Cassations Nos. 952 and 1043 of 2019 - Penal
Issued on 23/03/2020
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- The contested ruling expelling the appellant from the state even though his mother and wife are UAE nationals shall be deemed as having violated the law and consequently, it shall be reversed as to this part.
2- The trial court has the authority to gain an understanding of the facts and assess the evidence, and it has 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, to conclude the commission of the crime on the basis of any elements of inference, and to deduce from the facts, evidence and presumptions, whatever it deems leading to the conclusion it has reached.
3- 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.
4 - The trial court has the authority to assess the accused’s confession at any stage of the investigation and to rely thereon even if the accused withdraws it later on, and that with respect to crimes punishable by Ta’zir. It may also weigh and assess the testimony of witnesses.
5- The investigation authority has the power to assess the seriousness and adequacy of the investigations so as to issue the arrest and search warrant under the supervision of the trial court.
6- The officer authorised to undertake the arrest and search task under the supervision of the investigation authority and the control of the trial court has the power to assess the method of executing the search warrant as he deems fit.
7 -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.
8- The court has the authority to give the incident attributed to the accused the legal characterisation it deems more correct than that given by the Public Prosecution thereto in the referral order and to modify the charge accordingly, provided that it relates to the same incident mentioned in the referral order issued by the Public Prosecution and that it does not prejudice the position of the accused by sentencing him to a severer penalty for the crime in its new characterisation, in which case it shall alert the accused of such modification.
9- Conditions for the availability of the material element and the criminal intent in the crime of unintentionally possessing and acquiring narcotics.
10- The trial court has the authority to assess the connection between the crime of possessing and acquiring narcotics without intent to trade and the crime of possession with intent to abuse without further review, provided that the facts of the case as understood by the judgment are legally consistent with the conclusion it has reached.
11- The contested judgment confirming the appellants’ commission of the crime modified and the remaining charges and adopting the defences raised by the appellants before the Court of First Instance and wherein they pleaded the nullity of the Public Prosecution’s arrest and search warrant, after examining the facts of the case, and relying on the testimony of the witness, the officer, the appellants’ arrest and search, the seizure of narcotics therewith, and the technical report, shall be deemed valid and based on documented facts sufficient to support it.
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.
The Court
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.

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