REPUBLIC VRS VANDERLINE (E7/23/2024) [2024] GHACC 111 (16 February 2024)

IN THE CIRCUIT COURT FIAPRE HELD THIS FRIDAY THE 16TH OF FEBRUARY, 2024 BEFORE HER HONOUR AKUA ADOMA ADDAE. Court Case Number E7/23/2024 THE REPUBLIC VERSUS PAUL AMANKWAH VANDERLINE JUDGMENT The Accused per the charge sheet filed on the 8th of December, 2023 is charged with two counts of Defrauding by False Pretence contrary to section 131(1) of the Criminal Offences Act, 1960 (Act 29). The brief facts of the case attached thereto are as follows: Both Complainants, Isaac Owusu and Bright Oteng are masons residing at Dormaa Akwamu. The Accused person is a mechanic and is a resident of Kokomlemle, Accra. In the month of November, 2021, the Accused informed the 1st Complainant that he was a Canadian who had by then, just returned to celebrate his late wife’s funeral and was willing to assist interested person(s) to be recruited into the Coca-Cola Company Limited, where he worked at in Canada, for a fee. The 1st Complainant showed interest and informed the 2nd Complainant about it and he also got interested. The Accused collected their respective passports and sent them to Ridge Hospital, Accra for medical examination with the view of securing visas for them. In the month of December 2021, the 1st Complainant paid Fifteen Thousand Ghana Cedis (GH₵15,000.00) and the 2nd Complainant paid Nine Thousand Ghana Cedis (GH₵9,000.00) to the Accused through his MTN Momo account number 0245821068 bearing the name Amankwah Venderline. The Accused person after receiving the money gave several false promises to the Complainants and later went into hiding. On 7th December 2023, the Complainants lodged a complaint with the Sunyani Police. On the same day, the Accused person was arrested. In his investigation cautioned statement, he admitted the offence and mentioned one Osei Kwame as his accomplice whom he allegedly gave the money to but he could not identify the said Osei Kwame to the Police. After investigations, the Accused was charged with the offence as stated on the charge sheet and put before this Honourable Court. GOVERNING LAW The primary statutes guiding this court in arriving at a conclusion are the Criminal Offences Act, 1960 (Act 29) and the Evidence Act, N.R.C.D 323. The relevant sections of Act 29 are Section 131(1), the offence-creating section and Section 133, the Definition of defrauding by false pretence. Section 131(1) provides as follows: “A person who defrauds any other person by a false pretence commits a second-degree felony” False pretence is also defined in section 133 to mean: “1) a false pretence is a representation of the existence of a state of facts made by a person, with the knowledge that the representation is false or without the belief that it is true, and made with an intent to defraud. Proof in criminal trials is circumscribed by Article 19(2) of the 1992 Constitution of the Republic of Ghana which clothes the Accused with the Presumption of innocence. The prosecution then has to rebut this presumption by leading evidence to establish the guilt of the Accused if the Accused himself does not admit his guilt. Section 11(2) of the Evidence Act NRCD 323 provides that the burden of producing evidence, when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence, a reasonable mind could find the existence of the fact, beyond a reasonable doubt. The retired Legal Luminary, Justice S. A. Brobbey, at page 47 of his book, Essentials of the Ghana Law of Evidence stated thus: “In criminal trials, the burden to produce evidence is the obligation on the prosecutor to produce sufficient evidence in support of the charge to induce the judge not to withdraw the charge from consideration by the jury or convince the judge, where he sits alone, not to dismiss the charge summarily.” In the case of Miller v Minister of Pensions [1947] 2 All ER 372 at 374, per the Dictum of Lord Denning, the meaning of reasonable doubt was clarified as follows: “it need not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of 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 the least probable, the case is proved beyond reasonable doubt. In the case of Oteng v The State [1966] GLR 352 at 354 the Supreme Court held that one significant respect in which our criminal law differs from our civil law is that while in civil law a Plaintiff may win on a balance of probabilities, in a criminal case the prosecution cannot obtain a conviction upon mere probabilities. Burden of Proof on the Accused Per section 11(3) of the Evidence Act, NRCD 323: “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 evidence so that on the totality of the evidence, a reasonable mind could have a reasonable doubt as to guilt” Again in section 13(2) of NRCD 323 “… In a criminal action, the burden of persuasion as to the fact of guilt requires only that the Accused raise a reasonable doubt as to guilt. In the instant case, the Prosecution will have to prove beyond reasonable doubt the key ingredients of the offence as charged. In the case of Republic v Selormey [2001-2002] 2GLR 424 the court held that on the charges of fraud by false pretences to succeed the prosecution must prove by evidence a) That the accused person made a representation either by written or spoken words or any other means whatsoever. b) That the said representation was in regard to the existence of a state of facts c) That the said representation was false or made without the belief to be true that it was true Prosecution in its bid to discharge the burden placed on it by law, called both Complainants to testify. The first Complainant Isaac Owusu, was the first witness called upon by the Prosecution. PW1 in his witness statement which was adopted as his evidence-in-chief before this Honourable Court, without any objection from the Accused, stated that he was introduced to the Accused by his late Cousin, one Richard Baah. He also stated that in his interactions with the Accused, the Accused made it known to him that he was a returnee from Canada where he worked with the Coca-Cola Company. He also said that the Accused told him that, due to the COVID 19 pandemic, Coca-Cola was recruiting interested persons from all over the world to fill the workforce deficit the pandemic had created. He again stated that the Accused said that he could assist interested persons to secure a working visa to Canada at a fee of Thirty Thousand Ghana Cedis (GH₵30,000.00). This representation by the Accused, from the evidence of PW1, led him to make an initial payment of Fifteen Thousand Ghana Cedis (GH₵15,000.00) comprising of a cash payment of Five Thousand Ghana Cedis (GH₵5,000.00) and a mobile money transfer of Ten Thousand Ghana Cedis (GH₵10,000.00) to the mobile money account of the Accused. The Accused after taking the first instalment asked PW1 to give him his passport and birth certificate and PW1 complied. Subsequently, the Accused took PW1 to Ridge Hospital for medical examination. PW1 was so convinced that he was dealing with a genuine individual that he introduced PW2, Bright Oteng to the Accused. The Accused after some time changed numbers making it difficult for the Complainants to reach him or find him. The Complainants, suspecting that they had been defrauded, reported the matter to the police and the Accused was subsequently arrested by the Police. At the end of his Evidence-in-Chief, the Accused declined to cross-examine PW1. When the Accused was called upon to cross-examine PW1, the Accused informed the court that he had no questions for the witness. The prosecution then called PW2, the second complainant in this case, Bright Oteng. In his witness statement which was adopted as his evidence-in-chief before this Honourable Court, in the absence of any objection by the Accused, PW2 stated that PW1 introduced him to the Accused as someone who could assist him travel to Canada for greener pastures. PW1 gave the phone number of the Accused to PW2 and he called the Accused who then asked PW2 to meet him at Asafo, Kumasi. PW2 obliged and met with the Accused as requested. During their meeting, the Accused informed PW2 of the requirements involved. The Accused requested PW2 to pay an amount of Thirty Thousand Ghana Cedis (GH₵30,000.00) in addition to his passport and birth certificates. PW2 made an initial payment of Four Thousand Ghana Cedis (GH₵4,000.00) and also handed over his passport and birth certificate to the Accused. PW2 just like PW1 was taken to Ridge Hospital by the Accused to undergo medical examinations. PW2 then subsequently made a further payment of Five Thousand Ghana Cedis (GH₵5,000.00) to the Accused’s MTN Mobile Money Account. After the Accused received the said sum, PW2 claims that the Accused switched off his phone and went into hiding. At the end of PW2 Evidence-in-chief, the Accused was called upon to cross-examine the witness but he declined saying he had no questions for the him. The Prosecution then proceeded to put PW3, the investigator, No. 46651 D/CPL Bright Nkansah Asare in the witness box. In his witness statement which was adopted as his Evidence-in-Chief, PW3 stated that after the Accused was arrested, an investigation cautioned statement was taken from the Accused wherein he admitted taking various sums of money from the Complainants. However, the Accused claims that he took the said sums intending to give same to one Osei Kwame who alleged owns “Tak Travel and Tour”, in Accra. PW3 also stated that when the Accused was asked by the Police to take them to the said Osei Kwame and the alleged travel and Tour, the Accused failed to do so. The reason given by the Accused was that the said Osei Kwame had fled the Country and was now living in Germany. The Accused person could also not take the Police to the Physical offices of the alleged Travel and Tour Company. The Accused in the course of investigations told the Police that he was a travelling organizer for the alleged Tak Travel and Tours and that all the monies he received from the Complainants were paid to the said Company. Evaluation of the Evidence Adduced by the Prosecution. at the end of the prosecution’s case, it was clear that the test laid down in Republic v Selormey [2001-2002] 2GLR 424 a) That the accused person made a representation by spoken word when he told PW1 that he was a returnee from Canada and was recruiting interested persons all over the world to fill the vacancies in the Coca-Cola workforce in Canada b) That the said representation was in regard to the existence of a state of facts being the fact that he was recruiting people to work in Coca-Cola, Canada and was able to assist interested persons secure a visa to travel to the said country. c) That the Accused not being a staff of Coca-Cola Company, Canada, nor a staff of the Canadian High Commission nor a staff of the Ministry of Foreign Affairs was not in a position to assist anyone secure a visa to travel to Canada let alone secure a job at the said Coca-Cola Company. Hence said representation was false or made without the belief to be true that it was true. d) That by virtue of the said misrepresentation, the Complainants parted with various sums of monies, their respective passports and birth certificates. Therefore when the Accused represented to the Complainants (PW1 and PW2) that he was a returnee from Canada and that he could assist anyone who wanted to travel to Canada for a fee, he was not in a position to do so. At the time the Accused made this said representation, he knew that the representation was false and He did not have the belief that it was true. The Accused clearly made the said misrepresentation with an intent to defraud. At the close of the prosecution’s case, there was clearly a question for the Accused to answer and the court did call on the Accused to answer the allegations made against him. Per section 11(3) of NRCD 323, all that the Accused needed to do was to raise a reasonable doubt as to his guilt. The Accused however told the court that he had nothing to say and that he relies on his statements given to the police. He told the court that, even if he mounted the witness box, he was going to repeat the content of the said statement. S.A. Brobbey in his book “Practice and Procedure in Trial Courts and Tribunals, 2nd Edition, at page145 on the effect of a case for prosecution where the accused fails to testify, the eminent jurist noted as follows: “ The view expressed by text writers is that the case of the prosecution should be proved beyond reasonable doubt at the stage when prosecution closes its case….if the court takes the view that the case of the prosecution has been established beyond reasonable doubt when it’s case is closed, and the accused refuses or fails to testify thereafter, the court will be entitled to convict on the evidence adduced at that stage.” In the case of Annoh v. Commissioner of Police [1963]2GLR 306 the accused gave no evidence in court and his cautioned statement was not considered by the trial court, which concluded in judgment that “the court could not guess what his explanation would be.” On appeal against conviction, the Supreme Court held that the cautioned statement should have been considered by the trial court and that if that had been considered, it might have led to the acquittal of the accused. In this instant case, the Accused declined to say anything in his defence and told the court that he relies on his Cautioned Statements. The Investigation Cautioned and the Charge Cautioned Statements of the Accused were tendered in evidence by PW3, without any objection by the Accused. I Shall now proceed to consider them. In his Charge Cautioned Statement, the Accused did not give any new information but merely stated that he relies on his earlier Investigation Cautioned Statement. I shall therefore limit my examination to the Investigation Cautioned Statement of the Accused. In the Investigation Cautioned Statement of the Accused, he admitted taking Six Thousand Ghana Cedis (GH₵6,000.00) from PW1 and Four Thousand Ghana Cedis (GH₵4,000.00) from PW2. The Accused claimed that at the time he took the monies from the Complainants, he was working with Tak Travel and Tour, owned by one Osei Kwame. He further stated therein that the said travel and tour was located at Circle, Accra. He claimed that it was this said Osei Kwame that he gave the money taken from the Complainants to because he was at the time working as his organizer. Unfortunately, Osei Kwame had closed shop and moved to Germany. It is interesting to note that when PW3 took the stand, he stated that the Accused was unable to take the Police to the physical location of the allegedly now-defunct Tak Travel and Tour. The Accused also did not cross-examine the PW3 on this issue. Again, the issue of working for a travel and tour company did not come up when the Complainants took the stand and the Accused also declined to cross-examine the two complainants. FINDINGS AND CONCLUSION I am of the opinion that the Prosecution has provided sufficient evidence to prove the essential ingredient of the evidence charged. The Prosecution, when the burden of adducing sufficient evidence to support the charge of defrauding by false pretence, was able to adduce sufficient evidence to prove beyond a reasonable doubt that: a) The Accused Person made a representation by spoken word when he told PW1 that he was a returnee from Canada and was recruiting interested persons all over the world to fill the vacancies in the Coca-Cola workforce in Canada b) The said representation was in regard to the fact that he was recruiting people to work in Coca-Cola, Canada and was able to assist interested persons secure a visa to travel to the said country. c) That the Accused not being a staff of Coca-Cola Company, Canada, nor a staff of the Canadian High Commission nor a staff of the Ministry of Foreign Affairs was not in a position to assist anyone secure a visa to travel to Canada let alone secure a job at the said Coca-Cola Company. Hence said representation was false or made without the belief to be true that it was true. d) That by virtue of the said misrepresentation, the Complainants parted with various sums of monies, their respective passports and birth certificates. That at the close of the Prosecution’s case, when the burden of adducing evidence shifted onto the Accused he was unable to raise a reasonable doubt as to his guilt. The Accused failed to cross-examine any of the three prosecution witnesses. Again, when called upon to open his defence, the Accused informed the Court that he had nothing to say and that he was relying on his Cautioned Statements. He added that even if he mounts the witness box, he was going to repeat the contents of the said statements. The court after considering his Investigation Cautioned Statement, which was relied on by the Accused in his Charge Cautioned Statement, this Court finds as a fact that the Accused did admit taking the monies of the Complainant with the promise to secure visas to travel to Canada and also secure a job there for them at Coca-Cola Company. Though the Accused stated in his Investigation Cautioned Statement that he gave the monies to one Osei Kwame, the Accused did not lead any evidence to convince this Honourable Court that he did so. As a matter of fact, the Accused could not even lead the Police to the physical location of the alleged travel and tour company owned by the said Osei Kwame. This Court finds that the Accused is guilty of Defrauding by False Pretences contrary to section 131(1) of the Criminal Offences Act, 1960 (Act 29) and convicts him accordingly. This offence is a second-degree felony and per section 296(5) of Act 30, he is liable to a term of imprisonment not exceeding Twenty-Five years. There is no option of a fine. In sentencing the Accused, I have taken into consideration the fact that the Accused did not plead guilty to the offences charged when he knew he had no intention of putting up a defence. The Accused is not a young offender but in the absence of any record to the contrary, the Accused is a first offender. He has however not acted as a person who has had his first brush with the law. Not only did he brazenly take advantage of the gullible Complainants, but he willfully wasted the Court's time. The Accused has also not made any attempt in the course of his trial to refund the monies collected from the Complainants. In the light of the foregoing, I hereby sentence the Accused to a term of Four(4) Years Imprisonment I.H.L on both counts. These sentences are to run concurrently. I would like to comment on the fact that the Complainants are not without blame in this matter. The Complainants ought to have known that the Accused not being an employee of the Canadian High Commission or the Ministry of Foreign Affairs was not in a position to offer any assistance to secure Canadian Visas. Even if the Accused was an employee of any of the aforementioned organizations, the best he could have done was to offer guidelines on how the Complainants were to go about the visa application process. Society has evolved so much that, information regarding visa applications is readily available online. As a matter of fact, most embassies in Ghana have outsourced their visa application functions to companies like VFS Global. This company for instance has an online platform where information is provided on how to apply for a visa. The only reason why an individual would resort to the use of visa connection men, like the Accused is either because of sheer laziness or because the applicants know that they cannot meet the legal visa requirements of the Country they wish to visit or immigrate to. If you want a visa to travel, visit the embassy of the Country or its High Commission or better still, visit the home page of VFS Global. …….SIGNED…….. AKUA ADOMA ADDAE.