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JUDGMENT
ADINYIRA (MRS) JSC-
FACTS
On 10th July 2006,
Frimpong Badu (Appellant)
arrived at the Kotoka
International Airport to board a
KLM flight to Amsterdam. While
undergoing pre-boarding
formalities, he was arrested by
officials of the Narcotic Drugs
Control Board on duty at the
airport, on suspicion of
possessing narcotic drugs on his
body. He was taken to the 37
Military Hospital for an X-ray
examination which proved
negative. Appellant was taken
back to the Airport by the
officials to conduct a search of
his hand luggage. Four parcels
of powdery substance suspected
to be narcotic drug were found
concealed in a small green bag
that the Appellant was holding
along with his Puma carry-on
bag. A test conducted by the
Ghana Standards Board proved
that the substance was cocaine
weighing 1, 656, 8215 grammes.
The Appellant claimed the green
bag was given to him at the
Airport by one Kenny to be given
to a mutual friend Marvin in
Holland saying it contained
personal effects left by Marvin
at home.
Appellant was subsequently
charged and tried on two counts
of:
1)
Attempted exportation of
Narcotic Drug and
2)
Possession of Narcotic Drug
Contrary to sections 1(1) and
2(1), respectively, of the
Narcotic Drug (Control,
Enforcement and Sanctions) Law,
1990 (PNDCL. 236)
The Appellant was tried and
convicted by the High Court on
25th September 2008,
and was sentenced to a term of
twelve (12) years IHL on each
count to run concurrently. The
Appellant was held in custody
without bail from the day of his
arrest on 10th July
2006 to his sentence on 25th
September 2008.
On 4th March 2009,
the Court of Appeal affirmed the
decision of the High Court. The
Appellant being dissatisfied
appealed to the Supreme Court
against the sentence of twelve
(12) years IHL on the grounds
that:
a.
The sentence of twelve (12)
years IHL imprisonment imposed
on the Appellant by the Trial
Court was excessive under the
facts and circumstances
(evidence) of the Case and the
Honorable Court of Appeal erred
in affirming that excessive
sentence.
b.
The Trial Court in imposing a
sentence of imprisonment on
Appellant on 25th
September 2008 and the Court of
Appeal in affirming the decision
of the Trial Court on 4th
March 2010, violated Article
14(6) of the 1992 Constitution
by failing to take into account
the period of time appellant was
held in custody before the
sentence was imposed on him.
The main thrust of Counsel’s
submission was that the learned
trial circuit Judge erred and
violated Article 14(6) of the
1992 Constitution when he
imposed the term of imprisonment
on Appellant without taking into
account the period of two (2)
years and three (3) months
Appellant spent in lawful
custody for the offence before
his sentence. He submits further
that the Court of Appeal also
failed to comply with the said
constitutional provision when it
affirmed the decision of the
Trial Court.
Article 14(6) of the 1992
Constitution provides that:
“Where a person is convicted
and sentenced to a term of
imprisonment for an offence, any
period he has spent in lawful
custody in respect of that
offence before the completion of
his trial shall be taken into
account in imposing the term of
imprisonment.”
Counsel submitted that it is
clear from the language of
article 14(6) that it is
mandatory for the trial court to
take into account the period the
Appellant spent in lawful
custody in imposing the term of
imprisonment; citing Bosso v
The Republic [2009] SCGLR
420 and Kweku Frimpong a.k.a.
Iboman v The Republic,
unreported, Supreme Court
Criminal Appeal No. J3/5/2010,
18 January 2012. He therefore
urged for reduction of the
sentence which he said was harsh
and excessive having regard to
the fact that the Appellant
cooperated during investigations
and the trial and testified
truthfully and was a first time
offender.
The principles of sentencing
have changed. Article 14(6) of
the 1992 Constitution requires
that where a person is convicted
and sentenced to a term of
imprisonment for an offence, any
period he has spent in lawful
custody in respect of that
offence before the completion of
his trial shall be taken into
account in imposing the term of
imprisonment.
So where in this case the trial
judge was disposed to pass a
sentence of 12 years
imprisonment he was mandatorily
required to take into account
the period the Appellant has
spent in custody, and
accordingly declare that it
considered and featured it into
the consideration of the
appropriateness of the sentence
that had been considered fit and
proper for the offence committed
by the Appellant.
In Bosso, supra,
this Court delivered a unanimous
decision pronounced by Wood C.J.
at p.420:
“This clear constitutional
provision enjoins judges, when
passing sentence, to take any
period spent in lawful custody
before the conclusion of the
trial into account. A
legitimate question which might
arise any given case and which
does, indeed arise for
consideration in this instant
appeal is how do we arrive at
the conclusion that this
constitutional mandate has been
compiled with? We believe this
is discernible from the record
of appeal. We would not attempt
to lay down any hard and fast
rules as to the form, manner or
language in which the compliance
should be stated, but the fact
of compliance must either be
explicitly or implicitly be
clear on the face of the record
of appeal.”
In Kweku Frimpong a.k.a.
Iboman v The Republic,
supra this Court
settled on the mandatory nature
of Article 14(6) and further
made it clear that the court’s
compliance with Article 14(6) of
the 1992 Constitution must be
explicitly stated in the
Judgment. This Court went on to
hold that it would be
unconstitutional for a Court to
fail to comply with Article
14(6) of the 1992 Constitution
The Appellant before us was held
in custody without bail from the
day of his arrest on 10th
July 2006 through to the day of
his sentence on 25th
September 2008. It is apparent
on the face of the record that
the trial judge did not make any
reference to the period the
appellant spent in custody
before the trial was concluded
in passing sentence. The trial
judge also made no reference to
the constitutional provision.
There are also no words express
or implied to the effect that it
weighted on the judge’s mind.
This is a clear breach of the
Appellant’s fundamental human
right to have the period spent
in lawful custody featured and
considered before sentence was
passed on him. In the same
manner the learned Justices of
Appeal did not avert their minds
to Article 14 (6). In effect,
the Appellant is to spend 14
years and two and half months in
prison custody for this lapse on
the part of the trial and
appellate courts. This failure
amounts to a grave miscarriage
of justice which this Supreme
Court cannot countenance.
The Office of the Attorney
General filed its statement of
case on 31 November 2015, two
days before judgment, on behalf
of the Republic/Respondent, in
response to these arguments
which in our considered view are
insurmountable; as the
constitutional provision of
Article 14(6) is mandatory
From the foregoing the appeal
against sentence succeeds.
This Court will therefore
consider the period spent by the
appellant in lawful custody to
vary the sentence. From the
records, the Appellant was
arrested on 10 July 2006 for
possessing and attempting to
export narcotic drug without
authority and was remanded into
lawful custody until the 26
September 2008 when he was
convicted and sentenced. The
fact that the Appellant is a
first offender is also a
mitigating factor as urged on us
by Counsel.
Accordingly
the period that the Appellant
spent in lawful custody before
conviction and sentence is taken
into account by this Court by
reducing the sentence of 12
years IHL on each count to 10
years IHL being the minimum
sentence imposed by the Narcotic
Drugs (Control, Enforcement and
Sanctions) Law, 1990 (PNDCL.
236).
The sentence of 12 years IHL is
hereby set aside and substituted
with a sentence of 10 years IHL
on each count to run
concurrently, with effect from
the date of sentence by the
trial court on 26 September
2008.
(SGD)
S. O. A. ADINYIRA(MRS)
JUSTICE OF THE SUPREME
COURT
(SGD)
V. J. M. DOTSE
JUSTICE OF THE SUPREME
COURT
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME
COURT
(SGD)
P. BAFFOE BONNIE
JUSTICE OF THE SUPREME
COURT
(SGD)
A. A. BENIN
JUSTICE OF THE SUPREME
COURT
COUNSEL
KWADWO OWUSU AGYEMANG ESQ. FOR
THE APPELLANT.
MATTHEW AMPONSAH ESQ.
(CHIEF STATE ATTORNEY) FOR THE
REPUBLIC. |
