Kuwait Court of Cassation principle number 89

Summary: - Forgery of official documents. Its establishment. Motive is immaterial, even if no particular person suffers harm. Reason: alteration of the truth inevitably harms the public interest through tampering with official instruments, detracting from their value, probative force and trustworthiness. - Dictating false particulars need not consist merely of spoken words by the forger. It may be accomplished by submitting a written document containing false particulars to be recorded or relied upon. - Official character of a document. Its criterion. - A public official’s competence derives not from laws and regulations but from the circumstances in which the instrument is created, its issuing authority, or the particulars entered in it and the necessity of the official’s intervention to record or approve them. - For forgery to be regarded as committed in an official instrument, the instrument need not have been issued by a public official initially. It may initially be private and subsequently become official if a public official intervenes in it within the scope of his duties. - Mere intervention by a public official in the instrument. Its official character extends to preceding procedures and particulars recorded before submission to the public official. Preventing those who commit forgery through others from escaping punishment. - What matters is what the instrument becomes, not what it was initially. - Punishment for forgery does not require its commission by the forger’s own hand. Reason for this. Rule: It is established that forgery of official instruments, provided for in Articles 257 and 259 of the Penal Code, is established merely by altering the truth in the instrument by one of the means prescribed by law, where the alteration is capable of inducing the belief that it corresponds to the truth, and with intent to use the instrument for the purpose for which the truth was altered, regardless of motive, even if no particular person suffers harm. Such alteration inevitably harms the public interest through tampering with official instruments, detracting from their value, probative force and public trustworthiness. Nor must the dictation of false particulars constituting forgery consist merely of spoken words by the forger; dictation may be accomplished by submitting a written document containing false particulars to be recorded or relied upon. The criterion for a document’s official character in relation to forgery is that its drafter be a public official competent, by virtue of his office, to draw it up or intervene in its drafting. That competence derives not only from laws and regulations but also from the circumstances in which the instrument is created, its issuing authority, or the particulars entered in it and the necessity of the official’s intervention to record or approve them. Nor, for forgery to be regarded as committed in an official instrument, must that instrument have been issued by a public official initially: it may initially be private and subsequently become official if a public official intervenes in it within the scope of his duties. In that case, the forgery is considered committed in an official instrument as soon as the instrument acquires official character through the official’s intervention, and its official character extends to preceding procedures and particulars recorded before submission to the public official or officials, since what matters is what the instrument becomes, not what it was initially. Punishment for forgery also does not require alteration of the truth by the forger’s own hand, in preservation of the legislature’s intention not to allow those who commit forgery through others to escape punishment. Criminal intent in forgery exists where the perpetrator deliberately alters the truth in the instrument in a manner capable of causing harm to another, intending to use the instrument for the purpose for which the truth was altered. Assessing the existence or absence of this intent from the circumstances of the case is a factual matter determined by the trial court without review. The judgment need not expressly and separately discuss criminal intent—or any other element of the offence—provided its reasons indicate its existence. What the challenged judgment set out in explaining the facts and reviewing the substance of the incriminating evidence—as previously described—establishes all the legal elements of forgery of an official instrument—including criminal intent—as defined by law, and adequately answers the appellant’s contention that those elements were absent in his case and the indications he cited to demonstrate this—as stated in his grounds of appeal. Accordingly, there is no basis for his argument that the forensic evidence report attributed to him only the writing of the particulars of the original application for issuance of a health licence forming the subject of the charge, since the court concluded that he and another unidentified accused committed the forgery, relying on the foregoing probative incriminating evidence previously described. The appellant’s challenge in this respect is therefore unfounded.