Cassation
No. 606 of 2022
Issued
on 09/08/2022 (Penal)
Court
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 counsellors.
(1-5)
Offenses related to Narcotics and Psychotropic Substances: “Penalties for
the possession of narcotics and psychotropic substances with the intent of use
and trafficking”. Causation of the Appeal: “Adequacy of confirming
the appealed ruling on the basis of its reasons”. Court: “Competence
of the trial court in understanding the case's reality, evaluating witness
statements, assessing confessions, and considering statements made by one
accused against another”. Confession: “Burden of proof for claims of
coerced confessions”. Ruling: “Causation of the ruling, valid
reasoning. Application of the most favourable law for the
accused”.
(1)
The Court of Appeal confirmed the appealed ruling based on its reasons, although
left unstated. This suffices as referring to the reasons effectively stands in
lieu of explicitly stating them, making it satisfactory.
(2)
The trial court is authorised to grasp the reality of the case, evaluate its
evidence, including witness statements, and weigh the confession of the accused
and statements made by one accused against another, even if later retracted.
This authority is contingent upon meeting certain conditions.
(3)
The burden of proving that a confession was obtained under coercion lies with
the party making the claim, being contrary to the fundamental principle.
(4)
An illustrative example of valid causation for the confirmed appealed ruling is
presented in proving the appellant's possession of narcotics and psychotropic
substances for trafficking. This confirmation relies on the statements of one
accused, the appellant's confession during investigations, the testimony of the
incident officer, the criminal laboratory report, and the appellant's claim of
coercion in making the confession is a substantive disagreement within the trial
court's authority and may not be brought before the court.
(5)
Objecting to the ruling on the grounds of a law violation is deemed valid, as
Law No. 14 of 1995 was incorrectly applied instead of the more suitable Law No.
30 of 2021 concerning the appellant's abuse of psychotropic substances. The new
law, offering a more favourable minimum penalty for the appellant, leads to a
partial reversal of the ruling concerning the accusation of abusing psychotropic
substances.
1-
It is prescribed, as per the ruling of this court, that should the Court of
Appeal elect to confirm the contested judgment based on its rationales, there
exists no legal imperative requiring the articulation of said rationales within
its judgment. Instead, a mere reference suffices, as such referencing serves as
a substitute for explicit mention, signifying the court's acknowledgment and
adoption of the reasons as emanating from its own deliberations.
2-
It is prescribed, as per the ruling of this court, that the trial court has full
authority to understand the reality in the case, scrutinize its evidence,
including witness testimonies, assess their credibility, and place reliance upon
those it deems most persuasive. The court adjudicates solely on the foundation
of its comfort and trust in the evidence. It retains the prerogative to admit
the confession of the accused, whether documented in the evidence collection
report or the Public Prosecution's inquiry, provided it is content that the
confession emanated from a voluntary, uncoerced, and conscious will. This holds
true even if the accused subsequently recants the confession in cases of
discretionary offences. Such discretionary authority remains immune from further
review, as long as it does not hinge on an unsupported incident. The court is
only obligated to articulate the truth it has ascertained and ground its
judgment on valid and sufficient reasons. Furthermore, the court is empowered to
rely on the statements of one accused against another, even if contained in a
police report, in conjunction with other evidence. This principle extends to
discretionary offences, given that such statements align with the extant
evidence in the case and conform to the truth and reality therein. The
subsequent retraction by the other accused does not alter this stance, as the
court's confidence in the authenticity of the statements and their voluntary
nature remains paramount in its assessment.
3-
It is prescribed, as per the ruling of this court, that the burden of proof for
the assertion that a confession was obtained under coercion lies with the party
making such a claim. This is grounded in the principle that, within legal
procedures, the fundamental presumption is one of validity and not in
contravention thereof.
4-
Given the circumstances, and whereas the appealed ruling, confirmed by the
appealed ruling on the basis of its reasons, it has been established that the
appellant's possession of narcotics and psychotropic substances was for the
purpose of trafficking. This conclusion was drawn from the statements made by
the first accused during the Public Prosecution's investigations, revealing that
he acquired the seized narcotics from the third accused (the appellant) in
exchange for a financial sum of 1,500 dirhams, along with a financial interest
of 1,000 dirhams. The appellant, in his statements to the Public Prosecution,
admitted to possessing narcotics for trafficking and abuse. He acknowledged
being apprehended on 7/0/2020 while in possession of crystal meth and hashish,
having delivered crystal meth to the first accused for a financial sum of 1,000
dirhams. The appellant claimed to have obtained the substances from an overseas
contact through WhatsApp coordinates. He further confessed to supplying hashish
to the first accused on multiple occasions for varying sums of money. The court
accepted this confession as it was deemed to be the result of a free and
voluntary will, devoid of coercion. The confession aligns with the testimony of
the prosecution witness, Lieutenant [Name], from the Anti-Narcotics Department
of Dubai Police during the Public Prosecution's investigations. The first
accused reportedly informed the lieutenant that he obtained the seized materials
from the third accused (the appellant), who was arrested in possession of
crystal meth and hashish of different sizes. The forensic laboratory report
substantiated that the seized substance was cannabis, known as cannabis and
methamphetamine. Given the circumstances, and whereas trafficking in narcotics
is within the discretionary authority of the trial judge, provided there is a
proper evaluation. The contested ruling presented plausible evidence of the
appellant's intent to traffic, as detailed above. The conclusions of the ruling,
confirming the accusation against the appellant, are valid, grounded in
documented facts, and sufficiently underpin the judgment, attesting to the
validity of the underlying procedures. Hence, the appellant's plea that the
confession resulted from coercion is considered a mere verbal assertion lacking
evidence of authenticity. It amounts to a substantive disagreement regarding the
trial court's authority to comprehend the case's reality and evaluate its
evidence. Such objection raised by the appellant in all its aspects lacks a
valid basis and is hereby dismissed.
5-
Whereas this objection to the contested ruling, citing an error in the
application of the law and a violation of the right of defence by neglecting the
application of Federal Decree Law No. 30 of 2021, is substantiated. This law,
being the most favourable to the accused, shall be applied, particularly in
relation to the penalty for the crime of drug abuse. As for the penalty for
trafficking, the new law maintains the same penalty for trafficking as the old
law. Whereas it is proven in the documents that the Public Prosecution referred
the case to the court under Law No. 14 of 1995 on Combatting Narcotics and
Psychotropic Substances, which prescribes a minimum imprisonment of two years
for the abuse of psychotropic substances. In contrast, Federal Decree-Law No. 30
of 2021, Article 41/1, Federal Decree-Law No. 30 of 2021 stipulates in its
Article 41/1 that whoever abuses or... etc. shall be punished by imprisonment
for a term of no less than three months or a fine of no less than twenty
thousand dirhams and no more than one hundred thousand dirhams. Whereas it is
evident that the new law reduces the maximum penalty applicable to the third
charge against the appellant. Therefore, the more suitable legal framework for
the appellant is the new law. The contested ruling, however, diverges from this
by imposing a two-year imprisonment penalty for the third charge based on the
repealed law, without considering the more favourable provisions of the new law.
This constitutes a violation of the law, necessitating a partial reversal and
remand for the application of the law that is more favourable concerning the
punishment.
Whereas
in the facts - as apparent pursuant to the perusal of the contested ruling and
other documents - the Public Prosecution charged the appellant and others with
offences committed prior to 7/9/2020 in the department of [location]. The
charges against all accused are as follows:
1-
Unlawful possession of hashish (also known as cannabis) for the purpose of
trafficking, in circumstances not permitted by law, as detailed in the
investigations.
2-
Unlawful possession, with the intent to traffic, of a psychotropic substance
(methamphetamine) in circumstances not permitted by law, as outlined in the
investigations.
Specifically
concerning the third defendant ....... (the appellant):
Unauthorised
use of psychotropic substances (THC acid compound, the metabolite of THC, the
active ingredient in cannabis), as revealed in the investigations.
The
Public Prosecution sought their punishment in accordance with various articles
of Federal Law No. 14 of 1995 on Combatting Narcotics and Psychotropic
Substances, as amended, along with the First and Fifth Tables appended to the
aforementioned law.
In
a session held on 30/5/2021, the court of first instance, with both the first
and third defendants (including the appellant) present, rendered a verdict. They
were sentenced to life imprisonment for the first and second charges due to
their association, and two years' imprisonment for the third charge.
Additionally, the court ordered the deportation of the defendants from the state
after serving their sentences, along with the confiscation of the narcotic and
psychotropic substances and the involved vehicle.
The
appellant and co-defendants contested the initial ruling through Appeals Nos.
687, 688, 689, 1064 of 2021. During the session on 19/4/2022, the Court of
Appeal, with the second and third defendants present and the first defendant
absent, rendered its decision as follows:
First:
to accept Appeals Nos. 688, 689, 1064 of 2021 in form, and on the merits, to
reject them all and to confirm the appealed ruling.
Second:
the forfeiture of Appeal No. 687 of 2021 filed by [name].
Dissatisfied
with this ruling, the appellant filed against it the present appeal in
cassation. The Public Prosecution, in response, submitted a memorandum urging
the rejection of the cassation.
Whereas
the appellant raises objections to the contested ruling, citing deficiencies in
causation, flaws in inference, and a breach of the right of defence. He contends
that the conviction is based on general and unspecified reasons that do not
align with the legislative intent regarding causation controls. Additionally, he
asserts the absence of criminal intent and claims that his meritorious defences
were overlooked. Furthermore, he argues that his confession, utilised in police
inferences, was made under coercion, rendering it flawed and warranting a
reversal.
Whereas
this objection in its entirety is inadmissible, since
It is
prescribed, as per the ruling of this court, that should the Court of Appeal
elect to confirm the contested judgment based on its rationales, there exists no
legal imperative requiring the articulation of said rationales within its
judgment. Instead, a mere reference suffices, as such referencing serves as a
substitute for explicit mention, signifying the court's acknowledgment and
adoption of the reasons as emanating from its own deliberations.
It
is prescribed, as per the ruling of this court, that the trial court has full
authority to understand the reality in the case, scrutinize its evidence,
including witness testimonies, assess their credibility, and place reliance upon
those it deems most persuasive. The court adjudicates solely on the foundation
of its comfort and trust in the evidence.
It
retains the prerogative to admit the confession of the accused, whether
documented in the evidence collection report or the Public Prosecution's
inquiry, provided it is content that the confession emanated from a voluntary,
uncoerced, and conscious will. This holds true even if the accused subsequently
recants the confession in cases of discretionary offences. Such discretionary
authority remains immune from further review, as long as it does not hinge on an
unsupported incident. The court is only obligated to articulate the truth it has
ascertained and ground its judgment on valid and sufficient reasons.
Furthermore,
the court is empowered to rely on the statements of one accused against another,
even if contained in a police report, in conjunction with other evidence. This
principle extends to discretionary offences, given that such statements align
with the extant evidence in the case and conform to the truth and reality
therein. The subsequent retraction by the other accused does not alter this
stance, as the court's confidence in the authenticity of the statements and
their voluntary nature remains paramount in its assessment.
It
is prescribed that the burden of proof for the assertion that a confession was
obtained under coercion lies with the party making such a claim. This is
grounded in the principle that, within legal procedures, the fundamental
presumption is one of validity and not in contravention thereof.
Given
the circumstances, and whereas the appealed ruling, confirmed by the appealed
ruling on the basis of its reasons, it has been established that the appellant's
possession of narcotics and psychotropic substances was for the purpose of
trafficking. This conclusion was drawn from the statements made by the first
accused during the Public Prosecution's investigations, revealing that he
acquired the seized narcotics from the third accused (the appellant) in exchange
for a financial sum of 1,500 dirhams, along with a financial interest of 1,000
dirhams. The appellant, in his statements to the Public Prosecution, admitted to
possessing narcotics for trafficking and abuse. He acknowledged being
apprehended on 7/0/2020 while in possession of crystal meth and hashish, having
delivered crystal meth to the first accused for a financial sum of 1,000
dirhams. The appellant claimed to have obtained the substances from an overseas
contact through WhatsApp coordinates. He further confessed to supplying hashish
to the first accused on multiple occasions for varying sums of money. The court
accepted this confession as it was deemed to be the result of a free and
voluntary will, devoid of coercion. The confession aligns with the testimony of
the prosecution witness, Lieutenant [Name], from the Anti-Narcotics Department
of Dubai Police during the Public Prosecution's investigations. The first
accused reportedly informed the lieutenant that he obtained the seized materials
from the third accused (the appellant), who was arrested in possession of
crystal meth and hashish of different sizes. The forensic laboratory report
substantiated that the seized substance was cannabis, known as cannabis and
methamphetamine.
Given
the circumstances, and whereas trafficking in narcotics is within the
discretionary authority of the trial judge, provided there is a proper
evaluation. The contested ruling presented plausible evidence of the appellant's
intent to traffic, as detailed above. The conclusions of the ruling, confirming
the accusation against the appellant, are valid, grounded in documented facts,
and sufficiently underpin the judgment, attesting to the validity of the
underlying procedures. Hence, the appellant's plea that the confession
resulted from coercion is considered a mere verbal assertion lacking evidence of
authenticity. It amounts to a substantive disagreement regarding the trial
court's authority to comprehend the case's reality and evaluate its evidence.
Such objection raised by the appellant in all its aspects lacks a valid basis
and is hereby dismissed.
Whereas
the appellant raises an objection to the contested ruling on the first ground,
asserting an error in the application of the law and a breach of the right of
defence. The objection contends that the court neglected the appellant's defence
by failing to apply the new law on Combating Narcotics and Psychotropic
Substances, namely Federal Decree Law No. 30 of 2021. The appellant argues that
this law is more favourable to him and should be applied, rendering the ruling
defective and necessitating its reversal.
Whereas
this objection to the contested ruling is valid, particularly in relation to the
penalty for the crime of drug abuse. As for the penalty for trafficking, the new
law maintains the same penalty for trafficking as the old law.
Whereas
it is proven in the documents that the Public Prosecution referred the case to
the court under Law No. 14 of 1995 on Combatting Narcotics and Psychotropic
Substances, which prescribes a minimum imprisonment of two years for the abuse
of psychotropic substances. In contrast, Federal Decree-Law No. 30 of 2021,
Article 41/1, Federal Decree-Law No. 30 of 2021 stipulates in its Article 41/1
that whoever abuses or... etc. shall be punished by imprisonment for a term of
no less than three months or a fine of no less than twenty thousand dirhams and
no more than one hundred thousand dirhams.
Whereas
it is evident that the new law reduces the maximum penalty applicable to the
third charge against the appellant. Therefore, the more suitable legal framework
for the appellant is the new law.
The
contested ruling, however, diverges from this by imposing a two-year
imprisonment penalty for the third charge based on the repealed law, without
considering the more favourable provisions of the new law. This constitutes a
violation of the law, necessitating a partial reversal and remand for the
application of the law that is more favourable concerning the
punishment.