DEC 8 — “A criminal investigation can be initiated against Tun Dr Mahathir for offences under Section 415(b) of the Penal Code and punishable under Section 417 of the same Code, as well as under Section 418 of the same Code,” the report of the Pulau Batu Puteh Royal Commission of Inquiry (RCI) said.
Cheating is defined by s 415 of the Code as follows:
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, is said to ‘cheat’.
The term “cheating” accordingly prescribes two levels of criminality in deception: (a) deception by fraudulently or dishonestly inducing a person so deceived to deliver any property to any person, or to consent that any person shall retain any property, and (b) deception by intentionally inducing the person so deceived to do or 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.
It can be said that there are four elements which must be satisfied.
First element
The victim must be deceived. To put it another way, deception must have been practised on the victim.
Second element
There must have been an inducement such that the victim did an act or omitted to do an act which he would not do or omit to do if he were not deceived.
There is no requirement that this inducement must necessarily be oral, although in most cases that would usually be the case.
There is also no need for this inducement to be expressed, as compared to it being inferred.
For example, the deceiving party need not specifically induce the victim to do an act or omit to do an act if it could reasonably be inferred from the surrounding circumstances that this was clearly what the deceiving party was seeking to do, even though any particular act of the deceiving party, when taken alone, may not amount to an inducement enough to induce the victim to do an act or omit to do an act.
Further, this inducement must lead to doing an act or omitting to do an act. If there was an act or omission of an act but no inducement by the deceiving party, then it can hardly be said that there was any form of cheating, even if the deceiving party had the intention to cheat. (See the Singapore case of Gunasegeran s/o Pavadaisamy v Public Prosecutor [1997])
The whole purpose of Section 415(b) lies in the protection of innocent parties against being cheated by unscrupulous persons.
The inducement need not be the sole or even main reason for the doing of an act or omitting to do an act. So long as the deceiving party’s deception played some part in inducing the victim to do an act or omit to do an act, the offence would be satisfied.
Third element
The act or omission causes or is likely to cause damage or harm to any person in body, mind, reputation, or property.
According to the Oxford Dictionary, “damage” is loss of value or efficiency; to do harm to, injure, while “harm” is to damage, hurt. The damage or harm to the body, mind, reputation or property is caused or likely to be caused to the victim as opposed to a third party.
Fourth element
There must be an intention on the part of the deceiving person to induce the victim to do an act or omit to do an act – that is, to cheat – before the offence could be made out.
The above constitutes the mens rea for the offence and relates substantially to the definition of ‘cheating’ as in Section 415(b).
Intent refers to the dominant motive of action and not to a casual or merely possible result. The word “intentionally” only applies to the act or omission which the victim is induced to do or omit to do, and it is not necessary that the deceiving party should also have intended to cause harm or damage as a result of such act or omission.
The act or omission itself (or being likely to do so) to cause harm or damage is sufficient. (See Ratanlal and Dhirajlal’s Law of Crimes)
Any police investigation under Section 415(b) of the Penal Code must find the elements above.
** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
