KWABENA ADUSEI vs. THE REPUBLIC [2018]DLCA5183

Date	2018-07-11
Suit No.	SUIT NO.: H2/11/2018
Citation No.	[2018]DLCA5183

ADJEI J.A

LOVELACE-JOHNSON J.A

TORKORNOO J.A

ROBERT KINGSLEY YEBOAH FOR APPELLANT

SETH AWERE-OPANYI YENA (SSA) FOR THE REPUBLIC RESPONDENT

[2018]DLCA5183
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													<main id="main" class="content" style="min-height: 60rem" >KWABENA ADUSEI<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 (CRIMINAL DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO.: H2/11/2018&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 11TH JULY,
2018<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ROBERT KINGSLEY YEBOAH FOR
APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SETH
AWERE-OPANYI YENA (SSA) FOR THE REPUBLIC RESPONDENT<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ADJEI
J.A, LOVELACE-JOHNSON J.A, TORKORNOO J.A<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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</div>ADJEI,
J.A:<o:p></o:p>The Appellant was charged
with two counts of offence and was arraigned before the High Court, Accra. The
two counts of offence preferred against the Appellant before the trial High
Court were possession of narcotic drug without lawful authority contrary to sections
2(1) and (2) of the Narcotic Drug (Control, Enforcement and Sanctions) Law
1990, PNDCL 236 and attempted exportation of narcotic drug without licence,
contrary to section 11(1) and 56 (a) of the Narcotic Drug (Control, Enforcement
and Sanction) Law 1990 PNDCL 236. The Appellant before the trial High Court pleaded
not guilty to both counts and the case proceeded to trial. After the trial, the
High Court convicted the accused of both counts of offence and sentenced him to
ten years imprisonment to run concurrently.<o:p></o:p>The Appellant dissatisfied
with the sentence imposed on him by the trial&nbsp;
High Court&nbsp; applied for leave&nbsp; to this Court to file an appeal&nbsp; against sentence. Pursuant to the leave
granted by this Court, the Appellant filed his notice of appeal on 6th
December, 2017.<o:p></o:p>The brief facts of the
case as presented before the trial High Court were that the Appellant&nbsp; was a driver by profession and&nbsp; lived in Italy. On 8th September,
2009, the Appellant was arrested at the Kotoka International Airport by the
officials of the Narcotic Control Board (NACOB) on suspicion&nbsp; of having ingested Narcotic drugs. A field
test of urine was conducted by the officers of the Narcotic Control Board on
the Appellant which proved positive for heroin. On interrogation, the Appellant
confessed to having swallowed sixty-five pellets of heroin. The Appellant
subsequently expelled all the sixty-five pellets of heroin when he was kept
under observation.<o:p></o:p><o:p>&nbsp;</o:p>The Appellant was first
arraigned before the trial High Court on 8th September, 2009. The
Appellant pleaded not guilty to both counts of offence. The Appellant was
remanded into prison custody until he was convicted&nbsp; on 14th December,2012. The
Appellant’s main concern is that the&nbsp;
trial High Court Judge failed to take into account the period of three
years three months he spent in lawful custody in respect of the two counts of the
offence preferred against&nbsp; him until the
completion of the trial. The two grounds of appeal contained in the notice of
appeal filed by the Appellant against his sentence are as follows:<o:p></o:p>“1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the trial High Court failed to consider
in its judgment the period of Three (3) years three months (3) the
Appellant&nbsp; had spent in Prison/Police
Custody upon his&nbsp; arrest prior to his
subsequent conviction on the 24th December, 2012 before sentencing
to Ten (10) years I.H.L.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the failure of the trial High
Court to consider and factor the period the&nbsp;
Appellant had spent in custody prior to his conviction and sentencing is
an&nbsp; apparent error of law which has
occasioned substantial&nbsp; miscarriage of
justice&nbsp; against the Appellant in the
circumstances”.<o:p></o:p>The prayer&nbsp; for the Appellant is that the ten years
sentence imposed on him shall take effect from 8th September,200</main>