Tried twice for same crime?

Derrick A Paulo
derrick@newstoday.com.sg

Has a long-practised procedure of the Court of Appeal violated the Singapore Constitution?

Effectively, that was the poser by Senior Counsel KS Rajah, a former judicial commissioner, in the latest edition of the Law Gazette. The answer is significant for two men now on death row.

Former coffee shop assistant Lim Poh Lye, 46, and former Taoist priest Tony Koh, 37, were convicted of murder last July by the Court of Appeal. They had tried to rob a businessman in 2004, and during the robbery, stabbed him seven times in the legs as he was trying to escape.

He eventually died.

When the case went to the High Court, the judge acquitted them of murder and reduced the charge to causing hurt in the course of committing robbery. The Public Prosecutor appealed. The Court of Appeal set aside the initial decision and sentenced the two men to the gallows.

Now, in a 17-page article, Mr Rajah considers the question: Is this double jeopardy?

The term refers to a situation where a person is tried twice for the same offence, which is unfair in concept and forbidden under law.

Drawing on previous cases and from other countries, he suggested that the Court of Appeal seems to have acted in this case as if it were another trial court, as it had re-weighed the evidence and came to a contrary conclusion from the trial judge. This would mean such proceedings are not unlike a second trial.

But this practice may not necessarily be against the law.

The Supreme Court of Judicature Act says that "the Court of Appeal may, if it thinks that a different sentence should have been passed, quash the sentence passed by the trial court and pass such other sentence warranted in law (whether more or less severe) in substitution".

But Mr Rajah argues that the powers given by the Act cannot disregard the Constitution. Article 11 does protect Singaporeans from double jeopardy. The only exception is if a conviction or acquittal has been quashed and a retrial ordered by a court superior to that by which an accused was convicted or acquitted.

"So, they should have ordered a retrial," Mr Rajah told Today.

Of course, that is only if the Court of Appeal's actions constitute double jeopardy. Mr Rajah felt the case deserves a second look, which Lim's defence lawyer Ismail Hamid agrees with, as his client had stabbed the victim only in the legs.

But for Mr Rajah, the most important question is whether the respondents in this case have lost their right of appeal against the death sentence imposed by the Court of Appeal.

They went into the appeal defending a charge of causing hurt in the course of a robbery, but were found guilty on murder the second time round, for which they have no legal recourse left — except for clemency.

"One moment my client was facing 20 years and 24 strokes. The next moment, it was the death sentence," said Mr Ismail.

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I posted this news report since I thought this is definitely a very serious issue that needs attention.