Cheating, Deception by Concealment and Ordinary Dishonesty
This article examines the recent Singapore Court of Appeal decision in Poh Yuan Nie v Public Prosecutor and another matter  SGCA 74, which considered the novel issue of whether the word “dishonest” in the phrase “dishonest concealment of facts” in Explanation 1 to section 415 of the Penal Code (Cap 224, 2008 Rev Ed) referred to the fault element of “dishonestly” or to ordinary dishonesty.
In 1809, the French emperor Napoleon Bonaparte sat down to play a game of chess against a machine known as “the Turk” that was built in the late 18th century. Touted as an almost invincible chess-playing machine, the Turk defeated many well-known personalities including Benjamin Franklin and Napoleon. It was later discovered that the Turk was a fraud, a façade which concealed a human chess master in the machine to play the chess moves.1Wikipedia, Mechanical Turk, https://en.wikipedia.org/wiki/Mechanical_Turk.
The dark art of deception by concealment was, of course, not confined to games such as chess. It pervaded commercial dealings all over the world and therefore it was no surprise that in 1837, the offence of cheating was prescribed in the draft Indian Penal Code, the predecessor to Singapore’s Penal Code. But it was only in 1860 that an Explanation was added to clarify that a “dishonest concealment of facts” was a deception within the meaning of section 415 of the Indian Penal Code 1860.
More than 160 years after the Indian Penal Code 1860 was enacted, the Singapore Court of Appeal had the opportunity in Poh Yuan Nie v Public Prosecutor and another matter2(2022) SGCA 74. (Poh Yuan Nie) to consider the meaning of the word “dishonest” in the phrase “dishonest concealment of facts”. Hitherto, some commentators thought that the word “dishonest” might be “merely repetitive of the fault element”3Stanley Yeo, Neil Morgan and Chan Wing Cheong, Criminal Law in Singapore (Singapore: LexisNexis, 2022) at (14.69). of “dishonestly” in the offence of cheating under section 415 of the Penal Code (Cap 224, 2008 Rev Ed) (the 2008 PC). However, the Court of Appeal took a different view in Poh Yuan Nie. This article examines the critical aspects of the Court of Appeal’s reasoning in that case, particularly the use of illustrations and examples in deriving the meaning of “dishonest”.
The Poh Yuan Nie Case
The applicants, being the principal and a teacher respectively of a private tuition centre, had “planned and executed an elaborate scheme to abet six of their students in cheating while sitting for five examination papers of the 2016 GCE ‘O’ Level Examinations”.4Supra, n 2 at (2). The modus operandi involved a three-way remote communication scheme: two other teachers of the tuition centre who posed as private candidates provided a live video stream of the examination questions to the other conspirators at the tuition centre who, in turn, communicated the answers to the six students who were taking the examinations. The students had been provided “with mobile phones, wireless receivers and earpieces concealed under their clothes”.5Ibid.
The applicants were charged with, inter alia, 26 counts of abetment by way of conspiracy to cheat by “dishonestly concealing the fact” that the students would be receiving assistance from the conspirators. This was framed pursuant to Explanation 1 to section 415 of the 2008 PC, which states that “[a] dishonest concealment of facts is a deception within the meaning of this section” [emphasis added].
Before the Court of Appeal, the question of public interest was whether the meaning of the word “dishonest” in the phrase “dishonest concealment of facts” ought to be determined with reference to: (a) the definition of “dishonestly” under section 24 of the 2008 PC; or (b) a “plain or ordinary meaning” of “dishonest”.
Section 24 of the 2008 PC defined “dishonesty” as: “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.” [emphasis added] In turn, section 23 of the 2008 PC defined “wrongful gain” as “gain by unlawful means of property to which the person gaining it is not legally entitled”, and “wrongful loss” as “loss by unlawful means of property to which the person losing it is legally entitled”. It was not disputed that the applicants’ conduct did not cause wrongful gain or loss of property to the Singapore Examinations and Assessment Board or a third party.
Naturally, the applicants argued that the word “dishonest” in Explanation 1 referred to the definition of “dishonesty” under section 24 of the 2008 PC (the section 24 standard). The offence of cheating would not be established if they were not dishonest under the section 24 standard. On the other hand, the Public Prosecutor argued that the a plain or ordinary meaning of “dishonest” should be adopted, which the Court of Appeal referred to as “dishonest” in the ordinary sense or “ordinary dishonesty”.
The Court of Appeal held that the word “dishonest” in Explanation 1 must be interpreted as “ordinary dishonesty” as opposed to the “special sense given to it”6Id, at (15). under section 24 of the 2008 PC. Applying the three-step framework set out in Tan Cheng Bock v Attorney-General,7Tan Cheng Bock v Attorney-General (2017) 2 SLR 850 at (37). the Court of Appeal first considered four possible interpretations of the word “dishonest”, which the author has summarised in the following table:
|First Interpretation||Independent Counsel||It was not necessary for a concealment of facts to satisfy the section 24 standard as a fraudulent or intentional concealment of facts could suffice as well.|
|Second Interpretation||Applicants||Only a concealment of facts which satisfies the section 24 standard amounts to a deception.|
|Third Interpretation||Public Prosecutor, High Court||The character of the concealment is dishonest in the ordinary sense of the word. The adjective “dishonest” describes the quality of the act of concealment.|
|Fourth Interpretation||Court of Appeal||The concealment is done with a state of mind that amounts to an intention to deceive. The adjective “dishonest” describes the mental state of the accused when committing an offence.|
The crucial distinction between the Third Interpretation and Fourth Interpretation was that in the former, “dishonest” applied to the actus reus of the offence, while in the latter, “dishonest” referred to a “mental state on the accused’s part [that] would be regarded as present whenever the mens rea of either limb s 415 is proven”.8Supra, n 2 at (18(d)). The advantage of the Fourth Interpretation was that no additional mens rea would need to be separately proven. Moreover, it would differentiate such “dishonest” concealments of facts from negligent or innocent ones.
The second step of the Tan Cheng Bock framework required the Court of Appeal to ascertain the legislative purpose or object of section 415 and Explanation 1. Here, the Court of Appeal followed the well-established division of section 415 into two limbs and identified the respective actus reus and mens rea applicable to each limb, which the author has summarised in the following table:
|Section 415||Common elements||Specific elements||Actus reus||Mens rea|
|First limb||Whoever, by deceiving any person, whether or not such deception was the sole or main inducement,||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||Must involve property||Fraudulently or dishonestly|
|Second limb||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||Need not involve property, as it could concern damage or harm to any person in body, mind or reputation as well||Intentionally|
The Court of Appeal emphasised two key features of the second limb of section 415. Firstly, the second limb was “intended to apply to a wide range of harm and [was] not restricted to loss of property”.9Id, at (25). Secondly, although the mens rea for the second limb (“intentionally”) was less stringent than that for the first limb (“dishonestly” or “fraudulently”), the prosecutor was required to prove “an additional element not found in the first limb”, namely “the act or omission of the person deceived caused, or is likely to cause, damage or harm to any person in body, mind, reputation or property”.10Id, at (24).
Under the third and final step of the Tan Cheng Bock framework, the Court of Appeal disposed of the Second Interpretation as it was contrary to the purpose of section 415. The Court’s detailed reasoning will be examined in the next section, but in essence, it observed that the section 24 standard did not fit with the second limb of section 415, which was not concerned with only property. If Parliament had intended the section 24 standard to apply to the second limb, it would have expressly stipulated as such but it did not.
The Court of Appeal also rejected the First Interpretation as it rendered Explanation 1 redundant. Given that Explanations in the 2008 PC were only intended to clarify the scope of the provision, Explanation 1 could not be read to omit other types of concealment of facts.
The Third Interpretation was also not justified based on a dictionary meaning of “dishonest” as “intended to mislead or cheat”. A “dishonest concealment of facts” pertained to “the person’s intention to deceive when behaving in a certain way”.11Id, at (33). The ordinary meaning of “dishonest” therefore connoted “a description of an accused’s mental state when he concealed the material facts in question”.12Ibid.
Accordingly, the Court of Appeal preferred the Fourth Interpretation which was also supported by the legislative history of section 415 that indicated that its ambit had been consistently expanded over the years and that it was “not intended to be restricted to instances of deception involving property”.13Id, at (39).
Turning to the issue of whether the words “dishonest” and “dishonestly” appearing in the same provision should have the same meaning, the Court of Appeal held that both words were different as the word “dishonest” (an adjective) was a cognate form of the word “dishonestly” (an adverb). Based on section 2(2) of the Interpretation Act 1965, a “contrary intention” appeared in section 415 that “dishonest” should not have the same meaning of its cognate form i.e. “dishonestly”.
The Court of Appeal also referred to other arguments based on provisions in the current version of the Penal Code following amendments made in 2020, namely, the Penal Code 1871 (2020 Revised Edition) (the 2020 PC), but they are beyond the scope of this article.
The Use of Illustrations and Examples
The Court of Appeal’s decision in Poh Yuan Nie raises several interesting issues such as the relationship between actus reus and mens rea, the proper scope of Explanations in statutes and whether its reasoning can be extended to similar statutory provisions. On the last point, section 46 of the Moneylenders Act 2008 provides that it is an offence for any moneylender who, inter alia, “by any dishonest concealment of material facts”, “fraudulently induces or attempts to induce any person to borrow money or to agree to the terms on which money is or is to be borrowed”. Would a “dishonest” concealment of material facts in this provision also be regarded as connoting ordinary dishonesty?
Another interesting aspect of Poh Yuan Nie was the Court’s reference to an illustration in section 415 and its use of an independently created example to bolster its rejection of the Second Interpretation. Historically, illustrations were provided in the Indian Penal Code 1860 as examples of modes of deception. In an early commentary on the Indian Penal Code 1860 by Walter Morgan and A G Macpherson (Morgan and Macpherson), the authors were quick to point out that the modes of deception were infinite and the illustrations in the Indian Penal Code 1860 were not intended to be exhaustive.14Walter Morgan and A G Macpherson, Indian Penal Code (Act XLV of 1860) With Notes (G C Hay & Co, 1861) at p. 377.
Eventually, the use of illustrations or examples in statutes was codified in section 7A of the Interpretation Act 1965. This section provides that an example or illustration of the operation of a provision in an Act “is not to be taken as exhaustive” and, if there is any inconsistency, “the provision prevails”. Hence, such examples or illustrations were “not intended to override the operative words of the provision”.15“Statutes (Miscellaneous Amendments and Repeal Bill)”, 2nd reading, Official Reports – Parliamentary Debates (Hansard) vol 72 (9 October 2000) at col 833 (Assoc. Prof. Ho Peng Kee, Minister of State for Law).
While section 7A is incontrovertible today, a more fundamental question arises: given that many illustrations in the 2008 PC (and now the 2020 PC) were derived from the Indian Penal Code 1860, to what extent should the Court refer to historical commentary on the relevant illustration in the first place?
As noted above, the Court of Appeal held in Poh Yuan Nie that a dishonest concealment of facts constituting deception did not require the section 24 standard to be proved. This was because if the section 24 standard applied where no transfer of property was involved, an offence could never be committed under the second limb of section 415 (which went beyond harm to property) through a dishonest concealment of facts. In other words, applying the section 24 standard to the second limb of section 415 would limit its ambit “to property damage and completely undercut the width of the section”.16Supra, n 2 at (30).
In so holding, the Court of Appeal accepted that deception can often “be arbitrarily framed either as a concealment of fact or a positive action”.17Id, at (29). It agreed with the independent counsel’s view that a deception would invariably involve a concealment of facts based on Illustration (e) in section 415. This illustration states: “A, by pledging as diamonds articles which he knows are not diamonds, intentionally deceives Z, and thereby dishonestly induces Z to lend money. A cheats.”
The Court of Appeal reasoned that A could have lied to Z, but could also have concealed the fact by failing to inform Z that the articles were not diamonds. This construction reinforced its view that ordinary dishonesty sufficed for an offence committed under the second limb of section 415 by way of a dishonest concealment of facts.
From a historical viewpoint, however, it appeared that Illustration (e) was meant to illustrate a mode of deception involving positive action by A. As explained by Morgan and Macpherson, Illustration (e) was an example of “passing off ornaments of paste for diamond whether by way of sale or as a pledge is a deception, …, in which there is a false representation as to the substance of the article for sale and a counterfeit is passed off as and for the genuine substance”.18Supra, n 14 at p. 381. Hence, the act of deception in Illustration (e) did not expressly exemplify a dishonest concealment of facts. There may therefore be a risk of reading too much into an illustration that was formulated more than 160 years ago.
This was perhaps why the Court of Appeal also offered its own independently created example of “a candidate who submit[ted] a forged university degree to support his successful application for an unpaid internship”.19Supra, n 2 at (28). To illustrate the same point that deception would invariably involve a concealment of facts, it noted that the candidate “could equally be said to have dishonestly concealed the fact that he did not in fact graduate from that university and to have actively falsely represented that he graduated from that university”.20Id, at (29). [emphasis added].
This construction, in turn, supported the Court of Appeal’s holding that a dishonest concealment of facts constituting deception did not require the section 24 standard to be proved. In such cases, the section 24 standard was too high where no wrongful gain or wrongful loss was caused due to no transfer of property. Ordinary dishonesty would suffice as “any reasonable layperson would agree that that candidate had dishonestly concealed the fact that he did not graduate from the university shown on the forged degree and had thereby cheated or deceived the employer into taking him on as an intern” [emphasis added].21Id, at (28). If such acts of deception were not criminalised, it would lead to “an absurd state of affairs”.22Ibid. Therefore, it appears that the Court of Appeal’s holding rested not only on the purpose of the provision, but also on the policy implications of adopting the stringent section 24 standard.
More critically, the Court of Appeal’s creative use of a non-statutory example demonstrates the limitations of relying on historical illustrations in section 415. Where no transfer of property was involved in a dishonest concealment of facts, these illustrations may not be helpful. For example, Morgan and Macpherson had referred to Illustration (b), where a counterfeit mark is put on an article, as an example of a dishonest concealment of facts.23Supra, n 14 at p. 378. This illustration involved a transfer of property as A thereby intentionally deceives Z “into a belief that this article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for the article”.
Likewise, Illustration (j), which was not found in the Indian Penal Code 1860, has been cited in academic commentary as an example of a dishonest concealment of facts.24Supra, n 3 at (1.50). This short illustration states: “A, playing with false dice, or marked cards, wins money from B. A cheats.” It is clear that this illustration involves a transfer of property and therefore would not have supported the Court of Appeal’s holding that the section 24 standard should not apply to a dishonest concealment of facts where no transfer of property had occurred.
The Indian Penal Code 1860 was enacted in an era where mere “misrepresentations and exaggerations” in commercial dealings were not envisaged as part of the offence of cheating.25Supra, n 14 at p. 376. As noted by Morgan and Macpherson:
“Many false pretences and many representations calculated and intended to mislead are morally wrong and deserving of punishment; but a Penal Code cannot adopt so severe a standard as the moral law whereby to measure the conduct of men.”26Id, at p. 375. [emphasis added]
Given that the Court of Appeal has in Poh Yuan Nie endorsed the notion of ordinary dishonesty in defining a “dishonest” concealment of facts in Explanation 1 to section 415, it may be that more modern illustrations should be set out in the 2020 PC in future to show how ordinary dishonesty would be established in a case of a dishonest concealment of facts where no transfer of property is involved. This is even more pertinent in the modern era where false dice, marked cards and especially the Turk do not reflect the rapid technological developments that have occurred in the past few decades.
* The views expressed in this article are the personal views of the author and do not represent the views of The Law Society of Singapore.
|↑1||Wikipedia, Mechanical Turk, https://en.wikipedia.org/wiki/Mechanical_Turk.|
|↑2||(2022) SGCA 74.|
|↑3||Stanley Yeo, Neil Morgan and Chan Wing Cheong, Criminal Law in Singapore (Singapore: LexisNexis, 2022) at (14.69).|
|↑4||Supra, n 2 at (2).|
|↑6||Id, at (15).|
|↑7||Tan Cheng Bock v Attorney-General (2017) 2 SLR 850 at (37).|
|↑8||Supra, n 2 at (18(d)).|
|↑9||Id, at (25).|
|↑10||Id, at (24).|
|↑11||Id, at (33).|
|↑13||Id, at (39).|
|↑14||Walter Morgan and A G Macpherson, Indian Penal Code (Act XLV of 1860) With Notes (G C Hay & Co, 1861) at p. 377.|
|↑15||“Statutes (Miscellaneous Amendments and Repeal Bill)”, 2nd reading, Official Reports – Parliamentary Debates (Hansard) vol 72 (9 October 2000) at col 833 (Assoc. Prof. Ho Peng Kee, Minister of State for Law).|
|↑16||Supra, n 2 at (30).|
|↑17||Id, at (29).|
|↑18||Supra, n 14 at p. 381.|
|↑19||Supra, n 2 at (28).|
|↑20||Id, at (29).|
|↑21||Id, at (28).|
|↑23||Supra, n 14 at p. 378.|
|↑24||Supra, n 3 at (1.50).|
|↑25||Supra, n 14 at p. 376.|
|↑26||Id, at p. 375.|