Kho Jabing v Public Prosecutor: Reopening Concluded Criminal Appeals and Finality of Judgments

In Kho Jabing v Public Prosecutor, the Court of Appeal of Singapore addressed a criminal motion by Jabing Kho seeking to reopen his concluded criminal appeal. The court, comprising Chao Hick Tin JA, Andrew Phang Boon Leong JA, Woo Bih Li J, Lee Seiu Kin J, and Chan Seng Onn J, considered the circumstances under which it may review its previous decisions in criminal appeals. The court ultimately dismissed the motion, upholding the death sentence, emphasizing the importance of finality in judgments while acknowledging the need to correct miscarriages of justice in exceptional cases.

1. Case Overview

1.1 Court

Court of Appeal of the Republic of Singapore

1.2 Outcome

Criminal motion dismissed; death sentence to stand.

1.3 Case Type

Criminal

1.4 Judgment Type

Judgment

1.5 Jurisdiction

Singapore

1.6 Description

The Court of Appeal considered reopening a concluded criminal appeal, balancing finality and correcting injustice, ultimately dismissing the application.

1.7 Decision Date

4 April 2016

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Public Prosecutor	Respondent	Government Agency	Appeal Upheld	Won	Francis Ng of Attorney-General’s Chambers Zhuo Wenzhao of Attorney-General’s Chambers Marshall Lim of Attorney-General’s Chambers
Jabing Kho	Applicant	Individual	Motion Dismissed	Lost	Chandra Mohan K Nair of Tan Rajah & Cheah

3. Judges

Judge Name	Title	Delivered Judgment
Chao Hick Tin	Judge of Appeal	Yes
Andrew Phang Boon Leong	Judge of Appeal	No
Woo Bih Li	Judge	No
Lee Seiu Kin	Judge	No
Chan Seng Onn	Judge	No

4. Counsels

Counsel Name	Organization
Francis Ng	Attorney-General’s Chambers
Zhuo Wenzhao	Attorney-General’s Chambers
Marshall Lim	Attorney-General’s Chambers
Chandra Mohan K Nair	Tan Rajah & Cheah

4. Facts

The applicant was convicted of murder in 2010 and sentenced to death.
The applicant's appeal against his conviction was dismissed in 2011.
The Penal Code was amended in 2012, allowing re-sentencing applications.
The applicant was re-sentenced to life imprisonment and caning in 2013.
The prosecution appealed, and the Court of Appeal substituted the death sentence in 2015.
The applicant sought to reopen the concluded appeal, arguing errors of law and fact.
The Court of Appeal dismissed the motion, upholding the death sentence.

5. Formal Citations

Kho Jabing v Public Prosecutor, Criminal Motion No 24 of 2015, [2016] SGCA 21

6. Timeline

Date	Event
2010-01-01	Applicant tried and convicted of murder.
2011-01-01	Applicant’s appeal against conviction dismissed.
2012-01-01	Enactment of the Penal Code (Amendment) Act 2012.
2013-04-30	Court of Appeal clarified applicant guilty of murder and remitted matter to High Court.
2013-08-14	High Court re-sentenced applicant to life imprisonment and caning.
2015-01-14	Court of Appeal allowed Prosecution’s appeal, substituted death sentence.
2015-10-19	President ordered death sentence to be carried out.
2015-11-03	Criminal Motion No 23 of 2015 filed.
2015-11-04	Applicant applied to set aside death sentence.
2015-11-05	Hearing of applications, sentence stayed.
2015-11-23	Resumed hearing, CM 23/2015 withdrawn, judgment reserved.
2016-04-05	Judgment delivered.

7. Legal Issues

Reopening Concluded Criminal Appeals
- Outcome: The Court of Appeal outlined the principles for reopening concluded criminal appeals, emphasizing the need for sufficient material indicating a miscarriage of justice.
- Category: Procedural
- Sub-Issues:
  - Finality of judgments
  - Miscarriage of justice
  - Inherent power of review
- Related Cases:
  - [2015] 5 SLR 1104
  - 401 US 667 (1971)
  - [2010] 2 SLR 192
  - [2012] 2 SLR 49
  - [2012] 2 SLR 872
  - [2015] 2 SLR 563
  - [2002] 3 WLR 640
Equality Before the Law
- Outcome: The court held that there was no violation of the applicant's right to equal treatment under Art 12(1) of the Constitution.
- Category: Constitutional
- Sub-Issues:
  - Unequal treatment
  - Prosecutorial discretion
- Related Cases:
  - [2012] 2 SLR 49
  - [2012] 2 SLR 872
Jurisdiction of the Court of Appeal
- Outcome: The court clarified its jurisdiction to review previous decisions in criminal appeals, particularly in cases involving potential miscarriages of justice.
- Category: Jurisdictional
- Sub-Issues:
  - Appellate jurisdiction
  - Functus officio
- Related Cases:
  - [2006] 2 SLR(R) 830
  - [2010] 2 SLR 192

8. Remedies Sought

Setting aside the sentence of death
Re-sentencing

9. Cause of Actions

Murder
Appeal against sentence

10. Practice Areas

Criminal Appeals
Constitutional Law

11. Industries

No industries specified

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
The Royal Bank of Scotland NV (formerly known as ABN Amro Bank NV) and others v TT International Ltd (nTan Corporate Advisory Pte Ltd and others, other parties) and another appeal	Court of Appeal	Yes	[2015] 5 SLR 1104	Singapore	Cited for the principle of finality in judicial decisions.
Mackey v United States	Supreme Court	Yes	401 US 667 (1971)	United States	Cited for the importance of finality in the criminal process.
Public Prosecutor v Galing Anak Kujat and another	High Court	Yes	[2010] SGHC 212	Singapore	Cited as the High Court decision convicting the applicant of murder.
Kho Jabing and another v Public Prosecutor	Court of Appeal	Yes	[2011] 3 SLR 634	Singapore	Cited as the Court of Appeal decision dismissing the applicant’s appeal against conviction.
Public Prosecutor v Kho Jabing	High Court	Yes	[2014] 1 SLR 973	Singapore	Cited as the High Court decision re-sentencing the applicant to life imprisonment and caning.
Public Prosecutor v Kho Jabing	Court of Appeal	Yes	[2015] 2 SLR 112	Singapore	Cited as the Court of Appeal decision substituting the sentence of life imprisonment and caning with a sentence of death.
Abdullah bin A Rahman v Public Prosecutor	Court of Appeal	Yes	[1994] 2 SLR(R) 1017	Singapore	Cited for the principle that the court is functus officio after delivering judgment.
Lim Choon Chye v Public Prosecutor	Court of Appeal	Yes	[1994] 2 SLR(R) 1024	Singapore	Cited for the principle that the court is functus officio after delivering judgment.
Jabar bin Kadermastan v Public Prosecutor	Court of Appeal	Yes	[1995] 1 SLR(R) 326	Singapore	Cited for the principle that the court is functus officio after delivering judgment.
Vignes s/o Mourthi v Public Prosecutor	Court of Appeal	Yes	[2003] 4 SLR(R) 518	Singapore	Cited for the principle that the court is functus officio after delivering judgment.
Koh Zhan Quan Tony v Public Prosecutor and another motion	Court of Appeal	Yes	[2006] 2 SLR(R) 830	Singapore	Cited for the exception to the functus officio principle when challenging the court's jurisdiction.
Muhd Munir v Noor Hidah and other applications	Court of Appeal	Yes	[1990] 2 SLR(R) 348	Singapore	Cited for the definition of jurisdiction and power of the court.
Yong Vui Kong v Public Prosecutor	Court of Appeal	Yes	[2010] 2 SLR 192	Singapore	Cited for the principle that the Court of Appeal may correct a miscarriage of justice at any time.
Ramalingam Ravinthran v Attorney-General	Court of Appeal	Yes	[2012] 2 SLR 49	Singapore	Cited for the court's power to reopen a concluded criminal appeal to correct mistakes.
Yong Vui Kong v Public Prosecutor	Court of Appeal	Yes	[2012] 2 SLR 872	Singapore	Cited for the court's power to reopen a concluded criminal appeal to correct mistakes.
Quek Hock Lye v Public Prosecutor	Court of Appeal	Yes	[2015] 2 SLR 563	Singapore	Cited for the court's power to reopen a concluded criminal appeal to correct mistakes.
Taylor and another v Lawrence and another	English Court of Appeal	Yes	[2002] 3 WLR 640	England and Wales	Cited for the principle that the court has the power to reopen a concluded appeal to avoid real injustice in exceptional circumstances.
In re Uddin (A Child)	English High Court	Yes	[2005] 1 WLR 2398	England and Wales	Cited for the circumstances in which facts are so exceptional that recourse to reopening an appeal is appropriate.
Regina v Yasain	Criminal Division of the English Court of Appeal	Yes	[2015] 3 WLR 1571	England and Wales	Cited for the principle that the Criminal Division of the English Court of Appeal has the power to reopen a concluded criminal appeal.
Secretary for Justice v Mak Wai Hon	Hong Kong Court	Yes	[2000] 1 HKC 498	Hong Kong	Cited for the principle that a court can only reopen its decision if the order was a nullity or if there was a procedural error.
HKSAR v Tin’s Label Factory Ltd	Hong Kong Court of Final Appeal	Yes	[2008] HKCU 1899	Hong Kong	Cited for the principle that the residual discretion to reopen an appeal is a wholly exceptional jurisdiction.
Brian Alfred Hall v HKSAR	Hong Kong Court of Final Appeal	Yes	[2014] 4 HKC 500	Hong Kong	Cited for the principle that the court has an implied power to order an appeal to be re-opened where justice so demands.
Burrell v R	High Court of Australia	Yes	(2008) 248 ALR 428	Australia	Cited for the principle that the High Court of Australia has the power to repair its own mistakes and oversights.
Dato’ See Teow Chuan & Ors and others v Ooi Woon Chee and others and other applications	Federal Court of Malaysia	Yes	[2013] 4 MLJ 351	Malaysia	Cited for the principle that the Federal Court has the inherent power to review any matter already decided by the court where it is necessary to do justice and to prevent an abuse of process.
Asean Security Paper Mills Sdn Bhd v Mitsui Sumitomo Insurance (Malaysia) Bhd	Federal Court of Malaysia	Yes	[2008] 6 CLJ 1	Malaysia	Cited for the difference between an application for a review and an appeal.
Ladd v Marshall	Not Available	Yes	[1954] 1 WLR 1489	England and Wales	Cited for the requirement of non-availability of new evidence.
Soh Meiyun v Public Prosecutor	High Court	Yes	[2014] 3 SLR 299	Singapore	Cited for the less restrictive approach towards the admission of further evidence in criminal appeals.
Arnold v National Westminster Bank plc	Not Available	Yes	[1991] 2 AC 93	England and Wales	Cited for the Arnold exception to issue estoppel.
Sia Ah Kew v Public Prosecutor	Court of Appeal	Yes	[1974–1976] SLR(R) 54	Singapore	Cited for the test of whether the actions of the offender would outrage the feelings of the community.
Panya Martmontree v Public Prosecutor	Court of Appeal	Yes	[1995] 2 SLR(R) 806	Singapore	Cited for the test of whether the actions of the offender would outrage the feelings of the community.
Public Prosecutor v Mohammed Liton Mohammed Syeed Mallik	High Court	Yes	[2008] 1 SLR(R) 601	Singapore	Cited for the standards for intervention applicable to an appeal.
Public Prosecutor v Louis Pius Gilbert	High Court	Yes	[2003] 3 SLR(R) 418	Singapore	Cited as an example where the court imposed a sentence in excess of its sentencing jurisdiction.
Public Prosecutor v Loo Kun Long	High Court	Yes	[2003] 1 SLR(R) 28	Singapore	Cited as an example where the court failed to impose the statutorily-prescribed punishment.
Chiaw Wai Onn v Public Prosecutor	High Court	Yes	[1997] 2 SLR(R) 233	Singapore	Cited as an example where the court imposed a sentence above the statutorily-prescribed maximum.
Ong Ah Chuan and another v Public Prosecutor	Privy Council	Yes	[1979–1980] SLR(R) 710	Singapore	Cited for the definition of 'law' in Art 9(1) of the Constitution.
Public Prosecutor v Lim Choon Teck	High Court	Yes	[2015] 5 SLR 1395	Singapore	Cited for the Public Prosecutor's role in the fair administration of criminal justice.
Regina v Daniel	Not Available	Yes	[1977] 2 WLR 394	England and Wales	Cited as an example of a breach of natural justice.
Ramanathan a/l Chelliah v Public Prosecutor	Malaysian High Court	Yes	[2009] 6 MLJ 215	Malaysia	Cited as an example of a breach of natural justice.
Regina v Bow Street Metropolitan Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No 2)	House of Lords	Yes	[1999] 2 WLR 272	England and Wales	Cited as an example of a breach of natural justice.
Mohd Fauzi bin Mohamed Mydin v Public Prosecutor	High Court	Yes	[2015] SGHC 313	Singapore	Cited for the summary rejection of appeals.
Habib Ahmed v Hong Kong Special Administrative Region	Not Available	Yes	[2010] HKCU 1761	Hong Kong	Cited for the requirement of leave to bring applications to reopen a final appellate court's decision.
Took Leng How v Public Prosecutor	Court of Appeal	Yes	[2006] 2 SLR(R) 70	Singapore	Cited for affirming convictions in capital cases by a majority.
Yong Vui Kong v Public Prosecutor	Court of Appeal	Yes	[2015] 2 SLR 1129	Singapore	Cited for the definition of fundamental rules of natural justice.
Robert Apodaca et al v Oregon	Supreme Court of the United States	Yes	406 US 404 (1972)	United States	Cited for the explanations for the historical requirement of unanimity in criminal cases.
Public Prosecutor v Aniza bte Essa	Court of Appeal	Yes	[2009] 3 SLR(R) 327	Singapore	Cited for the principle that the sentencing process is not a second trial.
Arizona v Dennis Wayne Rumsey	Supreme Court of the United States	Yes	467 US 203 (1984)	United States	Cited for the rule against double jeopardy.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
Penal Code (Amendment) Act 2012	Singapore
Penal Code (Cap 224, 2008 Rev Ed)	Singapore
Criminal Procedure Code (Cap 68, 2012 Rev Ed)	Singapore
Supreme Court of Judicature Act	Singapore
Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Finality
Miscarriage of justice
Inherent power of review
Reopening concluded appeals
Equality before the law
Prosecutorial discretion
Functus officio
New and compelling evidence
Demonstrably wrong
Breach of natural justice

15.2 Keywords

Criminal appeal
Reopening
Finality
Miscarriage of justice
Death penalty
Singapore
Court of Appeal

17. Areas of Law

Area Name	Relevance Score
Appeal	80
Criminal Procedure	70
Constitutional Law	60
Criminal Revision	40
Judgments and Orders	30
Civil Procedure	20
Asset Recovery	10

16. Subjects

Criminal Law
Constitutional Law
Appeals
Judicial Review