Court of Appeal · Decided 14 January 2015

Public Prosecutor v Kho Jabing

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[2015] SGCA 1Case no. Criminal Appeal No 6 of 2013

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Chao Hick Tin JA (delivering judgment of the majority consisting of Andrew Phang Boon Leong JA, Chan Seng Onn J and himself):
Introduction
[1] In Public Prosecutor v Galing Anak Kujat and another [2010] SGHC 212 (“the Trial Judge’s decision”), Jabing Kho (“the Respondent”), and his co-accused, Galing Anak Kujat (“Gailing”), were convicted of murder under s 300(c) read with s 34 and punishable under s 302 of the Penal Code (Cap 224, 2008 Rev Ed) (“PC”), and Kan Ting Chiu J (“the Trial Judge”) passed the mandatory death sentence on them accordingly.
[2] On appeal, the Court of Appeal in Kho Jabing and another v Public Prosecutor [2011] 3 SLR 634 (“the CA (Conviction) Decision”) affirmed the Respondent’s conviction and sentence. This CA (which for ease of reference will be referred to as “CA (Conviction)”), however, allowed Galing’s appeal and his conviction of murder was substituted with a conviction of the offence of robbery with hurt committed in furtherance of a common intention under s 394 read with s 34 of the PC. Galing’s case was then remitted back to the Trial Judge for resentencing and he was eventually sentenced to an imprisonment term of 18 years and 6 months and 19 strokes of the cane.
[3] The Penal Code (Amendment) Act 2012 (Act No 32 of 2012) (“the PCAA”) was then enacted by Parliament to amend the PC. Pertinently, s 2 of the PCAA provide that:
As a result of these amendments, except for an accused person who is convicted of a charge under s 300(a) of the PC, an accused person will no longer face the mandatory death penalty and the court is given the discretion to sentence the accused to life imprisonment and caning instead.
[4] Sections 4(5) and (6) of the PCAA then provided for certain transitional provisions:
[5] On 30 April 2013, the Court of Appeal confirmed that the Respondent was convicted under s 300(c) of the PC and allowed his application for his case to be remitted to the High Court for re-sentencing pursuant to s 4(5)(f) of the PCAA.
[6] The hearing for re-sentencing came before another High Court judge (as the Trial Judge had by then retired from the Bench) (“the Re-sentencing Judge”), who re-sentenced the Respondent to life imprisonment with effect from the date of his arrest (ie, 26 February 2008) and 24 strokes of the cane (see Public Prosecutor v Kho Jabing [2014] 1 SLR 973 (“the Re-sentencing Judge’s Decision”)).
[7] The Prosecution then appealed against the Re-sentencing Judge’s decision, urging this Court to impose the death sentence upon the Respondent on the ground that this was an extremely vicious attack on the victim.
Our decision
[8] 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?
[9] This seemingly simple question belies a great deal of difficulties and complications, along with the severe consequences and implications any answer brings. Given that this is the first case of its kind to reach the Court of Appeal since the amendments to the mandatory death penalty were enacted, previous case law was, at best, marginally helpful. In fact, both the Prosecution and counsel for the Respondent were hard-pressed, very understandably so, to suggest any local authority which might be helpful to us.
The discretionary death penalty
[11] During the appeal, we had raised a number of queries to both the counsel for the Respondent and the Prosecution with the objective of clarifying exactly how the court should come to its decision as to the circumstances when the death penalty, as compared to life imprisonment and caning, would be the more appropriate sentence in a case like this. In sum, the numerous questions can be condensed into two broad questions which accurately capture our concerns:
(a) What circumstances should the Court take into consideration?
(b) Do the normal sentencing principles apply?
Keeping these two questions in mind, we examine three areas which might be potentially helpful – (1) the parliamentary debates for the amendments to the mandatory death penalty, (2) decisions of foreign jurisdictions, and (3) analogous local case authorities.
Parliamentary debates
[12] Obviously the first matter which we ought to consider in this regard would be the parliamentary debates concerning the enactment of the PCAA. In the debates during the introduction of the amendments (see Changes to the Application of the Mandatory Death Penalty to Homicide Offences (Statement by Minister for Law), Singapore Parliamentary Debates, Official Report (9 July 2012) vol 89), the Minister for Law explained that three factors would be relevant in deciding when the death penalty is appropriate:
[13] In trying to show how the Re-sentencing Judge had erred, the Prosecution in their submissions for this appeal had analysed these three factors and then “categorized” the circumstances of the case according to these three factors. While the Prosecution should not be faulted for doing so, in our opinion, we find that these factors are best considered in totality, and should serve as guiding considerations rather than distinct factors in deciding whether the death penalty is appropriate. As can be seen, the Minister for Law had explained these three factors in “broad terms”, suggesting that a broad and holistic approach should be taken. At the risk of stating the obvious, the factual matrix and circumstances of each case would be extremely varied, and Parliament could not have intended a formulistic approach in applying these three factors in deciding whether or not the death penalty would be the appropriate sentence for a particular case.
[14] In any event, these three factors, by their nature, do not lend themselves to a formulistic approach – these factors are clearly not “objective” factors which can be “measured” or “fulfilled”. When counsel for the Respondent and the Prosecution were asked whether there were any objective factors which could guide the Court in making its decision, both candidly admitted that apart from suggesting certain objective factors described by the courts of other jurisdictions, they were unable to state any “objective factors” other than what the Minister for Law had stated in the parliamentary debates.
[15] This further reinforces our view that deciding whether or not the death penalty is the appropriate sentence cannot be done in a formulistic manner, unlike, for example, establishing liability for a breach of the duty of care where there are specific elements of the tort which can be established. Therefore, in our opinion, the factors as explained in the parliamentary debates simply point to the general principle that the facts of the case must be considered in their totality in determining the appropriate sentence, and are not meant to be part of a legal test to establish when the death penalty would be appropriate. While there is no doubt that the court should take cognizance of the three factors, they must be considered alongside the whole plethora of circumstances prevailing in that case.
Foreign decisions
[16] Next we examine the decisions from other jurisdictions where a similar discretionary death penalty for murder is also provided. Counsel for the Respondent, both in this appeal and during the re-sentencing hearing below, relied upon a number of decisions from other jurisdictions in submitting that when the court has the discretion to decide whether or not to impose the death penalty, it should only do so in the “worst of the worst” and the “rarest of the rare” cases. In response to these submissions, the Re-sentencing Judge, at [38] of his decision, held that:
[17] The criminal justice system of a country is the bedrock of a safe and orderly society and is designed to produce order and justice in the relationships between man and man and between man and state. It is at the very heart of a functional and flourishing society, and we cannot emphasize further that it must be built upon the society’s cultural, moral, political and economic norms. This will be especially so for something as controversial and sensitive as the death penalty. On this perspective, we generally agree with the observations of the Re-sentencing Judge as stated above. That said, although decisions from other jurisdictions ought to be viewed with some degree of circumspection, they can, to a certain extent, still provide some guidance in working out our criminal justice system. After all, it is in the collective wisdom of man that perhaps each can find his own illuminating light to guide his path. It will therefore be beneficial to examine a number of decisions from other jurisdictions which have tried to work out a clear and practical approach in meting out the discretionary death penalty.
[18] We start off first with India, from where our Penal Code finds its historical roots. In Bachan Singh v The State Punjab (1980) 2 SCC 684 (“Bachan Singh”), the leading case in India on the discretionary death penalty, the Supreme Court of India held (at [209]):
[19] The “rarest of rare” principle laid down in Bachan Singh continues to be the guiding principle for the Indian courts applying the discretionary death penalty. It is important however to understand the legislative context in which this principle arose from. Originally, pursuant to s 367(5) of the 1898 Indian Code of Criminal Procedure (Act No V of 1898) (“1898 CCP”), the Courts in India were mandated by statute to state reasons if the death penalty was not passed, whenever the accused was convicted of an offence with the discretionary death penalty. Section 367(5) of the 1898 CCP provided that:
[20] A different position was however taken when the 1973 Code of Criminal Procedure (Act 2 of 1974) (“1973 CCP”) was enacted. Section 354(3) of the 1973 CPC provided that:
[21] The 1973 CCP therefore effectively reversed the position as it existed under the 1898 CCP – the Indian Court now has the duty to give special reasons if the sentence of death is imposed. Given this legislative change, it is therefore not surprising that the Court in Bachan Singh was ready to find that it was only in the “rarest of rare” cases that the death penalty should be imposed.
[22] Shortly after Bachan Singh, the Supreme Court of India fine-tuned its approach as to what would be a “rarest of rare” case. In Machhi Singh v State of Punjab (1983) 3 SCC 470 (“Machhi Singh”), the Supreme Court of India considered that five factors could be relevant. Four of them are:
(a) The manner of commission of the murder;
(b) The motive for the murder;
(c) The anti-social or abhorrent nature of the crime; and
(d) The magnitude of the crime.
[23] At [33] to [36], it described the four factors as such:
[24] The Supreme Court of India also felt that the “personality of victim of murder” would be a relevant factor. Eventually, the Supreme Court of India endorsed a “balance sheet” approach (at [38(iv)]), where:
[25] By identifying the factors above, it would appear that the Supreme Court of India was placing emphasis on both the crime and the criminal in evaluating the appropriateness of the death penalty. The “balance sheet” approach in determining whether a case was the “rarest of the rare” continued to apply for a period of time. It would later however transpire that there was much practical difficulty in applying this test. We do not propose to go through an extensive review of Indian case law, but suffice it to say that in Sangeet v State of Haryana (2013) 2 SCC 452, the Supreme Court of India discussed a number of cases ever since Bachan Singh, and found that there had been “little or no uniformity in the application of this approach” (referring to the “balance sheet approach” advocated in Machhi Singh). At [77], it conclusively did away with this balance sheet approach, stating that:
Clearly, while the “rarest of rare” principle endorsed in Bachan Singh continues to be the guiding principle in India, its history has shown that the practical application of such a principle is fraught with difficulty.
[26] We note that the “rarest of rare” principle is not unique to India. In R v Trimmingham [2009] UKPC 25 (an appeal from the Court of Appeal of St Vincent and the Grenadines), the Privy Council likewise endorsed a similar principle. In observing that the approach a sentencing judge should follow in a case where the imposition of the death sentence is discretionary was relatively well-established by the Caribbean Courts, the Privy Council at [21] held that:
Given the additional requirement that there must be no reasonable prospect of reform of the offender and no other means by which to achieve the object of punishment, it could even be said that the Caribbean Courts apply a stricter test than the “rarest of the rare” approach in India.
[27] In the United States, a similar “rarest of the rare” principle seems to apply. The death penalty is only awarded in the most extreme of circumstances – in Roper v Simmonds 543 US 551 (2005) at 568, the US Supreme Court citing its previous decision in Atkins v Virginia 536 US 304 (2002) at 319, held that:
[28] Furthermore, a non-exhaustive list of factors the US Courts must consider is also statutorily provided for in Title 18, Chapter 228, Section 3592 of the United States Code. These factors include impaired capacity, duress, minor participation, equally culpable defendants, heinous, cruel, or depraved manner of committing offense, pecuniary gain and substantial planning and premeditation, to name a few.
Local case authorities
[29] Finally, we turn to local case authorities. As mentioned above, this is the first case of its kind (brought about by the amendments to the PC – see [3] above) to be decided by us and there are no reported local case authorities directly on point. There is however, a decision based on the offence of gang-robber with murder in the Penal Code (Cap 224, 1985 Rev Ed) (“PC (1985)”) which provides:
[30] Section 396 of the PC (1985) which is similarly worded to s 302(2) of the PC (the provision under consideration in the present case), was interpreted and applied by the Court of Appeal in Panya Martmontree and others v Public Prosecutor [1995] 2 SLR(R) 806 (“Panya”). In dismissing the appeal and confirming the sentences of death passed by the High Court, the Court of Appeal at [66] noted that:
[31] We note the strong language used by the Court of Appeal in Panya to describe the acts of the offenders in its decision to uphold the death penalty. Particularly, the Court of Appeal had used the phrase “outrage the feeling[s] of the community” in evaluating the acts of the offenders.
[32] This phrase originated from the decision in Sia Ah Kew and others v Public Prosecutor [1974 – 1976] SLR(R) 54 (“Sia Ah Kew”), which was cited with approval in Panya. Sia Ah Kew was a case involving kidnapping for ransom, an offence under s 3 of the Kidnapping Act (Cap 101, 1970 Rev Ed) which provided:
[33] Here, the court likewise had the discretion in deciding whether or not to impose the death penalty. The Court of Appeal first noted at [3] that given the wording of the statute, the courts had:
[34] In deciding when to impose the maximum penalty, that is, the death penalty, the Court of Appeal held at [5] that:
The Court of Appeal, after reviewing the facts of the case, eventually held that the circumstances did not point to a case where the maximum sentence of death would be the appropriate sentence to impose.
The decision to impose the death penalty
[35] We will now review the points that we have raised above and set out our views as to their relevance in this appeal.
[36] First, the three factors alluded to in the relevant parliamentary debates are non-exhaustive and are just guiding considerations which the court should bear in mind when determining whether the death penalty is an appropriate sentence in a specific case. In our opinion, the parliamentary debates do not suggest that the courts should only pay or pay particular credence to these three factors.
[37] It is our judgment that the trite and well established sentencing principle that all the circumstances and factors of the case must be taken into consideration in meting out an appropriate sentence continues to apply, and this is supported by the fact that the Minister for Law had stated the three factors in broad terms and specifically mentioned that they were to be considered in totality. As we see it, these three factors were highlighted because they will very likely surface in any evaluation of a case involving the discretionary death penalty.
[38] Second, the leading principle in other jurisdictions, as the survey above touching on the positions in India, St Vincent and Grenadines, and the United States shows, is that the death penalty should only be imposed for the “rarest of rare” or the “worst of the worst” cases. To follow this principle would mean that it is only in the most extreme of circumstances and the narrowest of cases that the death penalty would be imposed. The practical implication of this principle can be illustrated briefly by a number of cases.
[39] In Manohar Lal alias Mannu & Another v State (NCT) of Delhi (2000) 2 SCC 92, the offenders burned four sons alive in front of their mother. On appeal, the death penalty was set aside because the Supreme Court of India felt that the assassination of Prime Minister Indira Gandhi had “blinded” the offenders, leading them to a rampage triggered by a demented psyche. The offenders “had no special or personal animosity towards anyone of the deceased individually” (at [7]). Pertinently, the Supreme Court of India also (at [9]) cited a previous decision, Kishori v State of Delhi [1999] 1 SCC 148, where the facts were analogous and where the death penalty was not imposed.
[40] In Ravindra Trimbak Chouthmal v State of Maharashtra (1996) 4 SCC 148, the victim was murdered, her head severed from her body, and her body cut up into nine pieces and kept in two suitcases which was subsequently disposed of. This was a case of “dowry death”, where the murder was the result of the husband’s family being unhappy with the dowry received from the marriage. The Supreme Court of India overturned the High Court’s decision to impose the death penalty, and at [9] and [10], observed that:
It is clear therefore that the “number” of occurrences of the crime features as a consideration in deciding what is the “rarest of the rare”.
[41] In our respectful opinion, we do not find that the “rarest of rare” principle is appropriate for Singapore. To adopt this principle would be to 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. This should not be the case in our context. Admittedly, the often cited sentencing principle is that the maximum penalty is only intended for the worst form of cases (see for example, Sim Gek Yong v PP [1995] 1 SLR(R) 185 at [13], which was cited with approval in the Re-sentencing Judge’s Decision at [12]).
[42] However, the context in which this principle was laid down is different in the sense that in the normal case the sentencing judge has a much wider discretion and a range of penalties from which to choose from. In such a scenario, given that there is a range of penalties reflecting differing degrees of moral culpability, it would make sense that it is only in the worst form of cases that the maximum penalty should be meted out. However, this is not the case with the discretionary death penalty. To quote the Court of Appeal in Sia Ah Kew at [5], the “discretion given to the courts as regards the sentence is… very limited in scope”; the court does not have the luxury to choose from a range of penalties.
[43] Given the fact that the discretion is confined to only the imposition of either the death sentence or life imprisonment with caning, we do not find that the “rarest of the rare” principle effectively meets the objective of having the discretionary death penalty in our sentencing regime. As explained by the Minister for Law in the parliamentary debates, the objective behind introducing the discretionary death penalty was to balance “the various objectives: justice to the victim, justice to society, justice to the accused, and mercy in appropriate cases”. All these considerations must be taken into account, and we do not think that they would be properly reflected if we should adopt the “rarest of the rare” principle.
[44] In our judgment, a more appropriate principle to follow would be that laid down by the Court of Appeal in Sia Ah Kew, which is, whether the actions of the offender would outrage the feelings of the community. Undoubtedly, capital punishment is an expression of society’s indignation towards particularly offensive conduct, and the fact that the death penalty continues to be part of 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. It would therefore, in our judgment, be correct to consider the strong feelings of the community in deciding whether or not to impose the death penalty.
[45] In determining whether the actions of the offender would outrage the feelings of the community, we find that the death penalty would be the appropriate sentence when the offender has acted in a way which exhibits viciousness or a blatant disregard for human life. Viewed in this light, it is the manner in which the offender acted which takes centre stage. For example, in the case of a violent act leading to death, the savagery of the attack would be indicative of the offender’s regard for human life. 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.
[46] We would observe that the significance of each of these factors would invariably vary, depending on the circumstances of the case. For example, the factors to consider would be extremely different in a case of non-violent acts leading to death, such as where the death was caused by poisoning. It is the offender’s (dis)regard for human life which will be critical. This explains why an offence under s 300(a) of the PC, where the offender had the clear intention to cause death, still carries the mandatory death penalty.
[47] Therefore when an offender acts in a way which exhibits a blatant disregard for human life which is just shy of the requisite intention to sustain a charge under s 300(a) of the PC, the imposition of the death penalty would be the appropriate sentence to reflect the moral culpability of such an offender. This approach would also be in accordance with what the Minister for Law had explained as being the seriousness of the offence, personal culpability of the accused and the manner in which the homicide occurred in the parliamentary debates.
[48] That said, the court should still take into consideration all the other circumstances of the case. While the offender’s regard 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.
[49] In Public Prosecutor v Ellarry bin Puling and another [2011] SGHC 214 (“Fabian”), F and E were foreigners on work permits in Singapore. On 22 August 2008, they set out on bicycles to find victims to rob. F was armed with a piece of wood which he had picked up the night before, with the intention of striking his victims with it before robbing them. In the early morning of 23 August 2008, F and E spotted the deceased sitting alone at a bus stop using his phone. F approached the person from behind and hit him on the head three times, before tripping him and kicking him when he was on the ground. The victim was then robbed. The victim later fell into a coma, and eventually succumbed to his injuries. The cause of death was certified to be intracranial haemorrhage and cerebral contusions due to a fractured skull. F was convicted of murder under s 300(c) of the PC.
[50] F’s conviction was upheld on appeal (in Criminal Case Appeal No 15 of 2011) and his case was subsequently sent back for resentencing under the relevant provisions of the PCAA. At the resentencing hearing (Criminal Case No 40 of 2009), the trial judge in that case found that although the attack was vicious, he took into account the fact that the accused was young (18 years old at the time of offence) and had sub-normal intelligence in eventually deciding not to impose the death penalty. This is an example of how the court must continue to take into consideration all the other circumstances of the case.
[51] We summarize our views on the principles guiding this court in determining when it would be appropriate to impose the death penalty as follows:
(a) The factors alluded to by the Minister for Law in the parliamentary debates are clearly relevant considerations. However, no especial credence should be placed on them. The well-established sentencing principle that all the circumstances and factors of the case must be taken into consideration in meting out an appropriate sentence continues to apply.
(b) The “rarest of rare” principle is not applicable in our legislative scheme of things. A more appropriate principle to follow would be the one laid down by the Court of Appeal in Sia Ah Kew, which is to discern whether the actions of the offender would outrage the feelings of the community.
(c) In determining whether the actions of the offender would outrage the feelings of the community and in turn warrant the imposition of the death penalty, the court must consider whether the offender has acted in a way which exhibits a blatant disregard for human life. Thus the manner in which the offender acted would be critical. The factors to be taken into consideration to determine this would vary depending on the circumstances of the case. In the case of a violent act leading to death, the savagery of the attack would be indicative of the offender’s disregard for human life.
(d) In any event, all the circumstances of the case must be weighed including the motive and intention of the offender at the time he committed the offence. While the offender’s regard for human life remains at the forefront of the court’s consideration, other factors such as the offender’s age and intelligence could well tilt the balance.
With these principles in mind, we now turn to consider the facts of the present appeal.
The manner in which the murder was committed
The decisions below
[52] Central to our inquiry is the manner in which the Respondent had committed the murder. To do this would require revisiting the facts of the case. Keeping in mind the role of an appellate court and that, as far as possible, we should not be disturbing findings of fact, we turn first to the findings of facts concerning the attack as found in the Re-sentencing Judge’s Decision, the CA (Conviction) Decision, and the Trial Judge’s Decision. It is important to note that the Re-sentencing Judge had relied entirely on the Trial Judge’s Decision and the CA (Conviction) Decision where the facts of the case were concerned. At [35] of his decision, the Re-sentencing Judge stated that:
He later concluded at [40(c)] of his decision that:
[53] The Re-sentencing Judge’s conclusion that “there was no clear sequence of events concerning the attack” was therefore his interpretation of the findings made by the CA (Conviction). At [8] to [10] of the CA (Conviction) Decision, the court had observed that:
[54] Even though the accounts of the Respondent and Galing are clearly contradictory, neither the CA (Conviction) nor the Trial Judge made findings as to the exact sequence of events. Though unfortunate, this is understandable because at that point in time there was no need for the court to decide conclusively and exactly how the events took place as the charge against the Respondent and Galing was under s 300(c) of the PC. All that was needed for the Prosecution to prove was that the Respondent had intended to inflict the injury which led to the death of the deceased. As the law then stood, whether an accused was found guilty of an offence under s 300(a) or s 300(c), the punishment would be the same, ie the death penalty.
[55] We also note that the Re-sentencing Judge did not make any findings as to the number of times the Respondent had struck the deceased. There are however a number of observations concerning this in the CA (Conviction) Decision. After considering the statements given to the police by Galing, the CA (Conviction) observed at [25] to [27] that:
[56] The paragraphs above, read together, clearly show that the CA (Conviction) found that the Respondent had struck the deceased on the head with severe force more than two times. Of course, as earlier explained, neither the CA (Conviction) nor the Trial Judge was required to make a specific finding as to the exact number of times the Respondent had struck the deceased on the head. We also note that the Trial Judge (at [24] to [28] of his decision) had made similar observations as to the medical evidence before him, but did not conclusively state the number of strikes the Respondent had inflicted upon the deceased:
Our findings
[57] The specific issue which we must now address is: do the facts discussed above show that the Respondent acted in a way which demonstrated a blatant disregard for human life in committing the murder? As we see it, two points can be made concerning the injuries that were inflicted upon the deceased.
The Respondent approached the deceased from behind
[58] First, although it is true that the sequence of events is unclear, we find that the Re-sentencing Judge had erred in finding at [40(c)] that:
While it remains uncertain whether a struggle indeed occurred beforehand between Galing and the deceased, the evidence clearly shows that the Respondent had approached the deceased from behind and struck him without warning. In fact, the Respondent himself had admitted to this at various occasions during the trial. The following parts of the Respondent’s evidence (given during oral testimony) are telling:
(a) First, on day 9 of the trial:
(b) Second, on day 10 of the trial:
(c) Third, on day 10 of the trial again:
[59] Read together, even if it is assumed that there was a struggle between the deceased and Galing, there remains no doubt that the Respondent had admitted to coming from behind and hitting the deceased from the back. In our opinion, the Re-sentencing Judge had therefore erred by finding that there was no clear evidence showing that position. In any case, whether or not there was a struggle beforehand is of little significance to the Respondent’s culpability, given how the injuries were eventually inflicted. First, it must be borne in mind that this alleged struggle was between the deceased and Galing, and not with the Respondent – any claims that the strikes were made “in the heat of the moment” would therefore be unpersuasive. Second, even if some consideration could be given to the fact that the Respondent was returning to “aid” Galing, this might only explain the Respondent’s first strike at best. However, it does little to explain or mitigate the additional strikes the Respondent dealt to the deceased given that after the first strike by the Respondent, the deceased had fallen onto the ground and was not retaliating. 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?
The number of blows
[60] With this, we turn to our second point, which is the number of times the Respondent had struck the deceased. Throughout the proceedings, the Respondent maintained his position that he had struck the deceased only twice – once when he approached the deceased from the back (regardless of whether or not it was in the midst of a struggle), and once after the deceased had fallen down and turned over to the front. However, as mentioned above (at [56]), the CA (Conviction) found that the Respondent had taken more than two strikes at the deceased. In particular, the CA (Conviction) had considered Galing’s statements to the police, where Galing had mentioned that he:
and also (in another statement) that:
[61] For completeness, we note that during the trial, Galing changed his evidence to state that he had only seen Jabing strike the deceased once, and sought to explain that his police statements were recorded inaccurately. However, the Trial Judge was of the opinion that this allegation was unsustainable and found that the police officers had accurately recorded Galing’s statements (see [47] of the Trial Judge’s Decision). This was noted and affirmed by the CA (Conviction) (see [25] of the CA (Conviction) Decision).
[62] As discussed above, the CA (Conviction) also took note of the evidence of the pathologist, Dr Teo Eng Swee (“Dr Teo”), who testified that the skull fractures could have been caused by five impacts or more. Similar observations were made by the Trial Judge. However, during the hearing before us, counsel for the Respondent sought to persuade us that those observations were not conclusive of the number of strikes that the Respondent dealt, as it could not be said for certain that all five impacts (or more) were caused by the Respondent, ie, they could have been caused by other forces, such as a fall. As a result, counsel for the Respondent submitted that the benefit of doubt should be given to the Respondent and it should not be readily assumed that the Respondent had rained multiple strikes upon the deceased’s head as submitted by the Prosecution. Between the two positions, counsel for the Respondent was trying to show that the Respondent had only struck the deceased twice or at the most thrice before running away, while the Prosecution was trying to show that the Respondent had mercilessly dealt blow after blow on the deceased even after he had fallen onto the ground.
[63] In our opinion, the exact number of blows that the Respondent inflicted on the deceased and the manner in which they were carried out while certainly relevant to our inquiry are not necessarily decisive. As the Trial Judge and the CA (Conviction) did not have to (and thus did not) conclusively decide on how many blows the Respondent had inflicted on the deceased’s head in coming to their decisions, and neither did the Re-sentencing Judge do so, we will first turn to the evidence surfaced during the trial itself to better understand and reconstruct what exactly happened on that fateful day (bearing in mind the very important point (see especially below at [77] and [78]) that such reconstruction cannot contradict (and, indeed, must be consistent with) the findings of fact already made by the CA (Conviction)).
[64] We start with the observations made by Dr Teo that a “severe force” would be required in order to cause fragmentation of an intact skull. Commenting on the pattern of the fractures as found on the skull of the deceased, Dr Teo identified at least five “separate” groups of fractures which he felt were due to separate impacts. However, he also qualified this by explaining that “once the skull has been fractured, much less severe force is required to cause further fracturing of the skull.” Therefore, Dr Teo said that he could not conclusively rule out the possibility that some fractures might have been caused by either a fall or the belt buckle. He did, however, express the view that the fractures were “unlikely to be due to the belt buckle.”
[65] We also note that Dr Teo had highlighted certain “unusual” injuries on the deceased. These unusual injuries were either “paired” or had “some patterning” to them. Dr Teo later explained that the “paired” markings could be attributable to the pattern on the belt buckle, which was the face of the skull having two eyes and a nose which was slightly hooked. Critically, we further note that one of these unusual injuries was on the right eyebrow, which corresponded to one group of fractures on the skull of the deceased which Dr Teo identified (the other injuries with similar markings were found not on the head but on various other areas of the body of the deceased). Galing had also admitted that after he had returned to the scene, he had struck the deceased (at least) once before taking the deceased’s phone and running away. Describing this, Galing mentioned that:
Galing however, asserted that he could not remember exactly where he had struck the deceased.
[66] We will now consider whether it is possible to determine the number of blows landed by the Respondent on the deceased’s head. Starting first with the objective medical evidence alone, it could be said that, prima facie, the Respondent had landed at least five blows onto the head of the deceased – thus the five separate groups of fractures mentioned by Dr Teo. What raises doubt as to this prima facie position appear to be two matters. First is the allegation that the fall of the deceased onto the ground after the first blow by the Respondent could be the cause of some fractures. Second is the fact that at some later point Galing hit the deceased using his belt buckle.
[67] On the first matter, it stands to reason that if the fall could cause a group of fractures, it would mean that the first blow by the Respondent onto the deceased’s head must have been of such a tremendous force that it literally cracked the skull and weakened it so much so that just a fall could cause a further set of fractures. Even then, on the Respondent’s own evidence, he went on to deliver a second blow to the deceased’s head. What this means, is that even if we are to give the Respondent the benefit of the doubt and find that certain groups of fractures were attributable to a fall, in line with the severity of his first blow, it must follow that the second blow of the Respondent would also have been of considerable force. There was nothing to indicate that he had suddenly turned merciful as to lessen the force of the subsequent blow. Pausing here for a moment, and assuming that the Respondent had only inflicted two blows, the picture which emerges before us is a person, while his intention was only to rob the deceased, did not care at all whether his severe blows to the deceased would cause him to die. This is even more apparent considering that the Respondent had chosen to hit the deceased in an extremely vulnerable region ie his head.
[68] Thereafter, we have the evidence of Galing where he said that he struck the deceased with his belt buckle. It is true that Dr Teo had opined that, once the skull is fractured, a much less severe force is required to cause further fracturing, and therefore, a strike from the belt buckle, after the Respondent had delivered the first severe blow, could very well have caused further fracturing, although he also had some reservations, stating that this would be unlikely (see [64] above). Galing testified that he had struck the deceased only once when he returned to the scene where the deceased and the Respondent were. Assuming that Galing was not involved in a struggle with the Respondent earlier, Galing’s position cannot be true as there were multiple injuries with a pattern (see [65] above) on other parts of the deceased body (not the head) with only one injury with a pattern appearing on the right eyebrow of the Deceased. Taking these into consideration, all it means is that one set of fractures could possibly be attributed to the belt buckle, and even then, we hasten to add that Dr Teo had his reservations as to this possibility (the belt buckle causing a set of fractures). The net result is that, at the very most, one group of fractures would have been caused by the fall, and another group by the belt buckle. That leaves three more group of fractures to account for, leading us to draw the irresistible conclusion that the Respondent had struck the deceased at least three times on the head, which was also the finding of the CA (Conviction) when it held that that the Respondent had struck the deceased on the head more than twice (see [56] above).
[69] Apart from the medical evidence, the only other evidence which suggests that the Respondent had struck the deceased multiple times are the statements of Galing to the police. As observed above, Galing had changed his evidence during oral testimony at the trial to state that he had only seen the Respondent strike the deceased once (which is even contrary to what the Respondent himself admitted).
[70] We would only note that this claim of Galing that the statements were recorded inaccurately was rejected by both the Trial Judge and the CA (Conviction). The Trial Judge had the opportunity to observe Galing during his oral testimony and to draw his conclusions from that, and there is no reason why this court at this re-sentencing stage should refuse to accept that finding. There are obviously a variety of reasons why Galing could have been motivated to change his story at the trial to help the Respondent, and an exercise in speculation would be futile, bearing in mind that even the Respondent admitted that he had struck the deceased on the head twice. In the light of the totality of the evidence, we are satisfied that the Respondent had struck the deceased head with the tree branch with much force at least three times. We say “at least” because we have borne in mind Dr Teo had opined that it was unlikely that the belt buckle could have caused the fractures. More importantly, we have absolutely no doubt that when the Respondent landed the three blows on the head of the deceased, he did not care at all whether the blows would kill the latter.
Did the Respondent act in a way which showed a blatant disregard for human life?
[71] We have focused thus far on the exact number of blows the Respondent had inflicted on the head of the deceased, although that is not the defining question that needs to be answered. The key question which we must answer is – did the Respondent act in a manner which showed a blatant disregard for human life? While, as we have stated above, that the question as to the number of blows which the Respondent had landed on the head of the deceased is not decisive, it remains very relevant to the key question. The following considerations are critical to our decision:
(a) First, we find that the Respondent had approached the deceased from behind, and struck him without any warning. Whether or not this was prefaced with a struggle, between Galing and the deceased, is of little significance to the Respondent’s culpability. After the first blow was inflicted which caused the Respondent to fall to the ground, there was effectively no more struggle.
(b) Second, after the deceased fell to the ground after the first blow and then turned around to face upwards, the Respondent struck him once more. It is not disputed that the Respondent was not retaliating. In our judgment, we are of the view that the Respondent continued to hit the deceased at the very least two more times, before leaving the scene. When Galing returned to the scene after chasing Wu Jun he hit the Deceased with his belt buckle.
(c) In any case, even if the Respondent’s assertion that he had only struck the deceased twice is to be believed and accepted, then the force he exerted in the two blows must have been so great as to cause fracturing of such severity and magnitude, so much so that a fall, or a strike with Galing’s belt buckle, could have caused further fracturing.
[72] In our judgment, and consistent with the finding of CA (Conviction), the Respondent had struck the deceased on the head not once, but at least three times altogether. Even if the Respondent did not intend to hit the deceased on his head the first time when the Respondent approached the deceased from the back (we would only add that we cannot see how that could be the case since he approached the deceased stealthily from the back and there was no evidence that the deceased had dodged), we cannot accept that, after the deceased fell and then turned round facing upwards, the Respondent likewise was unaware that he was going to hit the head of the deceased. Given the manner in which the attack was carried out, this was not a case where the Respondent had merely hoped to disable his victim in order to rob him of his belongings. Neither was this a case where the injuries were sustained in the course of a fight or a struggle. This was a case where even after the deceased was no longer retaliating (after the first blow), the Respondent went on to strike the deceased an additional number of times, completely unnecessary given that his initial intention was merely to rob him. In light of the sheer savagery and brutality exhibited by the Respondent, we are completely satisfied that the Respondent exhibited a blatant disregard for human life in the way he attacked the deceased.
Other circumstances of the case
[73] At [40(c)] of his decision, the Re-sentencing Judge observed that the Respondent was relatively young, being 24 years of age, at the time of the offence. The Re-sentencing Judge also rightly observed that the Respondent was not as young as the convicted person in Fabian (who was 18 years of age). In our opinion, the Respondent’s age (at 24 and not 18 as the offender in Fabian) is at best a neutral factor, and does little to change the gravity of the case. The Re-sentencing Judge had also observed (at [40(a)] of his decision) that the Respondent’s choice and use of the piece of wood was “opportunistic and improvisational”, citing the CA (Conviction) Decision at [35(b)]. Likewise, we found this to be at best a neutral factor, given the way and manner the attack was eventually carried out. The fact that the choice of weapon happened to be opportunistic pales in comparison with the savage and callous manner in which the Respondent had wielded it.
Comments on dissenting judgments
[74] The difference in views between the majority and the minority is a matter of fact and not of law. As a matter of law, there is a concurrence in views on the test that is to be employed in determining when the death penalty should be imposed. It is common ground, however, that the disagreement is one of fact. Particularly, we note that the minority found that there was insufficient evidence to establish beyond reasonable doubt that the Respondent had hit the deceased on the head at least three or more times, or that the Respondent had hit the deceased with such huge force as to cause most of the fractures in the deceased’s skull. Given this insufficiency, the minority was of the opinion that therefore, the threshold of the test (ie, whether the Respondent had acted in a way which exhibits viciousness or a blatant disregard for human life), had not been crossed.
[75] In order to reach their conclusion, the minority undertook an extensive review of the evidence that had surfaced during the very first trial. That being so, we emphasise that since this appeal arises from a re-sentencing proceeding pursuant to the PCAA, the first port of call must be the CA (Conviction) Decision. The findings of fact made by that court should not be revisited in the present proceedings. Indeed (and for the avoidance of doubt), all the issues as well as concerns raised by the minority were also raised by counsel during the hearing before the CA (Conviction) and were ruled upon by that court. We wish to highlight that at the hearing before CA (Conviction), Jabing’s counsel had submitted, inter alia, the following points:
(a) “…there was no way that [Jabing] could have caused the 14 or so fractures which Dr Teo testified about”;
(b) “For the 14 fractures to happen dispersed over the head of the deceased there must have been several strikes on the deceased’s head and definitely more than two”;
(c) “…there is a strong possibility that Galing did not only use the belt buckle but also the piece of wood which Jabing had discarded when fleeing the scene”;
(d) “…there is a doubt that it was [Jabing] who caused those injuries which resulted in the death of the deceased.”
Admittedly, as that court was dealing with the pre-amendment position, there was no reason for it to assess the savagery (or otherwise) of the Respondent’s actions; put simply, it was merely making its findings of fact based on the evidence and submissions raised by the counsel concerned. Clearly, the CA (Conviction) had found that the Respondent had inflicted more than two blows on the head of the deceased. As the law then stood, there was no need for the court to be more specific then. What is also clear is that the court did not accept the Respondent’s counsel suggestion that Galing could also have used the piece of wood discarded by the Respondent to hit the deceased, because the court acquitted Galing of the murder charge and instead convicted him of only the offence of robbery with hurt.
[76] What this court ought to be concerned about in the present proceeding is whether based on those findings of fact, the discretion ought (or ought not) to be exercised in favour of the Respondent under the (amended) s 302(2) brought about by the PCAA.
[77] Viewed in this light, in this proceeding, this court should only supplement the findings of the CA (Conviction) with further findings of fact to the extent – and only to the extent – that the CA (Conviction) had been silent and/or ambiguous on matters that are germane to the resolution of the present appeal. As stated above, the CA (Conviction) had accepted Galing’s statements and found “that Jabing struck the deceased more than twice, and with considerable violence” [emphasis added in italics and bold italics]. We would reiterate that Galing’s attempt to question the accuracy of his statements at trial was rejected by both the Trial Judge and the CA (Conviction). Having scrutinised the evidence, the CA (Conviction) concluded (at [27]) that:
[78] With the greatest respect, the minority have embarked on a total reconsideration of all the findings of fact made by the CA (Conviction); they have, in effect, not only re-opened as well as questioned those findings but also sought to reverse them. Indeed, if the analysis in these judgments is taken to its logical conclusion, there might be at least a strong case for finding that the Respondent ought not to have even been convicted under s 300(c) in the first place. Even if we were to accept the position that it was unclear as to how many times the Respondent had struck the head of the deceased, what is vitally important to bear in mind is that what we have here was a completely shattered skull. Bearing in mind the fact that the alleged intention of the Respondent and Galing was merely to rob the deceased, what the Respondent did underscores the savagery of the attack which was characterised by needless violence that went well beyond the pale.
[79] Returning to our position, as we have observed, at the very least, the Respondent had chosen to strike the deceased with such immense force at an extremely vulnerable region, so much so that a simple fall or a strike from a buckle could have led to further shattering. To us, this alone, already shows the Respondent’s complete disregard of human life. To say that the fall (after the first blow by the Respondent) and the hit by Jabing on the deceased’s right eyebrow with the use of the buckle could have caused further fractures and thus mitigated the viciousness of the attack is, with respect, a non-plus to us. The evidence is clear – severe force, from more than two blows, had caused the kind of fractures which were found on the head of the deceased.
Conclusion
[80] The result of the amendments to the mandatory death penalty regime is that, in certain circumstances, it is the court who is now the final arbiter of whether an offender is deserving of the ultimate penalty. The punishment of death is an unusually severe punishment in its finality and enormity. The irrevocability of this punishment demands that in the exercise of this discretion, the court should be guided by clear and practicable principles in order to prevent any form of capriciousness and arbitrariness.
[81] At the same time, we recognise that the nature of the crime is such that it does not lend itself to a situation where the court could lay down a set of specific objective factors which are determinative. By its very nature, what would constitute a blatant disregard of human life would be very fact-sensitive. The punishment of a crime must be proportionate to the gravity of the crime.
[82] In our judgment, the punishment of death will be appropriate when the offender had committed the murder in a manner which clearly demonstrates a blatant disregard for the sanctity of human life. In this appeal, the Respondent had struck the deceased in a vulnerable region (the head). We find (as did the CA (Conviction) in dismissing his appeal against conviction) that the Respondent had struck at the deceased’s head at least three times. Although it is impossible to reconstruct exactly what had occurred on that fateful day, given the evidence before us, we are inclined to think that the Respondent had struck the deceased more times than that.
[83] While the possibility of additional injuries being caused by another force cannot be conclusively ruled out (for example, by the belt buckle of Galing or a fall), in our judgment, the medical evidence clearly shows that the fatal blows are attributable to the Respondent. The sheer savagery and brutality displayed by the Respondent shows that during the course of the attack, the Respondent just simply could not care less as to whether the deceased would survive although his intention at the time was only to rob. He did not stop attacking the deceased even after the latter was incapacitated and was no more in a position to respond after the first blow. His actions were utterly vicious.
Lee Seiu Kin J:
Introduction
[85] At the invitation of Woo Bih Li J, I am delivering my judgment ahead of him. I have had the benefit of reading the judgment of my learned colleagues, Chao Hick Tin JA, Andrew Phang Boon Leong JA and Chan Seng Onn J (“the Majority Judgment”). In the paragraphs that follow, I have adopted the nomenclature in the Majority Judgment, save that I refer to the Respondent as “Jabing”.
[86] The key issue in this appeal is whether the death penalty should be imposed on Jabing under s 302(2) of the PC. I should state at the outset that I respectfully agree with the analysis in the Majority Judgment of the law in relation to the imposition of the death penalty on a charge under s 300(c), and punishable under s 302(2), of the PC. In particular, I agree that the “rarest of rare” principle is not appropriate for Singapore (see [43] above). I agree with the formulation of the test set out in the Majority Judgment at [44] above, ie, it is a question of whether the offender’s acts are “so grievous an affront to humanity and so abhorrent” that the death penalty is the only adequate sentence. I also am further in complete agreement that, in the context of the present case, capital punishment would be appropriate where the offender had “acted in a way which exhibits viciousness or a blatant disregard for human life” (see the Majority Judgment at [45] above).
[87] As is usually the case in these matters, the outcome of the appeal hinges on the findings of fact. It is solely in relation to the findings of fact that I must respectfully depart from the Majority Judgment. I now give the reasons for my dissent on this point.
[88] Prior to the enactment of the PCAA, all that the Prosecution was required to prove in a trial on charge under s 300(c) was that the accused had intentionally inflicted the injury on the deceased, which injury was sufficient in the ordinary course of nature to cause death. It was neither necessary for the conviction nor the sentence to prove any details of the acts of the accused beyond this. While evidence of the accused’s intention to inflict the fatal injury would be found in the manner in which he had attacked the deceased, in certain circumstances it is possible for an accused to be convicted without evidence providing a blow-by-blow account of the incident. The fact that such evidence is not before the court is often not due to the fault of the Prosecution. Very often, as was the situation in the present case, there are no witnesses available to give this evidence. If there is evidence to prove all the elements of the offence, the lack of a detailed account of the incident will not stand in the way of a conviction under s 300(c). And once a person is convicted under s 300(c) of the PC, under the previous incarnation of s 302 of the PC, the only punishment that could be imposed was the death penalty. However, with the amendment brought about by the PCAA, the new s 302(2) of the PC gave the court the discretion to impose the death penalty or life imprisonment (with or without caning). As a result of this legislative change, the details of the attack on the deceased by an accused person became crucial on the issue of sentence, even though it was not at the time of the trial.
[89] The problem in this case lies with the fact that we are now trying to reconstruct, from the evidence given under those circumstances, the sequence of events in order to determine the extent of Jabing’s role in causing the death of the deceased. However difficult the task may be, it must be done on the basis of the criminal standard of proof, ie, beyond a reasonable doubt. Where any evidence is ambiguous, the benefit of the doubt must be given to Jabing. Some of these ambiguities could have been resolved had the relevant witnesses been asked questions at the trial from this point of view; but this was not done and we can only look at the evidence at hand and make such findings of fact as we can based on the criminal standard of proof. In my view this court is entitled to revisit any findings of fact made in the CA (Conviction) decision in view of this crucial difference in the nature of the inquiry pointed out in the preceding paragraph.
[90] I shall first examine the two key findings of fact in the Majority Judgment upon which the majority of this court concluded that Jabing had acted in blatant disregard for human life. These are (a) Jabing had approached the deceased from behind without warning, and (b) Jabing had struck the deceased in the head at least three times (as stated in [70] of the Majority Judgment) and with such force as to cause most of the extensive fractures found in the deceased’s skull. I intend to show that there is insufficient evidence to find beyond reasonable doubt that Jabing had caused most of the skull fractures (either by multiple strikes or two strikes with huge force). Following that, I shall set out the findings of fact which this court can find to be established beyond reasonable doubt by the evidence before the trial court, upon which the sentencing decision should be based. My conclusion is that, based on this set of facts, it cannot be concluded that Jabing had acted in blatant disregard of human life.
First key finding: Whether Jabing approached the deceased from behind without warning
[91] On this first question, in my opinion there is sufficient evidence to establish beyond reasonable doubt that Jabing had approached the deceased from behind without warning and hit the deceased in the head. There is clear and consistent evidence from the factual witnesses even though the medical evidence is, at best, neutral on this point.
Factual witnesses
Jabing
[92] Jabing’s evidence is that he approached the deceased from behind without warning and struck him in the head.
[93] It was recorded in Jabing’s statement dated 4 March 2008 that:
[94] Jabing had also admitted at least three times during the trial that he approached the deceased from the back:
(a) 30 July 2009, page 60, line 31:
(b) 31 July 2009, page 23, line 32:
(c) 31 July 2009, page 43, line 32:
[95] Apart from whether there was a struggle between the deceased and Galing, Jabing’s evidence on this point is consistent with Galing’s evidence in his statements and during the trial. I now turn to consider Galing’s evidence on this point.
Galing
[96] It was recorded in Galing’s statements that he saw Jabing approach the deceased from behind and hit him with the wood:
(a) Statement dated 26 February 2008:
(b) Statement dated 3 March 2008:
[97] Galing’s statements were consistent with his evidence during the trial:
(a) 27 July 2009, page 11, line 17:
(b) 27 July 2009, page 32, line 23:
Wu Jun
[98] To some extent, the evidence of Jabing and Galing (ie, that Jabing approached the deceased from behind) is consistent with Wu Jun’s account of the attack. Wu Jun’s evidence would suggest that:
(a) Wu Jun was attacked by Galing using the belt buckle from behind. This is based on Wu Jun’s evidence that he was hit once by something hard at the back of his head (near his left ear), which he thought was a chain, and that he saw his assailant with “a clenched fist” [emphasis added] and “raising his hand as if he was going to attack me”. [emphasis added].
(b) The initial strike to the deceased was by Jabing. This can be inferred from Wu Jun’s evidence that he heard his friend groaning as if he was in pain shortly after he was attacked by Galing. The logical conclusion, given that Jabing and Galing were the only two assailants, was that Jabing was the one who struck the deceased.
(c) Jabing did not approach the deceased from the front. This can be inferred from Wu Jun’s evidence that he was walking beside the deceased, and he did not see any other person apart from his assailant (which was identified as Galing).
[99] While Wu Jun does not say specifically that he saw Jabing approach the deceased from behind and hitting him in the head, his account of the attack is consistent with the evidence of Galing and Jabing (apart from the alleged struggle).
Medical evidence
[100] There is, however, one concern that ought to be addressed here, that is, the medical evidence is neutral on whether the deceased was struck in the head from behind.
[101] The evidence of Dr Teo Eng Swee (forensic pathologist) and Dr Ho Chi Long (neurosurgeon) would suggest that the deceased might not have suffered a direct blow to the back of his head. Dr Teo’s evidence was that he could not rule out the possibility that fracture (14) at the back of the head might have been caused by a fall. On the other hand, Dr Ho took the view that fracture (14) could have been an extension of the fractures on the left side of the skull.
[102] However, this may not necessarily be inconsistent with the fact that Jabing had approached the deceased from behind without warning. The deceased could well have turned his head to the side when Jabing approached from the back such that Jabing’s initial strike landed on the side instead of the back of the deceased’s head. Indeed, it is not difficult to imagine that the deceased might have heard someone approaching from behind and wanted to turn around to see who it was. It is also possible that the initial strike by Jabing to the deceased’s head did not cause any fractures. It should be noted that Dr Teo could not give evidence of the order in which the injuries were sustained (except that fracture (8) might have occurred after the other fractures). Accordingly, the medical evidence neither proves nor dispels the proposition that Jabing approached the deceased from behind without warning.
Summary of the evidence
[103] While the medical evidence does not show that the deceased was struck in the back of the head, it may not necessarily be inconsistent with the fact that Jabing had crept up behind the deceased without warning and attacked him. More importantly, there is clear and consistent evidence from all three key factual witnesses (ie, Jabing, Galing and Wu Jun) that would support a finding beyond reasonable doubt that Jabing had approached the deceased from behind without warning and hit him on the head.
Second key finding: Whether Jabing hit the deceased on the head at least three times or with such huge force as to cause most of the fractures
[104] In my view, there is insufficient evidence to establish beyond reasonable doubt that Jabing had hit the deceased on the head at least three times, or that Jabing had hit the deceased with such huge force as to cause most of the fractures in the deceased’s skull. The evidence would, taken at the highest, show that Jabing had hit the deceased in the head twice and caused the skull to fracture.
[105] I shall consider firstly, the evidence relating to the number of blows sustained by the deceased, and secondly, the evidence on the number of blows inflicted by Jabing.
The number of blows sustained by the deceased
[106] For the reasons that follow, I am of the view that the evidence only supports a finding that deceased sustained two blows to the head. This comes primarily from Jabing’s evidence (see [107] below). The medical evidence does not establish beyond reasonable doubt the exact number of strikes that the deceased sustained or if the deceased in fact sustained more than two strikes to the head (see, in particular, [111] and [121] below).
Factual witnesses
[107] The evidence of Jabing, Galing and Wu Jun would not support a finding of fact that the deceased sustained more than two strikes to the head:
(a) Wu Jun’s evidence suggests that the deceased was struck but not necessarily on the head. This is because Wu Jun only heard the deceased groaning in pain shortly after he was assaulted by Galing.
(b) Jabing’s evidence, both in his statements and during the trial, was that he had only hit the deceased twice. While it was recorded in Jabing’s statements that he saw Galing hit the deceased with the belt buckle, he did not mention the number of times. In one of his statements, Jabing was recorded as having said that he was not sure how many times Galing hit the deceased. At trial, Jabing said that he did not see Galing hit the deceased. On Jabing’s evidence, then, the deceased would have only been hit in the head twice.
(c) Galing’s evidence suggests that the deceased sustained one or two blows. Galing’s evidence was that he had only hit the deceased once either in the chest or head. As for the number of times Jabing hit the deceased, Galing changed his evidence during the trial to say, consistently, that he only saw Jabing hit the deceased once.
[108] Based on the evidence of Jabing, Galing and Wu Jun, the deceased would have sustained only two blows to the head.
Medical evidence
[109] The key issue is whether the medical evidence supports the finding that the deceased sustained at least five direct strikes to the head. Neither Dr Teo nor Dr Ho could state the exact number of blows sustained by the deceased, but merely concluded that it would take “several blows” or a “huge force”.
[110] Firstly, the medical evidence does not support a finding that the skull fractures were caused by five impacts or more. A closer look at the Notes of Evidence would show that Dr Teo had identified not only five but a total of eight points of impact:
(a) First, the laceration above the left eyebrow/forehead region and the fragmentation of the skull suggest blunt force impact.
(b) Second, fractures (5) and (6) indicate an impact on the right side of the skull.
(c) Third, fractures (2), (3), (4) and (7) could be due to one impact or more.
(d) Fourth, fracture (8) could be due to a separate impact.
(e) Fifth, fracture (1), which is a comminuted fracture of the frontal bone above the right eye, is probably due to another impact. Fracture (12) could have been a continuation of fracture (1) as well.
(f) Sixth, fracture (9), which is a V-shaped fracture, could be due to another impact.
(g) Seventh, fracture (14) could be due to another impact (Dr Teo said he does not exclude that it might be due to a fall).
(h) Eighth, the fragmentation on the left side of the skull (where the left-sided craniectomy was performed) could be due to one or more impacts. However, fractures (10), (11), (12) and (13) at the base of the skull could have been “continuations of the fractures” from the part of the skull where the craniectomies were performed.
[111] More importantly, however, Dr Teo ended that discussion with an important caveat that did not appear to have been picked up in any of the previous proceedings:
[112] Dr Teo also explained that “[o]ne impact may cause multiple fractures but the impact would have to be of very great force”. To be fair, Dr Teo did say subsequently during re-examination that, in his view, one blow with a blunt object would not have caused all the fractures present in this case. Nevertheless, it should be noted that Dr Teo did not go on to say the number of blows that it would have taken to cause the fractures. He certainly did not say specifically that the deceased sustained five direct blows to the head.
[113] Secondly, Dr Teo did not have the opportunity to examine the entire skull of the deceased during autopsy as significant parts of it had been removed during the two craniectomies that were performed on the deceased. As a result of the injuries caused to the head which led to cerebral oedema (ie, swelling of the brain), the deceased had to undergo decompressive craniectomy twice. During the trial, Dr Teo’s evidence was as follows:
[114] This is consistent with Dr Ho’s evidence on what was done to the removed part of the deceased’s skull:

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Public Prosecutor v Kho Jabing

Laws this judgment relies on

Grounds of decision

Introduction

Our decision

The discretionary death penalty

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

(b) Do the normal sentencing principles apply?

Parliamentary debates

Foreign decisions

Local case authorities

The decision to impose the death penalty

The manner in which the murder was committed

The decisions below

Our findings

The Respondent approached the deceased from behind

The number of blows

Did the Respondent act in a way which showed a blatant disregard for human life?

Other circumstances of the case

Comments on dissenting judgments

Conclusion

Introduction

First key finding: Whether Jabing approached the deceased from behind without warning

Factual witnesses

Jabing

Galing

Wu Jun

Medical evidence

Summary of the evidence

The number of blows sustained by the deceased

Factual witnesses

Medical evidence