1 The appellant, one Michael Peter Fay, pleaded guilty in the subordinate courts to (inter alia) two charges of vandalism, which read as follows:

2 Following his guilty pleas, the appellant was convicted on (inter alia) the above two charges and sentenced to two months` imprisonment and three strokes of the cane in respect of each of the two charges. In view of his guilty pleas, the appellant`s right of appeal was limited by s 244 of the Criminal Procedure Code (Cap 68) to only the extent or legality of the sentences. The present appeal was, therefore, brought only against the sentences. As a preliminary, it will be useful to review the facts of the case.

3  The facts

4 In pleading guilty to the two charges of vandalism in the court below, the appellant also admitted to the statement of facts tendered by the prosecution. In so far as the acts of vandalism alleged in the two charges were concerned, the statement of facts established that, on 18 September 1993, at about 1am, one Lokpal Singh Bhatia, son of one Amarjeet Singh, parked a motor car bearing registration number SBN770M in front of his residence at No 15B Chatsworth Road. The car was at the material time in the possession of Amarjeet Singh.

5 At about 8am on 18 September 1993, Amarjeet Singh drove the abovementioned car to his office. He did not notice that the car had been sprayed with red paint on the bonnet and along the length of the passenger`s side of the car. It was accepted in the court below that the paint was not present on the car when parked by Lokpal Singh Bhatia at about 1am on 18 September 1993. Some two hours later, Amarjeet Singh was informed of the vandalism of the car and at about 2.30pm he drove it to a respray shop in Bukit Merah. The spray paint was removed with thinner by one of the workers in the shop. The entire process took about 30 to 45 minutes.

6 A similar act of vandalism was also discovered on a car driven by one Peter P Kopyscianski on 18 September 1993. Kopyscianski had parked a motor car bearing registration number SZA1087G in the multi-storey car park at Cairnhill Place, Cairnhill Road at about 7pm on 17 September 1993. At about 7am on 18 September 1993, Kopyscianski returned to the car and observed that it had been sprayed with red paint, such paint not having been present when he parked the car the previous evening. The car was returned on the same day to RMG Rent A Car Pte Ltd from whom Kopyscianski had rented the car and the company removed the paint with the use of turpentine, polishing compound and car wax. The cost of repairs amounted to $150.

7 Investigations by the police led to the arrest of the appellant and several of his other friends on 6 October 1993. At the close of police investigations, a total of 53 charges was drawn up against the appellant. This comprised 45 counts of vandalism contrary to s 3 of the Vandalism Act, six counts of mischief contrary to s 427 of the Penal Code read with s 34 of the Penal Code, one count of dishonestly retaining stolen property contrary to s 411 of the Penal Code and one count of possessing dangerous fireworks contrary to s 3(1)(a) of the Dangerous Fireworks Act (Cap 72). Subsequently the prosecution proceeded with five charges. These were the two charges of vandalism with which we are concerned in this appeal, as well as the charge of dishonestly retaining stolen property and two charges of mischief. The appellant pleaded guilty to all the above charges and further consented to 20 other charges being taken into consideration by the district judge in the determination of his sentence. The prosecution then stood down the remaining 28 charges.

8  The present appeal

9 On appeal before me counsel relied on two main grounds of appeal. The first was that, in construing the proviso contained in s 3(a) of the Vandalism Act, the learned district judge erred in deciding that paint per se was regarded as an indelible substance under the Vandalism Act: counsel contended that a proper construction of the proviso to s 3 of that Act demonstrated that Parliament had no intention of punishing with caning all acts of vandalism committed using paint. Counsel`s second argument was aimed at persuading this court that the appellant`s case was one suitable for probation and that the learned district judge should have so ordered.

10  Whether all acts of vandalism committed using paint to be punished with caning

11 In considering counsel`s first argument, it is instructive at this juncture to lay out the pertinent statutory provisions in the case. Under s 2 of the Vandalism Act, an `act of vandalism` committed on private property is defined (inter alia) as follows:

12 An accused found guilty of an act of vandalism contrary to the Act is stated in s 3 to be liable to `a fine not exceeding $2,000 or to imprisonment for a term not exceeding three years`. Subject to s 231 of the Criminal Procedure Code (which is not relevant in the case at hand), he `shall also ... be punished with caning with not less than 3 strokes and not more than 8 strokes`. An exception to the provision for caning is provided, however, in the proviso to s 3 which states:

13 A direct reading of the above provision would seem to indicate plainly Parliament`s manifest intention to (inter alia) subject all acts of vandalism committed with paint to the penalty of caning. Mr Sherrard for the appellant argued however that there existed in fact more to the matter than met the eye. Counsel`s contention was that a scrutiny of the above proviso revealed an ambiguity because `paint` as enumerated in the proviso in reality constituted a broad category consisting of a myriad of varieties of paint. Thus paint could be delible or indelible depending on such diverse factors as the make of paint employed, the nature of the surface to which the paint is applied and so on. In counsel`s submission, the court in every case has to consider de novo whether the paint used in that case has been proved to be easily removable or not before deciding to inflict the punishment of caning, the onus of such proof being laid (according to counsel) on the prosecution.

14 Having considered the words of the proviso in the light of counsel`s submissions, I was unable to accept the construction counsel attempted to put upon the words ` paint, tar or other indelible substance `. I could see no reason to deviate from the plain meaning of the words in the proviso. There is no evidence within the terms of the proviso or indeed anywhere else in the Vandalism Act of a Parliamentary intention to subject all acts of vandalism committed with paint to the sort of ad hoc test of indelibility which counsel suggested. `Paint` is specifically and explicitly mentioned in the proviso; and, as Lord Dunedin held in Whiteman & Anor v Sadler , ` (e)xpress enactment shuts the door to further implication `. The proviso is unambiguous in stipulating that an act of vandalism committed with paint, whether it be paint of one type or of another, attracts a mandatory minimum of three strokes of the cane. There appeared to me to be no cause to disagree with Lawton LJ`s observation in McCormick v Horsepower Ltd that ` (t)he only safe and correct way of construing statutes is to apply the plain meaning of the words `. It was not shown to me in the course of the hearing that the plain meaning of the words used in the proviso would lead to absurdities or injustice of such proportion as to warrant a different construction. Conversely, to compel the courts to admit in every vandalism case involving paint, a plethora of evidence on the delibility or otherwise of the paint used in the offence, seemed to me to be throwing the floodgates open to endless and increasingly convoluted arguments about the exact scientific degree of ease with which any particular type of paint is removed: it is the sort of absurdity virtually guaranteed to thwart the legislative intent, as stated in the preamble, of providing for ` exemplary punishment for acts of vandalism `.

15  Whether a pre-sentence probation report should have been ordered

16 Counsel next submitted that the appellant`s case was one suitable for probation and that the district judge`s refusal to so order ran contrary to the legislative intent of the recent amendments to the Probation of Offenders Act (Cap 252), specifically the new proviso to s 5(1). This proviso stipulates that:

17 Interestingly enough, in arguing the suitability of the appellant for probation, counsel was concerned mainly to rely on the testimonials as to the appellant`s character supplied by such sources as the Singapore American School and the Kinski School which the appellant attended previously in the United States. There was a shying away from the psychiatric reports so heavily relied on in the court below and a criminal motion to adduce before this court further evidence as to the Attention Deficit Hyperactivity Disorder (`ADHD`) allegedly suffered by the appellant was abandoned; rightly so, in my view. Indeed, counsel accepted the contradiction between the views of the appellant`s character expressed in the testimonials and the analysis of the appellant`s alleged ADHD condition given in the psychiatric reports; counsel said that it could be that what was observed in these psychiatric reports was the ` immense anxiety and distress occasioned by (the appellant`s) predicament `.

18 Essentially therefore, the factors pointed out by counsel as those indicating the appellant`s suitability for probation were: his youth; his plea of guilt; the remorse he felt; his lack of antecedents; his agreement to co-operate with the police; and his family circumstances.

19 I do not doubt that the legislative intent behind the amendments to the Probation of Offenders Act was to promote the rehabilitation of young first-time offenders. However, as demonstrated by the wording of the above proviso, the legislature has entrusted to the courts the discretion to decide the suitability of such offenders for rehabilitation while weighing also in the balance the wider concerns of society. Indeed the delicate balancing of individual needs and community concerns is a crucial factor which, with respect, was not sufficiently highlighted. This court agrees that the administration of justice should be tempered with a keen regard for the needs of the individual as far as the ambit of our laws allows. At the same time, our judiciary must remain conscious of its responsibility to safeguard the interests of the law-abiding general public and to uniformly apply the law to all those who violate it.

20 Another related argument put forward (albeit briefly) was that the original legislative intent behind the provision for caning in s 3 of the Vandalism Act was directed at suppressing those violent political elements which existed in Singapore in the 1960s and which wreaked havoc throughout our city by, inter alia, inscribing anti-national slogans in public places, the implication being that all this was a far cry from the appellant`s conduct. In my opinion, however, it would be too simplistic to claim that s 3 of the Vandalism Act is aimed mainly at punishing riotous anti-national elements. That may have been one of the more urgent objectives at the time the Act was enacted in 1966 but a reading of the relevant Parliamentary Debates shows that the legislature was simultaneously concerned with containing anti-social acts of hooliganism.

21 Having regard to the above factors, I agreed with the district judge that the circumstances of the appellant`s case were not such as to warrant an order of probation. As I pointed out earlier, the appellant originally faced a total of 53 charges. He pleaded guilty to five charges and consented to 20 others being taken into consideration for the purposes of sentencing. Of the 20 charges taken into consideration, 16 of them were charges of vandalism committed with paint. Furthermore, all the acts of vandalism were committed relentlessly and wilfully over a period of 10 days, from 17 September to 26 September 1993, and amounted to a calculated course of criminal conduct. I was satisfied from my perusal of the district judge`s grounds of sentencing that, in passing sentence, he gave full consideration to all relevant mitigating factors, certainly all the factors listed out by counsel, including the appellant`s youth and his plea of guilt. I was further satisfied that, on the facts of the case and taking into account the need to secure the interests of the general public, he was fully justified in imposing a custodial sentence and the mandatory minimum of three strokes of the cane in respect of each charge of vandalism.

22 For the reasons given, I dismissed the appeal.

23  Appeal dismissed