THE QUEEN v. MOHAMED YAQOOB RAJ MOHAMED SHIPRA

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J U D G M E N T

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Cons, V.-P. delivered the judgment of the Court:-

1. The Applicant in these proceedings was arrested while selling drugs to undercover Police Officers. He was originally charged with the offence of trafficking in dangerous drugs, an offence to which he pleaded guilty before the Magistrate. In the High Court the charge was reduced to one of possession of the drugs for the purpose of unlawful trafficking. Naturally the sentence must be considered in that light.

2. The amount of drugs involved was just a few grammes short of 1 Kilogramme.

3. The matters put before the judge below in mitigation were the Applicant's plea of guilty, his clear record, both in Hong Kong and in India from where he comes, his financial position, the poor circumstances in which his family will be left and his state of health. As to that, he has in the past suffered from tuberculosis and a heart attack. He is currently suffering from diabetes, although it is being controlled by treatment.

4. It was further pat forward on his behalf that he is an Indian who cannot speak Cantonese and is not fluent in English.

5. The judge dealt with that by saying -

"... I don't accept that because you are an Indian you are entitled to special treatment. Everyone is equal before the law and everyone is equal before this court, whether they are Chinese, Indians, Africans, Europeans or Americans."

This point has been elaborated before us today as the main ground of appeal, and our attention has been drawn to various authorities. Three of them we should mention.

6. In The Queen v. Langridge⁽¹⁾ Rigby S.P.J. said -

"If a person chooses to commit an offence, likely to involve a term of imprisonment, in a country other than his, or her own country, he or she must not be surprised at the consequences that arise from his, or her, unlawful actin that alien country; and is not entitled to expect a more lenient sentence merely by reason of the fact that he, or she, comes from another country or from a different environment."

We would endorse his sentiments, and add for ourselves that in so far as a man must appreciate; before he commits a crime, that his family will suffer if he is caught and convicted thereof, so must a man who deliberately comes here 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. Different considerations may perhaps apply where a man is already here for some lawful purpose and then becomes involved in criminal activity.

7. An apparent gloss was put upon the general principle by a division of this Court in The Queen v. Shah Kishore Kumar⁽²⁾. where, after reciting the passage we have just quoted, it was said

"That is true such a person is not entitled to expect a more lenient sentence. However a sentence for the same terns may in effect bear down more heavily on a person who comes from abroad and therefore be harsher and we think that this is a material factor to be borne in mind in passing sentence, a factor which may carry more or less weight depending upon "cite circumstances of the case.'

8. A different approach was more recently adopted by another division in The Queen v. Garry La Verne Ohmert⁽³⁾ -

"(Counsel) asks us to consider firstly the fact that as a foreigner (the defendant) will find prison circumstances peculiarly difficult and he is indeed doing so at the moment in the Reception Centre. That is a factor to which we do not attribute any great importance. While it is quite right to say chat anybody caught in somebody else's country and not speaking the local language will find prison a more disagreeable experience than would otherwise be the case that in general is not a circumstance which the court will take into account in mitigation to any substantial degree,"

9. In our judgment the later approach is to be preferred and we would commend it to judges when faced with problems of this kind in future.

10. The Queen v. Chan Chi Ming⁽⁴⁾ laid down sentencing guidelines with regard to the possession of dangerous drugs for the purpose of unlawful trafficking. But it has to be remembered that that offence may take many and various forms. The least se^rious possibly comprehends what: might be termed "the bare delivery" of drugs. The most serious would encompass circumstances which were all but an actual trafficking. The judge below was entitled to take into account the particular circumstances that we outlined at the beginning of this judgment, circumstance which undoubtedly put the offence into one of the more serious examples of its hind. With that in mind we are not persuaded that the sentence of eight years passed by him was manifestly excessive; and therefore this application must be refused.

(1) Criminal Appeal No. 631 of 1969, unreported 5 September 1969

(2) Criminal Appeal No. 179 of 1980, unreported 30 May 1980

(3) Criminal Appeal No. 213 of 1985, unreported 23 July 1985

(4) 1979 H.K.L.R. 491