Although the use of false bank card at ATMs is not fraud, it is certainly falsification and a misuse of data and software. This was held in a judgement delivered on 10 July 2018 by Magistrate Claire Stafrace Zammit in Il-Pulizija -v- Silviu Mirica.
Mirica was accused of forming part of a criminal association, fraud, falsification and took possession of data, software without the proper authorisation and of hacking.
The background concerns an organisation which cloned credit cards in order for them to withdraw cash from ATM machines. These persons were taking money directly from personal accounts of individuals who banked with Bank of Valletta. Mirica was defrauding the bank of over €5,000.
Magistrate Stafrace Zammit held that the charges of the accused having criminal association with others in order to commit this crime had not been proven by the prosecution. The accused admitted that he had bought these false cards from others, but there was no evidence for example of transactions having taken place between the criminal organisation or else an exchange of messages.
Article 83A of the Criminal Code reads:
“(1) Any person who –
(a) promotes, constitutes, organises or finances an organization with a view to commit criminal offences liable to the punishment of imprisonment for a term of four years or more; or
(b) knowing or having reasonable cause to suspect the aim or general activity of the organization set up for the purpose mentioned in paragraph (a), actively takes part in the organisation’s criminal activities, including but not limited to the provision of information or material means or the recruitment of new members, shall be guilty of an offence and shall liable, on conviction, to the punishment of imprisonment for a term from four to nine years.”
From this article of law, the Maltese Court have jurisdiction over those organisations that have been established in Malta or abroad, but the prosecution failed beyond reasonable doubt that the accused formed part of any organisation.
As regard to the fraud charges, the Maltese Courts have established three elements.
The first being that everyone can be subject to this crime, the second that the crime safeguards the public interest to avoid deceit, and the third is that fraud is committed by using means contrary to law, deceit which instils hope or fear, and which is aimed at profiting from others.
Therefore, the offence of fraud must impress the ordinary prudential person. The court backed this by quoting judgement as for Reg -v- Francesco Cachia et of 3 January 1896, which held that fraud must not only employ lies but also deceit and simulation and must be accompanied by an act intended to make the subject believe the story being told. Another judgement quoted is Pulizija -v- Charles Zarb decided by the Court of Criminal Appeal on 22 February 1993.
The Court concluded that in this particular case these elements did not exist and therefore, fraud cannot be found in these circumstances.
This is not the case in the other charges. The accused admitted to purchasing the cards illegally and using them in various ATMs. He was found guilty of these other charges and the Court commented what the accused did could have a catastrophic effect on the banks. As a result, he was awarded to 22 months’ imprisonment.
Av Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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