AMANKWA VRS. REPUBLIC (CR/0136/2025) [2025] GHAHC 64 (7 April 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, LAW COURT COMPLEX (CRIMINAL DIVISION “2”) HELD IN ACCRA ON MONDAY, 7TH DAY OF APRIL, 2025 BEFORE HER LADYSHIP JUSTICE MARIE-LOUISE SIMMONS (MRS.), JUSTICE OF THE HIGH COURT CASE NO.: CR/0136/2025 LAWRENCE AMANKWA - APPELLANT VRS. THE REPUBLIC - RESPONDENT ========================================== JUDGMENT ========================================== This is a judgment delivered pursuant to a Petition of Appeal filed on 11th December 2024, on behalf of the above named Appellant by the Prison Teacher. The appeal was filed pursuant to leave granted to file appeal out of time by the High Court on the 7th November 2024. The Appeal is against the conviction and sentence of the Appellant on one count Robbery contrary to Section 149 of the Criminal Offences Act, 1960 (Act 29). The Appellant was convicted on his own plea of guilty on the 18th March 2022 by the Circuit Court, Juaso in the Ashanti Region presided over by Her Honor Nana Asantewaa Atakorah to fifteen (15) years IHL on. Page 1 of 18 THE GROUNDS OF APPEAL The ground of appeal are for the Court to set aside the conviction of the Appellant or in the alternative maintain the conviction but reduce the sentence to the barest minimum. Further grounds filed were that: 1. The conviction of the Appellant for the offence of Robbery and the subsequent sentencing of 15years has occasioned a miscarriage of justice based on a careful analysis of the brief facts. 2. The Honourable Court should reduce the sentence in the alternative since same is harsh. FACTS OF THE CASE The facts as presented to the trial Court was that the complainant in the case Enoch Owusu is a driver and lives at Juaso whiles Accused, Lawrence Amankwah is a scrap dealer also residing at Konongo. On the 16th March 2022 about 12:30pm. The complainant’s son Frederick Owusu aged 12years and a student was holding his father’s iPhone valued GHC1,500.00. The Accused saw the victim climbing a mango tree inside Juaso Government Hospital, Accused person approached the victim and told him to get him water to drink. The victim set off to get the Accused person the Page 2 of 18 water. The Accused person pulled a short cutlass and placed it on the throat of the victim and ordered him to handover the iPhone to him. Accused put his hand into the victim’s pocket and robbed him off the iPhone. Accused bolted to Konongo leaving the cutlass and sack he was holding at the scene. A report was made to Juaso Police for investigation. The phone was tracked and on 17th March 2022 about 6:30am, the Accused person was arrested and the iPhone was retrieved from the Accused person. The short cutlass and the sack were also retrieved at the scene when the Accused person led Police to the scene of crime. SUBMISSION OF THE APPELLANT It has been submitted and conceded by the Appellant in his hand written arguments filed on his behalf by the Prison Teacher that where an Accused pleads guilty simpliciter, the Prosecution is excused from proving the case beyond reasonable doubt. In that case, the trial Court is limited to the information provided in the brief facts. The submission continues that the charge of Robbery is a grave one which if convicted, the Accused could be liable to even a life imprisonment. And this according to the submission called for a total perusal of the facts surrounding the case in order for just Page 3 of 18 to be done. It has been argued quiet interestingly that the person who commits Robbery commits Stealing but not the vice versa. Section 149 of Act 29 is defined and it is further stated that from the facts, it may seem that an act of Robbery actually occurred. However, it is stated “in an illiteracy environment where robbery and stealing are used interchangeable, an illiterate Accused person may plead guilty to a charge of Robbery instead of Stealing since he is very unskillful or lacks knowledge regarding legal matters”. It has been impressed upon the Court that even though the charge was read and explained in the Twi Language to the Appellant, he pleaded guilty without fully understanding the plea. That his acceptance of the offence was based on the fact that the iPhone was retrieved from his hands. Additionally, it has been submitted that the sequence of events as stated by the Prosecution in the facts suggests a case of Stealing rather than Robbery. The Appellant explains that per the facts, the first time that the Accused sighted the victim was when the victim was holding his father’s iPhone and climbing a mango tree inside the Juaso Government Hospital. In the Appellant’s opinion as stated in his argument, it is “certainly absurd for someone to be able to hold a phone in his palm and be able to climb a mango tree”. Page 4 of 18 The possible scenarios of the fact according to the argument are that the victim may have put the phone in his pocket or put it down and then climbed the tree. If he had put it inside his pocket, the phone would have hidden from the sight of the Appellant and there wouldn’t have been motivation of the Appellant to approach the victim. Again, in his opinion, there is a “higher possibility” that the victim left the phone down and climbed the tree because as the facts states, the child was only 12years who could easily have behaved childish. The Appellant states that the sight of the phone motivated him to draw closer and to steal the phone and not to rob it from the victim. In addition, he alleges that the Juaso Government Hospital is a public facility where there are security officials and there are a lot of people there at any point in time and that at about 12:30pm which is broad day light, people or anyone could have seen the said robbery incident and jumped to the rescue of the helpless victim if indeed he was robbed. That the Prosecution’s assertion of the use of a short cutlass for the robbery was “a product of an armed chair investigation and attempt to paint the Accused/Appellant black and hanging”. It is finally submitted that this Court should consider that the trial judge failed to avert his mind to these aforementioned critically examined facts and convict the Appellant of stealing instead of robbery. Page 5 of 18 On the issue of sentence, it has been submitted that the 15years sentence meted out to the Appellant was harsh and excessive. Further, it was submitted that the booty from his enterprise i.e. the iPhone was recovered by the Police. Lastly, in sentencing, this Court has been invited to consider the age of the Appellant at the time of conviction and sentence. The Court is therefore to set aside the conviction on the charge of robbery and in the alternative reduce the sentence to the barest minimum. THE RESPONSE The Republic/Respondent filed a submission on the 14th March 2025. In the submission, counsel made reference to the consequences of pleading guilty as provided for under Section 171 (1) and (2) of Act 30 for Summary trials and Section 199 (1) on trials on indictment. Counsel states that at the trial, the charges were read and explained to the Appellant and he understood same before pleading guilty. He can therefore no at this time plead that he did not understand what occurred at the trial. Reference was made to the case of KOF DAGAATI AND 2 ORS VS. THE REPUBLIC [2020] CRIM. LR @ 419 by the Court of Appeal. Reference was also made to the definitions of Robbery and Stealing in Act 30 and their differences. And it was proferred that the Appellant was rightly convicted for the offence of Robbery and not Stealing. Page 6 of 18 On sentencing, the Republic contended that it was a matter of discretion for a trial Court and an appellate Court is only to interfere when the sentence is deemed to be unduly harsh or excessive. Reference was made to cases such as RAZAK AND YAMOH VS. THE REPUBLIC [2012] 2 SCGLR 750 AT 766, ROBERTSON VS. THE REPUBLIC [2015] 80 GNG 33, BANAHENE VS. THE REPUBLIC [2017-2018] SCGLR 606 and others. It was finally submitted that this Court should decline the Appellant’s invitation to set aside his conviction and reduce his sentence as there has been no miscarriage of justice caused to him. APPEAL BY WAY OF REHEARING It is a settled principle of law, that an Appeal is a creature of statute and as such the right to appeal at any stage of a trial, whether criminal or civil, is all governed by law. Under the Criminal Procedure Act, 1960 (Act 30), the right to appeal to the High Court in a criminal case from a lower Court is provided for by Section 324 as well as under Section 44 (2) of the Courts (Amendment) Act 2002 (Act 620). An appeal is also said to be by way of rehearing. This means that the Appellate Court or body is to examine the entire proceedings or decision that is the subject of the appeal to determine whether the decision can be supported in law or in fact or both. Numerous case law support this principle that is relevant to both civil and criminal Page 7 of 18 appeals. See cases such as DEXTER JOHNSON VS. THE REPUBLIC (2011) SCGLR 601, NAGODE VS. THE REPUBLIC (2011) SCGLR 975, AMANKWAH VS. THE REPUBLIC (J3/04/2019) (2021) GHASC 27 DATED 21ST JULY 2021. In AMANKWAH supra, the Supreme Court through Dotse JSC explained the concept as pertains to criminal trials inter alia: “…applying the above principle in a criminal appeal might result in the Court embarking upon the following, to analyze the entire Record of Appeal and this must include the Charge Sheet, the Bill of Indictment (where applicable), the witness statements of all witnesses, all documents and exhibits tendered and relied on during the trial, as well as the evidence during testimony and cross examination.” A PLEA OF GUILITY SIMPLICITER The argument of the Appellant as I have taken the pains to produce is mainly on the point that though the Appellant pleaded guilty simpliciter he was not aware that he was pleading guilty to the offence of Robbery instead of Stealing as he was unskilled and lacked knowledge about legal issues. I do appreciate the arguments raised. It is in that vein that the Constitution of Ghana under Article 19 (2) (d) and 19(2) (h) has guaranteed some rights for an Accused person charged with a criminal offence. These rights include the right for an Accused Page 8 of 18 to be informed immediately in a language that he understands and in detail the nature of the offence he is charged with. It is also the right of an Accused to be permitted by him, without payment by him, the assistance of an interpreter where he cannot understand the language used at the trial. The Courts have therefore as an matter of law and a fundamental procedure are required to do actually do find out when an Accused appears before it and at the time the plea is to be taken the language in which an Accused wishes Court to communicate with him in and the vice versa. Per statute, Section 171 of Act 30 also lays down the procedure for the taking of a plea in a summary trial. Section 171 states: “(1) Where the Accused appears personally or by counsel as provided under Section 79, the substance of the charge contained in the charge sheet or complaint shall be stated and explained to the Accused or if the Accused is not personally present to the counsel for the Accused, and the Accused or counsel shall be asked to plead guilty or not guilty. (2) In stating the substance of the charge , the Court shall state the particulars of the date , time and place of the commission of the alleged offence, the person against whom or the thing in respect of which it is alleged to give been committed, and the section of the enactment creating the offence. Page 9 of 18 (3) A plea of guilty shall be recorded as nearly as possible in the words used, or if there is an admission by letter, it shall be placed on the record and the Court shall convict the Accused and pass sentence , unless there appears sufficient cause to the contrary flowing from the above provision, the Court in stating the charge will have to provide some details that will give the Accused some good indication of the charge against him, as such an indication is to be provided to the cause in the language he understands. The details will include the place, time, person or thing the Accused is said to have offended and nature of offence.” From the Record of Proceedings, on the 18th March 2022 when the plea of the Appellant was taken, it is stated that the charges were read and explained to the Appellant in the Twi language before he pleaded guilty. As a speaker of the Twi language and have taken judicial notice of same, it is the case that the explanation of the offence of Robbery cannot and will not be the same for an offence of Stealing. The fact of the Appellant being an illiterate in the English language is therefore irrelevant here. If the Appellant after the charges had been read was in any way not making sense of the words spoken to him or did not understand what transpired in Court, he had every right and opportunity to alert the judge. Indeed if a person does not understand Page 10 of 18 a language being used in Court, a trial judge is very likely to know the difficulty of such an Accused as it will reflect in his demeanor and responses. It is in such a situation that the law under Section 171 (3) aforementioned states that the Court is not bound to sentence after a plea of guilty has been recorded if there appears to it (the Court) sufficient cause to the contrary. In this case, it seems to me per the Record of Appeal that the Court did not have sufficient cause to the contrary that the Appellant did not understand the proceedings of the day and the charges read to him, this Court cannot be in a position to conjecture. I am bound by the principle that an Appellate Court is bound by the Record of Appeal and no party can make reference to any other facts not borne out of the record. See the case of ABDULA I IBRAHIM @ YARO VS. THE REPUBLIC (CRIM. APP. NO. H2/O/2019 DATED 25TH JUNE 2020, CA. The records therefore indicate that the Appellant had the charges of robbery read and explained to him with no difficulty before he pleaded guilty. He went ahead to plead for forgiveness after the prosecutor had earlier pleaded for a deterrent sentence for him. As rightly, concede by the Appellant himself in his arguments, a plea of guilty excuses the prosecution from proving the case against the Accused beyond reasonable doubt. Page 11 of 18 FACTS (CLIMBING A TREE WITH A PHONE) REASONABLENESS On the argument of the Appellant that a person who is climbing cannot reasonably be holding an item such as a phone when climbing seems to be an interesting one. On this basis, the Appellant per the submissions made claims that it is absurd for someone to have a phone in his hand and climb a mango tree. He rather puts forward the scenario that it is rather possible that the victim put the phone in his pocket or down in which case the Appellant would not have seen the phone to be motivated to approach the victim. As stated, this is an interesting argument with no scintilla of legal basis but rather conjectures and assumptions. It is important to state that a Court especially an Appellate Court cannot rely on such assumptions or any other fact produced outside the record of appeal as I have already stated above. Indeed, factually, if the argument of the Appellant is anything to go by, one may say that it is possible if one has experience of a village setting where there are hunters and palm wine tappers and others who climb trees such as coconut could know that such persons can climb trees in possession of their cutlasses or other instruments which aid them to climb and to pluck their fruit. It is therefore reasonably probable that the victim could have climbed a mango tree which has enough branches for support in possession of an iPhone. The facts that the Page 12 of 18 Appellant pleaded guilty to were clear enough and no conjectures may be made out of the facts. It is also not sustainable that is the argument of the Appellant that because the incident is said to have occurred at 12:30pm in broad day light at the Government Hospital which is a public place, people would have sighted the Appellant robbing if indeed he robbed the victim. The Appellant himself has argued that he rather saw the phone of the victim, drew closer and stole it but did not rob it from the victim. If he was able to steal it, how was it not possible for him to have also robbed it from the victim with nobody paying attention to it? From the scenario given in the facts, it is not evident which part of the hospital that the robbery occurred. It is obvious that not every part of the hospital will be so populated by people that every activity that goes on will be seen. The more reason why I have emphasized that no new facts, conjectures, assumptions, presumptions or scenarios can be created outside what is borne out of the Record of Appeal. In the circumstance, this Court has found that no substantial miscarriage of justice was caused to the Appellant herein when he was convicted on his own plea of guilty simpliciter for the offence of Robbery. Page 13 of 18 SENTENCE The Appellant has submitted that he is a first-time offender and that the booty from his enterprise i.e. the mobile phone was recovered by the Police. It has been urged upon this Court that the Appellant was a young man at the time of the commission of the offences being 20years as confirmed by the charge sheet. Much as with the fact stated herein, this Court would have found it reasonable to reduce his sentence, no Court in Ghana is enjoined by law to consider as mitigatory, any age of an Accused over and above the age of 18years who commits a crime labelled as a serious offence under the Juvenile Justice Act. May I reiterate the point in reference to two (2) Court of Appeal cases as ABU MOHAMMED VS. THE REPUBLIC (2018) JELR 63851 CA. The Court in deciding on the above stated ground of appeal held follows: “The Juvenile Justice Act, Act 653 deals which Juveniles who commit crime. The 1992 Constitution pegs the age of majority at 18years.” Similarly, Section 19 (4) of Act 653 provides that: “where it appears to the Court that the person brought before it has attained the age of eighteen (18) years, that person shall for the purpose of this act, be deemed not to be a Juvenile and shall be subject to the Procedure Act, (our emphasis)…” Page 14 of 18 From the two provisions i.e. the Constitution and Act 653, when a person is eighteen (18) years and above or below twenty one (21) years and commits an offence, he is to be tried in the regular Courts, not the Juvenile Courts. Again Section 65 defines “serious offence” to include offences such as Robbery, Rape, Defilement and Murder. Therefore, if a person who is twenty (20) years old commits an offence of robbery and is tried in the regular Courts, then the sentence for such an offence cannot be three (3) years as being suggested by counsel for the Appellants. The reason being that, the minimum sentence for the offence of robbery is fifteen (15) years.” The Court went on to say that: “At the time of the commission of the offence the Appellants was 20 years and was therefore not a juvenile. Considering the nature of the offence he committed, i.e. robbery, the Appellants cannot be sentenced to three (3) years as being suggested by counsel for the Appellants.” And in the most recent case of NELSON MAKAFUI FAIKPUI VS. THE REPUBLIC, CRIM APP. NO. H2/ 01/ 2022, DATED 11TH MARCH 2022, the Court of Appeal reemphasized this point by quoting the different definitions of young offender, young person, juvenile offender and Juvenile under the interpretation section of the Juvenile Justice Act as follows: Page 15 of 18 “A young person, means a person who is eighteen (18) years or above but is under twenty years. Juvenile under Section 60 is defined as person who is under the age of eighteen (18) years who is in conflict with the law. Young offender means a juvenile who has been convicted of an offence for which the Court has power to impose a sentence of imprisonment of one month or upwards with the option of a fine. A juvenile offender is also defined as a juvenile who has been convicted of an offence for which the Court may impose a sentence of imprisonment for one month or more without the option of affine.” The Court went ahead to state that the distinction between “a young offender” and “juvenile offender” is by age and power of the Court to impose sentence. With the Courts having power to impose a sentence of one moth or more with a fine in the case of a “young offender” and without a fine in the case of a “Juvenile offender” the Court went on and held that: “the offence for which the Appellants were convicted does not provide for the option of a fine, the Appellants cannot be categorized as young offender within the determination of same in the Juvenile Justice Act.” Page 16 of 18 It was further put across in that case that: “The Appellant was 19year at the time of the offence. The offence was committed with the use of an offensive weapon which was a gun and a knife. He was charged and convicted in the Circuit Court for the offence of robbery. Robbery is a first degree felony offence and by Section 149 of Act 29, as amended… The offence for which the Appellant was convicted does not provide for the option of a fine for imprisonment. The Appellant cannot be categorized as a young offender within the definition of same in the Juvenile Justice Act. Appellant was appropriately charged and tried under the Criminal Offence Act, 1960 (Act 29) as amended. The enactment which created the offence of Robbery provided the minimum sentence for the offence, and the Court has no power to impose a lesser term” In this particular appeal, the facts indicate that the Appellant was in position of a cutlass which he used to threaten the victim who was a 12year old boy and in the process overpowered the resistance of that boy to the taking of the phone and did take the phone away. These facts indicates that there was a use of an offensive weapon which is a cutlass in the course of this robbery and pursuant to Section 149 (1) of Criminal Code (Amendment) Act, 2003 (Act 646), the minimum punishment to be meted out upon conviction for robbery by the use of offensive weapon is 15years. Page 17 of 18 In the circumstance, this Court is being bound by statute cannot reduce the sentence of 15years meted out to the Appellant any further. The fact of being a first-time offender and a young offender cannot unfortunately be considered by the Court as mitigating factors to reduce the sentence. The trial Court indeed per the proceedings of 18th March 2022 did consider that the Appellant was a first-time offender before sentencing him. In the circumstance, the Appeal against both conviction and sentence cannot succeed and is accordingly dismissed. (SGD) JUSTICE MARIE-LOUISE SIMMONS (MRS) (JUSTICE OF THE HIGH COURT) COUNSEL: SIMON APPIAH JNR. HOLDING THE BRIEF OF JEFFERY ABBEY ADAMSON FOR THE APPELLANT PRESENT MILLIE-ANNE TUFOUR (ASSISTANT STATE ATTORNEY) STANDING IN FOR WATKINS ADAMAH (SENIOR STATE ATTORNEY) FOR THE REPUBLIC/RESPONDENT PRESENT. Page 18 of 18