Kuwait Court of Cassation principle number 52

Summary: - The material element of the offence of fraud with intent to deceive the public into subscribing for securities. Its establishment. By the perpetrator committing any of the acts prescribed in Article 235 of the Penal Code while holding a position relating to the management of a commercial, industrial, or agricultural undertaking whose capital, or part thereof, consists of a public subscription addressed to the public to subscribe for securities through various means of publication. - Criminal intent in the offence of fraud with intent to deceive the public into the aforementioned subscription. Its establishment. By the perpetrator’s will being directed toward undertaking any act with intent to deceive the public into subscribing or into handing over to him, for the account of the undertaking, any property whatsoever. Assessment of its existence or absence. A matter of fact. The condition thereof. - Punishment for the offence of fraud with intent to deceive the public into subscribing. The fraudulent act need not result in obtaining property from the public. The reason thereof. - Returning the subscription amounts to their owners. Does not absolve from criminal responsibility for the offence or negate its commission. Rule: The provision in Article 235 of the Penal Code that: (Anyone managing a commercial, industrial, or agricultural undertaking whose capital consists wholly or partly of public subscriptions through shares, bonds, or any other type of securities, who commits fraud intended to deceive the public into subscribing or into handing over to him, for the account of the undertaking, any property whatsoever, whether by publishing an incorrect balance sheet or account, by forging the undertaking’s papers, documents, or books, or by making false statements concerning material matters capable of misleading the public in such a manner that it cannot ascertain the facts from other sources, shall be punished by imprisonment for a term not exceeding 5 years and a fine not exceeding 5,000 rupees, or by either of these penalties, even if his fraud does not result in his obtaining any property whatsoever from the public.) means that the material element of this offence is established if the perpetrator commits any of the acts prescribed in this Article while holding a position relating to the management of a commercial, industrial, or agricultural undertaking whose capital, or part thereof, consists of a public subscription resulting from an invitation addressed to the public to subscribe for securities through various means of publication. Criminal intent therein is also established by the perpetrator’s will being directed toward undertaking any of those acts with intent to deceive the public into subscribing or into handing over to him, for the account of the undertaking, any property whatsoever. Assessment of the existence or absence thereof lies exclusively with the trial court according to what 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. Punishment for this offence does not require the fraudulent act to result in obtaining property from the public, since failure of the fraud to result in obtaining any property from the public has no effect on the existence of the offence and criminal responsibility therefor. What the challenged judgment stated—in setting out the facts of the case and recounting the substance of the evidence on which it relied in its conviction—in the foregoing context, establishes all the elements of the offence of committing fraud intended to deceive the public into subscribing, as defined by law, and provides an adequate response to the appellants’ arguments that those elements were absent in their case. This is not affected by the first appellant’s reliance on her having returned the subscription amounts to their owners, because that does not absolve the appellants of responsibility for this offence of which the judgment convicted them, nor negate their commission thereof. Accordingly, the appellants’ arguments in this regard are unsound.