Cheating Topic 11 Ashran bin Haji Idris* Cheating is defined under S415: + Whoever by deceiving any person, whether or not such deception was the sole or main inducement,— + (a) fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property; or + (b) intentionally induces the person so deceived 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 any person in body, mind, reputation, or property, + is said to "cheat".* Explanation 1—A dishonest concealment of facts is a deception within the meaning of this section. * Explanation 2—Mere breach of contract is not of itself proof of an original fraudulent intent. * Explanation 3—Whoever makes any representation through any person acting as an agent, or otherwise, for him, shall be deemed to have made the representation himself.Illustrations * (2) 4, by falsely pretending to be n the Government service, intentionally deceives , and hus dishonesty induces 20 let him have on credit goods fer which he does not mean to pay.A cheats. + (b) A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for the article. A cheats. * (2.4 by exhibiting o 2a false sample ofan article intentionally deceives Zintobelieving hat the article corresponds with the sample, and thereby dishonestly induces Z to buy and pay for the article. A cheats. * (d) A, by tendering in payment for an article, a bill on a house with which A keeps no money, and by which A expects that the bill will be dishonoured, intentionally deceives Z, and thereby disnonestly induces Zto deliver the article, intending not to pay for it. A cheats. * (e) A, by pledging as diamonds articles which he knows are not diamonds, intentionally deceives Z, and thereby dishonestly induces Z to lend money. A cheats.{{]A intentionally deceives Z nto a belief that a means to repay ary money that Z may lend to im, and thereby dishonestly induces Z to lend him money, A not intending to repay it.A cheats. (g) Aintentionally deceives Z into a belief that A means to deliver to Za certain quantity of Pepper which he does not intend to deliver, and thereby dishonestly induces Z to advance money Upon the faith of such delivery. Acheats; but if A, at the time of obtaining the money, intends to eliver the pepper, and afterwards breaks his contract and does not deliver it, he does not cheat, but is fiabfe'only t6 a civil action for breach of contract. P).Aintentionally decelves Zintoa belle that A has performed A's part of a contract made with , which he has not performed, and thereby dishonestly induces Z to pay money. A cheats. (i) Asells and conveys an estate to B. A, knowing that in consequence of such sale he has no right to the property sells or mortgages the same to Z without disclosing the fact gf the previous sale and conveyance to B, and receives the purchase or mortgage money from Z. Z cheats. () A, playing with false dice, or marked cards, wins money from B. A cheats,* Cheating involves deceiving another person into believing something and thereby persuading them to act to their detriment in some way. * The physical elements of cheating: The accused deceived the victim and thereby induced the victim to: 1) Deliver the property to any person, or to 2) Consent to another person retaining property; or to 3) Do or omit to do something which causes or is likely to cause damage or harm to any person in body, mind, reputation or property.* The fault element for (1) and (2) is fraudulently or dishonestly. For (3) is intentionally. * Cheating can be committed in the course of an illegal transaction. InR v Lim Cheng Soo (1946) MU 51 the accused had agreed to sell 1000 forged one dollar bank notes to the victim for $388. The victim received a bundle of blank paper wrapped in a couple of genuine notes. The accused was convicted of cheating and the court refused to countenance arguments that the illegality of the contract in the civil law should prevent criminal responsibility arising.* The elements of cheating were stated in Mohd Jalani bin Saliman v PP (1997) 5 MU 551 to be: 1) Deception of any person, 2) 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 3) 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.Deception * In Liew Min Poh v PP (1962) 3 MLJ 316 it was held by the court that to constitute the offence of cheating there is a need to establish deception practiced by the accused. * In Mohamed bin Kasdi v PP (1969) 1 MLJ 135 it was held that there must be evidence of a deception practiced upon a person who is thereby induced to part with his money. + Deception involves more than just lying. A person is not deceived unless he actually believes that lie. Deception therefore means inducing a person to believe something which the person making the representation knows is not true.* Cheating must be distinguished from mere breach of contract. In Sheosagar Pandley (1935) 37 Cr LJ 38 it was held that mere breach of contract cannot give rise to criminal prosecution. * The deception may be by words or conduct. In Maria Giles (1865) 10 Cox 44 and PP v Alinsug Geb Urbasik Axel (1995) 3 CU) 143 deception can be inferred from all the circumstances, including the conduct of the defendant in obtaining the property.* In Chow Dih v PP (1990) 2 MLJ 197 the appellant was charged with cheating six patients of a specified sums of money over different periods by deceiving them into believing that they were suffering from various serious ailments. He was convicted and on appeal, it was contended that there was no evidence to show that the deception was the effective cause for the patients to keep returning to the appellant to receive treatment. On the contrary, the evidence showed that, notwithstanding the deception, each patient was properly treated for the actual ailments, which was the real reason why he or she returned to the appellant for treatment. Treatment was properly given to each patient for genuine medical patents in additions to deceiving them into believing that they were suffering from various serious diseases and needed follow-up treatment.* The court held that the prosecution need to establish that the goods were obtained by the deception and it is immaterial that the victim may have additional reasons for making the transfer. It is sufficient if the complainant was partly and materially, though not entirely, influenced by the false pretense of the accused.* Where there is no deception, there is no offence. In Narayanasamy Rajaram v R (1949) 1 MLJ 252 the complainant wanted to make a statutory declaration for which the stamp fee was $1. He paid $3. From the evidence of the lift boy, $1 was for the stamp, the $2 was to the accused for making out the declaration. In cheating, it was necessary to show that the accused had deluded the complainant into believing that the stamp fee was $3. The $2 was for doing something the accused was not obliged to do and for which the complainant, who did not know English, had to get someone to do. It was held that there was no deception.Cheating by personation * 416. Cheating by personation * A personis 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 other person really is. * Explanation—The offence is committed whether the individual personated is a real or imaginary person.Illustrations * (a) A cheats by pretending to be a certain rich banker of the same name. A cheats by personation. + (b) A cheats by pretending to be B, a person who is deceased. A cheats by personation.* Personate is not defined but in R v Hague (1864) 4 B& $715 to personate was defined to mean to pretend to be a particular person. * In Rv Borneo (1837) 7 C & P 784 it was held that where a person at Oxford, who was not a member of the University, went to a shop for the purpose of fraud, wearing a commoner’s cap and gown, and obtained goods, this appearing in a cap and gown was a sufficient cheating although nothing passed in words.* 417. 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. * 419. 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.Dishonored cheques * It is not always easy, in cases involving dishonored cheques, to decide whether it is a criminal matter or should be left to the civil law. * If the prosecution proves that at the date of the contract, the circumstances of the accused was such that he must have known that it was practically impossible that he would be able to pay for the goods, the offence of cheating is committed. + In Yong Yong Peng v R (1947) MU 40 where the appellant issued two cheques and from the evidence showed that he had no intention of paying the amount. The court held that he was guilty of cheating.