Kuwait Court of Cassation principle number 173

Summary: - The material element of the offence of money laundering. The criterion for its establishment. - Criminal intent in money-laundering offences. Its existence. Its inference is a matter of fact. Condition thereof. - Returning the sums forming the subject of the charge in a money-laundering offence neither negates its commission nor exempts from criminal liability for it. - Conviction of the appellant for the offence of money laundering. His arguments concerning the two offences of forgery of banking documents and fraud are misplaced. Rule: Article 2 of Law No. 35 of 2002 concerning Combating Money-Laundering Operations, during whose validity the incident in the case occurred—and before its repeal and replacement by Law No. 106 of 2013 concerning Combating Money Laundering and Terrorist Financing, issued on 8/5/2013 and effective from 26/5/2013—provides that anyone who commits or attempts to commit any of the following acts shall be deemed to have committed the offence of money laundering: (1) Conducting a money-laundering operation with knowledge that the money is derived from an offence or from an act of participation therein. (2) Transferring, converting, possessing, holding, using, retaining or receiving money with knowledge that it is derived from an offence or from an act of participation therein. (3) Concealing or disguising the true nature of the money, its source, location, manner of disposal, movement, the rights relating to it, or its ownership, with knowledge that it is derived from an act of participation therein. This means that the material element of the offence of money laundering is established whenever the perpetrator commits any of the acts specified in the second and third paragraphs of this Article. Criminal intent is likewise present where the perpetrator's will is directed towards undertaking any of those acts with the intent to launder the money forming their subject and to present it as money or proceeds derived from a lawful source, with knowledge that it is derived from an offence or an act of participation therein. Assessment of whether this exists or is absent is a matter exclusively for the trial court, as it infers from the circumstances and elements of the case, provided that the implications of those circumstances and elements are not rationally inconsistent with that inference. What the challenged judgment set out—in stating the facts of the case and recounting the substance of the evidence upon which it relied in its conviction—in the foregoing context establishes the elements of the offence of money laundering as defined by law and answers the appellant's contention that they were not established in his case. This is not affected by the appellant's invocation of his return of the sums forming the subject of the charge to their owners, because it does not exempt him from liability for the offence of which he was convicted, nor negate his perpetration of it. Accordingly, his arguments in this regard are unsound. That being so, and since the challenged judgment convicted the appellant of money laundering and did not convict him of the two offences of forgery of banking documents and fraud, his arguments in this regard are misplaced.