Police v Zhong Shuiming [2017] WSDC 7 (19 May 2017)

DISTRICT COURT OF SAMOA
Police v Zhong [2017] WSDC 7

Case name:	Police v Zhong
Citation:	[2017] WSDC 7
Decision date:	19 May 2017
Parties:	Police (Informant) and Zhong Shuiming and Yang Qingren both male of Jiangxi China (Defendants)
Hearing date(s):	7, 8, 14, 15, & 17 March 2017
File number(s):	D4171/16, D4172/16, D4174/16, D4176/16, D4178/16, D4181/16, D4182/16, D4183/16, D4184/16, D4185/16, D4170/16, D4177/16, D4179/16, D4180/16,
Jurisdiction:	Criminal
Place of delivery:	In the District Court of Samoa, Mulinuu
Judge(s):	Judge Fepulea’i Ameperosa Roma
On appeal from:
Order:	For the foregoing reasons, I have reached the following conclusions: (i) On D4174 / 16 for theft of $24,900.00, I find both accused guilty of the theft of the sum of $19,150.00; (ii) On D4184 / 16 for theft of $300.00, I find both accused not guilty of that charge; (iii) On D4185 / 16 for theft of $16,200.00, I find both accused guilty of the theft of the sum of $12,400.00; (iv) On D4182 / 16 for theft of $300.00, I find both accused not guilty of that charge; (v) On D4181 / 16 for theft of $6,150.00, I find both accused guilty of the theft of the sum of $3,100.00; (vi) On D4183 / 16 for theft of $23,950.00, I find both accused guilty of the theft of $11,700.00; (vii) On D4178 / 16 for theft of $20,550.00. I find both accused not guilty of that charge; (viii) On D4176 / 16 for theft of $15,700.00, I find both accused guilty of the theft of $1,000.00; (ix) On D4172 / 16 for accessing a BSP machine dishonestly and thereby obtaining property or benefit, I find both accused guilty of that charge; (x) On D4171 / 16 for intentionally and without authorization obtaining a card skimming device designed or adapted for purpose of committing an offence, I find both accused guilty of that charge. In summary therefore: (i) 3 theft charges are dismissed; (ii) 5 theft charges are found proven but for reduced amounts than charged. The total amount for which both accused are found guilty of theft is $47,350.00; (iii) 1 charge of dishonestly accessing an electronic system and thereby obtaining a benefit (section 207) is found proven; (iv) 1 charge of intentionally possessing a card skimming device designed for the purpose of committing an offence (section 213) is also found proven. Both accused are remanded to Friday 9 June 2017 for a Summary on the 4 charges to which they pleaded guilty, a Victim Impact Report, Pre sentence reports and sentencing. Both accused are to be remanded in custody.
Representation:	Ms L Sio for Prosecution Mr Su’a for both defendants
Catchwords:	theft – intentionally accessing an ATM machine without authority - accessing an ATM machine dishonestly and thereby obtaining money - intentionally and without authorization, possessing a card skimming device designed for the purpose of committing an offence – evidence – – relevant law – discussion - conclusion
Words and phrases:
Legislation cited:	Crimes Act 2013 s33, 161 & 165(b), 207, 213(a)
Cases cited:
Summary of decision:

	[[
	POLICE

IN THE DISTRICT COURT OF SAMOA

HELD AT MULINUU

BETWEEN

POLICE
Informant

AND

ZHONG SHUIMING and YANG QINGREN, both male of Jiangxi, China.
Accused

Counsel: Ms L. Sio for National Prosecution Office

Mr A. Su’a for both Accused

Hearing: 7, 8, 14, 15 & 17 March 2017

Submissions Received: 7 April 2017 (Defence) & 28 April 2017 (Prosecution)

Decision: 19 May 2017

DECISION OF JUDGE ROMA

INTRODUCTION

1. On the 24^thAugust 2016 at about 8pm, following a complaint by BSP Bank about suspicious activity involving its ATM machines, Police conducted a search of a 2 storey building named DIRCOS near the 3 corners at Matautu, heading towards the marina. They were looking for 3 Chinese national suspects, 2 of whom are the present accused. The search led to their arrest and them facing several charges.

CHARGES

2. Originally, both accused were charged with 16 informations under the Crimes Act 2013. They consisted of:
   • (i) 14 theft charges (sections 161 & 165(b));
   • (ii) 1 of intentionally accessing an ATM machine without authority (sections 207 & 33);
   • (iii) 1 of accessing an ATM machine dishonestly and thereby obtaining $18,000.00, being properties of BSP Bank (sections 207 & 33);
   • (iv) 1 of intentionally and without authorization, possessing a card skimming device designed for the purpose of committing an offence (sections 213(a) & 33).
3. Both accused pleaded guilty to 4 charges at the commencement of trial. During trial, 2 theft charges were withdrawn and dismissed on application by prosecution leaving a total of 10 charges.
4. Of the 10 remaining charges, 5 were amended by consent and prosecution proceeded on the following final charges:
   • (i) D4174 / 16 - theft of $24,900.00 being properties of BSP on 21/08/16;
   • (ii) D4184 / 16 - theft of $300.00 being properties of BSP on 22/08/16;
   • (iii) D4185 / 16 - theft of $16,200.00 being properties of BSP on 23/08/16.
   • (iv) D4182 /16 - theft of $300.00 being properties of BSP on 22/08/16;
     • (v) D4181 /16 - theft of $6,150 being properties of BSP on 22/08/16;
     • (vi) D4183 / 16 - theft of $23,950.00 being properties of BSP on 22/08/16;
     • (vii) D4178 /16 - theft of $20,500 being properties of BSP on 23/08/16;
     • (viii) D4176 / 16 - theft of $15,700.00 being properties of BSP on 23/08/16;
     • (ix) D4172 / 16 - accessing a BSP ATM machine in a dishonest manner and thereby obtaining $18,000.00, being properties of BSP on 21/08/16;
     • (x) D4171 / 16 - intentionally and without authorization, possessing a card skimming device designed or adapted for the purpose of committing an offence on 21/08/16;

EVIDENCE

5. Prosecution called 10 witnesses. Corporals Taualai Luuga and Valaauina Tuamu; and Constables Rudolph Ho Chee, Nepa Papalii, Toso Talatonu and Leone Filemu were all part of the search party. The operation was led by Corporal Tuamu.
6. Other witnesses include Mr Lin Yianbin, the Chinese owner of DIRCOS where the accused stayed, and 3 BSP staff members, namely Ms Shirley Greed, Manager Retail Banking; Mr Te’i Lepa who is responsible for its ATM machines; and Ms Peti Leiataua, Manager Operational Risk and Compliance.

Cards discovered

7. The evidence of prosecution is that in the afternoon of 24 August 2016, Mr Lepa reported to Ms Greed suspicious activity involving the use of BSP ATM machines. Over 30 cards had been used and captured by the ATMs at the Main Branch, Matautu, Tanugamanono, Lotopa, and the 2 at Vaitele. The cards looked the same, black and blue in colour, with the letters “VIP” on the top left corner and a 5 digit number at the bottom. The cards were never before seen, and different from the normal ATM card which has on it the card number and names of the cardholder and issuing bank.
8. As to why cards are captured by an ATM, Mrs Greed and Mr Lepa say that it normally occurs when an invalid PIN number is used; the card has been reported missing; there are no funds in an account; and / or the issuing bank has blocked its use, in which case the words “do not honour” would then appear on a trial balance report.
9. Trial balance reports are run daily for all ATMs and contain all information such as the card numbers, dates and times of transactions, amount of each transaction and whether it was completed and the reason why if it was not.
10. In addition to the cards, the trial balance report for the Matautu ATM for the previous day was examined by Mr Lepa and Ms Greed. They noticed a number of incomplete transactions as well as those which were successfully completed. Mr Lepa was then instructed to check the ATM cameras and obtain video footages of the suspicious transactions. From the footages (Exhibits P2, P3, P5 & P6) of 22 August 2016 between 11.43 and 11.44, 2 Chinese looking males who appear to be the 2 accused are seen using the ATM and withdrawing cash whilst holding and constantly checking a mobile phone.
11. After viewing the footages, BSP Management contacted police and briefed them on the captured cards and irregularities in the trial balance and video footages.

Police Search

12. From there, Corporal Valaauina, Constables Toso and Rudolph went to DIRCOS at Matautu. DIRCOS is a 2 storey building (Exhibit P29) that houses a restaurant and shop downstairs, and accommodation upstairs. Access to the second storey is by 2 stairs on the right side of the building, one from the front and one from the back. Beside the backstairs is a laundromat area where a big blue rubbish bin was also found.
13. Upon arrival at DIRCOS, police saw 2 Chinese men identified to be the accused sitting outside in the front. The 2 men ran upstairs through the front entrance at the side of the building and locked the door behind them. Minutes later, Mr Yianbin, owner of the building opened the door for the police. He was present throughout the search and assisted police in translation.
14. Upstairs, police found both accused by themselves in the living area. Police then called the main office for assistance. Not long after, more officers arrived including those from Forensics. The accused handed to police their wallets (Exhibits P28) which contained cash in various currencies, before the search continued into rooms 3 and 4. Room 4 appeared to be unoccupied but in Room 3, police found inside a suitcase the following items:
    • (i) 1 laptop with black charger and mouse (Exhibit P22);
    • (ii) Wires, adaptors and cords (Exhibit P27); and
    • (iii) 1 electronic device on which cards are swiped (Exhibit P26).
15. According to Mr Yianbin, the device (Exhibit P26) is used to swipe ATM cards. He was familiar with it having seen a lot of similar devices in China. As to the living arrangements, he says that the first accused stayed in one room, whilst the second room was occupied by the second accused and a third Chinese man who had returned overseas on the 23^rd August 2016.
16. The search was directed by Constable Nepa Papalii to the rubbish bin in the laundromat area. At the top inside was a stack of cards in a plastic bag. The bin was taken outside and emptied. Found amongst its contents were the following items which were later recorded in a search and seizure form tendered as Exhibit P16 :
    • (i) over a 100 black and blue VIP ATM cards stacked in 2 or 3 bundles (Exhibit P21);
    • (ii) 3 electronic devices (2 silver & 1 black in colour) (Exhibit P 17);
    • (iii) 2 Yalitong universal phone & battery chargers (Exhibit P 18);
      • (iv) Red tapes (Exhibit P19);
      • (v) 3 rolls of price tags (Exhibit P20);
      • (vi) torn up pieces of paper with numbers on it (Exhibit P23).

ATM Skimming Device

17. Evidence was also led on the use of the 3 electronic devices produced as Exhibit P17. According to Mr Lepa, their technical staff are trained regularly and provided with updated manuals every 6 months by BSP’s PNG trainers on ways to inspect for ATM skimming devices. One such manual was produced as Exhibit P6 which explains a ‘card skimming device’ as:

“ ... an electronic storage device used by criminals to copy, store and retrieve customer data contained within the magnetic stripe of a card. The device is placed over the existing card reader entry of the ATM and captures the data as the card is entered into the ATM. The PIN is usually captured by a hidden camera or a false keyboard which can capture the keystrokes as the customer enters the PIN.”

18. Different types of skimming devices were available but most were false panels which are placed over the card reader using double sided tapes, to capture the data when the card is used; or over the keystrokes panel to capture the PIN when it is entered. Attached behind the pinholes on the devices are the tiniest of cameras that capture the information as well as rechargeable batteries and memory cards to store the captured information. Both were easily removed and attached.
19. Referring to Exhibit P17, all 3 panels had pinholes and batteries. Attached to the back of 2 of the devices were cameras. As to the use of the card swiping device (Exhibit P26), Mr Lepa says that it was to test whether or not the cards were working. A usb wire connects the device to a computer or laptop and when the cards are swiped, the laptop would usually show by a green or red light that a card can be used successfully or not.

Video Footages & Trial Balance

20. Prosecution evidence is that in some cases, the time difference between transactions on the trial balance and video footage was about 6 minutes. For other ATMs, the time difference was an hour and minutes. The difference according to Mr Lepa was due to different systems being used and sometimes as a result of power outages.
21. From the video footages (Exhibits P8 to P15) of the 3 ATM machines at the main branch and 2 Vaitele ATMs; and Trial Balance reports for 21 to 23 August (Exhibit P1), Ms Leiataua and her team identified a significant difference in the trial balance for those days compared to the regular reports. Whilst in the regular reports, there was one or two transactions involving overseas cards, there were in the trial balance for 21 to 23 August (Exhibit P1) a significant number of transactions where overseas cards were used.
22. As a further result of BSP’s inquiries, it was discovered that the cards used and captured by the ATMs and seized in the search belonged to overseas customers; and that the issuing bank for all cards was called AL Rajhi Banking Investment Corp in Saudi Arabia.
23. A list of all successful transactions involving the cards was complied in September 2016 (Exhibit P31) and subsequently adjusted (Exhibit P32). The list shows the actual card number, amount withdrawn, the ATM used and time for each transaction. A further report dated 8 December 2016 (Exhibit P33) from BSP to the National Prosecution Office lists each of 154 captured and collected; the 5 digit numbers on each card; the correct and corresponding number which appears on the EFTPOS machine when swiped; and the expiry date for each card. Ms Leiataua’s evidence is that each of the 154 VIP cards captured and seized were false, and the only way that the correct card numbers could be identified was by swiping each card on an EFTPOS machine.

Third Chinese Man

24. It is common ground that in some of the video footages produced in evidence, a third Chinese male wearing a blue hat is seen with the 2 accused either using the ATM, or lurking in the background and keeping an eye whilst the ATM is being used by both accused. In the footage of 21 August 2016 for ATM01 (Exhibit P8) at 2:13:34pm, the first accused is seen using the ATM before he is joined by the second accused and the third man.
25. In the footage for ATM06 on 23 August 2016 (Exhibit P11) at 10:10:06am, he is seen walking from inside the main branch and pressing on the keystrokes panel until about 10:17:51am when he leaves. He is also seen in the footage for ATM10 on 22 August 2016 (Exhibit P12) firstly joining the accused whilst they were using the ATM and subsequently making numerous withdrawals himself.

RELEVANT LAW

Theft

26. Section 161 of the Crimes Act 2013 relevantly provides:

“161. Theft or stealing-(1) Theft or stealing is the act of:

(a) dishonestly taking any property with intent to deprive any owner permanently of that property or of any interest in that property ... ;

27. Section 165 provides for the penalty.
28. To sustain the theft charges, the prosecution must satisfy the Court beyond reasonable doubt of the following ingredients:

(i) There must be a taking by the accused;

(ii) The taking was done fraudulently or dishonestly; and

(iii) There was an intention on the part of the accused to deprive the owner permanently of the item that was taken (see Police v. Tavui [2013] WSSC 2013 (22 February 2013))

Accessing an electronic system dishonestly and thereby obtaining any property ... or benefit

29. Section 207 relevantly states:

“Accessing electronic system for dishonest purpose-(1) A person is liable to imprisonment for a term not exceeding seven (7) years who, directly or indirectly:

(a) accesses an electronic system and in so doing, dishonestly or by deception -

(i) obtains any property, ... benefit, or valuable consideration; or

(ii) causes loss to any other person; or ... ”

30. To prove the charge as framed, the prosecution must satisfy the Court beyond reasonable doubt that:

(i) The accused directly or indirectly accessed an electronic system; and

(ii) By such access, the accused dishonestly obtained any property or benefit.

Possessing a card skimming device designed or adapted for the purpose of committing an offence

31. Section 213 relevantly provides:

“Illegal devices – A person is liable to imprisonment for a term not exceeding 7 years who intentionally and without authorisation produces, sells, procures for use, imports, distributes or otherwise makes available, or attempts to use, possess, produce, sell, procure for use, import, distribute or otherwise make available:

(a) a device, including an electronic program, that is designed or adapted for the purpose of committing an offence;

... ”

32. For this charge as framed, the prosecution must satisfy the Court beyond reasonable doubt that:

(i) The accused were in ‘possession’ of a card skimming device; and

(ii) Such possession was intentional and without authorisation; and

(iii) The device is designed or adapted for the purpose of committing an offence.

33. As to ‘possession’, this Court refers to Police v. Chan Chui [2007] WSSC 72 (18 September 2007) in which Sapolu CJ adopts the meaning in R v Cox [1990] NZCA 13; [1990] 2 NZLR 275. Though a case involving possession of controlled substances, the following statement of Hardie Boys, J in delivering the New Zealand Court of Appeal judgment is highly relevant:

“Possession involves two, not three, elements. The first, often called the physical element, is actual or potential physical custody or control. The second, often described as the mental element, and which may be called the element of mens rea, is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substances is in his possession (which is often to be inferred or presumed); and an intention to exercise possession”

Parties

34. For the charges under sections 207 and 213, the prosecution also rely on the parties’ provision under section 33 Crimes Act 2013, which provides as follows:

“33. Parties to offences-(1) A person is a party to and guilty of an offence who:

(a) actually commits the offence; or

(b) does or omits an act for the purpose of aiding any person to commit the offence; or

(c) abets any person in the commission of the offence; or

(d) incites, counsels, or procures any person to commit the offence.

(2) Where two (2) or more persons form a common intention to carry into effect any unlawful purpose and to assist each other in that object, each of them is a party to every offence committed by any one of them in carrying into effect that unlawful purpose if the commission of that offence was or ought to have been known to be a probable consequence of carrying into effect that common purpose.

(3) Nothing in this section prevents the charging of a person as a party to any offence under both subsection (1) and (2) or in the alternative.”

Judge’s discretion to amend charges

35. Section 55 Criminal Procedure Act 2016 provides for the Court’s discretion to amend charges. It states as follows:

“55. Amendment of charges – (1) Subject to subsections (2) to (5), if the defendant appears to answer a charge, the Court may amend the charges in any way at any time during the trial.
(2) At the trial of any person, a Judge may amend the charges pursuant to subsection (1) in a manner that brings the charge into conformity with the evidence offered by the informant or prosecutor.”

36. In my view, the discretion under section 55(2) may be exercised after the evidence has completed and before a verdict is delivered because only then can the Court properly consider whether or not a charge requires an amendment to bring it into conformity with the evidence.

DISCUSSION

Prosecution Case

37. Where there is no video evidence of the accused making withdrawals from the ATMs, prosecution seeks to rely on the following circumstantial evidence and argues in its closing submissions that for the theft charges, they are guilty as parties:
    • (i) 154 VIP cards were seized during the police search and 37 were captured by the ATM machines;
    • (ii) the Trial Balance shows completed transactions involving the use of these VIP cards;
    • (iii) video footages showing the accused by themselves, the third Chinese man by himself, and the 3 of them together withdrawing cash from ATMs using the VIP cards;
    • (iv) the accused and the third Chinese man lived together at DIRCOS where the VIP cards and other electronic devices were seized.
38. As for the charges of accessing an electronic system for a dishonest purpose (section 207) and possessing an illegal device without authorization and for the purpose of committing an offence (section 213), they are not addressed in the submissions by the prosecution.

Defence Position

39. For most of the theft charges, the defence concedes that there was theft. Their position is that:
    • (i) Where theft is conceded, it was for sums lesser than charged; OR
    • (ii) Where theft is denied, the prosecution cannot rule out beyond reasonable doubt the possibility that the third Chinese man was responsible for the thefts.

Theft Charges and Prosecution Submission on Parties

40. The accused are jointly charged as principal offenders. All 8 informations do not cite the parties’ section (section 33) and no application was made before or during trial for an amendment to include the accused being charged as parties. In fact, it is only in its closing submissions that prosecution argues a finding of guilt against the accused as parties.
41. Clearly under section 55(2), Criminal Procedure Act 2016, the Court may amend the charges in a manner that brings them into conformity with the evidence offered by the prosecution. I have expressed the view that the Court may do so after the evidence is completed and before a verdict is handed down. I have also decided not to exercise that discretion in relation to these charges to accommodate the argument by prosecution on parties.
42. Prosecution had the opportunity to seek an amendment before or during trial. The charges under sections 207 and 213 on the other hand clearly cite section 33 in the charging provisions. From the joint memorandum of prosecution and defence, prosecution would have also had notice of the defence case in relation to the amounts disputed and the reason for such dispute. But prosecution did not seek an amendment to include section 33 as a charging provision. Furthermore, whilst ‘parties’ is argued in its closing submission, it is not specified under which provision of section 33 that argument is premised.
43. On the other hand, the defence has maintained throughout trial that the accused had stolen sums lesser than charged. Though not a defence, they are entitled to the benefit of that argument.
44. Prosecution bears the burden throughout the criminal justice process and has a duty to present and conduct its case fairly and diligently, including the framing of charges in conformity with the evidence it anticipates to lead at trial. They cannot in my view and in these circumstances, depend on the Court and the exercise of its discretion under section 55(2) to assume that responsibility.

Charge 1 (D417/16) – Theft of $24,900 at Matafele on 21/08/16

45. The accused concede stealing $19,150.00 by way of withdrawals from ATM01. They dispute the sum of $5,750.00.
46. Prosecution concedes that the disputed amount is the total sum of cash withdrawals made by the third Chinese man as seen on the video footage. They submit however on the circumstantial evidence (paragraph 37) that although not seen in the footage and that the ‘taking’ was not made by them, the accused were nevertheless involved and are therefore parties to that theft.
47. But the accused are jointly charged as principal offenders. They are not charged as parties and for reasons abovementioned (paragraphs 40 to 44), I have decided not to amend the charges to include section 33 on parties.
48. The Court’s discretion under section 55(2), Criminal Procedure Act 2016 may appropriately be exercised however in relation to the amount charged. I amend the amount charged to $19,150.00. That sum is conceded by the accused.
49. I find both accused guilty of the theft of that sum.

Charge 2 (D4184/16) – Theft of $300 on 22/08/16

50. Prosecution relies on the report by Ms Leiataua (Exh P32). It lists VIP card No. 0036 as one of the cards seized and according to the report, that was the card used to withdraw $300.00 ($100.00 and $200.00 respectively) from ATM11 on 22 August 2016.
51. Clearly, there is evidence that $300.00 was taken from ATM11 using that card and on that date. But there is no evidence as to who made the withdrawal and took the money.
52. Prosecution submits that in the absence of direct evidence as to who was responsible for the taking, it could reasonably be inferred from the circumstances (paragraph 37) that it was the accused. However, an equally reasonable inference in my view is that the third Chinese man was responsible for that particular taking. To choose one reasonably open conclusion over the other would be unsafe, and the benefit of the doubt must be exercised in favour of the accused.
53. I find both accused not guilty of this charge.

Charge 3 (D4185/16) Theft of $16,200.00 on 23/08/16

54. The accused concede stealing $12,400.00 from ATM01 on 23 August 2016 from 17:26 to 17:53. The disputed amount of $3,800.00 is made up of 3 withdrawals totaling $700.00 and several others making up a total of $3,100.00 from ATM02.
55. Prosecution concedes that for the sum of $3,100.00, only the third Chinese man made the withdrawals. The ‘taking’ was not made by the accused. They cannot therefore be held liable for the theft of that sum as principal offenders.
56. As for the sum of $700.00, in the absence of video evidence as to who made the withdrawals, it is reasonably open on the evidence the conclusion that either one or both accused; or even the third Chinese man withdrew the amounts and was therefore responsible for the taking.
57. On the evidence, I am not satisfied beyond reasonable doubt that the accused stole the sum of $3,800.00 which they dispute.
58. The Court amends the amount charged to $12,400.00 under section 55(2), Criminal Procedure Act 2016 and finds both accused guilty of the theft of that sum.

Charge 4 (D4182/16) – Theft of $300.00 on 22/08/16

59. This charge is denied by the accused.
60. In the absence of video footage, prosecution again rely on the evidence that the 2 withdrawals at ATM11 at Lotopa for a total of $300 were made using VIP cards seized during police search and the fact that both accused are seen withdrawing cash using similar cards in most of the video footages produced in evidence. In those circumstances, they say the only reasonable inference is that the accused were responsible for the theft of that amount.
61. Again I do not agree. In the absence of video evidence identifying who withdrew and received cash at the relevant time, it is equally and reasonably open an inference that the theft was committed by the third Chinese man. To choose between the two would be unsafe and the Court is left with a reasonable doubt that the accused stole $300.00 from ATM11 as charged.
62. I find both accused not guilty of this charge.

Charge 5 (D4181/16) – Theft of $6,150.00 at Matautu uta on 22/08/16

63. The accused concede stealing $3,100.00 and dispute $3,050.00.
64. There is no video footage showing who made withdrawals of amounts making up the total of $3,050.00. As with other charges, prosecution relies on evidence of withdrawals being made using VIP cards seized in police search and video footage of the 2 accused withdrawing cash from other ATMs. They argue that a reasonably strong inference in the circumstances is that the accused also stole this sum.
65. I have no doubt that the disputed amount was also withdrawn using the VIP cards seized from where the accused had stayed. But in the absence of direct evidence as to who used the ATM on these occasions and received from it the monies, it is equally and reasonably open an inference that the third Chinese man was responsible for the theft of the disputed amount.
66. As charged, I am not satisfied beyond reasonable doubt that the accused stole the disputed amount of $3,050.00.
67. I amend the amount charged to $3,100.00 which sum is conceded by the accused and find them both guilty of its theft.

Charge 6 (D4183/16) – Theft of $23,950.00 at Vaitele tai on 22/08/16

68. The accused concede stealing $11,700.00 and dispute the sum of $12,250.00. It is argued that from the video footage, the relevant withdrawals were made by the third Chinese man.
69. Prosecution submits that the accused are nevertheless guilty as parties to that theft because they had all been living together; all were shown in the other video footages using the cards and withdrawing cash; and that in the footages, the accused used that ATM first before the third Chinese man, with both accused returning 4 hours later to withdraw money.
70. Again the 2 accused are charged as principal offenders and with the video evidence of the withdrawals making up the disputed sum being made by the third Chinese man, the accused cannot be held to have taken the disputed sum.
71. I amend the amount charged to $11,700.00. That sum is conceded by the accused. I find them both guilty of its theft.

Charge 7 (D4178/16) – Theft of $20,550.00 at Lotopa on 23/08/16

72. Both accused deny the charge and rely on the fact that there was no video footage of the withdrawals making up this sum.
73. As with other charges, prosecution relies on the same evidence, that the amounts involved were withdrawn using VIP cards seized by police from where the accused and the third Chinese man had been staying. They invite the Court to draw a reasonably strong inference that the accused made the withdrawals.
74. Again, equally and reasonably open on that evidence is the inference that the third Chinese man was responsible for the theft of the disputed sum. The accused are charged as principal offenders and I am not satisfied on the evidence relating to this charge that they stole the sum charged.
75. I find both accused not guilty of this charge.

Charge 8 (D4176/16) – Theft of $15,700.00 at Vaiteletaion 23/08/16

76. The accused concede stealing $1,000.00 from ATM04 on 23 August 2016 and dispute that of $14,700.00.
77. They argue that for all transactions adding up to $14,700.00, the footage shows only the third Chinese man withdrawing money. There were 3 other transactions for a total $1,750.00 made by the third Chinese man whereby the accused are shown sitting around the ATM and looking over the third man’s use of the machine.
78. I agree that there is a strong case that in respect of that amount, the accused are parties to the third man’s theft under either (1) or (2) of section 33. But the accused are not charged as parties but principal offenders and I have decided not to exercise the discretion under section 55(2), Criminal Procedure Act 2016 to amend the information.
79. The accused as charged cannot be liable for the third Chinese man’s theft of the disputed sum.
80. I amend the amount charged to $1,000.00. That sum is conceded by the accused. I find them both guilty of the theft of that sum.

Charge 9 (D4172/16) – Accessing an electronic system dishonestly and thereby obtaining any property or benefit

81. To sustain this charge, prosecution must prove that:

(i) the accused directly or indirectly accessed an electronic system; and

(ii) by such access, the accused dishonestly obtained any property or benefit.

82. Prosecution does not address this charge in its submissions and the defence do not dispute that an ATM machine is an electronic system. They argue however that prosecution failed to elicit any evidence that the accused accessed any ATM machines at Savalalo to obtain $18,000.00 as stated in the charge.
83. But there is evidence that on 21 August 2016, the accused accessed the BSP ATM01 at the main branch and obtained $19,150.00. In fact, they concede to having stolen that amount under Charge 1 (D4174/16). Whether or not it was at Savalalo and for whatever amount is immaterial. More significant is the fact that from such access, the accused dishonestly obtained a benefit.
84. I amend the amount stated in the information to $19,150.00 under section 55(2), Criminal Procedure Act 2016 and find both accused guilty of the charge.

Charge 10 (D4171/16) - Possessing a card skimming device designed or adapted for the purpose of committing an offence

85. Again, prosecution does not also address this charge in its closing submissions. To sustain the charge however, it must prove beyond reasonable doubt the following ingredients:
    • (i) The accused were in possession of a card skimming device; and
    • (ii) Such possession was intentional and without authorisation; and
    • (iii) The device is designed or adapted for the purpose of committing an offence.
86. Unlike the theft charges, this information cites section 33. It does not specify however under which of its provisions the prosecution’s case is premised.
87. As to the first requirement, I find on the evidence of Mr Lepa that the 3 electronic devices seized by police and tendered as Exhibit P17 are ‘card skimming devices’. All 3 panels had pinholes and batteries, and tiny cameras were attached to the back of 2 devices. As explained by Mr Lepa, the devices were false panels used by criminals and placed over the existing card reader entry of the ATM or the keystrokes panel to capture the data as the card is entered into the ATM and numbers are pressed on the keystrokes panel.
88. ‘Possession’ involves both physical control and awareness on the part of the accused that the devices are in their possession, and I am satisfied that the accused were in control and knew they were in control of such devices. The devices were found in the rubbish bin with numerous other items during the search. At the time, the accused were the only occupants of the accommodation and the third Chinese man had left the country. There is overwhelming evidence of the accused using ATMs and withdrawing cash using cards also found in the same rubbish bin as the devices. I am satisfied on that evidence that the devices were in the accused’s possession; they knew that they were in control of the devices; and with many other items, they disposed of them in the rubbish bin immediately after the police arrived for their search.
89. As to the second element, I am also satisfied that the accused’s possession was intentional and without authorisation. Days before the search, the accused had engaged in criminal activity involving the withdrawal of substantial amounts of money from BSP ATMs using what they concede as ‘false’ bank cards. The devices served a purpose relating to that particular type of criminal activity, and they could not have unintentionally been in possession of such devices. The fact that they disposed of the panels immediately after the police arrived is strong evidence that their possession of the devices was also without authorisation.
90. I also have no difficulty finding proven the third element. The design and purpose of the devices according to Mr Lepa was for criminals to copy, store and retrieve customer data contained within the magnetic stripe of a bank card. Whilst there is no evidence that the devices were in fact used by the accused, I am satisfied beyond reasonable doubt that they possessed the devices for the purpose of committing an offence, namely the dishonest taking or theft of money from the ATMs.
91. I find both accused guilty of this charge.

CONCLUSIONS

92. For the foregoing reasons, I have reached the following conclusions:

(i) On D4174 / 16 for theft of $24,900.00, I find both accused guilty of the theft of $19,150.00;

(ii) On D4184 / 16 for theft of $300.00, I find both accused not guilty of that charge;

(iii) On D4185 / 16 for theft of $16,200.00, I find both accused guilty of the theft of $12,400.00;
(iv) On D4182 / 16 for theft of $300.00, I find both accused not guilty of that charge;
(v) On D4181 / 16 for theft of $6,150.00, I find both accused guilty of the theft of $3,100.00;
(vi) On D4183 / 16 for theft of $23,950.00, I find both accused guilty of the theft of $11,700.00;
(vii) On D4178 / 16 for theft of $20,550.00. I find both accused not guilty of that charge;
(viii) On D4176 / 16 for theft of $15,700.00, I find both accused guilty of the theft of $1,000.00;
(ix) On D4172 / 16 for accessing a BSP machine dishonestly and thereby obtaining property or benefit, I find both accused guilty of that charge;

(x) On D4171 / 16 for intentionally and without authorization obtaining a card skimming device designed or adapted for purpose of committing an offence, I find both accused guilty of that charge.

93. In summary therefore:
    • (i) 3 theft charges are dismissed;
    • (ii) 5 theft charges are found proven but for reduced amounts than charged. The total amount for which both accused are found guilty of theft is $47,350.00;
      • (iii) 1 charge of dishonestly accessing an electronic system and thereby obtaining a benefit (section 207) is found proven;
    • (iv) 1 charge of intentionally possessing a card skimming device designed for the purpose of committing an offence (section 213) is also found proven.
94. Both accused are remanded to Friday 9 June 2017 for a Summary on the 4 charges to which they pleaded guilty, a Victim Impact Report, Pre sentence reports and sentencing. Both accused are to be remanded in custody.

JUDGE FEPULEAI AMEPEROSA ROMA