HKSAR v. PHAM NGOC LAN AND OTHERS

HCCC 377/2018

[2019] HKCFI 2079

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 377 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

The 1st defendant, D1, pleaded guilty to two counts, that is Count 1 and Count 4 of cultivation of cannabis plants, and three counts of trafficking in dangerous drugs, that is Counts 2, 3 and 5.

D3 and D5 both pleaded guilty to one count of cultivation of cannabis plants, that is Count 1, and one count of trafficking in a dangerous drug, Count 2.

D6 pleaded guilty to one count of cultivation of cannabis plants, Count 4, and one count of trafficking in a dangerous drug, Count 5.

Summary of Facts reveals the following:

On 16 May 2017, when D1 came out of a unit of one industrial building in Tuen Mun, he was intercepted by police officers. 894 grammes of herbal cannabis was found on him. Upon entry into that unit, D3 and D5 were also found to be present. Inside the unit, the police found 598 pots of cannabis from which 608 kilogrammes of living cannabis plants were extracted. Cultivation-related equipments were also seized. In addition, the police also found 48 bags totalling 22.548 kilogrammes of herbal cannabis.

On the same day, and shortly after the entry into the Tuen Mun unit, the police also raided another unit of another industrial building at Yau Tong. D6 was found inside this Yau Tong unit. In addition, the police also found 1,080 pots of cannabis from which approximately 129 kilogrammes of cannabis plants were extracted. Cultivation-related equipments were also seized. In addition, the police also found 3.4 kilogrammes of herbal cannabis inside the Yau Tong flat.

Under caution, D1 admitted that regarding the 894 grammes of herbal cannabis seized on him, he was intending to sell it to a Vietnamese man for HK$10,000. D1 also claimed that he had rented the Tuen Mun unit in October, November 2016, and that D3 and D5 within the unit were his employees. It took three months to harvest the plants.

In relation to the Yau Tong unit, again it was rented by D1 and that D6 was one of his employees working in the unit. D1 also admitted that he set up the operation at the two units. He laid out all the wiring, did the renovation, purchased the equipments and obtained the seeds. He cultivated the herbal cannabis for monetary profit.

D3 admitted under caution that he had been working at the Tuen Mun unit for six to seven months with a monthly salary of HK$10,000. D3 was responsible for the watering, for the trimming of the cannabis plants.

D5 admitted under caution that he came to Hong Kong illegally in October, November 2016. He was hired by D1 to work at the Tuen Mun unit for HK$10,000 per month. His task was to look after the plants, in particular, cutting flowers from the plants. The flowers would then be dried and put into refrigerator.

D6 admitted under caution that he came to Hong Kong illegally five months before his arrest. His job was to look after the plants. He was, in particular, responsible for seeding, cutting, watering the plants with other workers.

As of May 2017, the retail value of the herbal cannabis found and seized from both the Tuen Mun and Yau Tong units was estimated to be in the region of HK$5.2 million.

D1 is 38, born in Vietnam and came to Hong Kong as refugee when he was small. Essentially, D1 grows up in Hong Kong and lives with his wife and has two children. D1 claimed to be a construction worker prior to his arrest. He has one criminal record but unrelated to drug. In mitigation, mitigation letters were produced from family and friends. They urged the court to pass a lenient sentence. I understand the request, but in a case as serious as the present one, I am afraid personal circumstances pale into insignificance.

It is clear that D1 is the mastermind behind this commercial cannabis operation. This operation was a sophisticated and a substantial one which involved two factory units and lots of equipments. Each unit was manned by a number of employees on a 24/7 basis. Three harvests could be yielded in a year. As one can see this, the total seizure at the time amounts to over HK$5 million.

In relation to the sentence of the offence of trafficking in herbal cannabis, there are no straightforward sentencing guidelines. In the Attorney General v Tuen Shui Ming [1995] 2 HKCLR 129, the court stated that persons with herbal cannabis might be given a discount up to a year from the cannabis resin tariff. In the HKSAR v Touray Edrisa & Ors CACC 124/2014(124/2010?), the Court of Appeal was of the decision that a starting point of 6 years was justified in respect of trafficking in 30.2 kilogrammes of herbal cannabis.

The quantity involved in Charge 2 is one of 22.5 kilogrammes, slightly less than the 30.2 kilogrammes in the case mentioned above. However, D1 was the main operator or mastermind of the operation and benefited directly from it. He was not any small courier or delivery man. On the scale of criminality, he is at the very top. As such, a starting point of 6 years is, in my view, fully justified. Giving credit to his plea, his sentence is reduced to one of 4 years’ imprisonment.

Insofar as Charge 3 is concerned, the starting point for trafficking in 894 grammes of herbal cannabis should be one of 9 months’ imprisonment. Given his plea, the sentence is reduced to one of 6 months.

Insofar as Charge 5 is concerned, the starting point for trafficking in 3.4 kilogrammes of herbal cannabis should be one of 18 months’ imprisonment. Given his plea, the sentence is reduced to one of 12 months’ imprisonment.

The amount of cannabis involved in Charges 2, 3 and 5 relates, essentially, to one operation carried out by D2 at the same time, albeit at two different premises. It is therefore ordered that the sentences imposed on Charges 2, 3 and 5 are to run concurrently to each other, thus making a total of 4 years’ imprisonment.

Insofar as Charges 1 and 4 ie the cultivation of cannabis plants are concerned, there is little guidance from above. The maximum sentence for this offence is one of 15 years’ imprisonment. On the last occasion, I adjourned the hearing and asked the police for further statistics. Statistics for the past 12 years shows that the operation involved in this case, if not the biggest, is one of the biggest in terms of the size of the two premises (over 8,000 square feet), number of cannabis plants seized and the number of employees involved. The operation was by no means small.

Useful guidance can be found from the Court of Appeal in England and Wales in the case of R v Xiong Xu & Ors [2007] EWCA Crim 3129 (21 December 2007). It was held that large-scale cultivation and production of cannabis had become a widespread problem. For those who set up and controlled individual operations, the organizer, the starting point should be 6 to 7 years depending on the quantity of cannabis involved, again before taking into account a plea of guilty and personal mitigation.

As pointed out, D1 is at the top end of the hierarchies of the operation. He is the operator and in control of two operations at two separate premises. Given the extensiveness of his involvement, 7 years each will be adopted as the starting point in respect of Charge 1 and Charge 4. Giving credit to his plea, the sentence in respect of each charge is reduced to one of 56 months’ imprisonment. Having considered the scale of the operation, the timing of the operation and the overall criminalities, it is ordered that Charges 1 and 4 are to run concurrently to each other.

The trafficking in herbal cannabis and the cultivation of herbal cannabis in this case overlapped to a certain extent as far as their criminalities are concerned. However, they are still two distinctive operations and two distinctive offences. Having considered the overall criminality and the totality principle, it is ordered that 1-year imprisonment imposed on Charges 2, 3 and 5 is to run consecutively to the 56 months imposed on Charges 1 and 4. For the offences that the 1st defendant stands convicted, he is therefore sentenced to 68 months’ imprisonment.

D3 is 36 and has received education up to Secondary 4 level in Vietnam. He was a construction worker before coming to Hong Kong. Insofar as D3 is concerned, in respect of Charge 2, given the smaller role he played in the operation, the starting point for this charge is set at 5 years’ imprisonment. Giving credit to his plea, he is therefore sentenced to 40 months’ imprisonment.

Insofar as Charge 1 is concerned, essentially he played his role as a gardener. The starting point is therefore set at one of 3 years’ imprisonment. Giving credit to his plea, his sentence is reduced to one of 2 years. Having considered the role played by D3 in the operation as a whole, it is ordered that 6 months of Charge 1 is to run consecutively to the 40 months imposed on Charge 2, thus making a total of 46 months’ imprisonment.

D5 is 35 and has received education up to Primary 5 level in Vietnam. He was a farmer in Vietnam. As far as D5 is concerned, his role and criminality are exactly the same as D3. His sentence is therefore the same as D3, namely, one of 46 months’ imprisonment in respect of Charges 1 and 2.

D6 is 28 and was a construction worker in Vietnam. Likewise, he played essentially a gardener’s role, a small part in the operation. Insofar as D6 is concerned, in relation to Charge 4, 3 years will be adopted as the starting point. Giving credit to his plea, the sentence is reduced to one of 2 years’ imprisonment.

So far as Charge 5 is concerned, the amount of cannabis involved in 3.4 kilogrammes. 18 months is adopted as the starting point, which will then be reduced to one of 12 months, giving credit to his plea. And having considered the overall criminality of D6 involved and the totality principle, 6 months of Charge 5 is to run consecutively to the 2 years imposed on Charge 4. Thus, D6 is going to serve a total of 30 months’ imprisonment.