Shah Kishore Kumar v. The Queen

CACC000179/1980

-----------------

Coram: Li, J.A., O'Connor and Power, JJ.

Date of Judgment: 30 May 1980

-----------------

JUDGMENT

-----------------

O'Connor, J.:

1. The appellant was convicted of the offence of possession of a dangerous drug for the purpose of unlawful trafficking. The drug in question is 1.9 of a kilo gram of a resinous substance containing 27.5 grams of tetrahydrocannabinol. He appeals against the sentence of two years' imprisonment. We are told that the concentration of tetrahydrocannabinol is less than usual. However that may be it appears that the amount of substance that he was found in possession of would be sufficient for about 3,800 cigarettes and that its street market value is about $15,000. The circumstances of the offence are that the appellant is an Indian who was found with this substance in his luggage when he arrived at the customs in Hong Kong Airport. He pleaded guilty. There have not been very many cases in Hong Kong of convictions in respect of cannabis. It is not one of the more usual drugs found here. Mr. Huggins has referred us to a number of cases, the most relevant of which is R. v. Samtani, Criminal Appeal No. 403 of 1979. In that case the amount of drug involved was 0.4 of a kilo gram of cannabis and the sentence, which was not disturbed by the Court of Appeal was 2½ years. It was the second conviction of that appellant within 3 years for bringing cannabis into Hong Kong. He had been sentenced to 2 years' imprisonment on the first occasion. Samtani had pleaded not guilty. The appellant in our case pleaded guilty. It appears that the sentence imposed in our present case is not out of line with other sentences on the facts of the offence itself. We have been asked to take into account a combination of personal factors which it is said should go towards reduction of sentence. It is put forward that the appellant being an Indian, the term of imprisonment that he would serve in Hong Kong would be more onerous on him than it would be upon a Hong Kong inhabitant, because he would be serving his sentence in more isolation having regard to his ignorance of any Chinese language or English. In the case of R. v. Langridge, Criminal Appeal No. 631 of 1969 it was said that 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 act in 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. That is true, such a persons is not entitled to expect a more lenient sentence. However a sentence for the same term 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 the circumstances of the case. Other matters that we are asked to keep in mind in this case are family circumstances. It appears that the appellant's wife, since he was apprehended for this offence, has fallen ill of hypertension and some other matters that require medical attention and it appears that there may be some financial hardship on his family in India. Matters of family hardship are not usually matters that go in mitigation of sentence unless there are matters of severe hardship, for example, such circumstances as the mother of young children or such circumstances as the children would be left without any parental care at all. We do not consider that the family circumstances in this case are of the type that call for special consideration. Another matter brought to our attention is his own health. It appears that since he has been held in custody he has lost 14 pounds in weight and has lost a number of teeth. That matter we consider is one that is properly for the Executive to consider and it is within their power to release him at any time that it may be considered he ought to be released on humanitarian grounds. We do keep in mind that this is what is called a soft drug. Having regard to the drug scene in Hong Kong any infringement of drug legislation is a serious matter. This appellant came from abroad to Hong Kong with drugs apparently hoping to make a quick profit on them here at the expense of the Hong Kong public, and then disappear back to India with the money. We do not consider that we should interfere with the sentence.

Representation:

A. Huggins (Hampton, Winter & Glynn) for Appellant.

H. Sinclair (Legal Department) for Crown/Respondent.