Cassations
Nos. 500 and 623 and 631 and 632 of 2022
Issued
on 19/07/2022 (Penal)
Panel:
Presided over by Mr. Judge Ahmed Abdullah Al-Mulla, Chief Judge of the Circuit,
with Messrs. Judges Muhammad Ahmed Abdel Qader and Al-Tayeb Abdel Ghafour Abdel
Wahhab as members.
(1-6)
Crimes against money: “Theft: Coercion to Surrender Money.” Legal
justifications and discretionary mitigating factors. Court: “The trial
court: its power to comprehend the factual circumstances, assess evidence, and
consider mitigating factors and the application of clemency.” Ruling
“Causation Deficiencies: Violation of the Law.”
(1)
Apprehending the factual circumstances of the case, evaluating evidence, and
considering presumptions fall within the jurisdiction of the trial court,
subject to specific conditions.
(2)
Conditions for materialisation of the crime of coercing others to surrender
money through threats. Independent of the motivating factor behind the
offender's actions, which is not a prerequisite for its materialisation.
(3)
The contested ruling, as well as the previously appealed ruling, meticulously
examined the case's facts, validating the elements of the crime with sound
justifications. Any objection to this aspect is unfounded, representing a
substantive disagreement concerning the court's evaluation of case evidence, a
matter beyond the purview of this court.
(4)
The trial court is authorised to evaluate mitigating circumstances and exercise
clemency, subject to specific conditions
(5)
Applying the mitigating factor by the trial court falls within the permissible
bounds defined by Article 99 of the Penal Code, contingent upon the court's
determination that the incident and circumstances of the accused warrant such
consideration.
(6)
The contested ruling found the respondents guilty under Article 398 of the
Federal Penal Code, imposing a fine of five thousand dirhams on each defendant.
This penalty contradicts the stipulation in the article, which mandates both
imprisonment and a fine. The ruling's imposition of only a fine constitutes a
violation of the law.
1-
It is prescribed, as per the ruling of this court, that that the trial court has
the authority to comprehend the reality in the case and assess the evidence and
presumptions, provided it grounds its ruling on valid reasons adequate to
substantiate it. The court is not obliged to independently address the arguments
and statements of the opposing parties, as long as a response is implicitly
inferred from its conclusion.
2-
Article 398 of the Penal Code specifies that the offence of coercing others to
surrender money by threat is materialised when the perpetrator, through
intimidation, wrongfully appropriates the victim's funds, compelling the victim
to surrender the money under duress. Criminal intent is established by the
perpetrator's purpose to acquire the money, despite knowing that they have no
rightful claim to it. The motive driving the offender to commit the act is
immaterial in this context. * Article 450 of Federal Decree Law No. 31 of 2021,
promulgating the Crimes and Penalties Law, has been superseded by Article
398.
3-
In light of the foregoing circumstances, the appealed judgment meticulously
scrutinised the factual and circumstantial aspects of the case, conducting a
thorough examination of its constituent elements. This determination confirmed
by the contested ruling, grounded in its articulated rationale. Furthermore, the
contested judgment proffered particularized justifications through which it
scrutinized the veracity of the accusation. It derived a comprehensive
understanding of the factual scenario by synthesising information from all
pertinent statements contained in the records and investigations. Consequently,
the contested judgment, relying on the victim's testimony, ascertained that she
had been subjected to threats by the two appellants, coercing her into
relinquishing sums received in consideration of her employment with the .....
The appellant ..... approached her under duress, compelling her to return the
sum of 23,220 dirhams, under the implicit threat of termination of her
employment in concurrence with the appellants. Consequently, she remitted the
aforementioned amount to the appellant. Despite compliance, her employment was
terminated. This narrative was corroborated by the deposition of the witness
....., substantiating the assertions made by the victim, and fortified by the
confession of the appellant ..... acknowledging his solicitation of funds from
the victim at the behest of the appellants, .... and ..... The judgment
articulated the aforementioned findings in its rationales, expressing as follows
“Whereas Article 398 stipulates: 1 of the Penal Code: “Anyone who
forces another, by means of threats, to hand over money or other items other
than those mentioned in the previous article shall be punished with imprisonment
and a fine.” Whereas the legal construct denoting "threat" is expansive,
embodying diverse manifestations and lacking a precise statutory definition, it
constitutes a form of psychological pressure wielded in various manners upon the
victim to compel the surrender of monetary assets to the perpetrator.
Furthermore, the inquiry conducted in the present case reveals that the
complainant, in the course of her employment with ....., received an incentive
from its lessor amounting to 23,220 dirhams. However, the defendants ...... and
......., an accountant within the aforementioned company, acting pursuant to the
directive of his manager ........ and under the recommendation of the
appellants, assumed the responsibility in his capacity as ..... to demand the
return of funds from female employees ........., including the victim in the
present case. These funds, constituting incentives deposited in their accounts,
were subjected to coercive tactics, specifically the threat of termination,
should they decline to return said amounts to the institution of their
employment. Through these means, the defendants effectively coerced and
subjugated the victim into remitting the sum of money, quantified at 23,220
dirhams, thereby substantiating the commission of the imputed crime against
them. The determinations reached by the contested judgment were both reasonable
and adequate to buttress its ultimate finding, and the trial court judiciously
exercised its authority within the bounds of evidence evaluation. Consequently,
it rendered a conviction against the appellants for the attributed charge.
Therefore, the appellants' objection amounts to a mere substantive disagreement
concerning the court's assessment of the evidence in the case, a matter beyond
the purview of this court. As such, the objection lacks merit. * Article 450 of
Federal Decree Law No. 31 of 2021, promulgating the Crimes and Penalties Law,
has been superseded by Article 398.
4-
It is established that the authority to evaluate mitigating circumstances and
exercise clemency lies within the purview of the trial court, without further
review by the Supreme Court, and remains immune to review in determining
penalties, provided the imposed penalty falls within the statutory
boundaries.
5-
It is prescribed, pursuant to Article 99 of the Federal Penal Code that
“In the event of a mitigating factor in the commission of a misdemeanor,
the commutation of penalties shall be as follows:
“a)
If the penalty stipulates a specific minimum, the court is not bound by it in
determining the appropriate penalty.
b)
In cases where the penalty encompasses both imprisonment and a fine, the court
is empowered to impose either of the two penalties exclusively.
c)
In instances where the penalty entails imprisonment without a specified minimum
threshold, the court holds the discretion to substitute a fine in lieu of
imprisonment.
This
provision signifies that the court is entitled to invoke a mitigating factor in
situations contemplated by the legislator if it deems that the incident and the
circumstances of the accused warrant such consideration. The court may exercise
its discretion within the boundaries delineated in the aforementioned
article.
6-
The contested ruling convicted the respondents of an offence punishable under
Article 398 of the Federal Penal Code, imposing a fine of five thousand dirhams
on each accused. This penalty contradicts the stipulation in the article, which
mandates both imprisonment and a fine. The ruling failed to provide
justifications for exclusively imposing a fine, constituting a violation of the
law, warranting partial reversal.
Whereas
in the facts, as apparent pursuant to the perusal of the contested ruling and
other documents, the Public Prosecution levelled accusations against the
appellant, alleging that prior to 19/10/2021 in the district of
..........:
-
They coerced the victim/....... by means of threats (threatening to terminate
her employment) to surrender money, as detailed in the investigative
records
In
a session held on 14/2/2022, the court of first instance ruled as follows:
First:
Imprisonment of ....... for a term of six months, coupled with a fine of ten
thousand dirhams for the charge against him, and subsequent deportation from the
country upon completion of the sentence.
Second:
Imprisonment of ....... for a term of six months, coupled with a fine of ten
thousand dirhams for the charge against him, and subsequent deportation from the
country upon completion of the sentence.
Third:
Imprisonment of ...... for a term six months, coupled with a fine of twenty-five
thousand dirhams for the charge against him.
Fourth:
Confiscation of the computer deemed an instrument used in the commission of the
crime.
Fifth:
Imposition of judicial fees upon all parties.
Dissatisfied
with this judgment, the convicts filed appeals, and during the session held on
18/4/2022, the Court of Appeal, unanimously and in presence, ruled as
follows:
First:
Acceptance of the appeals in form.
Second:
On the merits, modification of the appealed ruling to impose a fine of five
thousand dirhams on each of the defendants for the charges against them.
Additionally, the annulment of the deportation penalty imposed on the defendants
....... and ......., confirmation of the appealed ruling regarding the
confiscation of seized items, and the imposition of fees on the
defendants.
Discontent
with this decision, both the convicts and the Public Prosecution have contested
it through the present appeals in cassation.
First:
Cassations Nos. 623, 631, 632 of 2022
The
appellants raise objections to the contested ruling, citing deficiencies in
reasoning, flaws in inference, and a breach of the right of defence. They
contend that the ruling erred in convicting them despite their denial of the
charges and the absence of elements constituting a material or moral offence.
Specifically, it was not established that their actions induced fear in the
complainant, who alleged the threat occurred on 14/2/2021, yet she did not file
the complaint until 30/9/2021. The appellants argue that if the incident were
true, the complainant would not have waited for eight months to report it.
Furthermore, the appellants put forth a meritorious defence, asserting the
occurrence of an emergency circumstance and force majeure due to the spread of
the Coronavirus. This situation led to the facility's closure and an economic
downturn, prompting the establishment to request salary reductions to sustain
operations—an arrangement accepted by employees, including the
complainant. The appellant.... contends that his actions were carried out at the
behest of his employer, placing him under moral coercion. Given the alleged
contradiction in the contested ruling, the appellant argues that it is flawed
and shall be reversed.
Whereas
the objection is incorrect,
since
It is
prescribed, as per the ruling of this court, that that the trial court has the
authority to comprehend the reality in the case and assess the evidence and
presumptions, provided it grounds its ruling on valid reasons adequate to
substantiate it.
The
court is not obliged to independently address the arguments and statements of
the opposing parties, as long as a response is implicitly inferred from its
conclusion.
Article
398 of the Penal Code specifies that
the offence
of coercing others to surrender money by threat is materialised when the
perpetrator, through intimidation, wrongfully appropriates the victim's funds,
compelling the victim to surrender the money under duress.
Criminal
intent is established by the perpetrator's purpose to acquire the money, despite
knowing that they have no rightful claim to it. The motive driving the offender
to commit the act is immaterial in this context.
In
light of the aforementioned circumstances
,
foregoing
circumstances, the appealed judgment meticulously scrutinised the factual and
circumstantial aspects of the case, conducting a thorough examination of its
constituent elements. This determination confirmed by the contested ruling,
grounded in its articulated rationale. Furthermore, the contested judgment
proffered particularized justifications through which it scrutinized the
veracity of the accusation. It derived a comprehensive understanding of the
factual scenario by synthesising information from all pertinent statements
contained in the records and investigations. Consequently, the contested
judgment, relying on the victim's testimony, ascertained that she had been
subjected to threats by the two appellants, coercing her into relinquishing sums
received in consideration of her employment with the ..... The appellant .....
approached her under duress, compelling her to return the sum of 23,220 dirhams,
under the implicit threat of termination of her employment in concurrence with
the appellants. Consequently, she remitted the aforementioned amount to the
appellant. Despite compliance, her employment was terminated. This narrative was
corroborated by the deposition of the witness ....., substantiating the
assertions made by the victim, and fortified by the confession of the appellant
..... acknowledging his solicitation of funds from the victim at the behest of
the appellants, .... and ..... The judgment articulated the aforementioned
findings in its rationales, expressing as follows “Whereas Article 398
stipulates: 1 of the Penal Code: “Anyone who forces another, by means of
threats, to hand over money or other items other than those mentioned in the
previous article shall be punished with imprisonment and a fine.” Whereas
the legal construct denoting "threat" is expansive, embodying diverse
manifestations and lacking a precise statutory definition, it constitutes a form
of psychological pressure wielded in various manners upon the victim to compel
the surrender of monetary assets to the perpetrator. Furthermore, the inquiry
conducted in the present case reveals that the complainant, in the course of
her employment with ....., received an incentive from its lessor amounting to
23,220 dirhams. However, the defendants ...... and ......., an accountant within
the aforementioned company, acting pursuant to the directive of his manager
........ and under the recommendation of the appellants, assumed the
responsibility in his capacity as ..... to demand the return of funds from
female employees ........., including the victim in the present case. These
funds, constituting incentives deposited in their accounts, were subjected to
coercive tactics, specifically the threat of termination, should they decline to
return said amounts to the institution of their employment. Through these means,
the defendants effectively coerced and subjugated the victim into remitting the
sum of money, quantified at 23,220 dirhams, thereby substantiating the
commission of the imputed crime against them.
The
determinations reached by the contested judgment were both reasonable and
adequate to buttress its ultimate finding, and the trial court
judiciously exercised its authority within the bounds of evidence evaluation.
Consequently, it rendered a conviction against the appellants for the attributed
charge. Therefore, the appellants' objection amounts to a mere substantive
disagreement concerning the court's assessment of the evidence in the case, a
matter beyond the purview of this court. As such, the objection lacks merit. *
Article 450 of Federal Decree Law No. 31 of 2021, promulgating the Crimes and
Penalties Law, has been superseded by Article 398.
Second:
Cassation No. 500 of 2022
Whereas,
the Public Prosecution raises an objection to the contested ruling, asserting an
error in the application of the law. It contends that the ruling imposed the
penalty designated for the offence of threatening under Article 398, first
paragraph of the Federal Penal Code, which mandates both imprisonment and a
fine. The objection asserts that the ruling failed to specify the circumstances,
mitigating factors, or reasons upon which it relied for mitigation, thereby
rendering the ruling flawed and necessitating its reversal.
Whereas
this objection is incorrect and rejected, since it is established
that
the
authority to evaluate mitigating circumstances and exercise clemency lies within
the purview of the trial court, without further review by the Supreme Court, and
remains immune to review in determining penalties, provided the imposed penalty
falls within the statutory boundaries.
It
is prescribed, pursuant to Article 99 of the Federal Penal Code that “In
the event of a mitigating factor in the commission of a misdemeanour, the
commutation of penalties shall be as follows:
“a)
If the penalty stipulates a specific minimum, the court is not bound by it in
determining the appropriate penalty.
b)
In cases where the penalty encompasses both imprisonment and a fine, the court
is empowered to impose either of the two penalties exclusively.
c)
In instances where the penalty entails imprisonment without a specified minimum
threshold, the court holds the discretion to substitute a fine in lieu of
imprisonment.
This
provision signifies that the court is entitled to invoke a mitigating factor in
situations contemplated by the legislator if it deems that the incident and the
circumstances of the accused warrant such consideration. The court may exercise
its discretion within the boundaries delineated in the aforementioned
article.
The
contested ruling convicted the respondents of an offence punishable under
Article 398 of the Federal Penal Code, imposing a fine of five thousand dirhams
on each accused. This penalty contradicts the stipulation in the article, which
mandates both imprisonment and a fine. The ruling failed to provide
justifications for exclusively imposing a fine, constituting a violation of the
law, warranting partial reversal.