Jabing Kho as a child. All rights reserved.The news came out of nowhere; it was like we’d all been struck by lightning. “This is to inform you that the death sentence passed on Jabing Kho will be carried out on 20 May 2016.”
Just a week-and-a-half before this awful announcement, I’d been in Kuching with Jabing’s family, telling the press that his lawyer would be submitting a fresh petition for clemency, which would be likely to buy him another three months while it was being deliberated by the Cabinet and president of Singapore.
We now know how wrong we’d been.
Jabing, a Sarawakian of Iban and Chinese descent, had come to Singapore, like so many others, to seek opportunities and earn a better wage for his family. His sister, Jumai, remembers how proud she was when he first left.
“I thought that perhaps this would be a better path for my brother,” she said. “He had never done anything bad before, so I thought that nothing could go wrong and it would be better for everyone.”
But things did go wrong. On 17 February 2008, Jabing and a friend, Galing anak Kujat, tried to rob two Chinese construction workers. One man managed to get away, but Cao Ruyin was not so lucky. The exact sequence of events still remain unclear, but it is known that at some point in the proceedings Jabing picked up a piece of wood from the ground and hit Cao over the head with it. Cao died from his injuries six days later.
Following his arrest, investigation and trial, Jabing was convicted of murder – which then carried the mandatory death penalty – in July 2010. The sentence was confirmed on appeal in 2011. His family, far away in Miri, Sarawak, were not at either court hearing; Jumai said that they had not known about them.
Things started to look a little hopeful when amendments to Singapore’s mandatory death penalty regime meant that Jabing’s case was up for re-sentencing. In 2013, a High Court judge set aside his death sentence, replacing it with life imprisonment and 24 strokes of the cane. He cited Jabing’s young age – he was 24 at the time of the offence – as well as the “opportunistic and improvisational” nature of his weapon.
“There was no clear sequence of events concerning the attack. There was no clear evidence that the convicted person went after the deceased from behind without warning and started hitting him on the head with the piece of wood,” the judge wrote.
The prosecution appealed the High Court’s decision, and in 2015, a five-judge Court of Appeal ruled in a 3-2 split decision that the sentence of death would be imposed once again.
“We were very dissatisfied and disappointed to see Jabing’s death sentence get removed and replaced,” Jumai told me the first time I’d met her in May 2015. “It seemed very random, as if the law didn’t take his life seriously at all. Any family would be upset.”
There have since been more twist and turns in this horrifying roller-coaster ride. In November last year, Jabing narrowly escaped the noose via a stay of execution less than 24 hours before his scheduled execution. This stay, imposed by the Court of Appeal so they could hear the arguments made by his lawyer in a last-minute criminal motion, was lifted in April this year when the motion was dismissed.
We had thought that his lawyer would be able to send in a fresh clemency petition, but have since been informed of the president’s position that the decision from the previous clemency petition – rejected in October 2015 – still stands.
Many issues continue to cause concern, even as the date of execution creeps ever closer. The fact still remains that one High Court judge and two Judges of Appeal had felt that the death penalty would not be appropriate for Jabing’s crime, indicating the presence of significant doubt that the punishment can be justified even by Singapore’s most respected legal minds.
Furthermore, following the amendments to the law, Jabing had only been given a re-sentencing hearing, rather than a re-trial. The re-sentencing largely relied on the same findings of fact made in the initial trial.
During the initial trial, the penalty had been mandatory death, where mitigating circumstances could not be taken into account. Many details – such as Jabing’s age, level of intoxication, mental capacity, and even the exact number of times he had struck the victim – had not been relevant then. Yet these details were still not established even after the judges were allowed some discretion.
One of the Judges of Appeal, Andrew Phang, had been present at both Jabing’s appeals, before and after amendments to the law were made. Jabing’s re-sentencing had been largely based on findings of fact made in the initial trial, and Phang ruled against him in favour of the death penalty both times.
“...judges must be independent, impartial and unbiased, and as such a judge who had previously heard and determined a case involving the same accused person reasonably would not satisfy these important conditions, more so when the earlier Appeal in which Andrew Phang Boon Leong JA was involved in was also the appeal against conviction for the very same offence,” wrote Charles Hector from Malaysians Against Death Penalty and Torture (MADPET).
There isn’t much time left to keep raising these issues. Advocates in Malaysia and in Singapore continue to urge our governments to do what they can for Jabing, even though chances are slim. The last clemency granted to a death row inmate was in 1998; no one has been shown mercy since.
Yet activists are nothing if not stubborn. We’ll continue to work round-the-clock to do as much as we can before Friday morning. And no matter how tired and depressing it gets, we draw strength from Jumai, who has fought longer and harder than anyone else:
“What I have done has not been easy, but I cannot give up and will never give up, even though the date is near. If anyone has a similar problem, this is my message to you: never give up. Try your best to help those in prison. People in prison can't do anything, but the people outside can do a lot. People in prison are very alone. Everyone in prison really misses their families. If the people outside can give their support, they might be with their families again. I know it's not easy, but try your best.”
This piece is based on the writer's own observations and experience of working with Jabing Kho's family, and does not reflect the views of her organisation.