Public Prosecutor v Law Aik Meng

• Court: High Court (Singapore)
• Judge: V K Rajah J
• Judgment Date: 07 March 2007
• Neutral Citation: [2007] SGHC 33
• Citation: [2007] SGHC 33
• Defendant Counsel: S Dhillon (Dhillon & Partners)
• Plaintiff Counsel: April Phang (Deputy Public Prosecutor)
• Published date: 11 February 2009
• Docket Number: Magistrate's Appeal No 164 of 2006
• Date: 07 March 2007
• Subject Matter: Policy underpinning deterrent sentencing,Sentencing,Whether totality principle and one-transaction rule for sentencing applicable,Principles,Whether relevance of foreign case law limited to clarifying principles only,Sections 4, 10 Computer Misuse Act (Cap 50A, 1998 Rev Ed),Criminal Procedure and Sentencing,Whether quantum of sentencing in other jurisdictions relevant,Offences normally attracting deterrent sentence,Accused pleading guilty to charges under Computer Misuse Act and Penal Code for working in syndicate involved in perpetrating ATM card fraud

7 March 2007

V K Rajah J:

1 Automated Teller Machines (“ATMs”) were first modestly devised as cash dispensers for fully integrated banking networks. They gradually evolved to facilitate various other transactions such as account checking, the acceptance of cash deposits, currency recognition, monetary transfers, printing of bank statements, updating passbooks, inter alia. Today, they function as a veritable boon to the public, affording what can only be described as the epitome of ease both in terms of accessing cash as well as executing other essential transactions outside banking hours. Their ubiquitous presence has spared many financial institutions the need to erect brick and mortar branches, which has in turn helped to significantly reduce the costs of banking transactions.

2 By facilitating round-the-clock access to their services, ATM networks not only symbolise unprecedented convenience, they have also come to represent an indispensable conduit for the execution of a plethora of banal financial transactions. Unfortunately, but not altogether surprisingly, the proliferation of ATM facilities has engendered a corresponding proliferation in card related fraud. This in turn has from time to time undermined public confidence in the ability of banks to securely and effectively conduct electronic transactions. The attendant compromise on the secrecy of a customer’s banking account compounded by the difficulty in apprehending such offenders, tilts the balance heavily in favour of substantially deterrent sentences for such offences.

3 The instant case is the first of its kind in Singapore to involve the entire criminal enterprise of ATM fraud. Commencing with card skimming and progressing to the transfer of “stolen” data onto cloned ATM cards, it culminated in the use of these cloned cards to withdraw money from the violated accounts. Having pleaded guilty, the respondent was convicted on six charges before the district court. The charges are as follows:

(a) Two charges under s 4 read with s 10 of the Computer Misuse Act (Cap 50A, 1998 Rev Ed) (“CMA”) for engaging with accomplices to cause a computer to secure access to the data in the Central Computer Systems of the Development Bank of Singapore Limited (“DBS”), with the intention of using that access to commit theft of cash in the possession of DBS; and

(b) Four charges under s 379 read with s 109 of the Penal Code (Cap 224, 1985 Rev Ed) (“Penal Code”) for conspiring with accomplices to commit theft of cash from the possession of DBS through an ATM.

4 94 further charges (70 charges under s 4 read with s 10 of the CMA; ten charges under s 379 read with s 109 of the Penal Code; and 14 charges under s 379 read with s 511 of the Penal Code) were taken into consideration for the purposes of sentencing.

5 The respondent was sentenced by the district judge (“the trial judge”) to 20 months’ imprisonment on each of the CMA charges proceeded with, and to six months’ imprisonment on each of the theft charges proceeded with. The sentences of the two CMA charges and two of the theft charges were ordered to run consecutively. In effect, the entire sentence to be served by the respondent amounted to 52 months’ imprisonment. When a dissatisfied prosecution appealed, I allowed the appeal and enhanced the sentences to the following terms: 42 months’ imprisonment for each of the two CMA charges; 15 months’ imprisonment for each of the four theft charges. The sentences in all six charges are to run consecutively, giving rise to a term of 144 months’ (12 years’) imprisonment.

The facts

6 The respondent who is a male Malaysian national was a member of an organised syndicate based in West Malaysia. The objective of the syndicate was to skim data from genuine ATM cards in order to manufacture cloned ATM cards with which fraudulent withdrawals could subsequently be made. This was implemented by planting skimming devices at ATMs. The skimmer, a data capturing card reader, would capture the card information of account holders who used the ATM. A pin-hole camera was concealed above the ATM monitor to capture the act of cardholders keying in their Personal Identification Numbers (“PINs”) on the keypad. These video images were then transmitted wirelessly to an MP4 player, which was also concealed nearby. The data would later be transferred to West Malaysia, where the syndicate would decrypt the data and process multiple cloned ATM cards. Finally the cloned cards would be employed to make fraudulent withdrawals of cash from the same ATM network in Singapore.

7 The respondent’s role was to plant the skimming devices at certain DBS ATMs in Singapore and then lie in wait in the vicinity. After data from a sufficient number of ATM cards was captured, the respondent and his accomplices would remove the skimming devices and transport them to the syndicate in West Malaysia for the manufacture of cloned cards. The respondent and his accomplices were also responsible for returning to Singapore to withdraw cash from various ATMs in Singapore with the cloned cards.

8 The syndicate successfully withdrew a total of S$18,590 from Post Office Savings Bank (“POSB”) accounts with the cloned cards before this was detected and stopped. 849 POSB accounts were violated during the relevant period and DBS had to both block and replace all these accounts. No restitution was made by the respondent or any member of the syndicate to DBS for any of its losses. The respondent’s accomplices are still at large.

Decision of the trial judge

9 The respondent pleaded in mitigation that he had received little education, coming from an impoverished background; that he committed the offences to settle debts; that he was merely a ‘runner’ and not the mastermind; that he regretted committing the offences: see PP v Law Aik Meng [2006] SGDC 243 (“GD”) at [5]. The prosecution, on the other hand, submitted inter alia that the respondent faced a large number of charges and that the criminal acts in question were committed over a period of three months; that there was a high degree of planning and organisation involved in the crime; that the respondent was a member of a vertically integrated syndicated operation; that the manner in which the offences were committed posed serious difficulties both in terms of detection and apprehension: see GD at [6] to [9].

10 The trial judge agreed with the prosecution that such crimes would erode confidence in the commercial and electronic banking systems in Singapore. He was of the view that the ambient circumstances called for a deterrent sentence to hinder both the respondent and other like-minded persons from committing crimes via the electronic systems: see GD at [11]. In computing the sentence, the following cases in various jurisdictions were considered in detail by the trial judge:

(a) R v Cenan [2004] EWCA Crim 3388 (English case): the accused and his accomplice were charged with conspiracy to defraud by cloning credit cards and using those cloned cards to obtain cash from machines. The accused was sentenced to three years’ imprisonment after pleading guilty. The Court of Appeal reduced the sentence of three years to two years’ imprisonment.

(b) R v Taj; R v Gardner and R v Samuel [2003] EWCA Crim 2633 (English case): the three accused persons were charged with conspiring with others to defraud banks and other credit card issuing companies through the production of counterfeit credit and debit cards, which were encoded with the details of genuine cards. Taj was sentenced to five years’ imprisonment; Gardner was sentenced to four years’ imprisonment; and Samuel was sentenced to seven years detention in a young offender institution. On appeal, the Court of Appeal reduced Samuel’s seven-year term to five and a half years. Taj’s sentence was reduced to four years, and Gardner’s sentence was reduced to three years.

(c) R v Mayer [2006] ABPC 30 (Canadian case): the accused pleaded guilty to 28 charges of using forged debit cards and debit card data. He was part of a criminal organisation of individuals. Commenting that investigating the type of criminal activity involved in the case was both difficult and time consuming, the court imposed a global sentence of 18 months’ imprisonment.

(d) HKSAR v Cheng Hung Man [2003] HKLCU LEXIS 1366 (Hong Kong case): the accused faced three charges: one for the possession of a forged credit card, a second for using the forged credit card, and a third for the possession of equipment for the fabrication of a false instrument. He was sentenced to three years’ imprisonment in respect of the first and second charges and four and a half years’ imprisonment in respect of the third charge; all sentences were to run concurrently.

(e) PP v Navaseelan Balasingam [2006] SGDC 156 (“Navaseelan”) (local case): the accused was convicted on five theft charges and five charges under s 4 of the CMA for using cloned ATM cards to steal money from United Overseas Bank Limited. Another 258 charges were taken into consideration. The accused pleaded guilty and he was sentenced to six months’ imprisonment for each theft charge and 18 months’ imprisonment for each charge under the CMA, with two of the theft charges and three of the CMA charges to run consecutively, making a total of 66 months’ imprisonment.

11 Unaware that Navaseelan ([10](e) supra) would be subsequently appealed against and that the High Court on appeal determined that all the CMA charges were to run consecutively and that the accused would have to serve a total of eight and a half years’ (102 months’) imprisonment (see [59] below), the trial judge relied on the district court’s decision as a benchmark in relation to the present matrix. He noted in particular the greater number of charges taken into consideration in Navaseelan (258 charges) as compared to the present case (94 charges), as well as the larger amount involved in Navaseelan ($54,000) in contradistinction to the present case...