IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ACCRA - A.D 2018
KWABENA ADUSEI - (Appellant)
THE REPUBLIC - (Respondent)
DATE: 11 TH JULY, 2018
SUIT NO: H2/11/2018
JUDGES: ADJEI J.A, LOVELACE-JOHNSON J.A, TORKORNOO J.A
ROBERT KINGSLEY YEBOAH FOR APPELLANT
SETH AWERE-OPANYI YENA (SSA) FOR THE REPUBLIC RESPONDENT
The Appellant was charged with two counts of offence and was arraigned before the High Court, Accra. The two counts of offence preferred against the Appellant before the trial High Court were possession of narcotic drug without lawful authority contrary to sections 2(1) and (2) of the Narcotic Drug (Control, Enforcement and Sanctions) Law 1990, PNDCL 236 and attempted exportation of narcotic drug without licence, contrary to section 11(1) and 56 (a) of the Narcotic Drug (Control, Enforcement and Sanction) Law 1990 PNDCL 236. The Appellant before the trial High Court pleaded not guilty to both counts and the case proceeded to trial. After the trial, the High Court convicted the accused of both counts of offence and sentenced him to ten years imprisonment to run concurrently.
The Appellant dissatisfied with the sentence imposed on him by the trial High Court applied for leave to this Court to file an appeal against sentence. Pursuant to the leave granted by this Court, the
Appellant filed his notice of appeal on 6th December, 2017.
The brief facts of the case as presented before the trial High Court were that the Appellant was a driver by profession and lived in Italy. On 8th September, 2009, the Appellant was arrested at the Kotoka International Airport by the officials of the Narcotic Control Board (NACOB) on suspicion of having ingested Narcotic drugs. A field test of urine was conducted by the officers of the Narcotic Control Board on the Appellant which proved positive for heroin. On interrogation, the Appellant confessed to having swallowed sixty-five pellets of heroin. The Appellant subsequently expelled all the sixty-five pellets of heroin when he was kept under observation.
The Appellant was first arraigned before the trial High Court on 8th September, 2009. The Appellant pleaded not guilty to both counts of offence. The Appellant was remanded into prison custody until he was convicted on 14th December,2012. The Appellant’s main concern is that the trial High Court Judge failed to take into account the period of three years three months he spent in lawful custody in respect of the two counts of the offence preferred against him until the completion of the trial. The two grounds of appeal contained in the notice of appeal filed by the Appellant against his sentence are as follows:
“1.That the trial High Court failed to consider in its judgment the period of Three (3) years three months (3) the Appellant had spent in Prison/Police Custody upon his arrest prior to his subsequent conviction on the 24th December, 2012 before sentencing to Ten (10) years I.H.L.
2. That the failure of the trial High Court to consider and factor the period the Appellant had spent in custody prior to his conviction and sentencing is an apparent error of law which has occasioned substantial miscarriage of justice against the Appellant in the circumstances”.
The prayer for the Appellant is that the ten years sentence imposed on him shall take effect from 8th September, 2009 when he was first arraigned before the trial High Court and not from the date of conviction.
We address the two grounds of appeal together as they have the same legal effect. The Appellant’s grounds of appeal are grounded on clause (6) of article 14 of the Constitution. It provides thus:
“Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he has spent in lawful custody in respect of that offence before the completion of his trial shall be taken into account in imposing the term of imprisonment”.
The above constitutional provision has been discussed by the courts in some decisions and therefore not a novel provision which requires interpretation. Clause (6) of article 14 of the Constitution is a mandatory provision which any court is required to take into account when imposing appropriate sentence. Where the accused was kept in lawful custody for that charge at any time before the completing of his trial.
The Supreme Court in the case of Bosso vs The Republic  SCGLR 420 at page 429-430 discussed the legal effect of clause (6) of article 14 of the Constitution thus:
“This clear constitutional provision enjoins judges, to take any period spent in lawful custody before the conclusion of the trial into account. A legitimate question which might arise in any given case which does, indeed, arise for considerations in the instant appeal, is how do we arrive at the conclusion that this constitutional mandate has been complied with? We believe this is discernible from the record of appeal.
We would not attempt to lay down any hard and fast rules as to the form, manner or language in which the compliance should be stated, but the fact of compliance must either explicitly or implicitly be clear on the face of the record of appeal. Admittedly the more explicitly the court expresses the position that it has taken into account the said period, the better it is for everyone as it places the question beyond every controversy and leaves no room for doubt”.
A court in imposing appropriate sentence in accordance with the Constitution is required to take into account clause (6) of article 14 of the Constitution and may be expressly or by necessary implication. Where it is by necessary implication, the circumstances of the case may say so. For example, where an accused is convicted and sentenced to the minimum punishment prescribed by law, it is presumed that the Court impliedly took into account clause (6) of the article 14 of the Constitution. With respect to possession of narcotic drugs, PNDCL 236 provides that a person found guilty of it is liable on conviction to a term of imprisonment of not less than ten years. We hold that in respect of count one, the Court impliedly took into account clause (6) of article 14 and imposed the minimum sentence.
We now address the sentence imposed on the Appellant in count two, that is attempted exportation of narcotic drug without licence contrary to sections 1(1) and 56(a) of PNDCL 236. Section 1(1) of PNDCL 236 provides that a person who imports or exports a narcotic drug without a license issued by Minister for Health commits an offence and on conviction is liable to a term of imprisonment of not less than ten years. The trial High Court imposed the minimum sentence of ten years imprisonment on the Appellant and by necessary implication took account of clause (6) of article 14 of the Constitution.
The next issue to address is whether a sentence can be made to take retrospective effect as argued by Counsel for the Appellant. Section 315(3) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) which regulates effective date for sentencing provides that a sentence of imprisonment commence on and includes the day on which it is pronounced and therefore sentence shall take prospective effect from the date it is pronounced.
The Court of Appeal in the case of Uyuanwune vs The Republic [2011-2012]1 GLR 15 discussed the effect of retrospective sentence and its effect on clause 3 of article 15 on the Constitution; that is the constitutional right of a remand prisoner. The court at pages 26 and 27 of the record held thus:
“Retrospective sentences have serious legal implications. For example, the rights of remand prisoners are different from convicts and it will be wrong to say that remand prisoners who were not convicts and enjoyed all the rights of remand prisoners were to be considered as convicts. What would be the legal position of a right exercised by remand prisoners but not available to convicts? Article 15(3) of the Constitution, 1992 makes a distinction between the right available to a convict and a remand prisoner and should be respected by the courts. It provides as follows: ”A person who has not been convicted of a criminal offence shall not be treated as a convicted person and shall be kept separately from convicted persons.
Another important legal issue in retrospective sentencing is that if a sentence is to take retrospective effect would the state compensate someone who was on remand for years and was acquitted and discharged after trial? There is no provision in the law for such a person to get compensation and any sentence which has retrospective effect is bad in law. The sentence should have taken effect from the date of conviction and the trial High Court judge was required by law to have taken into consideration the period spent by the Appellant when he was in lawful custody during the trial”.
We hold that the trial High Court Judge by necessary implication took into account the relevant constitutional provisions before imposing the minimum sentence prescribed by law to take effect from the date the judgment was pronounced. A sentence imposed to have a retrospective effect shall seek to convert a right conferred by the Constitution on a remand prisoner. Under article 15 which provides that a person who has not been convicted of a criminal offence shall not be treated as a convicted person and shall be kept separately from convicted persons and to state that the time spent by a remand prisoner while in custody shall be commutted to form part of his sentence suggests that the judgment has taken away the right conferred on a remand prisoner to make him a convicted person even though the person enjoyed all rights as a remand prisoner including the presumption that he was innocent during that time. A sentence imposed by a Court of law has prospective effect and shall not have retrospective effect. The Court is duty bound to take into account the period a person spent on remand in respect of an offence before the completion of his trial but not to impose the sentence and deduct that period from it.
The Courts lack power to use a decision to set aside a right conferred on a person by the Constitution as the rights of remand prisoners are distinct from that of convicted persons.
We therefore dismiss both grounds of appeal as unmeritorious and affirm the judgment of the trial High Court delivered on 14th December, 2012.