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Wrong swipe does not pay

“Supreme Court ruled that the possession and use of a counterfeit credit card is considered access device fraud and is punishable by law.

Dean Nilo Divina

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Payment by the swiping of credit or debit cards or through other electronic means has changed the way we view money and how we go about our daily transactions. This convenient manner of making purchases, however, may be prone to abuse by cybercriminals employing creative methods to access sensitive personal data, to clone or skim electronic and access devices, and commit financial fraud. These fraudulent activities result in losses to merchants and massive headaches for the innocent account owners.

In the Philippines, Republic Act 8484 or the Access Devices Regulation Act of 1998 was enacted in 1998 to protect the rights and define the liabilities of parties in commercial transactions using access devices, by regulating the issuance and use of access devices which include any card, plate, code, account number, electronic serial number, personal identification number, or other telecommunications service, equipment, identifier, or other means of account access that can be used to obtain money, good, services, or any other thing of value, or to initiate a transfer of funds (other than a transfer originated solely by paper instrument).

Indubitably, credit and debit cards are access devices covered by RA 8484.

The law prohibits what is called “device fraud,” such as producing, using, trafficking in one or more counterfeit access devices; using, with intent to defraud, an unauthorized access device; using an access device fraudulently applied for; possessing one or more counterfeit access devices or access devices fraudulently applied for; obtaining money or anything of value through the use of an access device, with intent to defraud or with intent to gain and fleeing thereafter; or having in one’s possession, without authority from the owner of the access device or the access device company, an access device.

In Cruz vs People (GR 210266, 7 June 2017), petitioner Cruz was found in possession of a Citibank credit card which bore the name “Gerry Santos.” He used the same credit card to purchase Ferragamo shoes worth hundreds of dollars at a duty free store, but the credit card number indicated in the card was later proven to be a counterfeit access device through a certification from Citibank that the access device used was counterfeit.

The Supreme Court ruled that the possession and use of a counterfeit credit card is considered access device fraud and is punishable by law. To successfully sustain a conviction for possession and use of a counterfeit access device, the prosecution must present not only the access device but also any evidence that proves that the access device is counterfeit.

In another case, Cristobal vs People (GR 184274, 23 February 2011), petitioner obtained complainant Henry Yu’s personal information and ID cards by posing as a credit card agent who can assist Yu in obtaining loan assistance at a low interest rate. The latter submitted various documents, including his identification cards and statements of accounts. Later on, it was learned that petitioner had used the documents to apply for a Metrobank credit card under Yu’s name. In an entrapment operation, a law enforcement agent posed as delivery staff for the Metrobank credit card. Petitioner received the parcel and signed under the guise of being Yu.

In appealing his conviction for violating Section 9 (e) of RA 8484, for possessing one or more counterfeit access devices or access devices fraudulently applied for, petitioner averred that he was never in possession of the subject credit card because he was arrested immediately after signing the acknowledgement receipt. Thus, he did not yet know the contents of the envelope delivered and had no control over the subject credit card.

The Supreme Court ruled that although RA 8484 does not define the word “possession,” it should be used as defined in Article 523 of the Civil Code, that is, “possession is the holding of a thing or the enjoyment of a right.” The acquisition of possession involves two elements: the corpus or the material holding of the thing, and the animus possidendi or the intent to possess it. Prior to the commission of the crime, petitioner fraudulently obtained from private complainant various documents which he used to fraudulently apply for a credit card under the name and personal circumstances of private complainant. Petitioner materially held the envelope containing the credit card with the intent to possess, as he in fact signed his receipt thereof.

The above narration shows that he, in fact, did an active part in acquiring possession by presenting the identification cards purportedly showing his identity as Yu. Undoubtedly, petitioner knew that the envelope contained the Metrobank credit card, as clearly indicated in the acknowledgment receipt, coupled with the fact that he applied for it using the identity of private complainant.

Email: cabdo@divinalaw.com

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