RAYMOND WIREDU YEBOAH vs. THE REPUBLIC [2014]DLCA5017

Date	2014-04-10
Suit No.	CRIMINAL APPEAL: NO. H2/10/2013
Citation No.	[2014]DLCA5017

APALOO J.A (PRESIDING)

ADUMUA OSEI J.A

SOWAH (MRS) J.A

[2014]DLCA5017
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													<main id="main" class="content" style="min-height: 60rem" >RAYMOND WIREDU YEBOAH<o:p></o:p>(APPELLANT)<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>(RESPONDENT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CRIMINAL APPEAL: NO. H2/10/2013&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; APRIL
10, 2014<o:p></o:p>

</div>CORAM:<o:p></o:p>APALOO J.A
(PRESIDING), ADUMUA OSEI J.A, SOWAH (MRS) J.A<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoBodyText" align="center" style="text-align:center;line-height:115%;
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</div>SOWAH, J.A.<o:p></o:p>The
facts upon which the appellant was arraigned before the trial court were as
follows:<o:p></o:p>“The
accused Raymond Wiredu Yeboah is a Belgium of Ghanaian origin but residence
[sic] in UK. On 28th June 2008 at about 8.30 pm the accused arrived
at Kotoka International Airport to board a KLM flight to Amsterdam. While going
through pre-boarding formalities, he was suspected by operatives of NACOB on
duty of carrying narcotic drugs in his stomach. When accused was interrogated,
he confessed to having swallowed narcotic substances. He was arrested put under
observation where he expelled 75 pellets of whitish substances suspected to be
cocaine. During the interrogation he stated that he had received the drugs from
one Jeffery, a Ghanaian to be delivered to unnamed person in Amsterdam for a
fee of 3,800 Euros. He has however failed to assist the police arresting the
said Jeffery who gave him the drugs. The exhibits were sent to Ghana Standard
Board for analysis and it tested positive for cocaine.”<o:p></o:p>On
these facts the appellant was charged on two counts with Attempted Exportation
of Narcotic Drugs contrary to section 1(1) and section 56(a) of the Narcotic
Drugs (Control, Enforcement and Sanctions) Act 1990 (PNDCL 236) and Possession
of Narcotic Drugs, contrary to section 2(1) of the Narcotic Drugs (Control,
Enforcement and Sanctions) Act 1990 (PNDCL 236).<o:p></o:p>He
pled not guilty when he was first arraigned on 7th February 2012 but
subsequently on 2nd March 2012 whilst represented by counsel, he
changed his plea to guilty on both counts and he was duly convicted on his own
plea. His counsel made a statement in mitigation, reminding the court that the
incident had happened in 2008. He was sentenced to 10 years imprisonment on
each count to run concurrently. <o:p></o:p>The
appellant filed the notice of appeal on 18th December 2012 against
the whole decision of the court with the following two grounds of appeal:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
The
trial judge erred when he convicted the appellant for possession<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
The
trial judge erred when he did not consider the period that the appellant has
spent in lawful custody.<o:p></o:p>In
his written submissions in respect of the first ground of appeal, the
appellants counsel contends that on the facts of the case, the appellant was hired
to deliver the drugs to a recipient in Amsterdam; therefore the trial judge
erred in convicting him of “possession” instead of “supply”. <o:p></o:p>Although
not one of the stated grounds of appeal, counsel also argues that as the
appellant had not gone through any export processes, there was no factual basis
to charge him with attempted exportation of narcotic drugs when he had only
been hired to supply the drugs to someone in Amsterdam. <o:p></o:p>It
is provided by the Narcotic Drugs (Control, Enforcement and Sanctions) Act 1990
(PNDCL 236) as follows:<o:p></o:p>Section
1—Importation and Exportation of Narcotic Drugs.<o:p></o:p>(1)
Any person who imports or exports any narcotic drug without a licence issued by
the Secretary for Health for that purpose commits an offence and shall on
conviction be liable to imprisonment for a term of not less than ten years.<o:p></o:p>Section
2—Prohibition on Possession of Narcotic Drugs.<o:p></o:p>(1)
Any person who, without lawful authority, proof of which shall be on him, has
in his possession or under his control any narcotic drug commits an offence.<o:p></o:p>(2)
Any person found guilty of an offence under subsection (1) shall on conviction
be liable to imprisonment for a term of not less than ten years.<o:p></o:p>Section
6—Offence to Supply or Buy Narcotic Drugs.<o:p></o:p>(1)
Any person who without lawful authority, proof of which shall be on him,
supplies any narcotic drug to any person commits an offence.<o:p></o:p>(2)
Any person who without lawful excuse buys narcotic drugs commits an offence.<o:p></o:p>(3)
A person who commits an offence under subsection (1) or (2) of this section
shall on conviction be liable to imprisonment for a term of not less than five
years.<o:p></o:p>The
question is whether the facts to which the appellant pled guilty could sustain
a charge of possession. Had the appellant not pleaded guilty, the prosecution
would have been required to prove the ingredients of unlawful possession,
namely, establishing that he had been found in physical possession of a
narcotic drug and that he had knowledge of his possession of it.&nbsp; See: Amartey vs. The State [1964] G.L.R. 256,
S.C, Akosah vs. Republic [1979] GLR 250 <o:p></o:p>