Enactment

ENACTED by the Parliament of Trinidad and Tobago as follows:

Short title

            1.         This Act may be cited as the Electronic Transfer of Funds Crime Act, 1999.

Interpretation

Act No. 18 of 1993

2.                  In this Act -

"authorised manufacturer" means a financial institution which or any other person who is authorised under any written law to produce a card;

“bank card” means any instrument, token, device, or card, whether known as a  bank service card, banking card, check guarantee card, or debit card or by any other similar name, issued with or without a fee by an issuer  for the use of the cardholder in obtaining goods, services, or anything else of value  or for use in an automated banking device to obtain money or any of the services offered through the device;

“card” means a bank card,  credit card, or smart card;

“cardholder” means the person named on the face of a bank card, credit card or a smart card to whom or for whose benefit such a  card is issued by an issuer;

“card-making equipment” means any equipment, machine, plate, mechanism, impression, or any other device designed, used, or capable of being used to produce a card, a counterfeit  card, or any aspect or component of a card;

“counterfeit card” means a bank card, credit card  or a smart card which is fictitious, altered, or forged and includes any facsimile or false representation, depiction, or component of such a card, or any such card  which is stolen, obtained as part of a scheme to defraud, or otherwise unlawfully obtained, and which may or may not be embossed with account information or an issuer’s information;

“credit” includes  a cash loan, or any other financial accommodation;

“credit card” means any instrument, token, device, or card, whether known as a charge card or by any other similar name, issued with or without a fee by an issuer for the use of the cardholder in obtaining goods, services, or anything else of value on credit from a creditor or for use in an automated banking device to obtain money or any of the services offered through the device;

“creditor” means a person or company that agrees or is authorised by an issuer to supply goods,  services, or anything else of value and to accept payment  by use of a bank card, credit card, or smart card for the supply of such, goods, services or anything else of value  to the cardholder;

 “expired card” means a card which is no longer valid because the term shown on it has expired;

“financial institution” means a company as defined under section 2 of the Financial Institutions Act, 1993;

“issuer” includes a financial institution which or any other person who issues a card;

“receives” or “receiving” means acquiring possession, title or control or accepting a card as security for  credit;

“revoked card” means a card which is no longer valid because permission to use it has been suspended or terminated by the issuer, whether on its own or on the request of the cardholder;

 “smart card” means any instrument, token, device, or card, or whether known by any other similar name,  and encoded with a stated money value and issued with or without a fee by an issuer for use of the cardholder in obtaining goods, services, or anything else of value, except money;

“traffic” means to sell, transfer, distribute, dispense, or otherwise dispose of  property or to buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of such property.

False statement

            3.         A person who makes or causes to be made, either directly or indirectly, any false statement as to a material fact in writing, knowing it to be false and with intent that it be relied on respecting his identity or that of any  other person or his financial condition or that of any other person for the purpose of procuring the issuance of a  card to himself or another person commits an offence and is liable on summary conviction to a fine of thirty thousand dollars.

Theft by taking or retaining possession of  card

            4.(1)     A person who takes a  card from the possession, custody or control of -

(a)        the cardholder ; or

(b)        a person  holding or having possession of the card with the consent of the cardholder,

without the cardholder’s or the person's consent or who, with knowledge that it has been so taken, receives the  card with intent to use,  sell,  or to transfer it to a person other than the issuer or the cardholder commits an offence and is liable on –

(i)         summary conviction to a fine of thirty thousand dollars and to imprisonment for two years; or

(ii)        conviction on indictment to a fine of fifty thousand dollars and to imprisonment for five years.

            (2)        For the purposes of this section, taking a card without consent includes obtaining it by any conduct defined or known as larceny or common-law theft, or by obtaining property by false pretence, or by extortion.

Card theft

            5.         A person who receives a card that he knows or ought to reasonably know to have been lost, mislaid, or delivered under a mistake as to the identity or address of the cardholder and who retains possession with intent to use,  sell,  or to traffic it to a person other than the issuer or the cardholder commits an offence and is liable on summary conviction to a fine of twenty thousand dollars.

Dealing in  card of another

            6.         A person, other than the issuer, who receives and retains possession of two or more cards issued in the name or names of different cardholders, which cards he has knowledge were taken or retained under circumstances which constitute a card theft commits an offence and is liable on summary conviction to a fine of twenty thousand dollars.

Purchase or sale of card of another

            7.         A person other than an issuer who sells a card or a person who buys a card from a person other than an issuer commits an offence and is liable on summary conviction to a fine of twenty thousand dollars.

Obtaining control of  card as security for debt

            8.         A person who, with intent to defraud the issuer,  a creditor, or any other person,  obtains control over a  card as security for a debt commits an offence and is liable on summary conviction to a fine of twenty thousand dollars.

Card forgery

            9.(1)     A person who, with intent to defraud an issuer, a creditor, or any other person, falsely makes, embosses, or alters in any manner a  card or utters such a card or who, with intent to defraud, has a counterfeit card or any invoice, voucher, sales draft, or other representation or manifestation of a counterfeit card in his possession, custody, or control commits an offence and is liable on –

(a)      summary conviction to a fine of thirty thousand dollars and to imprisonment for two years; or

(b)      conviction on indictment to a fine of fifty thousand dollars and to imprisonment for five years.

            (2)        A person, other than an authorised manufacturer or issuer, who possesses a counterfeit card is presumed to have the intent to defraud as required under subsection (1).

            (3)        A person falsely makes a  card when he makes or draws in whole or in part a device or instrument which purports to be the card of a named issuer but which is not such a card because the issuer did not authorise the making or drawing, or when he alters a  card which was validly issued.

            (4)        A person falsely embosses a  card when, without the authorisation of the named issuer, he completes a  card by adding any of the matter, including the signature of the cardholder, which an issuer requires to appear on the card before it can be used by a cardholder.

Signing a card of another

            10.       A person, other than the cardholder or a person authorised by him, who, with intent to defraud the issuer or a creditor, signs a card commits an offence and is liable on summary conviction to a fine of twenty thousand dollars and to imprisonment for three years.

Fraudulent use of a  card

            11.       A person who, with intent to defraud an issuer or a creditor, uses, for the purpose of obtaining money, goods, services, or anything else of value, a  card obtained or retained fraudulently or a card which he knows is forged, or who obtains money, goods, services, or anything else of value by representing, without the consent or authorisation of the cardholder, that he is the holder of a specified card, or by representing that he is the holder of a card and such card has not in fact been validly issued, commits an offence and is liable on -

(a)      summary conviction to a fine of thirty thousand dollars and to imprisonment for two years; or

(b)      conviction on indictment to a fine of fifty thousand dollars and to imprisonment for five years.

Fraud by person authorised to provide goods, services, etc.

            12.(1)   A creditor who, with intent to defraud the issuer  or the cardholder, furnishes  goods, services, or anything else of value upon presentation of a  card which he  knows is obtained or retained fraudulently or illegally or a card which he knows is forged, expired, or revoked commits an offence and is liable on –

(a)      summary conviction to a fine of thirty thousand dollars and to imprisonment for two years; or

(b)      conviction on indictment to a fine of fifty thousand dollars and to imprisonment for five years.

            (2)        A creditor who, with intent to defraud the issuer,  or the cardholder, fails to furnish goods, services, or anything else of value which he represents in writing to the issuer or the cardholder that he has furnished commits an offence and is liable on summary conviction to a fine of thirty thousand dollars and to imprisonment for two years.

            (3)        A person who is authorised by a creditor to furnish goods, services, or anything else of value upon presentation of a card or a  card account number by a cardholder, or any agent or employee of such person, who, with intent to defraud the issuer, or the cardholder, presents to the issuer or the cardholder, for payment, a card transaction record of sale, which sale was not made by such person or his agent or employee, commits an offence and is liable on summary conviction to a fine of thirty thousand dollars and to imprisonment for two years.

            (4)        A person who, without the creditor’s  authorisation, employs, solicits, or otherwise causes a person who is authorised by the creditor to furnish goods, services, or anything else of value upon presentation of a card account number by a cardholder, or employs, solicits, or otherwise causes an agent or employee of such authorised person, to remit to the creditor  a  card transaction record of a sale that was not made by such authorised person or his agent or employee commits an offence and is liable on summary conviction to a fine of thirty thousand dollars and to imprisonment for two years.

Receipt of money etc. obtained by fraudulent use of  cards

            13.       A person who receives money, goods, services, or anything else of value obtained in breach of section 13, knowing or believing that it was so obtained commits an offence and is liable on summary conviction to a fine of thirty thousand dollars and to imprisonment for two years.

Defences not available

            14.       It shall not be a defence to a prosecution for an offence under this Act that a card that is not a counterfeit card is offered for use or sale as a counterfeit card, and a person, other than the defendant who has breached this Act has not been convicted, arrested, or identified.

Obtaining goods etc. by use of false, expired or revoked  card

            15.(1)   A person who, with knowledge, unlawfully obtains credit or purchases any goods, services or anything else of value by the use of any false, fictitious, counterfeit or expired card, card number or other credit device, or by the use of any card, card number, or other credit device of another person without the authority of that other person to whom such card, number or device was issued, or by the use of any  card, card number, or other credit device in any case where such card, number or device has been revoked and notice of the revocation has been given to the person to whom it was issued commits an offence and is liable on –

(a)      summary conviction to a fine of thirty thousand dollars and to imprisonment for two years; or

(b)      conviction on indictment to a fine of fifty thousand dollars and to imprisonment for five years.

            (2)        For the purpose of this section, knowledge of revocation shall be presumed to have been received by a cardholder seven working days after such notice has been sent to him by post at his last know address.

Trafficking in counterfeit cards

            16.(1)   A person who is found in possession of three or more counterfeit cards, invoices, vouchers, sales drafts, or other representations or manifestations of counterfeit cards, or card account numbers of another person is deemed to have the same for the purpose of trafficking, unless the contrary is proved, the burden of proof being on the accused.

            (2)        A person  who commits the offence of trafficking under subsection (1) is liable on summary conviction to a fine of fifty thousand dollars and to imprisonment for five years.

Possession of card- making equipment

            17.       A person who receives, possesses, transfers, buys, sells, controls, or has custody of any card-making equipment with intent that such equipment be used in the manufacture of counterfeit cards commits an offence and is liable on summary conviction to a fine of fifty thousand dollars and to imprisonment for five years.

Alteration of card invoice

            18.       A person who, with intent to defraud another person, falsely alters any invoice for money, goods, services, or anything else of value obtained by use of a  card after that invoice has been signed by the cardholder or a person authorised by him commits an offence and is liable on summary conviction to a fine of thirty thousand dollars and to imprisonment for two years.

Liability for misuse of card

            19.(1)   A cardholder shall not be liable to the issuer for any loss arising from use of the card by another person not acting, or to be treated as acting, as the cardholder's agent.

            (2)        Subsection (1) does not prevent the cardholder from being made liable to the extent of five hundred dollars for loss to the issuer arising from use of the card by another person during a period beginning when the card ceases to be in the possession of any authorised person and ending when the card is once more in the possession of an authorised person.

            (3)        Subsection (1) does not prevent the cardholder from being made liable to any extent for loss to the issuer from use of the card by a person who acquired possession of it with the cardholder's consent.

            (4)        Subsections (2) and (3) shall not apply to any use of the card after the issuer has been given oral or written notice that the card is lost, stolen, or is for any other reason liable to misuse.

            (5)        Subsections (2) and (3) shall not apply unless the issuer provides the cardholder with particulars of the name, address and telephone number of a person stated to be the person to whom notice is to be given under subsection (4).

            (6)        Notice under subsection (4) takes effect when received, but where it is given orally, it shall be treated as not taking effect if not confirmed in writing within five working days.

            (7)        Any  sum paid by the cardholder for the issue of the card, to the extent, if any, that it has not been previously offset by use made of the card, shall be treated as paid towards satisfaction of any liability under subsection (2) or (3).

            (8)        The cardholder, issuer any person authorised by the cardholder to use the card shall be authorised persons for the purpose of subsection (2).

Card lists prohibited

            20.(1)   Subject to subsection (2), a financial institution shall not make available, lend, donate, or sell any list or portion of a list of any  cardholders  and their addresses and account numbers to any third party without the prior written permission of the cardholder.

            (2)        A financial institution may make available to another financial institution, which seeks to determine only the cardholder’s  credit rating, any list or portion of a list of any  cardholders and their addresses without the permission of the cardholder but must, within seven working days, give written notice of the disclosure to the cardholder.

            (3)        A financial institution which breaches subsection (1) commits an offence and is liable on summary conviction to a fine of fifty thousand dollars.