OKINE AND ANOTHER vs. THE REPUBLIC [1997-1998] 2 GLR 768

CASES REFERRED TO

(1) Amartey v The State [19641 GLR 256, SC.

(2) Kwashie v The Republic [1971] 1 GLR 488, CA.

(3) Quaye v Mariamu [1961] 1 GLR 93, SC.

(4) R v Sarpong [1959] GLR 383, CA.

(5) Mensah and Ankrah v The State [1961] GLR 64, SC.

(6) Commissioner of Police v Asamoah (1958)3 WALR 458.

(7) Daswani v Commissioner of Police [1964] GLR 52.

APPEAL by the appellants against their conviction and sentence on charges of possessing narcotic drugs withoi4ut lawful authority rand supplying narcotic drugs without lawful authority respectivel y. The facts are sufficiently set out in the judgment of Baddoo JA.

Kabutey for the first appellant.

Arhin for the second appellant.

Afrziyie for the Republic.

[p.771] of [1997-1998] 2 GLR 768

Forster JA. The two appellants were jointly tried and convicted for offences under the Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236). The first appellant was charged for possessing narcotic drug without lawful authority, contrary to section 2 (1) and (2) of PNDCL 236. The second appellant was charged for supplying narcotics drug without lawful authority, contrary to section 6 (1) of the PNDCL 236. Each appellant was sentenced to fifteen years imprisonment with hard labour. It is from that conviction that they now appeal to this court.

The case for the prosecution was that, following a tip-off, the police searched the room of the first appellant at Odorkor, and found 102 packets of wrapped cannabis, commonly known as Indian hemp, in a sack concealed under the bed of first appellant on which he was lying with two other persons. He claimed ownership and mentioned the second apppellant as the person who gave them to him for “safe-keeping.” He led the police to the house of the second appellant some 150 yards away and identified the second appellant as the person who gave him the drug. The second appellant admitted having given the drug to the first appellant but explained that the cannabis was brought to him by a “Wofa Yaw” from Wenchi. A search in his room yielded reels of cellotape and a cutter. The cellotape was identical with that used to wrap the 102 parcels found with the first appellant. The contents of the parcels were later certified by the Police Crime (Forensic) Laboratory as cannabis resins weighing 16,320 grammes. The appellants were accordingly charped with the offences.

Mr Kabutey, counsel for the first appellant, abandoned the appeal against the conviction, conceding that he could not rightly question the propriety of the conviction. His submissions hereafter were confined to the sentence of fifteen years imposed on the appellant.

Counsel for the second appellant submitted that the appellant did not know the nature of the contents in the sack which had been brought to him by Wofa Yaw of Wenchi. I think this submission is most misconceived. Mere possession of a narcotic drug is of course not sufficient to ground a conviction. There must be evidence, direct or circumstantial, that the material was known by the accused to be Indian hemp This rincnriminatming element is a

[p.772] of [1997-1998] 2 GLR 768 precondition to proof of legal possession. In Amartey v The State [1964] GLR 256 at 261, SC, Ollennu JSC, delivering the unarni mous opinion of the Supreme Court, said:

“Physical possession without that knowledge is no offence. Without that knowledge there is no legal possession which can support the charge. Therefore to succeed on such a charge, the prosecution must prove legal possession; that is, in addition to proving physical or constructive possession, they must go further to lead evidence which establishes that the defendant had the requisite knowledge, or evidence from which it would be reasonable to presume that the defendant proved to be in possession well knew, or ought to have known, that the article he possessed was ‘opium or Indian hemp’. . .”

And it does not matter whether the offence charged is possession of or supplying a narcotic drug; the requisite knowledge must be proved by the prosecution. A person would not be guilty of the offence of supplying the prohibited drug unless it could be proved that he knew that the material he was supplying was a narcotic drug.

In the instant case, and in respect of the second appellant, this court must detetmine whether at the time he received the 16,320 grammes of the Indian hemp from Wofa Yaw and before he delivered it to the first appellant he knew that it was Indian hemp. First, in his statement to the police dated 16 November 1996 (exhibit C), the appellant said he received the drug from a Wofa Yaw and added: “On 14 November 1996 . . . 1I invited Eric (the first appellant) into my residence and handed over the travelling bag containing the Indian hemp to destroy it for me since he Enric resided near the incinerator in the vicnity.”

Thus, it becomes manifestly clear that at some time when the Indian hemp was in his physical possession and before he gave it to the first appellant, the second appellant became aware or got to know the nature and quality of the material, as being Indian hemp. For that reason he needed a safe haven where it could be kept.

In his evidence-in-chief, the first appellant had nothing to say except that he relied on his statement to police (exhibit B) and thereby adonpted it in substitution or as part of his viva voce

[p.773] of [1997-1998] 2 GLR 768 evidence. He was not cross-examined or challenged by counsel for the second appellant. In effect the statement which otherwise was inadmissible against the co-accused (the second appellant) had by the adoption by the first appellant metamorphosed into evidence given by him and therefore admissible against the second appellant. In the absence of any cross-examination of the first appellant directed to the incriminating portions of the statement, the second appellant must be deemed to have accepted the incrimination as true. So reviewed, these amount to proof that when the second appellant had physical possession of the Indian hemp, it was possession with knowledge it was of that nature and quality. Accordingly, the subsequent supply of that Indian hemp to the first appellant was with the requisite knowledge.

Again, of circumstancial significance was the fact that the Indian hemp found in the possession of the first appellant had been wrapped and cellotaped. When the police subsequently searched the second appellant’s room they found identical cellotape and a cutter. This evidence established inferentially that the Indian hemp was cellotaped into 102 parcels by the second appellant and with the aid of the cutter. The submission of counsel that there was no proof of knowledge by the prosecution is not borne out by the evidence or record. If indeed he meant merely to give it to the appellant to destroy, he would not have found it necessary to convert them into as many as 102 parcels. The conduct of the second appellant was clearly inconsistent with his claim that the Indian hemp was intended to be destroyed. The conviction of the appellants in these circumstances cannot therefore be faulted by this court.

It was the common submission of the appellants that the sentence of fifteen years imprisonment with hard labour imposed on them was too severe and excessive. It was contended that the appellants were first offenders and that the first appellant was only 27 years old. Counsel therefore submitted that a less severe sentence – —the statutory minimum often years’ imprisonment with hard labour, must be subtituted by this court.

I am not in the least persuaded by learned counsel’s submissions which in effect appealed to us to deal leniently with the appellants. If the possession or supply of a mere one gramme of narcotic drug attracts mandatory statutory minimum penalty of not less than ten years imprisonment, it cannot be rightly contended that a conviction for possessing or supplying as much as 16,320

[p.774] of [1997-1998] 2 GLR 768 grammes of the drug must equally warrant the imposition of the mandatory minimum sentence of ten years imprisonment. The imposition of an appropriate sentence above the legislative manda tory minimum is entirely left to the discretion of the convicting court. Where a sentence has beep imposed by the trial court, an appellate tribunal does not interfere with the sentence, even where it considers that had members of that appellate tribunal been trying the case a somewhat different sentence might have been passed. IIf the sentence is exeessive or wrong in principle then an appellate tribunal may not defer to the sentence passed by the court.

The principles that must guide a court in determining appropriate level of sentence were considered in Kwashie v The Republic [1971]11 GLR 488 at 493, CA where the court, inter ahlia, identified the following factors:

“. . . (1) the intrinsic seriousness of the offence; (2) degree o revulsion felt by law-abiding citizens of society for the particular crime . . . (4) the prevalence of the crime within the particular locality where the offence took place, or in the country generally; (5) the sudden increase in the incidence of the particular crime . . .”

Narcotic offences are so serious as to be recognised internation ally, as evidenced by the United Nations Convention on Narcotic Drugs and Psychotropic Substances. Ghana, as a signatory to the convention, was obliged to enact PNDCL 236 to implement the provisions of the treaty. Determined to reflect the country’s abhorrence to the commission of such crimes, the legislature in section 56 (4) of the Courts Act, 1993 (Act 459) vests in the courts of Ghana extra-territorial jurisdiction for the trial of such offence that are committed outside Ghana by nationals of this country. That reflects society’s abhorrence to the commission of narcotic drug offences.

To heed the submissions of counsel would, in my view, be tending to encourage the commission of these offences; and the deterrent objective that must have caused the legislature tco prescribe such a severe minimum term of imprisonment would be rendered completely nugatory. Considering the large quantity olf the drug and the prevalence of narcotic drug offences in this country, and bearing fact that this country has acquired a degree oJf notoriety for the commission of such offences, a sentence olf fifteen years impriso nment with hard labour for the possession or

[p.775] of [1997-1998] 2 GLR 768 supplying of 16,320 grammes of Indian hemp is most considerate and fair. and not in any sense execessive or severe.

I would accordingly dismiss the appeals against both the conviction and sentence.

Baddoo JA. This is an appeal against the judgment of the Accra Regional Tribunal, dated 12 November 1997.

The appellants were convicted by the tribunal for possessing narcotic drug without lawful authority, contrary to section 2 (1) of the Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1998 (PNDCL 236) and supplying narcotic drug without lawful authority, contrary to section 6 (1) of PNDCL 236, respectively. They were sentenced to fifteen years imprisonment with hard labour each. They have appealed against both conviction and sentence.

For the first appellant, his main ground of appeal was that the judgment was unreasonable and cannot be supported having regard to the evidence. Counsel for the first appellant, Mr Kabutey, submitted that the evidence showed that the appellant did not know what was in the bag that was left in his house by the second appellant. That when he was apprehended by the police, he told them the bag was given to him by the second appellant. When the second appellant was apprehended by the police he readily admitted that he gave the stuff to the first appellant, with instructions to burn the stuff. For this reason counsel submitted that his client could not be convicted of possessing narcotic drug under section 21 of PNDCL 236. He however, abandoned this ground and referred to the sentence. Counsel further submitted that the sentence was too harsh and prayed for a reduction. The appellant, he submitted, was a young man with three children and a wife. This was his first brush with the law and therefore entitled to a lesser sentence.

For the second appellant, it was submitted that the evidence adduced by the prosecution does not support a charge of supplying narcotics under section 6 (1) of PNDCL 236. Counsel submitted that the offence of supplying narcotics as laid under section 6 (1) connotes the exchange of narcotics for money, or valuable Consideration. Thus where there is no exchange of money or her valuable consideration for the narcotics drugs, then there has been no supply within the terms of section 6 (1) of PND CL 236.

[p.776] of [1997-1998] 2 GLR 768

Counsel also submitted that the evidence of the prosecution witness was erroneously admitted in evidence because it was a confession and should have been made in the presence of the independent witness in accordance with section 120 of the Evidence Decree, 1975 (NRCD 323). Counsel submitted that the tribunal erred in not giving reasons for its decision and therefore the conviction and sentence must be set aside.

It was also submitted that the sentence of fifteen years was too harsh particularly sinpce the appellant was a first offender and the section under which he was convicted makes provision for a lesser sentence and the imposition of a fine.

The issues before this court are matters of fact which can be resolved by the evidence on the record. The house of the first appellant was searched and 16,320 grammes of Indian hemp were found there. The first appellant told the security agents that the stuff was given to him by the second appellant. He therefore took the police to the house of the second appellant who admitted that he gave the Indian hemp to the first appellant. He however, explained that the drugs were left in his garage by one Wofa Yaw from Wenchi and that he in turn handed them over to the first appellant for destruction because he lived near an incinerator. These are the bare facts which are not in dispute.

Can these facts support the charges of possessing narcotic drug without lawful authority and supplying narcotic drug without lawful authority respectively, against the two appellants? For the first appellant, the facts are not in dispute that he was found with 16,230 grammes of Indian hemp. He had no lawful authority to possess these drugs and therefore commits an offence undeir PNDCL 236, s 2 (1) and (2). For the second appellant, it has beer submitted that he did not supply the narcotic drug within the meaning of section 6 (1) because, he did not receive any money ¢1or valuable consideration for the drug.

The question is, what does the act mean by “supply”? The ordinary meaning of the word supply according to Thorndike English Dictionary is: “Furnish, provide . . . ” The relevant section 6 (1) of PNDCL 236 reads: “Any person who without lawful authority, proof of which shall be on him, supplies any narcotic drug to any person commits an offence.” Applying the ordinary) meaning to the section, it simply means anyone wflho without lawful authority, proof of which shall be on him, provides or furnishes any narcotic drug to any person comm its an offence.

[p.777] of [1997-1998] 2 GLR 768

Now did the second appellant provide or furnish the first appellant with any narcotic drug? Yes, he did. It will be unreasonable to hold that a person who supplies narcotic drug to another person without taking money for the drug, commits no offence, while the person who sells the drug commits an offence. I hold that it is not necessary to show that there was valuable consideration, before supplying a narcotic drug will be unlawful. Whether or not there was a monetary consideration is irrelevant to the charge of supplying narcotic drug without lawful authority.

The evidence on record showed that it was the second appellant who supplied the 16,320 grammes of Indian hemp to the first appellant. His explanation that he gave the drugs to the first appellant for destruction is no defence to the charge of supplying narcotic drug without lawful authority. For that reason, I shall not disturb the findings of the tribunal in convicting the second appellant of the charge of supplying narcotic drug without lawful authority.

On the question of admitting a confession without the presence of an independent witness, it is my considered opinion that the evidence was properly admitted. The evidence given by the first, second and third prosecution witnesses cannot be said to be hearsay evidence, because, this is the evidence of the policemen who conducted the search at the premises of the first appellant. They also conducted investigations as to how the appellants came by the drugs. Thus they told the court what they heard and what they saw. This cannot be hearsay evidence.

Section 51 of the Evidence Decree, 1975 (NRCD 323) reads as follows:

“51. (1) For the purpose of this Decree, ‘relevant evidence’ means evidence, including evidence relevant to the credibi lity of a witness or hearsay declarant, which makes the existence of any fact that is of consequence to the determina tion of the action more or less probable than it would be without the evidence.

(2) All relevant evidence is admissible except as otherwise provided by any enactment.

(3) No evidence is admissible except relevant evidence”

[p.778] of [1997-1998] 2 GLR 768

It is my considered opinion that under section 51 of NRCD 323, the evidence of the first, second and third prosecution witnesses are relevant and therefore admissible.

On the question of the tribunal not giving reasons for its decision, we have to look at the provisions in the Criminal Procedure Code, 1960 (Act 30) for guidance. Section 177 of Act 30 provides that the court “shall give its decision in the form of an oral judgment and shall record the decision briefly together with the reasons for it, where necessary.” (The emphasis is mine.) My view of section 177 is that where the evidence adduced before the court is simple and uncomplicated, it will not be necessary for the court to give its decision. That is why the section states, “where necessary.”

In this case, the evidence before the court was quite simple. The appellants were found with narcotic drugs and were unable to give lawful excuse for their possession. It is my considered opinion that the court need not give any reasons for convicting the appellants on the face of the record.

With regard to the sentence of fifteen years’ imprisonment with hard labour of each appellant, I think it is on the high side considering the character and youth of the offenders. The first appellant is aged 27 at the time he was convicted in November 1997, while the second appellant is aged 37.

The minimum sentence for possessing narcotic drug is ten years. I shall set aside the sentence of five years’ imprisonment with hard labour and substitute a sentence of ten years for the first appellant.

The minimum sentence for supplying narcotics, for some very strange and inexplicable reasons, is five years. One would have thought that the person who supplies the drug must be dealt with more severely than the one in possession. Having reduced the sentence of the first appellant from fifteen years, it will be inequitable to reduce the sentence of the second appellant to anything below ten years, particularly since he supplied the narcotic drug to the first appellant. I shall therefore reduce the sentence of the second appellant from fifteen years’ imprisonment with hard labour to ten years’ imprisonment with hard labour.

The appeal against the conviction is therefore dismissed, while the appeal against the sentence is allowed. The appellants are hereby sentenced to ten years’ imprisonment with hard labour each.

[p.779] of [1997-1998] 2 GLR 768

Afreh J A. I agree that the appeals of the appellants should be dismissed and I only want to make a few comments on the submissions made by Mr Arhin, counsel for the second appellant, and one other matter.

Mr Arhin submitted that the offence of supplying drugs under section 6 (1) of the Narcotic Drug (Control, Enforcement and Sanctions) Law, 1998 (PNDCL 236) connotes the exchange of narcotic drugs for money. He based this submission on the wording of section 6 which is:

“6. (1) Any person who without lawful authority, proof of which shall be on him, supplies narcotic drug to any person commits an offence.

(2) Any person who without lawful excuse buys narcotic drugs commits an offence.

(3) A person who commits an offence under subsection (1) or (2) of this section shall on conviction be liable imprisonment for a term of not less than five years.”

He argued that since the word “buy” in subsection 2 means aquisition of spomething by the payment or the promise of payment of a sum of money the word “supply” should also be interpreted to mean the receipt of payment or promise of payment of a sum of money in exchange for something, because the two words should be regarded as being used in directly opposite senses. He supported his argument by reference to the side note to section 6 of PNDCL 236 which states: “Offence to supply or buy narcotic drugs.”

I do not see why “supply” should be given any other meaning than its ordinary meaning, which is to furnish with something that is required; to make available or provide something that is desired or lacking: see Collins English Dictionary (2nd ed), p 1530. The legislator intended to proscribe the furnishing or provision of or making available narcotic drugs to others. A person who gives a gift of narcotic drugs is as culpable – —or dangerous to society —as the one who sells it because drugs have the same effect whether they are sold or gifted. So I do not think we should imply exchange of money for drugs in section 6 (1) of PNDCL 236.

With regard to the reference to the side note, it is trite learning that when the words of an enactment are clear there is no need to resort to the side note as an aid to interpretation. In this case there

[p.780] of [1997-1998] 2 GLR 768 is need to refer to the side note because the meaning of section 6 is clear.

Counsel also submitted that the evidence of prosecution witnesses as to what the appellant said when he was arrested should have been excluded because it amounted to a confession and there should have been an independent witness. If counsel is nright, then police enquiry into crime would be almost impossible because the police would refrain from asking questions for the fear that a person may admit something in the first phase of their investigation when they are trying to identify who is responsible for the offence or following up leads. What the police did in this case at the stage their investigation had reached was in conformity with established police practice and rules of the Judge’s Rules, 1964 (reproduced in Amissah, Criminal Procedure in Ghana at p 309). In. my view they could testify at to what happened when they went to second appellant’s house.

Even if the evidence was wrongly admitted, it is now too late to ask for it to be excluded. The objection should have been raised at the trial. The second appellant was represented by counsel. He failed to object when the evidence was being tendered. It is now too late to raise it in this court: see section 6 of NRCD 323. If it was wrongly admitted, there has been no substantial miscarriage of justice. The second appellant’s statements to the police which have not been objected to contain enough evidence to convict the second appellant out of his own mouth.

The last major ground of the second appellant was that no reasons were given for conviction. He submitted that under section 177 (1) of the Criminal Procedure Code, 1960 (Act 30) in every summary trial reasons for the court’s decision should be given. It is not safe for a trial judge to give judgment without reason in an untried area like the offence of supply of drugs. Therefore, he submitted, judgment and conviction should be set aside and judgment of acquital substituted. In support of his submissions counsel relied on Quaye v Mariamu [1961 1GLR 93, SC (a civil case) and R v Sarpong [1959] GLR 383, CA a case on the duty of a judge in a trial with the aid of assessors to give reasons for his judgment.

No one can dispute that it is desirable that a court gives reasons for its judgment. In a trial with the aid of assessors, section 285 of Act 30 requires that the judge shall in every case record his judgment in writing,; and in every case the judgment shall contain

[p.781] of [1997-1998] 2 GLR 768 the point or points for determination, the decision thereon and the reasons for the decision. In R v Sarpong (supra) cited by counsel for the second appellant, and Mensah and Ankrah v The State [1961] GLR 64, SC and other cases the courts have held that under that provision it is mandatory to give reasons for the judgment of the judge in a trial with assessors.

But the provision applicable to decisions in a summary trial is section 177 (1) of Act 30. It provides:

“177. 1 The Court, having heard what each party has to say and the witnesses and evidence so adduced, shall consider and determine the whole matter and may either convict the accused and pass sentence upon or make an order against him according to law or acquit him, as the case may be, and the Court shall give its decision in the form of an oral judgment, and shall record the decision briefly together with the reasons for it, where necessary.”

(The emphasis is mine.) The predecessor of this section, section 173 of Cap 10, was interpreted by the Court of Appeal in Commissioner of Police v Asamoah (1958) 3 WALR 458, CA. The court said at 459: “In our view reasons for a decision are necessary where there is a conviction unless the reason is so clearly obvious and beyond doubt that guilt can be inferred from the facts and circumstances of the case. If, however, in any case the reason for a decision is not so obvious to an appellate court then the trial court has erred in not recording its reason. We should remember that what may appear obvious to a magistrate or a judge may not appear to be so to the public. Nobody likes a decision against him, more especially in a criminal matter, if it is given summarily without a reason.”

So where the reason for the conviction is obvious, it is not necessary to record it.

In this case the reason for the conviciton were clearly obvious and beyond doubt. The guilt of the second appellant could be inferred from the facts and circumstances of the case. He had admitted giving (supplying) the drugs to the first appellant. All that the trial court had to do was to apply the law to the facts, which it did. So there was no error. There is no merit in the appeals against conviction and they should be dismissed.

[p.782] of [1997-1998] 2 GLR 768 But there is one other matter on which comment is required. On 9 June 1997 the first appellant failed to appear in court. The court ordered that the surety for the first appellant be produced on 11 June 1997, if the first appellant could not be traced. Neither the surety nor first appellant attended court on that date. The surety, a lady, appeared the following day (12 June 1997). She informed the court she was induced by the investigator to sign the bail bond. The record of the proceedings shows’ the following entry: “By Court: The surety is in court. The court grant her bail in the sum of ¢20 million with two sureties to be justified. The investigator is to be arrested and brought to court on 25 June 1997.”

The record for the next adjourned date 25 June 1997 shows this decision:

“The court granted the surety of the first accused bail with two sureties to be justified. Today the court took a look at the papers purporting to be the title documents to a property she wanted to be used as justification for her bail. The court is not satisfied with them and consequently the first surety who stood surety for the first accused will be kept in custody till proper documents are produced.”

On 7 July 1997 the court ruled:

“On the 25 June 1997 the surety of the accused (sic) Victoria Gborbitey was remanded because she could not produce the first accused for who she stood surety and could not meet the bail conditions. The case was adjourned to 10 July 1997 for hearing but today the first accused has been produced. By court: The surety is hereby discharged and the bail bond revoked. The first accused is remanded in custody.”

The court did not indicate under what law the first surety was remanded in custody or why she was treated as if she had committed an offence. Apparently, the court thought that when an accused person absconds his surety immdiately becomes criminally liable. If that was what the court thought, it erred.

A bail bond or recognisance entered into by a surety is a contract between the surety and the State: see Daswani v Commissioner of Police [1964] GLR 52. If it is breached by the accused absconding or failing to appear in court when rcequiirecd,

[p.783] of [1997-1998] 2 GLR 768 the procedure set out in section 104 of Act 30 should be followed. Under this provision whenever it is proved to the satisfaction of a court that a recognisance had been forfeited, the court should record thee grounds of proof and may call upon any person bound by the recognisance to pay the penalty attached or to show cause why it should not be paid. Normally it is for the police to institute proceedings to claim the penalty attached to the recognisance. It is at this stage in the nature of a civil claim. If sufficient cause is not shown and the penalty is not paid, the court may proceed to re cover it by forfeiting any sum deposited in pursuance of section 99 of Act 30 or by issuing a warrant for attachment and sale of the movable property belonging to such person or his estate if he is dead. It is only if the penalty is not paid and cannot be recovered by attachment and sale that the person bound by the recognisance shall be liable, by order of the court which issued the warrant, to imprisonment without hard labour for a term which may extend to six months.

So in this case, when the first appellant did not appear, the first process that should have been taken against the surety was an action to recover the penalty attached to the recognisance she had entered into. If the court was not satisfied with the surety, the thing to do was to vary the recognisance under section 100 of Act 30. Meanwhile, the court would take steps to secure the apprehension of the accused.

In this case the trial court seems to have been oblivious of the provisions of Act 30 and regrettably wrongly kept a citizen in prison for one month. It is hoped that such elementary errors will be avoided by trial courts.

On the question of sentence, I agree with with my brother Baddoo JA that they should be reduced to ten years’ imprisonmenit with hard labour, each.

Appeal dismissed.

LSNA