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PETRIDES, C.J., GOLD COAST, DOORLY AND MARTINDALE, JJ.
Read by DOORLY, Ag. C.J.
On the 18th November, 1942, the trial Magistrate sentenced the appellants each to nine months’ imprisonment with hard labour for an offence under section 159 (1) of Cap. 9, that is punishable in the first instance with a fine only and not with imprisonment, immediately after he had pronounced this sentence in Court, counsel for the defence drew his attention to the error and he adjourned the matter for consideration until the next day. Having apparently made up his mind that the decision was of an urgent character, the Magistrate returned to Court shortly after he had left the Bench on the day on which he sentenced the appellants to imprisonment and in their presence amended the previous illegal sentence to one of fine of £20, in default distress and failing that, three months’ imprisonment with hard labour, a sentence that was legal under the provisions of section 159 (1) of Cap, 9.
In first appeal the Judge held that the original sentence was ultra vires and he also held that the Magistrate had no power to review his sentence and that therefore the amendment of the sentence was also illegal. Acting, however, under the powers conferred upon him by section 319 (1) (a) (ii) of the Criminal Procedure Code, the Judge in first appeal ordered that the finding of guilty should stand and that the sentence be that each accused pay a fine of £20 and in default of payment, undergo three months’ imprisonment with hard labour.
At the close of this appeal we intimated that in our view the trial Magistrate was justified in altering the sentence and we indicated that we should give reasons for this decision at a later date.
The Judge in first appeal has held that a Magistrate has no power to review his own judgment, but we think the question here is rather whether the Magistrate in the circumstances of this case was entitled to alter a sentence when its illegality was pointed out to him.
A Judge at Assizes in England has the power of altering a sentence at any time before he leaves the county on the termination of the business of the Assize. This power is recognized as applying to the Judges of Assize in the Gold Coast. In the King versus the Justices of Leicestershire (1 M. and S. 443) 105 E.R. 165, Lord Ellen borough said “If any error was made in the entry by “the clerk of the peace that error should have been pointed out at “the sessions while the Court was sitting, and competent to reform “its own errors and to draw out a more correct judgment “.
This is exactly what was done before the trial Magistrate. No sooner had be pronounced an illegal sentence than his error was pointed out to him and he took note of it adjourning the matter to the following day. This order for adjournment is clear proof that the matter of sentence was still under consideration. The Magistrate’s subsequent action in returning to Court the same day and correcting his error is further proof that there was no intention on his part that the illegal sentence should he a final sentence of his Court. By no means can it be said that this sentence in the circumstances in which it was pronounced was one that had been solemnly entered on the record so as to be final and unalterable. The word “record” in English Criminal Procedure has a significance entirely different from the record of the evidence kept by a Magistrate in the Gold Coast. The solemn form of judgment or conviction is set out in Archbold 30th Edition, at page 230. That is a formal document drawn up after the conclusion of the trial and that is the record to which reference is made.
The decision of the Privy Council in the King versus Lawrence 1933 A.C. 699, has been cited by counsel for the appellants, but in that decision their Lordships stated that where the first sentence was invalid and the altered sentence was passed in circumstances in which the Judge had no possible jurisdiction to pass any sentence, it appeared that there was no sentence at all which could be amended by an appellate Court. Even so their Lordships did not finally decide whether the case could have been remitted to the appellate Court for the sentence to be amended, but merely stated that in the circumstances of the case before them they were of opinion that no such order should be made.
In the case now under consideration we have held that the circumstances were such that the trial Magistrate was entitled to alter his sentences to bring them into conformity with law.
Even if that were not so, the King versus Lawrence is not an authority for the proposition that in the circumstances of this case the appellate Court had no power to amend the sentence to bring it into compliance with the law, while Rex versus Cassey (XXIII. Criminal Appeal Reports 193) is direct authority that the appellate Court has such a power. A sentence of hard labour imposed by the Supreme Court of Sierra Leone for an offence not punishable with hard labour was amended in Rex versus Thomas on 24th October, 1942. [8 W.A.C.A. p. 135].
For these reasons we upheld the altered sentence imposed upon the appellants by the trial Magistrate.