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Court of Criminal Appeal 10 May 2006

Pulinggam v Regina (Commonwealth)

[2006] NSWCCA 145

Also reported as 162 A Crim R 78
Fraud & dishonesty
CRIMINAL LAW CONVICTION APPEAL

Citation: Pulinggam v Regina (Commonwealth) [2006] NSWCCA 145
Court: NSW Court of Criminal Appeal
Date: 10 May 2006
Judge(s): McClellan CJ at CL; James J; Hall J

Background

The appellant, a Malaysian citizen, arrived at Sydney Airport in June 2004 carrying 2,250 plastic cards concealed beneath adhesive "visitor pass" labels in his luggage. When Customs officers removed the labels, the underlying cards displayed visual features associated with legitimate credit cards, including Visa and MasterCard logos, holograms, and artwork copied from genuine cards.

The appellant was charged under the Customs Act (Commonwealth) with intentionally importing prohibited goods, specifically "counterfeit credit, debit and charge cards," which the relevant regulations designated as "tier 2 goods." He was convicted after a District Court jury trial before Judge Hock and sentenced to six years' imprisonment with a non-parole period of three years and eight months.

The sole ground of the conviction appeal was that the trial judge should have directed the jury to return a verdict of not guilty, because the cards did not meet the legal threshold of "counterfeit credit cards." None of the cards had been embossed with a cardholder name, card number, or validity period, and none had encoded personal information on a magnetic stripe. As such, the cards could not be used to pay for goods, withdraw cash, or be processed by an electronic reader.

  • Whether the cards imported by the appellant were capable, as a matter of law, of being found by a jury to constitute "counterfeit credit cards" within the meaning of the Customs (Prohibited Imports) Regulations 1956 and the Customs Act 1901 (Commonwealth).
  • Whether the trial judge erred in declining to direct a verdict of acquittal.

Decision

The Court of Criminal Appeal unanimously allowed the appeal. The central question was one of degree: at what point does a card bearing some characteristics of a credit card attain sufficient resemblance to a genuine credit card to qualify as a "counterfeit" one?

James J, with whom Hall J agreed, reasoned that the creation of a valid credit card involves two distinct stages: production of the physical card with artwork and branding, followed by embossing and encoding with the cardholder's personal information. Only after the second stage is the card capable of being used to make payments or withdrawals, or of being passed off as genuine. The cards in this case had undergone only the first stage.

McClellan CJ at CL added that the dictionary meaning of "counterfeit" requires the item to be capable of being passed as the original. He drew a further analogy with the statutory treatment of "counterfeit money" under Commonwealth legislation, which expressly extended that definition to include incomplete or non-utterable currency. The absence of any equivalent extension in the definition of "counterfeit credit card" pointed against treating incomplete, non-functional cards as falling within the offence provision.

James J also noted that the trial judge's summing-up had directed the jury to ask simply whether the cards were "imitations, counterfeit, not genuine," which framed the question in a way that all but compelled a finding of guilt, without requiring the jury to assess the degree of approximation to a real credit card. The Court held that, given the absence of embossing, encoding, and any functional capacity, the cards were not capable of being found to be counterfeit credit cards, and a verdict of not guilty should have been directed.

Orders Made

  • Appeal allowed.
  • Verdict of guilty quashed.
  • Verdict of acquittal entered.
  • Appeal against sentence not required to be determined.

Key Takeaways

  • A conviction for importing "counterfeit credit cards" requires that the cards have attained a sufficient degree of resemblance or approximation to genuine credit cards, including the capacity to be used or passed off as genuine.
  • Cards bearing credit card branding and artwork but lacking embossing, card numbers, cardholder names, and magnetic stripe encoding fell short of the legal threshold for "counterfeit credit cards" under the Customs Act framework.
  • Where legislation creates a criminal offence and the language is ambiguous, courts apply a principle of caution and decline to extend the category of offences to conduct not clearly within their terms.
  • The Court of Criminal Appeal confirmed that the question of whether an item is "counterfeit" is a question of degree, and declined to lay down any general test for when a partially completed card crosses that threshold.
  • A trial judge's direction that asks only whether cards are "imitations" or "not genuine" may misdirect a jury by bypassing the more demanding inquiry into functional approximation to the genuine article.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Commonwealth), s 233BAB
- Customs (Prohibited Imports) Regulations 1956, reg 4T
- Crimes (Currency) Act 1981 (Commonwealth)
- Crimes Act 1914 (Commonwealth)
- Commonwealth Criminal Code
- Acts Interpretation Act (Commonwealth)
- Criminal Appeal Act (NSW)

Cases:
- Beckwirth v R (1976) 12 ALR 333
- Duranol Co Pty Limited v Glenvern Novelty Sweet Co [1957] VR 542