Republic Vrs Kpabitey and Others [2023] GHACC 287 (17 March 2023)

IN THE CIRCUIT COURT HELD AT MPRAESO ON FRIDAY 17TH MARCH 2023 BEFORE HIS HONOUR STEPHEN KUMI, ESQ CIRCUIT JUDGE. CASE NO: B1/ 29 / 2023. 1 THE REPUBLIC V ALFRED KBABITEY AND OTHERS. J U D G M E N T: There are three ( 3 ) accused persons before this court in this case. They are Alfred Kbabitey, Isaac Boateng @ Bouncer and Richard Asare Gyasi @ Black as A1, A2 and A3 respectively. There are three different counts on the charge sheet. The A1 and A2 jointly face the counts 1 and 2 of conspiracy to commit a crime; to wit robbery contrary to sections 23 ( 1 ) and 149 of the Criminal and Other Offences Act, 1960 ( Act 29 ); and robbery contrary to section 149 of Act 29. The A3 however solely faces the count 3 of dishonestly receiving contrary to section 146 of the Criminal Offences Act, 1960 ( Act 29 ). Each of the accused persons upon their arraignment, denied the respective charges by pleading not guilty; to essentially join issues with the prosecution on the said count. Meanwhile, the basis for the instant prosecution against them as captured in the facts accompanying the charge sheet is essentially that at about 8:40pm on 30th October, 2022, the A1 initially came across the Complainant who was on his way home. The A1 asked the Complainant to show him a place he could exchange some CFA money into Ghana Cedis. Despite the Complainant telling the A1 that it was late in the day and moreover that the available forex bureau had closed for the day, the A1 was insistent. That around that same time, the A2 emerged at the scene and together with the A1 forcefully carried the Complainant on the shoulders to a dark place at Nkawkaw Adoagyiri where they managed to forcibly take a Tecno Spark 4 mobile phone of the Complainant valued GHC 700 and eventually bolted away with same. The A1 and A2 subsequently sold the mobile phone to the A3 for GHC 150.00. 2 As has been indicated above, the accused persons pleaded not guilty to the charges against them. Obviously, legal consequences flow from such a plea in criminal proceedings of this form and hue as follows: “On a plea of not guilty, the statutory duty of the court as imperatively set down in Act 30, S. 172 (1) required that the court should proceed to hear such evidence as the prosecution might adduce. That duty was mandatory. The trial judge therefore erred by not complying with that compulsory statutory duty….”. See the case of Dabla and Others v The Republic [1980] GLR 501. Owing to this requirement of the law, the case proceeded to trial for the court to take evidence from the prosecution. CASE OF PROSECUTION: The prosecution in proving their case called two ( 2 ) witnesses; comprising the complainant, and the police investigator in the case. The first prosecution witness was the complainant, Evans Ofosu; a trader and resident of Nkawkaw. He testified that on 30th October, 2022, at about 8:40pm, while he was on his way home and upon reaching a section of the road around a place called ‘Square 1’, he met the A1, who was wearing a nose mask. The A1 asked him to direct him to a place he could convert or change his CFA money into Ghana Cedis; to which he replied that they had closed for business as it was late. According to PW1, the A1 insisted that he showed him the place to exchange his money as his sister had been admitted at the Holy Family Hospital, Nkawkaw and thus needed money urgently for her bills. He added that at that moment, the A2, Isaac Boateng suddenly appeared at the scene, grabbed and carried him on his shoulders and took him to a dark place where the A1 and A2 forcibly took his Tecno Spark 4 mobile phone valued GHC 700.00 and bolted away with it. PW1 recalled giving the A1 and A2 a hot chase in order to retrieve his phone but he was unsuccessful. He went to inform his mother about his ordeal and subsequently lodged a complaint to the police on the next day. The second and last prosecution witness was the police investigator in the case, No. 7005 PW Corporal Dorothy Agyemang, of the Nkawkaw Central Police Station. She told the court on 1st November, 2022, she was the investigator on duty at the station, during which a complaint of stealing was reported at the station by the PW1 which was referred to her for investigations. 3 She went to the crime scene in question and took pictures of it; after which the PW1 led him to arrest the A1 and A3 and obtained cautioned statements from them. That both the A1 and A3 admitted the offences in their statements; but the A1, Alfred Kbabitey, stated that the PW1 willingly gave the mobile phone in question to them without using any force and later sold the phone to the A3. She added that after instructions were given for the A1 and A3 to be charged for the stated offences, she obtained a warrant for the arrest of the A2, Isaac Boateng, who upon his arrest denied the offences. In support of her testimony, the police investigator also tendered into evidence the following exhibits: Exhibits A and A1 were the cautioned and charge statements of the A1; while the Exhibits B and B1 are the cautioned and charge statements of the A2. Lastly, the Exhibits C and C1 were the cautioned and charge statements of the A3; while a picture of the phone in question is marked as Exhibit D. CASE OR THE DEFENCE OF THE ACCUSED PERSON: At the close of case of the prosecution, the court determined pursuant to section 174 of Act 30 of the Criminal Procedure Act, 1960, Act 30, that the case of the prosecution has succeeded to raise a prima facie case against all the accused persons to warrant them opening their defence. The section reads as follows: “Where at the close of the evidence in support of the charge, if it appears to the court that a case is made out against the accused person sufficiently to require the accused to make a defence, the court shall call on the accused to make a defence and shall remind him the accused of the charge and inform the accused of the right of the accused to give evidence personally on oath or to make a statement” Similarly, in the case of Michael Asamoah and Another v The Republic, Civil Appeal No. J3/4/2017, delivered on 26th July, 2017, Adinyira JSC ( as she then was ), quoted for approval and relied on the dictum of Lamer CJ in the Canadian case of R v P(MB) [1994] 1 SCR 555 as follows: “Perhaps the single most important organizing principle in criminal law is the right of the accused not to be forced into assisting in his or her own prosecution. This means, in effect, that an accused is under no obligation to respond until the state has succeeded in making out a prima facie case against him or her”. The A1 in his sworn defence narrated to admit to the circumstances under which he met the PW1 at the scene as explained by the PW1. However, his point of departure was that after the A2 came across 4 them, the A2 pointed out a forex bureau to him and thus went there to exchange the said currency. However before he left, he asked the PW1 and A2 to wait for him. Upon his return, he told the PW1 and A2 that he was into illegal mining ( galamsey) and had some diamond to thank them with. However he told them that the diamond needed to be washed, for which they would need mercury for that, which they did not have. The PW1 had told them all that he had on him was his phone, which had a torchlight embedded in it to bring out the diamond. According to A1, he ultimately asked that the PW1 and A2 buy some camphor for the process. So he gave money to the A1 to buy some camphor, who went and returned with them. Before A2 left, A2 left his items with the PW1. Upon the return of the A2, he asked the PW1 to also go and buy his own camphor for the process. Before the PW1 left, he left his items including the mobile phone in question with the A2. However according to A1, by the time the PW1 returned, he and the A2 had left with items of the PW1. The A2 in his sworn evidence essentially corroborated the previous testimony of the A1. According to him, after he returned from buying his camphor to wash the diamond, the A1 asked the PW1 to also go and buy his camphor and that before the PW1 left, he handed over the phone and the said diamond to him. However, by the time the PW1 returned, he and the A1 had bolted away with them. The A2- just as the A1- closed his defence without calling a witness. The A3 in his sworn defence told the court that he did not know the phone was stolen. He stated that the A2 is his friend whom he had known for some time. He recalled he was there when the A2 came to him in the company of the A1, and told him the A1 had a phone he wanted to sell to raise money for his transportation. According to A3, he initially did not want to buy the phone but was eventually compelled to do so due to the pleading by the A2. He stated that he inspected the phone and found its screen broken with some black line across it and with a malfunctioning switch. It is his evidence that he eventually bought it for GHC 120.00 from the original asking price of GHC 250.00 that the A2 quoted. ISSUES FOR DETERMINATION: On the whole of the evidence before the court at the end of trial, including the defence raised by the Accused, the following are the three ( 3 ) main issues for determination in this judgment: i. Whether or not the A1 and A2 used force in order to take the phone from the PW1. ii. Whether or not the A1 and A2 used false pretences and deceit to take the phone from the PW1. iii. Whether the A1 and A2 were in conspiracy in relation to their above-mentioned impugned conduct. iv. Whether or not the A3, dishonestly received the mobile phone of the PW1 from the A1 5 and A2. ADDRESSING THE ISSUES: I will thus go ahead to evaluate the evidence before me. However before that can be done, this recapitulation may be useful. The accused persons are before this court on some separate but related counts of conspiracy to steal, stealing and dishonestly receiving respectively. They had been arrested, charged and put before this court to answer to the charges. The effect of their pleas as captured above is as follows in law, especially in a criminal case of this nature: “Unless it is shifted, the party claiming that a person has committed a crime or wrongdoing has the burden of persuasion on that issue”. See section 15 of the Evidence Act, 1975, NRCD 323. It may also be important to mention section 11 ( 2 ) of the Evidence Act, NRCD 323, which provides as follows:- “11(2) in any civil or criminal action the burden of producing evidence, when it is on the prosecution as to any fact which is essential to guilt requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond reasonable doubt.” Meanwhile, in terms of judicial pronouncements on this burden and standard of proof in criminal trials, in the case of Donkor v The State [1964] GLR 598, SC, it was held inter alia by the Supreme Court of Ghana that in criminal trials, the burden of proof in the sense of the burden of establishing the guilt of the accused is generally on the prosecution, which burden must be discharged beyond reasonable doubt. 6 This burden of proof that the prosecution must satisfy in the present proceedings was famously captured in the following ipsissima verba of Viscount Sankey, LC in the case of Woolmington v. DPP (1935) AC 462. The learned Lord Chancellor delivered of himself thus; “No matter what the charge or what the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained….”. In order to satisfy the Constitutional, statutory and Common Law threshold of proof beyond reasonable doubt, the law is that “the prosecution has a duty to prove the essential ingredients of the offence with which the appellant (accused) and the others have been charged…” See the case of Frempong alias Iboman v The Republic [2012] 1 SCGLR 297, SC per Dotse JSC. So, the natural question to be asked at this juncture is whether the prosecution succeeded to prove the essential ingredients of the offences of stealing and dishonestly receiving with which the two accused persons have been charged. That question will be answered presently under the following identified issues. However, I have decided to resolve the issues 1 and 2 jointly together as one while I will deal with the issues 3 and 4 separately. ISSUE 1. WHETHER OR NOT THE A1 AND 2 USED FORCE TO TAKE THE MOBILE PHONE OF THE PW1. ISSUE 2: WHETHER OR NOT THE A1 AND A2 USED DECEIT TO TAKE THE MOBILE PHONE FROM THE PW1. It is instructive to state that before those issues could be answered by this court, it is necessary that this court sets out in some reasonable detail the essential ingredients of the offences in question. When the essential ingredients are set out and known, then I will relate them to the facts and evidence before the court in this case, and determine to what extent the prosecution proved their case against the Accused person herein. I will start by saying that the court appropriately and deliberately raised the issues 1 and 2 for determination. This is because from the evidence adduced before the court including the explanations of the A1 and A2 on oath in court as well as their cautioned statements- which had been admitted into evidence 7 without any objections- it is not in dispute that the A1 and A2 took away and possessed the mobile phone of the PW1 following their encounter at the scene. However, what appears to be in dispute and has been contested is the means by which the A1 and A2 obtained the mobile phone of the PW1: That is whether by the A1 and A2 used force to take it from the PW1- as alleged by the prosecution; or whether by the A1 and A2 using deceit to take it from the PW1 as explained by the A1 and A2. A resolution or finding by the court that the A1 and A2 used force in order to take the phone of the PW1 would constitute the criminal offence of robbery; while a finding by the court that the A1 and A2 obtained the mobile phone through deceit would constitute or suggest the offence of defrauding by false pretences. The upshot of the above is that there are some primary facts in dispute as to how the alleged offence of robbery was committed which imposed a legal duty on the court in a summary trial of this nature to make findings of fact and state which of the two versions of the story is more probable. For a trial judge is required to resolve all primary facts from the evidence adduced before it, make findings of same, and apply the appropriate laws, including the laws of evidence. In the case of Quaye v Mariamu [1961] 1 GLR 83 the Supreme Court held that the trial court has a duty to resolve the primary facts, and having done so to state his findings and apply the law. Meanwhile, I will now look at the nature and ingredients of the offence of robbery, which is a substantive offence. The offence of robbery under the Act 29/1960 ( supra ), is provided for or created under section 149. It reads as follows: “ A person who commits robbery commits a first degree felony: However, robbery is defined under the section 150 of Act 29/1960 (supra) as follows; “ A person who steals a thing commits robbery, a. If, in and for the purpose of stealing the thing, that person uses force or causes harm to any other person, or b. If that person uses a threat or criminal assault or harm to any other person, with intent to prevent or overcome the resistance of the other person to the stealing of the thing. In the case of Behome v The Republic (1979) GLR 112, Osei-Hwere J(as he then was) sitting at the High Court, Sunyani, held inter alia as follows to describe what robbery is; 8 “One is only guilty of robbery if in stealing a thing he used any force or caused any harm or used any threat of criminal assault with intent thereby to prevent or overcome the resistance of his victims, to the stealing of the thing”. See also the case of R v Dawson (1977) 64 CAR 170, where it was held that when a person is charged with robbery, the sole question is whether he used force on any person in order to steal. I now proceed to address the two issues identified in the judgment. In terms of the offence of defrauding by false pretences, in law, when an individual commits the crime of false pretences, they misrepresent a fact or set of facts in order to acquire someone else’s property. To be found guilty of defrauding by false pretences, the prosecution must show that the individual acquired the property at issue by intentionally misrepresenting a fact. Defrauding by false pretences may also be by personation too. So by definition, a person is guilty of defrauding by false pretences if by any false pretences or personation, he obtains the consent of another person to part with or transfer the ownership of anything valuable. See section 132 of Act 29/60. It is further statutorily defined in section 133 (1) of Act 29 as follows: “A false pretence is a representation of the existence of a state of facts made by a person with the knowledge that such representation is false or without the belief that it is true and made with intent to defraud”. In the case of Kuma v The Republic ( 1970 ) CC 113, the elements of the offence of defrauding by false pretences and which the prosecution ought to prove to obtain conviction are that; “ a. There was a mis-statement or personation by the accused person which in law amounts to a false pretence, b. That the falsity of the pretence was known to the Accused, c. That the Accused thereby obtained the consent of another person to part with or transfer the ownership of anything and d. That the Accused acted with intent to defraud”. Also per section 133 (2) ( a ), a representation may be made either by written or spoken words or by personation or by any other conduct, sign or means of whatsoever kind. In the charge of defrauding by false pretences, the rule is that there ought to be proof that but for the false pretences, the person who parted with his money or property would not ordinarily have done so. See the case of The Republic v Emmanuel Kwabena Gainsford ( unreported ) case NO. FTRM/72/12 per Bright Mensah, J ( as he then 9 was ) who quoted for approval and applied the principle in the case of COP v Dwamina (1956) 1 WALR 55. In the case of Asare and Others v The Republic (No.3) 1968 GLR 804 CA, it was held that:- “To succeed on a charge of defrauding by false pretence under Act 29 section 132 and 133, it was not enough for the prosecution to prove that the representation was false; they should go furher to prove the consent to part with ownership was in fact obtained by false pretence”. From the evidence before the court, the court finds the version of the A1 and A2 more credible and more reasonably probable than the version of the story or incident given through the PW1. The court finds that A1 and A2 merely used deceit to make the PW1 part with his mobile phone and not through the use of force. The court finds that the A1 and A2 on the date and place in question at Nkawkaw “Square 1” met the PW1 and under the false representation by the A1 that he had a piece of diamond to give to the A2 and the PW1 for showing him the forex bureau, the A1 asked the A2 and PW1 to buy some camphor to be used to wash the diamond. The court finds that the A2 initially went to buy the said camphor while leaving the supposed diamond with the PW1; and that upon his return, the PW1 was asked by the A1 to go and buy his own camphor for the process, while leaving his phone and the alleged diamond with the A2. The court finds that by the time the PW1 returned, the A1 and A2 had left with the mobile phone in question. The court accordingly finds and holds that the A1 and A2 used deceit and false pretences to solely and intentionally to make the PW1 to part with his mobile phone on that date. The court finds and holds that the A1 and A2 did not forcefully carry the PW1 to any dark place where they took the mobile phone of the PW1.. The court does not find the version of the PW1 reasonably probable or reasonably true that the A1 and A2 used force to obtain the phone from him. This is because from the facts, the area or scene in question at Nkawkaw appears to be a busy place. In the opinion of the court, if the A1 and A2 had forcefully carried the PW1 on their shoulders to some dark place where they took the phone from him, it was reasonably probable for others to have seen the act of the A1 and A2 or that the PW1 would have shouted for help for others to have come to his rescue. 10 It is the opinion of the court that the circumstances of the case are more consistent with the probability that the A1 and A2 only used deceit through false representations to the PW1 to part with ownership of his mobile to them than with the use of force at the scene to obtain the phone from the PW1. In the premises, the court finds and holds that the A1 and A2 did not forcefully obtain the mobile phone in question from the PW1; but rather that the A1 and A2 used deceit and false pretences to make the PW1 part with his phone. Accordingly, the court finds that the prosecution failed to prove beyond reasonable doubt that the A1 and A2 robbed the PW1 of his phone. The A1 and A2 are hereby acquitted and discharged on the count 2 of robbery, a first degree felony. Nonetheless, the court finds the A1 and A2 guilty of the lesser offence of defrauding by false pretences. They are convicted accordingly. Section 154 of the Criminal Procedure Act, 1960, Act 30, allows the court to convict the A1 and A2 for the offence of defrauding by false pretences even if they were not originally charged with that offence. Section 154 (1) provides that: “Where a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence and the combination is proved but the remaining particulars are not proved, then that person may be convicted of the lesser offence although not charged with it.” 154(2) provides: “Where a person is charged with an offence and facts are proved which reduced it to a lesser offence, that person may be convicted of the lesser offence although not charged with it.” ISSUES 3: WHETHER OR NOT THE A3 DISHONESTLY RECEIVED THE PROPERTY OF THE PW1: Meanwhile, the last offence of dishonestly receiving per section 146 of Act 29/1960 ( supra ) reads as follows: 11 “Whoever dishonestly receives any property which he knows to have been obtained or appropriated by offence punishable under this Chapter shall be liable to the same punishment as if he had committed that offence”. However I must emphasize that section 146 only creates the offence in the statute. It is section 147 of Act 29/1960 which defines and states the ingredients of the offence of dishonestly receiving as follows: “A person is guilty of dishonestly receiving any property which he knows to have been obtained or appropriated by any crime, if he receives, buys or in any manner assists in the disposal of such property otherwise than with a purpose to restore it to the owner”. So that in the case of Rahim Ibrahim v The Republic; Unreported, Criminal Appeal No. H2/2/201; delivered on 19th July, 2017, the Court of Appeal, per Ackah-Yensu JA, held as follows to state the ingredients and scope of the offence of dishonestly receiving; what the prosecution must do to obtain conviction and what a court or judge must look out for; “When a person is charged with dishonestly receiving the prosecution must prove the following essential ingredients, namely ( 1 ) that the accused received property which he knew to have been obtained or appropriated by crime, and ( 2 ) that the receipt of the property was essential. These two essential elements constitute the actus reus and mens rea of the offence of dishonestly receiving. Proof that the accused person receiving something which has been stolen or obtained by any crime is not sufficient. There must be further proof that the accused person knew that the thing had been stolen or obtained by crime. Since the proof of guilty knowledge on the part of the accused person is essential to the constitution of the offence. It is the duty of the court to satisfy itself that the accused knew that the property had been obtained or appropriated by crime. It has been held by the Court of Criminal Appeal in England in the case of R v Johnson ( 1911 ) 6 Cr. App R. 218 that knowledge that the property has been stolen must exist at the time of receipt of it by accused”. Similarly, the case of Republic v. Bayford (1973) 2 GLR 321 distilled the ingredients of the offence. The court held that for an accused person to be guilty of dishonestly receiving stolen goods, it was essential for the prosecution to adduce sufficient evidence to establish that: (i) the property was in such a condition as to be under the dominion of the accused to the exclusion of the person who obtained or appropriated it by an offence. It was not necessary 12 that the accused had physical or manual possession, but it had to be shown that the property was under his control. (ii) (ii) that the accused received the property, that is to say, that the accused took possession of the goods, actual or constructive. It had to be shown sufficiently that the accused and the person who obtained or appropriated the property by an offence did not both have possession at the same time; (iii) (iii) at the time the property was received by the accused it had actually been obtained or appropriated by an offence; and (iv) (iv) guilty knowledge which was largely a matter of inference. From the above definition of the offence of dishonestly receiving, it is my considered opinion that the foundation or basis for the charge to be laid properly is that the evidence should show and proved beyond reasonable doubt that the Accused knew that the property received was obtained or appropriated through a crime. Thus proof that the phone of the PW1 in question found in possession of the A3 was obtained or appropriated through crime is a condition precedent to the charge of dishonestly receiving. See the dictum of Ayebi JA ( as he then was ) in the case of Augustine Osei v The Republic; Unreported; Criminal Appeal No: H2/08/2015; delivered on 30th November, 2017. From the evidence before me, the court finds that A3 was able to offer some reasonably probable explanation for how he came by the phone of the PW1, even if the court did not totally believe it. The court finds that the A3 acted in good faith and innocently when he agreed to buy the phone after speaking to the A2, his friend , that the phone belonged to the A1, who needed to sell it to raise money for his transportation. The facts do not show conclusively that the A3 knew that the phone he was buying was procured through a crime. In the light of all the above findings and conclusions of the court, it is the judgment of the court that the prosecution failed to prove beyond reasonable doubt that the A3 dishonestly received the phone of the PW1 from the A1 and A2. The A3 is accordingly not found guilty. He is acquitted and discharged. SENTENCING FOR A1 AND A2: Now section 131 (1) of the Criminal Offences Act, 1960, Act 29 categorizes the crime of as second degree felony. But that provision does not specify or provide for punishment for the said offence. 13 However, sub-section 5 of section 296 of Act 30, mentions or lists specific offences involving the sections or provisions on stealing, fraudulent breach of trust, defrauding by false pretences, unlawful entry etc. and stipulates that in such cases the sentence should not exceed 25 years. The punishment for conspiracy is provided for under section 24 (1 ) of Act 29/1960 ( supra ) as follows: “Where two or more persons are convicted of conspiracy for the commission or abetment of a criminal offence, each of them shall, where the criminal offence is committed, be punished for that criminal offence, or shall where the criminal offence is not committed, be punished as if each had abetted that criminal offence”. My understanding of the above provision is that a person convicted for conspiracy- an inchoate offence- will be punished to the same extent and suffer the same minimum and maximum sentence as would be imposed for the substantive offence that was conspired thereof. In this case, the substantive offence they have been convinced upon is defrauding by false pretences. Therefore in this case, upon the conviction of the A1 and A2 for the two offences of conspiracy to commit the crime of defrauding by false pretences and defrauding by false pretences respectively, the court is entitled under the law to impose a custodial sentence of up to twenty-five ( 25 ) years on each of the offences. With the benefit of the above statutory provisions, in determining the appropriate sentence for the convict herein, I have had to consider the authority of Kwashie v The Republic ( 1971 ) 1 GLR 488, which provides for the factors to be considered by a court before imposing the length of sentence on a convict. In that regard, I have taken into consideration mitigating factors such as the youthful ages of the convict and also that they are first offenders, who still need to be given a second chance to reform. The court has also taken into consideration the few months that they have spent in lawful police custody after the court revoked their bails upon the establishment of the strong prima facie case against them. Despite that, the court also notes the above aggravating factors that go against the convicts: To wit, that their criminal acts were premeditated, especially for the A1 and A2. On the facts, they had carefully planned their tricks and deceit to take the phone of the PW1. It will only take real professional criminals to execute it. Such offences are becoming increasingly common within the jurisdiction. They appear- especially the A2- to be able bodied men who could have put their energies to decent means of incomes but they rather chose to engage is cheap deceit and fraud, taking advantage of a vulnerable naïve young man. To that end, each of the convicts is hereby sentenced to serve three ( 3 ) years imprisonment in hard labour on the conspiracy offence; while each of them is to serve six ( 6 ) years imprisonment in hard labour for the convicted offence of defrauding by false pretences. The sentences are to run concurrently. The convicts are informed of their statutory right of appeal. 14 SGD: H/H STEPHEN KUMI (CIRCUIT JUDGE).