Commercial Crimes 2-converted PDF

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OUTLINE: UCR 2622 – CRIMINAL LAW IICHEATINGs. 415, Penal Code:Whoever by deceiving any person, whether or not such decepion 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 retai...

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OUTLINE: UCR 2622 – CRIMINAL LAW II CHEATING s. 415, Penal Code: 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. Elements 1. Deception of any person, and any of these: 2. Fraudulently or dishonestly induce that person: a. To deliver any property to any person; or b. To consent that any person may retain any property or 3. Intentionally inducing that person to do or to omit anything which he would not do or omit if he were not so deceived and that act or omission causes damages or harms to that deceived person in body, mind, reputation or property Deception

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Cambridge Dictionary- To persuade someone that something false is the truth, or to keep the truth hidden from someone for your own advantage To cause that person to believe what is false Swami Dhirendra Brahamchari (1995) Cri LJ 1810 - Inducing a person to believe something which the person making the representation knows is not true. Cheating involves deceiving another person into believing something and thereby persuading them to act to their detriment in some way Deception is common to all forms of cheating and should be distinctly established from the element of dishonesty o Eg: Tan Peng Ann v PP [1949] MLJ 10 - It is not every form of dishonestly inducing a person to deliver property amounts to cheating, but only those forms of it in which the dishonesty consists in deceiving of the person concerned However, in case of deception by concealment of fact, it must be shown that the deception was done dishonestly and no other

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Eg: Low Cheng Swee v R (1941) MLJ 98

Fraudulently

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s. 25, Penal Code - A person is said to do a thing fraudulently if he does that thing with intend to defraud, but not otherwise. Fraudulently is wider than dishonesty As compared to dishonesty, deprivation of property is not necessary fraudulent - eg: Seet Soon Guan v PP (1955) 21 MLJ 223 - a person is said to act with an intent to defraud if he or she intends that some person be deceived and that through such deception and advantage should accrue to him or that injury loss or detriment should befall to other person Test: Whether the author of the deceit derived any advantage from it which could not have been had if the truth had been known and it is not possible that the advantage should not have had an equivalent in loss or risk to someone else, and if so, there was fraud

Intentional Inducement

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Johnson v McLarty (1888) 4 Kyshe 430 Baboo Khan v State of Allahabad AIR (1961) All 639 It has been argued that in Baboo Khan, what is required is that the accused intended to induce a person to act in a particular manner, however, in McLarty it requires that he must in addition have intended to cause damage or loss to the deceived person

S. 417, Penal Code Whoever cheats shall be punished with imprisonment for a term which may extend to five years or with fine or with both. Eg: Rogayah Che Mat v PP [2001] 1CLJ 230 S.420, Penal Code Whoever cheats and thereby dishonestly induces the person deceived, whether or not the deception practiced was the sole or main inducement, to deliver any property to any person, or to make, alter, or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment for a term which shall not be less than one year and not more than ten years and with whipping, and shall also be liable to fine. Elements

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The victim had to be deceived.

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There had to have been an inducement such that the victim delivered any property to any person. There had to have been a dishonest or fraudulent intention on the part of the deceiving person to induce the victim to deliver the property.

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Gunasegaran s/o Pavadaisamy v PP [1997] 3 SLR 969

Cases

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Pasupathy a/l Kanagasaby v Public Prosecutor [2005] 1 MLJ 493 LOH LIANG GUN & ANOR v PUBLIC PROSECUTOR [2007] 5 MLJ 159 AISYAH BT MOHD ROSE & ANOR v PUBLIC PROSECUTOR [2016] 1 MLJ 840

s. 416, Penal Code

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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 other person really is. The offence is committed whether the individual personated is a real or imaginary person.

S.419, Penal Code Whoever cheats by personation shall be punished with imprisonment for a term which may extend to seven years or with fine or with both.

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Elements:

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The accused cheated the Complainant The accused did so by pretending to be some other person

Eg: PP v Sundarajan Sokalingam [2011] 7 CLJ 995 Majlis Peguam M`sia v Yap Min Ch`ng [2015] 9 CLJ 454. The petitioner filed a petition to be admitted and enrolled as an Advocate and Solicitor of the High Court of Malaya. Section 11(1)(b) of the Legal Professions Act 1976 ('the Act') provides, inter alia, that a qualified person may be admitted as an Advocate and Solicitor if he is of good character. Pursuant to ss. 16 and 17 of the Act, the Bar Council filed a notice to enter caveat and a notice of objection, on the ground that the petitioner was not of good character as he was

under police investigation after being suspected of committing an offence of cheating by personation under s. 416 of the Penal Code. The said offence allegedly took place when the petitioner was said to have sat for the main exam for the Certificate in Legal Practice ('CLP') on behalf of one Jerry Hong. The issue that arose in this application by the Bar Council was whether the petitioner was of good character....