PUTRAJAYA (Aug 21): The Federal Court has dismissed an application to review the conviction and death sentence of former tow truck driver Koong Swee Kwan for the murder of Arab-Malaysian Bank (AmBank) founder Hussain Ahmad Najadi in 2013.

A three-judge bench led by judge Datuk Harmindar Singh Dhaliwal on Wednesday upheld the death sentence of Koong, who was seeking to commute his death sentence to a jail term of 35 to 38 years from the date of his arrest.

Harmindar, reading the bench’s unanimous decision, said that this murder case was “an exceptional case, with exceptional facts and exceptional violence”.

In the gruesome murder which took place in 2013, Hussain, 75, was shot dead and his wife Cheong Mei Kuen, 49, was injured after being shot from close range, while they were walking to their car after coming out from a Chinese temple in Lorong Ceylon, Kuala Lumpur.

Koong, 55, known as Sei Ngan Chai, was sentenced to death on Oct 27, 2017 for killing Hussain following a retrial of his case. He was also sentenced to 18 years in jail for attempting to murder Cheong.

Hussain was hit twice in the chest and died at the scene while his wife was injured in the left wrist and right thigh.

Harmindar, flanked by fellow apex court judges Datuk Rhodzariah Bujang and Datuk Hanipah Farikullah, said that the death penalty should be considered in exceptional circumstances.

“We accept that the court of law must have compassion and mercy when considering whether a death sentence should be commuted. Since the death penalty is still in the statute books, we agree that the death penalty should be applied only in exceptional cases,” he said.

The judge then surmised that this was an exceptional case considering the way the “execution style” murder had taken place in broad daylight.

“In this case, the murder suggests to us that this was execution style killing. Considering that the deceased suffered seven gunshot wounds in the chest at close range, this was clearly a premeditated murder with the clear intention to ensure the deceased would not survive.

“In our view, this was an exceptional case with exceptional facts,” he added.

He also noted that this murder has shocked the conscience of society “such that ordinary persons feared for their safety”. “We also considered that seven shots at close range to the deceased ensuring the death of the deceased amounted to exceptional violence."

The bench then dismissed the review application and maintained Koong's death sentence.

Harmindar, before reading the decision, said that the court had carefully taken the time and considered grounds to come to its decision.

Before the decision was made, Koong’s lawyer Datuk Hisyam Teh Poh Teik had argued that this was not a crime that can be considered “worse of the worst” or “rarest of the rare”.

“The applicant has been arrested for about 11 years since 2013. He has been subjected to the agony of double trials and appeals. The applicant is remorseful and seeks forgiveness from his victims,” Hisyam said.

“He is seeking rehabilitation, forgiveness, compassion and rehabilitation,” he said, adding that the lower courts found that Koong did not benefit from the crime.

“Applicant has deeply apologised to the family of victims. And we pray that the death sentence will be set aside,” he said.

However, deputy public prosecutor (DPP) Datuk Yusaini Amer Abdul Karim argued that this act was one of “cold blooded murder” which was done in a style of assassination despite Koong not knowing Hussain and his wife.

“Looking at the facts of this case, it was premeditated. This was an execution-style killing,” the DPP said.

Harmindar then asked him if there was any motive to the killing. However, Yusaini said that the lower courts did not find any motive for the murder.

“He just wanted to kill the deceased. There’s no other evidence of motive in this case. This is a rarest of the rare case. We don’t have any cases of this nature,” the DPP said.

Koong was charged with committing the offences in the parking lot of the Kuan Yin Temple in Lorong Ceylon between 1.30pm and 2pm on July 29, 2013.

On Sept 5, 2014, Kuala Lumpur High Court judge Mohd Azman Husin sentenced Koong to death for Hussain’s murder and 18 years’ jail for the attempted murder of Hussain’s wife.

However, on Dec 14, 2016, a five-man Federal Court bench set aside Koong’s conviction and ordered the case to be retried in the High Court after ruling that Azman could have been prejudiced since he had heard the appeal of a taxi man, Chew Siang Chee, who was facing charges of possession of pistol and bullets. Chew was said to have driven Koong away after the shooting.

The retrial of Koong’s case was heard by then judicial commissioner Datuk Ab Karim Ab Rahman, who handed him the death sentence.