HKSAR v. HOANG DINH KY AND ANOTHER

DCCC 466/2018

[2018] HKDC 1634

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 466 OF 2018

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Reasons for Sentence

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1.  D1 and D3 pleaded guilty to the charge of cultivation of cannabis plants, contrary to section 9(1) and (5) of the Dangerous Drugs Ordinance, Cap 134.

2.  The facts were that, at about 1.35 pm on 25 April 2017, police were conducting an anti-narcotics operation in the vicinity of a 3-storey village house at 89D, Kau Lung Hang San Wai, Tai Po, New Territories (“house”).  During the operation, D1 came out and in of the house briefly for 3 times.

3.  At about 9.48 pm, D1 left the house, and was intercepted by the police.  Upon search, 3 keys, a pair of gloves and a pair of scissors were found on the 1st defendant.

4.  The police entered the house using one of the keys found on the 1st defendant.  The house comprised 3 floors:  ground floor with one living room, an open kitchen, toilet and a room (“room A”).  On the first floor, 3 rooms (“room B, C and D”) and 2 toilets while on second floor, there were 1 room (“room E”) and 1 toilet.

5.  The following items were seized from different parts of the house:

a) Living room on the ground floor:

i. D1’s Form 8 and Vietnam identity card;

ii. $3,000-odd cash;

iii. 2 mobile phones;

iv. 1 electronic scale; and

v. 2 cigarette butts

b) Toilet on the ground floor:

i. a towel;

ii. a toothbrush; and

iii. a comb

c) Room A:

i. 402 red plastic pots containing suspected cannabis plants (E1);

ii. 5 red plastic pots containing withered plants;

iii. 1 exhaust fan;

iv. 1 silver exhaust pipe;

v. 1 lampshade with lightbulb and transformer; and

vi. a packet of soil

d) Room B:

i. 191 red plastic pots containing suspected cannabis plants (E2); and

ii. 1 lampshade with lightbulb and transformer

e) Room C:

i. 7 basins containing a total of 431 suspected cannabis saplings (E3); and

ii. 1 set of fluorescent tubes

f) Room D:

i. suspected dried cannabis plants (E4);

ii. 1 electric fan; and

iii. metal chains

g) Room E:

i. 444 red plastic pots containing suspected cannabis plants (E5);

ii. 1 exhaust fan; and

iii. 1 lampshade with lightbulb and transformer

6.  The government chemist confirmed E1 to E3 and E5 to be a total of 1,468 cannabis plants, which weighed 34,210,41 grammes in total, whereas E4 was a total of 5,828 grammes of partially dried cannabis plants.

7.  8 out of the said 1,468 cannabis plants were randomly selected to determine the weight percentage of cannabis in herbal form and it was found that the weight percentage of cannabis in herbal form obtained, in pairs, were from 9% to 54% respectively.

8.  And the Agricultural Officer commented on the photos of the house, stating that:

i. The inner settings of the house were beneficial to the growth of plants;

ii. Fertilizer, potting media and necessary materials for pot plant cultivation were found;

iii. Indoor cultivation of cannabis plants in pots was carried out in the house. Equipment, device and planting materials shown in the photos were tailor-made for the cultivation;

iv. 603 out of 1,464 of the cannabis plants seized had attained an approximate height of 40 to 80 centimetres and were ready for harvest. 603 plants totally yield 32,156.2 grammes cannabis with an average of 53.3 grammes per plant (i.e. 32,156.2 grammes ÷ 603 plants = 53.327 grammes/each plant). The time required for cannabis plants to reach such stage is about 3 months. Consequently, it is estimated that 4 crops a year could be grown for harvest. Therefore, annual yield of 312.1 kilogrammes of fresh cannabis leaves and/or flowers could be achieved; and

v. The average weight percentage of cannabis in dry herbal form obtained from these plants is about 22.8%. So, for the consumption, the annual yield would be about 71.2 kilogrammes (i.e. 312.1 kilogrammes fresh weight × 22.8%).

9.  The average retail price of cannabis in herbal form in April 2017 was about HK$244 per gramme.  Therefore the retail price of 71.158 kilogrammes in April 2017 was about 17,362,552.

10.  DNA found on the 2 cigarette butts, towel and toothbrush seized from the ground floor of the house could have originated from the 1st defendant.  His fingerprints were also found on a socket of the 1st floor and on the kitchen door of the house.

11.  D3’s palm print was found on a door in the kitchen of the house.

12.  At the material time, the house was rented to D3 and his friend, while D2 was the guarantor.

13.  Under caution, D1 in his video recorded interview, in the presence of a Punti/Vietnamese interpreter, stated that since February 2017, upon instruction by a male “Ah Hung”, D1 had lived in the house to water and repot the cannabis plants therein.  D1 was paid $300 per day to do so and he received 9,000 in cash in total from “Ah Hung” as remuneration.  D1 marked the dates of watering the cannabis plants on the calendar found inside the house.

14.  D3 was arrested for cultivation of cannabis plants on 13 August 2017.

15.  Under caution, in the video recorded interview of D3, in the presence of Punti/Vietnamese interpreter, D3 stated that he and his friend rented the house at 28,000 per month.  The house had been used by “Ah Hung” for cultivating cannabis.  “Ah Hung” paid D3 the rent in cash every month.  D3 bought flower pots with “Ah Hung” and settled rent and gas bills.  D3 received about 40,000 to 50,000 from “Ah Hung” as remuneration for every harvest.

16.  D1 and D3 now admit, together with “Ah Hung”, cultivated plants of the cannabis, namely a total of 34,210.41 grammes of cannabis in the form of plants and 5,828 grammes of cannabis in the form of partially dried plants.

17.  D1 aged 53, is a Form 8 holder.  He came to Hong Kong from Vietnam in 2015, clear record.

18.  D3, aged 56.  He has 33 criminal records, mostly theft before 1994 and afterwards mainly dealing with dutiable commodities, receiving fine and up to 9 months’ imprisonment until February 2018, committing trafficking in dangerous drugs, receiving 3 months’ imprisonment.

19.  Mr Leung for the 1st defendant submits that D1 was only a gardener, playing a minor role.  He met “Ah Hung”, whom introduced this job to him for 9,000 per month, where he worked from February till April, but so far he only got $9,000.

20.  Mr Leung further submits that in the Court of Appeal in HKSAR v Nguyen Thu Ha CACC 335/2013, which had referred to the case of R v Xiong Xu [2007] EWCA Crim 3129 and R v Auton [2010] EWCA 2569, where in paragraph 6 of Xiong Xu stating that, for those involved in the lowest level, starting point should be 3 years’ imprisonment.

21.  However, D1 pleaded guilty at the earliest opportunity.  He hopes for a lenient sentence.

22.  Mr Chan for D3 submits that D3 also played a minor role by helping to rent the house and bought the flower pots and settling bills only. 

23.  Mr Chan further says that the annual yield approach should not be adopted, as it may not be certain for future growth and, if taken the current yield, the average weight in dried herbal form would be lot less.

24.  D3 also pleaded guilty and in co-operation to authorities and hoped for a lenient sentence.

25.  Cultivation of cannabis plants is a serious offence.  The Court of Appeal in HKSAR v Nguyen Thu Ha CACC 335/2013, dealt with a case involving cultivation of 181 living plants of a total about 8,800 grammes, together with 1,850 grammes of cannabis leaves where the estimated annual yield of herbal cannabis was about 3.8 kilogramme.  The court considered the role of the applicant and the commercial nature of the operation, stating that a starting point of 20 months was generous, but nonetheless did not alter the sentence.

26.  In R v Tuen Shui Ming CAAR 12/1994, the Court of Appeal set out the guideline for trafficking in cannabis resin, over 6 kilogramme, 3 to 4 years; over 9 kilogramme, 4 years upward and that a discount up to a year could be made for trafficking in cannabis resin.

27.  In the present case, there were altogether 34,210 grammes of cannabis plants and 5,828 grammes of dried cannabis plants.  The quantity was large and no doubt it was a commercial operation and the size was also much larger compared to the case of Nguyen Thu Ha.

28.  Although Mr Leung has referred to a 3-year starting point to be adopted as in English case, but I do not consider it appropriate to simply adopt it, given the different background and circumstances and cultural differences as in UK.

29.  In the present case, the quantity was much larger and the operation was large.  I consider that the starting point could be 4 years’ imprisonment or more.

30.  However, clearly D1 and D3 were not the mastermind and they were only playing relatively minor role as gardener and helper.

31.  So, after consideration, I consider it appropriate to adopt the starting point of 3½ years’ imprisonment as starting point and that be reduced to 2 years and 4 months upon guilty plea.

32.  As to D1, given his Form 8 status, the court could have enhanced the sentence, but given the fact that D1 was then homeless and was just finding a shelter, but of course no excuse to commit the offence.  After consideration, I do not intend to enhance the sentence.

33.  So, in the circumstances, D1 and D3 both be sentenced each for 2 years and 4 months’ imprisonment respectively.