TETTEH ASAMADEY ALIAS OSAGYEFO AND ANOTHER v. COMMISSIONER OF POLICE [1963] 2 GLR 400

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 7TH NOVEMBER, 1963

BEFORE: SOWAH J.

 

CASES REFERRED TO

(1) R. v. Kamara (1942) 8 W.A.C.A. 95

(2) R. v. Kumi (1947) 12 W.A.C.A. 292

[p.401] of [1963] 2 GLR 400

NATURE OF PROCEEDINGS

APPEAL against sentence entered by the District Court, Accra, for conviction for the offences of pretending to be public officers and fraud by false pretences. The facts are set out in the judgment.

COUNSEL

P. A. Adjetey and Nartey for the appellants.

S. S. Okunor, Assistant State Attorney, for the respondent.

JUDGMENT OF SOWAH J.

The appellants were on the 20th June, 1963, each convicted and sentenced to six months imprisonment for pretending to be public officers and six months imprisonment for defrauding one Salifu Dagomba, the sentences to run consecutively in the two cases.

Unfortunately, the learned magistrate did not record the facts given by the prosecution after the plea of guilty, and which facts must have influenced him to impose such severe sentences. I am of the opinion that it is incumbent upon a magistrate to record the facts of the offence as given by the prosecution after a plea of guilty, because it is on those facts that the severity or otherwise of sentence depends. Furthermore a convicted person entitled to appeal against his sentence even though he had entered a plea of guilty. An appellate court can only properly deal with such an appeal when the facts have been recorded. In this case however the facts of the case sufficiently show up in the two counts. In the first case, the appellants were in the first count charged with pretending to be public officers who under such colour arrested one Salifu Dagomba. The second count shows that the pretence was assumed in order to defraud the said Salifu Dagomba on the sum of £G2.

Counsel for the appellants submitted that in such a case the procedure to be followed in imposing sentence is outlined in sections 302 and 303 of the Criminal Procedure Code, 1960.1 In my view where a person does several acts each of which is an offence in itself, but where the acts were done in the execution of one grand design, the prosecution could elect to charge the accused person with only the main act which is the end result of the several criminal acts, and if the accused is convicted the court is entitled to have regard to the other acts in imposing sentence. Where, however, the prosecution elects to charge the person with the several acts in the same indictment or summons, then even though the person is found guilty of each of the several acts, the sentence on each count must run concurrently with sentences in other acts. In this connection I will refer to the case of R.v. Kamara.2 The appellants in that case were charged with : (a) conspiracy to commit an offence, to wit to set fire to houses, (b) being riotously assembled together they demolished several houses, and (c) being riotously assembled together they demolished the house of one Amber Scott.

[p.402] of [1963] 2 GLR 400

It was held that all the three counts relate only to one act or set of acts, and that there had been only one offence committed, and therefore the sentences should run concurrently and not consecutively. See also R. v. Kumi.3 In my view the main purpose of the pretence of being a public officer was to defraud the complainant in this case.

In the second case, learned assistant state attorney has argued that the acts done by the appellants were not in respect of or against one person, but that the accused persons pretended to be public officers and under this colour arrested Robert Abadzi for being in possession of Indian hemp. He submitted that the person defrauded was not the said Robert Abadzi but another person. The offences could not, therefore, be said to be against or in respect of one person.

I am of the view that the main purpose for pretending to be a public officer was to be able to extort money from the person arrested or from any person who would be able to pay on his behalf. The several acts were in respect of one person and the acts were as follows: The appellants pretending to be public officers arrested one Robert Abadzi for the offence of possessing Indian hemp. Then as such public officers they contacted the mother of Robert Abadzi, and told her that they would refrain from arresting her son if she gave them the sum of £G5. It appears to me that the main purpose of the exercise by the accused persons in assuming to be public officers was to be able to extort money from the mother of Robert Abadzi or whoever would pay on his behalf the sum of £G5.

In my view though the appellants committed several offences, the offences were all committed in respect of one person, namely, Robert Abadzi. Accordingly, I hold that the magistrate was obliged by law to impose sentences to run concurrently. For these reasons I will vary the sentences in both cases to read as follows: each accused person is sentenced to six months imprisonment on both counts, sentences to run concurrently and not consecutively.

DECISION

Sentences varied.

Sentences to run concurrently.

K. T.