Republic v Gyamfi (D4/016/23) [2024] GHACC 416 (7 October 2024)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON MONDAY, THE 7TH DAY OF OCTOBER, 2024 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE CASE NO.: D4/016/23 THE REPUBLIC VRS BISMARK GYAMFI ACCUSED PERSON PRESENT INSPECTOR RITA A. KONADU FOR THE REPUBLIC PRESENT EBENEZER ISAAC TEYE NUBUOR, ESQ. FOR THE ACCUSED PERSON PRESENT JUDGMENT THE CHARGES The Republic v. Bismark Gyamfi Page 1 of 22 The accused person herein was arraigned before this Court charged with three counts of Stealing contrary to section 124(1) of the Criminal Offences Act, 1960 (Act 29). THE PLEA The accused person pleaded not guilty to all three counts after the charges had been read to him. FACTS The brief facts of the case as presented by the prosecution are that, the complainant Seth Thomas Nyanudor is Guo’s Security Services Project Manager at Guinness Ghana Breweries Limited Accra. Accused person Bismark Gyamfi is a Private Security with Guo Security Services and stationed at Guinness Ghana Breweries Limited Accra. In the month of February 2023 or thereabout the accused person stole one box of beer import 330ml tax stamp valued GH¢695,370.00. On 18/04/2023, accused person went into the cold room where the tax stamps are stored to supervise some activities that were being carried out by carpenters. In the course of his supervisory work, he stole another box of beer import 330ml tax stamp valued GH¢695,370.00 and replaced it with an empty box. He then took it to one Oga, a middleman, who sold it and brought the proceeds for them to share. On 27/04/203 accused person had another chance to supervise air condition technicians in the cold room to work and again stole one more box of beer import 330ml tax stamp valued GH¢695,370.00 and replaced it with another empty box. He concealed it in a black polythene bag, went and hid it in the lotto kiosk of one Ernest Selasie Kojo Nyadzi with the intention to go for it after work. Luck however eluded him as he was caught in the act and the exhibit was retrieved from him. He was arrested and handed over to the Achimota Mile 7 Police for investigation. Accused person admitted to the offences on 18/04/2023 and 27/04/2023 in his investigation caution statement. That, CCTV camera footages covering the act on the aforementioned dates is attached as evidence. The Republic v. Bismark Gyamfi Page 2 of 22 That, investigation revealed that total value of stolen tax stamp is GH¢2,086,110.00. After investigations he was charged with the offence and put before this honorable Court. EVIDENCE OF THE PROSECUTION WITNESSES From the evidence in chief of PW1 (Seth Thomas Nyanudor) who is also the complainant herein, he is GUO security project manager at Guinness Ghana breweries limited Achimota. He testified that on 29th April 2023 around 09:00am, he sent the accused to open tax stamps’ room for the staff and supervise the issuance of tax stamp but Louis Doku a security supervisor informed him that he saw the accused at the company’s clinic with a black polythene bag instead of tax stamp room, so he asked him to monitor him. PW1 continued that the accused spent few minutes at the company’s clinic and returned to the tax stamp room to continue his duty. That the accused returned to the clinic at 11:50 am to pick the black polythene bag, which contained a box of stamps, so he asked the supervisor Doku Louis to monitor him to know where he was going with the polythene bag. That the accused left the site with the polythene bag, and they followed him until he got to a lotto writer along the road, and he handed over the bags to him and returned to the site to continue his assigned duty. According to PW1, he went to the lotto writer with Louis Doku a security supervisor to check the content of the black rubber and it was a box of company’s tax stamp and the lotto writer confirmed it was the accused who gave it to him to keep. That, he asked Louis Doku a security supervisor to stay with the lotto writer to ensure the tax stamp in the box is safe, whilst he went to the site to call the accused but when he got to the lotto writer’s place, he attempted to escape, and they managed to apprehend him. PW1 continued that the accused confirmed that the black polythene bag which contained a box of company tax stamps belonged to him. Accused also said he picked the said box on 27th April 2023 when warehouse manager Israel left the tax stamp room to attend to The Republic v. Bismark Gyamfi Page 3 of 22 an urgent issue at another warehouse. Accused said he concealed the box of tax stamp at the company’s clinic until 29/04/2023 because the site was busy on 27/04/2023 and 28/04/2023. He concluded that CCTV camera within the factory captured techniques adopted by accused in taking the tax stamps. He tendered the said CCTV footages in evidence as exhibit ‘A’. PW2, Israel Kwesi Agblevor testified that he is in charge of managing raw materials and components at Guinness Ghana Breweries Limited. That the accused was assigned to him to pick tax stamps from the room in which these tax stamps have been stored. After picking these tax stamps they noticed that the air condition was faulty and so reported to facilities who are in charge to get them a technician. That the accused was to supervise any individual going to carry out an activity in the tax stamp room apart from picking tax stamp. On 2nd May, 2023 he was informed by the head of security Paul that the accused has been arrested on account of stealing tax stamp. That the head of security showed him a CCTV footage of method adopted by the accused in taking the tax stamps as a result they had to do repacking of all stamps in the room in which these stamps are stored. That after repacking they found out those four empty boxes of beer imported 330ml stamps were put in between the stocks of beer imported 330ml tax stamps. That he does not know the value of these four empty boxes being 624,000 pieces. PW3, (Louis Doku) also testified that he is a security supervisor in charge of supervision at Guinness Ghana Breweries Limited. That the accused is a security officer assigned to open tax stamps’ room and supervise the issuance of the tax stamps daily. He continued that on Saturday 29th April 2023 around 09:00am, he saw the accused at the company's clinic with black polythene bag and informed his project manager (Seth Thomas Nyanudor) who asked him to monitor him because accused was assigned to do tax The Republic v. Bismark Gyamfi Page 4 of 22 stamp. That the accused left the company’s clinic to the tax stamp room and returned around 11:50am to pick a black polythene bag he kept at the clinic and exited the site; and he informed his project manager who asked him to accompany him to follow the accused. That they followed the accused until he got to a lotto vendor along the road and he handed over the black polythene bag, which contained a box of stamp to him and returned to the tax stamp room to continue his assigned duty. That they went to the lotto vendor to check the content of the black polythene bag and realized that it was a box of company tax stamp. That the lotto vendor said accused was the one who brought it to him to keep. According to PW3, his project manager Seth Thomas Nyanudor invited the accused to the lotto vendor place to identify the item and he attempted to escape but he was arrested. That the accused admitted that the black polythene bag which contained the company tax stamps belongs to him, and he was sent to Mile 7 police station for further investigation. PW4, Nyadzi Ernest Selassie Kojo testified that he is a lotto writer and knows the accused person as his friend. He told the Court that on Saturday 29th of April 2023 at about 10am, he went to buy food at ABC junction and on his way back he spotted the accused person entering into his kiosk and he called him, and he signaled him that he would be back to take what he placed in his kiosk. That about 30 minutes after the accused left, a security man came to his place and started searching the item that accused placed there. Later he called his boss and they came and took the item away. That they later came with the accused to ask him if he is the one who placed the item in his kiosk and he said yes and they returned with him and the item. PW5 who is the investigator herein testified that he is No. 46302 Detective Corporal Elijah Bayor Maabuora stationed at Achimota Mile 7 District CID. That he knows the The Republic v. Bismark Gyamfi Page 5 of 22 complainant, witnesses and accused person through this case. He continued that on 29/04/2023, he was on duty as the investigator when one Seth Thomas Nyanudor arrested and brought to the station accused person Bismark Gyamfi together with one box of tax stamp and lodged a complaint of stealing against the accused person. That the complainant and the witnesses submitted their own written statements. He commenced investigations immediately and left for the scene of crime with the complainant and the accused person. According to PW5, during investigations, it came to light that, the accused person was a private security guard with Guo Security Services Ltd and stationed at the Guinness Ghana Breweries PLC Accra branch as a senior supervisor and a react officer. That on 27/04/2023 the accused person was assigned to accompany the warehouse officer Israel Agblevor a witness in this case to the cold room to issue a company’s tax stamp. The warehouse officer noticed that one of the air conditioners was malfunctioning and he called for the air condition technicians to come and fix same. After issuing the tax stamp, Israel Agblevor left the cold room to attend to other activities and handed over the cold room’s key to the accused person for him to lock the cold room door after the air condition technicians had finished fixing the faulty air conditioner. When he left, accused person quickly stole one box of the tax stamp and replaced it with an empty tax stamp box, concealed it in a black polythene bag sneaked it out and went and hid it behind a dust bin within the company’s premises. That it was further revealed that, on 29/04/2023 accused person collected the stolen tax stamp from where he hid it and went and kept it in a lotto kiosk few meters away outside the company premises. Accused person returned to his post after hiding the stolen tax stamp in the lotto kiosk. Witness Louis who was also on duty was suspicious of accused person’s movement, went to the lotto kiosk and found the tax stamp. He reported to the authorities and accused person was arrested and handed over to the police. During The Republic v. Bismark Gyamfi Page 6 of 22 investigation, accused person admitted the offence in his investigation caution statement and confessed he had stolen one box of stamp about two months ago before his arrest. Further investigation from the CCTV camera footage disclosed that accused person had stolen another box of the tax stamp on 18/04/2023 when he was asked to supervise carpenters to fix a faulty ceiling. Accused person was charged with the offence stated on the charge statement. Exhibits C1 and C3 being charge statements taken from the accused person on 01/05/2023 and 08/05/2023 were admitted in evidence and remarked as exhibits ‘B’ and ‘C’ respectively. PW5 also tendered in evidence photograph of a box in a black polythene as exhibit ‘D’ and a photograph of a box with stamp on it as Exhibit ‘D1’. Thereafter, the prosecution closed its case. After the close of prosecution’s case, Counsel for the accused person filed submission of no case on behalf of the accused person and the Court delivered a ruling on same, to the effect that a prima facie case had been made out by the prosecution to warrant the accused person to open his defence. That the evidential burden had shifted to the accused person to raise a reasonable doubt in the case of the prosecution. In view of the above, the Court found that the accused person had a case to answer and was therefore called upon to enter into his defence, and he was informed about the options available to him as an accused person. Counsel for the accused person subsequently upon receiving the court’s ruling on his submission of no case, submitted to the court that the accused person will remain silent. The accused person did not also call a witness. However, counsel for the accused person filed a written submission on behalf of the accused person. The Republic v. Bismark Gyamfi Page 7 of 22 LEGAL ISSUE The legal issue to be determined by this Court is whether or not the accused person did dishonestly appropriate three boxes of beer import 330ml tax stamp, the property of Guiness Ghana Breweries Limited on d. BURDEN AND STANDARD OF PROOF A fundamental principle of our criminal justice system is that a person accused of a crime is presumed innocent until he has pleaded guilty or proven guilty. It is trite learning that in criminal cases, the prosecution bears the burden to prove the guilt of the accused person beyond reasonable doubt. See sections 11(2), 13(1) and 15 of the Evidence Act, 1975, (NRCD 323). In the case of Gligah & Attiso v. The Republic [2010] SCGLR 870, the Supreme Court held as follows; “Under article 19 (2) (c) of the 1992 constitution, everyone charged with a criminal offence was presumed innocent until the contrary is proved. In other words, whenever an accused person was arraigned before any Court in any criminal trial, it was the duty of the prosecution to prove the essential ingredients of the offence charged against the accused person beyond reasonable doubt. The burden of proof was therefore on the prosecution and it was only after a prima facie case had been established by the prosecution that the accused person would be called upon to give his side of the story.” The burden on the accused person, when called upon to enter his defence, is to raise a reasonable doubt in the case of the prosecution. The standard of proof for the defence is proof on a balance of probabilities. The Republic v. Bismark Gyamfi Page 8 of 22 ANALYSIS The accused person has been charged with three counts stealing under section 124 (1) of Act 29 which provides that: “A person who steals commits a second degree felony.” Section 125 of Act 29 defines Stealing as follows: “A person steals if he dishonestly appropriates a thing of which he is not the owner”. Twumasi J. in the case of Brobbey & Others v The Republic [1982-83] GLR 608-616, stated as follows: “Three essential elements of the offence of stealing become obvious and they are: 1. That the person charged must have appropriated the thing allegedly stolen. 2. That the appropriation must have been dishonest. 3. That the person charged must not be the owner of the thing allegedly stolen.” Also, Azu Crabbe C.J in the case of Ampah v. The Republic [1977] 2 GLR 171, reiterated the elements of stealing as follows: “….to establish the offence the prosecution are required to prove only the three elements of: (i) dishonesty; (ii) appropriation; and (iii) property belonging to another person…” It is therefore clear from the definition that a person cannot be guilty of stealing unless he or she is proved to have appropriated a thing in the first place. In addition, the appropriation must have been dishonest that is, the person charged should have had the intention to be dishonest and acted in bad faith. The Republic v. Bismark Gyamfi Page 9 of 22 From the testimony of the prosecution witnesses, the accused person was assigned to the tax stamps’ room to supervise the activities of the staff who enter there as well as other people who enter the said room to work on faulty equipment therein. That the accused person who was to act as a security officer rather stole some of the boxes containing the tax stamps and replaced some of the tax stamps boxes with empty boxes. According to the evidence on record as adduced by the prosecution witnesses, the accused person hid one of the boxes on the premises of the company and later sent it to a lotto man’s kiosk where he was monitored, followed and was eventually arrested. The prosecution called the said lotto man as PW4 who confirmed in his testimony that the accused person came to put a black polythene bag in his lotto kiosk and said he would come back for it later. Exhibit ‘A’ has series of CCTV footages where the accused person is seen taking a box on two different dates being 18th April 2023 and 27th April 2023. The accused person was also seen replacing one of the boxes he took out of the packed boxes, with an empty box. The accused person was also captured in one of the videos dated 29th April 2023 going out of the gate of the company carrying an item covered with a black polythene in his right hand at about 10:48; and briefly came back through the same gate within a minute at about 10:49 without the said item he had in his hand. Then in another video dated 29th April 2023 at about 11:01; thus, after about 10 minutes from when the accused person sent the item he was carrying in the black polythene outside the company gate, the accused person was seen going out of the company’s gate again without anything but went to pick the black polythene and walked on the street heading towards the main street that branches to the ABC Junction, Achimota. From the evidence on record, the prosecution called the said lotto man as PW4 who confirmed in The Republic v. Bismark Gyamfi Page 10 of 22 his testimony that the accused person came to put a black polythene bag in his lotto kiosk and said he would come back for it later. Exhibit ‘C’ is one of the charge statements of the accused person obtained from him on 8th May 2023; and it contains confession statements. For the avoidance of doubt, I reproduce the relevant part of exhibit ‘C’ being the charge statement of the accused person dated 8th May 2023, which was tendered in evidence by PW5 in support of the case of the prosecution against the accused person, as follows: “I Bismark Gyamfi make the following statement in the presence of D/PW/SGT Phidelia Miraku of Achimota Mile 7 Police Station as follows; I am a security officer at Guo Security Service and I am working at Guinness Ghana Brewery. About two months ago I met a man on the A.B.C road that called me to come, so as I went, he told me that he needs some tax stamp. So, I told him not because I’m not interested in that. He then gave me his number and he said his name is Oga and the number he gave me is 0546624773. I did not even worry myself to call the number because I was not interested. About 3 weeks ago the tax stamp room ceiling was removed so a carpenter came to work on it. So after the carpenter finished his work and left I took one box of tax stamp. I then called the man that I had gotten some. He then met me at the A.B.C bus stop and I gave it to him. So about a week or two I then called to attend to tax stamp. So I took the cold room key from the control room and went to the raw materials manager Mr. Israel Agblevor. I went there and we all went to the cold room where the tax stamps are kept, Mr. Israel issued it to the person and after we are about to lock the door the air conditioner people came to the place that they are going to work on the spoilt air condition. Then Mr. Israel The Republic v. Bismark Gyamfi Page 11 of 22 Agblevor said he can’t wait till they finish their work so I should collect his key after they are done then I lock the door. So after they are done and left I took one box of tax stamp. I hide it at wall at the clinic. I then took it out on Saturday 29th April 2023. I called this Oga man and his number was not going through then I decided to hide it at a lotto man’s kiosk and later take it to the house when I close from work. I then went back to the company. I was then called by my manager and went to where the thing was kept. I was then brought to Mile 7 police station on the same Saturday.” [Emphasis provided] From the evidence on record, the accused person admitted to taking some of the boxes of tax stamp on different dates where on one of the occasions, he hid the box of tax stamps on the premises of the company and later took it away. The accused person through his confession statements made before an independent witness and tendered as exhibit ‘C’ indicated that, he actually took some of the boxes of tax stamps without any authority from the complainant company, gave it to one man who had earlier told him he needed some tax stamps; and further hid the subsequent box he took because he could not reach the said man so he intended to keep it with a lotto agent and later take it home. This statement was taken from the accused person in compliance with the relevant provisions of section 120 of the Evidence Act, 1975 (NRCD 323) applicable to the taking of confession statements which was designed to protect accused persons. Akamba JSC in the case of Ekow Russel v. The Republic [2016] 102 GMJ 124 SC, stated 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 The Republic v. Bismark Gyamfi Page 12 of 22 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 fear, intimidation, coercion, promises or favours ...” (Emphasis mine) The above confession statements by the accused person points to the fact that the accused person is not the owner of the said boxes of tax stamps he admitted taking out of the company’s premises. His conduct in hiding same and replacing with empty box also suggests that he knew he was not supposed to take those tax stamps thereby acting dishonestly. From the evidence before this Court, the charge statement of the accused person dated 8th May 2023 is not very different from the case of the prosecution on the elements of the offence of stealing. Thus, the accused person is not the owner of the boxes of tax stamps he admitted taking out of the company’s premises in exhibit ‘C’, as also shown in some of the CCTV footages in exhibit ‘A’; he appropriated the said boxes of tax stamps and the appropriation was dishonest. The elements of stealing as discussed above in this judgment ought to be found from the evidence on record for the Court to consider the explanation of the accused person, if any, before arriving at the conclusion that the accused person is guilty of the offence of stealing or otherwise. This Court earlier in the proceedings of this case, delivered a ruling where it found that the accused person has a case to answer because the elements of the offence of stealing were established from the evidence on record particularly in exhibits ‘A’ and ‘C’. The Republic v. Bismark Gyamfi Page 13 of 22 In relation to the ownership and value of the said tax stamps, section 123 of Act 29 makes provision on things in respect of which stealing, etc., can be committed. It provides as follows: “(1) Any of the crimes of stealing, fraudulent breach of trust, robbery, extortion, or defrauding by false pretence can be committed in respect of anything, whether living or dead, and whether fixed to the soil or to any building or fixture, or not so fixed, and whether the thing be a mineral or water, or gas, or electricity, or of any other nature, and whether the value thereof be intrinsic or for the purpose of evidence, or be of value only for a particular purpose to a particular person, and whether the value thereof do or do not amount to the value of the lowest denomination of coin; and any document shall be deemed to be of some value, whether it be complete or incomplete, and whether or not it satisfied, exhausted, or cancelled. (2) In any proceedings in respect of any of the crimes mentioned in subsection (1) it shall not be necessary to prove ownership or value.” (Emphasis mine) From the above, it is not necessary for the prosecution to prove who actually owns the thing allegedly stolen or its value. All that is needed is for the prosecution to prove is that, the accused person is not the owner of the thing allegedly stolen and also prove that indeed the accused person appropriated something notwithstanding the value, of which he is not the owner. The above confession statement by the accused person points to the fact that the accused person is not the owner of the said tax stamps he admitted appropriating which appropriation I find as dishonest considering the manner the accused appropriated same. On the element of appropriation, section 122 (2) of Act 29 defines Appropriation as The Republic v. Bismark Gyamfi Page 14 of 22 follows: “An appropriation of a thing in any other case means any moving, taking, obtaining, carrying away, or dealing with a thing, with the intent that some person may be deprived of the benefit of his ownership, or of the benefit of his right or interest in the thing, or in its value or proceeds, or any part thereof”. It must be shown that the accused committed the act with the intention that some person may be deprived of the benefit of his ownership, or the benefit of his right or interest in the thing, or in its value or proceeds, or any part thereof. In the absence of the mental element, there can be no appropriation. There cannot be appropriation within the meaning of Act 29, s. 122 (2) where there is no intent to deprive the owner of his ownership as held in Antwi v. The Republic [1971] 2 GLR 412. However, the intention need not be to deprive any person permanently of his benefit of ownership. It is enough if the intention is to deprive some person temporarily of his benefit or right or interest in the thing appropriated. It also suffices if the appropriation is merely for a particular use – section 122(3) of Act 29. Therefore, temporary use or appropriation satisfies the requirement as long as it is accompanied by the requisite proscribed mental element. The accused person in his confession statement made before an independent witness and tendered as exhibit ‘C’ indicated that, about three weeks before 8th May 2023, he took one box of tax stamp and gave it to the man he had earlier met who had requested that he gets him a tax stamp. Then a week or two before 8th May 2023 when his statement was taken, he also took one box of tax stamp, hid it at a wall at the clinic, then later took it out to give it to the said man but could not get him so he decided to hide it at a lotto man’s kiosk and later take it to the house when he closes from work. The Republic v. Bismark Gyamfi Page 15 of 22 The above evidence therefore satisfies the element of appropriation in the offence of stealing as explained supra and the said appropriation as stated above, was dishonest because the accused did not have the right to appropriate the said tax stamps and he did so without the consent of the owner of the said item. It is important to reiterate that, under section 123 of Act 29, stealing can be committed in respect of anything whether the value thereof do or do not amount to the value of the lowest denomination of coin, and therefore in a criminal offence of stealing, it is not necessary to prove ownership or value. (Emphasis mine) From the evidence on record, the elements of the offence of stealing have been established. Thus, the accused person is not the owner of the tax stamps he admitted appropriating in exhibit ‘C’, and the appropriation was dishonest. For the accused person to have been called upon to open his defence, it implies that a prima facie case was made out against him by the prosecution and it was the duty of the accused person to raise a reasonable doubt in the case of the prosecution to enable his acquittal. In the case of Commissioner of Police v. Isaac Antwi [1961] GLR 408-412, it was held that the accused person is not required to prove anything. All that is required of him is to raise a reasonable doubt as to his guilt. This is further emphasized by sections 11(3) and 13(2) of the Evidence Act, 1975 (NRCD 323). Section 11(3) provides that: “In a criminal action, the burden of producing evidence, when it is on the accused as to a fact the converse of which is essential to guilt, requires the accused to produce sufficient The Republic v. Bismark Gyamfi Page 16 of 22 evidence so that on the totality of the evidence a reasonable mind could have a reasonable doubt as to guilt.” Section 13(2) provides that: “Except as provided in section 15 (c), in a criminal action, the burden of persuasion, when it is on the accused as to a fact the converse of which is essential to guilt, requires only that the accused raise a reasonable doubt as to guilt.” All that the accused person needed to do was to raise a reasonable doubt in the case of the prosecution. Unfortunately, the accused person did not give evidence by opening his defence to enable him raise any reasonable doubt as to his guilt after the finding by this court that he has a case to answer. However, his lawyer made a submission which is similar to the earlier submission of no case he made on behalf of the accused person. The only difference in the final submission which is not evidence before this court, is that counsel for the accused person argued that the accused person is not the one in the videos and same has been doctored. That there is no evidence on record of the accused moving the said items captured in counts 1 and 2 out of the premises of the company therefore the prosecution failed to prove the said counts against the accused person. In the case of State v. Owusu & Anor [1967] GLR 114, the court held in its holding 1 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. The Republic v. Bismark Gyamfi Page 17 of 22 From the evidence adduced in the instant case, there was sufficient corroboration which confirmed that the confession of each accused was true.” In the instant case, apart from exhibit ‘C’ which contains the accused person’s confession statement on the offence of stealing, parts of exhibit ‘A’ also established that the accused person took boxes from the tax stamps’ room as he is seen taking a box on two different dates being 18th April 2023 and 27th April 2023 and this has been analyzed above in this judgment. The court is therefore unable to agree with the submission by counsel for the accused person because there is ample evidence on record to establish that the accused person actually took two boxes from the tax stamps’ room and on one occasion, replaced one box with an empty box and further took same out of the company’s premises. These pieces of evidence support the confession statement made by the accused person in exhibit ‘C’. From the evidence on record, the accused person is the same person who is seen in exhibit ‘C’ as the person who dishonestly appropriated the boxes from the tax stamps’ room when he was supposed to provide security to same. He had the opportunity to lead evidence to raise reasonable doubt in the case of the prosecution that he is not the person in the video but he did not. Therefore, this court has no doubt that the accused person is the same person in the video who is seen carrying the box out of the company’s premises as he confessed in exhibit ‘C’. From the evidence on record, there is no sufficient evidence on count 1 to ground a conviction against the accused person. However, from exhibit ‘C’, I find that the accused person actually stole a box of tax stamps from the tax stamps’ room where he was to be the security in charge, on two occasions and was caught on the second occasion as in the The Republic v. Bismark Gyamfi Page 18 of 22 videos in exhibit ‘A’. In the case of Obeng alias Donkor & Others v. The State [1966] GLR 259, the Supreme Court held on page 261 that: “... where a person is charged with stealing a certain sum it is sufficient if the prosecution proves that he in fact stole part of that sum.” Having carefully considered the evidence on record and relying on the authorities above, I do find that the prosecution has been able to prove that the accused person is guilty of the offence of stealing two boxes of stamps on two different occasions as the accused admitted in exhibit ‘C’. In relation to the offence in count 1, there is no sufficient evidence on same therefore it was not proven beyond reasonable doubt that the said box of stamp was stolen by the accused person. From the evidence on record and the authorities above, I find that the prosecution has been able to establish the ingredients of the offence of stealing beyond reasonable doubt. I support my decision with the dictum of Denning J. (as he then was) in the case of Miller v. Minister of Pensions [1947] 2 All E.R. 372 where he said: "Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable,' the case is proved beyond reasonable doubt, but nothing short of that will suffice.” The Republic v. Bismark Gyamfi Page 19 of 22 CONCLUSION For the foregoing reasons, I conclude that the prosecution has been able to establish beyond reasonable doubt that, indeed the accused person committed the offence of stealing. Consequently, I pronounce the accused person herein guilty of stealing on counts 2 and 3, and convict him accordingly on the said counts. The accused person is however acquitted and discharged on count 1. Pre-Sentencing hearing Court: Is there any plea in mitigation before sentence is passed? Counsel for accused: The accused person humbly prays the court to tamper justice with mercy. This is the first time the accused person has had any brush with the law. The accused person is a young man with a wife and two young children; and is the breadwinner of his family. We pray the court to consider that the value of the item was not proved, in arriving at a fair sentence. The accused person is very remorseful of his actions. We also want the court to consider that the item in count 3 was retrieved without the accused person benefitting from it. We humbly pray for a very minimal sentence because the conviction of the accused person alone is enough for him not to repeat this again. We therefore pray for a minimum sentence for the convict. Court: Is the accused person known? Prosecutor: No. The Republic v. Bismark Gyamfi Page 20 of 22 SENTENCING In sentencing the accused person, the court takes into consideration the fact that he is a first-time offender and also considers the submission made by his lawyer towards mitigation of sentence. The court has also considered the youthful age of the accused person. In accordance with Article 14(6) of the 1992 Constitution, time spent in custody by the accused person before he was released on bail, is considered by the court. However, the court has further taken into consideration the prevalence of the offence of stealing by employees from their employers, as well as the duty imposed on the accused person to act as a security officer to ensure that the said items were safe and secured but he abused his position as a security officer and rather dishonestly appropriated some of the items he was to protect. Under the circumstances, to serve as deterrent to the accused person and others in the jurisdiction of this court that the courts do not tolerate such dishonest actions, the court hereby sentences the accused person as follows: Count 1: The accused person is acquitted and discharged. Count 2: The accused person is sentenced to serve a term of imprisonment of twelve (12) months in hard labour. In addition, the accused person shall pay a fine of four hundred (400) penalty units. In default of the fine, the accused person shall serve a term of imprisonment of twenty-four (24) months in hard labour. Count 3: The accused person is sentenced to serve a term of imprisonment of twelve (12) months in hard labour. In addition, the accused person shall pay a fine of four hundred (400) penalty units. In default of the fine, the accused person shall serve a term of imprisonment of twenty-four (24) months in hard labour. The sentences on counts 2 and 3 shall run concurrently. The Republic v. Bismark Gyamfi Page 21 of 22 Restitution Order The accused person is ordered to return the box of tax stamps he admitted giving to the said man, in exhibit ‘C’ to the complainant; or pay its assessed value to the complainant, after the value is ascertained. [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) The Republic v. Bismark Gyamfi Page 22 of 22