LAW572- ( Jasreezal AMAR Nooris BIN Jasli) PDF

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QUESTION 1The first issue is whether Meeloh can be made liable under Section 415 of the Penal Code for simple cheating when he placed an advertisement on mudah to sell his new three-bedroom apartment. The second issue is whether Meeloh can be held liable for the offence of dishonest cheating under S...

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QUESTION 1 The first issue is whether Meeloh can be made liable under Section 415 of the Penal Code for simple cheating when he placed an advertisement on mudah.com to sell his new three-bedroom apartment. The second issue is whether Meeloh can be held liable for the offence of dishonest cheating under Section 420 of the Penal Code when he requested Veeko to pay a deposit amounting to RM5000 to reserve the 3-bedroom apartment. Based on the facts given, the suspect of the offence of cyber fraud is Meeloh. The known facts of Meeloh are that he is a 30-year-old male, a land broker and he is married. Moreover, in the facts states that he used mudah.com to place an advertisement to sell his new 3-bedroom apartment near AEON Klang for RM 250,000. The unknown facts on Meeloh are on where he lives, whether he is employed as a land broker or a freelance land broker, his race and religion. Moreover, we do not know his full name and his identification card number. We also do not know how long he works as a land broker. As for the victim, it can be identified as Veeko. The only known facts for Veeko is that he is a male. The unknown facts of Veeko are that his full name, age, occupation, where he lives, identification card number, race, and religion. According to the facts given, on August 12,2020, Meeloh placed an an advertisement on mudah.com purporting to sell his new three-bedroom apartment near AEON Klang for RM250, 000. However, it is unknown on the time and geographical area in which Meeloh place this advertisement on mudah.com. Moreover, since mudah.com an online website, we do not know the device in which Meeloh used to post that advertisement in mudah.com. Other than that, Veeko, saw the online advertisement and images of the said property, contacted Meeloh since he felt that he found a good bargain and wanted to purchase the apartment. Based on these facts, we do not know on the geographical area and time in which Veeko saw the advertisement and contacted Meeloh to purchase the apartment. We also do not know on how Veeko contacted Meeloh, as in which device Veeko used to contact Meeloh. This is because according to mudah.com, there are three way in which a buyer can contact the seller, which are by email, WhatsApp which is a text message application or the online chat in mudah.com. The next day, August 13, 2020, Meeloh met Veeko at Satay Kajang Restaurant, Bukit Tinggi Klang, to discuss on the purchase of the 3-bedroom apartment. Then, Meeloh took Veeko to the location of the 3-bedroom apartment near AEON Klang. However, Meeloh told Veeko that they could not view the property on that day as he could not reach the tenants despite repeated calls. We do know that Meeloh tried to call the tenant by using a mobile phone, but it is unknown at what time Meeloh and Veeko met at the restaurant. Two days later, on August 15, 2020, Meeloh agreed to sell the apartment for RM245, 000 and requested a deposit of RM5000.00 to reserve the said property. On August 17, 2020, Veeko paid the requested amount via a bank transfer to a bank account, which Meeloh said belonged to his wife. However, after receiving the money, Meeloh could not be contacted and had since disappeared. Veeko later discovered that the said property belonged to someone else who had no intention of selling it. It is unknown which bank that Veeko used to make a bank transfer to Meeloh’s wife bank account. Moreover, the bank account number and the time where Veeko made the transfer is also not stated. We also do not know on how Veeko discovered that the property belonged to someone else who had no intention 1

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of selling it. Moreover, it is unknown where did Meeloh disappeared to after receiving the deposit money from Veeko. As for the first issue, Meeloh can be held liable for simple cheating under Section 415 of Penal Code for placing a false advertisement on mudah.com which includes images of his new three-bedroom apartment near AEON Klang for RM 250,000. According to Section 415(a) of the Penal Code , it states that whoever by deceiving any person, whether such deception was the main inducement, fraudulently or dishonestly induces the person so deceived to deliver any property to anybody. The actus reus for Section 415 of the Penal Code is that the accused deceives the victim, and the accused induces the victim to deliver property to anybody, consent accused to retain victim’s property or to do something or omit to do something which causes of likely to cause harm to the victim. As for the mens rea, the accused fraudulent, dishonest, or intentional. In Public Prosecutor v Mohd Jalani b Saliman, the court held that the deception had the element of misleading in which inducing a person to believe as true something which is false. The deception maybe by words or conduct and the deception by accused is to generate inducement in the victim’s mind. According to the facts, the actus reus of the offence is evident when Meeloh had induced Veeko in purchasing the three-bedroom apartment atfter Veeko saw Meeloh’s advertisement and images of the three-bedroom apartment advertised on mudah.com. The advertisement had induced Veeko to believed that he had found a good bargain and induced Veeko to wanted purchase the apartment. However, when Meeloh met Veeko at Satay Kajang Restaurant, Bukit Tinggi Klang on August 13, 2020, Meeloh had deceived Veeko when he took Veeko to the location of the threebedroom apartment. Meeloh deceived Veeko by saying that they could not view the property on that day as he could not reach the tenants despite repeated calls. As evident in the facts, Meeloh had deceived Veeko, since the advertisement made by Meeloh at mudah.com, clearly states that it is a new three-bedroom apartment, but the facts states that Meeloh could not reach the tenants despite repeated calls means that deception has taken place. This is because, even though deception is not defined under the Penal Code, but deception is making false representation to another person by words or conduct. The maker in this case, Meeloh knew that such words were untrue, and he had made Veeko to believe such fact exist. Moreover, Meeloh had fraudulently represent a non-existent fact which is the fact that he could not reach the tenants despite repeated calls. Also, Meeloh also had fraudulently concealed the fact that the three-bedroom apartment was not belong to him as the apartment belonged to someone else. Meeloh had concealed these facts to induce Veeko to purchase the apartment, which is in line with Explanation 1 of Section 415 of the Penal Code. In fact, the owner of the apartment itself had no intention to sell the apartment. As for the mens rea of Section 415 of the Penal Code , it is evident since Meeloh have acted fraudulent and dishonest in inducing and deceiving Veeko to believe that the apartment was a bargain and induced Veeko to purchase the apartment. In summary, Meeloh is liable for simple cheating under Section 415 of the Penal Code as the actus reus and mens rea is proven when he posted the false advertisement of the new three-bedroom apartment in mudah.com. As for the second issue, Meeloh is liable for the offence of dishonest cheating under Section 420 of the Penal Code when he disappeared after receiving the 2

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deposit money from Veeko. According to Section 420 of the Penal Code , the actus reus of dishonest cheating is where the accused cheats the victim by inducing the victim to deliver property to anybody or make, alter, or destroy valuable security. As for the mens rea, the accused is dishonest. In Liew Min Poh v Public Prosecutor [1962], the court held that for dishonest cheating, the prosecution must prove that the accused had deceived the victim and the accused had obtained the goods by dishonest means. Moreover, in Yong Yong Peng v Public Prosecutor [1947], the court held that there must be evidence that the accused has the dishonest intention at the time of obtaining the money or property. The actus reus is proven when Meeloh disappeared after receiving the deposit money made by Veeko via bank transfer. Moreover, due to the advertisement and the deception made by Meeloh to Veeko, Meeloh had induced Veeko to deliver the property, which is the money of RM5000 for the deposit to a bank account which Meeloh said belonged to his wife. Moreover, as in accordance with the judgement made in Yong Yong Peng v Public Prosecutor [1947], dishonest intention also exists ever since Meeloh had posted the advertisement of the new three-bedroom apartment in mudah.com. This is because Meeloh was dishonest to Veeko by concealing the facts that the apartment was not his and by deceiving Veeko when they went to the location of the apartment that they cannot view the property as he could not reach the tenants despite repeated call even when the advertisement clearly shows that the apartment was new. Moreover, this led to an agreement on August 15,2020, in which Meeloh agreed to sell and requested Veeko a deposit of RM 5000, in which when Veeko paid the deposit of RM5000 on August 17,2020. After Meeloh received the money, Meeloh could not be contacted and had since disappeared. This clearly proves the mens rea of Section 420 of the Penal Code since it exists at the time of the crime. Moreover, this had wasted the time and energy of the victim, Veeko, since he did not receive the property and he had wasted his money on the deposit in which Meeloh disappeared with. Also, Veeko wasted his energy as he thought that the new three-bedroom apartment is a good bargain for him to buy the apartment. Meeloh’s action in being dishonest on the facts that the apartment was not his as it belonged to someone else and the fact that Meeloh disappeared after receiving the deposit money from Veeko is similar to the facts of the case Public Prosecutor v Mazrin Abd Aziz [2015], where in this case, Mazrin, a 39-year-old unemployed male, was accused of cheating a teacher and his wife in relation to the sale of a house which was not his property at a price of RM 280,000 at http://www.mudah.my in 2014. The accused received two charges under Section 420 of the Penal Code and was sentenced to two years imprisonment and two strokes of cane for the first charge and for the second charge, the accused was sentenced to three years imprisonment and two strokes of cane. In summary, for the second issue, Meeloh is liable for dishonest cheating under Section 420 of the Penal Code since the actus reus and mens rea is proven when Meeloh had induced Veeko to transfer the deposit money of RM 5000 to a bank account which Meeloh stated that it was his wife’s bank account. In conclusion, for the first issue, Meeloh is liable under Section 415 of the Penal Code for simple cheating. If found guilty, he is punished under Section 417 of the Penal Code which states the punishment of imprisonment for a term may extend to five years, fine or both. As for the second issue, Meeloh is liable under Section 3

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420 of the Penal Code for dishonest cheating to Veeko. If found guilty, Meeloh is punished under Section 420 of the Penal Code , which he can be punished with an 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.

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QUESTION 2 The first issue in this question is whether Assam can be made liable under Section 3(1) of the Computer Crimes Act 1997 for the unauthorized access committed on the National Population Records Information System (SIREN). The second issue that can be identified is whether Assam can be made liable under Section 5(1) of the Computer Crimes Act 1997 for the unauthorized modification made on the citizenship status of the Filipinos. Based on the facts given, the suspects that can be identified is Gahram and Assam. The only known facts that he is a male. The unknown facts on Gahram are the age, religion, race, occupation, geographical area, identification card number and from where he knows Assam are not stated. Moreover, the were no facts which stated from what source in which he gets the RM10,000 which he used to pay Assam. The second suspect in this situation is Assam, who works as a systems analyst at the Selangor National Registration Department. However, it is unknown on his age, race, religion, home address and identification card number. Moreover, we do not know how long he worked as a systems analyst at Selangor National Registration Department and the facts did not disclose on the relationship between Gahram and Assam, as in whether they are friends or not. The victim is this case is identified as Kunyet. We only know that Kunyet is a male and hold a position as Assam’s superior officer at the Selangor National Registration Department. However, we do not know on his age, race, religion, home address and identification card number are not mentioned. According to the facts, on September 11, 2020, Gahram approached and promised to pay Assam RM10,000 for his effort if he succeeds in gaining access into National Population Records Information System (SIREN) to enable the five Filipinos residing in Lahad Datu, Sabah, to become Malaysian citizens which would enable them in obtaining Malaysian identity cards. Two days later, on September 13,2020, Assam started to gain unauthorized access into the National Population Records Information System (SIREN). Assam managed to gain unauthorized access into SIREN by using the password belonging to his superior officer, Kunyet, without his knowledge. However, the facts are silent on how many times Assam tried to gain access into SIREN before he succeeded. When Assam gained access into SIREN, he modified the citizenship status of the five Filipinos whom Gahram gave a name list, to Malaysian. When Assam used the password belonging to his superior officer, Kunyet, without his knowledge, it means that Assam is not authorized to make such modification since his position as a systems analyst in his workplace did not authorized him to make any modification. Hence, Assam used Kunyet’s password instead since he is Assam’s superior officer at the Selangor National Registration Department, making Kunyet entitled to perform any modification. Moreover, Assam committed the offence while he was at his office in the Selangor National Registration Department, using the office computer. However, it is unknown on the serial number of the computer used by Assam, its IP address, and the duration of Assam’s time in SIREN are unknown. As for the first issue, Assam can be held liable under Section 3 of Computer Crimes Act 1997, since the actus reus and mens rea under the said section is proven. According to Section 3 of the Computer Crimes Act 1997 , the actus reus 5

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is that the accused causes a computer to perform a function and the access is unauthorized in which Section 2(5) of the Computer Crimes Act 1997 explains on unauthorized access. In this situation, the actus reus is evident when Assam managed to gain unauthorized access into the National Population Records Information System (SIREN) by using the password belonging to his superior officer, Kunyet, without his knowledge. This is in line with Section 2(5)(a) and (b) of the Computer Crimes Act 1997 which states that if someone is not entitled to control access of the kind in question to the program or data, and he does not obtain the consent from the person who is so entitled to access to the program or data, he has committed unauthorized access to computer material. As for the mens rea of Section 3 of the Computer Crimes Act 1997, firstly, the accused intends to secure access to any program or data held in any computer and secondly, the accused knows the kind of access is unauthorized. This mens rea is evident when Assam had the intention to secure an unauthorized access into the National Population Records Information System (SIREN) since he obeyed to Graham’s request by modifying the citizenship status of the five Filipinos residing in Lahad Datu, Sabah, to become Malaysian citizens to enable tjem to obtain Malaysian identity cards so that Assam can receive RM10,000 from Gahram as a reward. Moreover, since Assam used Kunyet’s password to log into the system, Assam is not entitled to such access, which portrays that Assam indeed knows that the kind of access is unauthorized. This is accordingly in line with Section 2(2)(c) of Computer Crimes Act 1997 which describes that if a person uses the program or data held in a computer, he is considered securing access to the computer and causing it to perform any function. According to Section 3(1) of the Computer Crimes Act 1997 , it states that an individual shall be guilty of an offence if he causes a computer to perform any function with intent to secure access to any program or data held in any computer, the access he intends to secure is unauthorized and he knows at the time when he causes the computer to perform the function that is the case. Moreover, Section 3(2) of the Computer Crime Act 1997 mentions on the intention of the offender to commit the offence need not be directed at any program or data held in any computer. This means that regardless of whether Assam had the intention to gain unauthorized access into SIREN, he can be charged under Section 3 of the Computer Crime Act 1997. A case that can be used in this issue is the case of Public Prosecutor v Dato’ Gee Siew Yee [2019] 5 LNS 48, which in this case, the accused was charged for an offence under Section 3(1) of the Computer Crimes Act 1997 for committing unauthorized access to a computer belonged to the victim, Brian Periera, who is an IT manager, with the intention to access three files pertaining to Royal Lake Club meetings. The accused is also punishable under Section 3(3) of the Computer Crimes Act 1997. In summary, Assam is liable under Section 3 of Computer Crimes Act 1997 for gaining unauthorized access into the National Population Records Information System (SIREN). Regarding the second issue, Assam can be held liable under Section 5 of Computer Crimes Act 1997 since he modified the citizenship status of the five Filipinos to Malaysian to enable them to obtain the Malaysian identify card after he gained unauthorized access to the National Population Records Information System (SIREN) by using Kunyet’s password without his knowledge. According to Section 5(1) of the Computer Crimes Act 1997, it states that a person shall be guilty of an 6

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offence if he does any act which he knows will cause unauthorized modification of the contents of any computer. According to the said section on the unauthorized modification of computer contents, the actus reus is where the accused does any act, and the act causes unauthorized modification of contents of any computer. For the mens rea, it is where the accused knows that his act will cause such an effect which is unauthorized modification. In regard to Assam’s action, both actus reus and mens rea can be proven. As for the the actus reus, it is evident when Assam modified the citizenship status of the Filipinos to Malaysian and this is in line with Section 2(7)(a) of Computer Crimes Act 1997 which states when any program or data is altered, it amounts to unauthorized modification. By applying Section 2(8)(a) of the Computer Crimes Act 1997, Assam is not entitled to determine whether the modification should be made as he is only the systems analyst at the Selangor National Registration Department, and not someone who holds a higher position like Kunyet. In reference to Section 2(8)(b) of the Computer Crimes Act 1997, Assam does not have the consent to the modification from any person who is so entitled, which in this case is his superior officer, Kunyet, as Assam used Kunyet’s password without his knowledge. Moreover, the mens rea can be proven when Assam knows the fact that his act of modifying the citizenship status of the Filipinos to Malaysian, is exactly like what Gahram asked him to do on September 11,2020, which lead to unauthorized modification. Assam’s action is like the case in Public Prosecutor v Ahmad Zakri Raman (2017), which in this case, the accused was a 31-year-old Assistant Regis...