HKSAR v. NGUYEN VAN SUY

DCCC 837/2019

[2020] HKDC 320

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 837 OF 2019

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Reasons for Sentence

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1.  The defendant has pleaded guilty to three charges at the earliest opportunity. He pleaded guilty to Charge 1, cultivation of cannabis plants totalling 23,942.3 grammes of cannabis in the form of plants between November 2018 and January 2019 in a small flat on the 11th Floor of 147 Tung Choi Street, Mong Kok, Kowloon. The 2nd charge is unlawfully trafficking in 3.499 kilogrammes of cannabis in herbal form on 23 January 2019 in the same premises on the date of his arrest. The last charge, the 3rd charge, is remaining in Hong Kong without the authority of the Director of Immigration.

Facts of the case

2.  The police were watching the premises on the 11th floor whilst conducting an anti-narcotics operation.  On 23 January 2019, at about 4.10 pm, police officers saw the defendant appear and open the gates and door with his own keys.  He was immediately intercepted.

3.  The 600-square foot premises consisted of a living room, a kitchen, a bathroom and three bedrooms.  The premises had been adapted with a number of ventilation systems and large lightbulbs to increase the temperature in the premises.  In all of the bedrooms and the living room, the police found either pots of cannabis plants with large lightbulbs or bags of cannabis in herbal form with some packing paraphernalia.  The police also found bags of fertilizers and pesticide.

4.  The premises were rented by a Vietnamese female, not the defendant.  It was rented from June 2018.  The defendant said he arrived illegally in Hong Kong in September 2018 and had been living in or renting those premises for about two months.

5.  In total, there were 50 pots of cannabis plants and 6 plastic bags of cannabis which were all examined by experts.  The experts concluded the plants could yield 23,942.3 grammes of cannabis every four months and three crops a year could be grown for harvest with an annual yield of therefore 71,826.9 grammes.  The estimate of 23,942.3 grammes of yield every four months is the subject matter of the particulars of Charge 1.  The annual yield of cannabis in dry herbal form for the purpose of consumption was calculated to be about 9,334 grammes.  According to the Narcotics Bureau, the average retail price of herbal cannabis in June 2019 was about $360 per gramme, therefore the estimated value of the herbal cannabis production in the premises would be about $3,360,240 per year.

6.  The drugs of Charge 2, the 6 plastic bags of herbal cannabis weighing 3.499 kilogrammes, would, if based on the average retail price of herbal cannabis in June 2012, be worth about $1,259,640.

7.  After his arrest, the defendant, who is a Vietnamese national, admitted that he had entered Hong Kong illegally from China in September 2018.  After he entered illegally, he worked illegally as a mover and cleaner paid in cash.  He said he was told that the premises were available for rent and he had lived there for about 2 months.  When he was arrested, he had HK$21,500 on him and a mobile phone with two SIM cards.

Background and mitigation

8.  The defendant is 59 years old and from Vietnam. He has no previous convictions in Hong Kong.  He is married and has a daughter; his family remain in Vietnam.  I am told he committed all of the charges because of financial need and pressure.  He is remorseful and would like to return home to Vietnam as soon as possible.

Sentencing considerations

Charge 1

9.  There are no tariff guidelines for the offence of cultivating cannabis plants.  The offence carries a maximum term of 15 years’ imprisonment and a $100,000 fine.  It is accepted that the appropriate approach to sentencing is to have regard to the opinion of an expert as to the estimated annual yield of herbal cannabis from the plants.  It is not the weight of the plants at the time of the arrest that is considered relevant. The defendant does not challenge the expert’s opinion, nor the estimated retail value of the cannabis.  Sentencing tariffs for trafficking in cannabis resin is relevant.  After all, the defendant is cultivating cannabis plants for the purpose of supplying it to others for consumption, namely for the purposes of trafficking.

10.  I have been referred to the authority of HKSAR v Nguyen Thu Ha, CACC 335/2013, by defence counsel.  In that authority, Justice of Appeal Mr Justice Lunn (as he then was) held that the practice of sentencing an offender of cultivating cannabis plants by reference first to the tariff of trafficking in cannabis resin using the annual yield of herbal cannabis that could be produced and then, other than for very large amounts, subtracting the result thus obtained by up to 12 months because it was herbal cannabis to arrive at the appropriate starting point, that practice is appropriate.

11.  The said tariff of course can be found in the case of the AG v Tuen Shui Ming and another [1995] 2 HKCLR 129.  Where the amount is under 2,000 grammes, the starting point would be up to 16 months.  Where the amount is over 2,000 grammes, the starting points would be between 16 to 24 months.  Where the amount is over 6,000 grammes, the starting point would be between 36 to 48 months.  Where the amount is over 9,000 grammes, the starting point would be 4 years upwards.  Here I repeat the annual yield in dry herbal form here was estimated to be 9,334 grammes.  Other relevant sentencing factors include how many cannabis plants were being cultivated, their maturity, the size and the sex of the plants, the sophistication of the operation, whether it was an ongoing operation or a one-off, and was it a commercial enterprise or operation.  The role of the offender is also relevant, whether the offender is a gardener or helper cultivating plants or a manager of the operation, or the organiser, and lastly, whether he is the controller of the enterprise.

12.  Sentences will depend on the individual facts and circumstances of each case.  It will depend on the roles played by the defendant and the size and sophistication of the operation.

13.  Defence counsel has also referred me to HKSAR v Hoang Dinh Ky and another, DCCC 466/2018.  In that case, the premises for cultivating cannabis plants was a 2,100-square foot village house with many more plants seized.  The annual yield of dried herbal cannabis was about 71 kilogrammes with a retail price in April 2017 of $244 per gramme, totalling about $17.36 million.  That was a much larger operation and premises with more space.  The judge considered a starting point of 4 years appropriate but reduced that by 6 months because he accepted the defendants were gardeners and helpers as opposed to the masterminds.  The starting point therefore was one of 3 years and 6 months.

14.  Mr Cheng, has reiterated that likewise the defendant was not the tenant of the premises and appears to have a caretaking role only in this smaller operation, but the defendant accepts that the operation was not a small-scale operation itself.

Charge 2

15.  Guidelines for trafficking in cannabis come from, as I said, R v Tuen Shui Ming.  There the Court of Appeal suggested the following tariff for possession of cannabis resin for the purposes of unlawful trafficking: where the amount of drugs is over 3,000 grammes, a starting point would be between 24 to 36 months.  Here the amount is 3,499 grammes and, mathematically speaking, the starting point should be 2 years and 2 months.  Defence counsel has submitted that any starting point should be further reduced by up to 1 year to reflect that the cannabis involved was in herbal form and not resin.

Charge 3

16.  The Court of Appeal has held in the R v So Man King [1989] 1 HKLR 142 that the appropriate sentence for an illegal immigrant after a plea of guilty should be 15 months’ imprisonment unless there are strong humanitarian mitigating factors.  In addition, the sentence for this offence should be served separately to any other offence committed by the same defendant; it should run consecutively to other charges.

Sentence

17.  I have considered all the mitigation put forward as well as taken into account authorities relevant to these charges referred to me by Mr Cheng.

18.  For Charge 1, I have considered the quantity and value involved in this medium sized operation which could net $3.36 million every year.  I will take into account there is no evidence that the defendant is the mastermind of the operation.  It appears he is the gardener or helper living on the premises.  I find a starting point of 3 years’ imprisonment appropriate.  The defendant is entitled to a discount of one-third for his early plea, which will reduce the sentence to 2 years’ imprisonment for Charge 1.

19.  For Charge 2, I have considered the quantity of 3.499 kilogrammes of herbal cannabis found in bags and the tariffs set out in Tuen Shui Ming.  I will take a starting point of 2 years and 2 months.  That authority suggested a discount of up to 1 year if cannabis is in herbal form.  I will reduce that starting point by 8 months, reducing the starting point to 1 year and 6 months.  After a discount of one-third for his early plea as applied, the defendant will serve a term of 1-year imprisonment for Charge 2.

20.  For Charge 3, after plea, the sentence for this offence will be 15 months’ imprisonment.

21.  I order the sentences of Charges 1 and 2 to be served concurrently.  That is a sentence of 2 years’ imprisonment.  The sentence for Charge 3 will be served consecutively to Charge 1.  Therefore, the defendant is sentenced to a total of 3 years and 3 months’ imprisonment.