IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2017
KOFI YEBOAH - (Appellant)
THE REPUBLIC - (Respondent)
DATE: 23RD NOVEMBER, 2017
CRIMINAL APPEAL NO: H2/6/17
JUDGES: F.G. KORBIEH J.A. (PRESIDING), A. LOVELACE-JOHNSON (MISS) J.A., C. H. SOWAH (MRS.) J.A.
AUGUSTINES OBOUR FOR THE APPELLANT
EVELYN D. KEELSON (CSA) FOR THE RESPONDENT
F.G. KORBIEH, J.A.
This appeal emanates from the judgment of the High Court, Accra which had itself heard an appeal from the trial Circuit Court, Accra convicting and sentencing the appellant to twenty-five years imprisonment with hard labour. A summary of the facts of the case, as presented to the initial trial court on the 12/8/2013, was as follows: the complainant was a businessman who opened an automobile spare parts shop at Abossey Okine in 2009 and employed the appellant as a sales assistant. In March, 2011 the complainant travelled to Europe leaving the shop in the care of the appellant. Barely a month later, the complainant returned only to find the shop locked up and the appellant nowhere to be found. The complainant broke open the shop and found out that seventy-two engines worth GH⊄84,000.00 were missing from the shop. He therefore made a report to the police. On the 24/7/2013 the appellant was seen at Abossey Okine and arrested. During interrogation, he admitted the offence in his investigation caution statement and told the police that he sold the 72 engines for Gh⊄62,000.00 which amount he gave to one Kwadwo Aboagye to import spare parts for him. He was therefore charged and put before the court. According to the ROA, the charge was read and explained to the appellant in Twi and he pleaded guilty and was accordingly convicted on his own plea and sentenced to twenty-five years imprisonment with hard labour.
On the 4/2/2015, the appellant filed a motion for extension of time within which to appeal against conviction and sentence and succeeded in appealing to the High Court, Accra where he filed three grounds of appeal. The three grounds of appeal read as follows: (a) The convict did not understand the proceedings in court as he was not represented; (b) the sentence is excessive and (c) the Judge erred for not giving reasons for her sentence. The appellate High Court judge duly considered these three grounds and proceeded to dismiss ground one. He however upheld grounds two and three in part and reduced the sentence from twenty-five years to fifteen years. He also made a restitution order and ordered the appellant to refund the total cost of the items left in his possession to the complainant. It is this judgment of the appellate High Court that the appellant has appealed against on the following grounds:
1. The High Court erred when it affirmed the conviction of the appellant by the trial circuit court.
2. The sentence of the appellant is still harsh in the circumstances.
3. Additional grounds of appeal to be filed upon receipt of the judgment of the High Court. Particulars of Proceedings in Court
Date of Judgment: 5th June 2015
Court from whose decision the appeal is made: High Court
Decision of Court Below: Affirming conviction and sentence of High Court
Address of Appellant: Nsawam Male Prison.
We have to state straightaway that no additional grounds of appeal were filed. In arguing this appeal, counsel for the appellant argued ground 1 of the appellant’s grounds of appeal first. As indicated above, this ground of appeal reads as follows: the High Court erred when it affirmed the conviction of the appellant by the trial circuit court. The gist of the argument of counsel for the appellant is that the appellant was denied fair hearing in the trial court mainly because he did not understand the proceedings in that court on account of the fact one: that he was not represented by counsel and two: that the trial court failed to explain the gravity of the offence the appellant was facing and the consequences of his plea of guilty simpliciter. Counsel argued further that given the constitutional guarantee of a fair trial as provided for under article 19(1) of the Constitution, the failure of the trial judge to give those explanations amounted to a denial of a fair trial and thus the appellate High Court erred in upholding the conviction of the appellant by the trial circuit Court. In response to these arguments, counsel for the respondent argued that the trial court and the trial judge did everything that the law required to be done; the charge was read and explained to the appellant in Twi which was a language he understood and in which he pleaded. Counsel for the respondent also argued that the appellant was never once confronted with the word “plea” so as to be confused by it as contended by his learned friend. She therefore submitted that the appellate High Court was right to have upheld the conviction of the appellant.
We shall start our consideration of this first ground of appeal with two remarks made by counsel for the appellant; one to the effect that there was no evidence on record that the plea was explained to the appellant at the trial and the other that counsel tried to import evidence into his submissions when he said that his instructions were that it was the complainant who asked the appellant to send the money to Aboagye. I think that however hard counsel tries to defend his/her client in a case, he/she should never put his/her own professional integrity on the line. We say this because it is very clear on page 3 of the ROA that the charge was read and explained in Twi to the appellant. For counsel therefore to base part of his argument on the contention that the charge was “never” explained to the appellant is not only being unprofessional, it is being dishonest. Counsel subsequently tried to explain away this so-called absence of explanation by engaging in all kinds of technicalities but the truth remains that on the ROA the charge was explained to the appellant. As pointed out by counsel for the respondent in her answer to the written submissions of counsel for the appellant, the appellant was never confronted with the word “plea” in the courtroom on the day that his plea was taken. Hence any argument that he was confused by that word is only an attempt to throw a red herring into the argument and to throw dust into the eyes of the Court. That is most unfortunate. Then there is the issue of the appellant giving counsel instructions which he used in his written submissions. This is never done! Since what the appellant told his counsel did not form part of the record, it not could be used in any argument in support of a ground of appeal. It amounted to introducing unsworn new evidence through the back door. Counsel for the appellant is therefore advised to desist from doing that kind of thing. Those were by way of preliminary remarks.
We now go on to our main consideration of the first ground of appeal. As stated earlier it was premised on the constitutional provision that guarantees a fair trial for a person standing trial. It was the contention of counsel for the appellant that since the appellant spoke “Twi”, he did not understand the proceedings in which the trial judge gave him a sentence of 25 years imprisonment. But something just does not add up in this argument. The fact that the appellant choose to speak Twi did not necessarily mean that he did not understand English. Nothing on the record indicated that the appellant did not understand the proceedings. But even assuming he could not understand English, as conceded by his counsel, there is no requirement under the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) that any further explanation should have been given to the appellant. Despite this concession, counsel went on to argue, ad nauseum, that the word “plea” is a technical word and ought to have been explained to the appellant. I believe he pulled the carpet from under his own feet, so to speak, by conceding that nothing in Act 30 required any further explanation to be given to the appellant than was made to him. In any case, as said earlier, he got a fitting response from counsel for the respondent. We think that the learned judge of the first appellate court did a very good analysis of trial court’s decision vis-à-vis the constitutional provision regarding the need for an accused persons to be given a fair trial. The appellant pleaded guilty simpliciter. There was therefore no need for anyone to ask him any further questions. The argument of his counsel that it was quite strange for an accused person who offered an explanation in his caution statement would plead guilty without explanation would seem to betray counsel’s own knowledge or understanding of criminal procedure and proceedings. He contended that the trial judge ought to have read the caution statements of the appellant to ascertain if they were in tandem with his plea of guilty. This is preposterous! At the time the plea of guilty was taken, the caution statement was not and would not have been tendered in evidence so the trial judge could not have known what was in it to know that there could be any possible explanation in it. Besides what possible explanation could the appellant have? Going by the facts given, the appellant had said in that statement that he gave the money to Aboagye to import spare parts for him (the appellant). So how did that amount to an explanation to negative the criminality of what he had done? So, as the record went, there was simply no explanation that could exonerate the appellant. Therefore, any argument by counsel that the trial judge failed to explain anything to the appellant and thus breached any of the appellant’s constitutional’s right or rights is simply blowing a lot of hot air. In any case, we noticed that all of counsel’s arguments were based on the provisions of article 19 of the Constitution which are expressed in rather broad and general terms. We hold that these provisions are only justiciable to the extent that they have been provided for in Act 30. The specific and operational terms that govern criminal procedure and proceedings are to be found in Act 30. There is not a single instance of the infraction of one of these rules of procedure that counsel has been able to point out to demonstrate that the conviction of the appellant can be impugned. As we have already pointed out, by counsel’s own admission, there is no requirement in Act 30 that a plea of guilty simpliciter should be explained to an accused person who is not represented by counsel. Therefore the whole argument of counsel for the appellant that the failure of the trial court to explain the “plea” to the appellant and the failure of the court below to condemn that fact and nullify the proceedings of the trial court infringes on the appellant’s constitutional right to a fair trial is baseless in law and we hereby reject it. We therefore dismiss as totally unmeritorious ground 1 of the grounds of appeal.
Ground 2 of the grounds of appeal reads as follows: the sentence of the appellant is still harsh in the circumstances. In his written submissions however, counsel for the appellant seemed to have forgotten the wording of his own ground of appeal and came up with a different rendition that reads: “The sentence imposed on the Appellant was excessive and too harsh.” It is our view that there is a material difference between the two grounds. Counsel may have changed the wording of this ground of appeal because he realized that in the form that it was originally couched, it was legally indefensible. It simply meant that even after the court below (or the first appellate court) had reduced the sentence from 25 to 15 years, it was still harsh. In the second rendition, it was as if counsel did not want to remind this Court of the intervention of the first appellate court so that we might not ask awkward questions like: how did that court misuse its discretion? And that is precisely how counsel for the appellant went about his submissions. He argued as if the appeal was against the decision of the trial court and not the first appellate court. He said nothing to impugn the sentence imposed by the court below. He conceded that in law sentencing is in the discretion of the court. This concession had earlier been made before the court below but counsel then had gone on to argue why the sentence of 25 years imprisonment was too harsh in the circumstances. The court below rightly agreed with the submission of counsel before it and said as follows:
“It is manifestly clear that from the above statement that the trial judge did not consider any mitigating factors. In principle, this renders the sentence amenable to re-consideration by an appellate court.”
Therefore applying the law and his discretion the learned judge of the first appellate court reduced the appellant’s sentence from 25 years to 15 years. Even though the appellant’s second ground of appeal is against sentence, his counsel said nothing to impugn the first appellate judge’s use of his discretion which he exercised, in our view, properly and judiciously. As for the hackneyed argument that the conviction and sentence should be set aside because the appellant was denied a fair trial, counsel should learn that it is not how many times one repeats an argument that will make one win it. Counsel also referred us to the Ghana Sentencing Guidelines. On page 16 thereof provision is made for sentencing in relation to the offence of stealing. The appellant stole 72 engines valued at GH⊄84,000.00 which puts his case in the category of unlimited penalty units and not in level C as counsel contended. The first appellate court did not err therefore when it reduced the appellant’s sentence to 15 years imprisonment. We do not therefore see any legal or other reason why we should grant the second ground of appeal either. It is also accordingly dismissed.
It is provided in section 31(2) of the Courts Act, 1993 as follows:
“(2) The appellate court shall dismiss the appeal if it considers that a substantial miscarriage of justice has not actually occurred…”
We do not think that any miscarriage of justice occurred in this case and we hereby dismiss this appeal in its entirety as being totally without merit.