IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA - A.D. 2021

CORAM: YEBOAH CJ (PRESIDING)

PWAMANG JSC
AMEGATCHER JSC
TORKORNOO (MRS.) JSC
KULENDI JSC
CRIMINAL APPEAL
NO. J3/02/2020

8TH DECEMBER, 2021

FRANCIS ARTHUR ……….. APPELLANT

VRS

THE REPUBLIC ……….. RESPONDENT

JUDGMENT

AMEGATCHER JSC:-

This is an appeal from the judgment of the Court of Appeal dated 21st February 2018.
That judgment affirmed the appellant’s conviction and sentence to 10 years I.H.L for
the offence of stealing contrary to section 124(1) of the Criminal Offences Act, 1960
(Act 29).

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The facts culminating in this appeal are amply captured by the decision of the Court of
Appeal. However, we will reiterate them in our own words as follows.

Francis Arthur, the appellant, was the Customer Service Manager of Ecobank Ghana
Limited at its Takoradi Main Harbour Branch. Sometime in June 2013, an investigative
team of Ecobank Limited (“the Bank”) arrived at Takoradi from the head office in Accra,
particularly tothe appellant’s branch to conduct a routine training. While there,
Ebenezer Lartey, a member of the team who is the head of the Security and
Investigation Department of the Bank (the complainant and PW1) spotted a Porsche
Cayenne vehicle parked at the branch. His curiosity drove him to make inquiries
regarding the ownership of the vehicle. His enquiries ultimately led to the identification
of the appellant as the owner of the vehicle.

Following this, the branch manager (PW2), who was uncomfortable with some irregular
transaction on the branch’s computer, drew PW1’s attention to it. As events would have
it, further probing revealed that the appellant was responsible for the irregular
transaction. The appellant was, therefore, confronted with this discovery. He admitted
to wrongdoing, sat before the computer and within a short time tabulated some
wrongful transactions which facilitated his withdrawal of sums of money amounting to
GHS 1,342,000.00, for his personal use.

Appellant then recounted his use of this amount, which comprised his purchase of two
Mitsubishi Pajero vehicles, a Porsche Cayenne vehicle, a Toyota Hilux Pick-up vehicle,
an uncompleted four flats, two apartment buildings at Nkroful and a two-bedroom
house as Apowa, all within the environs of Takoradi. Additionally, GHS 400,000.00 of
this amount had been deposited by the appellant in Treasury Bill investments at the
Takoradi Branch of Zenith Bank.

In a bid to return the Bank’s money, the appellant led the way to retrieve the GHS
400,000.00 investment at the Takoradi Branch of Zenith Bank, through a Power of
Attorney, which he executed in the name of the Bank. Further, the appellant led the
way to the landed properties.

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On the team’s return to the Bank’s head office at Accra, the appellant was handed over
to the police. At the Criminal Investigations Department (CID) of the Ghana Police
Service on 10thJune 2013, appellant gave an investigation cautioned statement
witnessed by an independent witness and among other things admitted to stealing GHS
1,342,000.00. Subsequently on 28th June 2013, in the presence of the same
independent witness, appellant in another investigation cautioned statement admitted
to stealing an enhanced amount of GHS 1,701,217.45.

After investigations, appellant was arraigned before the High Court, Accra on the
charges of stealing and forgery of other documents. At the end of the evidence, the
High Court on 17th November 2017 convicted the appellant on both counts and
sentenced him to ten years IHL on the stealing charge and two years IHL on the
forgery charge to run concurrently. The appellant was naturally dissatisfied with his
conviction. He appealed to the Court of Appeal, which upheld the conviction for the
offence of stealing but allowed the appeal in respect of the offence of forgery of other
documents. It is from this judgment which prompted the appellant to appeal to the
Supreme Court on the following grounds:

a. The Court below erred in law when it upheld the findings of the High Court to
the effect that the offence of stealing upon which the appellant was convicted
was proven.

b. The Court below erred in law when it disregarded the need to tender as evidence
the bank statement of the walk-in Account as proof of the exact amount stolen
as alleged by the prosecution.

c. The Court below erred in law when it upheld the findings of the High Court to
the effect that the confession of the appellant in his caution statement was
sufficient evidence of the admission of the offence of stealing.

d. The Judgment of the Court below amounted to gross miscarriage of justice.

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The gravamen of this appeal rest on the outcome of the admissibility and weight to be
attached to the confession authored by the appellant to the police. As such we would
address ground C first before proceeding with the other grounds.

GROUND C

This ground states that the court below erred in law when it upheld the
findings of the High Court to the effect that the confession of the appellant in
his caution statement was sufficient evidence of the admission of the offence
of stealing.

Arguing this ground, counsel for appellant submits in his statement of case that the
Court of Appeal after concluding that the confession statement of the appellant was
made voluntarily also found that it constituted sufficient evidence of the offence of
stealing. Counsel for the appellant bemoans the prosecution’s heavy reliance on the
appellant’s cautioned statements (EXHIBITS CC and DD) and argues that there
necessarily should be evidence on record to corroborate the statement of the accused.

ADMISSIBILITY OF THE CAUTIONED STATEMENTS

Akamba JSC, in the case of Ekow Russell vs. The Republic [2017-2020] SCGLR
469 defines a confession statement as follows:

“A confession is an acknowledgment in express words, by the accused

in a criminal charge, of the truth of the main fact charged or of some
essential part of it. By its nature, such statement if voluntarily given by
an accused person himself, offers the most reliable piece of evidence
upon which to convict the accused. It is for this reason that safeguards
have been put in place to ensure that what is given as a confession is
voluntary and of the accused person’s own free will without any fear,
intimidation, coercion, promises or favours.”

Appellant’s cautioned statements dated10thand 28th June 2013, which turned out to be
confession statements are governed by Section 120 of the Evidence Act, 1975 (NRCD

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323). Applying Akamba’s dictum (supra) and the Evidence Act to the facts of this case,
the basic point of the admissibility of a confession statement is the question of
voluntariness. As confession statements, therefore, the cautioned statements are not
admissible unless they were made voluntarily and in the presence of an independent
witness. These requirements shall not be belabored except that it is important to stress
on the requirement of voluntariness.

In determining what a ‘voluntary statement’ is, Taylor J in Republic V Kokomba

opined as follows:

“In my view, in ordinary parlance, ‘voluntary statement’ means a

statement offered by a person on his own, freely, willingly,
intentionally, knowingly and without any interference from any person
or circumstance. If a person of unsound mind makes a statement, it is
not voluntary, due to the interference induced by insanity; if short of
insanity, a person makes a statement not because he wishes to make it
but because of circumstances however induced, it will not be voluntary
because of the interfering circumstances. If a statement is induced by
threats and violence, it cannot be said to have been made without
interference from any person and so it is not voluntary. If a statement
is induced by promises, then it is not offered by the person of his own
and it is accordingly not voluntary”.

The burden lies on the prosecution to prove that the confession statement made was
voluntary. In other words, the prosecution must prove that there was no inducement by
threat or duress, or promise held out to the accused by a person in authority. It is
noteworthy that even though the appellant challenged the voluntary nature of his
cautioned statements of 10th and 28th June 2013, a mini trial conducted by the learned
trial Judge upheld the prosecution’s case that the cautioned statements were voluntarily
given and witnessed by one Seth Nyarko, an independent witness as required by and
under section 120 of NRCD 323.

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This fact was acknowledged by their Lordships of the Court of Appeal, who considered
the evidence that was led regarding the circumstances of the taking of the two
cautioned statements. In coming to that conclusion, the Court of Appeal considered all
the evidence led collectively by the prosecution which consisted of the testimony of the
police investigator (PW5) and the independent witness, Seth Nyarko as well as the
appellant’s own version of events. Applying the provisions of Section 120 of NRCD 323
to the evidence adduced the Court of Appeal came to the conclusion that the
statements written by the appellant in his own handwriting were voluntarily given and
being confession statements, were admissible and had probative value. In our opinion,
that conclusion is supported by the evidence adduced at the trial and the law. We do
not find any basis to disturb it.

Indeed the Court of Appeal rubbished the appellant’s contention that confession
statements may not be used alone in the conviction of an accused person. It stated
categorically at page 692 of the Record of Appeal that:

“We must be quick to add though that in spite of the plethora of

authority in support of the desirability of evidence corroborating
matters stated in a confession statement, in our view, that is not to say
that in all cases, voluntary statements found to have been voluntarily
made ought not to be relied on unless there was such corroborative
evidence.”

The position of the law regarding a conviction based solely on the evidence of a
confession by an accused person was stated by the Supreme Court in a Practice Note in
the case of State v Aholo [1961] GLR 626 where Van Lare JSC citing with approval
the cases of R. v. Omokaro (1941) 7 W.A.C.A. 146, which also cites the case of R.
v. Walter Sykes (1913) 8 Cr. App. R. 233 directed as follows:

“A conviction can quite properly be based entirely on the evidence of a

confession by a prisoner, and such evidence is sufficient as long as the trial
judge, as in this case, enquired most carefully into the circumstances in

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which the alleged confession was made and was satisfied of its
genuineness.”

See also the subsequent Supreme Court decision in the case of State v. Otchere &
Ors [1963] 2 GLR 463 where the Court per Korsah CJ emphatically stated that a
confession made by an accused person in respect of a crime for which he is being tried
is admissible against him provided it is shown by the prosecution that it was made
voluntarily and that the accused was not induced to make it by any promise or favour,
or menaces, or undue terror. The Court then concluded that a confession made by an
accused person of the commission of a crime is sufficient to sustain a conviction without
any independent proof of the offence having been committed by the accused.

We are, therefore, clear in our minds that the criminal jurisprudence of this court leans
towards the conviction of an accused person based on a voluntary confession to the
commission of the crime charged. However, we are aware that in the peculiar facts of
some cases where the only evidence available to convict was the confession statement,
the courts decried the unreliability and indeed set aside a conviction solely on the
confession without some other corroborative evidence that the crime was committed
and by the accused person. Those cases form the exception rather than the rule. For
example, in confession in murder and manslaughter cases, the courts have held that
where the statement does not establish the corpus delicti, ie the concrete and
essential facts which, taken together will prove that the crime has been
committed, it would require some additional evidence in the form of corroborative
evidence to demonstrate that the matters admitted did occur. Where the confession
establishes the corpus delicti, the confession is sufficient to sustain a conviction. This
was the position taken by the court in the Otchere case (supra) at holding 8 where the
Court said:

“The principle regarding a confession of murder (or manslaughter) is that

where the confession is direct and positive, that is, where the confession
establishes the corpus delicti, the confession is sufficient to sustain a
conviction. But where the confession falls short of establishing the corpus
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delicti then further corroborating evidence is required to prove the corpus
delicti. This principle does not apply to confessions of treasonable acts even
though the penalty for the offence of treason, like murder, is death.

See also the High Court case of the State v. Owusu & Anor[1967] GLR 114where
Baidoo J held that:

“An extra-judicial confession by an accused that a crime had been

committed by him did not necessarily absolve the prosecution of its
duty to establish that a crime had actually been committed by the
accused. It was desirable to have, outside the confession, some
evidence, be it slight, of circumstances which made it probable that the
confession was true. From the evidence adduced in the instant case,
there was sufficient corroboration which confirmed that the confession
of each accused was true.”

What, then constitutes corroboration in cases where the confession falls short of
establishing the corpus delicti? Section 7(1) of NRCD 323 defines corroboration to
consist of evidence from which a reasonable inference can be drawn which confirms in
some material particular the evidence to be corroborated and connects the relevant
person with the crime, claim or defence. In essence, the corroborating evidence
strengthens the initial evidence, which standing alone is insufficient to determine the
commission of acrime. Retired Supreme Court judge and legal text writer Stephen Alan
Brobbey writes in ESSENTIALS OF THE GHANA LAW OF EVIDENCE, First Ed.
2014at page 85 that this definition connotes three concepts; firstly, for the evidence to
amount to corroboration, it must have some connection or relationship with the
previous evidence. Secondly, that connection should amount to affirmation or denial of
some relevant part of the previous evidence. Thirdly, the connection and affirmation
should directly be referable or attributable to the person or fact in so far as the crime,
claim or defence is concerned. If these three concepts exist, the court may conclude
that the second evidence confirms, supports, or “corroborates” the first evidence.

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Reviewing the evidence in this case, can one say that the Court of Appeal was right
when it affirmed the decision of the trial court which relied on the cautioned statements
of the appellant to support the charge of stealing? We pose this question because the
submissions of appellant would have the Supreme Court believe that aside the
confession statements, there were no other pieces of evidence on record to support a
conviction. That assertion, in our opinion, is wholly erroneous and unsupportable
because at page 692 of the Record of Appeal the Court of Appeal stated that:

“Happily, in the instant matter, there is sufficient corroborative

evidence to support the matter stated in the appellant’s confession
statement”.

Indeed, having made this observation, pages 693 to 702 of the Record of Appeal
identifies quite clearly other pieces of evidence which drove the Court of Appeal to the
conclusion that there was sufficient corroborative evidence to support the confession
statement even if the argument were to hold that the confession statement in this case
was insufficient to sustain a conviction. Having considered all that corroborative
evidence, the Court of Appeal accordingly concluded at page 695 of the Record of
Appeal as follows:

“In our Judgment, the prosecution led evidence that sufficiently

corroborated the matters stated by the Appellant in the confession
statements”.

WHAT WAS THE SUFFICIENT CORROBORATING EVIDENCE?

Aima Abena Aboagye (PW3) testified at pages 158 to 161 of the Record of Appeal that
she was given a memo by the appellant, which memo indicated a conversation between
him and Tabitha Mensah, with an instruction to move monies from the GC Net account
into the Bank’s Walk-in Account in respect of monies to be paid to one Kwaku Sekyei
Aidoo to whom appellant mistakenly gave the GC Net account. Further, it was her
testimony that she was given a memo by the accused which indicated a credit into the
Bank’s Walk-in Account, which appellant needed to pay to Goodwin Shirley (PW4).

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These were confirmed by EXHIBITS D and E. PW3’s testimony was uncontroverted
during cross examination. The testimony elicited by counsel for the appellant appears
as follows at page 162 to 163 of the Record of Appeal:

Q: Aima you indicated to this court in your examination in chief that the
accused person herein authorizes you to make payment directed to him.
Do you maintain it?

A: Yes my lord

Q: Is that the practice?

A: Sometimes my lord

Q: And was the payment authorise [sic]?

A: Yes my lord.

Q: Is he the only person who was supposed to authorise the

payment?

A: No, my lord

Q: But you went ahead to make the payment?

A: Yes my lord.

Q: You have told this court that he is not the only one who should have
authorised, is that not so?

A: Yes my lord.

Q: So,it’s fair to put to you then that the payment was improper was not
regular?

A: No, my lord.

To put the above elicited testimony in clearer terms, the evidence of PW3 indicates the
practice where sometimes the appellant authorizes the payment of monies. This

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practice continued even though appellant is not the only individual supposed to
authorise such payments.

Again, the following elicited testimony is crucial because in our opinion it goes to
explain why the appellant alone authorized those payments even though he was not the
only authorized signatory in the branch. At page 166of the Record of Appeal, the
examination continues as follows:

Q: Now were you ever invited to be interview [sic] on this very transaction
you are testify [sic]on today, were you ever?

A: Yes my lord at our disciplinary committee.

Q: And what was enquire [sic]from you?

A: My lord I was asked why we pay the money directly to the accused and
why we couldn’t call to verify whether a cash payment was supposed to
be made or not.

Q: If you say you were ask [sic]why you couldn’t call to verify, whom were
you to call to make this call to?

A: My lord it was after the issue that we realised that we could have called
the internal control to find out but my lord because the project was
already ongoing there was no way you could doubt this transaction.

Q: No,I am asking so you should have called the internal control?

A: Yes my lord.

Q: Before payment?

A: No, my lord.

Q: Whom were you suppose [sic]to seek confirmation of this transaction from
as paid?

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 A: My lord as at the time accused was next to the branch manager and I
take instruction directly from him. So, whatever he being and am working
on and I know that, and this transaction was even authorised by him so
that any point.

After being corrected by the trial court to provide clarity PW3 answered in clear
language as follows.

A: My lord I said the accused authorise the transaction and he was

our direct supervisor as if the branch manager wasn’t there
accused was running the branch. So as this time the branch
manager wasn’t around, and we all saw this project going on so
you couldn’t doubt the transaction.

Godwin K. Shirley (PW4) testified at pages 180 to 181 of the Record of Appeal thatfor
the ten (10) years that he has worked with the Bank, all payments made to him in
respect of his work are electronic and made through his account with the Bank. Indeed,
he was emphatic that never has he received cash payment for work done for the Bank.
When presented EXHIBIT A which were some cash payments purportedly made to
him, he denied knowledge about them.

As noted by the Court of Appeal at page 698 of the Record of Appeal, it was the un
assailed evidence of PW3 and PW4 that succeeded in showing that the appellant had by
use of internal memos appropriated monies in the said Walk-in Account intended for
use in the construction of the new building. The Court of Appeal concluded at page 699
of the Record of Appeal as follows:

“In our Judgment, in so far as there was evidence of dishonest

appropriation of monies not belonging to the appellant, in whatever
sum, the learned trial judge was not in error in convicting the appellant
of the crime of stealing. Nor would the fact that the corroborating
evidence (PW3 and PW4’s) was in respect of a sum of money much less

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 than what he was charged with, affect a conviction for the offence in
respect of which the appellant made a voluntary confession”.

Despite these pieces of evidence on record, the appellant remains convinced that there
was no corroborative evidence to support the Court of Appeal’s decision. We do not
blame him because at the trial court and the Court of Appeal he held on fastidiously to
the thin thread of failure by the prosecution to produce statements of the Walk-in
Account. In our opinion that stand taken by the appellant was a “much ado about
nothing” when weighed against other pieces of evidence adduced at the trial. There
were clear evidence of a confirmatory nature outside the confession statement which is
consistent with other facts which have been ascertained to warrant a conviction. On this
basis, this ground of appeal ought to fail and is accordingly dismissed.

GROUNDS A B &D:

This conclusion leads us to the consideration of Grounds A, B and D. They read as

follows:

A. The Court below erred in law when it upheld the findings of the High
Court to the effect that the offence of Stealing upon which the
appellant was convicted was proven.

B. The Court below erred in law when it disregarded the need to tender as
evidence the bank statement of the Walk-in account as proof of the
exact amount stolen as alleged by the Prosecution.

C.

D. The Judgment of the Court below amounted to gross miscarriage of

justice.

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It is a cardinal principle of law that the statute creating and defining an offence,
determines the ingredients of the offence which are to be proved. In this respect, the
Criminal Offences Act, 1960 (Act 29) defines the offence of stealing at Section 125 as
follows:

“Section 125—Definition of Stealing.

A person steals if he dishonestly appropriates a thing of which he is not

the owner.”

The ingredients of the offence of stealing are expounded in a number of cases. One
case that comes to mind readily is Ampah v. The Republic [1977] 2 GLR 171,
where the Court of Appeal then sitting as the Apex Court of the land stated in holding 2
as follows:

“To establish the offence of stealing as defined by section 125 of Act

29, the prosecution was required to prove the following three
elements: (i) dishonesty, (ii) appropriation, and (iii) property belonging
to another person.”

These ingredients would be highlighted briefly against the backdrop of the evidence
adduced at the trial and decided cases of the courts.

On the ingredient of ownership, Section 123 of Act 29 states that the offence of
stealing, and robbery can be committed in respect of a thing living or dead, valuable or
of no value. It is unnecessary to prove the ownership or value of the thing.
Thus, in the criminal case of R V HALM [1969] CC 155it was held that a charge of
stealing is not founded on a relationship between the accused and an identified owner
of the thing allegedly stolen, but rather on the relationship between the accused and
the thing alleged to have been stolen.

Appropriation as a critical ingredient of the offence of stealing is defined by Section

122(2) of Act 29 as 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

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thing or of the benefit of the right or interest in the thing, or in its value or proceeds or
part of that thing. The judicial support for this is the case ANING v. THE REPUBLIC
[1984-86] 2 GLR 85where it was held as that:

“If counsel is right, then no one can be convicted of stealing property

of the Ghana contingent if he is found with the goods in its area of
operations. The truth of the matter, however, is that even in those
jurisdictions where a “carrying away” is an essential part of the offence
of larceny it has been held that a bare removal from the place in which
the thief found the goods, though he does not make off with them, is
sufficient.”

With respect to the ingredient of dishonesty, Section 120(1)stipulates thatan

appropriation of a thing is dishonest if it is made with an intent to defraud or 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. In AMPAH v THE REPUBLIC [SUPRA] it
was held that:

“The failure to call an identified owner to give evidence of his lack of

consent was not necessarily fatal on a charge of stealing. The crucial
issue was whether the appropriation was dishonest which depended on
the state of mind of the person doing the act amounting to
appropriation. Whether an accused person had a particular state of
mind was essentially a question of fact which had to be decided by the
trial court. The facts disclosed in this case were entirely inconsistent
with the conduct of an owner who would consent to the appropriation
of his property. The facts, on the contrary, showed in no uncertain
terms that if the Chamber had known of the appropriation by the
appellant it would have protested.”

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From the foregoing, proving the exactness of the amount alleged to be appropriated is
not a prerequisite to establishing the offence of stealing as appellant submits. This is
exactly what appellant’s much sought after Bank statement of the Walk-in Account
would establish. However as discussed in Ground C above, in the light of other wholly
sufficient evidence, the Bank statement which were not turned in evidence at the trial
are inconsequential.

Consequently, if the evidence establishes that the appellant has appropriated one
pesewa when the particulars of the charge preferred against him for stealing states an
amount many times bigger and vice versa, he would still be deemed to have committed
the offence of stealing. This was categorically stated by the Court of Appeal after it
reviewed the testimonies of PW3 and PW4 which demonstrated how the appellant using
internal memos was able to move monies into the Bank’s Walk-in Account intended for
the use in the construction of a new building. At pages 698-699 the Court of Appeal
noted in the following words:

“Thus, while the evidence of dishonest appropriation corroborative of the

confession statement exhibit CC was far less than what was admitted, in so far
as the appellant in his confession statement (which is part of the prosecution’s
case on record) admitted to taking the enhanced sum of GHC 1,701,217.45, the
learned trial judge was not in error to hold thus.

Nor was he in error when he held that the appellant was guilty of stealing, even
in the absence of a bank statement of the account the appellant allegedly
withdrew the money from.

In this regard, we cannot help but state that it was unfortunate indeed
that the prosecution failed to tender audited accounts of the bank to
prove its loss, or even, a statement of the Walk-in account to show the
withdrawals in the sum charged. Whether this lapse was due to less-than
diligent work by the investigating officer of PW5, or simply because (as PW1

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 labored to point out), the transactions by which the appellant in his own words,
took money out of the Bank’s internal account were so cleverly covered by
source documents (emails and memos), that they appeared to be correct, is not
a circumstance we shall concern ourselves with.

In our judgment, in so far as there was evidence of dishonest

appropriation of monies not belonging to the appellant, in whatever
sum, the learned trial judge was not in error in convicting the appellant
of the crime of stealing. Nor would the fact that the corroborating
evidence (PW3 and PW4’s) was in respect of a sum of money much less
than what he was charged with affect a conviction for the offence in
respect of which the appellant made a voluntary confession”

“It was the unassailed evidence of PW3 and PW4 that succeeded in
showing that the Appellant had by use of internal memos appropriated
monies in the said walk-in account intended for the use of the
construction of the new building. By the said evidence of PW3, the
Appellant succeeded in appropriating a total of GHS 155,000 monies he
allegedly withdrew on the pretext of paying same to PW4.”

From the foregoing, it is our humble opinion that grounds A, B and D also ought to fail
and are, accordingly, dismissed.

CONCLUSION:

It is a hackneyed rule in criminal proceedings that the duty on the prosecution is to

prove the allegations against the appellant beyond all reasonable doubt. The
prosecution has a duty to produce sufficient evidence and prove the essential
ingredients of the offence with which the appellant has been charged with that degree
of persuasion such as to convince the court to make a determination in its favour. It is
clear from the testimony of the witnesses called and the evidence on the record that
the prosecution has led that relevant evidence and satisfied the standard of proof that
is required of it in a criminal case.

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Section 124 of Act 29 prescribes the offence of stealing as a second-degree felony.
However, it is important to note that stealing although prescribed as a second-degree
felony is not in the same category as all other second-degree felonies. In fact, it
belongs to a class whose sentence is specifically provided for under Section 296(5) of
the Criminal and Other Offences (Procedure) Act, 1960 (ACT 30). It states as follows.

“A person convicted of a criminal offence under any of the following

sections of the Criminal Offence Act, 1960 (Act 29) that is to say,
sections 124, 128, 131, 138, 145, 151, 152, 154, 158, 165, 239, 252,
253 and 260 is liable to a term of imprisonment not exceeding twenty-
five years”.

As a second-degree felony of special class, therefore, it is a grave offence. The

sentence to be passed can, therefore, be any number of years not exceeding 25 years,
if deemed by this Honourable Court to be suitable and appropriate under the
circumstances. The principles upon which sentences are imposed have been stated in
the case of KWASHIE V THE REPUBLIC [1971] 1 GLR 488at 493 where it was
stated that:

“In determining the length of sentence, the factors which the trial
Judge is entitled to consider are:

i. The intrinsic seriousness of the offence.

ii. The degree of revulsion felt by law abiding citizens of the society
for the particular crime.

iii. The premeditation with which the criminal plan was executed.

iv. The prevalence of the crime within the particular locality where
the offence took place, or in the country generally.

v. The sudden increase in the incidents of the particular crime.

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 vi. Mitigating or aggravating circumstances such as extreme youth,
good character and the violent manner in which the offence was
committed.”

Coming closely on the heels of the KWASHIE V THE REPUBLIC [supra], is the case
of THE REPUBLIC V ADU-BOAHEN, [1972] GLR 70-78 where the court stated
that:

“Where the court finds an offence to be grave, it must not only impose
a punitive sentence, but also a deterrent or exemplary one so as to
indicate the disapproval of society of that offence. Once the court
decides to impose a deterrent sentence the good record of the accused
is irrelevant.”

The Supreme Court as well in the case of Kamil V Republic [2011] 1 SCGLR 300per
Ansah JSC posited at 315-316 as follows:

“Where an appellant complains about the harshness of a sentence he

ought to appreciate that every sentence is supposed to serve a five-
fold purpose, namely to be punitive, calculated to deter others, to
reform the offender, to appease the society and to be a safeguard to
this country considering the sentence of 20 years which was passed on
the appellants …, and considering also the principles on sentencing
enunciated in the case of Hodgson v The Republic [2009] SCGLR 642,
this court held on the said sentence as follows:”- Considering all this
we find no good reason to disturb the sentence on the appellant by the
Court of Appeal, and think it was even on the low side and should have
been increased.”

We find the appellant, from all indications, quite unrepentant. A complete perusal of the
Record of Appeal demonstrates his resolve to deny his actions by and through any
means. Using all the factors and principles enunciated in the above cases, it is our
opinion that this Court will be justified in imposing a higher sentence than that of the

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trial court. From the appellant’s actions, there is no doubt that granted another
opportunity, he would wind back into his old ways. We have had serious reflections on
all the circumstances of this case and weighed all the mitigating circumstances. We see
the need to impose a deterrent sentence in financial crime cases currently on the rise
and we almost came to the decision to alter the sentence by enhancing it. Our hands
were stayed by the fact that we have not invited the parties to address us and show
cause for or against imposing an enhanced sentence in accordance with the audi
alteram partem rule. Besides, the prosecution has not complained about the inadequacy
of the sentence-see Azu Crabbe JA (as he then was) dictum in Odonkor v The
Republic [1967] GLR 690. In sum we have decided not to interfere with the
sentence of ten years imposed by the trial court and affirmed by the Court of Appeal.
The appeal, therefore, fails and is accordingly dismissed.

N. A. AMEGATCHER
(JUSTICE OF THE SUPREME COURT)

ANIN YEBOAH
(CHIEF JUSTICE)

G. PWAMANG
(JUSTICE OF THE SUPREME COURT)

G. TORKORNOO (MRS.)
(JUSTICE OF THE SUPREME COURT)

E. Y. KULENDI
(JUSTICE OF THE SUPREME COURT)

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COUNSEL

KORKOR OKUTU FOR THE APPELLANT

VICTORIA ASIEDUAH (PRINCIPAL STATE ATTORNEY) FOR THE RESPONDENT

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