Navaseelan Balasingam v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 13 December 2006
• Neutral Citation: [2006] SGHC 228
• Docket Number: Magistrate's Appeal No 112 of 2006
• Date: 13 December 2006
• Year: 2006
• Published date: 14 December 2006
• Plaintiff Counsel: S Palaniappan (Straits Law Practice LLC)
• Citation: [2006] SGHC 228
• Defendant Counsel: Janet Wang (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Whether sentence of imprisonment may be backdated to date of arrest,Sentencing,Criminal Procedure and Sentencing,Principles,Whether period of custody under police arrest may be taken into account when imposing sentence of imprisonment,Application of totality principle when sentencing for multiple offences of same nature,Date of commencement

13 December 2006

Tay Yong Kwang J:

Introduction

1 This was an appeal against the sentences meted out by the district court. On 14 July 2006, the appellant pleaded guilty to the following 10 charges:

(1) Five charges under s 4 of the Computer Misuse Act (Cap 50A, 1998 Rev Ed) for causing various Automated Teller Machines (“ATMs”) to access data held in the central computer systems of the United Overseas Bank (“UOB”) Limited with the intention to commit theft of money; and

(2) Five charges under s 379 of the Penal Code (Cap 224, 1985 Rev Ed) for theft of money from UOB through the above unauthorised transactions.

These will be referred to as “the charges proceeded with”.

2 The appellant consented to have another 258 similar charges taken into consideration for the purpose of sentencing. These comprised:

(1) 129 charges under s 4 of the Computer Misuse Act; and

(2) 129 theft charges under s 379 of the Penal Code, with each of these corresponding to one of the charges under the Computer Misuse Act.

These will be referred to as “the charges taken into consideration”.

The facts

3 The appellant, a 29-year-old male British national, arrived in Singapore on 28 February 2006 at about 7.40am from Heathrow Airport, London. He was alone. He was here on a 14-day social visit pass and was scheduled to return home on 14 March 2006.

4 On 4 March 2006, Anthony Goh, a bank officer working at the UOB branch in Novena Square, was alerted by his colleagues from the UOB Card Centre that the bank’s ATM along Havelock Road was being operated fraudulently. Anthony Goh rushed to the ATM in question and saw the appellant standing in front of it, trying to withdraw cash. He detained the appellant and called the police.

5 When the police arrived, they searched the appellant and found 22 ATM cards, believed to be counterfeit ones, on him. The appellant was arrested.

6 During the investigations, the appellant claimed that one Kumar had approached him and asked him whether he was interested in making some money. Kumar explained to him that he would supply counterfeit ATM cards for the appellant to withdraw cash from ATMs. The appellant agreed to help Kumar, who also provided a cap for the appellant to wear whenever he was making the illegal cash withdrawals so as to prevent the closed circuit television cameras at the ATMs from having a good view of his face. Using the ATM cards supplied by Kumar, the appellant proceeded to make numerous withdrawals from UOB ATMs all over Singapore. The amount involved in the charges proceeded with was $3,700 while the total amount withdrawn by the appellant, in respect of all the charges, between 28 February and 4 March 2006 was $54,380.

7 The 22 ATM cards found on the appellant were found to be counterfeit ones cloned from originals belonging to account holders living in the United Kingdom. The fraudulent use of these cards was facilitated by their respective 4-digit personal identification numbers (“PIN”) having been inscribed in ink on the surface of each card. As a result of these illegal withdrawals, UOB disbursed its funds to the accused. The banks of the foreign account holders subsequently reimbursed UOB by a reduction in the respective accounts.

8 Although the charges proceeded with related to five withdrawals on 3 and 4 March 2006 from UOB ATMs in various parts of Singapore, the charges taken into consideration showed that the first withdrawal was made at Raffles City at 5.27pm on 28 February 2006. This was less than ten hours after the appellant touched down in Singapore after his long flight from London. He then returned to Changi Airport and made withdrawals at 6.06pm and 6.12pm the same day. He next went to Orchard Road and made three withdrawals between 7.08pm and 7.54pm. After that, he hit Serangoon Road and various other locations until 10.49pm. That was his first day in Singapore on his purported tour. Thirteen withdrawals were made on the very first day he set foot here.

9 The next day (1 March 2006), his ATM excursion began at 8.37am and ended at 10.28pm, after hitting the bank’s ATMs 43 times. Much the same thing happened on 2 and 3 March 2006, with 29 and 33 “hits” respectively. On 4 March 2006, the spree began less than 3 hours after the last withdrawal at 11.28pm on 3 March 2006. This time, it started from 2.14am in Serangoon Road, proceeded to Orchard Road, then Changi Village, back to town in Marina Square and Millenia Walk, Rochor Road, Victoria Street and then into Chinatown and ending at 18, Havelock Road, where the appellant was arrested after making six withdrawals there.

The proceedings in the district court

10 The following points were raised in mitigation by defence counsel:

(a) the appellant had lost some 40 close relatives, including his father, in Sri Lanka during the December 2004 tsunami. He was here on a holiday to take his mind away from the despair and financial difficulties he was facing after the said tsunami. While in Singapore, he met Kumar, a stranger, who sought his help in using the fake ATM cards to withdraw money. Although initially reluctant, the appellant eventually agreed to help after learning that he would be paid for his assistance and that the money could be used to alleviate the plight of his relatives in Sri Lanka. He relied on Kumar’s assurance that the fake cards did not belong to any local bank account holder, that the local banks would not suffer financially and that the withdrawals would not be an offence here. Kumar directed the accused to the various ATMs and he handed the money over to Kumar once he had withdrawn it.

(b) the appellant was a first offender.

(c) the numerous charges were essentially of a similar nature.

(d) he was not part of a syndicate but had merely acted out of temptation.

(e) there was no evidence that anyone had suffered financial loss as a result.

(f) the appellant did not benefit from the crimes as Kumar did not pay him as promised. His business in the United Kingdom and his family would be adversely affected by his conviction and imprisonment here.

(g) he was badly affected by anxiety and loneliness as he was a foreigner incarcerated here.

(h) he was remorseful, had cooperated with the police and pleaded guilty after some plea bargaining.

11 The prosecution, however, urged the district judge to impose a deterrent sentence as:

(a) the offences were committed under aggravating circumstances.

(b) a substantial amount of money was involved.

(c) there was a need to discourage like-minded criminals from targeting our financial institutions.

(d) the way the offences had been committed made detection and apprehension difficult.

12 Agreeing with the prosecution that a deterrent sentence was warranted in this case, the district judge (see PP v Navaseelan v Balasingam [2006] SGDC 156) sentenced the appellant to six months’ imprisonment on each of the five theft charges under s 379 of the Penal Code and to 18 months’ imprisonment on each of the five charges under s 4 of the Computer Misuse Act. He ordered the imprisonment terms for two of the theft charges (2 x 6 months) and for three (3 x 18 months) of the Computer Misuse Act charges to run consecutively. The result was a total of 66 months or 5½ years imprisonment to run with effect from 20 April 2006, the date when the appellant was first remanded. This, in the district judge’s view, was not a “crushing” sentence, bearing in mind the one-transaction rule and the totality principle enunciated in Kanagasuntharam v PP [1992] 1 SLR 81 and Maideen Pillai bin P N Mohamed Shah v PP [1996] 1 SLR 161.

The appeal against sentence before the High Court

13 The maximum prescribed punishment for the offence of theft under s 379 of the Penal Code is as follows:

Whoever commits theft shall be punished with imprisonment for a term which may extend to 3 years, or with fine, or with both.

The maximum prescribed punishment for an offence committed under s 4 of the Computer Misuse Act is stated in s 4(3) of the Computer Misuse Act which reads:

Any person guilty of an offence under this section shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 10 years or to both.

14 The appellant argued before me that the sentence meted out by the district judge was manifestly excessive on the following grounds:

(a) The district judge wrongly concluded that the appellant was part of a criminal syndicate;

(b) The district judge was wrong to place weight on the fact that the appellant did not make any restitution to the victim-bank. The local bank involved did not suffer any financial loss as it had been reimbursed. There was therefore no issue of restitution; and

(c) The theft charges were merely mirror charges or closely related to the offences under the Computer Misuse Act. The theft charges should therefore have been ordered to run concurrently with the offences under the Computer Misuse Act charges.

15 The appellant’s counsel relied on the following cases as a guide as to what the appellant’s sentence in this case ought to be (see Appellant’s Arguments at [18]):

(a) PP v Ooi May Ling Maria (DAC 36399/98) – offender who was a bank clerk was sentenced to 12 months’ imprisonment for unlawfully effecting an internal transfer of US$22,502.30;

(b) PP v Chng Peck Hock (DAC 24562/99 & 555 Others) – offender who was a cashier at a petrol station had accessed the computer system to illegally transfer $65,010 on 556 occasions. The offender pleaded guilty to three charges and was sentenced to a total of 36 months, i.e. 12 months per charge;

(c) PP v Ooi Lye Guan [2005] SGDC 228 – offender was a support engineer who exploited a loop hole in the computer system and made $94,000. He was sentenced to a total of 42 months, i.e. 14 months per charge; and

(d) PP v Chan Choon Lai (DAC 54533 – 89/2000) – offender was an assistant officer in the bank with its Fraud & Security Department and he surreptitiously pocketed $51,000 and was sentenced to a...