PDF Archive

Easily share your PDF documents with your contacts, on the Web and Social Networks.

Share a file Manage my documents Convert Recover PDF Search Help Contact



UAE Criminal Law Fraud .pdf


Original filename: UAE Criminal Law - Fraud.pdf
Title: Microsoft Word - Fraud.docx
Author: Marketing

This PDF 1.5 document has been generated by PScript5.dll Version 5.2.2 / Acrobat Distiller 10.0.0 (Windows), and has been sent on pdf-archive.com on 06/03/2018 at 13:29, from IP address 86.98.x.x. The current document download page has been viewed 220 times.
File size: 170 KB (9 pages).
Privacy: public file




Download original PDF file









Document preview


 
 
Fraud 
Legal Articles: UAE Criminal Law 
By Mr. Hassan Elhais ‐ Legal Consultant in Dubai 
 

 
 
Federal Law No.(3) For the Year 1987 on Passing Penal Code Article No.399:
"Shall be punishable by confinement or by a fine any individual who, by using fraudulent practice,
assuming a false name or quality, takes possession for himself or for others of any movable property
or written instrument, or obtains any signature upon such instrument, its cancellation, destruction or
amendment, whenever it is intended to deceive the victim and bring him to surrender a legal right.

Shall also be liable to the same punishment he who alienates an estate or a movable property while
being fully aware that it is not his own or that he has no right to dispose thereof; or he who knowingly
alienates any of the above mentioned after having previously disposed thereof or having concluded
any agreement thereon, whenever such an act operates to the injury of others.
If the object of crime is a property or an instrument pertaining to the State or to any of the authorities
mentioned in Article (5) above, this shall be considered a circumstance of aggravation.
Attempt shall be punished with confinement for a period not exceeding two years with a fine not
exceeding twenty thousand Dirhams. And where a recidivist is convicted and sentenced to
confinement for a period of one year or more, the Judge may order that he be put under police
surveillance for a period neither to exceed two years nor to exceed the duration of the inflicted
penalty.”
Definition:
Fraud is defined as taking or gaining from another property, money, vouchers or anything of value by
deception or lying or trickery which is supported by verbal means or written documents, causing the
victim to rely on the same to willingly hand over something of value from himself to the person
committing the fraud.
The crime of fraud is considered a serious fraud if committed against government property or objects
of value. This may result in a serious punishment, such as imprisonment.
If a person who is convicted of fraud and has served his sentence commits a crime again, he or she
can be put under investigation and surveillance for up to two years or up to the term of his previous
imprisonment.
Attempted fraud:
The maximum imprisonment for attempted fraud is two years.
Difference between lying and fraud:
Merely lying does not amount to fraud. The element of support has to be present. Therefore,
ordinary lies are not considered fraud, as the law does not punish mere lies.

Difference between fraud and theft:
The willingness to surrender is what differentiates fraud from theft. In a fraud, the victim willingly
surrenders the object of value. In a theft, the victim is not willing to hand over his object of value and
it must be forcefully taken from him.
Difference between fraud and breach of trust:
In fraud, the intent to de-fraud, and bad faith have to be present from onset. Whereas in Breach of
Trust, the intent changes during the process. The presence of bad faith and intent from onset can be
proven by evidentiary support.
Elements of fraud:
In order to successfully prove fraud, two elements have to be present: the method and object of
value or a third party; and the intent to deceive.
Material requirement:
The material can be any means of deception such as a false identity or character, or taking an action
using property not owned by the deceiver.
Deceptive methods:
Deceptive methods fulfilling the requirement of comprising a fraud include general documents,
written or verbal expressions, circumstances or appearance, or use of other persons in order to
deceive the victim that induce the victim to rely on such supported documents, persons or verbal
expressions to handover an object of value. Lying, unsupported by any such acts, does not
constitute fraud.
Using circumstance:
The general circumstance required to comprise a fraud can be by coincidence or engineered by the
party him or herself. In both cases it shall satisfy the requirement for fraud.
Fraud is based on actions or circumstances that convince the victim into handing over his property.
Such acts or circumstances could be made or taken advantage of by the accident himself.

The Dubai Court of Cassation said on 10/11/2001 that circumstances of fraud can include: "[A
person or people] taking on the appearance of rich people and appearing like them and driving their
cars to invite people to one's house and convincing them to hand over their money, after which he
disappears, or claiming he has connections with people holding high rank in the government or that
he does business management or opened a branch or an office of a fake company or claiming he
can cure people, or double their money or do whatever they want by using black magic".
Exception to the rule:
Lying shall constitute the crime of fraud if committed by an individual employed by the government
and he takes advantage of his job or his position to deceive another. In all such cases lying shall
equate to fraud.
Third party involvement:
If the lie is supported by a third party, it is considered a fraud on the condition that third party was
moved by the fraudulent party to support the lie. The third party shall be considered a main
wrongdoer of the crime if he had an agreement with the fraudulent party to deceive the victim prior to
committing the crime or provided support to the deceptive party and vice versa. That includes any
documents issued in order to support the lie in such a case written by the third party and issued to
the party committing the crime. The only scenario in which the third party shall be considered a
victim is if he acted in good faith and was unaware of the deceit.
A third party is considered a partner to the fraud if he supports the fraudulent party.
Purpose of the Deceit:
Under UAE law, the purpose of the deceit is not conditional. Any action taken, regardless of the
purpose, if done to take another's money or property is considered fraud.
As stated in Abu Dhabi Appeal No.173/79, criminal hearing date 5/8/1979:
"The deceiving party is the one who must take the action that leads to the interference of the other
party supporting him – whether that party had bad intentions or was deceived as well with the
deceived party".
Doctrines for victim's protection under the law:

1. The person
The criteria are applied on a case-by-case basis and on the merits of each case. So a court will
assess the IQ of the victim, among other things to assess whether the deceit was an obvious one or
not. This ensures that the person committing fraud does not evade the law or the punishment. This
is most often used by the court to protect victims of fraud.
2. The Standard of Average person
It is considered as fraud if the court determines that an average person of average intelligence would
have succumbed to the deception. If so, then the crime is fraud. However, this is a loophole most
likely to be used by those committing fraud since they intentionally target people of below average
intelligence or means.
3. The intentions of the deceiver
The law shall protect the victim if the deceiver intended to deceive and the means used by him to
deceive were successful in deceiving the victim. However, if the deceiver was not successful in
deceiving the victim, it shall be considered attempted fraud. The disadvantage with this condition is
that it merges the elements of the crime; the intent and the actions.
Using a false name or identity:
False name:
A person is said to be committing a fraud if he takes a false name, in part, or in full. It is, however,
not considered fraud if a person uses his commonly known name which is different to his name, or if
he shares the same name with another person. However, if he convinces the victim of his false
identity of being the other person, with whom he shares his name, it shall come under fraud.
Taking on a false quality:
The above is defined as an image an individual acquires due to his position or reputation in a society
or due to his affinity with another person of importance. Such quality could be due to the individual's
profession, job, status etc. It is considered fraud to assume the personalities of another person in
order to deceive someone out of their property.

Requirements
The requirements for the above are timing, and exaggeration. Hence claiming a characteristic like
being a court judge if you were one in the past, is still a fraud. Additionally, if a person exaggerates
his position in order to deceive, it is a fraud. So any elevation of a person's profile to a higher one in
order to lure the victim is enough for fraud.
If the fraud is successful due to using a false name or characteristic, it does not need documentation
or a third party or any other form of proof.
Conditions
Three conditions have to be met to prove fraud by assuming another's name or characteristic:
Firstly, the name or characteristic assumed should lead the victim into handing over his property.
What shall be considered to have 'lead' the victim is at the judge's discretion.
Secondly, there must be a positive action from the deceiver to convince the victim of the false
characteristic in order to be considered fraud. Hence staying silent shall not be considered fraud
even if it misleads the victim into assuming the other's identity.
Thirdly, the characteristic undertaken by the one committing fraud should not be evidently
inconsistent. It should be such that an ordinary person does not immediately suspect a wrongful act.
If the above three conditions are met, it shall be considered fraud under Article 399. If any of the
above is in writing, it shall be an additional crime of falsification which carries a higher punishment as
a more serious crime. In such cases, Article 88 shall apply which states if a person is guilty of two
crimes, he shall be punished for the more serious crime. As a result the person shall be guilty and
punished for falsification.
Immovable and moveable property
Under Article 399, any action taken on an immovable property such as land, which does not belong
to a person, is also considered fraud. This is to protect all immovable property. This kind of fraud has
two conditions:

Firstly, an action must be taken on the immovable property and this action must be that of rights in
rem or 'real rights', and not rights in personam i.e. personal rights. An example of such an action
would be selling a property fraudulently that does not belong to the person. Renting the property that
does not belong to a person shall not be fraud since it's not a right in rem. Such an action can be
oral or written. Evidence Law requires that any contact or action, whose values exceeds more than
AED 5000 shall be in writing. However, that does not apply here and hence this could be considered
as an exception to the Law of Evidence.
Secondly, the action taken on the property must not come from the owner of the property. An owner
in such instances could be the owner himself, or authorised by contract e.g. a Power of Attorney, or
established through judgment of the court e.g. in the case of minors. If the rightful owner has taken
any action on his rightfully owned property, it cannot be a fraud. If a minor takes any action, it's not a
fraud, however, it is categorised as another crime. The same will apply if a son, for example, took an
action on his father's property. This shall be deemed fraud.
In cases of immovable property, if the owner of the property has entered into an agreement with
Party 'A' but has yet to transfer ownership, and sells to Party 'B' instead, this shall be considered
fraud. Following the same path, if 'A' sells to 'B' without transferring ownership and then sells the
same property to 'C', this too shall be a fraud. These rules shall apply regardless of the knowledge of
the victim or the court of the true owner of the property.
The result of the crime of fraud:
The conditions on the property or money: it is conditional that the property must be movable. So
it could be money, vouchers or a contact etc. In case the property is real estate and the agreement
is fraudulent it will be enough to qualify as a fraud since an agreement is a movable property.
Another condition is that the property must have a material value, and not just an emotional value to
the owner. This condition differentiates it from theft. In fraud a person must 'take' something of value,
for if a person deceivingly identifies himself to be a policeman to avoid paying the metro ticket, it
shall not be fraud. However, if he does the same in order to 'take' discounted or free tickets it shall
be fraud. Hence it is important for the person to 'take' something to satisfy this condition.
Taking of the property: This crime of fraud must result in the taking of the property of the victim.
The deception has to have happened before taking the property to be liable for fraud. The action
leading to the handover of the property must be performed by the victim. It is immaterial whether the
person committing the fraud has benefitted from the property or the crime or not. Even if he donated

the taken property, it shall still be a fraud. Additionally, if the victim handed over the money under a
fraudulent pretext for an illegal purpose, that shall not absolve the fraudulent party of liability.
In order to establish fraud, the deception must drive the victim to hand over the property which the
deceiver intended to take. Therefore the deception must take place before handing over the
property.
Damage:
Article 399 says that there must be damage to the victim in order to successfully prove fraud. Even if
the victim was compensated that the deceit did not result in the specific damage, fraud cannot be
established. Two conditions for causation should be resent:
Firstly that deceit should transpire before the property is wrongfully attained by the deceiver. And
secondly, the handing over of the property by the victim under the deceit should be the result of the
deception. A situation where the victim becomes aware of the deceit and continues handing over the
property, for whatever reason which might include the victim trying to complete the crime in order to
attain evidence of the fraud, shall not be considered fraud. It can only be a crime of fraud if the victim
is truly deceived into handing over his property.
It is the judge's discretion whether causation has occurred or not or whether the link between the
deceit and the damage is established.
Moral requirement: Intention
Two conditions must exist together to fulfil the 'intention' requirement for the crime of fraud. Firstly,
there must be a general intention for a party to deceive another party. Secondly, there must be an
intention to gain the other's property by this deception. The motive of intention is immaterial in this
matter. The evidence and proof of intent and what qualifies as evidence is also a discretion available
to the judge.
Punishment
The punishment of fraud is imprisonment or a fine. A person convicted of fraud could face anywhere
from 1 month to up to 3 years’ imprisonment. If the fraud is a more serious one, for example if
committed against a government entity, the prison sentence could be up to 6 years. The fine for
such a crime can range from between AED 30,000 to AED 60,000.

For cases where attempted fraud has been successfully proven against someone, the maximum
imprisonment is 2 years and the maximum fine is AED 20,000.
If both parties decide to settle the matter, this shall not discharge the case against the accused.
However, it can reduce the sentence of the imprisonment or the amount of the fine.
In the case where the parties to a fraud are siblings, a case can only be filed against the deceiver by
the victim. In such cases the prosecution shall not act independently to charge the person of the
crime.
After the final judgment, in cases where the two parties are siblings, if they reach a settlement the
prosecution can suspend the prison sentence or the fine. In case they reach settlement before the
judgment, the court issues a verdict to drop the charges and close the case.

 
 
 
ABOUT THE AUTHOR: Hassan Elhais 
After qualifying as a lawyer in his native Egypt and years of successful practice within the field 
of criminal and public law, Mr. Elhais moved to Dubai in 2005 and has been practicing as a legal 
consultant in Dubai since then. Working exclusively with Al Rowaad Advocates, Hassan is an 
effective leader of the company, the spokesperson and driving force. Hassan has a strong 
ethical stance with regards to the place of the law firm and its work on behalf of the client, 
from clarity on the legal process through to the fee system. 
Specializing in the drafting of all statement of claim, memos and consultation with regards to all 
kind of litigation, Hassan has worked his way through the ranks of Al Rowaad Advocates from 
joining as Legal Advisor to his current role as Managing Partner. Member of Egypt Bar 
Association; Member of International Bar Association; and Recommended Lawyer of Embassy 
of United States in Abu Dhabi. 
 
Copyright Hassan Elhais 
For more information about Hassan Elhais – Legal Consultant in Dubai  
Visit www.professionallawyer.me 


Related documents


uae criminal law fraud
uae criminal law theft article introduction
uae criminal law theft article punishments
crime free lease addendum 2015 1
uae criminal law cheques in the united arab emirates
what is a medicare fraud video


Related keywords