Obtaining by Deception

Obtaining by Deception

Apart from the offence of fraud, the Theft Ordinance (Cap. 210) also regulates offences involving the obtaining of property or benefits by deception, which includes the offence of Obtaining Property by Deception, Obtaining Pecuniary Advantages by Deception, and Obtaining Services by Deception. 

The Ordinance also regulates other offences in relation to deception, such as Evasion of Liability by Deception, Making off without Payment, and Procuring Entry in certain records by Deception. 

In simple terms, these offences prevent individuals from benefiting through deception and avoiding responsibility for the consequences.

“Deception” means any words or conduct that induce a person to accept something false and invalid as true or valid. A person can make a deception both as to fact or as to law. It can also be made in relation to the past, present or future. Moreover, it can also be made in the format of stating his or another person’s intention or opinion, as long as that intention or opinion was invalid or untrue. 

Silence alone will usually not be “deception”, because the law requires “words or conduct”. But staying silent together with other conduct (for example, letting work continue when a person knows he cannot or will not pay) can amount to deception.

It does not matter whether the deception was made out deliberately or recklessly. However, the prosecution would still need to prove the element of dishonesty in these offences. The element of dishonesty is the same as that applied in theft, meaning the defendant’s conduct must be judged against the ordinary standards of reasonable and honest people, and whether the defendant knew that others would regard the conduct as dishonest.

The deception must influence the mind of the person deceived. The test of whether the victim was influenced is “whether he would have acted as he did if he had known that the representation made by the defendant was false”. If the answer is no, the deception is treated as having induced the victim to part with the property. It is not necessary to isolate the precise moment when the property was handed over to determine if the deception was still operating at that time. What matters is whether, taken as a whole, the evidence shows that the deceptions alleged were the cause of the property being transferred. It does not affect liability that the victim may have suspected or even believed, at the final moment, that he had been swindled.

For the following offences, it is immaterial whether the deception was used as sole or main inducement for the benefit he obtained. One would be liable for the offence as long as the prosecution can prove that there is a causal relationship between the deception and the induced act.