Kuwait Court of Cassation principle number 214

Summary: - Offences provided for in Article 1 bis of Law No. 9 of 2001 concerning Misuse of Telephone Communication Devices and Eavesdropping Devices, added by Law No. 40 of 2007. Their import. - Punishment is aggravated if these acts are accompanied by threats or involve exploitation of images by any means to incite immorality and debauchery, and this is capable of achieving the purpose targeted by the offence, with the offender knowing the effect of his activity in achieving that purpose. - Assessment of the presence or absence of criminal intent in those offences. A matter for the trial court. The judgment need not discuss it expressly and separately. Condition thereof. Rule: Article 1 bis of Law No. 9 of 2001 concerning Misuse of Telephone Communication Devices and Eavesdropping Devices, added by Law No. 40 of 2007, provides: "Anyone who intentionally abuses or defames another by using a device or means of telephone or other communication to take one or more photographs or video clips without that person's knowledge or consent, or exploits the capabilities of these devices and extracts images therefrom without their owners' permission or knowledge, or fabricates an image contrary to public morals of other persons, shall be punished by imprisonment for a term not exceeding two years and a fine not exceeding two thousand dinars, or either of these penalties. Anyone who, through these devices or means, sends the images specified in the preceding paragraph or any image or video clip offending public morals to other persons, or publishes or circulates them by any means whatsoever, shall be punished by imprisonment for a term not exceeding three years and a fine not exceeding three thousand dinars, or either of these penalties: the punishment shall be imprisonment for a term not exceeding five years and a fine not exceeding five thousand dinars if the acts referred to in either of the two paragraphs in offending modesty or violating honour or inciting immorality and debauchery preceding are accompanied by threats or blackmail involved exploitation of images by any means........." This indicates that any of the offences criminalised thereby, in both their material and mental elements, is established when the offender performs any of the acts stipulated in that article, including taking another person's photograph or extracting it by using a device or means of telephone communication without its owner's permission or knowledge, or sending it to other persons. Punishment is aggravated if these acts are accompanied by threats or involve exploitation of images by any means to incite immorality and debauchery, and the act is capable of achieving the purpose targeted by the offence, with his knowledge of the effect of his activity in achieving that purpose. The presence or absence of criminal intent therein is a question of fact which the trial court alone determines, without review, provided that it bases its ruling on grounds supporting it. The judgment need not discuss expressly and separately the presence of each element, so long as the facts and circumstances it sets out sufficiently indicate its existence. The import of the first-instance judgment, whose reasons were adopted and supplemented by the challenged judgment, in its account of the facts and the evidence, as recounted above, is that the appellant intentionally abused and defamed the victim by sending a photograph of her with her face uncovered and her head bare from his telephone to her brother's telephone without her knowledge or consent, and threatening her to compel her to continue her former relationship with him. This establishes the offence constituting the first charge in both its material and mental elements. Accordingly, the appellant's contention in this regard is unfounded.