Deception
Note: major difference in UK and HK law! Book inapplicable. UK had a big reform
in 2006
Deception is a more serious crimes and the starting point is higher than theft.
Write down definition and then define element!
The difference in obtaining v appropriate
TWO MAIN FOCUS: obtaining PROPERTY or SERVICE
New element of deception on top of theft
Actus reus:
(1) by deception (2) obtains (3) property (4) belonging to another.
Note: issue about consent and property as established in theft applies as well. A
deceptively obtained consent does not prevent an appropriation (see R v Gomez)
1) By any deception: Definition laid out in TO 17(4)
* If D by deception induces V to sell goods to him the offence is complete when
ownership is transferred which may occur before the goods are delivered.
* If D by deception obtains a loan of the property the offence is complete, if all the
other requirements are met, when D gets possession or control of them.
* If D by deception induces V to transfer the ownership in property to E; or where by
deception D induces V, who has lent goods to E, not to enforce his right to recover
goods from E.
Re London & Globe A case where liquidator is deciding THE DEFINITION of deception:
Finance (wind up) whether or not the director of the Buckley J:- “To deceive is, I apprehend, to
(1903) 1 Ch 728 company can be sued with induce a man to believe that a thing is true
deception which is false, and which the person practicing
the deceit knows or believes to be false.”
Cited in HKSAR v Chan Kam Ching [2022]
HKCFA 7.
Davies v Flackett A person speeds through speed gate Court held that one cannot deceive a machine
without paying for carpark, charged since it does not have a mind to be deceived on.
with deception The deception must operate on a human
mind.
If there are machines involved, it is unlikely to
satisfy the deception element .
But if a human is operating that machine, and
deception has been operated in a human mind, it
is possible to find an effective deception for the
purpose of Section 17
Deception can be done by conduct or omission, and the statement made can be
expressed or implied.
Deception may be by words or may be implied by conduct, e.g.,
ordering a meal in a restaurant implies that a person intends to pay and has the ability
to there and then pay (DPP v Ray [1974] AC 370);
and using a cheque guarantee card (Charles v MPC [1977] AC 177)
or a credit card (R v Lambie [1982] AC 449) implies that the user has authority to use
it; and writing a cheque implies that it will be honoured when presented for payment.
DDP v Ray The defendant had ordered a meal in a restaurant The House of Lords held that the
and had consumed it with an honest state of mind. defendant had exercised a deception
He then discovered that he was unable to pay for by remaining seated in the
the meal and remained silent as to his change in restaurant having decided not to
circumstances. The defendant waited until the pay. His remaining in this position
dining area was clear of waiters before running out. created the implied and continuing
The defendant was convicted under s16(2)(a) of the representation that he was an honest
Theft Act 1968 (now replaced by the Theft Act customer who intended to pay the bill,
1978). thus inducing the waiters to leave the
dining area unattended, giving him the
opportunity to run off without paying.
R D went into a shop in Oxford wearing a gown Through wearing uniform, it is a
v Barnard (1837) which indicated that he was a member of the representation which is a deception.
University.
In fact, he was not a member. He did not explicitly
say he that was a member of the University, but
ordered goods at a discounted price which was only
available to members.
The defendant was charged with false pretences
(similar to fraud)
R v Rai (2000) A person did not note that his mother died, thus Deception can be done through
164 JP 164 allowing social benefit to help finish renovating the silence.
house under the false premise that the mother is still
alive
R v King [1979] The second-hand car dealer told the purchaser that Failure to inform can also be a
Crim LR122 the car mileage shown on the odometer ‘may not be deception
correct’ and by doing so he impliedly represented
that it might be correct when he knew that this was
not the case.
R v Gilmartin The defendant had signed three cheques on behalf Deception was found.
[1983] of a private company he had formed to carry on his
business, in payment for goods for the business, and The drawer of a post- dated cheque
signed a fourth cheque made payable to a company (cheque with delayed payment)
with whom the business had a running account. implied to the payee that the state of
All four cheques were post-dated, were signed at a facts existing at the date he handed
time when the business account was heavily over- over the cheque was such that the
drawn and were subsequently dishonored on cheque is payable on or after the date
presentation. posted (which is not true)
• Similar case in HKSAR v Lam
Chun sun (1998): If D knows
at the time of drawing a
cheque that it would not be
honoured or was at least
reckless as to whether it would
be honoured… it will amount
to a “deception” within Section
17 (4), if the cheque is not in
fact honoured.
A mere belief is not enough
R v Deller D sold a car ‘free from encumbrances’ thinking, It is not a deception if D makes a
incorrectly, that it was subject to an encumbrance representation believing it to be false
through a hire purchase agreement. (There could be if it is in fact true
a charge of attempt in such a case).
Deception can be through obtaining what is more than reasonable
In R v Silverman (1987) 86 Cr App r 213 and R v Jones [1993] The Times 15
February, the court seemed willing to imply a statement by the accused to the effect
that the accused was going to obtain no more than a reasonable profit when he knew
this was far from true (In Silverman, where the conviction was quashed on other
grounds, the tradesman gave very high quotations for property repairs to elderly
victims who trusted him; and in Jones, a milkman overcharged a gullible customer).
The deception must be deliberate or reckless. Section 17(4) TO
1) D must know or be reckless as to the falsity of his statement or conduct.
2)Make the statement/imply the conduct intending to deceive the victim or being
reckless as to whether the victim is deceived. (e.g. unjustified risk taking as to the
statement or conduct)
2) Obtaining
S17 (2) includes:
a) obtaining for another
b) enabling another to obtain
c) enabling another to retain
A tells B that C has just lost his job and cannot afford to buy the latest Mirror
album. This is a lie. B gives C his own.
A lends his guitar to B. C tells B that A told him to give the instrument to D. B
does so.
A possesses a skateboard belonging to B. C tells B that A has lost it so B does
not seek its return.
Man Ping- A shop keeper dishonestly said that a Doctrine of irresistible inference:
wong (1988) Walkman camera has a year warrant the prosecution must prove that D’s false
while that is not the case. representation made only a “significant”
An appeal against the conviction contribution to the victim’s decision to hand over
argues that there was no express money.
evidence that V would not have
bought the "walkman" but for the The appeal was dismissed, the warranty was a
representation significant factor as the purchaser did ask
The deception must precede the obtaining of property.
R v Coady The defendant’s was convicted for Conviction quashed
obtaining petrol at a self-service The fatal flaw in the prosecution case was that it was
station by the deception that he was clear that the defendant had informed the cashier that
authorized to charge the petrol to the the petrol should be charged to the account only after
account of his former employer, which he had got the petrol.
he was no longer entitled to do.
Note: The court was skeptical about the wider
representation that when the defendant drove onto the
forecourt, he represented an intention to pay which he
did not in fact possess. This was alleged to be
inconsistent with the indistinguishable case of Collis-
Smith
R v Collis- a motorist fills his car with petrol and Deception was not found, he only made the deception
Smith the practices a deception on the after the property was obtained
attendant in order to avoid payment by
telling the attendant that his firm
would pay
However, V must be AWARE OF THE DECEPTION
The question as to whether a deception is operating on a victims mind at
the time of the obtaining, is a question of fact for the jury. See R v King
(1987)
R v Laverty D convicted of selling a car with changed plates. Conviction quashed, as the deception was
not operating in V’s mind at the moment of
V said that he bought the car because he thought D obtaining
was the owner. As there was no evidence that V
bought the car in reliance on that deception nor
that he would have minded at all that the car did
not bear its original plates.
On appeal the sole question was whether this false
representation operated on V's mind so as to cause
him to hand over his cheque.
Hensler D wrote a begging letter claiming falsely to have D could not be guilty of obtaining by
(1870) 11 been shipwrecked and destitute; but the person deception but would be guilty of attempt.
Cox CC 570 receiving the letter sent D money despite knowing
that the representations were false. The deception does not operate on minds of
D.
Ng Chi- N and others who were armed represented that They appealed on the grounds that their
kwong they were police officers during a raid at a site alleged misrepresentations had not operated
[1980] where illegal gambling was taking place. They on the mind of the victims, and some other
HKLR 32 seized large sums of money, as exhibits and bail representation had operated on the minds of
money from site workers, and were convicted of the victims.
obtaining the sums of money by implied The Court concluded that the fact that some
representations as to the money being exhibits and other representation was the effective cause
bail money. of the handover of money was not
conclusive.
Deception was done through conduyct. The jury had concluded that the alleged
misrepresentations deceived the workers,
and operated on their minds to some extent
when they failed to protest at the seizure of
the table money and made the additional
payments.
The Doctrine of irresistible inference v Don’t care
Doctrine of irresistible inference: An inducement can be inferred however, if
the circumstances are such that, other than the deception, no reason can be
suggested as the operative inducement, otherwise D should be acquitted.
Additionally, it does not matter if D suffered no actual loss
R v Lambie The defendant used her own credit card Conviction upheld by House of Lords on the
knowing that authorisation had been basis:
withdrawn. She was convicted of obtaining a … if the shop assistant had known the truth she
pecuniary advantage by deception from her would not have accepted the credit card in
bank. payment, hence the use of the card was an
operative deception.
Although the shop assistant does not know, they
are likely to be indifferent yet there is the
doctrine of irresistible inference.
But for the deception, there is no other reason
that D was able to obtain property
Cheung A person picked up a valid winning ticket that Deception was found
Wai-wan was not bought by him, he used it to claim the
money but was later caught Irrelevant that HK Jockey Club suffered no
loss when C obtained payment by falsely
presenting a valid winning ticket as his own.
3) Property
The definition of property is similar to theft
The only difference is that the limitations upon what can be stolen for the purposes of
theft found in ss5(2)-(6) do not apply to s17.
Land may thus be obtained by deception as commented in Chai Wai-Lam (1981)
The following have been held to have been property obtained by deception:
Rent: Edwards (1978)
Passport: Ashbee (1989)
Textile Quotas: R v Yiu Lai-kuen (1993)
Excess of an excessive taxi fare: Levene v Pearcy (1976)
But the property must still be ‘belonging to another’
R v Preddy In order to secure a loan, Preddy Held that there was no s15 offence (s17 in HK) committed
forged some documents. when the defendant caused transfers between the victim's and
Preddy deceived the bank, but his own bank account by deception.
the money itself does not belong This arises because of the legal relationship between a bank
to the bank. The bank can’t sue. and its customer.
When the lender (bank) give out a loan, the credit became a
thing in action when the money is transferred into the bank
and the action was extinguished!
Explanation: the account is a “thing in action”, i.e. a debt
owed by the bank to the customer or vice versa. BUT, when
the "transfer" took place, one debt owed by the bank to its
client was reduced, and a second debt (a different thing in
action) in the same amount was created, that is a debt owed by
the Defendant to his own bank.
Note: loan was also considered to not be a service.
This is a confusing case regarding bank frauds,
HK can use S18(D) TO. “Dishonestly procuring an entry in a bank record.”
Alternatively in HK, a charge of theft can be laid whereby D appropriates the victim’s
credit balance by causing it to be extinguished or reduced. HKSAR v Goh Swee Yan
Angelina (2000).
4. Belonging to another
s6(1) TO apply to the s17 offence. “Property shall be regarded as belonging to any
person having possession or control of it or having in it any proprietary right or
interest."
Mens Rea
The mens rea consists of the defendant acting
(1) dishonestly (2) with the intention of permanently depriving the other of it,
and (3) deliberately or recklessly making the deception.
1) dishonest: same as theft
Note: a R v Ghosh direction (honestly done so from a subjective view) need not be
given in all cases. And would be misleading in most. R v Price
The direction must be given where the defendant "might have believed that
what he is alleged to have done was in accordance with the ordinary
person's idea of honesty" (per Lord Lane CJ)
2) intention of permanently depriving:
Similar to theft, definition in s7 of TO applies
The main difference is whether the idea of ‘obtaining’ exist at the moment of the
deception.
Unlike theft, the principle of later assumption does not apply here, there must be
the idea of ‘obtaining’ for the deception act
R v Wheeler (1991) 92 D brought stolen goods but didn’t realise. His continued representation that he
Cr App R 279 He then decides to sell the goods on had good title did not render him
On being informed, he did not stop the sale liable under s17 because title had
and continued to sell the goods on. passed to the purchaser at the time of
the agreement to sell.
Whether a deception is an operative
cause of the obtaining is a question of
fact for the jury.
Obtaining a Service by Deception (S.18A)
Actus reus:
Service:
Services are obtained only when a person is induced to confer a benefit on the
understanding that the benefit has been or will be paid for: s18A (2).
1) It DOES NOT APPLY TO FREE/GRATIOUS SERVICE, NO MATTER HOW
OBTAINED.
(Even if someone is tricked into providing a free service, it does not fall under
this)
(Note, this is under Evasion of liability (18B TO)
The keynote being whether the benefit is conferred on the understanding that it has
been or will be paid for.
The form of payment does not matter
2) There is no need to prove that D acted for gain.
3) No need that D’s deception relates to payment.
D may be liable if D deceives (I have a driver’s licence) a car hire company
(service provider) into providing services (car hire) that D would not
otherwise have been able to obtain. Even if he intends to pay for the car hire.
Another example can be underage drinker.
it is unclear whether "benefit" is to be interpreted subjectively or objectively.
If the former, there will be a benefit if the accused thinks notwithstanding that the law
makes the conduct in question illegal, e.g, the supply of a controlled drug or an illegal
abortion.
If the latter, conduct prohibited by law cannot be regarded as a benefit.
Mens Rea requirement is dishonesty, same as all others in TO, subjective/
objective
Legislation regarding deception:
17.Obtaining property by deception
(1) Any person who by any deception (actus reus 1) (whether or not such deception
was the sole or main inducement) dishonestly (deliberate or reckless) (mens rea 1)
obtains (actus reus 2) property(actus reus 3) belonging to another (actus reus 4) ,
with the intention of permanently depriving the other of it (mens rea 2), shall be
guilty of an offence and shall be liable on conviction upon indictment to
imprisonment for 10 years.
(2) For the purposes of this section a person is to be treated as obtaining property if he
obtains ownership, possession or control of it, and obtain (取得) includes obtaining for
another or enabling another to obtain or to retain.
(3) Section 7 shall apply for the purposes of this section, with the necessary
adaptation of the reference to appropriating as it applies for the purposes of section 2.
(4) For the purposes of this section—
Deception (欺騙手段) means any deception (whether deliberate or reckless) by words
or conduct (whether by any act or omission) as to fact or as to law, including a
deception relating to the past, the present or the future and a deception as to the
intentions of the person using the deception or any other person.
18. Obtaining pecuniary advantage by deception
18A: Obtaining services by deception
(1) A person who by any deception (whether or not such deception was the sole or
main inducement) dishonestly obtains services from another shall be guilty of an
offence and shall be liable on conviction upon indictment to imprisonment for 10
years.
(2) It is an obtaining of services where the other is induced to confer a benefit by
doing some act, or causing or permitting some act to be done, on the understanding
that the benefit has been or will be paid for.
(3) For the purposes of this section, deception (欺騙手段) has the same meaning as in
section 17.
18B. Evasion of liability by deception
18C. Making off without payment
(1) Subject to subsection (3), a person who, knowing that payment on the spot for any
goods supplied or service done is required or expected from him, dishonestly makes
off without having paid as required or expected and with intent to avoid payment of
the amount due shall be guilty of an offence and shall be liable on conviction upon
indictment to imprisonment for 3 years.
(2) For the purposes of this section payment on the spot(即場付款) includes payment at
the time of collecting goods on which work has been done or in respect of which
service has been provided.
(3) Subsection (1) shall not apply where the supply of the goods or the doing of the
service is contrary to law, or where the service done is such that payment is not
legally enforceable.
18D. Procuring entry in certain records by deception
