Cheating PDF

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Summary

CHEATING:CRIMINAL MISAPPOPRIATION:*Covers mainly on cases whereby the accused was legitimately in possession of something but had used it or dealt with it in a manner that the law would regard it as a crime.Section 403: Definition + PunishmentSection 409A: Defence x available.Section 409B: Having di...

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CHEATING:

Winfield

CRIMINAL BREACH OF TRUST:

CRIMINAL MISAPPOPRIATION:

conversion’ refers to any act in relation to the goods of a person which constitute an unjustifiable denial of his title to them. If denial of title is justified, there is no conversion.

*Covers a wide range of activities.

*Covers mainly on cases whereby the accused was legitimately in possession of something but had used it or dealt with it in a manner that the law would regard it as a crime. Section 403: Definition + Punishment Section 409A: Defence x available. Section 409B: Having dishonest intention until proven. (Presumption) Elements: a. Misappropriates or converts to his own use OR causes any other person to dispose of the property. b. Dishonestly *In all criminal cases, the General Rule is that the prosecution has to prove the element dishonesty, however in certain instances: (Section 403,404, 405, 406-409), the prosecution does have the legal burden to prove that the defendant had acted dishonestly, but Section 409B state that the accused is presumed to act dishonestly until contrary evidence is adduced. Sohan Lal v Emperor misappropriate’ means to set apart for or assign to the wrong person or a wrong use and this act must be done dishonestly.

Durguappa v State of Mysore Principle: In this case it was established that appropriating/ dealing with another person property, as if it his own, may not amount to conversion but if he dealt the property in a way that is inconsistent, with the rights of the legal owner= AR of section 403. *Merely retaining a person’s property may not be sufficient for conversion, the accused must actually deal the property in a manner that is inconsistent. Tuan Puteh v Dragon Facts: The app found a cheque which was made payable to a captain strong. He took it to a bank but it was not cashed because it required the captain’s endorsement. The app argued that there had not been any conversion as the cheque had not been cashed. Held: The court rejected the argument and stated that the appellant had ‘clearly appropriated the cheque which was wrongful and it shows a sufficient misappropriation’.

*The principal offender will generally have committed criminal misappropriation with respect to the property that had been entrusted to him or her = CBT *A more serious offence compared to CM *First of all to be liable of CBT, need to identify who is the defendant. In order to determine the relevant sections, the prosecution has to show who the defendant was. Section 405: Definition Section 406: Punishment Section 407: CBT by carrier Section 408: CBT by clerk / servant Section 409: CBT by public servant/ agent Section 409A: No defence applicable Section 409B: Having dishonest intention until proven. (Presumption) Elements: a. Misappropriation/ conversion of using or disposing the entrusted property (AR) * entrust’ includes that person handling over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them.

*Dominion = has overall control ( a general degree of control is sufficient) b. Dishonestly (MR) c. Identify who is the defendant (The job scope) Gan Beng v PP Principle: The essence of the offence of CBT is the dishonest misappropriation / conversion by a person –of property entrusted to him. Chin Wah v PP Facts: The accused was convicted of CBT with respect to a necklace that he had borrowed for his wife to wear to a party. Despite frequent request to return it, he still failed to do so. R v Tan Ah Seng Facts: The accused was held guilty of CBT with respect of the sum of $40 which he had received for the purpose of renting a house to be used as an illegal brothel.

Sinnathamby v PP Facts: An employee at a quarry had left some stone where it could be removed by another person. Superior officer had overall responsibility, the accused was in a position, through his contract of employment, to exercise sufficient control to satisfy dominion. th

Held: Held: There had been entrustment to or dominion over the property of the bank and that the 2nd accused had no authority to allow the overdrawn amounts.

Section 417: Punishment Elements: Section 415 a. Had used deception on the victim

Ratanlal (a book 5 edition)

Section 25: Definition of deception:

*The following was said about entrustment. Where an accused conductor collected bus fares from his passengers but he failed to deposit the collected amount, is said not to be entrusted with the property but he is said to be entrusted with doing his job.

To act fraudulently, the defendant must have the intention to defraud

The court held that the accused could not be charged under CBT because he was not entrusted with the property but he was entrusted towards his job.

b. The deception had induced to victim to i) Delivery property to any person or ii) Consent to another person retaining property iii) Intentionally inducing that person to do/ omit to do something which causes or is likely to cause damage or harm to any person in body, mind, reputation or property. *Offence of cheating would only take place if the victim was induced.

PP v Yeoh Teck Chye Facts: The 1st accused was the deputy general manager and the 2nd accused, the manager of a bank. The 2nd accused, with the knowledge of the 1st accused, had granted over draft facilities for amounts in excess of the approved limit to the third accused and he had no such authority.

b) Deception must have induced / caused or made the victim give up his property or allowed his property to be retained by other.

CHEATING: *The offence of cheating under the PC covers the same grounds of fraud at common law.

*Deception must be used on the victim and this must have cause the victim to give the property away

Recognises several elements:

*To prove deception, it must be proven that the victim was induced into believing what the victim had said.

a) Fraud/ Dishonesty

*Cambridge Dictionary: “Deception”

Section 415: Definition

To persuade someone that something is false is the truth, / to keep the truth hidden from someone for your own advantages Sanjeev Kumar Veerasingan v PP Principle: The deception must be operative with the mind of the victim. Tan Peng Ann v PP Principle: Not ever form of dishonestly inducing a person to deliver the property amounts to cheating. But only those forms of it in which the dishonesty consists in deceiving others is concern. Rogayah Che Mat v PP Facts: The appellant was charged for an offence under s. 417 of the Penal Code. She was eventually convicted and sentenced pursuant to an amended charge. One of the issue that arises was that the conviction was founded on a charge unknown in law. This was because s. 417 of the Penal Codewas a punishment provision and the charge should have been based on s. 415 of the Penal Code. Held: Objection dismissed. Section 415 of the Penal Codeis a definition section and not a substantive section under which a person may be charged. Section 417 of the Penal Code provides for the punishment of simple cases and the prosecution is not

prevented from charging an accused person for a case of simple cheating.

way in which the appellant deceived the complainants. Held:

Section 420: Cheating and dishonestly inducing delivery of property *Makes it an offence if the deception had induced the victim to give up his property or to alter or to destroy his valuable security * Section 415 and Section 420 are similar just that Section 420 may be used on repeated offenders. *Section 420 reserved for more serious cases, particularly where delivery of property has taken place, or other outcomes as specified in the latter section have been established. *Section 417 is to punish simple cases of cheating. Elements for Section 420: a. Victim had been deceived b. There’s an inducement in such that the victim delivery any property to any person c. Dishonest or Fraudulent Intention Tan Peng Ann v PP Facts: In this case the appellant was convicted on two charges of cheating and dishonestly inducing the delivery of property in contravention of section 420 of the Penal Code. In the charges no particulars were alleged of the

that in framing such a charge it is necessary to set out not merely the fact that accused had obtained goods by dishonest means, but also the deception which has been practised; and (2) that it is not every form of dishonestly inducing a person to deliver property that amounts to cheating, but only those forms of it in which the dishonesty consists in the deceiving of the person concerned. Low Cheng Swee v R: Facts: An accused was charged with cheating under S. 420 of the Penal Code by dishonestly insuring his motor car with two insurance companies without disclosing to either of such companies the fact that he had insured it with another Company and by receiving from both company’s moneys under the two policies. Held: (on appeal) that before non-disclosure can be deemed to be dishonest it must be shown that the accused knew that each company's liability would be lessened by the fact which he failed to disclose, and that non-disclosure would deceive and induce the company to act to its detriment. Such knowledge had not been proved and could not be assumed in a criminal case. No legal presumption arose that the accused had read and was acquainted with the conditions of the policy

of assurance and there was no sufficient evidence of cheating. Aisyah bt Mohd Rose & Anor v PP Facts: The first appellant, the wife of the second appellant, was the Head of Customer Service of Bank Muamalat Bhd, Penang (‘the bank’), while her husband (‘the second appellant’) was a partner in a legal firm. The second appellant had ceased to practice law in 2003, and was in charge of the administration of the legal firm. During the period from 23 February 2009 until 7 December 2009 four companies had instructed their respective banks to issue general crossing banker’s cheques to be made payable to the State Director of Customs, Penang, for the purpose of payment of customs duties. However, these cheques were collected from the respective banks by intermediaries, who had not passed them over to the Customs Unit for payment of customs duties but had instead handed the said cheques to the second appellant, who had then passed the said cheques to the first appellant. As the customs did not have an account with the bank, the said cheques ought to have been returned to the bearers of the cheques. Instead of returning the cheques, the first appellant had filled up bank deposit slips, instructed the bank tellers to process the cheques and approved the process for the cheques’ clearance. The first appellant eventually credited the said cheques into the second appellant’s client account and the second appellant withdrew the money from the client’s account. An internal audit of the bank revealed

an act of misappropriation in respect of the cheques, which led to a report being lodged and both appellants being charged for criminal breach of trust (‘CBT’) under s 409 of the Penal Code (‘the Code’)(‘first charge’) and a second offence of engaging in or attempting to engage in money laundering activities contrary to s 4(1) of the Anti-Money Laundering and AntiTerrorist Financing Act 2001 (‘the AMLATFA’) (‘second charge’). Both the appellants denied the charges against them. It was the first appellant’s defence that she had not acted contrary to the law or the bank’s rules and regulations but merely followed the wishes of the client, ie the second appellant, to credit the said cheques into the account of a third party. The second appellant’s defence was similarly premised on client’s instructions. The sessions court judge found that the prosecution had proved its case against the appellants beyond reasonable doubt and sentenced each appellant to ten years’ imprisonment for the first charge and to five years’ imprisonment for the second charge, with the sentences to run concurrently. The appellants appeal to the High Court was dismissed and hence the present appeal on the grounds that the first charge against them was defective and illegal. It was the appellants’ argument that the first charge involved 27 transactions of different amounts and different dates and that by lumping all 27 transactions in one charge and one trial, the prosecution had breached ss 163 and 164 of the Criminal Procedure Code (‘the CPC’). The appellants further submitted that the prosecution had failed

to prove the element of entrustment, which it was required to do under s 409 of the Code, and that since no parties had suffered any loss the element of ‘dishonestly’ in s 24 of the Code had not been proved. Held: dismissing the appeal against convictions but allowing the appeal against sentence:

[other cheating offences: not that important] Section 416: Cheating by Personation *If the defendant had acted in a manner which caused the victim to believe that he is someone else. Section 419: Punishment for cheating by Personation PP v Sundarajan Sokalingam Facts: The accused, an advocate and solicitor, who had acted as a defence counsel in a robbery case for one Pathmanathan and Sulaiman, was charged under s. 419 to be read with s. 109 of the Penal Code for aiding and abetting one Thanigimani who had personated as the said Pathmanathan. The accused was convicted to six months imprisonment by the trial judge. The accused appealed against the conviction and sentence wherein it was eventually dismissed. The prosecution had cross appealed against the sentence wherein the issues raised were whether the trial judge had erred in fact and in law by (i) meting out a punishment which was grossly

inadequate by failing to take into consideration the seriousness of the offence and punishment provided for under the law and (ii) failing to place public interest over and above the interest of the accused. Held (dismissing the cross appeal): Section 418: Cheating with knowledge that wrongful loss may be thereby caused to a person whose interest the offender is bound to protect. {unnecessary for exam purpose}...