Anda di halaman 1dari 26

CHEATING

by Dr. Aspalella A. Rahman UUM COLGIS

Cheating
Deception Induce delivery or retention of property

Do or omit to do
Dishonored cheque

s415 PC- definition cheating

Mohd Irwan bin Abdullah v PP Cheating can be divided into two parts: i. Cheating where, by deception practised on the victim, the accused dishonestly or fraudulently induces that person to deliver property to any person or consent that any person shall retain any property; ii. Where, by deception practised upon a victim, the accused intentionally induces that person to do or omit to do anything which he would not do or omit to do, if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property.
3

Mohd Jailani bin Saliman v PP


The elements of cheating are:

Deception of any person; ii. Fraudulently or dishonestly inducing that person a) to deliver any property to any person, or b) to consent that any person shall retain any property; or iii. Intentionally inducing that person to do or omit to do anything which he would not do or omit to do if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person or body, mind, reputation or property.
i.
4

Cont
s417- Punishment for cheating

whoever cheats shall be punished with imprisonment for a term which may extend to five years, or with fine, or with 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, or with fine, or with both.
5

Deception
There must be deception, whether or not such

deception was the sole or main 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 is not defined. It may be defined as causing to believe what is false, or is misleading as to a matter of fact or leading into error.
6

Cont
To constitute the offence of cheating, the deception

must precede and induce the delivery or retention of property. Deception may be by words or conduct.
Mohd Jalani bin Saliman v PP

deception may be by conduct or words. What is sufficient to constitute deception is dependant on the facts of each case. Deception has an element of misleading. It is inducing a person to believe as true something which is false.
7

Chow Dih v PP
A was charged with cheating six patients by deceiving them into believing that they were suffering from various serious ailments. He 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 receive treatment. Held: It is not necessary that the representation made by the accused should be the sole cause of the damage or loss. It is sufficient if the complainant was partly and materially, though not entirely, influenced by the false pretence of the accused. Deception may or may not be the sole or main inducement.
8

Induce delivery or retention of property


Deception is only one element of the offence of cheating

and not the only element. There can be no cheating unless by reason of deception the person deceived is induced to part with any property or to do or omit to do anything which he would 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 person so deceived

to deliver any property to any person, or to consent that any person retain any property.
9

In Pasupathy Kanagasaby v PP the Court of Appeal

accepted that under the 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 to defraud

10

Dishonestly is defined in section 24 of the Penal Code

in the following manner:


Whoever does anything with the intention of causing wrongful gain to the person, or wrongful loss to another person, irrespective of whether the act causes actual wrongful loss or gain, is said to do that thing dishonestly.

However, section 415 does not require that both fraud

and dishonesty to be proved, one or the other is sufficient but there must be inducement of a person to deliver property to another or to do something which he would not do if he were not so deceived.
11

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: any property sufficed.
section 420 PC- cheating and dishonestly inducing

delivery of property.

12

Loh Liang Gun v PP


The first appellant was a marketing officer of Hong Leong Finance. His duty was to interview hire purchase applicants to ensure that their particulars in the proposal forms were correct. It was alleged that the appellant had by his recommendations on the proposal forms falsely represented to Hong Leong Finance that all the particulars produced by him had been checked and verified to be true and correct. Acting on the first appellants recommendations and false representations, Hong Leong Finance through its branch manager was induced to approve the hire purchase loans to 10 persons amounting to RM440,000.

13

Cont The essential ingredients of section 420, for which offence that first appellant was convicted, were stated as follows:
Hong Leong Finance delivered property (namely the amount

stated in the charges respectively) to another person (here, the second appellant); The first appellant induced Hong Leong Finance to deliver that property to the second appellant; Hong Leong Finance acted upon such inducement in consequence of the first appellants deceit; The first appellant acted dishonestly in so inducing Hong Leong Finance to part with the property; and Hong Leong Finance suffered damage or harm as a result of the deceit.
14

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.

15

Cont
Held: On the charge of cheating that the prosecution had established that the cashiers of the various banks were deceived into handing over cash to the first defendant because they believed the 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 defendant to another person that cash should be delivered upon presentation of the travellers cheques and therefore cheating was established.
16

Foo Tiang Kwang v PP


The appellant was charged with cheating a woman by inducing her to part with $300 by falsely pretending he was in a position to obtain blood for transfusion to her husband. Accused then approached an Indian acquaintance to give blood purportedly to the accuseds relative. Held: The complainant was not cheated. She paid to have a pint of blood to be administered to her husband and it was supplied.

17

Do or omit to do anything
The Supreme Court of India in Ram Jas v State of UP

said that the ingredients required to constitute the offence of cheating under section 415 were:
i. There should be fraudulent or dishonest inducement of a person by deceiving him; ii. (a) The person so deceived should be induce to deliver any property to any person, or to consent that any person shall retain any property; or (b) The person so deceived should be intentionally induced to do or omit to do anything which he would not to do or omit if he were not so deceived; and
18

iii. In cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induces in body, mind, reputation 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, the intentional act or omission induced by the deception in the second part must cause damage or harm to body, mind, reputation or property.

19

Cheating by personation
This is defined in section 416 as follows: A person is said to cheat by personation, if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such person really is.

20

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 person. R v Borneo Held: Where a person at Oxford, who was not a member of the University, went to a shop for the purpose of fraud, wearing a commoners cap and gown, and obtained goods, this appearing in a cap and gown was a sufficient cheating although nothing passed in words.
21

Dishonoured cheques
There are difficulties with dishonoured cheques in the

context of the offence of cheating. Ratanlal & Dhirajlal qouted in Re DC Henry stated that the act of drawing a cheque for payment of goods 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.
22

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

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

The fundamental question of whether an offence of

cheating was committed would therefore depend on the intention of the parties and the nature of the transaction, that is:
Whether the cheque was tendered as cash in a cash transaction, or 2. A post-dated cheque was tendered.
1.
23

Lim Chin Hat v R The appellant was convicted 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 appellant had suggested to the third party to open a shop to import goods from Hong Kong. A company was registered in the name of the third party and a bank account opened with $500 provided by the appellant. The third party was then asked to sign five to six blank cheques. The cheque book was then kept by the appellant.The third party was given $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 signed by the third party.
24

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

25

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

26