7.

Cheating
• S415 – whoever by deceiving any person, (a) fraudulently or dishonestly induces the person so
deceived to deliver any property to any person; (b) intentionally induces the person so deceived to do
or omit to do anything which will cause damage or harm to any person
• Explanation 1 – a dishonest concealment of facts is a deception within the meaning of this section
• Explanation 2 – mere breach of contract is not of itself proof of an original fraudulent intent
• S417 – punishment for cheating, which may extend to 5 years, or with fine
• Several elements need to be fulfilled under s415:
a) Deceives any person
• The accused must be proved that he has the clear intention n acts dishonestly to induce the
person to be deceived
• Seet Soon Guan
H: cheating occurs when someone intentionally deceives other person, in order to wrongful
gain to himself n cause wrongful loss to that person
b) induces the person so deceived to deliver any property to any person
• The inducement can be by deceit or concealment of facts
• Low Cheng Swe
H: the accused was liable because he took two insurances from two companies, as both
companies thought that they r the only sole of his insure company. The accused liable for
concealment of facts
c) intentionally induces the person so deceived to do or omit to do anything which will cause
damage or harm to any person
• Illustration (h), A intentionally deceives Z into a belief that A has performed A’s part of a
contract made with Z, which he has not performed, n thereby dishonestly induces Z to pay
money. A cheats
• Because of the deceit, A causes Z for wrongful loss as Z paid the money to A
• S419 n s416 for cheating by personation, while s420 for cheating n dishonestly inducing
delivery of property
PHYSICAL ELEMENT
Accused deceived the victim and thereby induced the victim to;
1. Deliver the property to any other person
2. Consent to another person retaining property
3. Do or omit to do something which causes or is likely to cause damage or harms to any other person

FAULT ELEMENT
(1)(2). Fraudulently and dishonestly
3. intentionally

• S463 – whoever makes any false document or part of a document with intent to cause damage
or injury to the public or to any person, or to support any claim or title … commits forgery
• S465 – punishment for forgery, which may extend to 2 years
• There r several elements need to be fulfilled under s463

a) False document or part of a document

• Datuk Haji Harun Idris
F: The learned trial judge held that (1) the three appellants had forged the minutes of the
Investment Committee for the purpose of cheating, an offence punishable under section 468 of
the Penal Code; (2) the second appellant had committed criminal breach of trust of the shares
belonging to the bank, an offence punishable under section 406 of the Penal Code. The purpose
of these acts in the case was to obtain a loan from the bank to fund his World Boxing event
H: the accused was liable as he prepared the false minutes of meeting
b) The forgery is done with the method stated in s464
c) with intent to cause damage or injury to the public or to any person, or to support any claim
or title …
• The forgery is committed for the purpose stated in s463
• Hoo Chee Keong

H: the purpose of forgery of credit card by the accused was intent to enter an agreement with
the dealer
CHE MAN BIN CHE MUD V PUBLIC PROSECUTOR [1994] 4 CLJ 823
FACTS:
A is an adv & sol practicing under the style of Che Man & Partners. The A was
involved in a plan to defraud Bank Negara and it was successfully executed and the
result was that RM 22.2 mil belonging to BSN, which BSN remitted to Bank Negara
for the credit of Bank Negara’s Accountant General, found its way instead to the
account of Che Man & Partners. Subsequent to the fraud, a former clerk of Bank
Negara- Harun was charged with CBT and two alternative charges of cheating and
theft by clerk under S 409, 420 and 380 respectively. The former clerk pleaded guilty
to the second charge of theft. Evidence showed that the former clerk was attached to
the Public Debt Division and one of his duties was to handle cheques for advance
subscription for Givt Securities. In line with his duty, the former clerk received RM
22.2 mil. He had forged the signature of his superiors and was able to credit the money
to account of Che Man.
DECISION:
Appeal allowed. Conviction and sentence set aside.
S 378 states that the subject of theft must be movable property. S 22 - it refers to
corporeal property. As such it must be something that can be perceived by th esenses.
There cannot be theft of incorporeal property. To constitute theft there must be a
dishonest intention to take movable property out of its rightful possession coupled with
the act of moving that property. The movable property intended to be taken must be the
one and the same movable property that is actually moved

# Sanjeev Kumar a/l Verasingam v PP [2015] 2 MLJ 589

F: A 30-year old HIV patient died at Kuala Lumpur Hospital known as Unkown Mohan.
He had no identification document with him and he died at the emergency ward of 'cardiac
tamponade'. In accordance with hospital procedure, his body was transferred to the
mortuary of the hospital at the Forensic Department. A burial permit No A310068 (exh
P5) was issued by the authorised doctor, namely, Dr Khoo Su King ('PW13'), and written
in the burial permit (exh P5) is the name 'Unknown Mohan'. On the following day, that
is, on 13 September 2003, the third appellant
- had dishonestly deleted the name 'Unknown Mohan' in the burial permit (exh P5)
and in place of that name had written the name 'Michael a/l Soosai';
- erased the name 'Unknown Mohan' in an entry (exhs P6A and P6B) in the Register
of Deaths (exh P6) by means of a correction fluid and had written the name 'Michael a/l
Soosai' instead; and
- had falsified a death certificate (exh P16) purportedly to be that of one 'Michael
a/l Soosai', when that death certificate should have been in the name of 'Unknown Mohan'.

Held: On the basis of limb (b) of s 464, from the evidence it can be said that the third
appellant had made false documents, namely, the burial permit (exh P5), the entry exhs
P6A and P6B in the Register of Deaths (exh P6), and the 'death certificate' (exh P16). For
he, without lawful authority, had altered two documents, namely, the burial permit (exh
P5) and the entry (exhs P6A and P6B) in the Register of Deaths (exh P6); and that he had
knowingly prepared a false 'death certificate' bearing a false particular, namely, the name
'Michael a/l Soosai' as the name of the deceased patient, and had submitted it to PW5 (Dr
Wan Mohamed Zamri) 'with intent to commit fraud or that fraud may be committed', that
is, to deceive PW5 into issuing the false death certificate (exh P16). Thus, prima facie, he
had committed the offence of forgery.

Haji harunn idris

Forgery
The first charge-- against all three accused -- was one of forgery under section 468 of the
Penal Code.
The section reads:

"Whoever commits forgery, intending that the document forged shall be used for the
purpose of cheating, shall be punished...."

What is forgery and what is cheating?

Section 463 defines forgery as follows:
"Whoever makes any false document or part of a document with intent to cause damage
or injury to the public or to any person, or to support any claim or title, or to cause any
person to part with property, or to enter into any express or implied contract, or with intent
to commit fraud or that fraud may be committed, commits forgery."

Section 464 says how a false document may be made, and it is common ground that only
its first limb is relevant. Omitting irrelevant words, it reads:
"A person is said to make a false document --
 First. -- Who dishonestly or fraudulently executes a document with the intention of
causing it to be believed that such document was executed by the authority of a person
by whose authority he knows that it was not executed."

Cheating is defined by section 415 in the following words:

"Whoever, by deceiving any person, 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 intentionally induces the person so deceived to do or to omit to do
anything which he would not do or omit if he were not so deceived, and which act or
omission causes or is likely to cause damage or harm to that person in body, mind,
reputation, or property, is said to 'cheat'.
Explanation 1. -- A dishonest concealment of facts is a deception within the meaning of
this section.
Explanation 2. -- Mere breach of contract is not of itself proof of an original fraudulent
intent."

Then follow several illustrations of the meaning of cheating, none of which is relevant to
this case.
Section 24 defines "Dishonestly" and reads:
"Whoever does anything with the intention of causing wrongful gain to one person, or
wrongful loss to another person, is said to do that thing 'dishonestly'."

Section 23 defines "Wrongful gain" and "Wrongful loss" in the following words:--
'Wrongful gain' is the gain by unlawful means of property to which the person gaining is
not legally entitled.
'Wrongful loss' is the loss by unlawful means of property to which the person losing it is
legally entitled.
A person is said to gain wrongfully when such person retains wrongfully, as well as when
such person acquires wrongfully. A person is said to lose wrongfully when such person
is wrongfully kept out of any property, as well as when such person is wrongfully
deprived of property."

Ingredients of forgery
With respect we agree with the learned trial judge that for the purposes of the forgery
charge under section 468, the prosecution had to prove three main points, namely:

(1) that P12 was a false document within the meaning of the first limb in section 464;
(2) that the making of the false document comes under at least one of the intents in section 463,
and
(3) that P12 was intended to be used for the purpose of cheating.

First main point

We agree that under the first limb in section 464 the prosecution had to prove four
ingredients, namely that the accused:

(a) made P12;

(b) intended P12 to be believed as having been made by or by the authority of the Investment
Committee of the bank;
(c) knew P12 was not so made; and
(d) made P12 dishonestly or fraudulently.
As to (d) the prosecution relied only on dishonest intention on the part of the accused.

Second main point

With regard to the intent necessary under section 463 the learned trial judge considered
and we agree that it was enough for the prosecution to prove an intent on the part of the
accused to support a claim or title, an intent to cause the bank to part with its shares and
an intent to enter into a contract.

Third main point

With regard to the third main point, namely that PW12 was intended to be used for the
purpose of cheating, the learned trial judge considered and we agree that the prosecution
need not prove the actual commission of the offence of cheating but only that the three
accused intended P12 to be used for the purpose of cheating. Specifically, he considered
and we agree that the prosecution must prove that the three accused by means of P12
intended to deceive and to induce FNCB to issue letters of credit on account of Tinju
Dunia, which they would not have done if not so deceived, and that such act was likely
to cause damage to FNCB in property, as without P12 the pledge would not have been
efficacious and the security would not have been accepted.