OVERVIEW
Obtaining property by deception is an offence under section 17 of the Theft Ordinance (Cap. 210). It is committed where a person dishonestly uses a deception to obtain property belonging to another and intends permanently to deprive that person of it.
A person obtains property if they acquire its ownership, possession or control. The offence also covers obtaining property for another person or enabling another person to obtain or retain it.
The deception must be a cause of the obtaining. It need not be the sole or principal reason for the transfer, but it must be a real and significant factor which influenced the person handing over the property.
Property is not limited to physical goods or cash. It can include enforceable legal rights, such as a bank balance, cheque, loan entitlement or insurance claim.
STATUTORY PROVISIONS
section 17 of the Theft Ordinance (Cap. 210)
The relevant part of the current statutory provision states:
Section 17(1) — Obtaining property by deception
Any person who by any deception (whether or not such deception was the sole or main inducement) dishonestly obtains property belonging to another, with the intention of permanently depriving the other of it, shall be guilty of an offence and shall be liable on conviction upon indictment to imprisonment for 10 years.
Section 17(2) — Meaning of obtaining
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” includes obtaining for another or enabling another to obtain or to retain.
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. It may concern the past, present or future, including the intentions of the defendant or another person.
Dishonesty
The obtaining was dishonest. The court determines dishonesty by applying the legal standard used in Hong Kong to the defendant's conduct and state of mind.
Obtaining property belonging to another
The defendant obtained ownership, possession or control of property belonging to another, obtained it for somebody else, or enabled another person to obtain or retain it.
Causal connection
The deception influenced the transfer of the property. It need not be the only inducement, but it must have operated on the mind of the person who transferred the property.
Intention permanently to deprive
At the time of obtaining the property, the defendant intended permanently to deprive the other person of it.
CORE LEGAL PRINCIPLES
Deception, dishonesty and inducement
Under section 17(4), deception 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 transfers the property. 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, and the prosecution need not identify one precise moment at which it operated.
The evidence is considered as a whole to decide whether the deception caused the property to be transferred. 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.
COMMON EXAMPLES
Express and implied deceptions
A deception may be express or implied. Selling counterfeit goods while representing them as genuine branded products may amount to obtaining the buyer's money by deception.
Presenting a post-dated cheque may imply that it will be honoured when presented. Buying goods with such a cheque while knowing there will be insufficient funds and never intending to honour it may constitute a deception.
Using a stolen credit card to obtain goods may imply both authority to use the card and that the issuing bank will honour the transaction.
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.