March 12, 2019 | Author: Khairul Iman | Category: Deception, Cheque, Dishonesty, Fraud, Criminal Justice
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Criminal Law 2 (malaysia & singapore)...


CHEATING by  Dr. Dr. Aspalella Aspalella A. Rahman Rah man UUM COLGIS

Cheating    

Deception Induce delivery or retention of property Do or omit to do Dishonored cheque

s415 PC- definition cheating  Mohd  Mohd Irwan bin Abdullah v PP  PP  Cheating can be divided into two parts: i. Cheating where, by deception deception practised on the  victim, the accused dishonestly or fraudulently  fraudulently  induces that that person to deliver property property to any person or consent consent that any person shall retain any property; ii.  Where, by deception practised upon a victim, the accused intentionally intentio nally induces that person to do or omit to do anything which whic h he he would not do or omit to do, if he were not so deceived and which act or omission omissi on causes or is likely to cause damage dama ge or harm to that person in body bo dy,, mind, mind, reputation reputation or property. property. 

Mohd Jailani bin Saliman v PP The elements of cheating are: i. Deception of any person; ii. Fraudulently or dishonestly inducing that person a) to deliver deliver any property property to any person, or b) to consent that any person shall retain any  property; or iii. Intentionally Intentio nally inducing inducing that person to do or omit to do anything which wh ich he would not do or omit to do if  he were not so deceived, and which act or omission causes causes or is likely to cause damage or harm to that person or o r body, body, mind, reputation reputation or property. property. 

Cont’ 

s417- Punishment for cheating ‘whoever cheats shall be punished with imprisonment for a term which may extend to five years, years, or with fine, f ine, or with both. both.’’ s419- punishment for cheating by personation ‘whoever cheats by personation shall be punished with imprisonment for a term which may extend to seven  years,  years, or with fine, or with both.’ both.’

Deception 

 

There must mus t be deception, whether whether or not such deception was the sole or main inducement. inducement. To constitute an offence there is need to establish deception practiced by the accused. There must be evidence of a deception practised upon a person who is thereby induced to part with his money. ‘deception’ ‘deception’ is not defined. defi ned. It may be defined def ined as causing causin g to believe what is false, or is misleading misleading as to a matter of fact or leading into error.

Cont’ 

To constitute the offence of cheatin ch eating, g, the deception deceptio n must precede precede and induce the delivery or retention of  property. Deception Deception may be by words words or conduct.  Mohd Jalani bin Saliman v PP  ‘deception may be by conduct or words. What is sufficient suff icient to constitute deception is dependant dependan t on the facts of each case. Deception has an element of  misleading. It is inducing a person to believe as true something something which is false. f alse.’’

Chow Dih v PP 

 A was charged charged with with cheating six patients by deceiving deceiving them into believing believin g that they were were suffering from various serious ailments. He was was convicted and on appeal, he contended that there was no evidence to show that the deception was the effective cause for the patients to keep returning to the  A to receiv receivee treatment. treatment. Held: It is not necessary that the representation made by  the accused should be the sole cause of the t he damage or loss. It is sufficient sufficie nt if the complainant was partly and materially mater ially,, though not entirely, entirely, inf luenced by the false pretence of the accused. Deception may or may not be the sole or main inducement.

Induce delivery or retention of  property 

Deception is only one element of the offence of cheating cheating and not the only element. There can be no cheating unless by reason of deception the person deceived is i s induced to part with any property  or to do or omit to do anything which he would not not do or omit to do but for the deception. Under the first part of s415, cheating is committed when, the person deceiving by reason of the deception 

Fraudulently or dishonestly induces the t he person so deceived to deliver any property to any person, or to consent that any  person retain any property.

In Pasupathy Kanagasaby v PP  the Court of Appeal accepted that under the first first part of section 415, the moment a person is deceived and by the practice of  such deception a property is fraudulently or dishonestly obtained from him, then the offence of  cheating is committed. Under the first part of section 415, the inducing must be fraudulent or dishonest. Ratanlal  states that ‘fraudulently’ is defined in section 25 as follows: ‘A  person is said to do a thing fraudulently if he does that thing with intend inte nd to defraud…’

‘Dishonestly’ is defined in section 24 of the Penal Code in the following manner: ‘Whoever does anything anything with the intention of causing  wrongful  wrongful gain to the person, or wrongful wrongful loss to another person, irrespective of whether the act causes actual  wrongful  wrongful loss or gain, is said to to do that thing ‘dishonestly’.

However However,, section section 415 does does not require that tha t both fraud f raud and dishonesty dish onesty to be proved, one or the other is sufficient suff icient but there must be inducement ind ucement of a person to deliver property to another anothe r or to do something someth ing which he would not do if he were not so deceived.

PP v Kalpanath Singh expressed the further view that on a plain reading of the section 415, there was no requirement that the person cheated must own property involved: involved: ‘any ‘a ny property’ suffi su fficed. ced.

section 420 PC- cheating and dishonestly inducing delivery of property. property.

Loh Liang Gun v PP  The first first appellant was a marketing officer of Hong Leong L eong Finance. His duty was to interview hire purchase applicants to ensure that their particulars in the t he proposal forms were correct. It was alleged that the appellant had by his recommendations on the proposal forms falsely fals ely represented to Hong Hong Leong Le ong Finance that all the particulars produced by  him had been bee n checked and verif verified ied to be true and correct.  Acting on the first appellant’s recommendations and false representations, representati ons, Hong Leong Finance through its branch manager was induced to approve the hire purchase loans to 10 persons amounting to RM440,000.

Cont’ The essential ingredients of section 420, for which offence offence that first f irst appellant appella nt was convicted, were stated as follows: fol lows: Hong Leong Finance delivered property (namely the amount stated in i n the charges charges respectively) to another person (here, the second appellant); The first appellant induced Hong Leong L eong Finance Fina nce to deliver that property to the second appellant; Hong Leong Finance acted acted upon such inducement in 

consequence of the first appellant’s deceit; The first appellant acted dishonestly in so inducing Hong Leong Finance to part with the property; and Hong Leong Le ong Finance suffered damage or harm as a result result of  the deceit.

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

Cont’ Held: On the charge of cheating that the prosecution had established that the cashiers of  the various banks banks were deceived into handing over cash to the first defendant because they believed the travellers travellers’’ cheques were genuine. This amounted to deception and by presenting the travellers' cheques knowing them to be counterfeit, there was dishonest inducement by  the first first defendant to another person person that cash should be delivered upon presentation of the travellers’ cheques and therefore cheating was established.

Foo Tiang Kwang v PP The appellant was charged with cheating a woman by  inducing her to part with $300 by falsely false ly pretending he was in a position to obtain blood for transfusion to her husband.  Accused  Accused then approached approached an Indian Indian acquaintanc acquaintancee to to give give blood purportedly to the accused’s relative. Held: The complainant was was not cheated. She paid to have have a pint of blood blo od to be administered to her husband and it was supplied.

Do or omit to do anything 

The Supreme Court of India in Ram Jas v State of UP  said that th at the ingredients required to constitute constitute the offence of cheating under section 415 were: i. There should be fraudulent fraudule nt or dishonest inducement in ducement of  a person by deceiving deceiving him; ii. (a) (a ) The person so deceived should be b e induce to deliver any property to any person, or to consent that any  person shall retain ret ain any property; or (b) The person so deceived deceived should be intentionally  intentional ly  induced to do or omit to do anything which he would not to do or omit if he were not so deceived; and

iii. In cases covered covered by (ii)(b), (ii)( b), the act or omission should shoul d be one  which causes or is likely likely to cause damage damage or harm to the person induces in body, body, mind, min d, reputation reputati on or property  

Under the second part of section 415 the inducing must be intentional and, unlike the first part of the section involving the delivery of property p roperty,, the intentional act or omission induced by the deception in the second part p art must cause damage or harm to body, mind, reputation or property.

Cheating by personation 

This is defined in section 416 as follows: ‘A person perso n is said to ‘cheat ‘cheat by personati pers onation’ on’, if i f he cheats by  pretending to be some other person, or by knowingly  substituting substit uting one person for another, another, or representing that he or any other person is a person other than he or such person really is.’

The explanation to section 416 states that the offence is committed whether the individual personated is a real or imaginary person. ‘Personate’ is not defined but to personate means to pretend to be a particular particular person. R v Borneo Held: Where a person at Oxford, Ox ford, who was not a member of the University, University, went to a shop for the purpose of fraud, wearing a commoner’s commoner ’s cap and gown, and obtained obtained goods, this appeari appearing ng in i n a cap and gown  was a sufficient cheating although nothing passed in  words.  words.

Dishonoured cheques 

There are are difficulties with dishonoured cheques in the context of the offence of cheating. cheating. Ratanlal & Dhirajlal qouted in Re DC Henry stated  chequ e for payment of goods that the act of drawing a cheque purchased implies at least three statements as to the state of affairs existing at the time when the cheque is drawn: that the drawer has an account with the bank in question; 2. that he has authority to draw on it for the amount shown on the cheque; 1.

3. That the cheque, as drawn, is a valid order for the

payment of that amount, or that in i n the ordinary course of events the cheque, or future presentation, will be honoured. 

The fundamental question of whether an offence offence of  cheating was committed would would therefore therefore depend on the intention of the parties and the nature of the transaction, that is: tendered as cash in in a cash 1.  Whether the cheque was tendered transaction, or tendered. 2.  A post-dated cheque was tendered.

Lim Chin Hat v R The appellant was convict convicted ed of cheating based on the dishonour of a cash cheque from a third party made out in payment for electrical goods worth $6,750. The Th e appellant appellant had suggested sug gested to the third party to open a shop to import impor t goods goods from Hong Kong. A company company was registered in the name of the third party and a bank account opened with $500 $50 0 provided by the appellant. The third party party was then asked to sign five f ive to to six blank cheques. The cheque book was then kept by the appellant.The appellant.The third party was given given $120 $120 as expenses and one month later, he signed four more blank cheques for the appellant. The cheque in question was one of the blank cheques cheques signed by the third party. party.

Cont’ Held: For a conviction on a charge of cheating cheating to be sustained in the case of dishonour dishono ur of a cash cheque tendered, the prosecution must show that from the circumstances of the case, it can be presumed that that the appellant was aaware ware that the cheque would would be dishonoured. dishonoured. In this case, the th e conviction should be sustained because such evidence was supplied by the third party par ty,, who has the drawer drawer of the cheque.

Cont’ The court ruled: ‘Now it cannot cannot be disputed… that t hat if a person perso n gives a cheque in payment for goods and it is dishonoured and from the circumstances it can be presumed presume d that he must must be aware that the cheque would would be dishonoured, so that the failure f ailure to meet payment of the cheque was not accidental, he is guilty of cheating under section 420 of the Penal Code.’ Code.’

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