Cassation No

(1-3) Practicing the profession of pharmacy without a licence. Information technology crimes: “disseminating materials offensive to public morals via an information network”. Court: “Trial Court's Authority” its competence to gain an understanding of the reality in the case" and “its authority to assess the confession”.

(1) Gaining an Understanding of the Facts in the Case: This falls within the purview of the trial court's jurisdiction, subject to the prescribed conditions.

(2) Evaluation of the Accused's Confession in Discretionary Crimes, even if Retracted: This falls within the purview of the trial court.

(3) An illustrative example of a Correct Understanding by the Trial Court of the Case's Reality, Involving the Accused's Creation of a Website to Display Pharmaceutical Products Without a Licence, Alongside Instruments and Devices Contravening Public Morals.

1- It is prescribed, as per the ruling of this court, that the trial court possesses complete jurisdiction to comprehend the factual context of the case and assess the evidence. Furthermore, the trial court is entitled, without further review, to form its conviction regarding the proven commission of the crime by the accused, drawing from any evidence it deems satisfactory. This authority is contingent upon the trial court having thoroughly grasped the circumstances of the case. Also, this is conditioned upon the trial court abstaining from reliance on unsupported facts and ensuring that its ruling is founded on truth, ascertained conviction, and supported by valid reasons sufficient to substantiate its ruling.

2- It is prescribed, as per the ruling of the court, that the trial court possesses the authority to assess the confession of the accused in discretionary crimes, notwithstanding any retraction made by the accused. This prerogative extends to any phase of the investigation or trial and allows the court to consider such confession as admissible evidence indicative of the accused's culpability.

3- Given the circumstances, and whereas the appealed ruling confirmed by the contested ruling, meticulously addressed the nuances of the case, elucidating both the factual and legal components of the charges levied against the appellant, and presented substantiated and legally sound evidence. The evidence in question emanated from the appellant's admission during the Public Prosecution's investigations. He acknowledged creating an account on the electronic platform TikTok and disseminating, through his personal account on various social networking sites, products, tools, devices, and sexual enhancers lacking the requisite licence from competent authorities. Specifically noted were the nature of these sexual products, identified as implements for male sexual enhancement, sexual honey, and specific herbs for penile strength, all exhibited without proper authorisation. The means employed for this dissemination was an information technology device, specifically a Huawei mobile phone. Consequently, the appealed ruling, which is confirmed by the contested ruling on the basis of its reasons, successfully demonstrated the veracity of the accusations against the appellant. The justification for this determination is rooted in reasoned arguments supported by documented evidence sufficiently robust to underpin the ruling. Consequently, the appellant's objection to the contested ruling is merely a disagreement regarding the trial court's jurisdiction to comprehend the facts of the case and assess its evidence. Such a matter may not be upheld before the present court.

Whereas in the facts - as apparent in the contested ruling and all other documents - that the Public Prosecution has accused the defendant ....... of actions on a date prior to 2/22/2021 in the department of ........., wherein: -

1- The accused engaged in the practice of pharmacy by selling items such as sexual products, medicine boxes, herbal capsules, devices, and sexual enhancement honey without fulfilling the conditions stipulated by law, as stated in the documents.

2- The accused intentionally committed an act posing a threat to the lives of others by selling medicines, pills, and devices without prescriptions and lacking the requisite licence from competent authorities.

3- The accused published products that violate public morals via the information network, as specified in the documents.

The incident was registered as a misdemeanour in accordance with the provisions of Articles 3/1, 44, 56/2, 107/1, Clause B, 107/2, Clause C of Federal Law No. 8 of 2019 on Medical Products, the Profession of Pharmacy and Pharmaceutical Institutions, Articles 82 and 348 of the Federal Penal Code, and Articles No. 1, 17 of Decree-Law No. 5 of 2012 on Combatting Information Technology Crimes.

In a session held on 20/6/2021, the court of first instance, in absentia, rendered a verdict convicting the accused. The judgment included a six-month imprisonment term for the first charge, a six-month imprisonment term, and a fine of 5,000 dirhams for the second charge. Additionally, the court ordered the accused's deportation from the state after serving the sentence. Subsequently, the accused filed opposition No. 605 of 2021. In a session on 6/12/2021, the court ruled to accept the opposition in form and, on the merits, annulled the judgment in absentia. The court then issued a new verdict, sentencing the accused to six months' imprisonment and a 5,000-dirham fine for all three charges collectively. Furthermore, the court ordered the deportation of the accused from the state upon completion of the penalty, along with the confiscation of seized materials, and imposed expenses on the opposing party.

The accused lodged an appeal against the aforementioned ruling, identified as No. 3126 of 2021. In the session held on 25/1/2022, the Court of Appeal decreed the dismissal of the appeal, for not having been filed for execution before the designated hearing session. The appellant was additionally mandated to cover the appeal fee. Dissatisfied with this ruling, the accused filed Opposition No. 1 of 2022. In the session held on 15/3/2022, the Court of Appeal issued the following decisions: First, in form to accept the appellate opposition, and on the merits, to cancel the subject to opposition. Second, in relation to the appeal, in form to accept it, and on the merits, to cancel the deportation measure while confirming the appealed ruling in its remaining aspects. The accused was directed to pay the appeal fees.

Subsequently, the appellant filed the present appeal in cassation. The Public Prosecution submitted a memorandum of opinion advocating for the dismissal of the cassation.

Whereas the appellant contends in objection to the contested judgment that it erred in the application and interpretation of the law and contained deficiencies in reasoning, asserting that the confirmed ruling, convicting and penalizing him, runs contrary to his denial and affirmation that the items sold were herbal products (honey, ginger, cumin, and saffron) available in apothecary shops without licensing requirements. Additionally, the objection claims that the ruling imposed penalties based on sexual products without elucidating their nature or reality, thus impugning the contested ruling with a deficiency in reasoning warranting reversal.

Whereas the objection is unsubstantiated, since it is prescribed, as per the ruling of this court, that the trial court possesses complete jurisdiction to comprehend the factual context of the case and assess the evidence.

Furthermore, the trial court is entitled, without further review, to form its conviction regarding the proven commission of the crime by the accused, drawing from any evidence it deems satisfactory. This authority is contingent upon the trial court having thoroughly grasped the circumstances of the case. Also, this is conditioned upon the trial court abstaining from reliance on unsupported facts and ensuring that its ruling is founded on truth, ascertained conviction, and supported by valid reasons sufficient to substantiate its ruling.

It is prescribed, as per the ruling of the court, that the trial court possesses the authority to assess the confession of the accused in discretionary crimes, notwithstanding any retraction made by the accused. This prerogative extends to any phase of the investigation or trial and allows the court to consider such confession as admissible evidence indicative of the accused's culpability.

Given the circumstances, and whereas the appealed ruling confirmed by the contested ruling, meticulously addressed the nuances of the case, elucidating both the factual and legal components of the charges levied against the appellant, and presented substantiated and legally sound evidence. The evidence in question emanated from the appellant's admission during the Public Prosecution's investigations. He acknowledged creating an account on the electronic platform TikTok and disseminating, through his personal account on various social networking sites, products, tools, devices, and sexual enhancers lacking the requisite licence from competent authorities. Specifically noted were the nature of these sexual products, identified as implements for male sexual enhancement, sexual honey, and specific herbs for penile strength, all exhibited without proper authorisation. The means employed for this dissemination was an information technology device, specifically a Huawei mobile phone. Consequently, the appealed ruling, which is confirmed by the contested ruling on the basis of its reasons, successfully demonstrated the veracity of the accusations against the appellant. The justification for this determination is rooted in reasoned arguments supported by documented evidence sufficiently robust to underpin the ruling. Consequently, the appellant's objection to the contested ruling is merely a disagreement regarding the trial court's jurisdiction to comprehend the facts of the case and assess its evidence. Such a matter may not be upheld before the present court.