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Lectures 5 & 6

The Offence of Cheating and Related Offences

The lectures cover the offence of


cheating, criminal misappropriation and
criminal breach of trust.
In instances where criminal
misappropriation or criminal breach of
trust is said to be present, the offence
of cheating may also need to be
discussed - Sivalingam v PP [1982] 1
LNS 20.

Cheating
The following sections relate to the
offence of cheating:
i)S 415 and 417 - Rogayah Che
Mat v PP [2001] 1 CLJ 230.
ii)S420;
iii)S

416/ 419 - Majlis Peguam M`sia v


Yap Min Ch`ng [2015] 9 CLJ 454.
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S 415 defines the offence.


To understand the AR - refer to page 456.
To understand the MR refer to page 457.
S

25 is of relevance as it gives meaning to the term


fraud.
This

section would be relevant if the victim is being


induced to give up something or has consented to the
defendant retaining something. See - s415 (a).

The offence of cheating would only take place if


the victim was INDUCED by the deception, i.e
he believed in what was being said or done and
as a result of this deception the victim refer to
(s415 (a) or (b).
Refer to page 457.
Relevant case:
Sanjeev Kumar Veerasingam v PP and Other
Appeals [2015] 4 CLJ 734;

Rogayah Che Mat v PP [2001] 1CLJ 230.

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.

At the onset I must state that s. 415 is a definition and not a substantive section
under which a person may he charged (Penal Law of India vol. Iv Dr. Sir Hari
Singh Gour Public Prosecutor. 3516 and 3524).

Section 417 punishes simple cases of cheating (Laws of Crimes by Ratanlal) as


compared to s. 420 which is 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.

To be convicted of cheating, the following elements must be proven:


(a) the representation made by an accused person is false;
(b) the accused knew that the representation was false at the very time it was made;
(c) he made the false representation with the dishonest intention of deceiving the person
to whom it was made; and
(d) he thereby induced that person to deliver any property or to do or to omit to do
something which he would otherwise not have done or omitted
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In this appeal from the Sessions Court, two


preliminary points were raised, namely: (a) the failure
of the sessions judge to read and explain the
amended charge to the accused as required by s. 158
of the Criminal Procedure Code; and (b) that the
conviction was founded on a charge unknown in law.

Held: 3) Section 415 of the Penal Code is 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.

Based on these cases the following can be


concluded:

i)If

a person commits cheating his wrongful act could fall under s 415
and he would be punished under s 417. As s 415 only defines the
offence of cheating.
ii)ii)

Section 415 is similar to s 420, this section could be invoked if


the prosecution for instance, wishes to seek a higher punishment.
i)iii)

The defendants could also have committed other offences such as


criminal misappropriation or criminal breach of trust.

Cheating under s 416

Section 416 defines a particular kind of cheating refer to page


458 of your text book.

Relevant Case:

Majlis Peguam M`sia v Yap Min Ch`ng [2015] 9 CLJ 454.

An interesting case for you to read

Brief Facts:
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.

.
[11] To conclude, after perusing the cause papers and submissions of the
parties, written as well as oral, I am of the view that as it is, there is nothing
to show that he was actually the one who committed the offence. One year had
passed and no evidence that he would be prosecuted. I do not think that this
court can act on mere suspicious. As it is, I agree with the petitioner, there is
no evidence of his bad character. If in future it can be proven, of course Bar
Council can take action against him.
Since there was insufficient evidence the accused was not found guilty. If
found guilty he would have been punished under s 419.

Criminal Misappropriation
S

403 punishes this offence.


According to Durugappa V State of
Mysore [1956] Cri LJ 630 it was held
that a defendant would infringe the
section if he dishonestly ( refer to
ss24 and 23) appropriates and
deals with a property of another,
without right, as if the property
was his own.
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Criminal Breach of
Trust
The section which provides definition s
405.
There are several sections that the
prosecution could invoke depending on
the facts of each case.
Please
Other

refer to pages 436- 452.

sections that you must also know

are
ss 409A and 409B.
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PP v Suhaimi Abdullah
[2015] 2 CLJ 1023
Brief

Facts:

The accused was an interpreter at the Selayang


Magistrates' and Sessions Court who was charged for
dishonestly pawning off court exhibits, which were in the
form of gold items, for personal gain. The accused,
however, was acquitted and discharged by the Sessions
Court Judge of the 43 charges of criminal breach of trust
under s. 409 of the Penal Code. The prosecution appealed
against the said decision. The issues that arose were,
inter alia (i) whether the accused had been entrusted with
the property; (ii) whether there was sufficient evidence as
to when the misappropriation took place; (iii) whether
adverse inference should be invoked for prosecution's
failure to call a material witness; and (iv) whether a prima
facie case was established against the accused.
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Held

(dismissing prosecution's
appeal):
(1) For an offence of criminal breach of trust, the root
ingredient is 'entrustment'. The accused had been entrusted
by SP12, the Magistrate hearing the inquiry where the gold
items were produced. According to SP12, she had directed the
accused to hand over all the gold items to the Registrar to be
kept in the strong room after the proceedings ended. It is trite
law that entrustment must be differentiated from the
performance of a duty. The fact that SP12 had directed the
accused to hand over the items to the Registrar showed
that the accused was asked to perform his duty and at
no time was he entrusted with the property.

This being the case, the vital ingredient to sustain a charge of


criminal breach of trust was missing. Under the circumstances,
even if the accused had pawned the jewellery he would have
committed criminal misappropriation an offence under s. 403
of the Penal Code but certainly not under s. 409 of the Penal
Code. (paras 11 & 12)
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(2)

The persons and the pawn shop where the


accused was said to have pawned the 14 could not
identify the accused as the person they had dealt
with.

For the items which could be linked to the accused


by way of the pawn shop receipts, it could not be
proven this were the same items which were the
missing items from the court.

Further, the prosecution led no evidence to show


whether at any point of time the items were ever
kept in the strong room or otherwise. There was no
evidence as to when the misappropriation if any,
actually took place. (paras 13-15)

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Farida Ariani Fadzil lwn PP


[2016] 2 CLJ 626
Brief

Facts:

Perayu, seorang penjawat awam yang bertugas


sebagai Guru Penolong Kanan Hal Ehwal Murid di
Sekolah Kebangsaan Behor Empiang, Kangar, Perlis
('SKBE'), diamanahkan membayar wang bantuan
daripada Kumpulan Wang Amanah Pelajar Miskin
berjumlah RM5,400 ('wang KWAPM') kepada 12 orang
murid tahun satu.

Pembantu Am Rendah SKBE ('SP6') memberi keterangan bahawa dia menerima


cek berpalang ('eks. P5') bagi wang KWAPM daripada Guru Besar SKBE ('SP4')
untuk ditunaikan di bank. Pengurus Cawangan Bank Muamalat, Kangar ('SP2'),
mengesahkan menerima dan menunaikan eks. P5. SP6 menyerahkan wang
KWAPM tersebut kepada perayu. Semasa mesyuarat, perayu memaklumkan
bahawa wang KWAPM telah diserahkan kepada murid-murid yang berhak.
Namun begitu, SP4 didatangi ibu bapa murid yang mendakwa tidak menerima
wang KWAPM. Apabila ditanya, perayu memberi alasan-alasan yang berubahubah. Perayu dipertuduh di Mahkamah Sesyen kerana melakukan pecah
amanah, satu kesalahan di bawah s. 409 Kanun Keseksaan

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In

this case the prosecution could


prove that the money was
entrusted to the public servant and
it was used by the defendant for
private purpose.
Held:

4)Seksyen 409 memperuntukkan hukuman penjara tidak kurang dua


tahun dan maksima 20 tahun dan rotan dan boleh dikenakan denda.
Perayu diamanahkan mengurus wang KWAPM bagi murid-murid
miskin. Perayu telah melakukan jenayah pecah amanah dan untuk
kepentingan awam, hukuman dijatuhkan sebagai pengajaran bagi
perayu dan peringatan buat masyarakat. Hakim Mahkamah Sesyen
telah menimbangkan prinsip penghukuman yang betul apabila
menjatuhkan hukuman terhadap perayu. Hukuman yang dijatuhkan
memadai dan tidak berlebihan

.
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