THE QUEEN v. ZAHID SHAN ALTAF HUSSAIN

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J U D G M E N T

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Power, J. A.:

1. The applicants in this matter faced a charge that they did conspire together to traffic in dangerous drugs. The particulars of the offence were that the two applicants on divers days between the 18th April 1987 and 18th of May 1987 in Hong Kong conspired together with person or persons unknown, one of them was indeed known, to traffic in dangerous drugs.

2. The facts reveal that the 2nd applicant brought drugs from Singapore and the 1st applicant Madam Zahid Shan brought drugs from Karachi. It appears that a man whose name was Abdul Sattar and who has absconded had arranged the whole transaction, and that, after the two applicants and the drugs arrived in Hong Kong, Abdul Sattar met them and made endeavours to sell the drugs. The amount of drugs was substantial, being just under 2 kg.

3. The 2nd applicant now appeals against his conviction and sentence. He has not urged any matter before this court in his appeal against conviction other than to say that the trial judge, presumably he means the jury, erred in accepting the evidence of the prosecution. This is not a matter which can properly be urged before this court. The question of credibility was entirely one for the jury. They clearly accepted the prosecution witness and were satisfied that the 2nd applicant was guilty of the offence of conspiracy. His application to appeal against conviction must therefore be refused.

4. He also has appealed against sentence suggesting that the trial judge failed to take into account the role he played and to contrast it with the more active role in the conspiracy played by Abdul Sattar. He also suggests that the sentence generally was too severe.

5. The trial judge when sentencing him said that the jury had clearly accepted the fact that he had been a party to a scheme under which a large quantity of heroin 2kg had been brought into Hong Kong to be sold. He said that he accepted on the evidence that the applicant's role was that of a courier but he also said that he was satisfied that he was a willing courier who had been prepared to be recruited and who would no doubt have expected a profitable return. He referred to the tariff which applies in Hong Kong and quite correctly indicated that in view of the substantial amount of drugs involved a substantial prison term must be imposed. He accepted that as a foreigner in Hong Kong the applicant would no doubt suffer language difficulties while in prison, and he gave the applicant credit for that.

6. It seems to us clear that the trial judge considered all of the matters that he should have taken into account in favour of the applicant when coming to his decision as to the term of imprisonment to be imposed. Indeed, he went further and wrongly took into account particular hardship as a mitigating factor.

7. Another division of this court in a recent decision in The Queen v. Mohamed Yagoob Raj Mohamed Shipra⁽¹⁾ stated that:

"A man must appreciate, before he commits a crime, that his family will suffer if he is caught and convicted, so must a man who deliberately comes here, i.e. into Hong Kong, to commit a crime, appreciate that any subsequent imprisonment may bear upon him differently and perhaps more harshly than it would upon persons naturally resident within the jurisdiction."

The court was there saying that if a person makes up his mind that he will come to Hong Kong in order to commit a criminal offence then he cannot urge it in, his favour after he is apprehended and convicted of that offence that his imprisonment will work greater hardship on him than it would upon a person ordinarily resident in Hong Kong. Both applicants selected Hong Kong as a place in which to commit their offences. They were apprehended and convicted and they must now face the consequences of their own actions. They cannot urge this court to be lenient towards them because a period of imprisonment will work more harshly upon them than it would upon a resident.

8. The 2nd applicant had all of the matters taken into account that should have been taken into account and the decision of the trial judge to impose the sentence of twelve years was in our view a perfectly proper one. Therefore the application for leave to appeal against sentence is also refused.

9. I turn now to the appeal of the 1st applicant. She appeals against the sentence of six years which was imposed by the trial judge. When sentencing her he took into account all of the matters which he should have and wrongly gave her credit on the ground of particular hardship. She points out, understandably, that since being imprisoned she has had a child and that she is now separated from that child and will see it on only very few occasions during the term of her imprisonment. She urges before this court, as her counsel did before the trial judge that she pleaded guilty that she gave evidence for the prosecution and that she had co-operated with the police in their investigations. All of these matters were before the judge and, indeed, were given such weight that he imposed on her a sentence one half as severe as that which he imposed upon the other offender. This was a very substantial discount. We, having considered again all of the matters that she has urged, are quite satisfied that the sentence of six years was not excessive. Her application for leave to appeal against sentence must also therefore be dismissed.

(1) Criminal Appeal No.627 of 1987