REPUBLIC VRS. PILLINGO (GR/KB/CCT/B7/85/2023) [2024] GHACC 372 (27 September 2024)

IN THE CIRCUIT COURT HELD AT KWABENYA ON FRIDAY 27TH SEPTEMBER, 2024 BEFORE HER HONOUR MAWUSI BEDJRAH, CIRCUIT JUDGE CASE NO. GR/KB/CCT/B7/85/2023 THE REPUBLIC VRS EMMANUEL KWAKU PILLINGO ACCUSED PRESENT CHIEF INSPECTOR GERSHON TOGBE ACHONDO FOR PROSECUTION PRESENT JUDGMENT Accused has been charged with the offence of stealing contrary to section 124 (1) of the Criminal and Other Offences Act, 1960 (Act 29). He pleaded not guilty. INGREDIENTS OF THE OFFENCE: For the charge of stealing to succeed the prosecution must prove the following ingredients of the offence; (a) That the accused was not the owner of the thing alleged to have been stolen (b) That there was appropriation (c) That the appropriation was dishonest (See BROBBEY AND OTHERS V THE REPUBLIC [1982-83] GLR 608) BURDEN OF PROOF: Prosecution assumes the burden to prove the guilt of the accused beyond reasonable doubt as required by section 11(2) of the Evidence Act, 1975 (NRCD 323). On the other hand, the accused is not required to prove his innocence but only to raise a reasonable doubt as to his guilt as required by Section 11(3) of NRCD 323. (See also BREMPONG II V THE REPUBLIC [1997-98]1 GLR 467.) 1 FACTS The facts of the case as given by prosecution are that complainant Okyere Adu Gyamfi is a software developer and owns a camera rental office called Fotokrome located at Haatso and also resides at Haatso whilst the accused person Emmanuel Kwaku Pillingo is a Bolt Driver staying at Aburi in the Eastern Region. On 8th May 2023 at about 11:21a.m the accused went to Fotokrome to seek for employment as a cleaner. The accused had earlier seen the advert put out on the social handles by Fotokrome looking for a cleaner. The officials who were available at the time the accused came, namely witnesses Joshua Adom Omanpeh and Eunice Afriyie submitted that after a short interrogation they engaged the accused to tidy up the compound and the kitchen of Fotokrome. The accused in the process of cleaning the utensils in the kitchen made his way into the studio of Fotokrome through the entrance of the kitchen. He stole three (3) cameras namely one black magic pocket 6k and two (2) black magic pocket 6K Pro from the studio. The CCT Cameras in the studio captured him in the process of stealing the aforementioned cameras. On 12th May 2023 the accused was spotted in Dansoman trying to sell one of the cameras, Black Magic Pocket 6K to one witness Samuel Adu Sarfo who is a media personnel, who suspected the deal and quickly called for the arrest of the suspect. The accused was subsequently arrested together with the stolen camera from Fotokrome photo crew and brought to Kwabenya Police station. At the station the accused was interrogated and he admitted having stolen two (2) and not three (3) cameras as alleged by the complainant. Later the Fotokrome Management received a second camera from a shop at Circle. The shop owner Okortor admitted to have received the camera from the accused to be sold for him. During the course of investigation two out of the three cameras were retrieved. Accused was cautioned to that effect and he admitted the offence and stated that he took only two cameras. Hence after investigation he was charged with the offence to appear before this honourable court. THE EVIDENCE OF PROSECUTION Prosecution called three (3) witnesses in an attempt to discharge its burden as follows; i. Okyere Adu-Gyamfi the complainant as PW1 ii. Vera Amedegbor as PW2 iii. D/PW/Chief Inspector Alice Penoo as PW3 2 In brief, the evidence of prosecution’s witnesses is that the accused person stole three (3) cameras from the office of the complainant on the first day of his engagement at work. At the close of the case for prosecution, the court invited the accused person to open his defence as the court found a prima facie case made against him. The accused testified that whilst working for the complainant, there were so many cameras the complainant put in front of the garage, which he thought were not good. Not having any knowledge of cameras, he took two of the cameras and gave them to someone to see whether they were good or bad. He was very much aware there was a CCTV camera but his intention was not to steal and after giving one to a specialist to see whether it was good or not, the remaining camera was with him. When he was arrested, he did not deny because he knew the camera was not good. He told them he took two of the cameras but the complainant said he took three, hence his arrest. EVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW: As stated supra prosecution must prove all the three ingredients of stealing being property of which accused is not the owner, dishonesty and finally appropriation. Prosecution led evidence through its witnesses to establish PW1’s claim that the accused had taken property that was not his own, that is three (3) cameras. Accused person on the other hand testified in his defence that he never took three cameras but rather, two. I have noted that the accused admitted that he took two cameras instead of the three as alleged. However, it may be worthwhile to examine whether all the ingredients of the offence have been established, vis-à-vis the defence of the accused person. The accused was not the owner of the two cameras that he admitted that he took. In effect, there was appropriation. The second question then is whether the appropriation was dishonest. Per section 120 of Act 29, an appropriation of a thing is dishonest if it is made with 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 some person for whom he is a trustee or who is owner of the thing, as the case may be, or that the appropriation would, if known to any such person, be without his consent.” 3 In the instant case, the cameras were taken by the accused person without any claim of right. Neither were they taken with the knowledge and consent of the complainant. This is what ensued during the cross-examination of the accused person in this regard; “Q: For how long did you work with the complainant’s company? A: One day my Lord Q: So did you ask the complainant whether those cameras were functionable or not? A: No my Lady Q: When you became interested in those cameras you believe they were not functionable, did you ask anybody whether you could take same or not? A: No my Lady. That was a big mistake I made. Q:I am putting it to you that you have appropriated cameras of which you are not the owner. A: Yes my Lord.” What is baffling is the fact that the accused person, on the first day of work, decides to take items from the workplace without asking anybody, According to the accused, not having any knowledge of cameras, he took two of the cameras and gave them to someone to see whether they were good or bad. As to why accused wanted to know whether the cameras were good or bad, it is best known to him. Meanwhile, the evidence of PW3 that the accused person was about to sell one of the cameras to a witness and gave the other to another person to sell for him was not challenged. Thus, I find the accused as a person who lacks integrity and cannot be relied on. This is based on the case of ANANG v THE REPUBLIC [1984-86] 1 GLR 458, where Taylor J (as he then was), explained that to sustain a conviction for stealing there must be an act of the accused of such a nature as to cast a slur on his character revealing him as a person lacking in integrity or as a plainly dishonest person. In effect, I find that the cameras were dishonestly appropriated. I have noted that the accused has admitted to appropriating two cameras instead of three, which have been restored to the complainant. However, this does not make the offence any less, since the ingredients of the offence have been established. From the above and the evidence adduced, I find accused guilty on the charge of stealing and I accordingly convict. 4 SENTENCE I have considered the age of the accused and the fact that he is a first time offender. I have also considered the intrinsic seriousness of the offence committed and the premeditation with which the offence was committed. The accused is therefore sentenced to 12 months’ imprisonment I.H.L. Her Honour Mawusi Bedjrah Circuit Judge 5