Pulinggam v Regina (Commonwealth)
[2006] NSWCCA 145
•10 May 2006
Reported Decision:
162 A Crim R 78
New South Wales
Court of Criminal Appeal
CITATION: Pulinggam v Regina (Commonwealth) [2006] NSWCCA 145 HEARING DATE(S): 27/04/06
JUDGMENT DATE:
10 May 2006JUDGMENT OF: McClellan CJ at CL at 1; James J at 7; Hall J at 64 DECISION: Appeal Allowed. Quash the verdict of guilty and direct entry of a verdict of acquittal. CATCHWORDS: CRIMINAL LAW – CONVICTION APPEAL – charge of importation of prohibited goods, namely counterfeit credit cards - whether the cards imported by the appellant were capable of being found by the jury to be “counterfeit credit cards” LEGISLATION CITED: Acts Interpretation Act (Commonwealth)
Commonwealth Criminal Code
Crimes Act 1914 (Commonwealth)
Crimes (Currency) Act 1981 (Commonwealth)
Criminal Appeal Act (NSW)
Customs Act 1901 (Commonwealth)
Customs (Prohibited Imports) Regulations 1956CASES CITED: Beckwirth v R (1976) 12 ALR 333
Duranol Co Pty Limited v Glenvern Novelty Sweet Co [1957] VR 542PARTIES: Jesengar PULINGGAM v REGINA (Commonwealth) FILE NUMBER(S): CCA 2006/178 COUNSEL: Ms W Abraham - Crown
C Smith - AppellantSOLICITORS: Commonwealth Director of Public Prosecutions - Crown
Legal Aid Commission of NSW - AppellantLOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/1285 LOWER COURT JUDICIAL OFFICER: Hock DCJ LOWER COURT DATE OF DECISION: 06/05/2005
2006/178
Wednesday 10 May 2006McCLELLAN CJ at CL
JAMES J
HALL J
1 McCLELLAN CJ at CL: I have had the benefit of reading the judgment of James J in draft. As his Honour emphasises the Regulation prohibits the importation of “counterfeit credit, debit and charge cards.” Accordingly, the question which required to be answered was whether the items which the appellant was carrying were appropriately described as “counterfeit credit cards.”
2 The evidence of Mr Scott-Rogers, which was tendered by the Crown, indicated that the creation of a valid credit card involves two stages – the cutting of the card and the inclusion of appropriate artwork followed by the “embossing” of the card. Only when “embossed” will the card be capable of being used in an electronic reader or be capable of being passed off as a genuine card. The Crown submitted that the cards which the appellant imported were counterfeit credit cards although none of the work which is required at the second stage had been undertaken.
3 The evidence of persons involved in the credit card business was equivocal. Mr Scott-Rogers gave evidence that Visa International consider a card with a Visa logo, Visa hologram and other Visa marks to be a counterfeit card, whether or not it is embossed or encoded. Mr Keaney from MasterCard indicated that that organisation would not consider the card to be counterfeit unless embossed or encoded.
4 To my mind before a card could be described as a counterfeit credit card it must be in a form which makes it capable of use. The cards imported by the appellant may be properly described as incomplete copies of credit cards incorporating as they do the artwork details from legitimate cards. However, without more they were not counterfeit. Although intended as an imitation card they were not capable of being passed as the original item (see the definition of counterfeit in the Macquarie Dictionary).
5 Any doubt I had about the matter is removed by consideration of the definition of counterfeit money in the Crimes Act. Just as the Legislature thought it necessary to provide that “counterfeit money” included money which could not be uttered and was not complete, in my opinion, the definition of “counterfeit credit card” would require similar extension before it would include cards which were not capable of being passed off or used in any manner.
6 I agree with the orders proposed by James J.
7 JAMES J: Jesengar Pulinggam appealed against his conviction after a trial in the District Court before her Honour Judge Hock and a jury on a charge under s 233BAB of the Customs Act (Commonwealth).
8 The charge as stated in the indictment was in the following terms, that the appellant:-
“On 4 June 2004 at Sydney, New South Wales.
(a) did intentionally import goods;
(b) those goods, namely counterfeit credit cards, were tier 2 goods, and the said Jesengar Pulinggam was reckless as to that fact; and
(c) their importation was prohibited under the Customs Act 1901 unless the approval of a particular person had been obtained pursuant to section 4T of the Customs (Prohibited Imports) Regulations 1956 and, at the time of importation, that approval had not been obtained.”
9 There was another charge in the indictment but the jury returned a verdict of not guilty on that other charge and it is unnecessary to make any further reference to it.
10 Her Honour sentenced the appellant to a sentence of imprisonment for six years commencing on 4 June 2004, the date on which the offence had been committed and the appellant had been arrested and from which the appellant had remained in custody, with a non-parole period of three years eight months. In the event of his appeal against his conviction not succeeding, the appellant applies for leave to appeal against the sentence imposed by Judge Hock.
11 Section 233BAB(1) of the Customs Act provides that the Regulations made under the Act may provide that a number of classes of goods, including (i) “counterfeit credit, debit and charge cards” constitute “tier 2 goods”.
Section 233BAB(5) of the Customs Act provides as follows:-
“(5)A person is guilty of an offence against this subsection if:
(a)the person intentionally imported goods; and
(b)the goods were tier 2 goods and the person was reckless as to that fact; and
(c)their importation:
(i)was prohibited under this Act absolutely; or
(ii)was prohibited under this Act unless the approval of a particular person had been obtained and, at the time of the importation, that approval had not been obtained.
Maximum penalty: A fine not exceeding 2,500 penalty units or imprisonment for 10 years, or both”.
12 Regulation 4T(1) of the Customs (Prohibited Imports) Regulations provides that the importation into Australia of a counterfeit credit, debit or charge card is prohibited, unless a permission to import the card has been given by the responsible Minister. It was not disputed at the trial that no permission had been given.
13 The only ground of appeal against conviction is:-
“There has been a miscarriage of justice in that there should have been a verdict by direction with regard to the element of ‘counterfeit credit cards’”.
14 Because of the limited nature of the only ground of appeal against conviction, it is not necessary to give more than a brief outline of the Crown case at the trial. The witnesses for the Crown at the trial included a number of Customs officers, a Federal police officer, an executive of a company Data Card Worldwide Pty Limited with which the appellant had claimed to be associated, Mr Scott-Rogers an employee of Visa International and Mr Keaney an employee of MasterCard International. The appellant did not give any evidence or call any evidence at the trial.
15 The Customs officers gave evidence establishing that on 4 June 2004 the appellant, a Malaysian citizen, arrived at Sydney Airport as a passenger on a Malaysian Airlines flight. His baggage consisted of a carry on bag and four boxes. In the incoming passenger card completed by the appellant he ticked a section indicating that he had goods to declare.
16 When asked by a Customs officer what goods he was declaring, the appellant said that he had cards and card scanners and that he was going to an exhibition at Darling Harbour in Sydney. The appellant produced one of the cards, which appeared to be a visitor’s pass. It was a small plastic card, on which there was an adhesive label with the word “visitor” on it.
17 One of the Customs officers, from his knowledge of a previous seizure by Customs, suspected that the adhesive label might be covering a credit card. The officer succeeded, with some difficulty, in peeling away part of the adhesive label and discovered under the label what appeared to be a credit card.
18 When the boxes in the appellant’s baggage were searched they were found to contain 2250 cards purporting to be visitor passes on which there were adhesive labels. When the adhesive labels were removed, cards having at least some of the characteristics of credit cards were revealed. Henceforth in this judgment I will refer to the cards, with the adhesive labels removed, as “the cards”.
19 At the trial photographs of a number of the cards were admitted into evidence and two of the actual cards were admitted into evidence as exhibits E and N. It was common ground at the trial and on this appeal that these two cards could be regarded as typical of all the cards. It is convenient to refer to exhibit E as the Visa card and exhibit N as the MasterCard card (without making any assumption that either card was a valid credit card or any kind of credit card). Exhibits E and N were inspected by this Court on the hearing of the appeal.
20 On the front of the Visa card there are:-
(i) In the bottom-right corner, a rectangle with the word “VISA” in blue and with horizontal blue and gold stripes. This feature was referred to in some of the evidence in the trial as the Visa logo.
(ii) On the right-hand side of the card, a square with an illuminated dove in it. This feature was referred to in some of the evidence in the trial as the Visa hologram.
(iii) In the top left-hand corner of the card, the Westpac symbol (resembling a capital W) and the words “Australia’s First Bank.”
(iv) Near the bottom of the card, the printed words “Valid From”, ”Until End” and “Month/Year”.
21 On the back of the Visa card there is a black horizontal stripe, the words “Authorised Signature”, a panel on which the word “VISA” is printed numerous times and the printed words “Cards Customer Service Call Centre,” with telephone numbers for Australia and overseas, and the Westpac symbol.
22 All of the features on the front and back of the Visa card which I have just described closely resemble corresponding features in a genuine Westpac Visa credit card. There are not, however, on the front of the Visa card any number as being the number of the card, any dates as being the dates within which the card is valid or any name of any cardholder.
23 On the front of the MasterCard card there are:-
(i) In the bottom right-hand corner, two intersecting red and gold circles with the printed word “MasterCard”.
(ii) On the right-hand side of the card, an illuminated map of the world.
(iii) In the top left-hand corner of the card, the printed words “Commonwealth Bank”.
(iv) Near the bottom of the card the printed words “Valid Dates…Month…Year…Month…Year”
24 On the back of the MasterCard card there are a white horizontal stripe, a panel on which the word “MasterCard” is printed a number of times and the printed words “Authorised Signature. Not valid until signed”.
25 All of the features on the front and the back of the MasterCard card which I have just described closely resemble the corresponding features on a genuine MasterCard credit card. There are not, however, on the front of the MasterCard card any number as being the number of the card, any dates as being the dates within which the card is valid or any name of any cardholder.
26 Mr Scott-Rogers, the Business Development Manager for Visa International in Australia, gave evidence about the production and issuing of Visa credit cards. Visa credit cards are issued by banks which have entered into agreements with Visa International. The banks purchase blank cards from manufacturers who have been certified by Visa International. There are two stages in the production of a Visa credit card from a blank card (1) the printing of the artwork, which includes the Visa logo and the Visa hologram (2) the embossing and encoding of the card.
27 Mr Scott-Rogers gave the following evidence about these two stages:-
“I’ll start with embossing first. Well, perhaps I’ll start with the printed card. A printed card is something which requires the member’s own bank identification, and also the Visa brand. There are specifications about the colour usage that we must adhere to, and particular products, gold and platinum and the like, have specific colours restricted for their use only. So that is point 1, and that the card printing is the first phase or the artwork that we would look at.
Second phase is the embossing of the card…. But embossing is the raising or the personalisation of the card by raising part of that card. So it’s like Braille if you like, it’s a raised feature, with the cardholder name, the expiry date and the account number, and the encoding is the magnetic stripe on the back of the card or these days a chip can also be available on cards, and the encoding is the personalised details which are provided on to that card, so in an electronic environment the card particulars can be read”.
28 Mr Scott-Rogers explained that a valid Visa credit card has a long number of thirteen to nineteen digits embossed on the front of the card. The first six digits are the identification number of the bank issuing the credit card. The first four digits of the number are also printed on the front of a valid Visa credit card.
29 In examination in chief Mr Scott-Rogers agreed with what he had said in a statement he had previously made, that there are two main types of counterfeit credit card transactions, which he described as:-
“… one type of counterfeit credit card transaction is where a blank unauthorised credit card is produced, and then legitimate cardholder details are embossed or encoded on to that counterfeit card.
And the second main type of counterfeit credit card transaction is where there is a genuine credit card where the details have been taken off; the embossing and encoding have been taken off, and other details put back on to what was once a genuine card”.
30 Under Visa International’s own regulations a counterfeit card is defined as:-
- “It’s a device or instrument that is printed, embossed or encoded as to purport to be a card, but that is not a card because an issuer did not authorise its printing, embossing or encoding”.
31 Mr Scott-Rogers said in evidence that within Visa International a card printed with a Visa logo and a Visa hologram and other Visa marks, which has not been authorised by Visa International, is considered to be a counterfeit credit card, whether or not it is embossed or encoded.
32 In cross-examination Mr Scott-Rogers said that, if an attempt had been made to use one of the Visa cards which had been seized, the attempt would have been unsuccessful, because there was no embossing or encoding.
33 Mr Scott-Rogers agreed that a definition by MasterCard of a counterfeit MasterCard credit card would also apply (with necessary adaptations) to Visa credit cards, namely:-
“An instrument or a device embossed, printed or otherwise bearing MasterCard marks so as to purport to be a MasterCard issued by a member or affiliate, that is not a MasterCard because the embossing or printing thereof was not authorised or because the MasterCard has been altered or refabricated, even though it was validly issued initially”.
34 Mr Keaney gave evidence about MasterCard credit cards similar to Mr Scott-Rogers’ evidence about Visa credit cards. MasterCard credit cards are produced and issued in a way similar to that in which Visa credit cards are produced and issued. The MasterCard logo consists of two intersecting red and yellow circles with the word “MasterCard”. The MasterCard hologram is an illuminated map of the world.
35 In cross-examination Mr Keaney agreed that exhibit N did not fall within MasterCard’s own definition of a credit card, because “the dictionary defines a credit card as having embossed details on it”.
36 At the close of the Crown case at the trial, counsel for the appellant at the trial made an application for a directed verdict on the grounds that the cards which the appellant had imported were not capable of being found by the jury to be “counterfeit credit cards”, which was an element of the offence charged. Counsel referred to the definitions which had been given in evidence of “credit card” and “counterfeit credit card”. It was conceded that, if the cards which had been imported were capable of being found to be “counterfeit credit cards”, then it was a question of fact for the jury whether the jury should find that the cards were “counterfeit credit cards”.
37 The application for a directed verdict was opposed by the Crown. It was conceded by the Crown that the cards did not fall within the definitions of a “credit card” but it was submitted that the question was whether the cards were capable of being found to be “counterfeit credit cards” and that expression should be interpreted as “one phrase that can’t be separated”, that is into “credit cards” and “counterfeit”. It was submitted that s 233BAB should be given a purposive interpretation and reference was made to s 15AA of the Acts Interpretation Act. It was submitted by the Crown that the cards satisfied the definition of “counterfeit” in the Oxford English Dictionary namely “made in imitation, not genuine, forged; imitate fraudulently; resemble closely”.
38 The trial judge delivered a short judgment, rejecting the application for a directed verdict. Her Honour held:-
“… the word ‘counterfeit’ should not be separately construed or defined from the phrase in total, that is counterfeit credit cards. As a matter of law simply because the cards are not credit cards does not mean they are not counterfeit credit cards, as someone inelegantly expressed”.
39 On this appeal it was common ground that there is no definition of the word “counterfeit” in the Customs Act or in the Commonwealth Criminal Code. Reference was made by both counsel to the definition of “counterfeit money” in s 3 of the Crimes (Currency) Act 1981.
40 It was submitted by counsel for the appellant that, in the absence of a directly applicable statutory definition, recourse could be had to definitions of “counterfeit” in the Macquarie Dictionary and in Butterworths Australian Criminal Law Dictionary, to the definitions of “credit card” and “counterfeit credit card” used by Visa International and MasterCard International, to a number of eighteenth century English cases in which the accused had been charged with counterfeiting coins and to a Victorian single judge decision in a civil case Duranol Co Pty Limited v Glenvern Novelty Sweet Co [1957] VR 542.
41 It was submitted by counsel for the appellant that it was a question of degree whether a non-genuine card sufficiently resembled a genuine credit card as to be capable of being held to be a “counterfeit credit card” and that, while the cards which the appellant had imported were in the process of becoming counterfeit credit cards, they had not yet become counterfeit credit cards, because of the absence of embossments and encoding. In the absence of embossments and encoding, the cards the appellant had imported were not capable of being used as credit cards.
42 It was submitted by the Crown that the appellant’s submissions amounted to saying that a non-genuine card could not be a “counterfeit credit card”, unless it was in a fit state to be uttered or used. It was pointed out that the charge against the appellant was not a charge of uttering.
43 It was submitted by the Crown that the eighteenth century English cases to which counsel for the appellant had referred were of no assistance, because they depended on the terms of the particular legislation creating the offences. Likewise, it was submitted that Duranol was of no assistance.
44 It was submitted by the Crown that the definition of “counterfeit money” in the Crimes (Currency) Act could properly be referred to as being a definition in an earlier statute which was in pari materia with s 233BAB of the Customs Act, which had been inserted in the Customs Act in the year 2000.
45 It was contended by the Crown that a purposive approach should be adopted in interpreting s 233BAB of the Customs Act and that the objects of the section would not be promoted, if the Court were to decline to find that the cards were at least capable of being counterfeit credit cards.
DECISION
An essential element of the offence under s 233BAB of the Customs Act with which the appellant was charged was that the cards he had imported were “counterfeit credit cards”.
46 At the trial the trial judge refused the application by counsel for the appellant at the trial, that she direct a verdict for the appellant on the grounds that the cards which the appellant had imported were not capable of being found by the jury to be “counterfeit credit cards” and the ground of appeal against conviction, as framed, is to the effect that her Honour’s refusal to direct a verdict of not guilty gave rise to a miscarriage of justice.
47 It may be that the question for this Court, the trial having proceeded and the appellant having been found guilty, is whether the verdict of guilty “cannot be supported having regard to the evidence” (see s 6(1) of the Criminal Appeal Act), rather than whether the trial judge erred in not directing a verdict. However, it was common ground on the hearing of the appeal, and I would agree, that, for all practical purposes, the issue to be determined by this Court is the same as that determined by her Honour, that is whether the cards imported by the appellant were capable of being found by the jury to be “counterfeit credit cards”.
48 As was pointed out by both counsel, there is no definition of “counterfeit” or “counterfeit credit cards” in the Customs Act and, in the absence of definitions in the Customs Act, it is appropriate to have recourse to extrinsic materials and principles of statutory interpretation. However, before considering the extrinsic materials and principles of interpretation to which this Court was referred, I will make some general observations.
49 I agree with counsel for the Crown and the trial judge that the expression “counterfeit credit cards” cannot be interpreted, simply by separating the expression into two parts, namely “credit cards” and “counterfeit” and enquiring separately whether the cards imported were “credit cards” and whether they were “counterfeit”. Counterfeit credit cards are not a sub-set of the set consisting of valid credit cards.
50 However, I also agree with counsel for the appellant that cards will not be capable of being “counterfeit credit cards”, unless they have a certain degree of approximation or resemblance to valid credit cards. For example, a blank plastic card, even if of the same size and shape as a credit card, but on which nothing has been printed or embossed, would not be capable of being a counterfeit credit card.
51 I will now turn to a consideration of the extrinsic materials to which the Court was referred.
52 The evidence by Mr Scott-Rogers and Mr Keaney is somewhat ambivalent and would not, in any event, be determinative. According to Mr Scott-Rogers’ evidence, the cards in their present state could not give rise to either of what he described as the two main types of counterfeit credit card transactions. On the other hand, Mr Scott-Rogers said that a card printed, without authorisation by Visa, with the Visa logo and the Visa hologram would be regarded by Visa as a counterfeit credit card, even if it had not been embossed or encoded. Mr Scott-Rogers agreed that the cards would not fall within the MasterCard definition of “credit card”, which he accepted would also apply to Visa credit cards. The cards would not fall within the definition of “credit card”, because the definition of credit card required that there be a cardholder with a credit limit who would subsequently be billed and that the card could be used to purchase goods and services on credit and to obtain cash. Mr Keaney agreed that the cards did not fall within the MasterCard definition of a “credit card”.
53 I do not consider that the eighteenth century English cases on charges of counterfeiting coins, to which we were referred by counsel for the appellant in his written submissions, are of any assistance. As was submitted by the Crown, they would appear to depend on the words of the statutes creating the offences.
54 Nor do I consider that the Victorian case of Duranol is of any assistance. In that case the defendant in a civil case, who had been sued for goods sold and delivered, raised a defence that the goods, which were plastic tokens, were counterfeit coins within the Crimes Act 1914 (Commonwealth). It was held by Deane J of the Victorian Supreme Court that the word “coin” in the Crimes Act was limited to articles made of metal.
55 The definition of “counterfeit” in the Macquarie Dictionary which might be relevant is the first definition given, namely “made to imitate and to pass for something else; not genuine”. The definition of “counterfeit” given in Butterworths Australian Criminal Law Dictionary at page 51 is “an imitation that is passed as the original item”. These dictionary definitions would tend to lend some support to the appellant.
56 As noted earlier in this judgment, the Crown sought to rely on the definition of “counterfeit money” in s 3 of the Crimes (Currency) Act 1981 (Commonwealth), as being a definition of an expression including the word “counterfeit” in a statute which was in pari materia with s 233BAB of the Customs Act.
57 The definition of “counterfeit money” in the Crimes (Currency) Act is:-
- “(a) any article, not being a genuine coin or genuine paper money, that resembles, or is apparently intended to resemble, or pass for, a genuine coin or genuine paper money; or
- (b) any article, being a genuine coin or genuine paper money, that has been altered in a material respect and in such manner as to conceal, or to be apparently intended to conceal the alteration;
- and includes any such article whether it is or is not in a fit state to be uttered and whether the process of manufacture or alteration is or is not complete”.
58 It seems to me that the inclusion in the definition of the final words, that an article is included whether or not it is in a fit state to be uttered and whether the process of manufacture is or is not complete, when such words do not appear in the Customs Act, tends to support the appellant rather than the Crown.
59 The Crown submitted that s 233BAB of the Customs Act should be given a purposive interpretation and referred to s 15AA of the Acts Interpretation Act. I accept that in recent years courts have adopted a much more purposive approach to the interpretation of statutes, including criminal statutes. See Pearce and Geddes, Statutory Interpretation in Australia (5th Ed) at pars 9.8-9.15 and the cases there cited. In Beckwirth v R (1976) 12 ALR 333 at 339 Gibbs J said:-
“The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences … The rule is perhaps one of last resort”.
60 In the present case, the trial judge having declined to direct a verdict of not guilty, the jury found a verdict of guilty and must have concluded that the cards imported by the appellant were “counterfeit credit cards”. However, in the summing-up the question which the trial judge identified as the question for the jury to decide on this aspect of the case was “whether in fact they (the cards) were imitations, counterfeit, not genuine credit cards”. Stating the question the jury had to decide in this way would have tended to focus the jury’s attention on whether the cards were “imitations, counterfeit, not genuine”, to which there could be only one answer, rather than on whether the cards had a sufficient degree of resemblance or approximation to credit cards.
61 As I have already remarked, the question which the Court has to determine is a question of degree and I do not consider that the Court should attempt to lay down any general tests on when a card which, without authorisation, has some characteristics of a credit card attains such a degree of approximation or resemblance to a credit card as to be capable of being a “counterfeit credit card”.
62 In the present case, where there had been no embossing of a cardholder’s name on the card, no embossing of a period during which the card would be valid on the card, no embossing of any number on the card, no encoding of any personal information in the magnetic stripe on the back of the card and the card could not be used to pay for goods or services or to withdraw cash, I consider that the cards imported by the appellant were not capable of being found to be “counterfeit credit cards”. In my opinion, such a conclusion is assisted by the dictionary definitions of “counterfeit”, the absence of any extended definition, or any definition, of “counterfeit” in the Customs Act and the degree of caution which I consider courts still exercise in holding that statutes creating offences apply to conduct not clearly within their terms.
63 I would allow the appeal, quash the verdict of guilty and direct entry of a verdict of acquittal. If the appeal against conviction is allowed, it is unnecessary to deal with the appeal against sentence.
64 HALL J: I agree with James J.
0