Kuwait Court of Cassation principle number 42

Summary: - The penalty prescribed for possessing a firearm without a license in the case of recidivism. Its nature. Articles 2/1 and 21/1-3 of Law No. 13 of 1991 concerning Weapons and Ammunition. - Article 83 of the Penal Code. Its effect on the penalty if the accused merits leniency. - The challenged judgment's reduction of the penalty below the minimum. Error in applying the law. Requires partial cassation. Rule: The penalty prescribed for the offense of possessing a firearm without a license in the case of recidivism, forming the subject of the first charge carrying the more severe penalty under Articles 2/1 and 21/1-3 of Law No. 13 of 1991 concerning Weapons and Ammunition, is imprisonment for a term not exceeding ten years, to which a fine not exceeding ten thousand dinars and not less than one thousand dinars may be added. The first paragraph of the aforementioned Article 21 provides: (Without prejudice to any more severe penalty prescribed in any other law, anyone who violates Article 2 of this Law shall be punished by imprisonment for a term not exceeding five years and a fine of not less than one thousand dinars and not exceeding five thousand dinars, or either of these penalties.), and its third paragraph provides: (These penalties shall be doubled in the case of recidivism... .). Article 83 of the Penal Code provides that, if the court considers the accused deserving of leniency, fixed-term imprisonment may not be less than one-third of the maximum prescribed for the offense, unless the law prescribes another minimum. That being so, the challenged judgment convicted the respondent of possessing a firearm, "a pistol," without a license in the case of recidivism under the two aforementioned articles, but, in assessing the penalty, sentenced him to three years' imprisonment with labor in addition to the fine. It thereby reduced the imprisonment below the minimum prescribed under Article 83 of the Penal Code, rendering it defective for error in applying the law and requiring its partial cassation and correction in the manner stated in the operative part of this judgment.