REPUBLIC VRS. OSEI-BONSU (D6/013/24) [2024] GHACC 386 (18 March 2024)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON MONDAY, THE 18TH DAY OF MARCH, 2024 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE CASE NO.: D6/013/24 THE REPUBLIC VRS MICHAEL OSEI-BONSU ACCUSED PERSON PRESENT INSPECTOR RITA A. KONADU FOR THE REPUBLIC PRESENT NII MARTEI KORLEY, ESQ. FOR THE ACCUSED PERSON PRESENT JUDGMENT The Rep v. Michael Osei-Bonsu Page 1 of 14 THE CHARGE The accused person herein was arraigned before this court on 20th September, 2023 charged with Defrauding by False Pretences contrary to section 131 of the Criminal Offences Act, 1960 (Act 29). THE PLEA He pleaded not guilty after the charge had been read and explained to him in Twi, being his choice of language. FACTS The facts of the case as presented by the prosecution are that the complainant Duberechi Okonkwo is a trader and resides at Osu, Accra whilst accused person Michael Osei-Bonsu is unemployed and also resides at Osu. Accused person always contacts complainant to use his mobile phone to make calls. On 05/05/2023, accused person told complainant that he can swap his iPhone XR valued GH¢2,500.00 and get him an iPhone 12 Pro Max so he should add an amount of GH¢4,800.00 together with the said phone. Complainant obliged and followed him to Kwame Nkrumah Circle. Accused person introduced one Ike as his boss to the complainant. He collected the complainant’s phone and an amount of GH¢4,800.00 and handed it over to his boss Ike and went away. Accused convinced complainant and took him to a locked shop at Ebony, Kwame Nkrumah Circle and told him that, that is his boss’ shop. Accused person who was standing with complainant, suddenly disappeared and all efforts made to trace him proved abortive. On 14/09/2023, accused person was spotted at Accra Sports Stadium and got arrested, brought to the Holy Gardens Police Station where a case was lodged against him. Accused person in his investigation caution statement told police that he does not know the said Ike, but he had earlier on mentioned him to the complainant as his boss to convince him to receive the The Rep v. Michael Osei-Bonsu Page 2 of 14 items. Accused failed to lead Police to apprehend the said Ike. After investigation, accused person was charged with the offence and now before this Honourable Court. In proving its case, the prosecution called three (3) witnesses. EVIDENCE OF PW1 PW1, Duberechi Okonkwo who is the complainant herein told the court in his evidence that he is a trader and lives at Osu, Accra. That on 05/05/2023, the accused person brought him to Kwame Nkrumah Circle from Osu that he would help him swap his iPhone XR valued GH¢2,500.00 to get iPhone 12 Pro Max if he added GH¢4,800.00 to his iPhone XR. He continued that the accused person collected his iPhone XR and an amount of GH¢4,800.00 and handed same over to a certain man who he claimed to be his boss at Ebony, Kwame Nkrumah Circle. That he tried to follow the man but the accused person told him not to and led him to the man’s shop at Ebony, Kwame Nkrumah Circle few meters away from where they met the man who asked that they wait for him there instead. That the said man never returned and the accused person also absconded and all efforts made to trace him never saw the day light. He concluded that on 14/09/2023, the accused person was spotted at Accra Sports Stadium and was arrested to Holy Gardens Police Station and he lodged a complaint against him. EVIDENCE OF PW2 PW2, Frank Francis told the court that he is a phone technician and lives at Osu. That he knows the complainant and the accused person. That on 05/05/2023, the accused person together with complainant came to his shop at Kwame Nkrumah Circle to buy an iPhone 12 Pro Max. That he told the complainant that his iPhone XR with cash the sum of The Rep v. Michael Osei-Bonsu Page 3 of 14 GH¢4,800.00 will not get him the iPhone 12 Pro Max after complainant told him he needed a swap. He continued that the accused person told the complainant that he can swap the iPhone XR plus the sum of GH¢4,800.00 to iPhone 12 Pro Max for him and that he has been in Circle for long and his boss will sort him out. That the accused person introduced a certain man to the complainant as his boss, and the accused person then collected the complainant’s phone and money; and handed them over to the man. That the accused person led the complainant to a locked shop at Ebony, Kwame Nkrumah Circle. That it was getting late, so he left them and later got a call from the complainant stating that the accused person and the man had absconded after succeeding in taking his phone and money. EVIDENCE OF PW3 PW3, No. 57635 D/Const. Gideon Fiadzenu stationed at Holy Gardens Police Station, Accra (investigator herein) told the court in his evidence that on 14/09/2023, a case of defrauding by false pretence was reported by the complainant against the accused person and same referred to him to investigate. That he took statements from PW1 and PW2; and the accused person was cautioned and he volunteered a statement. According to PW3, investigations revealed that on 05/05/2023, the complainant needed to swap his iPhone XR valued GH¢2,500.00 and accused agreed to afford him iPhone 12 Pro Max if complainant was able to add GH¢4,800.00 to his iPhone XR. That further investigations revealed that, the accused person after having succeeded in taking the complainant's phone and money, bolted and never returned. That on 14/09/2023, the accused person was spotted by the complainant, hence his arrest to the station to assist investigation. That after investigation, the accused was formally charged with the offence of defrauding by false pretence contrary to Section 131 (1) of the Criminal Offences Act 1960 (Act 29) and he volunteered a statement. PW3 tendered the investigation caution statement and charge statement of the accused person in evidence as exhibits ‘A’ and ‘B’ respectively. The Rep v. Michael Osei-Bonsu Page 4 of 14 Thereafter, the prosecution closed its case. After the close of the case of the prosecution, the Court examined the evidence of the prosecution witnesses to determine whether or not a prima facie case had been made by the prosecution to warrant the accused person to open his defence. The Court then ruled that the prosecution had made out a prima facie case against the accused person; and he was called upon to enter into his defence. In view of the above, the Court found that the accused person had a case to answer. The court however explained the rights of the accused person to him that he can decide to remain silent, make an unsworn statement from the dock or give evidence on oath. The court also reminded the accused person of the charge against him. The accused person in response told the court that he will give a brief statement from the dock. He therefore made an unsworn statement from the dock as follows: “I did not defraud the complainant, even on 5th May, 2023 I was not in Accra, I was admitted at Akim Asine police station on 4th May, 2023 and I was discharged the next week.” In view of the accused person’s unsworn statement and considering the fact that the accused person was not legally represented at the time, and further considering that his statement amounted to a plea of alibi, the court adjourned the case for the prosecution to investigate the said alibi and report to the court on that. On the next adjourned date, the court was furnished with a report on the accused person’s unsworn statement and the said report indicated that the accused person was rather arrested by the Akim Police on 24th April, 2023 with the offence of stealing an iPhone XR, which is similar to the offence in the instant case. That he was released on police enquiry bail on 27th April, 2023 at 3:20pm after he submitted his investigation cautioned statement. According to the report, The Rep v. Michael Osei-Bonsu Page 5 of 14 no record in the station diary indicated that the accused person herein was arrested on 4th May, 2023 or throughout the month of May 2023. The accused person did not also call a witness. LEGAL ISSUE The legal issue to be determined is whether or not the accused person herein did defraud the complainant by falsely representing to him that if he gives him his iPhone valued GH¢2,500.00 and a cash the sum of GH¢4,800.00 to him, he could secure an iPhone 12 pro max for him, which statement he well knew to be false at the time of making it. BURDEN AND STANDARD OF PROOF The fundamental rule in all criminal proceedings is that the burden of establishing the guilt of the accused person is on the prosecution and the standard of proof required by the prosecution should be proof beyond reasonable doubt as provided in the Evidence Act, 1975 (NRCD 323), per sections 11(2) and 13(1). In the case of Gligah & Attiso v. The Republic [2010] SCGLR 870, the Supreme Court held in its holding 1 that: “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 Rep v. Michael Osei-Bonsu Page 6 of 14 Considerably, whereas the prosecution carries that burden to prove the guilt of the accused person beyond reasonable doubt as per sections 11(2) and 13(1) of the Evidence Act, 1975 (NRCD 323), there is no such burden on the accused person to prove his innocence. At best he can only raise a doubt in the case of the prosecution. But the doubt must be real and not fanciful. ANALYSIS Section 132 of Act 29 provides: “A person defrauds by false pretences if, by means of a false pretence, or by personation that person obtains the consent of another person to part with or transfer the ownership of a thing.” From the above, the elements of defrauding by false pretences are as follows: 1. The use of false pretence or personation, 2. To obtain the consent of another person, 3. So that the person parts with or transfers the ownership of something. Section 133 of Act 29, in defining defrauding by false pretences, lays out the following ingredients: 1. Representing the existence of a state of fact, 2. Either with the knowledge that such representation is false or without the belief that it is true, 3. The representation should be made with the intention to defraud. The Rep v. Michael Osei-Bonsu Page 7 of 14 The House of Lords, in Welham v. Director of Public Prosecutions [1961] A.C. 103, held, as stated in Archbold, Criminal Pleading, Evidence and Practice (36th ed.), para. 2043 at p. 753 that: “Intent to defraud’ means an intent to practise a fraud on someone and would therefore include an intent to deprive another person of a right, or to cause him to act in any way to his detriment …” In the case of Asiedu v. The Republic [1968] GLR pgs 1-8, Amissah J.A. stated: “An intent to defraud is an essential element of the offence of defrauding by false pretences whether the method of fraud adopted was personation or a false representation”. Archer J. (as he then was) in the case of Blay v. The Republic [1968] GLR 1040-1050 stated: “In a charge of defrauding by false pretences, if the evidence showed that the statements relied on consisted partly of a fraudulent misrepresentation of an existing fact and partly of a promise to do something in future, there was sufficient false pretence on which a conviction could be based”. From the evidence of the first and second prosecution witnesses, the accused person told the complainant that he could swap his iPhone XR and an amount of GH¢4,800.00 with iPhone 12 pro max. This is after the accused person and the complainant went to the shop of PW2 to buy an iPhone 12 pro max; and PW2 told the complainant that his iPhone XR with the amount of GH¢4,800.00 will not get him the iPhone 12 pro max when he said he needed a swap. From the evidence on record, the accused person is the one who took the complainant to Circle and told him that he has been at Circle for long and his boss will sort him out so he introduced a certain man who he claimed to be his boss to the complainant. From the evidence, the accused person collected the complainant’s iPhone XR and his cash of GH¢4,800.00 and handed same to his said boss at Ebony but stopped the complainant The Rep v. Michael Osei-Bonsu Page 8 of 14 from following him and asked him to wait for him instead. Thereafter, the accused person and his said boss absconded until the accused was arrested. Therefore from the case of the prosecution, the complainant gave his iPhone XR and GH¢4,800.00 to the accused person, after the accused convinced him that he could swap same with an iPhone 12 pro max for him. From the evidence of PW1, the accused person after convincing him to wait, absconded and he could not trace him at Ebony, Kwame Nkrumah Circle after all the efforts he made to do so until he was spotted at Accra Sports Stadium and was arrested. Under cross examination, PW1 maintained his position that the accused person made him give everything to him and he handed it to the man because he had already called the man to come. PW2 also maintained his testimony under cross examination that he personally saw the accused person with the complainant when they went to him that he wants to buy a phone and also when he saw the complainant and the accused at Ebony whilst they were transacting together with the person he calls his boss as well as the complainant’s friend. From the evidence on record, at the time the accused person took the complainant’s iPhone XR and amount of GH¢4,800.00 to swap same with an iPhone 12 pro max, he did not have the said iPhone 12 pro max to swap for him meaning he was not in a position to do so but falsely represented to the complainant that he could do so for him. Therefore from the evidence of the prosecution witnesses, the accused person represented facts to the complainant and based on that, he took the complainant’s phone and money knowing very well that the statement he made to the complainant that he was The Rep v. Michael Osei-Bonsu Page 9 of 14 going to swap same with iPhone 12 pro max was a false statement because he well knew that he could not do so as he had no available iPhone 12 pro max to swap with. Indeed the accused person made a false representation to the complainant and absconded with the said boss he handed the complainant’s iPhone and money to, after he succeeded in making the complainant part with his phone and money. From his cautioned statement, the accused person admitted that he told the complainant that the said Ike is his boss so he should give the money and the phone to him. Meanwhile, he failed to lead the police or the complainant to his said boss after they both absconded. 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. After evaluating all the pieces of evidence adduced during the trial, I find that the evidence point to only one conclusion that the accused person defrauded the complainant by taking his iPhone XR and his cash the sum of GH¢4,800.00 from him that he would swap same with iPhone 12 pro max when he was not in a position to do so. 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 Rep v. Michael Osei-Bonsu Page 10 of 14 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.” From the evidence before this court, the accused person did not have any defence to the charge against him and so could not raise a reasonable doubt as to his guilt. 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, but not in the least probable,' the case is proved beyond reasonable doubt, but nothing short of that will suffice.” Apaloo JA (as he then was) in the case of Asare & Others v. The Republic (No. 3) [1968] GLR 804-925 stated: “The offence of fraud by false pretences seeks to punish anyone who deceives another to his detriment and which deceit operated to the material advantage of the deceiver”. CONCLUSION The Rep v. Michael Osei-Bonsu Page 11 of 14 From the evidence before this court, I do find that the prosecution has been able to prove beyond reasonable doubt that the accused person is guilty of the offence he has been charged with. From the foregoing reasons, I pronounce the accused person herein, guilty of the offence of defrauding by false pretences and I convict him accordingly. Pre-Sentencing hearing Court: Any plea in mitigation before sentence is passed? Counsel for Accused person: We want the court to consider the relative young age of the accused person as he is still in his early 20s. We also want the court to take into account that the accused person has not been previously convicted. He is a first time offender so he deserves mercy. We also want the court to consider that the accused person has been in lawful custody since the commencement of this matter in September 2023. We pray the court to consider the sum involved which is not particularly huge. We pray the court imposes a fine on the accused person. Court: Is the accused person known? Prosecutor: No, he is a first time offender. SENTENCING In sentencing the accused person, the court takes into consideration the plea in mitigation on his behalf by his lawyer and the fact that he is a first time offender. The court has The Rep v. Michael Osei-Bonsu Page 12 of 14 further considered the age of the accused person (20 years old) at the time he committed the offence which makes him a young offender. In accordance with Article 14(6) of the 1992 Constitution, time spent in custody pending trial is considered. However, the court also takes into consideration the prevalence of this offence at the Kwame Nkrumah Circle. To serve as deterrent to the accused person and others with similar criminal propensity to curb the spate of these crimes within the jurisdiction and to send a signal that the Courts do not countenance such fraudulent actions, and relying on section 46 (1) (c) and 46 (3) of the Juvenile Justice Act, 2003 (Act 653), the Court hereby sentences the accused person as follows: The accused person is ordered to be sent to a Senior Correctional Centre at Maamobi, Nima for a period of 24 (twenty four) months. A probation officer attached to any of the Family Tribunal Courts in Accra shall conduct a Social Enquiry Report to be added to the detention order that will be sent to the said Correctional Centre to inform the authorities therein to assist them in the reformation of the accused person herein. Restitution Order In accordance with section 147B of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), the accused person is ordered to refund the amount of GH¢2,500.00 being the value of complainant’s iPhone XR and the amount of GH¢4,800.00 to the complainant herein. The complainant shall enforce this order through civil means. The Rep v. Michael Osei-Bonsu Page 13 of 14 [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) The Rep v. Michael Osei-Bonsu Page 14 of 14