Rex V. J. A. Kumi & Anor (1947)
LawGlobal Hub Judgment Report – West African Court of Appeal
Criminal Law—Information containing four counts—Sentences on more thanone count—Gold Coast Criminal Code, section 83—False pretences—Gold CoastCriminal Code, sections 18 and 39.
Section 83 of the Gold Coast Criminal Code empowers the imposition of concurrent sentences on each count of an information where the crimes were committed in the execution of one criminal purpose.
By reason of the provisions of sections 18 and 39 of the Gold Coast Criminal Code, the fact that a person accused of obtaining money by false pretences intends at some future date to return the money or the money’s worth is no defence.
Case referred to:
(1) R. v. Kamara & Others, 8 W.A.C.A. 95.
Appeal from the Supreme Court of the Gold Coast.
Benjamin for Appellants.
Manyo-Plange, Crown Counsel, for Crown.
The following judgment was delivered:
Harragin, C.J. The appellants in this case were charged on four counts:—
- Conspiracy to forge a document;
- Forgery;
- Uttering forged document; and
- Fraud by false pretences.
The first appellant has been convicted and sentenced to twelve months’ imprisonment with hard labour to run concurrently on counts 1 and 2. The second appellant has been convicted on all four counts and sentenced to twelve months’ imprisonment with hard labour on each count to run concurrently.
It is against these convictions that they appeal to this Court.
The facts which were satisfactorily proved were to the effect that the second appellant, being an illiterate and anxious to raise money, together with the first appellant forged a certain document and particularly the mark of Kwaku Birikorang at the end of the document which purported to authorise the second appellant to mortgage a house, the property of the Nyege Family of which Birikorang was the sub-chief.
On this document the second appellant approached the virtual complainant in an endeavour to raise £100 with which to enter into some cocoa buying venture. The lady being a little suspicious only in fact advanced £20. Later she met and interviewed Birikorang and discovered that the whole transaction was fraudulent and the matter was handed over to the police.
It should be noted that, in the meanwhile, the second appellant had bought some cocoa with the money advanced to him and had properly accounted to the virtual complainant for the cocoa.
There were many grounds of appeal argued but there is no merit in any of those based upon the facts proved in this case. There are, however, two points of law raised with which we consider it necessary to deal. The first is to the effect that the second appellant cannot be convicted on count 4 (fraud by false
pretences) because the learned judge and the assessors found as a fact that the appellant had the intention ” that this money (2O) should be repaid in cocoa worth “.
Had this case been tried according to the law in force in England there might have been much to be said for this argument but, unfortunately for the appellants, the law has been codified in this country and section 18 of the Criminal Code (Cap. 9) reads as follows:—
” For the purposes of any provision of this Code by which any forgery, falsification, or other unlawful act is punishable if used or done with intent to defraud, an intent to defraud means an intent to cause, by means of such forgery, fakification, or other unlawful act, any gain capable of being measured in money, or the possibility of any such gain, to any person at the expense or to the loss of any other person.”
And section 39 reads as follows:—
” A person is guilty of defrauding by false pretences if, by means of any false pretence, he obtains •the consent of another person to part with or transfer the ownership of anything of which the crime of stealing can be committed.”
In this case there is not the slightest doubt that by means of the false pretence (i.e. by pretending that he had authority to mortgage the family house) the second appellant obtained the consent of the lady to transfer the ownership of her £20 to the appellant and the fact that he intended, at some future date, to return the money or the money’s worth in the shape of cocoa does not excuse him from the mischief of the section.
The last legal point raised by Counsel for the appellants was to the effect that, as the several crimes set out in the different counts of the Information were committed in execution of one criminal purpose, there should have been only one sentence and the appellants should not have been sentenced on each count. –
In support of this argument he quoted the case of R. v. Kernare & Others (1) which, even if it could be quoted in support of this argument, has no value in the case now before us, which is being dealt with under the Code, whereas in Kamara’s case it was a question of English law.
Section 83 of the Criminal Code (Cap. 9) makes it perfectly clear that the Court may impose a sentence with regard to each count but that where the crimes set out in the counts were carried out in execution of one criminal purpose, the sentences should run concurrently and not consecutively.
The appeals are dismissed.
Appeals dismissed.