Kuwait Court of Cassation principle number 2

Summary: - The offence of kidnapping criminalised by Article 180 of the Penal Code. Its establishment. - Deception is one of the means by which the offence of kidnapping is established when committed with intent to perpetrate any of its acts, including theft. The reason: it is considered a form of extorting another’s property referred to in Article 228 of the Penal Code. The reason: the concurrence of criminal intent in the offences of theft and extortion, as both are offences against property. This does not constitute an impermissible analogy in criminal matters, because it is the legislature’s intention. - Assessment of the element of deception in the offence of kidnapping. A matter of fact. - Separate discussion in the judgment of each element of kidnapping by deception with intent to extort. Not necessary. What suffices for this. This is not affected by the victim’s failure to call for help. The reason: it is attributable to the individual’s own nature and the circumstances in which he was placed, and is not subject to fixed standards governing individuals’ conduct in similar circumstances. Rule: The offence of kidnapping provided for in Article 180 of the Penal Code—as established in the case law of this Court—is constituted by the perpetrator’s intention to remove the victim from the place from which he was kidnapped—whatever that place may be—by inducing him to move from that place to another through one of the means referred to therein, including deception, and with intent to perpetrate any of the acts mentioned therein, including theft, as a form of extorting another’s property referred to in Article 228 of the Penal Code, which appears in Part Three of that Code governing offences against property. This reflects the legislature’s assessment that criminal intent coincides in the offences of theft and extortion: criminal intent in the first offence exists where the perpetrator knows, at the time of committing the act, that he is misappropriating property belonging to another without its owner’s consent, with intent to appropriate it. In the second, it exists where the perpetrator knows, at the time of committing the act, that he is extorting another’s property by accusing him of committing offences, without the latter’s consent, with intent to appropriate it. The subject matter of both offences is also the same: taking another’s property without his consent with intent to appropriate it. Thus, the offences of theft and extortion coincide in being offences against property, and theft is merely a form of extortion—as previously explained. This does not constitute in law an impermissible analogy in criminal matters—by adding theft to the offences exhaustively specified in Article 180 of the Penal Code—but rather a return to the legislature’s intention, since the offence of extortion provided for in that Article encompasses it, the meaning of extortion being broader in relation to all offences involving taking another’s property, whatever means the perpetrator employs to achieve his purpose. Assessment of the element of deception in kidnapping is also a factual matter determined by the trial court without review, provided that its inference is sound. The law does not require the judgment to discuss separately each element of this offence; it suffices that the facts and circumstances set out therein adequately indicate its existence. What the challenged judgment set out—as detailed above—therefore establishes all the legal elements of kidnapping by deception with intent to extort—of which it convicted the appellant—as defined in law. This is not affected by the appellant’s reliance on the victim’s failure to call for help, since that is attributable to the individual’s own nature and the circumstances in which he was placed, and is not subject to fixed standards governing individuals’ conduct in similar circumstances. Consequently, the criticism of the challenged judgment concerning the first offence of which it convicted the appellant and for which it imposed its penalty upon him is incorrect.