OVERVIEW
Fraud carries a maximum sentence in Hong Kong of 14 years' imprisonment. The elements of fraud are statutorily defined: the offence is committed where a person, by any deceit and with intent to defraud, induces another person to commit an act or make an omission which results in a benefit to any other person, or in prejudice or a substantial risk of prejudice to another person.
For example, preparing letters from a sham employer containing false information so that a person can obtain a credit card or bank loan may constitute fraud.
STATUTORY PROVISIONS
section 16A of the Theft Ordinance (Cap. 210)
The relevant part of the current statutory provision states:
Section 16A(1) — Fraud
If any person by any deceit (whether or not the deceit is the sole or main inducement) and with intent to defraud induces another person to commit an act or make an omission, which results either—(a) in benefit to any person other than the second-mentioned person; or (b) in prejudice or a substantial risk of prejudice to any person other than the first-mentioned person, the first-mentioned person commits the offence of fraud.
ELEMENTS OF THE OFFENCE
A deceit
There was a deliberate or reckless deceit by words or conduct as to fact or law, including a person's present intentions.
Inducement
The deceit induced another person to act or omit to act. It need not be the sole or principal inducement.
Prejudice or a substantial risk of prejudice
The act or omission resulted in a financial or proprietary benefit to a person other than the person induced, or prejudice or a substantial risk of prejudice to a person other than the defendant.
Intent to defraud
The defendant acted with the dishonest intention required by section 16A.
DECEIT AND INDUCEMENT
Words, conduct and omissions
A deceit may be communicated by words or conduct. An omission can also amount to deceit where the defendant is under a duty to disclose the concealed fact—for example because of an agent-principal or trustee-beneficiary relationship, or an applicable contract or code of conduct.
The intended victim need not suffer any actual prejudice, as section 16A(1)(b) provides that a substantial risk of prejudice will suffice.
Penalty
Maximum Penalty
On conviction upon indictment, the maximum sentence is 14 years' imprisonment.
HOW MCS CAN ASSIST
Advice and representation
MCS can assess the charge, the statutory elements and the prosecution evidence; advise on interview, plea, trial and sentence; and identify any defence or evidential issue available on the facts.