The High Court of Windhoek, Main Division

THE HIGH COURT OF WINDHOEK, MAIN DIVISION

JUDGMENT

REPORTABLE

CASE NO.: CC 28/2009

In the matter between:

THE STATE

versus

AMIRTHALINGAM PUGALNANTHY ACCUSED 1

SATHEESKUMAR THULASITHAS ACCUSED 2

PARARASASINGAM SARANGAN ACCUSED 3

TRAVOLTA MEKAUNDAPI TJUIJI ACCUSED 4

ABDUL KADER S/O JAMAL MOHAMED ACCUSED 5

ANTHONY SURESH KUMAR STANIS ACCUSED 6

Neutral citation: S v Pugalnanthy (CC 28/2009) [2014]NAHCMD 130 (7 April 2014)

CORAM: SIBOLEKA J

Heard on: 28 February 2011; 02, 03, 04, 07, 08, 09, 10, 11, 14, 15, 16, 17, 18

31 March 2011; 1, 2, 5, 6, 7, 8, 9, 12, 14, 15 December 2011;

16, 17, 18, 19, 20, 23, 24, 25, 26, 27, 30, 31 January 2012;

1, 2, 3 February 2012; 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 22, 23,

24, 25, 30 October 2012; 19 August 2013; 1, 4, 5 November

2013

Delivered on: 07 April 2014

JUDGMENT: SIBOLEKAJ

[1] Accused no. 1 was on bail and has absconded before the commencement of this trial. All accused persons (2 to 6) have pleaded not guilty to the following counts:

COUNT 1:CONTRAVENING SECTION 18(2)(a) OF THE RIOTOUS ASSEMBLIES ACT 17 of 1956 – CONSPIRACY TO COMMIT FRAUD, READ WITH SECTION 84(2) AND 92 OF THE CRIMINAL PROCEDURE ACT 51 OF 1977.

In that from sometime prior to 18 March 2007, the exact date being unknown, to 26 September 2007 and at or near Windhoek in the district of Windhoek and elsewhere the accused unlawfully and intentionally conspired with one another and other persons, unknown to the State to aid or procure the commission of or

to commit the offence of Fraud.

COUNT 2:FRAUD

In that on or about and during the period 19 March 2007 and 7 August 2007 and at or near Windhoek and various other districts within the jurisdiction of the High Court of Namibia, the said accused did wrongfully, unlawfully, falsely and with intent to defraud give out and pretend to Bank Windhoek and/or Standard Bank Namibia and/or First National Bank Namibia and/or Visa International and/or MasterCard International and/or Barclays Bank PLC that –

(i)they were entitled to lawfully access foreign bank accounts to process transactions by means of using Bank Windhoek and/or Standard Bank Namibia and/or First National Bank Namibia facilities and/or cards purportedly issued by the local banks, and/or

(ii)they were entitled to lawfully withdraw cash money to the value of N$4 238,810from such foreign bank accounts,

and did then and there by means of the said false pretences induce the said Bank Windhoek and/or Standard Bank Namibia and/or First National Bank Namibia and/or Visa International and/or Master Card International and/or Barclays Bank PLC to the actual and/or potential loss or prejudice of Bank Windhoek and/or Standard Bank Namibia and/or First National Bank Namibia and/or Visa International and/or Master Card International and/or Barclays Bank PLC and/or it’s Representative/s to

(i)provide the request access to the foreign bank accounts by using Bank Windhoek and/or Standard Bank Namibia and/or First National Bank Namibia facilities and/or cards purportedly issued by the local banks, and/or

(ii)process transactions initiated at aforementioned facilities and/or

(iii)allow the withdrawal and/or attempted withdrawal of cash money to the value of N$4 238,810 from such foreign bank accounts,

Whereas in truth and fact the accused when they so gave out and pretended as aforesaid, well knew that

(i)they were not lawfully entitled to access the foreign bank accounts to process transactions thereon, and/or

(ii)the foreign account holder/s and/or the Banking Institution/s of the account holder/s did not know about or did not instruct or request or authorize such withdrawals, and/or

(iii)the accused were not entitled to withdraw and/or attempt to withdraw cash money to the value of N$4 238,810 from the foreign bank accounts

And thus the accused did commit the crime of Fraud.

ALTERNATIVELY TO COUNT 2:THEFT

steal money and/or attempted to steal money to the total value of N$4 238,810 from the legal owners and/or lawful possessors Bank Windhoek and/or Visa International and/or Master Card International and/or Barclays Bank PLC and/or it’s Representative/s.

COUNTS 3 TO 1033 (AS PER COLUMN A OF SCHEDULE 1): FRAUD

In that on or about the dates mentioned in Column B of Schedule 1 and at or near various districts within the jurisdiction of the High Court of Namibia, the accused did wrongfully, unlawfully, falsely and with intent to defraud misrepresented to Bank Windhoek and/or Standard Bank Namibia and/or the merchants mentioned in Column C of Schedule 1 and/or Visa International and/or Barclays Bank PLC and/or the Representative/s of any of the aforementioned to the actual and/or potential loss or prejudice of Bank Windhoek and/or Standard Bank Namibia and/or Visa International and/or Barclays Bank PLC and/or it’s Representative/s that

(i)they were the lawful holder/s of the debit or credit cards as per card number indicated in Column D of Schedule 1, and/or

(ii)they were entitled to lawfully access the accounts of cardholders as indicated per Column E of Schedule 1 and withdraw or attempt to withdraw money the value of which is indicated in Sterling per Column F of Schedule 1 and in Namibian Dollars as per Column G of Schedule 1.

Whereas in truth and fact the Accused when they so misrepresented well knew that

(i)they were not the lawful holder/s of the debit or credit cards as per card number indicated in Column D of Schedule 1, and/or

(ii)they were not entitled to lawfully access the accounts of cardholders as indicated per Column E of Schedule 1, and/or

(iii)they were not entitled to withdraw or attempt to draw money from said cardholders accounts and/or,

(iv)they were not entitled to money the value of which is Indicated in Sterling per Column F of Schedule 1 and in Namibian Dollars as indicated per Column G of Schedule 1.

Now thus the Accused are guilty of the offence of Fraud.

ALTERNATIVELY TO COUNTS 3 TO 1033 (AS PER COLUMN A OF SCHEDULE 1):THEFT

In that upon or about the dates mentioned in Column B of Schedule 1 and at or near various districts within the jurisdiction of the High Court of Namibia the Accused wrongfully, unlawfully and intentionally stole the amounts mentioned in Column F or G of Schedule 1, the property and/or in the lawful possession of Bank Windhoek and/or Standard Bank Namibia and/or Visa International and/or Barclays Bank PLC and/or it’s Representative/s and/or the Cardholder as per Column E of Schedule 1.

COUNTS 1-34 TO 1507 (AS PER COLUMN A OF SCHEDULE 2): FORGERY, READ WITH SECTIONS 84(2) AND 92 OF THE CRIMINAL PROCEDURE ACT 51 OF 1977

In that on or about 18 March 2007 to 7 August 2007, the exact date being unknown and at or near Windhoek in the district of Windhoek, the accused did unlawfully, falsely and with intent to defraud and to the prejudice or potential prejudice of the Banking Institution and/or Merchant mentioned in Column B of Schedule 2 forge the debit or credit or gift cards by encoding the numbers mentioned in Column C of Schedule 2 on the magnetic strip and/or printing the image and/or colors and/or logos of the Banking Institution and/or Merchant mentioned in Column B on the cards and thus purportedly indicating it to be issued by the Banking Institution and/or Merchant mentioned in Column B of Schedule 2.

COUNT 1508:THEFT

In that between 28 March 2007 and 7 August 2007 at or near Windhoek in the district of Windhoek the Accused unlawfully and intentionally stole a debit card of Riduwon Otto the property and/or in the lawful possession of Riduwon Otto and/or First National Bank Namibia.

ALTERNATIVELY TO COUNT 1508: CONTRAVENING SECTION 8(1) OF ORDINANCE 12 OF 1956 – UNLAWFUL USE OF PROPERTY

In that between 28 March 2007 and 7 August 2007 at or near Windhoek in the district of Windhoek the said accused without a bona fide claim of right and without the consent of First National Bank Namibia and/or Riduwon Otto the owner/s and/or the person/s having control thereof, did wrongfully and unlawfully remove property to wit a debit card from the control of the said Riduwon Otto and/or First National Bank Namibia with the intent to use it for their own purposes without the consent of the owner/s or any other person competent to give such consent.

COUNT 1509: THEFT

In that between 21 March 2007 and 7 August 2007 at or near Windhoek in the district of Windhoek the Accused unlawfully and intentionally stole a Bank Windhoek debit card of Zebedeus Kaikuru Mutenge, the property and/or in the lawful possession of Zebedeus Kaikuru Mutenge and/or Bank Windhoek.

COUNT 1510:THEFT

In that between April 2007 and 7 August 2007 at or near Windhoek in the district of Windhoek the Accused unlawfully and intentionally stole a bank card of F. N. Amutenja, the property and/or in the lawful possession of Feni Ndukuma Amutenja and/or Standard Bank Namibia.

ALTERNATIVELY TO COUNT 1510: CONTRAVENING SECTION 8(1) OF ORDINANCE 12 OF 1956 – UNLAWFUL USE OF PROPERTY

In that between April 2007 and 7 August 2007 and at or near Windhoek in the district of Windhoek the said accused without a bona fide claim of right and without the consent of Standard Bank Namibia and/or Feni Ndukuma Amutenja and/or Standard Bank Namibia with intent to use it for their own purposes without the consent of the owner/s or any other person competent to give such consent.

COUNT 1511:THEFT

In that between April 2007 and September 2007 at or near Windhoek in the district of Windhoek the Accused unlawfully and intentionally stole a bank card of Anelie Ndemushakena Petrus, the property and/or in the lawful possession of Anelie Ndemushakena Petrus and/or Bank Windhoek.

ALTERNATIVELY TO COUNT 1511: CONTRAVENING SECTION 8(1) OF ORDINANCE 12 OF 1956 – UNLAWFUL USE OF PROPERTY

In that between April 2007 and 7 August 2007 and at or near Windhoek in the district of Windhoek the said accused without a bona fide claim of right and without the consent of Bank Windhoek and/or Anelie N. Petrus the owner/s and/or the person/s having control thereof, did wrongfully and unlawfully remove property to wit a bank card from the control of the said Anelie N. Petrus and/or Bank Windhoek with intent to use it for their own purposes without the consent of the owner/s or any other person competent to give such consent.

COUNT 1512: CONTRAVENING REGULATION 2(1) READ WITH REGULATIONS 3(5) AND 22 OF THE EXCHANGE CONTRO REGULATIONS, 1961, AS AMENDED; READ WITH SECTION 9 OF THE CURRENCY AND EXCHANGE ACT NO 9 OF 1933, FURTHER READ WITH THE PROVISIONS OF SECTION 94 OF THE CRIMINAL PROCEDURE ACT, 51 OF 1977 – UNLAWFUL BUYING, BORROWING OF FOREIGN CURRENCY

In that on or about 18 March 2007 to 7 August 2007 at or near Windhoek in the district of Windhoek the accused, acting in concert did wrongfully and unlawfully not being authorized dealers buy or borrow foreign currency, namely U.S. dollars to wit ± U$94 000 from unauthorized dealers and/or without having permission/authority from Treasury.

COUNT 1513:CONTRAVENING SECTION 14(1)(a) READ WITH SECTION 91 OF THE CUSTOMS AND EXCISE ACT 20 OF 1998 – NON-DECLARATION OF GOODS

In that on or about 18 March 2007 at or near Windhoek in the district of Windhoek the accused, acting in concert did wrongfully and unlawfully fail to declare any goods acquired from outside Namibia upon arrival or departure that is to say failed to declare U.S. dollars.

COUNT 1514:CONTRAVENING REGULATION 2(1) READ WITH REGULATIONS 3(5) AND 22 OF THE EXCHANGE CONTROL REGULATIONS, 1961, PROMULGATED BY GOVERNMENT NOTICE R1111

OF 1 DECEMBER 1961, AS AMENDED; READ WITH SECTION 9 OF THE CURRENCY AND EXCHANGE ACT NO. 9 OF 1933, FURTHER READ WITH THE PROVISIONS OF SECTION 94 OF THE CRIMINAL PROCEDURE ACT, 51 OF 1977 – UNLAWFUL BUYING, BORROWING OF FOREIGN CURRENCY

In that on or about 18 March 2007 to 7 August 2007 at or near Windhoek in the district of Windhoek the accused acting in concert did wrongfully and unlawfully not being authorized dealers buy or borrow foreign currency, namely Euros to wit ± 14 000 Euros from unauthorized dealer/s and/or without having permission/authority from Treasury.

COUNT 1515: CONTRAVENING SECTION 14(1)(a) READ WITH SECTION 91 OF THE CUSTOMS AND EXCISE ACT 20 OF 1998 – NON-DECLARATION OF GOODS

In that on or about 18 March 2007 to 7 August 2007 at or near Windhoek in the district of Windhoek the accused acting in concert did wrongfully and unlawfully fail to declare any goods acquired from outside Namibia upon arrival or departure that is to say failed to declare Euros.

COUNT 1516: FORGERY (OF A DRIVER’S LICENSE)

In that on or about 18 March 2007 to 7 August 2007 at or near Windhoek in the district of Windhoek, the accused did unlawfully and with the intent to defraud and to the prejudice or potential prejudice of Anne-Marie Cornelissen and/or Na-

tis and/or Ministry of Works and Transport and/or Government of Namibia forge a driver’s license for T. Tjuiju.

“______

SUMMARY OF SUBSTANTIAL FACTS IN TERMS OF SECTION 144(3)(a) OF THE CRIMINAL PROSEDURE ACT NO 51 OF 1977

______

Accused 1, 2, 3, 5 and 6 are foreigners indicated on their passports as being Sri-Lankan, British, Sri-Lankan, Singaporean and Sri-Lankan citizens respectively.

Accused 4 is a Namibian citizen.

Accused 1, 2, 3, 5 and 6 entered and exited Namibia via Hosea Kutako Airport according to information in their respective passports during the period 18 March 2007 to 14 August 2007 on diverse occasions.

Upon some local banks like Bank Windhoek (BWHK) and Standard Bank Namibia (Std Bank) retrieving cards from their Automatic Teller Machines (ATM’s) which appeared to be counterfeit cards an investigation was launched.

In the early morning hours of the morning of 07 August 2007 Accused 1 and 3 were apprehended at a shopping centre at Katutura after withdrawing money at ATM’s of Bank Windhoek. Accused 2 was arrested soon thereafter when he came to pick-up Accused 1 and 3. The three accused were arrested with numerous counterfeit bank cards and large amounts of money inter alia Namibian Dollars, US Dollars and Euros in their possession.

At the Napwu Guesthouse in Suiderhof where the accused were residing more money were found inter alia U$82,850. Here were also found inter alia a dual sided colour PVC card-printer with cards in the slot of the machine which were printed on the one-side with the Bank Windhoek colors and logo and on the other side these cards were still white. Furthermore 4 boxes with white plastic cards, an Magnetic stripe reader/recorder, label printers, a laptop, software for printing cards, numerous cell-phones, printed lists with card numbers and possible pin numbers and more counterfeit cards were among the items found at the guesthouse. The total amount of cash found with the first three accused were the equivalent of about N$920 000.

At the guesthouse was also found photo’s of a Herero speaking man and an invitation letter in the name of Travoltha Tjiuiju. This led to the apprehension of Accused 4 also on the morning of 07 August 2007. In his possession was found N$9000. Subsequently a scanned image of the driver’s license of Accused 4 was inter alia discovered on the laptop found at the guesthouse. Some information on said driver’s license was altered.

A call and message to the cell phones of the accused in custody, still on the morning of 07 August 2007, led to the apprehension of Accused 5 at Hosea Kutako Airport. Part of his luggage was found to be a Note counter and two Note verifier devices.

Accused 6 was arrested on 26 September 2007. His visa application to visit Namibia was supported by an invitation letter in the name of Accused 4 and from his passport it was apparent that he was previously in Namibia from 24 May to 4 July 2007. Two laptops and a Lexar USB 4 G were inter alia found in possession of Accused 6.

Through liaison with Visa International and Barclays Bank PLC the cardholders of some

of these foreign accounts from which money were withdrawn by the accused or from which they attempted to withdraw money were identified as customers of Barclays Bank PLC in the United Kingdom.

In relation to the withdrawals that the accused were successful money was paid out at the ATM’s at various places throughout Namibia in Namibian Dollars, while and equivalent amount in Sterling was subtracted from the relevant card holders accounts.

A spreadsheet generated by Barclaycard Fraud team indicates that from the accounts of approximately 280 different customers were withdrawn in Namibia a total of approximately 110,000 Sterling which is an equivalent of ± 1.5 million Namibian Dollars as from 29 May 2007 to 6 August 2007.

Another report prepared by Bank Windhoek in relation to withdrawals made only at ATM’s of Bank Windhoek found the successful withdrawals as being N$1 467,340 and the unsuccessful withdrawals as being N$2 771,470; thus bringing the total to N$4 238,810.

According to an official of Barclays Bank PLC the withdrawals in Namibia from accounts of their customers were unauthorized and fraudulent, resulting in the blocking of the card numbers, issuing the customers with new card numbers and reimbursing the customers for their financial losses.

The approximately 474 cards found in possession of the accused are counterfeit cards inter alia because of the following features. The counterfeit Bank Windhoek and First

National Bank cards, differ in color from original cards, though it bears the Bank Windhoek or First National Bank logo and emblem. On the front of numerous cards the same information appeared eg. for cardholder name and/or card number. On the magnetic strip was found encoded, though the information of foreign banks. Another distinguishing feature of these cards of these cards was that it was a label, on which numbers were printed, sticked on the front of it.

Some foreign bank cards found in possession of the accused was eg. Capital one, Maybankard, Monument, HDFC Bank – cards. The same bank cards also had similarities in relation to the card holders name and/or card number.

Several different types of gift cards, eg Next, Debenhams, TK Maxx, Orange Top up, etc were found with the accused which also had the information of foreign banks encoded on their magnetic strips.

Scanned images and/or photocopies of the front and/or back of an original Bank Windhoek card of A. N. Petrus and Z. K. Mutenge; an original Standard Bank card of F.N. Amutenja and an original First National Bank card of Riduwon Otto was found in possession of the accused.

The Namibian Dollars withdrawn by the accused was exchanged for US Dollars and Euros with people other than authorized dealers and the accused also did not declare their possession of any foreign currency upon entry into Namibia.

All of the accused acted in the execution of a common purpose to commit the crimes alleged.”

[1.1]In terms of Section 220 of the Criminal Procedure Act, Act 51 of 1977 as

amended, accused 2, 3, and 6 represented by Mr Sisa Namandje and accused 4 and 5 represented by Mr Uirab formally admitted the contents of statements made by the following 24 British Card holders: