HIGH COURT, HO
Date: 9 JULY 1975
ANTERKYI J
NATURE OF PROCEEDINGS
APPEAL from a judgment of the Circuit Court, Ho, to the High Court against conviction and sentence for attempted unlawful exportation of coffee beans. The facts are fully stated in the judgment.
COUNSEL
I. N. K. Wuaku for the appellants.
Addo, State Attorney (with him Kotey, State Attorney), for the respondent.
JUDGMENT OF ANTERKYI J.
Before the trial at the Circuit Court, Ho, the appellants had been charged separately on one charge sheet under paragraph 6 (a) of the Fruit Industry Decree, 1969 (N.L.C.D. 356), and regulation 3 of the Fruit Industry (Coffee) Regulations, 1970 (L.I. 644), for that each “on or about 3 March 1972 in Ashanti-Kpoeta bush in the Volta Circuit and within the jurisdiction of this court did unlawfully attempt to export one head load of coffee to the Republic of Togo.” Upon pleading not guilty, they were at the end of the hearing found guilty and convicted on each respective charge. Each appellant was fined N¢200.00 or six months’ imprisonment with hard labour.
The evidence for the prosecution at the trial circuit court was as follows: The prosecution’s first witness (Sergeant Bukari Moshie) and the prosecution’s second witness (Corporal Solomon Sackey), both of them stationed at Ashanti-Kpoeta on 3 March 1972, were on patrol duty that day at the Ashanti-Kpoeta Area No. 1 bush. There they were lying in ambush at about 8 p.m. at a spot about a quarter of a mile from Ashanti-Kpoeta, when they saw the appellants each carrying a load and proceeding from Ashanti-Kpoeta towards the Republic of Togo. The prosecution’s first and second witnesses were then positioned at about seven paces apart; at the same time the prosecution’s first witness was about five paces, and the prosecution’s second witness about seven paces, from a footpath leading from Ashanti-Kpoeta to a place called Hanyigbatodzi. The appellants were halted by them. They placed down their head loads. Asked by the prosecution’s first witness what the contents were of the bags they were carrying, the first appellant answered by saying, “Sergeant, I beg you to forgive me.” The prosecution’s first witness then untied the bags and found the contents of each to be coffee beans. The first appellant begged him and explained that:
[p.152] of [1975] 2 GLR 150
“They were having funeral rites on the Sunday of that week and that as there was no money to be had for the coffee at Ashanti-Kpoeta, they were sending the coffee to Hanyigbatodzi for sale to enable them utilise the proceeds for the funeral obsequies.”
The first appellant and the second appellant, his sister, were then put under arrest by the prosecution’s first and second witnesses and brought with the bags of coffee to the police charge office at Ashanti-Kpoeta.
On the following day the prosecution’s third witness (Corporal Opatole) as investigating officer and the chief inspector went with the prosecution’s first and second witnesses and the appellants to the scene of the incident where the prosecution’s first witness showed them the spot at which the appellants were arrested, and the respective spots at which the prosecution’s first and second witnesses had lain in ambush before the arrest. At those spots of ambush were seen signs of damaged cassava trees. The spot of arrest was at Kpodzi, where the prosecution’s first witness had examined the contents of the bags, and had seen some of the coffee beans. From Kpodzi they all went further to the border along the footpath leading to the Republic of Togo. The coffee beans seen at the spot of arrest were collected by the prosecution’s third witness and kept separate from the contents of the two bags.
From the evidence of the prosecution’s third witness, as to the spot of arrest, the appellants showed a spot different from the one shown him (the prosecution’s third witness) by the prosecution’s first and second witnesses. At the spot shown him by the prosecution’s first and second witnesses the quantity of coffee seen was collected. These two different spots were about 600 yards apart. From the spot as pointed by the appellants to the house of the first appellant was approximately 44 yards. From the spot as shown the prosecution’s third witness by the prosecution’s first and second witnesses to the territorial border pillar marked 37A was about a mile. The prosecution’s third witness drew a sketch of the area showing the respective spots and distances, and the appellant and his sister signed it. This was admitted in evidence at the trial as exhibit E. The cautioned statements of the appellants were accepted in evidence as exhibits A and C, the two headloads of coffee as exhibits F (in the case of the first appellant) and G (in the case of the second appellant). The coffee beans collected by the prosecution’s third witness at the spot of arrest as shown him by the prosecution’s first and second witnesses were accepted in evidence as exhibit H.
It was the prosecution’s evidence that there was no coffee farm beyond the spot of arrest shown by the police and that that spot led to the Republic of Togo; that farmers around the area within which the arrest was made sold their produce at Ashanti-Kpoeta within Ghana. The evidence of the defence was no more than that the coffee was being carried by the appellants from the spot of arrest to Ashanti-Kpoeta and not with the intention of taking it across the border to Togo.
In this appeal it was urged on behalf of the appellants, as it was at the trial circuit court, that with regard to the offence of attempt to commit a
[p.153] of [1975] 2 GLR 150
crime the conduct of the accused must be immediately, and not merely remotely, connected with the commission of the crime, and that the spot of arrest being far from the international border, their conduct cannot in law amount to the crime of attempt to export. On this issue, I cannot but agree with the trial circuit court in its finding that:
“In spite of these submissions the court is of the view that the witnesses called for the prosecution gave forthright, consistent and reliable testimony tending to establish beyond doubt that the accused persons took definite steps with a view to smuggling coffee out of Ghana. The evidence discloses that they were seen along a footpath leading to Hanyigbatodzi, a village within the Republic of Togo, and that they were in fact heading to that destination. It is therefore obvious that the presence of the accused persons along that footpath carrying bags of coffee at about 8 p.m. constituted an act which was closely and proximately connected with their intention to smuggle it from Ghana.”
But there was the further question to be considered. Mr. Wuaku for the appellants had pointed out that as they were charged under paragraph 6 (a) of the Fruit Industry Decree, 1969 (N.L.C.D. 356), and regulation 3 of the Fruit Industry (Coffee) Regulations, 1970 (L.I. 644), the finding of the trial court was not one of attempting unlawful exportation of coffee, but of attempting to smuggle (coffee out of Ghana) and that the spirit and intendment of this Decree and its attendant regulations did not envisage the facts portrayed by the evidence of this case.
Paragraph 6 (a) of N.L.C.D. 356 states:
“6 Any person who —
(a) exports or attempts to export fruit without first complying with all the requirements of this Decree and the regulations (other than regulations providing for the cleansing, maintenance or control of premises where fruit is stored or kept) …
shall be liable on conviction to a fine not exceeding two hundred new cedis and in default of payment to imprisonment not exceeding six months.”
The requirements of this Decree as stated in the preceding five paragraphs are:
- The fruit is to be of standard quality, packing and shipping in accordance with this Decree and the regulations.
- and (3): Inspection and examination by an inspector to his satisfaction as to its standard and quality for export.
(4) and (5): Marking of packages (containing the fruit) with a stamp or seal by the inspector to indicate that the fruit has been passed as fit for export, and the issue of a certificate in that regard.
The overall evidence does not disclose that these requirements had been complied with when, as found by the trial court, the appellants intended “to smuggle the coffee from Ghana.” To “smuggle” as defined
[p.154] of [1975] 2 GLR 150
at p. 1043 of Chambers Twentieth Century Dictionary (Revised ed.) (1970 Impression), is “to import or export illegally or without paying duty: to convey secretly.” To “export” at p. 375 of the same dictionary means: “to carry or send out of a country, as goods in commerce.”
It is viewed that, from the above definitions of the two words of “smuggle” and “export” the appellants’ conduct in carrying the bags of coffee with the intention of taking them out of Ghana amounted to attempting to export them, and that the mode of exporting need not be by transport alone, either by land or water, and that any mode of having the item taken across the border of the relative country suffices for exportation. The unlawful exportation may therefore be committed either by having the item carried across (1) stealthily, i.e. (without any intention to pay the duties involved and without complying with the above requirements); or (2) paying the duty or with the intention of paying the duty, but without having complied with the requirements in either case. The conduct of the appellants appeared to have fallen within the first of these two acts. And I cannot but agree with Mr. Addo, the learned state attorney, that the appellants were rightly convicted. In this regard I do uphold the conviction under the relevant Decree and its attendant regulations.
But there is one further point to be considered in relation to the sentence imposed. The object of this Decree under which the charges were laid, it seems to me, is to maintain a standard quality of the food item which is meant for export, and the appellants are therefore to be punished from that standpoint, and not upon the ground that they were attempting to smuggle within the spirit of the Act or Decree prohibiting stealthy exportation, which carries a more severe sentence. With regard to sentence therefore I do allow the appeal by substituting for the sentence of ¢200 or six months’ imprisonment with hard labour to one of ¢10.00 or six weeks’ imprisonment with hard labour, owing to (1) the small quantity of the coffee involved in the case of each appellant, and (2) the spirit of the Decree under which the charges were laid. I therefore order that ¢190.00 out of the fine of ¢200, if paid, to be refunded to each appellant.
I now come to the order of the trial court that the coffee be confiscated to the State. Under the relevant Decree (N.L.C.D. 356) there is no provision for confiscating the item or goods involved, and in my view it is not legitimate to confiscate the goods. A person found guilty under that Decree may be fined and be ordered (or would have) to comply with the requirements before exporting the goods. I therefore do order that the proceeds of sale (¢10.67) and ¢6.00 (paid to chest) be refunded to each respective appellant.
Court below to carry out.
DECISION
Order accordingly. K. S. N.-D.
