HKSAR v. POON WUN KWONG

DCCC550/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 550 OF 2010

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Reasons for Sentence

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1.  The defendant pleaded guilty to two charges of cultivation of cannabis plants.

2.  There were a total of 330 plants involved in this case and the total amount of herbal cannabis that were derived from the plants amounted to 2,695.2 grams.

3.  According to the facts admitted by the defendant, the police found the plants and the herbal cannabis at his two residential addresses.

4.  The defendant admitted that he grew those plants on the premises.

5.  The police found that at the first address, which was solely occupied by the defendant, the windows of the flat were sealed off with wooden planks. Some of the planks were fitted with chimneys and exhaust fans for ventilation, and part of the interior wall was fixed with reflective wall-paper. The sitting room and the two bedrooms were full of pots of cannabis plants, which were illuminated by high-intensity lamps fixed to the ceiling.

6.  It is apparent that the first address was specially adapted for the purpose of growing cannabis plants.

7.  Under caution, the defendant admitted that he rented the first flat for the purpose of cultivation of cannabis plants.

8.  According to the defendant, 3 to 4 months prior to his arrest he learned from the internet and a book how to home grow cannabis plants, and he ordered cannabis seeds from the Netherlands to start growing cannabis himself. He was convinced he could sell the cannabis that he grew at around $3,000 per ounce. The defendant however said he had not been able to sell any of his cannabis products prior to his arrest.

9.  The average price for herbal cannabis in October 2009 was estimated at $83 per gramme. Based on the total amount of herbal cannabis, that is 2,695.2 grammes, the total retail price is therefore estimated to be HK$223,701.

10.  The defendant is a 50-year-old married man who has had two marriages.

11.  He has two relatively minor convictions back in the mid-1980s. In view of the fact that these were extremely old convictions, this court is prepared to take the view that the defendant can be treated as if he has a clear record for sentencing purposes.

12.  Mr Chang, on behalf of the defendant, outlined the background of the defendant and the reasons for his committing the present offences.

13.  In a nutshell, it was submitted that the defendant was a filial son, but after failing in his small scale courier business and having to face the after care of his elderly mother, who is now in her 80s, after the latter had suffered a tragic fall resulting her to be partially paralysed, he ran into serious financial problems. As a result, the defendant had to mortgage his flat to the bank in order to make ends meet. However, he was unable to find a job. It gradually became apparent that he was unable to pay the mortgage payment, and as a result the bank had to take possession of his property.

14.  It was under these circumstances the defendant came across the information on the internet as to how to grow cannabis plants, and very unfortunately he thought that it was worth a try to grow cannabis at home in order to earn some money to help solve his financial problem.

15.  Both the defendant and his friends submitted letters to this court to plead for leniency. The defendant expressed in the letter as well as through his counsel that he now realises how wrong he has been for committing these offences. He is however glad to see that his plan of becoming a cannabis farmer and a cannabis supplier was nipped in the bud by the police.

16.  Cultivation of cannabis plants is a very serious offence. However, both the prosecution and the defence agree that there are in fact no direct authorities on sentence of this charge.

17.  The prosecution submitted an English authority, R v Kam Kwung Wong [2008] EWCA Crim 287, which the prosecution say is the closest authority they can find on this type of offence.

18.  The defence submitted three Hong Kong authorities; AG v So Chiu Ching [1994] 1 HKC 133, AG v Lau Ching Tak and Another [1984] HKCU 5, AG v Chan Chi Man [1987] HKCU 174. The defence accept that these authorities are in relation to trafficking in either herbal cannabis or cannabis resin and not cultivation of cannabis plants.

19.  Mr Chang told this court that the purpose of submitting these cases was to help this court understand how the Court of Appeal in Hong Kong deals with sentence on charges of trafficking in either herbal cannabis or cannabis resin.

20.  As there is no direct authority on sentence of charges of cultivation of cannabis plants, these authorities may prove to be useful as some sort of guidance.

21.  I have studied all the cases submitted to me.

22.  In relation to the English authorities submitted by the prosecution, my view is that the circumstances for Hong Kong and England are apparently different, therefore the English authority can only be regarded as some sort of reference. But I do note that the Court of Appeal in England has in this case laid down useful guidance, in particular in relation to factors to be taken into account when considering the role played by a particular defendant.

23.  In relation to the Hong Kong authorities submitted by Mr Chang, I take the view that they are no longer valid, or at least as far as the case of Chan Chi Man is concerned, it has been overruled or replaced by another Hong Kong Court of Appeal decision, R v Chin Shui Ming and Another CAAR 12/1994. The case of Chin Shui Ming is an application for review of sentence by the attorney general.

24.  In this judgment, the Court of Appeal observed at paragraph 19 of the judgment:

“It is clear from the evidence before us that the concentrations referred to in Chan Chi Man are no longer correct.  We are satisfied that a sentencing court must now bear in mind that cannabis resin has an average concentration of THC about four times higher than the average found in herbal cannabis, and that cannabis oil has an average also about four times higher than the average in cannabis resin.  Taking this into account, a sentencing judge must adjust the tariff which applies to cannabis resin when sentencing for trafficking in either herbal cannabis or cannabis oil.”

25.  The Court of Appeal then went on to lay down the new sentencing tariff for possession of cannabis resin for the purpose of unlawful trafficking:

(a) under 2,000 grammes, up to 16 months;

(b) over 2,000 grammes, 16 to 24 months;

(c)  over 3,000 grammes, 24 to 36 months;

(d) over 6,000 grammes, 36 to 48 months;

(e) over 9,000 grammes; 4 years’ upward.

26.  Of course,strictly speaking, this tariff applies to charges of trafficking in cannabis resin or possession of cannabis resin for the purpose of unlawful trafficking, but it is capable of giving us an idea as to what sort of sentence one should be looking at when dealing with a particular amount of cannabis resin possessed for the purpose of unlawful trafficking.

27.  I take the view that our present case is about cultivation of cannabis plants and is generally considered to be more serious than a charge of possession of cannabis resin for the purpose of unlawful trafficking.

28.  Having said that, I also bear in mind that herbal cannabis is less harmful than cannabis resin. With this in mind, I am of the view that while this case involves someone who sets out doing almost everything by himself to grow cannabis plant in order to yield herbal cannabis to be sold in the market therefore plays a much more important role than someone who is merely selling a particular quantity of cannabis or cannabis resin to others in order to get monetary reward.

29.  The enhanced severity can be balanced out by the fact that herbal cannabis is less harmful than cannabis resin.

30.  By relying on the tariff set out in the case of Chin Shui Ming and having taken into account all relevant circumstances, I am of the view that the correct starting point for the present charge is one of 24 months’ imprisonment.

31.  The defendant pleaded guilty to two charges. The quantity of 2.6 kilograms of herbal cannabis were found on two different premises. I therefore think that it would only be right for me to take 24 months as the global starting point for both charges.

32.  I then proceed to consider whether there are any valid mitigating factors.

33.  The defendant pleaded guilty to both charges. This is worth one-third discount.

34.  I have heard from Mr Chang for the defendant as to why the defendant committed the present offences. While I can be sympathetic, I cannot come to a view that these circumstances can be regarded as any valid mitigation. As this court always observes, committing offences for financial purposes can hardly be regarded as any valid mitigation.

35.  There are no other circumstances to enable this court to further reduce the sentence. Therefore, in relation to Charges 1 and 2, the sentences are as follows.

36.  The 1st charge, which involves a lot more cannabis, the starting point is 24 months’ imprisonment. The defendant is entitled to one-third discount for his plea of guilty. The sentence is therefore reduced to 16 months.

37.  2nd charge, the amount of cannabis is significantly less. I take 18 months as the starting point. The defendant’s plea of guilty entitles him to one-third discount. The sentence is therefore reduced to one of 12 months. These sentences are to run concurrently, meaning that the defendant has to serve a total of 16 months.