HKSAR v. NGUYEN THANG LOI

CACC 145/2019

[2020] HKCA 42

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 145 OF 2019

(ON APPEAL FROM HCCC NO 398 OF 2018)

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J U D G M E N T

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Introduction

1.  The applicant was one of two defendants jointly charged with one count of trafficking in a dangerous drug, namely 7,840 grammes of cannabis in the form of bundles of plants, contrary to section 4(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 (Count 1), and one count of cultivation of cannabis plants, namely 67,154 grammes in the form of 184 plants, 1,804.10 grammes in the form of 11 lumps of soil with cannabis in the form of a plant, 263.20 grammes of cannabis in the form of bundles of plants and 2.13 grammes of cannabis in herbal form, contrary to section 9(1) and (5) of the Dangerous Drugs Ordinance, Cap 134 (Count 2).

2.  On 15 April 2019, following his plea of guilty to the two counts, the applicant was sentenced by Li J (the judge) to a total of 7 years and 6 months’ imprisonment.

3.  On 30 April 2019, the applicant applied for leave to appeal against his sentence.  It should be noted that the other defendant also applied for leave to appeal against his sentence but has since abandoned it.

The brief facts

4.  Late in the evening on 20 December 2017, the applicant was travelling in a vehicle that was driven by the other defendant which was intercepted by the police at a roadblock.  The police searched the vehicle and found inside, two black plastic bags containing 7,840 grammes of cannabis plants particularised in Count 1.  The value of the cannabis was $2,171,680.  The police also found four keys in the applicant’s possession.

5.  On 22 December 2017, as a result of further investigation by the police, the two defendants were taken to premises in the New Territories.  The police gained entry to the premises by using one of four keys that had been seized from the applicant.  A search of the premises by the police uncovered the cannabis in herbal form as particularised in Count 2, together with items and tools for the cultivation of cannabis, such as 2 electronic scales, 11 lamps, 9 thermometers, 3 fans, multiple packs of fertilizers and other tools used for cultivation.  The applicant was arrested and cautioned. He admitted that he had been recruited by a Chinese male, known as Hoi Suk, to cultivate cannabis at the premises.  He said another male, known as Yung Suk, paid him about $10,000 per month to cultivate the cannabis and tidy up the premises.  The estimated market value of the cannabis in herbal form was $23,592,000.

6.  In a subsequent video-recorded interview, the applicant admitted that he entered Hong Kong illegally and was a Form 8 recognizance holder, having made a non-refoulement claim.  He said he received a welfare allowance but had no other financial means.  He said that he met the other defendant in the afternoon of 20 December 2017 and after socialising together they boarded a vehicle which the other defendant drove.  He thought the other defendant was taking him home.  He confirmed that he lived in the premises in question and worked there for 6 to 7 months.  He said that he received instruction from a person called Yung Suk to live and cultivate cannabis at the premises.  He said he received payments from Yung Suk, ranging between a few thousand to ten thousand dollars every now and then.  He used the tools, which were already there when he first arrived, to cultivate and harvest the cannabis.  He would place the harvest cannabis in plastic bags which would be taken away by someone else. 

7.  The applicant admitted that at the material time he possessed the cannabis particularised in Count 1 for the purpose of unlawful trafficking.  He also admitted that he cultivated the cannabis plants particularised in Count 2. 

The reasons for sentence

8.  In respect of Count 1, the judge noted that the concentration of tetrahydrocannabinol, (THC), the principal psychoactive constituent of cannabis, in herbal cannabis was about one-quarter of that of cannabis resin. He calculated that the amount of THC equivalent of cannabis resin for the herbal cannabis seized in this case was about 1.7 kilogrammes. Applying the sentencing guidelines for trafficking in cannabis resin in AG v Tuen Shui Ming & Anor,[1] which suggests a starting point of 16 to 24 months’ imprisonment for trafficking in over 2 kilogrammes, he adopted a starting point of 16 months’ imprisonment which he enhanced by 6 months to 22 months’ imprisonment for the fact that the applicant committed the offence at the time when he was a Form 8 recognizance holder.  After reducing the notional sentence by one third for the applicant’s guilty plea, he sentenced him to 15 months’ imprisonment in relation to Count 1.

9.  In respect of Count 2, the judge bore in mind the approach stated in HKSAR v Nguyen Thu Ha[2] and accepted that the annual production of herbal cannabis was about 85 kilogrammes.  He was of the view that although the applicant was not the mastermind, his role was important to the operation in the premises and he saw no reason to reduce the sentence.  Having considered all circumstances of the case, he adopted a starting point of 10 years’ imprisonment which he enhanced by 6 months to 10 years and 6 months’ imprisonment for the fact that the applicant committed the offence as a Form 8 recognizance holder.  After reducing the notional sentence by one third for the applicant’s guilty plea, he sentenced him to 7 years’ imprisonment in relation to Count 2.

10.  The judge considered that the two sentences deserved some overlapping because the conduct arose from the same criminal episode.  Taking into account the totality principle, he ordered 6 months of the sentence on Count 1 was to run consecutively to the sentence on Count 2.  The applicant therefore was sentenced to 7 years and 6 months’ imprisonment.

The applicant’s submission

11.  The applicant advances two grounds of appeal against his sentence.  Ground 1 complains that the judge erred in law by ordering that 6 months’ imprisonment of the sentence on Count 1 be served consecutively to the sentence on Count 2; and wrongly considered that the two counts involved were of a different nature.  Ground 2 complains that the starting point of 10 years and 6 months’ imprisonment adopted by the judge on Count 2 was manifestly excessive and wrong in principle.

12.  In the first ground, it is submitted by Ms Kamina Lai, for the applicant, that the judge erred in ordering the partial consecutiveness of the sentences.  She contends that the 7,840 grammes of cannabis forming the subject matter of Count 1 was part of the annual yield of the cannabis plants, which formed the subject matter of Count 2, and this was further supported by the fact that the judge referred to the same sentencing guideline of trafficking in cannabis of Tuen Shui Ming for both counts.  Therefore, she submits that the order was wrong in principle and amounted to “double counting”.

13.  In the second ground, it is submitted by Ms Lai that the starting point of 10 years and 6 months’ imprisonment adopted by the judge for Count 2 was manifestly excessive.  Although she does not take issue with the 6 months’ enhancement for the fact that the applicant was a Form 8 recognizance holder at the time of the offence.  She refers to R v Xiong Xu,[3] where the English Court of Appeal set out different levels of sentence according to each individual’s role in commercial cultivation, and contends that the applicant’s role in this case amounts to a manager’s role, which should attract a sentence of 3 to 7 years’ imprisonment.  It is to be noted that the maximum penalty for the offence of cultivation of cannabis plants in Hong Kong is 15 years’ imprisonment, while the equivalent offence in the United Kingdom, section 6(2) of the Misuse of Drugs Act, 1971, the maximum penalty is 14 years’ imprisonment. 

14.  Ms Lai seeks to compare the sentences in a number of cases with the sentence imposed in the present case. One of the cases that she refers to is Secretary for Justice v Cheung King Kong,[4] in which the Court of Appeal adopted a starting point of not less than 4 years’ imprisonment for a defendant who took up multiple important roles in the cultivation of cannabis plant.  She points out that the Court in that case also ordered the charges of cultivation of cannabis and trafficking in a dangerous drug to be served concurrently.  She argues, therefore, the starting point of 10 years and 6 months’ imprisonment adopted by the judge in this case was manifestly excessive.

The respondent’s submission

15.  Ms Claudia Ng, for the respondent, disagrees that the herbal cannabis found inside the vehicle was part of the annual yield of the cannabis plants seized from the premises.  She also refers to Cheung King Kong, where another division of this Court, having approved the judgment of Lunn JA (as he then was) in Nguyen Thu Ha, discussed the analysis of the formula adopted by the government chemist and the agricultural officer in calculating the estimated annual yield of cannabis.  The formula composes of four components, namely, (i) number of cannabis plants; (ii) grammes of THC found in each cannabis plant on average; (iii) number of crops per year; and (iv) the quantity of herbal cannabis that could be produced from a cannabis plant as an average percentage.[5]

16.  Ms Ng submits that a computation of the four components depended on the state of growth of the plants found in the premises on the day of seizure as observed and examined by the experts.  She contends that the harvested cannabis found in the vehicle did not form part of this calculation because the experts projected the estimated annual yield based on the state of the plants found in the premises.

17.  Ms Ng disagrees that the reference to the guidelines for trafficking in cannabis resin in sentencing for a charge of cultivation of cannabis plants showed that the consecutive sentences of the two charges amounted to double counting.  She submits that in HKSAR v Nguyen Van Cuong,[6] a case referred to and endorsed in Nguyen Thu Ha, the sentencing guidelines in Tuen Shui Ming for trafficking in cannabis resin are comparative when sentencing for cultivation of cannabis plants, because the sale or use of the cannabis was a relevant sentencing factor when considering the offence of cultivation.  Having calculated the estimated annual yield of herbal cannabis, the sentencing guidelines in Tuen Shui Ming were applicable, based on the premise that the cannabis cultivated would be unlawfully trafficked after harvest, in order to determine the range of sentence with appropriate downward adjustment to reflect the lower potency level of herbal cannabis in relation to cannabis resin.  She submits therefore that the reference to the Tuen Shui Ming guideline did not mean any partial consecutive sentence would amount to double counting.

18.  Ms Ng further argues that a charge of cultivation of cannabis plants and a charge of unlawfully trafficking in cannabis consist of different criminalities, although she acknowledges there may be some overlap between them, but which nevertheless deserves some consecutiveness of the sentences for the two charges.  She contends that the two charges involved the applicant engaging in different criminality, which warranted the consecutiveness of the sentences in order to reflect the applicant’s overall criminality.

19.  Of the starting point adopted for Count 2, Ms Ng, applying the approach in Cheung King Kong,[7] notes that the first and foremost determinative factor was equating the estimated annual yield of the herbal cannabis from the plants to the relevant band in Tuen Shui Ming.  The role of the applicant and other aggravating factors would next be taken into account to adjust the starting point.  She points out that the applicant lived and worked in the premises on the instructions of another for payment.  She notes that he cultivated and harvested the cannabis plants as well as looked after the premises.  She agrees that his role was akin to that of a manager but at a very high level of participation.  She contends that taking into account the substantial estimated annual yield of cannabis, the total number of cannabis plants involved, the very active managerial role played by the applicant, including the fact that he lived in the premises and was involved in the trafficking of the harvested cannabis,[8] the starting point adopted by the judge for Count 2 of 10 years’ imprisonment was within the range of penalty in the circumstances of this case.

Discussion

20.  I am of the view that the grounds of appeal against sentence are reasonably arguable and leave is accordingly granted.

21.  In respect of Ground 1, in my view, there is merit in the argument that the sentences of Counts 1 and 2 should have been concurrent or the quantity of drugs under the two counts considered together when sentencing the applicant.  It is arguable that the two quantities of drugs, although seized at different locations, are common stock and closely linked in time.  It comes down to the question as to whether one count adds to the culpability of the other.  See HKSAR v Mohammed Tofael Ahmed, unrep., CACC 306/2018, 3 January 2020; and HKSAR v Wan Lau Mei [2014] 4 HKC 75.

22.  In respect of Ground 2, there is an issue as to whether the applicant’s role in the cultivation operation at the premises has been correctly characterized by the judge and whether the starting point adopted by him was too high in the circumstances of the case.  I am of the view that this ground is reasonably arguable and will require a careful appraisal of the role and conduct of the applicant as reflected by the facts that were outlined to the sentencing court, as well as a consideration as to whether the starting point adopted followed the suggested approach of the authorities and was correct in the circumstances of the case.

23.  As already noted, the guideline case of Tuen Shui Ming relates to trafficking in cannabis resin, which has an average concentration of THC that is about four times higher than the average in herbal cannabis.  It follows that a sentencing court will need to take into account the less damaging effect of herbal cannabis and make an appropriate adjustment downwards.  In contrast, there is no guideline case for cultivating cannabis plants, although how to approach the sentencing of an offender for such an offence was discussed in Nguyen Thu Ha[9] and Cheung King Kong.[10] I mention this because the approach to be taken by a sentencing court when sentencing an offender for cultivation of cannabis plants may warrant detailed consideration when this case comes on before the Court of Appeal. 

Conclusion

24.  It follows from what I have said that leave is granted to the applicant to appeal his sentence on the grounds advanced on his behalf.

[1] [1995] 2 HKC 798.

[2] Unrep., CACC 335/2013, 16 October 2013.

[3] [2008] 2 Cr App R(s) 50.

[4] Unrep., CAAR 2/2018, 24 September 2019.  The other cases were HKSAR v So Kim-yi and Ors., unrep., HCCC 399/2018, 4 April 2019, and HKSAR v Hoang Dinh Ky and Anor., unrep., DCCC 466/2018, 17 December 2018.

[5] At paras 10 – 12, 17, 51 – 55 and 66.

[6] DCCC 514/2009, paras 14 – 16.

[7] At paras 54 – 55, 66 – 69.

[8] Cheung King Kong. Para 69.

[9] At paras 11 – 16.

[10] At paras 42 – 62.