Section 13(2) of the Cybercrime Code Act 2016 is the inchoate offence attached to electronic forgery.
Section 13(2)
A person who, intentionally and without lawful excuse or justification, or in excess of a lawful excuse or justification, conspires with another person to commit, or attempts to commit, an offence under this section, is guilty of a crime.
Penalty: (a) for a natural person, a fine not exceeding K15,000 or imprisonment not exceeding 15 years, or both; and (b) for a body corporate, a fine not exceeding K500,000.
| s 12(2) — fraud | s 13(2) — forgery | |
|---|---|---|
| Imprisonment | Up to 15 years | |
| Fine — individual | Up to K25,000 | Up to K15,000 |
| Fine — company | Up to K500,000 | |
| “Intentionally” | Omitted | Retained |
| Full offence maximum | 25 years / K100,000; K1,000,000 for a company | |
The individual fine is K10,000 lower for forgery than for fraud — the only respect in which the two inchoate provisions differ in penalty.
And section 13(2) retains the word “intentionally” that section 12(2) omits. The difference is unlikely to be material, since conspiracy and attempt are inherently intentional.
Conspiring to forge
Electronic forgery is usually a component in a larger scheme, and the components are often divided between people:
- One person obtains the template, the credentials or the design.
- Another produces the inauthentic data — the false certificate, the cloned card, the spoofed message.
- Another presents it to be acted upon.
Section 13(2) allows each to be charged on the agreement, without proving who performed the acts in subsection (1).
It also matters where the forged material has not yet been used. The full offence is complete once the inauthentic data is created with the relevant purpose — but where the creation has not yet occurred, subsection (2) is the charge.
Attempting to forge
Because section 13(1) is complete on the creation of inauthentic data with the relevant purpose — not on its use — an attempt under subsection (2) means conduct short of that creation.
Examples:
- Trying and failing to alter a record in a system — attempt.
- Successfully altering it, with the purpose of it being acted on as authentic — the full offence, even if nobody relied on it.
- Assembling the tools and credentials for a forgery not yet made — attempt, and potentially section 16 if the tools were made or obtained for the purpose.
The offences that usually accompany it
| Provision | Role in a forgery scheme |
|---|---|
| s 16(1) | Designing, producing, selling, importing or distributing a device, password or access code for the purpose of committing a Part III offence — the tooling stage |
| s 6 | Access to the system in which the data will be altered |
| s 8 | Where data is altered or deleted in the process |
| s 15 | Where another person’s means of identification is accessed, possessed, used or transferred |
| s 12 | Where the object is to deprive someone of property |
| s 26(c) | Materially falsifying header information in multiple electronic messages |
| s 31 | Advertising or promoting the forged product or the service |
Section 16(1) is often the better charge at the preparatory stage, because it does not require an agreement or an attempt at the substantive offence. It is committed by designing, producing, selling, procuring for use, importing, exporting, distributing or otherwise making available a device, thing, password or access code for the purpose of committing an offence defined by other provisions of Part III.
It carries 15 years or K25,000, and K100,000 for a company — the same imprisonment as section 13(2), a higher individual fine, and a lower corporate fine.
Note also the section 16(2) defence for authorised testing, protection of systems, or law enforcement purposes — a defence that has no equivalent in section 13.
The general law of parties
Sections 12(2) and 13(2) are the only express conspiracy and attempt provisions in the Cybercrime Code Act. For every other offence, the general law applies through section 3(1), which imports the Criminal Code Act (Chapter 262) provisions on criminal practice and procedure, jurisdiction and punishment — and, through section 2, the Code’s meanings of “criminally responsible” and “offence”.
Neither section 12(2) nor section 13(2) appears in Schedule 2, so neither can be dealt with summarily. Both are tried on indictment.
Sources
- Cybercrime Code Act 2016 — ss 2, 3, 6, 8, 12, 13, 15, 16, 26, 31, 48; Schedule 2
- Criminal Code Act (Chapter 262)
Before relying on anything here, read the current text of the Cybercrime Code Act 2016 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.