KOOMSON v. THE REPUBLIC [1968] GLR 1083

DIVISION: HIGH COURT, SEKONDI

DATE: 3 DECEMBER 1968

BEFORE: ABOAGYE J.

NATURE OF PROCEEDINGS

APPEAL against sentence on the grounds that it was excessive and wrong in law. The facts are sufficiently set out in the judgment.

COUNSEL

J. Mercer for the appellant.

Anson, State Attorney, for the respondent.

JUDGMENT OF ABOAGYE J.

On 21 September 1968, the appellant herein was put before the Circuit Court, Takoradi, and he pleaded guilty to charges of conspiracy to steal contrary to sections 23 (1) and 124 (1) of the Criminal Code, 1960 (Act 29), forgery of document and stealing an amount of N¢300.00 contrary to sections 159 and 124 (1) respectively, of the same Code. The learned circuit judge summarily convicted him on his own pleas and on 1 October 1968, he sentenced him on each count to 30 months’ imprisonment with hard labour. The sentences are to run concurrently. The appellant has appealed against the sentence on two grounds, namely, (1) that it is wrong in law, and (2) that it is severe. Arguing the first ground, learned counsel for the appellant, Mr. James Mercer, submitted that as the appellant was tried summarily the learned circuit judge had no power to sentence him to a term of imprisonment exceeding twelve months in the absence of any previous conviction. In support of that submission learned counsel cited the cases of State v. Boye, High Court, Accra, 26 January, 1966, unreported; digested in (1966) C.C. 54 and Fulani v. The Republic [1968] G.L.R. 66. In the first case decided by Wiredu J. (as he then was) it was held that whenever a case was tried summarily by a circuit judge he must consider himself as exercising concurrent jurisdiction with a magistrate and he must therefore not pass a higher sentence than a magistrate; that is, the sentence must not exceed twelve months’ imprisonment or N¢200.00 fine: see section 53 (2) of the Courts Act, 1960 (C.A. 9), which was applicable at the time the case was decided. In the second case Amissah J.A. in a lengthy judgment based on deep research work, also held that whenever the High Court or a circuit court heard a case summarily, it could not pass a sentence greater than what a district court could pass. He therefore reduced to two years’ imprisonment with hard labour (because of the appellant’s previous convictions) a sentence of seven years’ imprisonment [p.1085] of [1968] GLR 1083 with hard labour imposed upon him by a circuit judge in a summary trial. Note that by paragraph 51 (2) of the Courts Decree, 1966 (N.L.C.D. 84), the district court can sentence a person convicted by it to a term of imprisonment not exceeding twelve months or to a fine not exceeding N¢200.00 in the absence of any previous conviction.

In my view State v. Boye (supra) and Fulani v. The Republic (supra) were rightly decided by the learned appellate judges; the decisions were right only because of section 44 of the Criminal Procedure Code, 1960 (Act 30), which was operative at the time the cases were heard both by the circuit courts and the High Court. Section 44 of Act 30 formerly read as follows:

“44. Subject to the provisions of any enactment a criminal case shall not be brought before the High Court or a Circuit Court, unless it has been previously brought before a District Court and the accused person has been committed for trial to the High Court or Circuit Court, as the case may be.”

The meaning of the words of the section was to my mind so clear and the Court of Appeal in Republic v. T. O. Asare [1968] G.L.R. 727, C.A. held that because of section 44 of Act 30, the High Court or a circuit court could not try a case whether summarily or on indictment unless it had been committed to it by a district court.

The only way then by which the High Court or a circuit court could try a criminal case which had not been committed to it by a district court was by sitting as a district court through the exercise of the powers under paragraph 56 of the Courts Decree, 1966 (N.L.C.D. 84), or, before the Decree, section 58 of the Courts Act, 1960 (C.A. 9). Paragraph 56 of the Courts Decree, 1966 (N.L.C.D. 84), which is almost the same as section 58 of the Courts Act, 1960 (C.A. 9), reads as follows: “58. No jurisdiction conferred upon any District Court shall in any way restrict or affect the jurisdiction of the High Court or a Circuit Court and each of those Courts shall have in all causes and matters, civil and criminal, an original jurisdiction concurrent with the jurisdiction of a District Court.”

If the High Court or a circuit court sat as a district court, then its powers were reduced to those of a district court and it could not pass over a person convicted by it a sentence greater than what a district court could impose in the case. Section 44 of the Criminal Procedure Code, 1960 (Act 30), was amended, after the Court of Appeal’s decision in Asare’s case, by the Criminal Procedure Code (Amendment) Decree, 1968 (N.L.C.D. 276), para. 1 which replaced the section with the following new section: [p.1086] of [1968] GLR 1083

“44. (1) A criminal case which is being tried on indictment shall not be brought before the High Court or Circuit Court, unless it has previously been brought before a District Court and the accused person has been committed for trial to the High Court or Circuit Court as the case may be.

(2) Subject to the provisions of subsection (1) of this section, the High Court or a Circuit Court shall have power to issue any summons or warrant for the commencement of any criminal case (whether the case is to be tried before the High Court, a Circuit Court or any other court of competent jurisdiction) and, accordingly subject as aforesaid, sections 60 to 87 of this Code shall, with the necessary modifications, apply in relation to the High Court and a Circuit Court in the same manner as they apply to the District Court; so however that a criminal case may be heard and determined by the High Court or a Circuit Court not withstanding that the summons or warrant for the commencement thereof was issued by a District Court.” The effect of the amendment is that a criminal case can now be tried summarily by a High Court or a circuit court qua a High Court or circuit court without its being first committed to it by a district court.

See also section 2(4)(b) of the Criminal Procedure Code, 1960 (Act 30), which says: “a summary trial shall be by a court of summary jurisdiction, or by the High Court or a Circuit Court.”

The question then is, can a High Court or a circuit court now pass, on a person convicted by it in a summary trial, a sentence greater than what a district court trying that case could impose?

In Fulani v. The Republic (supra), Amissah J.A. discussed fully the sentencing powers of the High Court and circuit courts in summary trials. He referred to sections 178 and 179 of the Criminal Procedure Code, 1960 (Act 30), which clearly show that the legislature did not intend a person convicted in a summary trial to suffer to the same degree the punishment inflicted upon a person convicted of the same offence on indictment; the one convicted summarily is to suffer a lesser punishment than the one convicted on indictment. Sections 178 and 179 of Act 30 read: “178. (1) Where, upon the summary conviction of a person for any offence, the District Court is of opinion that, having regard to the evidence, and to the character and record of the offender, the maximum punishment which the District Court is empowered to impose would be insufficient, the Court may commit the offender for sentence to a Circuit Court and any enactment relating to the powers of any Court upon committal for trial shall apply so far as relevant to such committal for sentence. [p.1087] of [1968] GLR 1083

(2) The Circuit Court shall have power to deal with the offender as if he had been convicted on indictment by that Court of the offence, and the conviction and sentence shall be subject to appeal as if he had been so convicted.

179. (1) If it appears to the Court at any stage of a summary trial of an offence which is also punishable on indictment that the case is unsuitable for summary trial the Court may inform the Attorney-General of its opinion and adjourn the proceedings for not more than fifteen days to await his reply.

(2) If, within that time, the Court is notified by or on behalf of the Attorney-General that it is proposed to prosecute the accused on indictment the Court shall follow the procedure laid down in Part IV, and, in the case of a trial by the High Court or a Circuit Court, shall have the powers of a District Court under that Part.

(3) In any other case, the Court shall proceed with the summary trial of the offence.”

The provisions of section 179 of Act 30 are not affected by N.L.C.D. 276 which amended section 44 of the Act so it cannot be argued that they apply to the High Court and circuit courts only when they exercise jurisdiction concurrent with that of a district court.

From section 2 of Act 30 which deals with mode of trial, it is obvious that less serious offences must be tried summarily and more serious offences tried on indictment. The relevant parts of the section are subsections (1), (2) (as amended by the Criminal Procedure Code (Amendment) (No. 2) Act, 1965 (Act 272), s. 1 (a)) and (3) which read as follows:

“2. (1) An offence shall be tried summarily if —

(a) the enactment creating the offence provides that it is to be punishable on summary conviction, and provides for no other mode of trial; or

(b) the enactment creating the offence makes no provision for mode of trial and the maximum penalty for the offence on first conviction is a term of imprisonment not exceeding six months, whether with or without a fine.

(2) An offence shall be tried on indictment if:—

(a) it is punishable by death or it is an offence declared, by any enactment to be a first degree felony; or

(b) the enactment creating the offence provides that it shall be triable on indictment, and provides for no other mode of trial.

[p.1088] of [1968] GLR 1083

(3) Every other offence shall be triable on indictment or summarily.”

No difficulty can arise in respect of the trial of offences under subsection (1) of section 2 of Act 30. It is with the trial of offences falling under subsection (3), for example, a stealing charge, that a difficulty may arise as to whether the case is to be tried summarily or on indictment. The offence may not on its face look too serious and a district or circuit court or the High Court may begin to try it summarily. The evidence which comes out may, however let the court form an opinion that the offence is rather grave and deserves a serious punishment. It is in such a situation that the court must invoke the provisions of section 179 of Act 30. I fully share the view of Amissah J.A. that when the High Court or a circuit court tries a case summarily its sentence must be less severe than when it tries the same case on indictment. But in view of the amendment of section 44 of Act 30, I hold that in a summary trial the High Court or a circuit court is not restricted to passing a sentence which a district court trying the case would be entitled to pass; the court can, subject to the provisions of the enactment creating the particular offence, pass a greater sentence which the circumstances of the case may justify but the sentence must not be too severe. I must confess that I am not happy about the state of our present law regarding summary trials by the High Court and circuit courts and it is my fervent hope that the National Liberation Council will as soon as practicable amend the Criminal Procedure Code, 1960 (Act 30), and set a limit to the punishment which the High Court or a circuit court can inflict upon a person convicted by it in a summary trial as was done by section 159 of the repealed Criminal Procedure Code, Cap. 10 (1951 Rev.), which gave two years’ imprisonment with hard labour or a fine as the maximum. Until that is done the High Court and circuit courts, especially the latter, will continue to sentence people convicted by them in summary trials to terms of imprisonment which would be expected only after a trial on indictment. I now have to apply my decision to the facts of the instant case and find out if the sentence of 30 months’ imprisonment with hard labour is too severe. The offences of conspiracy and forgery were committed to further the stealing as Mr. Mercer, counsel for the appellant, rightly pointed out. The amount stolen was N¢300.00 and N¢54.00 of it was recovered. The appellant is only 22 years old and there is no previous conviction for any offence against him. His parents made unsuccessful efforts to secure a loan to refund the stolen amount; that conduct on the part of the parents should, if [p.1089] of [1968] GLR 1083 anything at all, be regarded as a mitigating factor in favour of the appellant rather than a factor aggravating sentence as the learned circuit judge appears to have taken it to be. The appellant has refunded N¢100.00 since the hearing of this appeal.

Having considered the facts of the case and the amount recovered I am of the opinion that the sentence of 30 months’ imprisonment with hard labour on each of the three charges is too severe and I reduce it to three months’ imprisonment with hard labour. The sentences are to run concurrently with effect from 1 October 1968.

DECISION

Appeal allowed.

Sentence reduced.

L. F. A.