Is Cheating Getting Worse: Criminal Punishment for Cheating

Introduction

Is cheating getting worse? Cheating in exam and personating someone to sit for exam are big issues all the time in education industry. However, the institutions are not willing to bring these kinds of cases to court and punish the exam cheaters with disciplinary offence. It is undeniable that there is lacuna in our Malaysian Penal Code because there is no express provision of law to bring the action against the exam cheater and punish them under Penal Code.

Cheating Getting Worse in China: Imprisonment

Starting from 1 November 2015, cheating in exam is criminalized and penalized in China. Cheating in exam shall be punished with imprisonment for a term not less than three years and not exceeding seven years or fine after an amendment had been made to S.284 of Amendment (IX) to the Criminal Law of the People's Republic of China. Besides, the amendment also penalizes those who help in cheating exam by way of personation or selling exam question or examination answer sheet. There was a case in Beijing where Zhang Wuya and five conspirators were found guilty for providing examination answer sheet by using wireless equipment. Lu Shilong, one of the conspirators sat for an MBA exam at Beijing University of Chemical Technology and participated in cheating. Meanwhile, Zhang Xiayang, one of the conspirators sat for a national postgraduate admission examination at the Communication University of China and also cheated in the ideological and political theory examination. The judge held that the number of candidates involved was large, the size of organization was also large and this cheating behavior had seriously disturbed the normal conduct of the examination activities and the social harm was serious. Hence, by applying the amendment, they were punished with imprisonment for a range from twenty months to four years. From this case and the amendment, we can see that China has taken cheating in exam as serious issue and the law is enforced to penalize the cheaters and those who help to cheat. 

Malaysia: No Express Provision for Cheating

In Malaysia, the Penal Code (PC) does not provide express provision to punish the student who commits cheating in exam. However, such act is governed under R.7A of Educational Institutions (Discipline of Students) Rules 1976 (Rules 1976) which prohibits student from cheating in examination during exam. According to R.73 of Rules 1976, a student shall be liable for disciplinary offence if he breaches any of the rules under Rules 1976. R.48 of Rules 1976 allows disciplinary authority to punish those who commit disciplinary offence with reprimand, fine less than RM500, suspension from using facilities or following course for certain periods, barred from sitting exam or expulsion from Institution. This means that if a student involved in cheating, they normally would be punished by way of warning, being expelled or suspended from school, unlike China being punished with imprisonment under criminal law. So, that is why cheating is so prevalent in education industry Malaysia. It is because the punishment is not severe enough to act as a legal impediment to deter the students from committing cheating in exam. Actually, cheating in exam can be charged under criminal law by the provision of S.415 of PC and punishable under S.417 of PC. Cheating in exam can fall within the meaning of S.415(a) of PC because an exam cheater may deceive teacher with intention to cause wrongful gain to himself or intent to defraud teacher, so that the teacher who is induced by this deception gives the exam cheater higher mark. This “higher mark” not only allows student to pass the examination but also a certificate which can be amount to “property” under S.415 of PC. Besides, cheating in exam can also fall under definition of cheating under S.415(b) of PC. It can be applicable in situation where a student commits cheating in exam, the university or school will surely suffer the loss of reputation since such act is concerned with disciplinary problem as well, therefore leaving the institution with a bad image. Since cheating in exam falls within the meaning of cheating under S.415 of PC, therefore taking example from China, the court should punish exam cheater under criminal law rather than disciplinary rule. Furthermore, S.417 of PC stipulates the punishment for cheating which provides imprisonment which may extend to 5 years, fine or both. Therefore, S.417 of PC can serve a better legal impediment than R.48 of Rules 1976 to deter the students from committing cheating in exam. By this interpretation of law, cheating in exam can also be punishable with imprisonment.

Cheating by Impersonation in India

There are many Indian cases involving cheating by personation in education industry. For example, in Kanumukkala Krishnamurthy alias Kaza Krishnamurthy v State of Andhra Pradesh, the appellant was found liable for cheating state government under S.416 of Indian Penal Code (IPC) by pretending Kaza Krishnamurthy and misrepresenting that he had the degree of M.B.B.S where in fact he did not have one. This deception had induced the Madras Public Service Commission (the commission) to recommend his appointment to the post of surgeon to State Government. As a result of deception, the government was being induced by appellant that he had qualified for the post and subsequently appointed him to be surgeon and paid him the salary. Thus, the appellant had committed the cheating offence under S.415 OF IPC by deceiving the state government by way of dishonesty or fraud to result the job opportunity and deliver the salary to him. Likewise, in Aswini Kumar Gupta v Emperor, the accused was liable under S.415 and S.468 of Indian Penal Code (IPC) for cheating Registrar of a university by personating a candidate to sit for the examination and forging answer sheet as loss of reputation was caused to Registrar and university.

Cheating: Influence on Criminal Law

In contrast there are not so much Malaysia cases as compared to India in relation to cheating offence in education industry because the case is charged under other branch of law instead of Penal Code. For example, in Majlis Peguam Malaysia v Yap Min Ch’ng, an application in regards to the enrolment of Advocates and Solicitor was filed. Nonetheless, the Bar Council alleged that the applicant had pretended Jerry Hong to sit examination for Certificate in Legal Practice (CLP), thus perpetrating the offence of cheating by personation under S.416 of PC. The issue was whether the character of applicant was good. The court acquitted the applicant because there was no evidence demonstrated that the applicant was bad in character and he had committed cheating by personation. From this issue, we can see that the court mainly focused on the law of legal profession rather than criminal law despite the fact that the alleged offence was criminal in nature. One must take note that the wordings of S.415 and S.416 of IPC are almost exactly same with S.415 and S.416 of PC. Hence, we can see that our statute Penal Code is mostly drafted from IPC. Therefore, it can be said that Malaysian courts tend to follow Indian precedent cases when deciding a case especially in regards with criminal law. By following Indian precedent cases, since this offence was about personating someone in exam, so the main issue should be whether the act of personating someone in CLP exam fell within the meaning of cheating under S.415 of PC. Since cheating is part of criminal law and Penal Code has provides its definition under S.415 of PC, therefore the court should look into the element of cheating to establish whether the applicant was liable for cheating by personation. 

Conclusion

Therefore, by taking example from China and India which both countries penalize cheating in exam or personating someone to sit for exam, the punishment under S.417 of Penal Code should be enforced against exam cheater once the elements of cheating are fulfilled or the alleged offence falls under S.415 of PC.

Works Cited

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5. 'Six Chinese teachers jailed for gaokao cheating - China - Chinadaily.com.cn.' Retrieved from http://www.chinadaily.com.cn/china/2016-11/02/content_27253820.htm
6. 'Majlis Peguam Malaysia v Yap Min Ch’ng.' [2015] 9 CLJ 454
7. 'Kanumukkala Krishnamurthy alias Kaza Krishnamurthy v State of Andhra Pradesh.' [1965] 1 MLJ 23
8. 'Aswini Kumar Gupta v Emperor.' I.L.R. (1937) 1 Cal. 71. Retrieved from https://indiankanoon.org/doc/1017657/