Kuwait Court of Cassation principle number 163

Summary: - An ineffective ground of challenge is inadmissible. An example concerning a justified sentence. - The penalty prescribed for the most serious of indivisibly connected crimes absorbs the principal penalties prescribed for the other, less serious crimes connected with it. Its effect: the penalties prescribed for the latter may not be imposed. Application requires two conditions: first, unity of purpose; second, indivisibility. Their meaning. Article 84 of the Penal Code. - Unity of purpose and indivisibility. The meaning of each. - Assessment of the connection between crimes is a matter of fact. Contravention thereof constitutes a legal error requiring the Court of Cassation’s intervention to apply the law. - The crime carrying the lesser penalty follows the connected crime carrying the more severe penalty. The reason: the penalty for the more serious crime is applicable to both crimes. Its consequence: a request for referral on grounds of connection must be made before the court hearing the crime carrying the lesser penalty, for referral to the court hearing the more serious crime. Contravention thereof constitutes an error in applying the law and a breach of the right of defence. - Joining two cases differing in cause and subject matter to facilitate proceedings does not merge one into the other. The position differs where the relief sought in one is identical to that sought in the other, in which case the two actions merge. A request for joinder so that a single judgment is issued in both appeals then rests on a valid legal basis. The challenged judgment’s contravention thereof requires the two judgments to be partially quashed and corrected by issuing a single judgment in both and applying Article 84/1 of the Penal Code. An example. Rule: The challenged judgment in the second appeal—No. 28/2012 Criminal—after stating the facts of the case as previously set out in the joined appeal, addressed the appellant’s defence requesting joinder of Appeal No. 2000/2011 to Appeal No. 1936/2011 on grounds of connection so that a single judgment would be issued in both. It rejected it, stating: “Since the forgery of the certificate purportedly issued by the Public Authority for Civil Information, and likewise the counterfeiting of a government department’s seal, forming the subject of the second and third charges against the accused in the present appeal, differ from the incidents recorded in Appeal No. 1936 of 2011, Appealed Felonies, in terms of the circumstances of their commission, the date of occurrence, and the victim in each, the connection contemplated by the legislature in Article 84 of the Penal Code does not exist. Furthermore, the accused was sentenced to only one penalty, that of the most serious crime prescribed for any of the first, second, and third charges against him, which is therefore a justified sentence. Accordingly, the accused’s complaint asserting connection in the manner advanced in his ground of challenge is ineffective.” That being so, the first paragraph of Article 84 of the Penal Code provides: If a person commits several crimes for a single purpose such that they are indivisibly connected, no penalty other than that prescribed for the most serious of them shall be imposed. This means that the penalty prescribed for the most serious of indivisibly connected crimes absorbs the principal penalties prescribed for the other, less serious crimes connected with it, precluding imposition of the penalties prescribed for the latter. Application of this provision requires two conditions: first, unity of purpose; second, indivisibility. When both conditions are met, the crimes are encompassed by a single criminal plan involving several mutually complementary acts which together form the criminal unit contemplated by that Article. Unity of purpose means that the perpetrator seeks to achieve a single objective through his multiple crimes, meaning that they arise from a single motive. Indivisibility means the existence of a close connection between the crimes making them a single criminal unit. Although assessment of the connection between crimes is, in principle, within the trial court’s discretionary authority, where the facts as established by the judgment require application of Article 84 of the Penal Code, failure to apply it and the imposition of separate penalties for the connected crimes constitute legal errors in characterizing the connection, requiring the Court of Cassation’s intervention to apply the law correctly. The circumstances of this incident—as established by the two challenged judgments in Appeals Nos. 27 and 28 of 2012 Criminal—show that the appellant forged the two official documents and the other private document, and counterfeited a government department’s seal, to enable him to import the alcoholic beverages seized in his possession and smuggle them through customs with intent to trade in them. These crimes were therefore encompassed by a single criminal design and united by a common purpose, becoming indivisibly connected and forming an indivisible legal unit affecting the punishment imposed upon their perpetrator. This required application of the first paragraph of Article 84 of the Penal Code and imposition of only one principal penalty for all the charges, namely the penalty for the most serious crime, the felony of importing alcoholic beverages with intent to trade, constituting the first charge in the first appeal—joined Appeal No. 27_2012 Criminal. That being so, it is established that the crime carrying the lesser penalty follows the connected crime carrying the more severe penalty, since the penalty for the more serious crime is applicable to both crimes under the aforementioned Article. Consequently, a request for referral on grounds of connection must be made before the court hearing the crime carrying the lesser penalty, requesting its referral to the court hearing the more serious crime—as is the case in the present action. The challenged judgment rejected this request for the unsound reasons it stated, despite the connection between the two actions. In addition to being defective through an error in applying the law, it therefore breached the right of defence. It is settled in cassation case law that, although joining two cases differing in cause and subject matter to facilitate proceedings does not merge one into the other, the position differs where the relief sought in one is identical to that sought in the other. The two actions then merge, and neither can be said to remain independent of the other, as in the two present appeals. The appellant’s request to join these two appeals so that a single judgment is issued in both therefore rests on a valid legal basis. Since the error on which the challenged judgment was based is not subject to any factual assessment, the trial court having already determined that the charges were factually established against the respondent, the two challenged judgments must be partially quashed and corrected by issuing a single judgment in both and applying Article 84/1 of the Penal Code through imposition of one penalty for all the crimes of which the two trial courts convicted him. This is to be done by maintaining the imprisonment and confiscation imposed in the first appeal for the crimes of importing alcoholic beverages with intent to trade and customs smuggling, the first crime being the most serious of all the crimes of which the appellant was convicted in the two appeals, and cancelling the imprisonment imposed for the crimes of forgery of an official document and a private document and counterfeiting a government department’s seal attributed to the appellant in the second appeal, while maintaining the supplementary penalty of confiscation of the forged documents, as will be stated in the operative part of this judgment. The remaining grounds of appeal concerning these latter crimes are consequently ineffective, requiring dismissal of the two appeals in all other respects.