Public Prosecutor v Navaseelan Balasingam
| Jurisdiction | Singapore |
| Judge | Kow Keng Siong |
| Judgment Date | 01 August 2006 |
| Neutral Citation | [2006] SGDC 156 |
| Court | District Court (Singapore) |
| Published date | 23 August 2006 |
| Year | 2006 |
| Plaintiff Counsel | Paul Chia (Deputy Public Prosecutor) |
| Defendant Counsel | Palaniappan Sundararaj (Straits Law Practice) |
| Citation | [2006] SGDC 156 |
| 1 August 2006 |
Judgement reserved. |
District Judge Kow Keng Siong:
The charges & the appeal
1. This Judgement arose from an appeal against sentence.
2. The Accused, Mr Navaseelan Balasingam, pleaded guilty to the following 10 charges –
a. 5 charges under section 4 of the Computer Misuse Act[note: 1] 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 monies; and
b. 5 charges under section 379 of the Penal Code[note: 2] for stealing monies from UOB through the above unauthorized transactions.
3. At the time of the Accused’s guilty plea, he also faced another 258 similar charges. These essentially related to –
(a) 129 charges under section 4 Computer Misuse Act, and
(b) 129 corresponding (mirroring) theft charges.
The Accused consented to having these charges being taken into consideration for the purpose of sentencing. The effect of this was that his sentences for the proceeded charges may be enhanced: PP v Mok Ping Wuen Maurice
4. After considering the facts, I sentenced the Accused as follows –
a. 6 months’ imprisonment on each of the section 379 Penal Code charges;
b. 18 months’ imprisonment on each of the section 4 Computer Misuse Act charges;
c. Sentences for 2 of the theft charges[note: 3] and 3 of the Computer Misuse Act charges[note: 4] to run consecutively;
d. Total: 66 months’ imprisonment to run with effect from 20 April 2006 – the date when the Accused was first remanded.
5. I shall now set out the reasons for my sentencing decision.
The Statement of Facts
6. The Accused is a British national. He had arrived in Singapore on 28 February 2006 alone and was granted a 14-day social visit pass.
7. One ‘Kumar’ had asked the Accused whether he was interested to make some money, stating that he could supply the Accused with counterfeit ATM cards for the purpose of making cash withdrawals.
8. The Accused agreed to help. Using ATM cards provided by Kumar, the Accused proceeded to make, during the course of several days, numerous illegal cash withdrawals at various UOB ATMs. The Accused was able to make these withdrawals because the PIN numbers were written on the face of the cards.
9. To avoid identification by CCTV cameras installed at the ATMs, the Accused wore a cap provided by Kumar whenever he made the illegal cash withdrawals. Despite this preventive measure, video images of the Accused withdrawing cash from the ATMs were still captured by the cameras.
10. On 4 March 2006, the Accused was detained by a bank officer while trying to make an unauthorised withdrawal from an ATM located at the No. 18 Havelock Road. At the time of his arrest, the Accused had 22 counterfeit ATM cards in his possession. These cards were cloned from originals belonging to account holders living in the United Kingdom.
11. As a result of all the illegal withdrawals, UOB disbursed a total of $54,380 to the Accused. The amount stolen in the proceeded charges came to $3,700.
12. UOB was subsequently reimbursed by the banks of the foreign account holders through a deduction from the holders’ respective accounts.
Mitigation plea
13. In mitigation, Mr Palaniappan painted the following background facts for my consideration:[note: 5]
a. The Accused’s personal and family circumstances, including the fact that he had lost almost 40 close relatives (which included his father) in Sri Lanka during the 2004 Tsunami;
b. The Accused had come to Singapore for a holiday, to take his mind away from the despair and financial difficulties he was facing arising from the Tsunami;
c. While in Singapore, he met Kumar, a stranger, who sought his help in using fake cards to withdraw monies from ATMs. Although initially reluctant, the Accused 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. In agreeing to help, the Accused had also relied on Kumar’s assurance that (i) the fake cards did not belong to any local bank account holder, (ii) the local banks would not suffer financially, and (iii) the withdrawals would not be an offence in Singapore;
d. To commit the offences, the Accused had visited various ATMs as directed by Kumar, and handed over the withdrawn monies to the latter.
14. In pleading for a lighter sentence, Counsel cited the following arguments:
a. The Accused was a first offender;
b. Although the Accused faced numerous charges, these were essentially similar in nature;
c. The Accused was not part of a syndicate, but had merely acted out of temptation;
d. There was no evidence that anyone had suffered financial loss arising from the offences;
e. The Accused did not benefit from his crimes because Kumar did not pay him as promised. In fact, the Accused’s business in the United Kingdom and his family would be adversely affected by his conviction and incarceration. After his arrest, the Accused had also been badly affected by anxiety and loneliness;
f. The Accused was remorseful. He had cooperated with the police and admitted his mistakes. Since the first mentions, the Accused had also engaged in plea bargaining with a view to pleading guilty, which he eventually did.
Prosecution’s Address on Sentence
15. DPP Paul Chia requested that a deterrent sentence be imposed on the Accused for the following reasons:[note: 6]
a. the offences were committed under aggravating circumstances;
b. substantial amount of monies were stolen;
c. there was a need to discourage like-minded felons from targeting our financial institutions; and
d. the Accused’s mode of committing the offences presented serious difficulty in detection and apprehension.
Sentencing considerations
16. After careful consideration, I agreed with the Prosecution that a deterrent sentence was appropriate in the present case. In coming to this decision, I was mindful of the following caution sounded in Tan Kay Beng v PP
VK Rajah J: 34. In sentencing a particular offender, both general and specific deterrence must be scrupulously assessed and measured in the context of that particular factual matrix before deciding exactly how and to what extent each should figure in the equation. While there is neither any magic formula nor any neat and precise calibration to apply in the process, it is however, clearly insufficient to merely allude to deterrence as the basis for imposing a stiff sentence, especially in instances where it is invoked as a principal sentencing consideration or when existing guidelines are not followed. In such instances, the precise reasons for invoking deterrence or for choosing to depart from existing guidelines together with the attendant judicial concerns must be clearly and unambiguously articulated. Arbitrary or inadequate reliance on “deterrence” as nothing more than a stock phrase for want of something better fails to discharge the onerous judicial responsibility of ensuring that while a sentence meted out unequivocally conveys the court’s assessment of the relevant considerations the offender’s position has also been fairly and reasonably assessed. (emphasis added)
17. In accordance with the guidance set out in Tan Kay Beng,I now give my reasons for coming to the view that a deterrent sentence was warranted.
Intrinsic nature of Accused’s computer crimes
18. An offence under section 4 of the Computer Misuse Act is undoubtedly a very serious crime. The gravity of the offence is reflected by the maximum prescribed punishment – up to 10 years’ imprisonment and a fine not exceeding $50,000. In terms of severity, the prescribed punishment for a section 4 offence ranks second only to that of section 9 (the latter provides for enhanced punishment for offences involving ‘protected computers’).
19. During the second reading of the Computer Misuse (Amendment) Bill on 30 June 1998, the Minister noted at column 392 that:
… crimes committed through the electronic medium and through use of computers are difficult to detect but they are just as serious as traditional crimes and we must equally protect our population against such crimes. To ensure that Singapore remains an attractive place for investors and businesses to operate effectively and securely, computer crimes must be treated as seriously as other criminal offences.
bin Kamal Luddin
21. In Muhammad Nuzaihan bin Kamal Luddin, the respondent had been convicted of unauthorized access to computer materials, unauthorized modification of the contents of a computer and unauthorized access to a computer service under sections 3(1), 5(1) and 6(1)(a) of the ComputerMisuse Act respectively. He had committed these offences for the purpose of securing free internet services and access. The High Court observed that –
Yong Pung How CJ: 20. … such anti-social conduct on the part of the respondent not only undermines public and international confidence in the commercial integrity and viability of our computer systems, it also gravely compromises Singapore’s efforts to position itself as a global e-commerce hub. The potential for which these cyber-crimes have in undermining Singapore’s burgeoning information technology (IT) industry cannot be ignored. IT security is a major consideration which many foreign companies take into account before deciding whether or not to develop and invest in the local IT sector.
…
26 Policy considerations, the far-reaching effects which the offences have on the public interest if their pervasion is not halted at an early stage, and the seriousness with which Parliament views cyber-crime, all mandated the imposition of a custodial sentence.
22. In my view, the policy considerations articulated in ...
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