Fricker Oliver v Public Prosecutor and another appeal and another matter

• Jurisdiction: Singapore
• Judge: V K Rajah JA
• Judgment Date: 18 August 2010
• Neutral Citation: [2010] SGHC 239
• Plaintiff Counsel: Kang Yu Hsien Derek (Rodyk & Davidson LLP)
• Docket Number: Magistrate’s Appeals Nos 232 of 2010/01 and 232 of 2010/02; Criminal Motion No 32 of 2010
• Date: 18 August 2010
• Hearing Date: 18 August 2010,13 August 2010,10 August 2010
• Subject Matter: Criminal Procedure and Sentencing
• Year: 2010
• Citation: [2010] SGHC 239
• Defendant Counsel: Kan Shuk Weng and Kevin Yong (Attorney-General's Chambers)
• Court: High Court (Singapore)
• Published date: 19 August 2010

V K Rajah JA: Preliminary remarks

Foreigners who visit or work in Singapore are accorded many rights, privileges, as well as courtesies by law. In return, all that is asked of them is that they respect and observe the law. Those who think that certain laws are out of step with more “progressive” legal systems are, of course, entitled to their views. However, even if these individuals question the ambit or application of a law, they must still comply with it. If and when foreigners contravene any laws, they cannot expect or claim special privileges or exemptions on the basis of their nationality or status as a foreigner.

While the courts have no say in whether an individual ought to be charged and the type of offences that may be preferred against him, the courts have the sole constitutional remit to decide on the guilt and sentencing of all individuals who violate the laws of Singapore. It is a settled judicial precept that foreign offenders will ordinarily receive from the courts the same sentence that a Singaporean offender would for a similar offence committed in similar circumstances – the sentence meted out will neither be more lenient nor harsher. Sentences will always be determined by the nature of the offence and the circumstances pertaining to the offence, and not the nationality or identity of the offender. I should add, at this juncture, that there is, nevertheless, one genre of foreign offenders who can expect more severe sentencing – foreigners who are in Singapore for the sole purpose of committing crime.

The laws of Singapore proscribing vandalism are indeed severe. However, needless to say, these are the very laws that are largely responsible for a clean and graffiti-free environment, not to mention a low incidence of crime involving damage to public property and services. While some may regard graffiti as a stimulating and liberating activity that adds colour, spice and variety to a staid environment, many more in Singapore think otherwise. It is fair to say that in some countries, public transportation has been blighted by graffiti on an enormous and sometimes uncontrollable scale. This sort of behaviour, which I am confident does not resonate with the majority of the Singaporean public, must not be allowed to take root here. Individuals who intend to engage in similar acts here for their own self-indulgent gratification and self-aggrandisement must understand that this is an area of offending that – apart from the real damage and serious inconvenience caused – is often offensive to the sensibilities of the general public. As far as the courts are concerned, the parliamentary policy that undergirds the Vandalism Act (Cap 341, 1985 Rev Ed) (“Vandalism Act”) leaves no room for ambiguity. Vandalism, it is clear, merits a sentencing response that has, in the sentencing equation, a significant element of general deterrence.

The facts

The accused in the present case (“the Accused”), together with an accomplice (“the Accomplice”) who is still at large, committed offences under the Vandalism Act and the Protected Areas and Protected Places Act (Cap 256, 1985 Rev Ed) (“the PAPPA”). He pleaded guilty in the District Court to one charge of vandalism committed in furtherance of a common intention (punishable under s 3 of the Vandalism Act read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed)) (viz, District Arrest Case No 24677 of 2010 (“the graffiti charge”)) and one charge of entering a protected place committed in furtherance of a common intention (punishable under s 5(1) read with s 7 of the PAPPA read with s 34 of the Penal Code) (viz, Magistrate’s Arrest Case No 2548 of 2010 (“the trespass charge”)). He also agreed to have a second charge of vandalism committed in furtherance of a common intention (punishable under s 3 of the Vandalism Act read with s 34 of the Penal Code) (viz, District Arrest Case No 24676 of 2010 (“the fence-cutting charge”)) taken into consideration for the purposes of sentencing.

The Accused and the Accomplice had, in short, broken into the premises of SMRT Ltd’s Changi Depot (“the SMRT Changi Depot”) – a “protected place” for the purposes of the PAPPA – and had strikingly painted the words “McKoy Banos” on the sides of two train carriages. As the material facts have been admirably summarised in the grounds of decision (see Public Prosecutor v Fricker Oliver [2010] SGDC 289 (“the GD”)) of the district judge (“the District Judge”) I shall repeat them here insofar as they are no longer disputed (at [1]–[2] and [4]–[9]): 1 The [A]ccused pleaded guilty to the following two charges:

(a) DAC 24677/2010 [ie, the graffiti charge] – one count of vandalism (s 3 [of the] Vandalism Act ...) by spraying paint on two Mass Rapid Transit (‘MRT’) train carriages. This is an offence punishable with a fine of up to $2,000 and/or imprisonment of up to 3 years. As paint was used, s 3 prescribes mandatory caning of a minimum of 3 strokes, up to a maximum of 8 strokes.

(b) MAC 2548/2010 [ie, the trespass charge] – one count of entering a protected place (s 5(1) [read with] s 7 [of the PAPPA] involving entering the [S]MRT Changi Depot located at 105 Changi Road. This is an offence punishable with a fine of up to $1,000 and/or imprisonment of up to 2 years.

2 The [A]ccused admitted a third charge in DAC 24676/2010 [ie, the fence-cutting charge] under s 3 of the Vandalism Act involving cutting the fence of the [S]MRT Changi Depot within which the vandalised trains were located. He consented to have this charge taken into consideration for the purpose of sentencing. All 3 charges were committed with an accomplice, one Lloyd Dane Alexander [ie, the Accomplice], in furtherance of their common intention.

...

4 The facts in support of the charges are set out in the Statement of Facts (‘SOF’) which were admitted without qualification by the [A]ccused. I propose to only highlight a few salient facts. Together with the [A]ccomplice, he had cut the perimeter fence surrounding SMRT Ltd’s (‘SMRT’) Changi Depot at around midnight on 17 May 2010. They then proceeded to vandalise two MRT train carriages with spray paint on both sides bearing the words ‘McKoy Banos’. 5 The [A]ccused was working in Singapore from October 2008 to the time of the offences as an IT consultant. He became friends with the [A]ccomplice when they met in Australia in 1997. The [A]ccomplice was planning to travel to Singapore for 3 days from 15 May 2010 and had arranged to stay with the [A]ccused at his apartment at The Sail, located within the Central Business District Prior to the commission of the offences, the [A]ccused and the [A]ccomplice had been in contact. The [A]ccomplice had made arrangements to purchase ‘Ironlak’ spray paint cans from a paint supplier in Singapore, whom he had contacted by email on 30 March 2010 ... 6 Just before collecting their spray paint cans in the afternoon of 16 May 2010, the [A]ccused was asked by the [A]ccomplice if spraying graffiti on trains was legal in Singapore. The [A]ccused replied that it was not. They then proceeded to take the MRT to survey the SMRT Changi Depot at about 5 pm. As it began to rain, they left for dinner at Lau Pa Sat in the Central Business District where they had some alcoholic drinks. They then returned to the [A]ccused’s apartment nearby at The Sail to pick up a wire-cutter before proceeding to the SMRT Changi Depot to carry out their plan. 7 Upon their arrival at the SMRT Changi Depot perimeter, they passed by the crash gate which carried a large red sign clearly indicating that they were at a protected place and unauthorised entry was prohibited. They kept observation and then picked a suitable location to cut a 1 m by 0.5 m hole in the fence using the wire- cutter [sic] that the [A]ccused had brought along. 8 After the [A]ccused and [the] [A]ccomplice entered the SMRT premises through the hole in the fence, they moved to the 2 nearest train carriages and began spraying graffiti on either side of these carriages. The [A]ccused worked on one side while the [A]ccomplice worked on the other. The [Accused and the Accomplice] took some photographs of the spray-painted train carriages and they then managed to leave the premises undetected through the gap in the fence. The [A]ccused discarded the wire[-]cutter in a drain along the way after leaving the scene. 9 Upon returning to the [A]ccused’s apartment the [A]ccomplice showed the [A]ccused the photographs he had taken of the spray-painted carriages. The [A]ccused went to work in the morning of 17 May 2010. The next day, the duo left for a pre-arranged holiday in Hong Kong.

[emphasis in bold in original]

The decision of the District Judge

After considering the submissions of the Prosecution and counsel for the Accused, Mr Derek Kang (“Mr Kang”), and the mitigating factors, the District Judge determined that a deterrent sentence was called for because “graffiti is considered a serious offence” and the Accused had “deliberately chose[n] ... to break into a protected place in order to do so” (at [13] of the GD). He also took into account the fact that the offences had been carefully pre-arranged. Disagreeing with Mr Kang’s submission that the various offences were part of the same transaction, he held that they were clearly distinct offences. He reasoned (at [39]–[42] of the GD): 39 In the present case, the offences the [A]ccused had pleaded guilty to were clearly distinct. The first offence (unlawful entry into the SMRT Changi Depot) which he had pleaded guilty to was a necessary precursor of the second (ie. vandalism). It would have been physically impossible for the [Accused] to commit the second offence had he not committed the first. Although broadly speaking it could be said that the first offence was part and parcel of the second, this went further than merely...