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    05:39 PM S. Chandra Mohan (Associate Professor (Practice), Singapore Management University)

    The Discretionary Death Penalty for Murder: Guidance at Last

        

    In a much awaited decision, the Court of Appeal (“CA”) has finally provided some guidelines to judges on whether or not to impose the discretionary death penalty in murder cases. The decision of a specially constituted court of five judges, in Kho Jabing v Public Prosecutor [2015] SGCA 1, has made history of sorts. It is a case where five judges, of whom two delivered dissenting judgments, sat to hear an appeal from the decision of a single High Court judge; and is the first CA decision under the 2012 Penal Code amendments which provides for a discretionary death penalty for murder. 2

    Facts

    Jabing and his accomplice Galing were originally convicted of murder, under section 300(c) of the Penal Code (Cap 224, 2008 Rev Ed), and sentenced to death, the then mandatory punishment for murder. Galing’s conviction was substituted, on an earlier appeal, by the CA ([2011] 3 SLR 634) with one for robbery with hurt as the court held that he had not shared a common intention with Jabing to commit murder. The 2012 Penal Code amendments subsequently retained the mandatory death penalty for intentional murder under section 300(a) but granted judges a discretion to impose either death or life imprisonment for murder under section 300 (b) to (d) of the Code. It also provided for a review of previous cases where the mandatory death penalty had been imposed. In Jabing’s case, the re-sentencing judge reduced the death penalty to one of life imprisonment and 24 strokes of the cane. It was against this decision not to re-affirm the death penalty that the Public Prosecutor had appealed to the CA.

    The concerns in the exercise of discretion

    It may be remembered that the initial excitement that followed the legislative decision in 2012 to grant judges a discretion not to impose the death penalty in murder cases, other than in cases of intentional murder under s300(a) of the Penal Code, was somewhat subdued by the realisation that single judges would have the awesome task of deciding, without any guidance, whether or not to impose the death penalty: see S. Chandra Mohan & Priscilla Chia, Law Gazette, March 2013 at 11.

    This gave rise to many concerns. What type of murders under section 300(b) to (c) would qualify for the death penalty, if at all?  Should judges begin by imposing a death sentence or is life imprisonment to be the default sentence?
    In the absence of statutory guide lines, what factors ought a judge to take into consideration in imposing the death sentence? More importantly, how would judges maintain sentencing consistency between cases with different factual matrices?

    Questions before the Court

    The CA acknowledged at the outset that determining the circumstances in which a death penalty is warranted was a “seemingly simple question [which] belies a great deal of difficulties and complications, along with the severe consequences and implications any answer brings” (at [9]). It was, therefore, no surprise that the CA took nine months to fully consider arguments made on behalf of the accused and by the Public Prosecutor before delivering its judgments. The two dissenting judges differed only on the findings of fact. 

    The CA condensed the many questions it considered into two broad questions:

    (a) What circumstances should the Court take into consideration?

    (b) Do the normal sentencing principles apply?

    In determining these questions the court had regard to three matters it considered to be “potentially helpful”: parliamentary debates on the relevant 2012 Penal Code amendments, decisions of foreign jurisdictions on the exercise of the discretionary death penalty and local case authorities on similar legislative provisions.

    Parliamentary debates

    In respect of parliamentary debates, the court referred to the Law Minister’s comments on three “interconnected factors” which in his view were relevant to the application of the death penalty: the seriousness of the offence in terms of the harm to the victim and society and the accused’s personal culpability, the prevalence of the offence and the need for deterrence. In the absence of any other guidelines, the prosecution had attempted, in Jabing’s case, to persuade the CA that the re-sentencing judge was wrong in not imposing the death penalty as the circumstances of the case clearly fell within these three categories.

    The CA, however, held that these factors did not constitute a “formulastic approach”. They were not objective factors capable of exact measurement and were certainly not meant to be part of any legal test to determine when the death penalty would be an appropriate sentence. At best, these factors pointed to the general principle that the facts of the case must be considered in their totality and merely constituted part of “the whole plethora of circumstances” (at [15]) relevant to a sentencing decision. 

    Foreign decisions

    The CA next examined foreign decisions from the courts in India, the Caribbean and the United States where the death penalty was reserved for the worst cases or the “rarest of rare” cases. It was, however, not persuaded to adopt this test. The CA held that the “rarest of the rare” principle was inappropriate for Singapore as it would “artificially confine and sequester the death penalty to the narrowest of regions and to restrict the imposition of the death penalty based on whether the actions of the offender are ‘rare’ in comparison with other offenders” (at [41]). The Indian courts have put themselves in a bind in adopting this narrow test which the CA was obviously anxious to avoid. Clearly, the CA was not supportive of any notion of a default sentence of life imprisonment that a judge must start with, which a “worst cas” approach or test might suggest. 

    Local decisions

    Finally, the CA had regard to two of its previous decisions under section 3 of the Kidnapping Act and section 396 of the Penal Code which both provide for a discretionary death penalty. In Sia Ah Kiew & Others v PP [1972-1974] SLR 208,  Wee Chong Jin CJ in delivering the judgment of the CA stated (at [5]):

    It is a long and well established principle of sentencing that the Legislature in fixing the maximum penalty for a criminal offence intends it only for the worst cases. However, in the case of the offence of kidnapping for ransom the discretion given to the courts as regards the sentence is, as earlier stated, very limited in scope. In our opinion the maximum sentence prescribed by the Legislature would be appropriate where the manner of the kidnapping or the acts or conduct of the kidnappers are such as to outrage the feelings of the community.

    For some time it had, therefore, been thought, as indeed submitted by counsel in Jabing, that Sia’s case supported the principle that the maximum sentence should be  reserved for the worst case because the judge had to decide between life imprisonment and death. In fact, the death penalty was not imposed in any of the five kidnapping cases between 1995 and 2004: see S. Chandra Mohan & Priscilla Chia, Law Gazette, March 2013, footnote 25. Similarly, in all the five re-sentencing cases, no judge had imposed the death penalty. 

    The CA disposed of the argument by opining that this principle must be viewed in the context in which it had been stated in Sia’s case, meaning it only applied where there was a wide range of penalties available. It is unclear why it will not “make sense” to follow the principle even where the court had to choose between the two most serious punishments of life imprisonment or death. 

    When a death sentence ought to be imposed

    More important to the present comment, the CA adopted the second principle in Sia, followed in its later decision in Panya Martmontree and Others v PP [1995] 2 SLR (R) 806, that the maximum sentence of death was appropriate “where the manner of the kidnapping or the acts or conduct of the kidnappers are such as to outrage the feelings of the community”. Simply put, in murder cases where the death penalty is discretionary, the judge must consider the strong feelings of the community in deciding whether or not to impose the death penalty.

    This, as the CA further explained, is because “capital punishment is an expression of society’s indignation towards particularly offensive conduct” and the fact that the death penalty continues to be in our sentencing regime is “an expression of society’s belief that certain actions are so grievous an affront to humanity and so abhorrent that the death penalty may, in the face of such circumstances be the appropriate, if not the only, adequate sentence” (at [44]). 

    But how then is the trial judge to decide when the feelings of the community have been outraged’? The CA’s short answer is, when the offender’s acts have shown “viciousness or a blatant disregard for human life” (at [45]). To determine this, one must principally look at the manner in which the offender has acted. For example, in cases involving the use of violence, such factors as the savagery of the attack as demonstrating his disregard for human life, the number and nature of the force used and the duration of the attack would be relevant according to the CA. In Jabing, the majority of the judges found that Jabing had attacked the deceased from behind and had struck the deceased at least three times on the head even after he had fallen to the ground, resulting in fatal injuries. 

    The CA also held that the death penalty would be an appropriate sentence for any act showing disregard for life which is “just shy of the requisite intention to sustain a charge under s300(a) of the [Penal Code]” to reflect the offender’s moral culpability. Obviously, according to the CA, there are murders which are as despicable as those under s300(a) because of their heinousness and utter disregard for human life and these deserve a similar death penalty. After all, the drafters of the Penal Code did not think there ought to be a distinction in the punishment for murder falling with any of the four limbs of section 300. 

    Relevance of other circumstances

    The CA next observed that “the court should still take into consideration all the other circumstances of the case. While the offender’s disregard for human life remains at the forefront of the court’s consideration other facts such as the offender’s age and intelligence continue to be relevant” (at [47]). As an example, it referred to the case of PP v Ellary bin Puling (Criminal Case 40 of 2009) where the re-sentencing court had considered the facts that the accused was 18 years old and had sub-normal intelligence in not imposing the death penalty. On the other hand, in Jabing’s case, the CA regarded as a “neutral factors” both his age (24) which “did little to change the gravity of the case” and the piece of wood he had wielded, despite it being “opportunistic and improvisational”, given the savage and callous manner in which it had been used. Unfortunately, the CA did not make clear the precise relevance of these “other circumstances”. When will they amount to an appropriate mitigation plea? Only if they do not neutralise the manner in which the offender has acted in his blatant disregard for human life?

    Conclusion

    Unfortunately, the devil (or escaping from him or her in a death penalty case) may still lie in the details. As the dissenting judgments in Jabing have demonstrated, differences in the findings of facts as to whether the accused has shown a blatant disregard for life, the manner in which he has done so, and considerations of the relevance of the “other circumstances”, could well lead to inconsistencies in sentencing. Hopefully, future judgments of the CA will help to curb such inconsistencies as sentencing in capital cases ought not to become “judge-centric sentencing rather than principled sentencing”: see Sangeet v State of Haryana (2013) 2 SCC 452.

    * This blog entry may be cited as S. Chandra Mohan, "The Discretionary Death Penalty for Murder: Guidance at Last", Singapore Law Blog (25 February 2015) (http://www.singaporelawblog.sg/blog/article/87)

    ** A PDF version of this entry may be downloaded here

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