OVERVIEW
Under section 18 of the Theft Ordinance (Cap. 210), it is an offence dishonestly to obtain a pecuniary advantage for oneself or another person by deception. A pecuniary advantage is a financial benefit falling within the categories defined by section 18(2).
The prosecution must prove dishonesty, a deliberate or reckless deception, the obtaining of a defined pecuniary advantage, and a causal relationship between the deception and that advantage.
The deception must be effective in securing the particular advantage obtained. It need not be the sole or main inducement. Once the causal connection is established, the prosecution does not need to prove that the person deceived suffered an actual financial loss.
STATUTORY PROVISIONS
section 18 of the Theft Ordinance (Cap. 210)
The relevant part of the current statutory provision states:
Section 18(1) — Obtaining pecuniary advantage by deception
Any person who by any deception (whether or not such deception was the sole or main inducement) dishonestly obtains for himself or another any pecuniary advantage shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 10 years.
ELEMENTS OF THE OFFENCE
A deception
There was a deliberate or reckless deception by words, conduct, an act or an omission as to fact or law, including a deception about a person's intentions.
Dishonesty
The defendant's obtaining of the advantage was dishonest under the legal standard applied in Hong Kong.
A defined pecuniary advantage
The defendant obtained for themselves or another person one of the financial advantages specifically recognised by section 18(2).
Causal connection
The deception was effective in securing the pecuniary advantage. It need not have been the sole or principal inducement, but there must be a real causal link.
CORE LEGAL PRINCIPLES
Deception, dishonesty and inducement
The statutory meaning of deception is taken from section 17(4). It includes any deliberate or reckless deception by words or conduct, whether by an act or omission, as to fact or law. It may relate to the past, present or future and may concern the intentions of the person using the deception or of another person.
Silence alone will not ordinarily amount to a deception. Silence combined with conduct may do so, however. For example, permitting work to continue while knowing that payment cannot or will not be made may convey a false representation through the person's conduct and omission.
A deception may be deliberate or reckless, but the prosecution must separately prove dishonesty. Hong Kong applies the two-stage dishonesty test: whether ordinary reasonable and honest people would regard the conduct as dishonest, and whether the defendant realised that ordinary people would regard it as dishonest.
The deception must influence the person who confers the pecuniary advantage. The practical question is whether that person would have acted in the same way had they known the representation was false. The deception need not be the sole or main inducement, but there must be a causal relationship between it and the advantage obtained.
The evidence is considered as a whole to decide whether the alleged deception caused the advantage to be conferred. Liability is not necessarily excluded merely because the victim became suspicious, or even believed they had been deceived, by the final stage of the transaction.
SECTION 18(2)
What counts as a pecuniary advantage
A pecuniary advantage means a financial benefit falling within the detailed definition in section 18(2) of the Theft Ordinance.
Section 18(2)(a) covers benefits involving credit facilities. These include the grant of a credit facility or credit arrangement, an improvement or extension of its terms, and a credit to or set-off against an account. It also covers circumstances in which a person's debt is reduced, extinguished or deferred.
Section 18(2)(b) includes being allowed to borrow by overdraft and obtaining or improving an insurance policy or annuity contract. The advantage may be obtained when the facility, policy or contract is provided or improved; it is not necessary for the person actually to draw the money or claim under the policy.
Section 18(2)(c) includes an opportunity to earn remuneration in an office or employment and an opportunity to win money by betting. An office or employment is interpreted broadly and is not confined to a conventional employer-employee relationship; it may include an opportunity to provide remunerated services on a self-employed basis. The advantage may therefore be complete before any money is actually received.
- Credit applications: False bank statements or tax assessments used to obtain a credit card and credit limit may fall within section 18.
- Overdraft facilities: False income information used to secure or increase an overdraft may amount to the offence.
- Paid work: Misrepresenting qualifications to obtain paid employment or consultancy work may constitute a pecuniary advantage.
Penalty
Maximum Penalty
On conviction upon indictment, the maximum sentence is 10 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.