REPUBLIC VRS. OKOYE (D3/015/24) [2024] GHACC 379 (31 July 2024)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON WEDNESDAY, THE 31ST DAY OF JULY, 2024 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE CASE NO.: D3/015/24 THE REPUBLIC VRS DEVINE OKOYE ACCUSED PERSON PRESENT A.S.P. STEPHEN AHIALE FOR THE REPUBLIC PRESENT NO LEGAL REPRESENTATION FOR THE ACCUSED PERSON JUDGMENT THE CHARGES The accused person was arraigned before this Court on 19th March 2024 on the following charges; The Republic v. Devine Okoye Page 1 of 14 1. Unlawful Entry, contrary to section 152 of the Criminal Offences Act, 1960 (Act 29) 2. Stealing, contrary to section 124(1) of the Criminal Offences Act, 1960 (Act 29) THE PLEA He pleaded not guilty to the charges after same had been read to him in English, being his choice of language. The accused person having pleaded not guilty to the charges, the prosecution assumed the burden to prove the guilt of the accused person beyond reasonable doubt. FACTS The facts of the case as presented by the prosecution are that the complainant in this case, Mandy Henewaa is a student of University of Professional Studies, Accra and resides at UPSA hostel 5th floor room no. 533 while accused person Devine Okoye is unemployed and resides at Paloma Circle. On 2nd December 2023, the accused person went to UPSA hostel with the main aim to steal. Accused person was captured by the CCTV camera of the hostel opening the door of complainant with a key, entered and made away with a Lenovo Laptop computer valued GH GH¢10,000. On 5th December 2023, the accused was arrested by some students of University of Ghana Pentagon hostel on a similar offence and was brought to the station. The complainant got information about accused’s arrest and came to the station to identify him as the same person in the CCTV footage of the incident that happened at UPSA. Accused person admitted all the offences in his caution statements. Police investigation revealed that the accused person is a Nigerian and has never been a student of the University nor residence of the hostel. On the said date, accused person posed as a student, went to the hostel with cloned keys to open the complainant's room when she was away for lectures and stole the laptop. It was further revealed that the accused sold the laptop to someone at the Kwame Nkrumah Circle but The Republic v. Devine Okoye Page 2 of 14 failed to assist Police in locating the said individual. After investigation, accused was charged with these offences and brought before this Honourable Court. To discharge their legal burden, the prosecution called three witnesses including the investigator. EVIDENCE OF THE PROSECUTION WITNESSES PW1 gave his name as James Nii Armah Aryee. That he lives at Adenta, a suburb of Accra and he is the manager at the University of Professional Studies Hostel ‘B’. He continued that on the 4th December 2023, Mandy Henewaa came to report to him about her stolen laptop. That on receipt of the report, he went with Mandy Henewaa and her roommate to review the CCTV recordings where they discovered a young male adult with a black backpack entering into the room. PW2, who is also the complainant herein testified that she is a student of University of Professional Studies and a resident of University of Professional Studies hostel ‘B’. That on 2nd December 2023, she her left room in the morning at about 10:30am, and returned around 7:30pm. Upon her return, she could not find her Lenovo laptop which she had left in her bag inside the room. She then asked her other roommate about her laptop and she told her the room was opened when she returned. She continued that on 4th December 2023, she went to the hostel management and complained to them about her stolen Lenovo laptop. That the hostel management led her to review the CCTV footage where she saw a young male adult using a different key to open her room. That he spent about 20 minutes inside the room before leaving. That she saw the young male adult tried to open other doors too on the floor her room is located. That on 5th December 2023, she made a formal report to the police. The Republic v. Devine Okoye Page 3 of 14 PW3, the investigator herein (Detective Sergeant Olivia Sakyibea) told the Court that she knows the accused person. That on 5th December 2023, the complainant accompanied by the Director of Security at the University of Professional Studies, Mr. Patrick Korankye Apenkwah reported that on 2nd December 2023 at about 7:00pm she detected her Lenovo laptop which was left in her room was missing, and same was referred to her for investigations. She continued that on that same day, the director of security produced a CCTV recording to police which had image of the accused person entering the complainant's room and stealing the Lenovo laptop. PW3 tendered the CCTV recordings in evidence as exhibit ‘D’. That investigation cautioned statement was collected from the suspect on 5th December 2023. On 6th December 2023, the accused person was confronted with the CCTV recordings and he admitted using a key to open complainant's room and making away with her Lenovo laptop. Accused person however, told police the Lenovo laptop is with a friend of his by name Tofiq. That a further statement was collected from the accused person. She tendered the cautioned statements in evidence as exhibits ‘A’ and ‘B’. That on 11th March 2024, a charge statement was collected from the accused person. Same was tendered in evidence as exhibit ‘C’. Thereafter, the prosecution closed its case. After the close of the case of prosecution, the Court examined the evidence of the prosecution witnesses to determine whether a prima facie case had been made by the prosecution to warrant the accused person to open his defence. The Court then ruled that a prima facie case had been made and the accused person was to raise a reasonable doubt in the case of the prosecution. The Republic v. Devine Okoye Page 4 of 14 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, after the options available to him as an accused person were explained to him by the Court. The Court also reminded the accused person of the charges against him. Before the trial would be adjourned for the accused person to decide the option to choose, he told the Court that he does not know anything about the case so he wants to remain silent. That he does not have anything to say. The accused person did not also call witness. LEGAL ISSUES The legal issues to be determined by this Court are as follows: 1. Whether or not the accused person unlawfully entered room no. 533 on the 5th floor of UPSA hostel, with the intent to commit crime to wit: stealing. 2. Whether or not the accused person did dishonestly appropriate one Lenovo laptop computer valued GH¢10,000.00, the property of Mandy Henewaa. 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 The Republic v. Devine Okoye Page 5 of 14 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. In the case of Osae v. The Republic [1980] GLR 446, the Court held that: “although it was settled law that where the law cast the onus of proof on the accused, the burden on him was lighter than on the prosecutor, and the standard of proof required was the balance of probability, if at any time of the trial, the accused voluntarily assumed the onus of proving his defence or some facts as happened in this case, the standard he had to discharge was on a balance of probabilities.” ANALYSIS 1. Whether or not the accused person unlawfully entered room no. 533 on the 5th floor of UPSA hostel, with the intent to commit crime to wit: stealing. Section 152 of Act 29 on unlawful entry provides that: “Whoever unlawfully enters any building with the intention of committing crime therein shall be guilty of second degree felony.” The Republic v. Devine Okoye Page 6 of 14 The elements of the offence of unlawful entry are provided in section 153 of Act 29 as follows: “A person unlawfully enters a building if he enters otherwise than in his own right or by the consent of some other person able to give such consent for the purposes for which he enters." PW1 in his evidence in chief told the Court that he reviewed the CCTV recordings with the complainant when she made a report and they discovered a young male adult with a black backpack entering the room. PW2 also testified that the hostel management led her to review the CCTV footage where she saw a young male adult using a different key to open her room. PW3 also adduced evidence to the effect that the director of security at the UPSA produced a CCTV recording to the police which had the image of the accused person entering the complainant’s room. The said CCTV recording which was tendered in evidence as exhibit ‘D’ which was served on the accused person as part of disclosures before the hearing commenced and was further shown in Court during the trial for the accused person to watch. The accused person did not object to it neither did he refute the fact that he is the person in the said CCTV footage. A careful watch and examination of exhibit ‘D’ indicates a young man in the image of the accused person who is seen walking on the floor with a black backpack on him and monitoring his environment to check if someone is looking at him. He stretched his neck to check if he could see anyone in the room through the window. When he was certain that no one was on the floor and in the room after he knocked on the door about three times and realized it was locked after holding the handle of the door, he swiftly opened the room with a key he had in his possession. He unlawfully entered the room with the The Republic v. Devine Okoye Page 7 of 14 said black backpack behind him, and his conduct suggested that he did not have the authority to enter the said room. He thereafter spent about two minutes in the room and came out of the room with his backpack still on him; and quickly left the floor without locking the door. Exhibit ‘B’ which is the further statement of the accused person taken on 6th December 2023 is a confession statement which has the certification of an independent witness Richmond Adom Alhassan that the accused person made the statement voluntarily in his presence. The accused person stated as follows: “I am the one in the video the CCTV captured. I took the laptop and gave it to my brother Toufiq who resides at Circle. I do not have an insider at the UPSA hostel. I just went there by myself and I guess luck found me that faithful day my key could open the said door”. The accused person was given the opportunity to cross examine the prosecution witnesses but his questions and the answers to same could not raise any reasonable doubt as to his guilt. The accused person did not make any attempt to discredit the evidence of PW3 as a result of her investigation in this case, particularly on exhibit ‘D’. From the investigation caution and charge statements of the accused person which were duly tendered in evidence without any objection from the accused person, the accused person admitted opening the door of the complainant with his key. These statements were taken from the accused person in compliance with all the relevant provisions of section 120 of the Evidence Act, 1975 (NRCD 323) applicable to the taking of confession statements and 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: The Republic v. Devine Okoye Page 8 of 14 “... 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 fear, intimidation, coercion, promises or favours ...” (Emphasis provided) The confession statement by the accused person points to the fact that the accused person did not enter the complainant’s room in his own right or by the consent of the complainant or by some other person who is able to give such consent for the purposes for which he entered. It also supports the CCTV footage in exhibit ‘D’. From the evidence on record and the authorities above, I find that the prosecution has been able to prove the elements of the offence of unlawful entry as the evidence on record indicates that the accused person unlawfully entered the room of the complainant herein. I accordingly find that the first count has been proven by the prosecution beyond reasonable doubt. 2. Whether or not the accused person did dishonestly appropriate one Lenovo laptop computer valued GH¢10,000.00, the property of Mandy Henewaa. Section 124(1) of Act 29 provides that: “Whoever steals shall be guilty of a second degree felony.” The Republic v. Devine Okoye Page 9 of 14 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”. Taylor J (as he then was) in the case of Lucien v. The Republic [1977] 1 GLR 351-359 laid out the elements in the offence of stealing as follows: “The only basic ingredients requiring proof in a charge of stealing were that: i. the person charged must not be the owner of the thing stolen, ii. he must have appropriated it and iii. the appropriation must have been dishonest”. Section 122 (2) of Act 29 defines Appropriation as 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”. PW2 told the Court in her evidence that the from the CCTV footage, she saw that after the accused person unlawfully entered her room, he spent about 20 minutes inside the room before leaving. That when she returned to her room, she could not find her Lenovo laptop which she had left in her bag inside the room. PW3 also testified that exhibit ‘D’ had image of the accused person entering the complainant's room and stealing the Lenovo laptop. That the accused person was confronted with the CCTV recordings and he admitted using a key to open complainant's room and making away with her Lenovo laptop. That he told police the Lenovo laptop is with a friend of his by name Tofiq. The Republic v. Devine Okoye Page 10 of 14 The above piece of evidence by PW3 is supported by exhibit ‘B’ which is a confession statement made by the accused person to the police and analyzed above in this judgment. Moreover, from exhibit ‘D’ the accused person unlawfully entered the said room with a black backpack and spent some minutes therein and came out with the said backpack. Therefore, the question any reasonable person will ask is, what did the accused person unlawfully enter the said room to do? Was it to just look at the interior of the room and leave the door unclosed or exactly what did he go there to do? In the case of State v. Anani Fiadzo [1961] GLR 416, the Supreme Court held at page 418, on the issue of circumstantial evidence as follows: “Presumptive or circumstantial evidence is quite usual, as it is rare to prove an offence by evidence of eye-witnesses, and inferences from the facts proved may prove the guilt of the appellant. A presumption from circumstantial evidence should be drawn against the appellant only when that presumption follows irresistibly from the circumstances proved in evidence; and in order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the appellant, and incapable of explanation upon any other reasonable hypothesis than that of guilt. A conviction must not be based on probabilities or mere suspicion.” From the circumstantial evidence on record, the conduct of the accused person points to only one irresistible conclusion that the accused person is the one who stole the complainant’s missing laptop. This is because he went to the said hostel with a master key or a cloned key, looked around to ensure that no one had seen him and actually opened the door of one of the rooms with his backpack on him, spent some time in the room and left the room without bothering to lock the door as he had met it. His conduct suggested that he had gotten something from the room and had to leave fast before he The Republic v. Devine Okoye Page 11 of 14 was caught therefore, he did not care whether the door he went to meet firmly locked was closed or not. Further to the above the accused person admitted in exhibit ‘B’ that he took the laptop and gave it to his brother Toufiq who resides at Circle. From the evidence above, it can be safely concluded that the prosecution has been able to prove the offence of stealing against the accused person beyond reasonable doubt. I therefore find from the evidence on record that the accused person herein unlawfully entered the complainant’s room and dishonestly appropriated the said laptop belonging to the complainant herein. 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). All that the accused person needed to do was to raise a reasonable doubt in the case of the prosecution but he could not do so. The accused person did not give evidence to attempt to raise a reasonable doubt in the case of the prosecution. 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 at p. 373 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, The Republic v. Devine Okoye Page 12 of 14 but not in the least probable,' the case is proved beyond reasonable doubt, but nothing short of that will suffice.” CONCLUSION For the foregoing reasons, I find that the prosecution has been able to establish beyond reasonable doubt that, indeed the accused person committed the offences under counts one and two. Consequently, I pronounce the accused person herein guilty on counts one and two being the offences of Unlawful Entry and Stealing; and the accused person herein is convicted on both counts accordingly. Pre-Sentencing hearing Court: Any plea in mitigation before sentence is passed? Accused: I do not have anyone in this country so l plead with the Court for mercy. Court: Is the accused person known to the police? Accused: He is not known. SENTENCING In sentencing the accused person, the Court takes into consideration his plea in mitigation, the fact that he is a first time offender and his youthful age. In accordance with Article 14(6) of the 1992 Constitution, time spent in custody during the trial is considered. However, the Court has equally taken into consideration the fact that the said laptop under count two was not retrieved from the accused person. The Court has also considered the entire evidence on record and the role the accused person played in committing the said offences in broad daylight. The Court is of the view that there is a need to impose a deterrent sentence to send shivers down the spine of people with similar criminal propensity to curb the spate of these crimes within the jurisdiction for people in The Republic v. Devine Okoye Page 13 of 14 the area and students in that hostel to operate and study under peaceful and secured environment. I consequently sentence the accused person as follows: Count 1: The accused person is sentenced to serve a term of imprisonment of thirty-six (36) months in hard labour (I.H.L.) Count 2: The accused person is sentenced to serve a term of imprisonment of thirty-six (36) months in hard labour (I.H.L.). In addition, the accused person shall pay a fine of three hundred (300) penalty units. In default of the fine, the accused person shall serve a term of imprisonment of eighteen (18) months in hard labour (I.H.L.) The sentences on both counts shall run concurrently. Restitution Order The accused person is ordered to pay the amount of GH¢10,000.00 to the complainant being the value of the complainant’s laptop he dishonestly appropriated or lead police to retrieve the said laptop for the complainant provided it is still in the condition it was stolen. [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) The Republic v. Devine Okoye Page 14 of 14