Kuwait Court of Cassation principle number 22

Summary: - The material and mental elements of the offence of concealing a fact or transaction with intent to evade repayment of indebtedness. Their nature. Article 23 of Law No. 41 of 1993 concerning the State’s Purchase of Certain Debts and the Manner of Their Collection. Their establishment. Where accompanied by the perpetrator’s intention to evade repayment of the indebtedness. - Criminal intent. Its establishment. Its assessment: a matter of fact. The limit thereof. - Complicity. Its nature. Inference thereof. It is sufficient that the court believes it occurred on the basis of the circumstances and particulars of the case. The court may infer its occurrence from a subsequent act attesting to it. The condition thereof. - Complicity by assistance. Its establishment. The accomplice’s intentional intervention with the principal perpetrator so as to facilitate the commission of the act constituting the offence. - Methods of complicity in an offence before its occurrence. Article 48 of the Penal Code. They are incitement, agreement thereto, or assisting him in any manner in the acts preparatory to the offence with knowledge thereof. Equivalent alternatives. The presence of any one renders the person an accomplice. - The existence of criminal intent and the accomplice’s knowledge that the principal will commit the offence on that basis. The challenged judgment need not address this expressly and separately. The limit thereof. An example concerning the offence of concealing a fact and transaction with intent to evade repayment of indebtedness. Rule: Whereas the offence of concealing a fact or transaction provided for in Article 23 of Law No. 41 of 1993 concerning the State’s Purchase of Certain Debts and the Manner of Their Collection is established in both its material and mental elements when the perpetrator undertakes any act or transaction among those provided for in that Article, including concealing an existing fact or transaction, where this is accompanied by the perpetrator’s intention to evade repayment of the indebtedness, criminal intent in this offence is established by the perpetrator deliberately undertaking any positive activity, consisting of an act or transaction referred to in that Article, with the intention of evading repayment of the indebtedness. Assessment of the existence or absence of criminal intent from the circumstances of the case is a question of fact determined by the trial court without further review. The judgment need not address each element of this offence expressly and separately, provided that its reasons contain indications of its existence. It is settled that complicity in an offence before its occurrence by agreement is established by the unity of intention of the principal and the accomplice to commit the agreed act. It generally occurs without external manifestations or tangible material acts from which it may be inferred, and it is therefore sufficient that the court believes it occurred on the basis of the circumstances and particulars of the case. It may also infer its occurrence from an act subsequent to the offence attesting to it, provided that its belief is reasonable and justified by the facts established in the judgment. Complicity by assistance is established by the accomplice’s intentional intervention with the principal so as to facilitate commission of the act constituting the offence, which the legislature has made the basis for punishing the accomplice. The methods of complicity in an offence before its occurrence specified in Article 48 of the Penal Code, namely incitement to commit the act constituting the offence, agreement thereto, or assisting the principal in any manner in the acts preparatory to the offence with knowledge thereof, are equivalent alternatives. The presence of any one in relation to the perpetrator suffices to render him an accomplice in the offence committed on that basis. Criminal intent is established by the accomplice’s knowledge that the principal will commit the offence on the basis of that agreement, incitement, or assistance. For a conviction for this offence to be valid, the judgment need not address each element of the offence expressly and separately, provided that it sets out facts indicating it. That being so, the substance of what the judgment stated in setting out the facts of the case and reviewing the evidence establishing guilt therein—as previously explained—was that the first appellant concealed an existing fact and transaction relating to her direct indebtedness purchased for the benefit of the State and failed to discharge it on the prescribed dates, by disposing of shop No. ... situated in the ..... area, ......... Street, in .... market, by handing it over to the owning company to enable her brother, the second accused, to lease it to conduct his commercial activity there under the name of ......... Establishment for Ready-Made Clothing, Shoes, Bags and Gifts, while her commercial licence issued in the name of ......... Establishment for Ready-Made Clothing, Shoes, Bags and Gifts for the same shop remained valid, and despite the Kuwait Investment Authority, in its capacity as administrator of her bankruptcy estate, taking enforcement action against the shop and its licence, both of which formed part of the general security for her aforementioned indebtedness. She carried out this transaction without giving prior notice thereof to the Kuwait Investment Authority in its capacity as administrator of her bankruptcy estate, with intent to evade repayment of the indebtedness to the State. This establishes all the legal elements of the aforementioned offence as defined by law, including criminal intent on the part of the first appellant. Furthermore, what the challenged judgment stated concerning the role through which the second appellant participated in the offence of concealing the fact of the first appellant’s disposal of the shop and its licence, despite the Kuwait Investment Authority, in its capacity as administrator of her bankruptcy estate, taking enforcement action against the shop and her licence, with intent to evade repayment of indebtedness to the State, consisted of the second appellant leasing the shop—which was one of the assets securing the first appellant’s indebtedness to the State—on the same day on which the appellant handed it over to the owning company, with knowledge of her indebtedness to the State and of her previous declaration of bankruptcy for ceasing repayment of her indebtedness purchased by the State, she being his sister. This reasonably supports the conclusion reached by the trial court at both levels that the second appellant participated in the offence before its occurrence by agreement with the first appellant, as evidenced by his leasing the shop on the very day she relinquished it to the owning company. His leasing the shop, obtaining another commercial licence, conducting his commercial activity in the shop while the first appellant’s commercial licence there remained valid, and changing the shop’s name constituted an act enabling the first appellant to weaken the general security for her debt to the State. This also provides reasonable evidence of the second appellant’s complicity in this offence committed by his sister through assistance in the acts preparatory thereto, sufficient to sustain the conviction. What the challenged judgment stated, as previously explained, establishes all the legal elements of the 2 offences in respect of the appellants, including criminal intent, as defined by law, and provides an adequate response to their defence in this regard and to the indications they advanced to demonstrate the absence of criminal intent on their part, as alleged in their grounds of appeal. This is not affected by the appellants’ reliance on their repayment of the amount of the indebtedness to the Kuwait Investment Authority, the bankruptcy administrator, assuming that to be true, because that does not absolve them of responsibility for the offence of which they were convicted, nor negate their commission thereof. Accordingly, all the arguments raised by the appellants in this regard are unsound.