Kuwait Court of Cassation principle number 94

Summary: - A public official’s deliberate failure to record particular information that he was required to record. When this constitutes forgery under Article 257 of the Penal Code, known as forgery by omission: where the omission results in alteration of the document as a whole. Rule: It is established that forgery of official documents under Article 257 of the Penal Code is constituted merely by deliberately altering the truth in the official document by one of the means prescribed by law, where the alteration is capable of creating the belief that it conforms to the truth and is made with the intention of using the document for the purpose for which the truth was altered, irrespective of the motive and even if no particular person suffers harm. Such alteration necessarily harms the public interest because it entails tampering with official documents, impairing their value, evidentiary force and credibility in the public’s eyes. The criterion for a paper’s official character in relation to forgery is that its author be a public official competent by virtue of his office to write it or intervene in its writing. Criminal intent in that offence is established by deliberately altering the truth in a document with the intention of using it for the purpose for which the truth therein was altered. The judgment need not discuss expressly and separately the element of criminal intent or the other elements of forgery, provided its reasoning contains what demonstrates their existence. Although the aforementioned Article 257 implies that forgery requires its perpetrator to perform a positive act to alter the truth in an official document, there is another type of forgery: a public official’s deliberate failure to record particular information he is required to record, known as forgery by omission. The assertion that forgery by omission is not punishable because omission does not constitute alteration of the truth, since alteration requires a positive act by its perpetrator and one who omits something that should have been recorded performs no positive act, is unsound in its absolute form. Consideration must not be confined to the omitted part; rather, it must address what the document should have contained as a whole. If the omission alters the import of that whole, it is deemed an alteration of the truth and thus punishable forgery. The challenged judgment established that the appellants stamped the first accused’s passport with their stamps entrusted to them by reason of their office, indicating his entitlement to leave and enter the State despite a travel-ban order against him requiring that he not be permitted to depart. Their deliberate failure to record his departure movement in the computer lists of persons leaving and entering the country, which they were required to do when stamping the first accused’s passport with an exit stamp upon departure and an entry stamp upon arrival, meant that his passport no longer conformed to the truth recorded in the lists of persons’ movements, whether departing from or arriving in the State, extracted from the computer at the Salmi crossing. Those lists contained no entry of his name despite his departure from and return to the country. This is wholly contrary to the truth and undoubtedly constitutes presenting a forged fact in the form of a true fact with knowledge of its forgery, thereby constituting against them forgery by omission in an official document. Accordingly, the second, third and fourth appellants’ contention that the elements of forgery of an official document are absent in their case and that the incident falls within none of the forms of forgery exhaustively specified in Article 257 of the Penal Code is unsound.