IN THE DISTRICT COURT OF SAMOA
Police v Shuiming [2017] WSDC 20

Case name: 	Police v Shuiming 	
		
Citation: 	[2017] WSDC 20	
		
Decision date: 	7 July 2017	
		
Parties: 	Police (Informant) and Shuiming and 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, D4183/16, D4185/16, D4170/16, D4177/16, D4180/16, D4185/16	
		
Jurisdiction: 	Criminal	
		
Place of delivery: 	District Court of Samoa, Mulinuu	
		
Judge(s): 	Senior DCJ Fepuleai Ameperosa Roma	
		
On appeal from:		
		
Order:	For the foregoing reasons, this Court sentences you as follows:
(i)	On the 4 lead charges of theft in excess of $10,000.00 (D4171/16, D4179/16, D4185/16 & D4183/16), you are convicted and sentenced to 4 years imprisonment for each charge;
(ii)	On the 2 charges of theft of sums over $1,000.00 and less than $10,000.00 (D4180/16 & D4181/16), you are convicted and sentenced to 3 years imprisonment for each charge;
(iii)	On the 2 charges of theft of the sum of $1,000.00 (D4176/16 & D4177/16), you are convicted and sentenced to 16 months imprisonment for each charge;
(iv)	On the charge of intentionally accessing an electronic system without authorisation (D4170/16), you are convicted and sentenced to 2 years imprisonment;
(v)	On the charge of dishonestly accessing an electronic system and thereby obtaining a benefit (D4172/16), you are convicted and sentenced to 2 years imprisonment;
(vi)	On the charge of intentionally possessing a card skimming device (D4171/16) for purpose of committing an offence you are convicted and sentenced to 1 year imprisonment.  
The sentences are to be served as follows:
(i)	For all 8 theft charges (D4171/16, D4179/16, D4185/16, D4183/16, D4180/16, D4181/16, D4176/16 and D4177/16) 1 charge of intentionally accessing an electronic system without authorisation (D4170/16), and 1 charge of dishonestly accessing an electronic system and thereby obtaining a benefit (D4172/16), the sentences are to be served concurrently meaning that for all those 10 charges, you will serve 4 years imprisonment;
(ii)	For the 1 charge of intentionally possessing a card skimming device for the purpose of committing an offence (D4171/16), the 1 year imprisonment term will be served cumulative to the 4 year sentence on the other 10 charges.
(iii)	Accordingly you will serve 5 years imprisonment for all charges.  The time that you have spent in custody following the Court’s decision on 19 May 2017 will be deducted from that term.	
		
Representation: 	Ms. I. Atoa for Prosecution
Mr. Su’a for both Defendants	
		
Catchwords: 	theft – intentionally accessing an ATM machine without authority -  dishonesty accessing an electronic system and thereby obtaining a benefit -  intentionally possessing a card skimming device for the purpose of committing an offence – offending – complainant – defendants – aggravating features – mitigating features – sentencing principles - discussion - result	
		
Words and phrases:		
		
Legislation cited:	Crimes Act 2013 s161, 165(b), 206, 207, 213
Sentencing Act 2016	
		
Cases cited:	Police v Iakopo [2017] WSDC4 (24 March 2017),	
	Public Prosecutor v. Fernando Payagala Wadyge Malitha Kumar [2007] SGHC 23 (23 February 2007), (Supreme Court of Singapore)
	
Summary of decision:		

IN THE DISTRICT COURT OF SAMOA

HELD AT MULINUU

BETWEEN

POLICE
Informant

A N D 	

1.  	ZHONG SHUIMING
	
2.	YANG QINREN, both male of Jiangxi, China
Defendants

Counsel:	Ms I. Atoa for Prosecution
		Mr A. Su’a for the Defendants

Sentence:	7 July 2017

SENTENCING REMARKS OF JUDGE ROMA
Charges
1.	Defendants, you appear this afternoon for sentence on 11 charges:
(i)	8 charges of theft (s161 & 165 (b), Crimes Act 2013);
(ii)	1 charge of intentionally accessing an electronic system without authorization (s206);
(iii)	1 charge of dishonestly accessing an electronic system and thereby obtaining a benefit (s207);
(iv)	1 charge of intentionally possessing a card skimming device for the purpose of committing an offence (s213).
2.	You pleaded guilty to 3 charges of theft which involve a total of $23,200.00, and 1 charge of intentionally accessing an electronic system without authorisation (s206).
3.	Following a defended hearing, I found you guilty of 1 charge of dishonestly accessing an electronic system and thereby obtaining a benefit (s207); 1 charge of intentionally possessing a card skimming device (s213); and 5 charges of theft involving a total amount of $47,350.00.
4.	The maximum penalties for the 11 charges are as follows:
(i)	for the 3 charges under s206, 207 & 213 (Crimes Act 2013), you are liable to 7 years imprisonment on each charge;
(ii)	for the 2 charges of theft involving sums of $1,000.00, you are liable to 2 years imprisonment on each charge;
(iii)	for the 6 charges of theft involving sums of more than $1000.00, you are liable to an imprisonment term of 7 years on each charge.
5.	On all 11 charges therefore, you are liable to a maximum penalty of 67 years imprisonment.
Offending
6.	In this Court’s decision of 19 May 2017, I referred to the evidence in detail and gave reasons for my findings.  From that decision and the material before me, I wish to highlight the following circumstances for the purposes of your sentencing.
(i)	You are both Chinese nationals from Jiangxi Province in China.  Along with a third Chinese national named Zhong Huazhe, you left China on 21 August 2016 and travelled to Samoa, transitting in Fiji.  Your plan was to leave Samoa and return to China on 28 August 2016;
(ii)	Upon arrival in Samoa, and from 21 August to 23 August 2016, you made numerous cash withdrawals from all except one BSP ATM machine here in Upolu using counterfeit ATM cards;
(iii)	On the video evidence, the withdrawals were made by yourselves on some occasions; you made them with your accomplice on other occasions and in some instances, he was seen withdrawing cash himself;
(iv)	After 3 days of constant withdrawals, BSP was alerted to the suspicious use of its ATMs by a number of cards which were captured by the ATM machines.  The cards were never before seen and different from the normal ATM cards;
(v)	Following a viewing of the ATM video footages, a reconciliation of the trial balance reports for the ATMs concerned, police were contacted on 24 August 2016;
(vi)	Police conducted a search of DIRCOS, the accommodation where you stayed.  They seized a number of items including fake ATM cards and card skimming devices and arrested you both.  By then, your other accomplice had left the jurisdiction leaving the both of you behind.
7.	Coming back to your offending, by your own guilty pleas and on the evidence that this Court heard, I found that:
(i)	On 21 August 2016 at Matafele, you stole $19,150.00;
(ii)	On 22 August 2016 at Vaitele Frankies Supermarket, you stole 
		$9,700.00;
(iii)	On 22 August 2016 at the Vaitele BSP branch, you stole $1,000.00;
(iv)	On 22 August 2016 at the Tanugamanono Princessa Supermarket, you stole $12,500.00;
(v)	On 22 August 2016 at the Matafele main branch, you stole $12,400.00;
(vi)	On 22 August at Matautu uta, you stole $3,100.00;
(vii)	On 22 August at Vaitele tai, you stole $11,700.00;
(viii)	On 23 August 2016 at Vaitele tai, you stole $1,000.00.
8.	The total amount you were found to have stolen is $70,550.00.
9.	You were also found guilty of having:
(i)	intentionally accessed an electronic system without authorisation;
(ii)	dishonestly accessed such system and thereby obtaining a benefit from it;
(iii)	possessed a card skimming device designed for the purpose of committing an offence.
10.	All your acts of theft involved the use of BSP ATM machines.  The accounts that you stole from belonged to overseas customers, specifically of a Bank in Saudi Arabia called Al Rajhi Banking Investment Corp.  Somehow, their bank details were obtained fraudulently to produce counterfeit bank cards.  You then used those cards at local BSP ATMs multiple times to steal substantial sums from those overseas accounts.
Complainant
11.	The complainant is BSP (Samoa) Ltd.  From the Victim Impact Report (VIR) dated 5 May 2017, Ms Maryanne Lameko - Vaai, its General Manager highlights the impact of your offending as follows:
(i)	Financial Impact
BSP suffered a financial loss of $197,000.00.  Whilst the accounts you stole from are held overseas, BSP has had to refund all overseas customers who had put in claims for loss of funds.
I remind myself however that the total amount proven is $70,550.00, which is less than half the sum claimed by the Bank in its VIR.
Additional funds, the VIR says, were also spent to put security guards in place at its office site ATMs following your arrest and prior to trial.  A multi -million dollar project has since been underway to enhance security features for all cards and Banks electronic devices.
	(ii)	General Effects
One of the negative impacts of your offending has been the inconvenience to international and travelling card holders due to the reduction in access limits for all overseas cards used on BSPs ATMs.
There has been pressure on staff in compiling reports and evidence and the consequent need to review the banks internal processes.  There have been disruptions to the Banks daily business which have impacted its customer service.
BSP has also experienced a loss of reputation.  The VIR states that “The safeguard and secured access to customer funds is a key element of our business.  Though none of the account holders in Samoa were directly impacted, customers in general started to question the security of their funds and safety of BSP’s electronic network to access their funds.”
Defendants
12.	You are both foreigners and Chinese nationals.
13.	Mr Shuiming, you are 32 years of age and married.  According to Counsel and the translated testimonials from your wife and in laws, you are a responsible person.  You have 2 teenage sons and have been a breadwinner for your family back in China.  Before travelling to Samoa, you were employed as a Salesman with an unnamed company and for an unknown period. 
14.	Mr Qinren, you are 29 years of age.  You are married with a young baby who was 4 months old when you travelled to Samoa.  You were a department manager in the company that employed you, for how long is also unknown.  The translated letter from your wife suggests that because you did not receive much education you were easily cheated by your friends and led into coming to Samoa for a fraudulent purpose.
15.	I find it hard to accept that a department manager would be easily led into an unlawful scheme as this one unless of course, he is well aware of what is involved and is in fact part of that scheme.
Aggravating Features
16.	The following are aggravating features of your offending:
(i)	High degree of planning and premeditation
These were no ordinary thefts and most likely involved many individuals.  You might have been the ones making the withdrawals but there was obviously a great deal of planning before you arrived in Samoa and started stealing money from the ATMs.
It would have involved a fraudulent process of obtaining identities and bank details of overseas customers.  It would have involved manufacturing counterfeit cards using that information.
It also involved you travelling all the way from China with those counterfeit cards to an island where you had never been before and withdrawing numerous and substantial sums from ATMs of a local bank over 3 days.
Counsel says that there was no sophistication in your involvement and that you were basically at the end of the scheme.  Your job was to just make the withdrawals using the cards given to you and the plan was for you to stack the money and tally later with your accomplice.
Whatever your involvement, it does not in my view make you any less culpable than those who were behind and had planned the scheme.  You were well aware of what it involved. You knew it was fraudulent, dishonest and unlawful.  You also knew what was in it for you.  You travelled all the way to carry out your part in the scheme within a week and return.  Unfortunately for you, you were caught 3 days before you were scheduled to depart.
Relative to the high degree of planning and premeditation, there is an element of sophistication involved in your offending and measures would have been taken to defy detection, though you were caught after 3 days and the illegal devices found in your possession could not have been used for the purpose for which I found them to be in your possession.
(ii)	Impact on the Victims
I have referred earlier to the impact of your offending on BSP Bank as stated in its VIR.  It includes the financial loss to the Bank; the disruption to its service; the loss of reputation relating to the security of its electronic banking systems; and the cost of additional measures now being put in place to ensure better security of such systems.
I must also bear in mind the impact on the overseas customers who held accounts in Saudi Arabia which you accessed and stole from here in Samoa.  From the evidence, their loss would be settled by BSP pursuant to an international agreement with VISA and Master Card companies.  But the discovery that their accounts had been hacked and stolen from ATMs in a small Pacific Island almost 16,000 kilometres away is unwarranted; and the unnecessary trouble that they have to go through to recover their loss must be taken into account. 
(iii)	Number of offences and quantum
You are being sentenced on 11 charges, 8 of them thefts involving significant sums of money.  Those 8 charges were not isolated withdrawals.  They are made up of multiple withdrawals of cash in varying amounts.  They involved continuous withdrawals from all BSP ATMs in Upolu except the one at Faleolo Airport, over 3 days until you were caught.
The total amount of $70,550.00 is a substantial sum.
(iv)	No Restitution
The total amount stolen or any part thereof has not been recovered.
Mitigating Features
17.	In mitigation, I take into account the following:
(i)	Guilty Pleas
You pleaded guilty to 4 charges.  I consider also that in relation to the theft charges which you denied, you disputed the amounts charged and for reasons contained in the Court’s decision of 19 May 2017, I found in your favour.
(ii)	Personal Circumstances.
I must also consider your Personal Circumstances.  You are both foreigners.  You have families back in China who have written to explain how your actions have affected them.  They have also expressed regret and apologised for your involvement and their impact locally.
You have both never travelled outside China before your trip to Samoa.  Unfortunately in your very brief time in Samoa, you are now also first offenders.
Sentencing Principles
18.	The most relevant purposes of sentencing I must take into account are firstly, accountability (to hold you accountable for the harm you have done to the victims); secondly denunciation (to denounce the conduct in which you were involved; and thirdly deterrence (to deter you and others like - minded from committing the same offending).
19.	These purposes are clearly stated in the recently enacted Sentencing Act 2016.  I must also have regard to similar and comparable decisions of both the Supreme Court and this Court.
20.	Prosecution refers to a number of cases in their submissions, both of theft and theft as a servant.  Whilst the sentences in those decisions vary, custodial sentences were imposed.  But none of those cases involved theft of ATMs and a scheme such as the one you were both involved in.
21.	Recently in Police v. Iakopo [2017] WSDC4 (24 March 2017), this Court sentenced the defendant to 3 years imprisonment for theft of $112,750.00 from an ANZ Bank ATM.  Immediately before the theft, he had worked for that Bank and was responsible for the maintenance of its ATM machines.
22.	That case is different from yours for a number of reasons:
(i)	Firstly, the offending in Iakopo was isolated and one off.  He used the ATM keys that he had because of his employment to open the ATM and took $112,750.00.  Your offending involved multiple and continuous withdrawals from all except 1 BSP ATM in Upolu, over 3 days.  In fact you faced more charges than the one charge in Iakopo’s case.
(ii)	Secondly, whilst the sum stolen in Iakopo is more than the amount you were found to have stolen and are being sentenced on, a significant part was recovered and $33,400.00 remained unpaid.  In your case, none of the $70,550.00 you were found to have stolen has been repaid.
(iii)	Thirdly, the level of planning, premeditation and sophistication is much higher in your case that in Iakopo.
23.	Your counsel has also helpfully provided overseas authorities, one is a decision of the Supreme Court of Singapore in Public Prosecutor v. Fernando Payagala Wadyge Malitha Kumar [2007] SGHC 23 (23 February 2007).  That case refers to relevant factors to be considered in sentencing cases involving the fraudulent use of credit cards.  I have referred to some of those factors earlier in this decision.
24.	Considering the purposes of sentencing, the cases I have referred to and the intrinsic seriousness of your offending, there is no question in my mind that a custodial sentence is the appropriate penalty.
25.	The benefits and advantages of increasing development and advancement in knowledge, technology and means of communication are well known.  Unfortunately however, some people have also used and applied them to facilitate and advance large scale fraudulent schemes and unlawful activity.  Your case is a clear example.
26.	Your offending has exposed local electronic financial systems and how vulnerable they are to unlawful schemes and criminal activity of this day and age, despite the financial institutions’ efforts to have security measures in place.
27.	The sentence must therefore denounce your conduct.  It must also send a clear message to other like – minded individuals, locally and in particular overseas of the Courts’ stance against dishonesty offences and unlawful schemes of this type and scale.  You cannot just travel here, engage in criminal activity and schemes of this nature and scale, and expect to get away with it lightly.  
Discussion
28.	On the 8 charges of theft, 1 charge of intentionally accessing an electronic system without authorization, and 1 charge of dishonestly accessing an electronic system and thereby obtaining a benefit, I will consider the totality of your offending and the aggravating and mitigating features thereto.
29.	I will consider separately the 1 charge of intentionally possessing a card skimming device for the purpose of committing an offence because although proven, there is no evidence that such skimming device was in fact used on any of the ATM machines.
30.	On the 4 lead charges of theft in excess of $10,000.00, I adopt a starting point of 6 years.  I deduct 21 months for your guilty plea and the fact that although you went to trial on the other theft charges, the Court found proven the sums you conceded having stolen.  I deduct a further 3 months for your personal circumstances.  That leaves 4 years.
Result
31.	For the foregoing reasons, this Court sentences you as follows:
(i)	On the 4 lead charges of theft in excess of $10,000.00 (D4171/16, D4179/16, D4185/16 & D4183/16), you are convicted and sentenced to 4 years imprisonment for each charge;
(ii)	On the 2 charges of theft of sums over $1,000.00 and less than $10,000.00 (D4180/16 & D4181/16), you are convicted and sentenced to 3 years imprisonment for each charge;
(iii)	On the 2 charges of theft of the sum of $1,000.00 (D4176/16 & D4177/16), you are convicted and sentenced to 16 months imprisonment for each charge;
(iv)	On the charge of intentionally accessing an electronic system without authorisation (D4170/16), you are convicted and sentenced to 2 years imprisonment;
(v)	On the charge of dishonestly accessing an electronic system and thereby obtaining a benefit (D4172/16), you are convicted and sentenced to 2 years imprisonment;
(vi)	On the charge of intentionally possessing a card skimming device (D4171/16) for purpose of committing an offence you are convicted and sentenced to 1 year imprisonment.  
32.	The sentences are to be served as follows:
(i)	For all 8 theft charges (D4171/16, D4179/16, D4185/16, D4183/16, D4180/16, D4181/16, D4176/16 and D4177/16) 1 charge of intentionally accessing an electronic system without authorisation (D4170/16), and 1 charge of dishonestly accessing an electronic system and thereby obtaining a benefit (D4172/16), the sentences are to be served concurrently meaning that for all those 10 charges, you will serve 4 years imprisonment;
(ii)	For the 1 charge of intentionally possessing a card skimming device for the purpose of committing an offence (D4171/16), the 1 year imprisonment term will be served cumulative to the 4 year sentence on the other 10 charges.
(iii)	Accordingly you will serve 5 years imprisonment for all charges.  The time that you have spent in custody following the Court’s decision on 19 May 2017 will be deducted from that term.
JUDGE FEPULEAI A. ROMA