REPUBLIC VRS HUKPATI (Criminal Case 169 of 202) [2024] GHADC 305 (8 March 2024)

JUDGMENT DELIVERED IN THE DISTRICT COURT, ADA ON FRIDAY, THE 8TH OF MARCH, 2024 BEFORE HER WORSHIP PAULINA KWAKYEWA ADWOA. SUIT NO: CC/169/23 THE REPUBLIC VRS. ZOE HUKPATI @JULIAN HUKPATI………………………………………..ACCUSED Accused Person…………………………………………………………………. Present Chief Inspector Edward Gbekleh, for the prosecution…………. Present Accused is self-Represented. JUDGMENT The accused person herein, Zoe Hukpati arraigned before this court on the 11th of May, 2023 and charged with Stealing, contrary to section 124(1) of the Criminal Offences Act, 1960, (Act 29). The accused, after the charge had been read out and explained to him in Ewe, the language he understands, pleaded Not Guilty to both offences charged and so the case was set down for trial after all disclosures had been served on the accused persons and case management conference conducted. The brief facts of the case as presented to the court by the prosecution were that the complainant, Daniel Mordey is a student and a washing bay attendant at Salako Filling Station whilst the accused Zoe Hukpati aged 23 is an Okada Rider at Ada Foah. On 9/05/2023 the accused went to the washing bay to wash his motorbike and saw complainant’s TECNO SPARK 8 placed on the table at the Filling Station. The accused immediately picked the phone and off it and left the scene without being noticed. The case was immediately reported to the police who arrested the accused and placed in cells. During investigations the accused admitted the offence and led the Police Totimekopey into a small room where he hid the phone and same was retrieved and kept for evidential purpose. After investigations accused was charged with the offence and put before court. Prosecution called three witnesses in support of their case at the trial. The First Prosecution Witness (PW1) was the complainant herein, one Mr. Mordey Daniel, a part time worker at Salako Washing bay – Ada Foah. He stated in his evidence in chief that on one Tuesday, the 9th of May, 2023, between the hours of 9:30 and 10:am, he was on duty washing a motor bike when the accused person went there with his motorbike for washing. At the time, the PW1 said, he had put his phone on a table nearby. Whilst washing the motorbike, it was his case that he saw the accused person herein, holding the phone and turning it but that because of the work he was engaged in, his full attention was not on the phone. The PW1 said he finished washing the motorbike and also washed that of the accused person as well. After he was done washing the accused person’s motorbike an after the he- the accused person had left with same, the PW1 said he realised that his phone was not at the on the table where he had placed it. So, he informed some of his colleague workers there with him and they gave the accused person a hot chase. According to him, his colleagues later informed him that they caught up with the accused person at a place popularly known and called clinic Junction and escorted him back to the filling station. They later phoned the police and lodged a complaint with them after which they, the police went there, arrested him and took him to the police station after which he followed up to the police station. Later, in the day, the PW1 said, he was with the accused person at the police station, when he- the accused confessed to him that he stole the phone. Also, it was his case that the police informed him the next day that they had retrieved the lost phone from the accused. The Second Prosecution Witness (PW2), No. 44767, General Sergeant Atsu Sampson, also in his evidence in chief led by the prosecution informed the court that he stepped out of his office at the station at the Ada Foah police station on the 9th of May, 2023 and returned at about 10:pm to see the accused person in police custody. It was his case that the accused person later told him that he was the one who took the phone at the Salako filling Station where he- the accused had gone to have his motorbike washed for him, hid it in his helmet and went away with it. He stated in his evidence in chief that on one Tuesday, the 9th of May, 2023, between the hours of 9:30 and 10:am, he was on duty washing a motor bike when the accused person went there with his motorbike for washing. At the time, the PW1 said, he had put his phone on a table nearby. Whilst washing the motorbike, it was his case that he saw the accused person herein, holding the phone and turning it but that because of the work he was engaged in, his full attention was not on the phone. The PW1 said he finished washing the motorbike and also washed that of the accused person as well. After he was done washing the accused person’s motorbike an after the he- the accused person had left with same, the PW1 said he realised that his phone was not at the on the table where he had placed it. So, he informed some of his colleague workers there with him and they gave the accused person a hot However, after the caution statement had been read out in open court and explained to the accused in Ewe, the language he understands, he indicated to the court that the statement was not the true representation of the statement he gave to the police at the time he was cautioned. The PW3 then tendered in evidence a photograph of the accused taken at the crime scene. It was admitted in evidence as exhibit ‘C’ without any objection from the accused. So, on the 19th of September, 2023, the court decided to investigate the accused person’s allegation. The independent Witness, one Mr. Ofoe Cobblah, a retired Marketing and purchasing officer, who was said to be present and also interpreted the statement to the accused during his caution appeared in court and explained to the court what really transpired on that day after which he was cross examined by the accused. The Court Witness (CW) informed the court that on the day that the accused person was cautioned, he was in his house, which he said is close to the Ada Foah police station, when one of the policemen saw him and invited him to come over and assist them take the accused person’s statement. It was his case that he duly interpreted the statement to the accused in Dangme before he and the accused made their mark. Upon a careful appraisal of the allegations by the accused, the investigation caution statement of the accused and the statement by the CW, the court overruled the accused person’s objections as without merit after which both the caution and charge statements were admitted in evidence as exhibits ‘D’ and ‘E’. After this, the court then called upon the accused person to open his defence. In his opening of defence, the accused person mentioned his full name and occupation as Zoe Hukpati. He however did not have much to tell the court about. All that he said was that he did not know anything about the charge preferred him. He therefore ended his case at this point. He did not call any witness. The legal issue to be determined at this point is whether or not the accused person is guilty of the offence charged. The fundamental principle underlining the rule of law as far as criminal law is concerned is that the burden of proof remains on the prosecution and the evidential burden shifts to the accused only after a prima facie case had been made against the accused person. In the case of Commissioner of Police V Isaac Antwi [1961] GLR 408 it was held per holding one (1) as follows: ““The fundamental principles underlying the rule of law are that the burden of proof remains throughout on the prosecution and the evidential burden shifts to the accused only if at the end of the case for the prosecution an explanation of circumstances peculiarly within the knowledge of the accused is called for. The accused is not required to prove anything;” This is also provided for by Section 13(1) and (2) of the Evidence Act 1960 (NRCD 323). Also in the case of Asare v The Republic [1978] GLR 193-199, the court held as follows: “As a general rule, there was no burden on the accused to establish his innocence; rather it was the prosecution that was required to prove the guilt of the accused beyond all reasonable doubt” Section 125 of Act 29 defines stealing as follows: “A person steals who dishonestly appropriates a thing of which that person is not the owner.” Again, section 122(2) of Act 29 defines appropriation as follows: “An appropriation of a thing in any other case means any moving, taking, obtaining, carrying away, or dealing with a thing, with the intent that a person may be deprived of the benefit of the ownership of that thing, or of the benefit of the right or interest in the thing, or in its value or proceeds, or part of that thing.” Dishonest Appropriation is also defined in section 120 of Act 29/60 as follows: An appropriation of a thing is dishonest “(a) if it is made with the intent to defraud, or (b) if it is made by a person without claim of right, and with a knowledge or belief that the appropriation is without the consent of a person for whom that person is trustee or who is owner of the thing, or that the appropriation would, if known to the other person, be without the consent of the other person.” The elements of stealing were stated in the case of Lucien V. The Republic [1977] 1 GLR, 351-359 as follows: “The only basic ingredients requiring proof in a charge of stealing were that: (i). the person charged must not be the owner of the thing stolen; (ii). he must have appropriated it and (iii). the appropriation must have been dishonest.” The prosecution would have to prove all the ingredients above in order to discharge the burden placed on them to prove their case beyond reasonable doubt against the accused person. The PW1, in his evidence in chief, indicated to the court that his phone was on a table close to where he was carrying out his work until the accused went there with his motor bike for washing. It was also his case that he later saw the accused holding the phone and turning it and that it was after the accused had left with his motor bike that he noticed that the was not at where he had placed it. The 2nd and 3rd Prosecution Witnesses, also in their separate evidence in chief, informed the court that the allegedly stolen phone was later retrieved from the accused person’s residence at Totimekope, near Ada Foah which the PW1 identified to be his. This assertion the accused person did not deny; neither did he claim ownership of same. He only told the court that he did not know anything about the charge against him. In the case of Ali Yusif Issa (No.2) v. The Republic [2003-2004] SCGLR 174 @183-184, the court, per Akuffo JSC (as she then was), stated among other things that “…although an accused person is not required to prove his innocence during the course of his trial, he may run the risk of non-production of evidence and/or non -persuasion to the required degree of belief, particularly when he is called upon to mount a defence” Following from the totality of the evidence as adduced before me therefore, I make the following observations as well as findings of fact: I find as a fact that the day of the incidence, the 9th of May, 2023, the accused herein went to the Salako Washing bay where the complainant herein works to have his motor bike washed for him since the accused person did not deny that assertion. It is also clear that before the accused person’s motor bike was washed, he was seen holding the phone, which the PW1 said he placed on a table nearby and the fact that the phone was nowhere to be found after the accused had left with his motorbike after it had been washed. I further find as a fact that the phone was later found in the residence of the accused person, this is so because the accused agreed with the prosecution that he was the one with the phone in exhibit ‘A’ at the time he was retrieving same for the PW3. I therefore find that the prosecution has been able to prove its case against the accused person herein beyond reasonable doubt because the courts have held that proof beyond reasonable doubt is not proof … From the above, I find the accused person herein Zoe Hukpati guilty of the offence of stealing and convict him accordingly. Any plea in mitigation before sentence is passed? Accused Person: I am begging the court. Q. Is the accused person known? Prosecution: No, he is not known. BY COURT: The accused person, I am told, is a first time offender. He has pleaded with the court to tamper justice with mercy. Also, the stolen phone has been retrieved. The accused person has also been in police custody since May, 2023 till today, date of judgment. He would be given the opportunity to turn new leaf. However, for it to serve as deterrence to the accused as well as liked minded persons, the accused person herein is sentenced to pay a fine of 250 penalty units or in default, he should serve 12-months prison term. H/W PAULINA KWAKYEWA ADWOA. SGD