A convicted murderer who was sentenced to hang, then given a reprieve with a life sentence, is now back on death row after a landmark ruling yesterday.
A five-judge Court of Appeal gave a split 3-2 decision in favour of sending 31-year-old rag-and-bone man Jabing Kho to the gallows for the brutal way in which he repeatedly bludgeoned a construction worker with a tree branch while trying to rob him.
Judge of Appeal Chao Hick Tin, Judge of Appeal Andrew Phang and Justice Chan Seng Onn were "completely satisfied" that the way Kho rained blow after blow on the head of Chinese national Cao Ruyin, even after he was lying on the ground, meant he deserved the death penalty.
"The sheer savagery and brutality displayed by (Kho) shows that during the course of the attack, (he) just simply could not care less as to whether the deceased would survive although his intention at the time was only to rob," said Justice Chao.
However, the dissenting judges, Justice Woo Bih Li and Justice Lee Seiu Kin, said there was not enough evidence to conclude beyond a reasonable doubt that Kho had struck Mr Cao three or more times, or that he had used such force that it caused most of the 14 fractures in Mr Cao's skull.
This is the first case of its kind to reach the apex court since the law was changed in 2013, giving judges discretion to opt for a life sentence in certain murder cases.
In 2008, Kho and his accomplice Galing Kujat - both 25 and from Sarawak, Malaysia - set out to rob Chinese nationals Cao and Wu Jun near Geylang Drive.
While Kho was armed with a tree branch, Galing used a metal belt buckle in the attack.
Mr Cao, 40, was robbed of his mobile phone and died from brain injuries six days later. Mr Wu, 43, escaped with minor injuries.
Both attackers were sentenced to death in 2010.
The next year, Galing escaped the gallows after the Court of Appeal convicted him of a lesser charge of robbery with hurt. He was sentenced to 181/2 years in jail and 19 strokes of the cane.
Kho's appeal was dismissed.
After changes to the law in 2013, Kho applied to be re-sentenced and was given life imprisonment. But the prosecution appealed against the decision.
Given the novelty of the case, the judges had to figure out when the death penalty was warranted in murder cases where there is a discretion to impose a life sentence. They agreed a key question to ask is whether the murderer "exhibited viciousness or a blatant disregard for human life".
The three concurring judges found that Kho had approached Mr Cao from behind and struck his head without any warning. After the victim fell, Kho struck him at least two more times and his skull was shattered.
They also pointed to Galing's initial statement that said he saw Kho hit the deceased several times. "After the first blow, there was effectively no more struggle. Why was there a need to rain further blows on the head of the deceased then?" said Justice Chao.
Justice Lee said in his dissenting judgment that even though Kho's blows would have been of considerable force, it was "unsafe" to conclude that he acted in a way which showed a blatant disregard for human life.
But the majority said that even if they were to accept that it was unclear how many times Kho struck the victim, it had to be borne in mind that Mr Cao's skull was completely shattered.
"What (Kho) did underscores the savagery of the attack which was characterised by needless violence that went well beyond the pale," said Justice Chao, noting that the duo's intention had been merely to rob.
After the verdict, Kho's assigned lawyer Anand Nalachandran said that the next step was to prepare a petition of clemency to the President.
Why the case is significant
Jabing Kho's case is the first of its kind to reach the Court of Appeal since laws were changed in 2013 to give judges the discretion to decide if a murderer should be sentenced to death or be given a life sentence in certain cases.
As Justice Chao Hick Tin put it: "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?"
To answer the question, the five judges considered three things: parliamentary debates, foreign cases and local ones.
They considered how in several jurisdictions, including India and the US, judges applied the death penalty in "rarest of rare" cases. But they rejected this test, saying it was based on whether the offender's actions are "rare", compared with previous cases.
The more appropriate principle to follow was the one laid down in a local 1970s case of kidnapping for ransom - whether the actions of the offender would outrage the feelings of the community.
This will be determined by considering whether "the offender has acted in a way which exhibits viciousness or a blatant disregard for human life", Justice Chao wrote.
For instance, 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, yesterday's judgment said.
This article was first published on January 15, 2015.
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