Cassations
Nos. 952 and 1043 of 2019 - Penal
Panel:
Presided by Mr. Judge / Mohamed Abdel-Rahman Al-Jarrah - Chief Judge of the
Circuit - with the membership of Judges / Ranfi Mohamed Ibrahim and Ahmed
Abdullah Al-Mulla
1)
Expulsion. Foreigners. Penalty "application thereof." Law "application thereof".
Ruling "violation of the law." Reversal "acceptable reasons."
-
The court may not rule to expel a foreigner if he is a spouse or a first-degree
relative of a national. Unless the judgment has been issued in a crime affecting
the security of the state. The contested ruling by contravening this rule shall
be deemed as having erred in the application of the law. Shall be reversed as to
this part.
2)
The trial court "its discretionary authority." Proof "witnesses" "confession".
Crime "its elements". Criminal intent. Arrest "search" "search warrant".
Defence" "matters not considered as a breach of the right of defence". Legal
characterisation of the charge. Connection. Reversal "unacceptable
reasons".
-
The trial court has the power to gain an understanding of the facts of the case,
assess the evidence therein, and form its opinion as to the occurrence of the
crime and the accused's relationship thereto and connection therewith, on the
basis of the evidence and presumptions presented in the case. Provided that it
bases its ruling on valid reasons. It has also the power to assess the accused's
confession at any stage of the investigation and collection of evidence, and to
rely thereon with respect to the crimes punishable by Ta’zir, even if he
withdraws it later on. Whenever it is convinced that said confession was issued
by a free will.
-
Weighing and assessing the statements of witnesses. Substantive.
-
Adopting the witness’s statements. Significance thereof.
-
Assessing the seriousness and adequacy of the investigations so as to issue the
arrest and search warrant is a substantive matter to be entrusted to the
investigation authority under the supervision of the trial court.
-
The authorised officer may choose whatever method he deems fit to execute the
search warrant, provided that the process is carried out in his presence and
under his eyes.
-
The trial court is not obligated to examine all the aspects of the litigants'
statements and arguments whenever it finds in the documents sufficient evidence
to form its opinion in the case, in the sense that it disregarded those
statements and arguments and did not find therein anything that would change the
formation of its opinion therein.
-
The trial court may modify the legal characterisation of the charge in
accordance with the facts presented without being bound by that given thereto by
the Public Prosecution and contained in the referral order. Condition therefor.
It shall be relating to the same material incident documented in the referral
order.
-
The offence of possessing the narcotic without intent to trade. Shall be deemed
materialised by the offender's connection with the narcotic, whether by
possession or acquisition, even if it was accidental, and regardless of its
short or long duration.
-
Criminal intent in the offense of possession and acquisition of the narcotic
without intent to trade. Condition of its availability?
-
Assessing the connection between the crime of acquiring and possessing the
narcotic without intent to trade and the crime of possession with intent to
abuse. Substantive.
-
An example of a valid causation.
1-
Whereas it is prescribed pursuant to the provisions of Article 2 of Decree-Law
No. 4 of 2019 amending some provisions of Federal Penal Code No. 3 of 1987 that
“a third paragraph of Article 121 and Article 359 bis shall be added to
Federal Law No. 3 of 1987 on the Issuance of the Penal Code as
follows:
Article
121, paragraph three:
By
way of exception from the preceding paragraph and any other provision in any
other Law, a foreigner may not be sentenced to expulsion if he is the spouse of
a national or a relative thereof up to the first degree, unless the sentence is
rendered for a crime affecting the State security."
Whereas
it was proven from the documents submitted by the appellant that his mother
.........., and his wife ............ are UAE nationals, and accordingly, the
provisions of the aforementioned law apply to him, and since the contested
ruling ordered the expulsion appellant, it shall be deemed as having violated
the law, and consequently, it shall be reversed as to this part.
2-
Whereas it is prescribed that the trial court has the full authority to gain an
understanding of the fact and assess the evidence, and that it has also the
absolute freedom to form its opinion as to the occurrence of the crime, the
relationship of the accused thereto and the extent of his connection therewith,
and to infer its establishment by any element of inference and to deduce from
the facts, evidence and presumptions whatever it deems leading to the conclusion
it has reached. Further, the establishment of occurrence of the incident does
not require the existence of an explicit evidence to this effect. Rather, it is
sufficient to infer its establishment by way of deduction from the circumstances
and presumptions and to reach the conclusion based on documented facts. Also,
the trial court has the power to assess the accused’s confession at any
stage of the investigation or collection of evidence and to adopt the same, with
respect to crimes punishable by Ta'zir, even if the accused withdraws it later
on, provided that it is convinced of its validity and that it was issued by a
free will and conscious choice and is consistent with the facts of the case. In
addition, it has the power to weigh and assess the statements of the witnesses
and to adopt whatever it deems satisfying thereto.
Moreover,
the assessment of the seriousness and adequacy of the investigations so as to
issue an arrest and search warrant is a substantive matter to be entrusted to
the investigation authority under the supervision of the trial court. It is also
prescribed that the officer authorised to carry out the arrest and search under
the supervision of the investigation authority and the control of the trial
court may choose whatever means he deems fit to achieve this purpose, provided
that the search is conducted in his presence and under his eyes.
It
is also prescribed that the court is not obligated to examine all the aspects of
the litigants' statements and arguments whenever it finds in the documents
sufficient evidence to form its opinion in the case, in the sense that it has
disregarded those statements and arguments and did not find therein anything
that would change the formation of opinion therein.
Whereas
Article 214 of the Criminal Procedure Law No. 35 of 1992 stipulates that
“The court, in its judgment, may change the legal characterisation of the
act imputed to the accused and it may amend the charge as it deems appropriate
according to what the investigation or the oral pleadings may reveal”...
which means - as per the ruling of this court - that the court has the power to
give the incident attributed to the accused any legal characterisation it deems
more correct than that given by the Public Prosecution in the referral order and
to modify its legal characterisation accordingly. Further, it shall not be
blamed in this regard as long as the incident of which the accused was convicted
is the same incident mentioned in the referral order issued by the Public
Prosecution, and provided that the crime in its new characterisation does not
prejudice the position of the accused, for being punishable by a severer
penalty, in which case it shall alert the accused of such modification, and
where the modification does not prejudice the position of the accused, the court
is not obligated to alert him thereof. It is also prescribed that the assessment
of the seriousness and adequacy of the investigations so as to issue the warrant
is a substantive matter to be entrusted to the investigation authority under the
supervision of the trial court, and that the crime of possession and acquisition
of narcotics without intent to trade, punishable by the first paragraph of
Article 48 of the Federal Law No. 14 of 1995 on Combating Narcotics and
Psychotropic Substances, is legally based on the availability of the material
element that is materialised by the offender’s connection with the
narcotic, whether by possession or acquisition, even if it was accidental, and
regardless of its long or short period, as well as on the availability of
criminal intent which is materialised by his mere knowledge that he possesses or
acquires the narcotics. Moreover, the assessment of connection between this
crime and the crime of possession with intent to abuse falls within the limits
of the discretionary authority of the trial court without further review,
provided that the facts of the case in the manner understood by the ruling are
legally consistent with the conclusion it has reached.
Whereas
it was proven from the notes of the contested judgment that it had examined the
incident of the case after modifying the legal characterisation of the first
charge, on the basis of the available legal elements for the two crimes of which
the appellant was convicted and inferred their establishment based on valid
evidence that would lead to the conclusion reached by the judgment and derived
from the statements of the witness - Officer .... in the Department of Narcotics
Control in the Emirate of Dubai - who asserted that after receiving information
from a secret source that the accused ... possesses narcotics and psychotropic
substances with the intention of abuse and trade, and after verifying the
validity of the said information, he moved to the suspect’s whereabouts in
the Al-Quoz area. The accused resisted the officers after they introduced
themselves, then he hit the officer first on the neck. And when trying to fix
him, he resisted him again and hit him on his finger. After searching him, the
officer found a plastic bag containing 95 strips of Tramadol and other pills
with him. The accused ... who was in his company and in an abnormal state was
also arrested after finding a strip of Larica with him. A large variety of
psychotropic substances was also found in the apartment. The court also based
its ruling on the testimony of Captain ..... who stated that the he received
information that the accused ..... possesses narcotic substances with the
intention of abuse and promotion and that the accused ..... is his partner, and
that after inspecting the car of the first accused, he found a tin foil
containing a suspicious crystalline powder, in addition to pills of Tramadol.
The court relied as well on the confession of the accused ........ as documented
in the reports of the Public Prosecution, that he abuses the narcotics and that
the drugs seized with him belong to the accused ........ and that he consumes
narcotics for the purpose of treatment. The judgment was also based on the
confession of the accused........... that the crystalline substance was seized
in his possession and that he abuses that substance and has nothing to do with
the substances seized in the apartment because they belong to the accused
..........., and that he takes tramadol under a medical prescription, as well on
on the technical report which states that the substances seized consist of
Pregabalin, Methamphetamine, Amphetamine and Tramadol, which are listed in
Tables VI and VIII of Law No. 14 of 1995 on Combating Narcotics, and the medical
report which confirms after the examination of the witness....., that he has a
bruise in the right hand.
Whereas
the court was satisfied with this evidence and deemed it sufficient to prove
that the appellants committed the modified charge and the remaining charges, and
it also adopted the reply of the Court of First Instance to the defences raised
by the appellants who plead the invalidity of the Public Prosecution's arrest
and search warrant and the absence of elements of the crime of trafficking in
narcotics, and since the conclusion reached by the judgment is valid and based
on documented facts sufficient to support it, and contains the reply
invalidating the pleas raised by the appellants, the cassation shall be
dismissed.
Whereas,
in the facts - as apparent in the contested judgment and all documents - the
Public Prosecution referred the appellants and another non-appellant to the
criminal trial for having on 07/25/2017 and on a prior date in the Dubai
Department:
As
regards all defendants:
1-
Possessed a psychotropic substance (tramadol), with intent to trade, in cases
other than those authorised by law.
2-
Possessed a psychotropic substance (methamphetamine), with intent to trade, in
cases other than those authorised by law.
3-
Abused a psychotropic substance (methamphetamine) in cases other than those
authorised by law.
As
regards the first and second defendants:
Acquired
a psychotropic substance (amphetamine) with the intent to abuse in cases other
than those authorised by law.
As
regards the first and third defendants:
1-
Abused a psychotropic substance (tramadol) in cases other than those authorised
by law.
As
regards the first defendant only:
1-
Possessed with the intent to abuse a psychotropic substance (tramadol) in cases
other than those authorised by law.
2-
Resisted the law enforcement officers while performing their duties and because
of it, which resulted in the beatings and injuries shown in the medical report,
as indicated in the documents.
As
regards the third defendant only:
Possessed
with the intent to use a psychotropic substance (pregabalin) in cases other than
those authorised by law.
And
requested their punishment according to Articles 1, 7, 17, 34, 40/1, 49 / 2-3,
52/2, 56/1, 63, 65 of Federal Law No. 14 of 1995 on Combating Narcotics and
Psychotropic Substances and the items listed in Tables XI and VIII of the same
Law.
In
the session dated 27/12/2019, the Abu Dhabi Federal Court of First Instance
ruled:
First:
To sentence each of the first defendant/ ......, the second defendant /
........, and the third defendant / ............. to life imprisonment and to
fine each of them an amount of fifty thousand dirhams for the first and second
counts for connection and to imprison them for a year for the third charge
against them.
Second:
To imprison the first defendant... and the second defendant ... for a period of
one year for the fourth charge against them.
Third:
To acquit the first defendant ..... and the third ............ defendant of the
fifth charge against them.
Fourth:
To acquit the first accused of the sixth charge against him.
Fifth:
To sentence the first defendant .......... to imprisonment for a period of five
years and a fine equal to twenty thousand dirhams for the seventh charge against
him.
Sixth:
To expel the first and third defendants from the state after execution of the
penalty.
Seventh:
To confiscate the items seized.
Eighth:
To impose on the defendants to pay the fees due.
In
the session dated 30/9/2019, the Abu Dhabi Court of Appeal ruled in Appeals Nos.
6, 14, 15, 55 of 2019:
First:
To accept them in form.
Second:
In the merits, to amend the appealed judgment with respect to the first, second
and third charges as modified, by punishing the appellants ........., .......
and ........ with imprisonment for a period of three years and a fine equal to
twenty thousand dirhams for the charges against them and to confirm the appealed
judgment as to the remaining charges and imposed on the appellants to pay the
judicial fees.
Third:
in Appeal No. 15 of 2019, filed by the Public Prosecution, to reject it.
The
two convicts did not accept this judgment and therefore they filed against it
the two present cassations.
The
Public Prosecution submitted a memorandum of its opinion whereby it requested
the dismissal of both cassations.
First:
Cassation No. 952 of 2019 filed by .............:
Whereas
the appellant objects to the contested judgment stating that it erred in the
application of the law, when it ordered the appellant’s expulsion from the
state even though his mother is an Emirati, he is married to an Emirati and he
has an Emirati passport, and he was present in the apartment of defendant
....... by coincidence and that he was possessing narcotics only for the purpose
of abuse, and accordingly, the court should have modified the registration and
legal characterisation thereof, and since the ruling has contravened this
opinion, it shall be deemed defective, and consequently, it shall be
reversed.
Whereas
the first ground of the cassation is valid, it is prescribed pursuant to the
provisions of Article 2 of Decree-Law No. 4 of 2019 amending some provisions of
Federal Penal Code No. 3 of 1987 that “a third paragraph of Article 121
and Article 359 bis shall be added to Federal Law No. 3 of 1987 on the Issuance
of the Penal Code as follows:
Article
121, paragraph three:
By
way of exception from the preceding paragraph and any other provision in any
other Law, a foreigner may not be sentenced to expulsion if he is the spouse of
a national or a relative thereof up to the first degree, unless the sentence is
rendered for a crime affecting the State security."
Whereas
it was proven from the documents submitted by the appellant that his mother
.........., and his wife ............ are UAE nationals, and accordingly, the
provisions of the aforementioned law apply to him, and since the contested
ruling ordered the expulsion appellant, it shall be deemed as having violated
the law, and consequently, it shall be reversed as to this part.
Whereas
with respect to the second ground of the objection, the court refers in its
reply thereto to the reasons that will be stated in the second cassation
registered under No. 1043 of 2019.
Second:
Cassation No. 1043 of 2019 filed by ...............:
Whereas
the appellant objects to the contested judgment, stating that it violated the
law and erred in its application and interpretation, contained deficiencies in
reasoning and flaws in inference, and breached the right of defence, since the
judgment convicted the appellant of the seventh crime, which is resisting the
law enforcement officers, despite the absence and invalidity of the elements of
the crime, and it also disregarded to respond to the appellant’s defence
pleading the invalidity of arrest and search warrant due to the lack of
seriousness of the investigations, and the invalidity of all procedures
resulting from this arrest, in addition to the absence of the elements of the
crime of possession of narcotics of which it convicted the appellant. Whereas
the judgment contravened this opinion, it shall be deemed defective, and
consequently, it shall be reversed.
Whereas,
this objection is inadmissible, since
it is prescribed
that the trial court has the full authority to gain an understanding of the fact
and assess the evidence, and that it has also the absolute freedom to form its
opinion as to the occurrence of the crime, the relationship of the accused
thereto and the extent of his connection therewith, and to infer its
establishment by any element of inference and to deduce from the facts, evidence
and presumptions whatever it deems leading to the conclusion it has reached.
Further,
the establishment of occurrence of the incident does not require the existence
of an explicit evidence to this effect. Rather, it is sufficient to infer its
establishment by way of deduction from the circumstances and presumptions and to
reach the conclusion based on documented facts.
Also,
the trial
court has the power to assess the accused’s confession at any stage of the
investigation or collection of evidence and to adopt the same, with respect to
crimes punishable by Ta'zir, even if the accused withdraws it later on, provided
that it is convinced of its validity and that it was issued by a free will and
conscious choice and is consistent with the facts of the case. In addition, it
has the power to weigh and assess the statements of the witnesses and to adopt
whatever it deems satisfying thereto.
Moreover,
the
assessment of the seriousness and adequacy of the investigations so as to issue
an arrest and search warrant is a substantive matter to be entrusted to the
investigation authority under the supervision of the trial court.
It
is also prescribed that the officer authorised to carry out the arrest and
search under the supervision of the investigation authority and the control of
the trial court may choose whatever means he deems fit to achieve this purpose,
provided that the search is conducted in his presence and under his
eyes.
It
is also prescribed that the court is not obligated to examine all the aspects of
the litigants' statements and arguments whenever it finds in the documents
sufficient evidence to form its opinion in the case, in the sense that it has
disregarded those statements and arguments and did not find therein anything
that would change the formation of opinion therein.
Whereas
Article 214 of the Criminal Procedure Law No. 35 of 1992 stipulates that
“The court, in its judgment, may change the legal characterisation of the
act imputed to the accused and it may amend the charge as it deems appropriate
according to what the investigation or the oral pleadings may reveal”...
which means - as per the ruling of this court - that the court has the power to
give the incident attributed to the accused any legal characterisation it deems
more correct than that given by the Public Prosecution in the referral order and
to modify its legal characterisation accordingly. Further, it shall not be
blamed in this regard as long as the incident of which the accused was convicted
is the same incident mentioned in the referral order issued by the Public
Prosecution, and provided that the crime in its new characterisation does not
prejudice the position of the accused, for being punishable by a severer
penalty, in which case it shall alert the accused of such modification, and
where the modification does not prejudice the position of the accused, the court
is not obligated to alert him thereof. It is also prescribed that the assessment
of the seriousness and adequacy of the investigations so as to issue the warrant
is a substantive matter to be entrusted to the investigation authority under the
supervision of the trial court, and
that
the crime of
possession and acquisition of narcotics without intent to trade, punishable by
the first paragraph of Article 48 of the Federal Law No. 14 of 1995 on Combating
Narcotics and Psychotropic Substances, is legally based on the availability of
the material element that is materialised by the offender’s connection
with the narcotic, whether by possession or acquisition, even if it was
accidental, and regardless of its long or short period, as well as on the
availability of criminal intent which is materialised by his mere knowledge that
he possesses or acquires the narcotics.
Moreover,
the assessment of connection between this crime and the crime of possession with
intent to abuse falls within the limits of the discretionary authority of the
trial court without further review, provided that the facts of the case in the
manner understood by the ruling are legally consistent with the conclusion it
has reached.
Whereas
it was proven from the notes of the contested judgment that it had examined the
incident of the case after modifying the legal characterisation of the first
charge, on the basis of the available legal elements for the two crimes of which
the appellant was convicted and inferred their establishment based on valid
evidence that would lead to the conclusion reached by the judgment and derived
from the statements of the witness - Officer .... in the Department of Narcotics
Control in the Emirate of Dubai - who asserted that after receiving information
from a secret source that the accused ... possesses narcotics and psychotropic
substances with the intention of abuse and trade, and after verifying the
validity of the said information, he moved to the suspect’s whereabouts in
the Al-Quoz area. The accused resisted the officers after they introduced
themselves, then he hit the officer first on the neck. And when trying to fix
him, he resisted him again and hit him on his finger. After searching him, the
officer found a plastic bag containing 95 strips of Tramadol and other pills
with him. The accused ... who was in his company and in an abnormal state was
also arrested after finding a strip of Larica with him. A large variety of
psychotropic substances was also found in the apartment. The court also based
its ruling on the testimony of Captain ..... who stated that the he received
information that the accused ..... possesses narcotic substances with the
intention of abuse and promotion and that the accused ..... is his partner, and
that after inspecting the car of the first accused, he found a tin foil
containing a suspicious crystalline powder, in addition to pills of Tramadol.
The court relied as well on the confession of the accused ........ as documented
in the reports of the Public Prosecution, that he abuses the narcotics and that
the drugs seized with him belong to the accused ........ and that he consumes
narcotics for the purpose of treatment. The judgment was also based on the
confession of the accused........... that the crystalline substance was seized
in his possession and that he abuses that substance and has nothing to do with
the substances seized in the apartment because they belong to the accused
..........., and that he takes tramadol under a medical prescription, as well on
on the technical report which states that the substances seized consist of
Pregabalin, Methamphetamine, Amphetamine and Tramadol, which are listed in
Tables VI and VIII of Law No. 14 of 1995 on Combating Narcotics, and the medical
report which confirms after the examination of the witness....., that he has a
bruise in the right hand.
Whereas
the court was satisfied with this evidence and deemed it sufficient to prove
that the appellants committed the modified charge and the remaining charges, and
it also adopted the reply of the Court of First Instance to the defences raised
by the appellants who plead the invalidity of the Public Prosecution's arrest
and search warrant and the absence of elements of the crime of trafficking in
narcotics, and since the conclusion reached by the judgment is valid and based
on documented facts sufficient to support it, and contains the reply
invalidating the pleas raised by the appellants, Cassation No. 1943 of 2019
shall be dismissed and Cassation No. 952 of 2019 shall be partially reversed as
will be stated in the enacting terms.