to hear fresh appeals.
The power of the appeal court to reopen a concluded criminal appeal is to be exercised sparingly, and only in "exceptional" circumstances, he said. The applicant must put forward new material, which is reliable and substiantial, and must also show that a decision has been tainted by fraud or a breach of natural justice.
But in Kho’s case, “there is very little in the way of new material, let alone material which is compelling and which justifies the exceptional recourse of a review".
Justice Chao said Kho's application was just "an attempt to re-litigate a matter which had already been fully argued and thoroughly considered".