Cheating

(1)

CHEATING

by by Dr

Dr. Aspal. Aspalella A. Rahella A. Rahmanman UUM COLGIS

(2)

Cheating



 DeceptionDeception



 Induce delivery or retention of propertyInduce delivery or retention of property



 Do or omit to doDo or omit to do



(3)



 s415 PC- definition cheatings415 PC- definition cheating

Moh

Mohd Irwan bin d Irwan bin Abdullah v PAbdullah v PP P

Cheating can be divided into two parts: Cheating can be divided into two parts:

i.

i. Cheating where, by decCheating where, by deception practised on theeption practised on the victim, the

victim, the accused accused dishonestly dishonestly or or fraudulentlfraudulently y induces tha

induces that person to deliver prt person to deliver property to any personoperty to any person or c

or consent that any person shall onsent that any person shall retain any property;retain any property;

ii.

ii. Where, by Where, by deception deception practised practised upon upon a a victim, thevictim, the accused

accused intentiointentionally induces that person to do nally induces that person to do oror omit to do anything whic

omit to do anything which hh he would not do or e would not do or omitomit to do, if he were not so deceived and which act or to do, if he were not so deceived and which act or omissi

omission causes or is likely to on causes or is likely to cause damacause damage ge or harmor harm to that person

(4)

Mohd Jailani bin Saliman v PP



 The elements of cheating are:The elements of cheating are:

i.

i. Deception of any person;Deception of any person;

ii.

ii. Fraudulently or dishonestly inducing that personFraudulently or dishonestly inducing that person a)

a) to delivto deliver any prer any property to any person, operty to any person, oror b) to consent that any person shall

b) to consent that any person shall retain any retain any property; or

property; or iii.

iii. IntentioIntentionally nally induciinducing that ng that person to person to do do or or omit omit toto do anything wh

do anything which ich he would not do or omit to he would not do or omit to do if do if he were not so deceived, and which act or omission he were not so deceived, and which act or omission cause

causes or is likely to s or is likely to cause damage or harm to thatcause damage or harm to that person o

(5)

Cont’



 s417- Punishment for cheatings417- Punishment for cheating

‘whoever cheats shall be punished with imprisonment ‘whoever cheats shall be punished with imprisonment

for a

for a term which term which may extend to five ymay extend to five years, or with fears, or with fine,ine,

or with

or with botboth.h.’’



 s419- s419- punishment punishment for for cheating cheating by by personationpersonation

‘whoever cheats by personation shall be punished with ‘whoever cheats by personation shall be punished with

imprisonment for a term which may extend to seven imprisonment for a term which may extend to seven

years

(6)

Deception



 There musThere must be t be deception, whedeception, whether or not ther or not suchsuch deception was the sole

deception was the sole or main inor main inducement.ducement.



 TTo constitute an offence there is o constitute an offence there is need need to establishto establish deception practiced by the accused.

deception practiced by the accused.



 There must be evidence of a deception practised uponThere must be evidence of a deception practised upon a person who is thereby induced to part with his

a person who is thereby induced to part with his money.

money.



 ‘dec‘deception’ is not defieption’ is not defined.ned.



 It may be It may be defdefined as causinined as causing to believe what is false, org to believe what is false, or is misle

is misleading as to a matter ading as to a matter of of fact or leading fact or leading intointo error.

(7)

Cont’



 TTo constitute the offence of cho constitute the offence of cheatineating, the deceptiog, the deceptionn must pr

must precede ecede and induce and induce the the delivery delivery or or retention of retention of property.

property.



 Deception may be Deception may be by wby words or ords or conduct.conduct.



 Mohd Mohd Jalani Jalani bin Saliman v bin Saliman v PP PP

‘deception may be by conduct or words. What is ‘deception may be by conduct or words. What is

suff

sufficient to icient to constitute deception is dependanconstitute deception is dependant on thet on the facts of each case.

facts of each case. Deception has an element of Deception has an element of

misleading. It is inducing a person to believe as true misleading. It is inducing a person to believe as true

somethi

(8)

Chow Dih v PP

A

A was was chargcharged wed with ith cheating cheating six six patients patients by by deceideceiving themving them into believin

into believing that they wg that they were suffering from various seriousere suffering from various serious ailments.

ailments. He wHe was convicted and on appeal, as convicted and on appeal, he contendedhe contended that there was no evidence to show that the deception was that there was no evidence to show that the deception was the effective cause for the

the effective cause for the patients to keep returning patients to keep returning to theto the A

A to to recreceiveive tre treatment.eatment.

Held: It is not necessary that the representation made by Held: It is not necessary that the representation made by the accused should

the accused should be the sole cause of tbe the sole cause of the damage he damage or loss.or loss. It is sufficie

It is sufficient if nt if the complainant was partly the complainant was partly and materand materiallyially,, though not entirely

though not entirely, inf, influenced by the false pretence of theluenced by the false pretence of the accused.

accused. 

(9)

Induce delivery or retention of

property



 Deception is only one Deception is only one element of element of the offence the offence of chof cheatingeating and not the only element.

and not the only element.



 There can be no cheating unless by reason of deceptionThere can be no cheating unless by reason of deception the person deceived i

the person deceived is induced s induced to part to part with any property with any property or to

or to do or do or omit to do anything omit to do anything which which he would nhe would not do orot do or omit to do but for the deception.

omit to do but for the deception.



 Under the first part of s415, cheating is committed when,Under the first part of s415, cheating is committed when, the person deceiving by reason of

the person deceiving by reason of the deceptionthe deception



 Fraudulently or dishonestly induces tFraudulently or dishonestly induces the person so deceivedhe person so deceived

to deliver any property to any person, or to consent that any to deliver any property to any person, or to consent that any person retain any property.

(10)



 InIn Pasupathy Kanagasaby v PP Pasupathy Kanagasaby v PP the Court of Appealthe Court of Appeal accepted

accepted that that under under the the fifirst rst part part of section of section 415, 415, thethe moment a person is deceived and by the practice of moment a person is deceived and by the practice of such deception a property is fraudulently or such deception a property is fraudulently or dishonestly obtained from him, then the offence of dishonestly obtained from him, then the offence of cheating is committed.

cheating is committed.



 Under the first part of section 415, the inducing mustUnder the first part of section 415, the inducing must be fraudulent or dishonest.

be fraudulent or dishonest. Ratanlal Ratanlal states thatstates that

‘fraudulently’

‘fraudulently’ is defined in section 25 as follows:is defined in section 25 as follows:

‘‘A A person is said to do a thing fraudulently if he doesperson is said to do a thing fraudulently if he does that thing with inte

(11)



 ‘Dishonestly’ is defined in section 24 of the Penal Code‘Dishonestly’ is defined in section 24 of the Penal Code in the following manner:

in the following manner:

‘Whoever does an

‘Whoever does anything with the ything with the intention of causingintention of causing

wrong

wrongful gain ful gain to to the the person, person, or or wronwrongful loss gful loss to to anotheranother person,

person, irrespective of whether the act irrespective of whether the act causes actualcauses actual wrong

wrongful loss ful loss or or gain, is gain, is said tsaid to o do do that that thingthing

‘dishonestly’. ‘dishonestly’.



 HowHoweverever, secti, section 415 doeon 415 does not require thas not require that both ft both fraudraud and dish

and dishonesty to be proved, one onesty to be proved, one or the other isor the other is suff

sufficient but there must be indicient but there must be inducement ucement of a person toof a person to deliver

deliver property to property to anotheanother r or or to to do do somethsomething whiching which he would not do if

(12)



 PP v Kalpanath SinghPP v Kalpanath Singh expressed the further viewexpressed the further view

that on a plain reading of the section 415, there was no that on a plain reading of the section 415, there was no requirement that the person cheated

requirement that the person cheated must ownmust own

property involv

property involved: ‘aed: ‘any ny property’ suproperty’ suffifficed.ced.



 section 420 PC- cheating and dishonestly inducingsection 420 PC- cheating and dishonestly inducing delivery of

(13)

Loh Liang Gun v PP

The fir

The first appellant was st appellant was a marketing officer of Hong La marketing officer of Hong Leongeong Finance. His duty was to interview hire purchase applicants Finance. His duty was to interview hire purchase applicants to ensure that their particulars in t

to ensure that their particulars in the proposal forms werehe proposal forms were correct. It was

correct. It was alleged that the appellant had alleged that the appellant had by hisby his recommendations on the proposal forms fals

recommendations on the proposal forms falsely representedely represented to H

to Hong Leong Leong Finance that all the particulars produced by ong Finance that all the particulars produced by him had bee

him had been checked and vn checked and veriferified to be true and correct.ied to be true and correct.

Acting on

Acting on the first the first appellant’s appellant’s recommendations recommendations and falseand false

representati

representations, ons, Hong Hong Leong Leong Finance Finance through through its its branchbranch

manager was induced to approve the hire purchase loans to 10 manager was induced to approve the hire purchase loans to 10 persons amounting to RM440,000

(14)

Cont’ Cont’



 The essential ingredients of section The essential ingredients of section 420, for which offenc420, for which offencee that f

that first appellairst appellant was nt was convicted, were convicted, were stated as folstated as follows:lows:



 Hong Leong Hong Leong Finance delivered property (namely the amountFinance delivered property (namely the amount

stated i

stated in the chargn the charges respectively) to another person (here,es respectively) to another person (here, the second appellant);

the second appellant);



 The first appellant induced Hong LThe first appellant induced Hong Leong Finaeong Finance to nce to deliverdeliver

that property to the second appellant; that property to the second appellant;



 Hong Leong Hong Leong Finance actFinance acted upon such inducement ined upon such inducement in

consequence

consequence of the of the first first appellant’s appellant’s deceit;deceit;



 The first appellant acted dishonestly in so inducing HongThe first appellant acted dishonestly in so inducing Hong

Leong

Leong Finance to Finance to part with the property; andpart with the property; and



 Hong LeHong Leong ong Finance suffered damage or harm as a rFinance suffered damage or harm as a result of esult of

the deceit. the deceit.

(15)

PP v Alinsung Geb Urbasik Axel

The first defendant, a German national, went to Brunei to The first defendant, a German national, went to Brunei to look for business opportunities. While in flight, he met the look for business opportunities. While in flight, he met the second defendant, a Pakistani businessman. Later, the second second defendant, a Pakistani businessman. Later, the second defendant asked the first defendant to cash travelers' cheques defendant asked the first defendant to cash travelers' cheques for him in return for which, the second defendant would give for him in return for which, the second defendant would give a certain sum for the cheques cashed. The first defendant a certain sum for the cheques cashed. The first defendant duly cashed the cheques at various banks over a period of duly cashed the cheques at various banks over a period of three days until his arrest. The two defendants faced 23 three days until his arrest. The two defendants faced 23 charges for offences under section 489, 489B and cheating charges for offences under section 489, 489B and cheating under section 420 of the Penal Code. The second defendant under section 420 of the Penal Code. The second defendant absconded. Trial proceeded against the first defendant.

(16)

Cont’

Held: On the charge of cheating that the

prosecution had established that the cashiers of

the various ba

the various banks were

nks were deceived into handing

deceived into handing over

over

cash to the first defendant because they believed

the

the trav

travellers

ellers’ cheques

’ cheques were

were genuine.

genuine. This

This

amounted to deception and by presenting the

travellers' cheques knowing them to be

counterfeit, there was dishonest inducement by

the fi

the first defendant to

rst defendant to another perso

another person that cash

n that cash

should be delivered upon presentation of the

travellers’ cheques and therefore cheating was

established.

(17)

Foo Tiang Kwang v PP

The appellant was charged with cheating a woman by The appellant was charged with cheating a woman by inducing

inducing her to her to part with $300 by falsepart with $300 by falsely pretending he wasly pretending he was in a

in a position to obtain blood position to obtain blood for transfusion to her husband.for transfusion to her husband. Ac

Accused then cused then approapproached ached an Indan Indian ian acqacquaintancuaintance te to o givgivee

blood

blood purportedly to the accused’s relative.purportedly to the accused’s relative.

Held: The

Held: The complainant wcomplainant was not cheated. She as not cheated. She paid to hapaid to have ve aa pint of blo

pint of blood to be administered to her husband and it wasod to be administered to her husband and it was supplied.

(18)

Do or omit to do anything



 The Supreme Court of India inThe Supreme Court of India in Ram Jas v State of UP Ram Jas v State of UP said th

said that the ingredients required to cat the ingredients required to constitute theonstitute the offence of cheating under section 415 were:

offence of cheating under section 415 were:

i. There should be fraudule

i. There should be fraudulent or nt or dishonest indishonest inducement of ducement of a person by dec

a person by deceiving eiving him;him; ii. (a

ii. (a) The person so deceived should b) The person so deceived should be induce to delivere induce to deliver any property to any person, or to consent that any

any property to any person, or to consent that any person shall ret

person shall retain any ain any property; orproperty; or (b) The person so deceiv

(b) The person so deceived should ed should be intentionalbe intentionally ly induced to do or omit to do anything which he would induced to do or omit to do anything which he would not to do or omit if he were not so deceived; and

(19)

iii.

iii. In cases covIn cases covered by (ii)(ered by (ii)(b), the act or b), the act or omission shoulomission should be oned be one which

which causes causes or or is likis likely ely to to cause cause damagdamage e or or harm harm to to the the personperson induces in

induces in bodybody, min, mind, reputatid, reputation or on or property property



 Under the second part of section 415 the inducingUnder the second part of section 415 the inducing must be intentional and, unlike the first part of the must be intentional and, unlike the first part of the section

section involving the delivery of pinvolving the delivery of propertyroperty, the, the

intentional act or omission induced by the deception intentional act or omission induced by the deception in the second p

in the second part must cause damage or harm toart must cause damage or harm to body, mind, reputation or property.

(20)

Cheating by personation



 This is defined This is defined in section 416 as follows:in section 416 as follows:

‘‘A persoA person is said n is said to ‘to ‘cheat by perscheat by personationation’on’, i, if f he cheats by he cheats by

pretending to be some other person,

pretending to be some other person, or by knowingly or by knowingly substit

substituting one person for anotheruting one person for another, or representing that, or representing that he or any other person is a person other than he or such he or any other person is a person other than he or such

person really is.’ person really is.’

(21)



 The explanation to section 416 states that the offence isThe explanation to section 416 states that the offence is committed whether the individual personated is a real committed whether the individual personated is a real or imaginary person.

or imaginary person.



 ‘Personate’ is not defined but to personate means to‘Personate’ is not defined but to personate means to pretend to be a

pretend to be a particuparticular person.lar person.



 R v BorneoR v Borneo

Held: Where a person at Ox

Held: Where a person at Oxford, who was not aford, who was not a member of

member of the Universitythe University, went to a shop for the, went to a shop for the

purpose of

purpose of fraud, wearing a commonerfraud, wearing a commoner’s ’s cap and gown,cap and gown,

and obtai

and obtained goods, this appearined goods, this appearing ing in a n a cap and gowncap and gown was

was a a sufficient cheating sufficient cheating although nothing although nothing passed inpassed in wor

(22)

Dishonoured cheques



 There arThere are difficulties with dishonoured cheques in e difficulties with dishonoured cheques in thethe context

context of of the offence the offence of chof cheating.eating.



 Ratanlal & Dhirajlal Ratanlal & Dhirajlal qouted inqouted in Re DC HenryRe DC Henry stated stated

that the

that the act of drawing a chequact of drawing a cheque for payment of goodse for payment of goods purchased implies at least three statements as to the purchased implies at least three statements as to the state of affairs existing at the time when the cheque is state of affairs existing at the time when the cheque is drawn:

drawn:

1.

1. that the drawer has an account with the bank inthat the drawer has an account with the bank in

question; question;

2.

2. that he has authority to draw on it for the amountthat he has authority to draw on it for the amount

shown on the cheque; shown on the cheque;

(23)

3.

3. That the cheque, as drawn, That the cheque, as drawn, is a valid order for theis a valid order for the payment of that amount, or that i

payment of that amount, or that in the ordinary coursen the ordinary course of events the cheque, or future presentation, will be

of events the cheque, or future presentation, will be honoured.

honoured.



 The fundamental question of The fundamental question of whether an offencwhether an offence of e of cheating

cheating was committed wwas committed would thould therefore depend onerefore depend on the intention of the parties and the nature

the intention of the parties and the nature of of thethe transaction, that is:

transaction, that is:

1.

1. Whether the Whether the cheque cheque was was tendertendered as ed as cash icash in n a a cashcash

transaction, or transaction, or

2.

(24)

Lim Chin Hat v R Lim Chin Hat v R

The appellant was c

The appellant was convictonvicted of ed of cheating cheating based on thebased on the dishonour of a cash cheque from a third party made out dishonour of a cash cheque from a third party made out in payment for electrical goods worth $6,750. Th

in payment for electrical goods worth $6,750. Thee appel

appellant had suglant had suggested to the third party to gested to the third party to open aopen a shop to impor

shop to import gt goods from Hong oods from Hong Kong. A cKong. A company wasompany was registered in the name of the third party and a bank

registered in the name of the third party and a bank account

account opened with $50opened with $500 provided by the appellant.0 provided by the appellant. The third pa

The third party was then asked to rty was then asked to sign fsign five tive to six blanko six blank cheques. The cheque book was then kept by the

cheques. The cheque book was then kept by the appellant.Th

appellant.The third party was give third party was given $12en $120 as expenses and0 as expenses and one month later, he signed four more blank cheques for one month later, he signed four more blank cheques for the appellant. The cheque in question was one of

the appellant. The cheque in question was one of thethe blank che

(25)

Cont’

Held:

Held: For

For a

a conviction

conviction on a

on a charge

charge of chea

of cheating to

ting to

be sustained

be sustained in the

in the case of dishono

case of dishonour

ur of a cash

of a cash

cheque tendered, the prosecution must show that

from the circumstances of the case,

from the circumstances of the case, it can be

it can be

presumed t

presumed that the appellant was a

hat the appellant was aware that the

ware that the

cheque w

cheque would

ould be

be dishonou

dishonoured. In this case, th

red. In this case, thee

conviction should be sustained because such

evidence was supplied

evidence was supplied by the third par

by the third party

ty, who has

, who has

the dra

(26)

Cont’

The court ruled: The court ruled:

‘Now it

‘Now it cannocannot be disputed… tt be disputed… that if a persohat if a person gives n gives a chequea cheque

in payment for

in payment for goods and it is dishonoured and goods and it is dishonoured and from thefrom the circumstances it can be presume

circumstances it can be presumed that he mud that he must be awarest be aware that the cheque w

that the cheque would ould be dishonoured, so that the fbe dishonoured, so that the failureailure to meet payment of the cheque was not accidental,

to meet payment of the cheque was not accidental, he ishe is

guilty of cheating