Roshanali Ahamedali Jamal and Another v. The Queen
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CACC000978/1980
----------------- Coram: Sir Alan Huggins, V.-P., Leonard, J.A. and Silke, J. Date of Judgment: 11th March 1981. ----------------- JUDGMENT ----------------- Sir Alan Huggins, V.-P.: 1. These are appeals against sentences of four years' imprisonment imposed on charges of possession of dangerous drugs for the purpose of unlawful trafficking. 2. The evidence was that the 1st Appellant imported some 1,400 grammes of raw opium in a suitcase which had a false bottom and in a small packet on his person. He thereafter, having been stopped by the Customs, assisted the Customs Officers by setting a trap for the person to whom the goods were consigned and, as a result, the 2nd Appellant was arrested in possession of the same drugs. The 1st Appellant pleaded Guilty. The 2nd Appellant pleaded Not guilty and was convicted after a trial. 3. It is submitted, first, that the sentences are out of line with the general level of sentences for this type of offence. We have a tariff laid down in Chan Chi-ming v Reg. 1979 H.K.L.R. 491 for what are termed "hard" drugs and the learned Chief Justice there indicated that where soft drugs were involved a substantially lower sentence should be imposed. Nothing turns upon this in the present case because, on the quantity of drugs found, if they had been hard drugs, a sentence in excess of eight years would have been proper on the tariff there prescribed. 4. The cases which have been cited to us do not, we think, justify the conclusion that this case is not in accordance with the proper tariff. Cheung Sum-kok v Reg. Crim. App. 1977 No. 809 was unfortunately decided upon a misunderstanding of another case - Wong Siu-fan v Reg. Crim. App. 1976 No. 289. It was said that in Wong Siu-fan, for a quantity of 65,000 grammes of opium, a sentence of five years' imprisonment was reduced to four years. That is not correct. What happened was that there were two women charged. The girl of twenty-one was charged on two charges, one of possession of 53,000 grammes and one of possession of 12,000 grammes and she received sentences totalling five years. Those sentences were not interfered with, even though she was a girl of only twenty-one. In respect of the 2nd appellant in that case the learned judge admitted to an error in thinking that the 2nd appellant was convicted of two charges whereas in fact she had been convicted on only one, and it was for that reason that the sentence on her was reduced to four years. Therefore, we do not think that the Cheung Sum-kok Case ought to be accepted as a satisfactory authority. 5. In Au Wai v Reg. Crim. App. 1979 No. 296, where 395 grammes of prepared opium and 83 grammes of opium dross were found on a man of seventy years of age, a total sentence of two and a half years was reduced to fifteen months' imprisonment, but, again, we have a case where there were special circumstances in that it was an old man and there was reason to believe that these drugs were going to be smoked by him and possibly by others of his acquaintance. 6. We think that a sentence of four years' imprisonment was proper for this type of offence and the only question that has concerned us is whether or not there should have been some discrimination between the two Appellants. Basically there was no justification for any discrimination, because this was clearly an offence which had been planned together. The 1st Appellant was found in possession of a visiting card bearing the name and telephone number of the 2nd Appellant, so that this was what might have been called a planned drop. Various reasons are submitted as justifying a distinction between them. It is suggested that the 1st Appellant should have been allowed a lower sentence for his plea of Guilty. As to that, as my brother Leonard has pointed out, the 1st Appellant was caught red-handed and although he did save the court the time of a trial he could gain no benefit from a suggestion that his plea stemmed from remorse. He is a foreign resident, whereas the 2nd Appellant is a local man, and that to some extent is material, although this distinction is possibly more important where the foreigner is a man who does not speak a language which is commonly spoken in the Colony and therefore where he is likely, in effect, to be completely isolated during his period of imprisonment. Perhaps, the most important distinction between them is that the 1st Appellant cooperated with the Customs and it was only as a result of his cooperation that the 2nd Appellant was arrested. The 1st Appellant was the importer and without his services the drugs would not have been in the Colony. It is, however, probable that he would get, as the courier, less profit from the deal than would the person to whom the drugs were delivered. We think that there should have been some slight distinction drawn between these two men. The learned judge did not make any and therefore it is not tinkering with the sentence when we allow the appeal of the 1st Appellant and substitute a sentence of three and a half years' imprisonment and dismiss the appeal of the 2nd Appellant. 7. In the circumstances we do not think that this is a case where we ought to order any loss of time, because clearly there was a matter which justified argument before this court. 11th March 1981. Representation: |