S v Bamfo (CR/0042/2025) [2025] GHAHC 133 (6 February 2025)

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON THURSDAY THE 6TH DAY OF FEBRUARY 2025 BEFORE HER LADYSHIP JUSTICE MARY M.E YANZUH, JUSTICE OF THE SUPERIOR COURT OF JUDICATURE SITTING AT CRIMINAL COURT THREE (3) ============================================================================= SUIT NO: CR/0042/2025 THE REPUBLIC RESPONDENT VRS JACOB AMPONSAH BAMFO CONVICT/APPELLANT JUDGMENT The Appellant herein was arraigned before the Kwabenya Circuit Court on the 26th of April 2023 wherein he was charged with the offence of robbery contrary to Section 149 of the Criminal Offences Act 1960 (Act 29). The appellant pleaded guilty to the charge and was sentenced to ten (10) years imprisonment. It is against this conviction and sentence that the appellant filed the instant petition of appeal on the 9th of May 2023 praying this appellate court to set aside the conviction or in the alternative reduce the sentence imposed by the trial court. GROUNDS OF APPEAL 1 The grounds of appeal filed are as follows: 1. That the appellant was not represented by Counsel so did not appreciate the consequences of pleading guilty. 2. The facts do not support the charge of robbery. 3. The Sentence of 10 years IHL was too harsh and excessive. FACTS OF THE CASE The facts of the case was given by the prosecution that the Complainant Bernice Sarfo is a shop attendant at Five Star Kids and Toys shop located at Haatso Supermarket and resides at North Legon. The accused Jacob Amponsah is unemployed and resides at Agbogba. On 24th April, 2023 about 8:45am, complainant was in the shop with one Akushika a sales attendant when the accused came into the said shop and requested to buy a shoe for a three- year-old baby. Whiles the complainant was attending to the accused, he pulled out a knife from his pocket and threatened the complainant to surrender the sales in the shop or he will stab her. Accused then rushed behind the counter and took cash sum of GH¢4010.00 which was sales for the previous day, which was wrapped in a black polythene bag from the drawer and bolted. The complainant raised an alarm and a group of people around chased after the accused and managed to arrest him together with the exhibit and brought him to the shop. Accused was later brought to the Haatso Supermarket Police station and an official complaint was made. 2 Accused was rearrested to assist investigation. Accused admitted the offence in his cautioned statement to the police. After investigations, accused was formally charged with the offence and brought before this court. RESOLUTION OF THE APPEAL GROUND ONE: That the appellant was not represented by Counsel so did not appreciate the consequences of pleading guilty. The law permits an accused person brought before the court, to defend himself pro se or by a lawyer of choice. Article 19 (2) f of the Constitution 1992 provides that: “A person charged with a criminal offence shall be permitted to defend himself before the Court in person or by a lawyer of his choice;” It is not therefore the case that an accused person must necessarily have legal representation before a trial proceeds. An accused person can elect to defend the suit by himself and in such cases, the court notes that the accused person is self-represented. Where however an accused person informs the court that he has counsel or intends to seek the services of counsel, the trial judge is to afford the accused person the opportunity to do so by adjourning the matter. The law however recognizes that accused persons who choose to act pro se may not be adept with the law and as such, the courts are enjoined to conduct proceedings in a manner that would afford such accused persons the opportunity to understand the proceedings and also to be able to participate in same as the likely consequence of a criminal trial may be the cessation of the liberties of such an accused person in the form of imprisonment or other punitive measures. 3 Therefore in a criminal trial where an accused person pleads guilty, the court is to ensure that the plea of guilt is voluntary that is the accused person understands and knows of the nature of his or her rights, the nature of the offence to which a plea was taken and the consequences of a guilty plea, that the facts supports the charge preferred against the accused and that the plea is taken in the language understood by the accused before it convicts and sentence the accused on the guilty plea. See page 242 of the Second Edition of His Lordship Dennis Dominic Adjei’s book on Criminal Procedure and Practice in Ghana. Therefore, from the face of the record, there must not be present any evidence to suggest that the court or prosecution coerced or threatened the accused person to plead guilty to the charge. Since it is the appellant herein who has contended that the plea of guilt was not voluntary, the onus was on him to demonstrate from the record of appeal that the trial court or the prosecution either coerced or threatened him to plead guilty to the charge. The appellant has not been able to demonstrate any such facts to this court. I have also perused the record of appeal, and I find no instances of coercion or intimidation on the part of the prosecution or the court. From the record of appeal at page 3, the accused person elected to speak in the English language. The charges were therefore read to him in the English Language and he pleaded guilty simpliciter. The facts of the case were also read where it was indicated that he entered the shop with a knife and threatened the complainant to surrender the sales and he bolted with the money. Before sentencing and after these facts were read out to him, he pleaded with the court in mitigation to wit “I am guilty, I handed over the money”. This is an indication that he understood the charges and the facts presented and he pleaded guilty to the charge. The consequences of pleading guilty and being convicted is sentencing, which the trial judge proceeded to do. 4 Also, counsel for the appellant submitted that, the appellant informed him that the police advised him to say that he was guilty and because he has refunded the money, he will be set free. This assertion is not borne out by the record of appeal and same is deemed as mere say so. It is imperative to state that at the hearing of the appeal, it is only the record of appeal that the appellate court can resort to in determining the appeal unless an application is made to lead fresh evidence on appeal and same granted. There is nothing on the face of the record of appeal to back the assertion of counsel for the appellant. This ground of appeal fails and same is dismissed. GROUND 2: The facts do not support the charge of robbery. Section 150 of Act 29 defines Robbery as: “A person who steals a thing commits robbery (a) if in, and for the purpose of stealing the thing, that person uses force or causes harm to any other person, or (b) if that person uses a threat or criminal assault or harm to any other person, with intent to prevent or overcome the resistance of the other person to the stealing of the thing For the prosecution to succeed in a charge of robbery, they have to prove that in stealing the thing the accused person herein used force or harm to the victim for the purpose of stealing and the accused person had the intent to overcome the resistance of the victim or any other person to the stealing of the thing or it must be proved that the person accused used threat of criminal assault or harm to the victim for the purpose of stealing and the accused person possessed the intent to overcome the resistance of the victim or any other person to the stealing of the thing. 5 Did the facts presented support the facts? According to the facts presented, the accused/appellant herein pulled out a knife from his pocket and threatened the complainant to surrender the sales in the shop or he will stab her. That act is tantamount to threat of criminal assault or harm and it was with intent to prevent or overcome the resistance of the other person to the stealing of the thing. As result of this act of pulling out the knife, he was able to overcome the resistance of the complainant to the stealing of the money. The counsel for the appellant contends in his written submissions filed on the 17th of December 2024 that “robbery usually involves use of offensive weapons, threat to life, putting the victim in fear of death amid stealing.” To him the pulling of the knife from the accused person’s pocket and taking away the sales and bolting with the sum of money was not robbery. It seems to me that he does not appreciate the ingredients of the offence of robbery. The acts of the appellant on the day of the incident falls squarely within what constitute robbery. Also the fact that the sum robbed was GH¢4010 does not make it any less than robbery. The law talks of stealing a “thing”. Per Section 123 of the Criminal Offences Act 1960 (Act 29) it is provided that: (1) The criminal offence of stealing, fraudulent breach of trust, robbery, extortion, or defrauding by false pretence can be committed in respect of a thing (a) whether living or dead, and whether fixed to the soil or to a building or fixture, or not so fixed, and (b) whether the thing is a mineral or water, gas, or electricity, or of any other nature, and (c) whether the value of the thing is intrinsic or for the purpose of evidence, or is of value only for a particular purpose or to a particular person, and 6 (d) whether the value of the thing does or does not amount to the value of the lowest denomination of coin. Section 123 (1) of Act 29 shows that anything of the least value could be the subject matter of stealing, robbery, defrauding by false pretences among others. The value of the subject matter of the offence usually considered either as a mitigating or aggravating factor in cases of sentencing. Another issue raised by counsel for the appellant in his written submission is that the prosecution did not present the said knife to the court. The procedure in criminal summary trials as provided for in Section 171 (1), (2), (3) and (4) of the Criminal and other Offences Procedure Act 1960/Act 30 is that: “(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 of the accused, and the accused or counsel of the accused shall be asked to plead guilty or not guilty. (2) In stating the substance of the charge, the Court shall state particular 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 have been committed, and the section of the enactment creating the offence. (3) A plea of guilty shall be recorded as nearly as possible in the words used, or if there is an admission of guilt by letter under section 70 (1), the letter shall be placed on the record and the Court shall convict the accused and pass sentence or make an order against the accused unless there appears to it sufficient cause to the contrary. (4) Where the plea is one of not guilty the Court shall proceed to hear the case.” 7 The appellant had pleaded guilty simpliciter to the charge which amounts to a judicial confession and as such obviates the necessity for a trial or proof of the charge by the prosecution as such the prosecution was not obligated by law and procedure to call witnesses to prove the charge. That is why the learned State Attorney in her written submissions filed on the 17th of January 2025 submitted that the only reason why the knife was not presented in court was because the Appellant pleaded guilty after the charge was read to him. This ground of appeal fails and same is dismissed. GROUND 3: The Sentence of 10 years IHL was too harsh and excessive. Robbery is a first degree felony and the punishment is prescribed in the Criminal (Amendment) Act, 2003 (Act 646). Section 149 of Act 29 provides that: (a) “A person who commits robbery commits a first degree felony.” The minimum sentence for the offence is dependent on whether the offence was committed with an offensive weapon or offensive missile or not. It provides thus: “Whoever commits robbery is guilty of an offence and shall be liable upon conviction on trial summarily or indictment to imprisonment for a term of not less than ten (10) years and where the offence is committed by the use of an offensive weapon or offensive missile, the offender shall upon conviction be liable to imprisonment for a term of not less than fifteen years.” What constitutes an offensive weapon or missile is defined in section 206 (3) of Act 29. Section 206 (3) provides thus: “For the purposes of this section (a) “Offensive missile” includes a stone, or a brick likely to cause harm if thrown 8 (b) “Offensive weapon” means any article made or adapted for use for causing injury to the person or intended by the person having it for that use by that person”. A person who commits robbery with the use of an offensive weapon or offensive missile shall be sentenced to a minimum of fifteen years imprisonment. A person who commits robbery without the use of offensive weapon or offensive missile shall upon conviction be liable to a minimum sentence of ten years. However, since robbery is a first degree felony per Section 296 of Act 30 which is on general rules for punishment, the maximum sentence for offences where the provision creating the offence does not specify it provides that: “Where a criminal offence is declared by an enactment to be a first degree felony and the punishment for that offence is not specified, a person convicted of that offence is liable to imprisonment for life or a lesser term.” From the above therefore, the minimum punishment the appellant could legally face for the offence of robbery which per the facts of the case was with the aid of a knife which the law has described as an offensive weapon is fifteen (15) years. In the instant case, the trial judge imposed a sentence of ten (10) years IHL. This ground of appeal fails and same is dismissed. The result of the foregoing is that the appeal fails and same is dismissed. PARTIES: APPELLANT PRESENT COUNSEL: NKRABEAH EFFAH DARTEY FOR THE APPELLANT PRESENT 9 ENAM LOH-MENSAH FOR JENNIFER AFRIYIE YENTUMI FOR THE REPUBLIC/RESPONDENT PRESENT MARY M.E YANZUH J. JUSTICE OF THE HIGH COURT 10