Cheating under Penal Code 1871

Cheating under Penal Code 1871

General Overview

Paying a lump sum amount to a person only to later realize that the person was not who they said they were might not strain one’s bank account but it might cause damage to one’s mental state and/or reputation. Even if the amount paid, being deceived, was not very high, one can still frame charges against such a person for the mental, physical, and/or reputational injury suffered. Such offenses can be categorized as cheating under the Penal Code 1871.

Explanation of Cheating under Penal Code

According to section 415 of the Penal Code 1871, an offense of cheating occurs when a person through deception either:-

a) Induces another to deliver or cause the delivery of any property to any person through fraud or dishonesty.
b) Induces another to consent that any person shall retain any property through fraud or dishonesty.
c) Intentionally induces another to do something or omit to do something which they would have not done if they were not deceived.

This act or omission by the deceiver must cause or must be likely to cause injury or harm to the other person in mind, body, reputation, or property.

Explanation of Cheating by Personation

According to section 416 of the Penal Code 1871, an offense of cheating by personation occurs when the deceiver either:

a) Pretends that they are someone else.
b) Intentionally substitutes a person for another.
c) Represents themselves or another person as someone else.
The individual personated can be an imaginary person or a real person.

Explanation of Cheating and Dishonestly Inducing Delivery of Property

Cheating and dishonestly inducing delivery of property is an aggravated form of cheating mentioned under section 420 of the Penal Code 1871. An offense of cheating and dishonestly inducing the delivery of property occurs when the deceiver either:

a) Induces another to delivery or cause the delivery of any property to any person.
b) Induces another to alter or destroy the entire or any part of valuable security.
c) Induces another to alter or destroy anything that was signed or sealed and was capable of being converted into a valuable security.

This form of cheating may attract heavier punishments than the other forms of cheating.

Explanation of Cheating to Obtain Services

An offense of cheating to obtain services occurs when a person dishonestly, fraudulently, and intentionally obtains services on the basis that the payment has been made, or is being made, or will be made for such services. If the payment has not been made entirely or only a part of the payment has been made, it will still be considered an offense of cheating to obtain services. This is also another form of aggravated cheating and is mentioned under section 420A of the Penal Code 1871.

Factors that Aggravate the Offense of Cheating

Some aggravating factors that are considered by the courts while sentencing:

1) Against Public Interest: Instilling doubts or fear in the minds of the public is one of the most important factors considered by the courts while giving sentences to offenders. Offenses concerning credit cards are taken extremely seriously by the Singapore courts as they might result in undermining the use of credit cards as a preferred mode of payment especially since Singapore is one of the most important financial hubs of the world.

2) Complexity: Another factor considered by the courts is whether the actions of the offender were complex. For example, if the offender is skilled at avoiding detection or is part of a large syndicate.

3) Value of the Property: Generally if the value of the cheated property, may it be an item or money, is high, the offender will get a heavier sentence.

Punishments for Cheating under the Penal Code

The penalties for different forms of cheating under the Penal Code 1871 are mentioned below:

a) Non-Aggravated Cheating: The minimal penalty for cheating mentioned under section 417 of the Penal Code is imprisonment for a period of up to 3 years and a fine, or either.

b) Illegally Obtaining Personal Information: If any person obtains, retains, or supplies another’s personal information, without their consent, for facilitating the commission of an offense, such person can be punished with imprisonment for a period of up to 3 years and with a fine for an amount of up to $10,000, or either, as according to section 416A of the Penal Code.

c) Wrongful Loss Suffered by a Person whose Interests the Offender is Bound to Protect: If the offender was bound by law or legal contract to protect the interest of the victim, such offender may be punished with imprisonment for a period of up to 5 years and a fine or either.

d) Cheating by Personation: The punishment for cheating by personation is imprisonment for a period of up to 5 years and a fine or either.

e) Aggravated Cheating: For cheating under section 420 of the Penal Code, the punishment is imprisonment for a period of up to 10 years and a fine.

f) Cheating to Obtain Services: For a person who obtains services dishonestly and fraudulently under section 420A, the punishment is imprisonment for a period not exceeding 10 years and a fine or either.

Factors that may Mitigate Sentences

Every decision given by the court is on a case-to-case basis. However, some factors that the courts may consider to mitigate the sentences of the offender are:

1) Voluntary Restitution: As by making restitution to cover the losses of the victim, the accused would not be making any financial gain from the offense, the courts may consider this as a mitigating factor.

2) First-time Offender: If the offender does not have any criminal record prior to committing the offense, the court may grant them a lighter sentence.

3) No Loss Suffered by the Victim: Another instance where the court might consider giving a lighter sentence is when the victim of cheating has not suffered any loss.

4) The Motivation of the Accused: If the accused did not intend to commit the offense of cheating for his or any other person’s gain, then this might be another factor that might mitigate the sentence.

Criminal Record for Cheating

People who are convicted of the offense of cheating will have a criminal record but this record can be wiped clean if the offender satisfies the following criteria:

a) The imprisonment period, if given, must not have been more than 3 months.
b) The fine, if imposed, must not have been more than $2000.
c) There must not be any past conviction on criminal records.
d) There must not be any prior spent record on the register.
e) The offender must remain crime-free after the passing of his sentence or release from prison.

Options for Victims of Cheating

1) Filing a Police Report

The police will investigate the offense and may charge the accused based on sufficient evidence if found. The victim may report to the police at a police station, online, or by calling the police emergency line.

2) Criminal Court

If found guilty, the offender may be ordered to make compensation to the victim but such compensation may not amount to the entire property or money being recovered or returned.

3) Civil Court

The victim can file a civil claim even after compensation has been awarded by the criminal court. The claim must exclude the amount which has been rewarded as compensation by the criminal court.

Glossary

1) Dishonestly: A person is said to do an act dishonestly if they do that act with the intention of causing wrongful gain to him/her or another person, or wrongful loss to another person, regardless of whether such gain or loss is temporary or permanent or that act done by him/her is dishonest by the ordinary standards of reasonable and honest persons and they know that that act is dishonest by such standards.

2) Fraudulently: A person is said to do an act fraudulently if they do that act with intent to deceive another person and by means of such deception, that an advantage should accrue to them or another person or detriment should befall that other person or anyone else, regardless of whether such advantage or detriment is temporary or permanent.

3) Intentionally: A person is said to do an act intentionally where that person does an act deliberately.

4) Aggravating Factor: Any fact or circumstance that increases the severity or culpability of a criminal act. Aggravating factors include recidivism, lack of remorse, amount of harm to the victim, or committing the crime in front of a child, among many others.

5) Wrongful Gain: A “wrongful gain” is gain by unlawful means of property to which the person gaining it is not legally entitled or avoidance by unlawful means of a loss of property to which the person avoiding it is not legally entitled to avoid.

6) Wrongful Loss: A “wrongful loss” is loss or exposure of risk to a loss by unlawful means of property to which the person losing it or exposed to the risk of losing it is legally entitled.

7) Mitigating Factor: Any fact or circumstance that lessens the severity or culpability of a criminal act. Mitigating factors include an ability for the criminal to reform, mental retardation, an addiction to illegal substances or alcohol that contributed to the criminal behavior, and past good deeds, among many others.

Cases Concerning Cheating

1) Public Prosecutor v Fernando Payagala Waduge Malitha Kumar [2007] SGHC 23

The background of this case involved a 20-year old Sri Lankan national residing and working in New Zealand. He boarded a flight from New Zealand to Singapore where he was to take another connecting flight to Colombo. During the flight to Singapore, the offender found a credit card belonging to another foreign national on the seat beside him. The offender retained the credit card and upon arrival at Changi Airport, he purchased a laptop, a watch, and a handphone. When the offender was going to purchase a bracelet, he was arrested by the police. The district judge sentenced him to 2 months imprisonment and not being satisfied by the sentence, the public prosecutor appealed against the decision. The High Court enhanced his sentence to 6 months imprisonment as the crime committed was against the interest of the public at large due to the offense concerning a credit card at one of the most important financial hubs in the world, Singapore.

2) Nathan Edmund v Law Society of Singapore [2012] SGHC 232

The background of this case involved a lawyer who cheated a bank when applying for a bank loan by overstating the purchase price of a property. Since no loss was caused to the victim, the High Court sentenced him to one day’s imprisonment and a fine of $10,000. His appeal was also dismissed. The Registrar of the Supreme Court filed a complaint to the Law Society concerning the same matter. The Law Society recommended a fine of $3,000 and also struck him off the Roll, the next year, due to his dishonest character and improper conduct. The offender applied to this Court after more than 10 years to restore his name in the Roll of advocates and solicitors of the Supreme Court of Singapore. The Court granted his application subject to some conditions proposed by the Law Society.

3) Public Prosecutor v Adrian Lee Chong Boon [2018] SGDC 256

This case involved a director of a company who was convicted of two charges of cheating under section 417 of the Penal Code 1871. The background of this case involved the company director deceiving his clients and inducing them to enter into a contract with the company, he was the director of, with false information. The Court after going through the facts and circumstances of the case sentenced the offender to 9 months of imprisonment and 3 months of imprisonment which would run consecutively against the two charges under section 417 brought against him and was also ordered to make full restitution of the injuries caused at $58,830.

4) Public Prosecutor v Kreetharan s/o Kathireson and others [2019] SGDC 232

This case involved cheating punishable under the aggravated form of cheating under section 420 of the Penal Code 1871. The offender was convicted of four charges for engaging in a conspiracy for cheating which was punishable under section 420. The offender appealed to the High Court against the decision passed by the district judge but the appeal was also dismissed.

5) Leck Kim Koon v Public Prosecutor [2021] SGHC 236

The background of this case involved a director of a company that specialized in the import and export business of aluminum and related products. The business had financing credit facilities with various banks and it was agreed that funds would be disbursed to relevant suppliers under a pre-agreed credit facility upon submission of an application form along with other documents. The offender was charged under section 420 of the Penal Code for having used duplicate copies of the same transport document to obtain disbursements of funds from six banks. He was sentenced to 36 months of imprisonment and the offender appealed to the High Court against this decision. The High Court dismissed the appeal after finding that it was proven beyond reasonable doubt that the accused did indeed commit the offenses of cheating.