GRUNSHIE v. THE REPUBLIC [1968] GLR 1101

Division: HIGH COURT, SEKONDI

Date: 9 DECEMBER 1968

Before: ABOAGYE J.

NATURE OF PROCEEDINGS

APPEAL against recommittal for forfeiture of licence under Act 30, ss. 395 (2) and (3) and 396. The facts are sufficiently set out in the judgment.

COUNSEL

Appellant in person.

Anson, Assistant State Attorney, for the Republic.

JUDGMENT OF ABOAGYE J.

On 13 August 1968, the appellant was put before the District Court Grade II, Prestea, on charges of failing to report to the police whilst a convict on licence and living by dishonest means whilst a convict on licence contrary to section 395 (2) and (3) and section 396 respectively of the Criminal Procedure Code, 1960 (Act 30). He pleaded guilty to both charges and was convicted by the district magistrate and recommitted on each count to prison for a term of seven months fourteen days after the magistrate had rejected the appellant’s explanation that he was admitted to the [p.1103] of [1968] GLR 1101

Tarkwa hospital and that was why he could not report. The sentences are to run concurrently.

On 2 October 1968, the appellant filed an application for extention of time within which to appeal and a petition against his sentence. The application came before me on 8 November 1968 and having gone through the copy of the record of proceedings I granted the application and leave to appeal.

The facts of the case as they can be gathered from the copy of the record of proceedings are that on or about 9 November 1963, the appellant was convicted of stealing and sentenced to two years’ imprisonment with hard labour. The sentence was to expire on 8 November 1965, but he was released on licence before then and asked to report to the police at Prestea monthly up to 8 November 1965. He failed to report and some time in March 1967 he was convicted of stealing at Dunkwa. On 28 June 1968, he was again convicted of stealing at Twifu. Section 395 (2) and (3) of Act 30 under which the appellant was charged on count 1 reads as follows:

“(2) Every holder of a convict’s licence shall once in each month report himself at the police station nearest to his residence at such time and in such manner as the competent police authority shall direct; and such report shall, according as such authority shall direct, be made either personally, or by letter.

(3) If any holder of a convict’s licence who is at large in Ghana after having reported himself as required by subsection (1), remains in any place forty-eight hours without notifying the place of his residence at the police station nearest to his residence, or fails to comply with the requirements of this section as to reporting himself within seven days of his release, or as to reporting himself on the occasion of any change of residence, or as to reporting himself once in each month, he shall in every such case, unless he proves to the satisfaction of the Court before which he is tried that he did his best to act in conformity with the law, be guilty of an offence against this Part and upon summary conviction thereof the court may in its discretion forfeit his licence whereupon the convict shall be re-committed to prison to serve a term of imprisonment equal to the residue of his term or terms of imprisonment which remained unexpired at the date of forfeiture.” It is clear from the wording of subsection (3) that it is a good defence to the charge that the person charged was prevented by circumstances beyond his control from reporting himself to the police.

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If it was true that the appellant was sick and admitted to hospital at the time he was supposed to be reporting to the police, then he would not be guilty if he was so sick as not to be able to report even by letter. The explanation given by the appellant, after his plea of guilty, showed that he was not guilty and the magistrate should have entered a plea of not guilty for him and given the appellant a chance to lead evidence to prove his story instead of rejecting it in the way he did. The conviction on count (1) is wrong on the face of the record and I hereby quash it together with the sentence on that count. Under normal circumstances I should have ordered a retrial of count (1) but from the facts of the case a retrial will, in my opinion, be pointless as no sentence can be imposed on the appellant even if he is found guilty of the offence. Section 395 (3) of Act 30 states that if a convict on licence fails to report himself to the police as he is required to do under section 395 (1) or (2) and he is summarily convicted by a court, the court may, in its discretion, forfeit his licence “whereupon the convict shall be re-committed to prison to serve a term of imprisonment equal to the residue of his term or terms of imprisonment which remained unexpired at the date of forfeiture.” (The emphasis is mine.) It follows therefore that if a convict on licence fails to report and he is not arrested before his licence expires then if he is later arrested and put before the court there will not be any unexpired portion of his term or terms of imprisonment for which he can be recommitted to prison to serve if he is convicted and his licence forfeited. Mr. Anson, counsel for the State, urged that even if the convict is apprehended after the expiration of his original sentence, that is, after the expiration of the licence, he can be recommitted to prison to serve a term equal to the period during which he failed to report. Counsel contended that if that were not so the intention of the legislature would be defeated.

In my view, having regard to the words of section 396 of Act 30 which deals with a convict on licence who lives dishonestly, it is clear that the legislature deliberately drew a distinction between the punishment to be suffered by a convict on licence whose only offence is his failure to report himself and the one who commits or is suspected, by his association with criminals, to be committing crimes. The former must surely suffer a lesser punishment. Section 396 provides that if a convict on licence is suspected to be getting his livelihood by dishonest means or habitually associating with thieves or notoriously bad characters, he shall be deemed to be guilty of an offence and his licence shall be forfeited,

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“whereupon the convict shall be recommitted to prison serve a term of imprisonment (with or without hard labour, as the case may be) equal to the residue of his term or terms of imprisonment which remained unexpired when his licence was granted.”

(The emphasis is mine.)

It is therefore only when a convict on licence has been convicted under section 396 of Act 30 that he can be recommitted to prison to serve the portion of his sentence in respect of which he was granted the licence.

The facts of the case cannot also support a conviction on count (2). Section 396 under which the appellant was charged makes it an offence for a convict who is on licence to live by dishonest means or to habitually associate with notoriously dangerous characters. In my view the licence granted to a convict expires with the period in respect of which it is granted. If that happens, the convict ceases to be on licence and becomes an ex-convict. He then, like any other citizen, cannot be guilty of an offence on mere suspicion that he lives dishonestly or that he habitually associates with criminals. The facts of count (2) show that the two-year sentence imposed on the appellant in 1963 expired on 8 November 1965. The appellant was therefore not a convict on licence in 1967 or in 1968 and so he could not in law be charged with an offence under section 396 of Act 30. In the result I allow the appeal, enter pleas of not guilty on each count for the appellant, and quash the conviction and sentence on each count.

The appellant is acquitted and discharged.

DECISION

Appeal allowed.

D.R.K.S.