HKSAR v. NGUYEN THU HA

CACC 335/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 335 OF 2013

(ON APPEAL FROM DCCC NO. 643 OF 2013)

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J U D G M E N T

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1. The applicant seeks leave to appeal against the sentence of 11 months’ imprisonment imposed upon her on 21 August 2013 by Deputy District Court Judge Longley following her conviction on her plea of guilty to a single charge of cultivating cannabis plants at Flat D, 9^th Floor, Cheong Fok House, 97-101 Apliu Street, Sham Shiu Po, Kowloon, contrary to section 9(1) and (5) of the Dangerous Drugs Ordinance, Cap. 134.

THE FACTS

2. The Particulars of Offence stipulated that present in the premises were 181 living plants, weighing a total of 8,892.38 grammes, together with 1,850 grammes of cannabis leaves.  Amongst the paraphernalia found on the premises which were used in the cultivation of the plants were 10 high-intensity lamps, electric timer switches, electric fans and exhaust extraction fans. 

3. The applicant admitted under caution that she had been paid by someone she described as “Ah Chun” to cultivate cannabis in the premises.  She said that she lived in a nearby flat and came to the premises each day for a few hours in order to water the plants.  She was paid $500 per day to do so and had received over $20,000 from him in the course of working for a period of about 2 to 3 months.

4. An expert from the Agricultural, Fisheries and Conservation Department estimated that the amount of herbal cannabis that could be produced from the plants was about 9% of their weight.  That produced 996 grammes of herbal cannabis, the value of which was estimated to be $107,316.  Furthermore, he estimated that the plants could yield a total of 3,823 grammes of herbal cannabis per year.

Reasons for sentence

5. In his reasons for sentence, the judge noted that the maximum penalty provided for the offence is 15 years’ imprisonment and a fine of $100,000.  Having noted that the premises had been set up for the cultivation of cannabis by someone else, the judge stated that he was satisfied that the applicant was not the prime mover of the commission of the offence.  Nevertheless, the judge said that he was satisfied that the applicant was aware that serious consequences would follow if she was apprehended. He found that the applicant knew that the cannabis was being cultivated for the purpose of supplying it to others for consumption, namely for the purpose of trafficking.  He described the operation as being, “a relatively sophisticated medium-sized operation”.

Mitigation

6. Acknowledging, that the applicant was 36 years of age and a mother of four children, two of whom were her sole responsibility, the judge said that the mitigating circumstances included the applicant’s plea of guilty and other circumstances which had been brought to his attention.

Starting point for sentence

7. In identifying the appropriate starting point for sentence, the judge said that the prime consideration was the deterrence of others from committing similar offences.  In the result, he stipulated a starting point for sentence of 20 months’ imprisonment.

Discount

8. Having said that he had regard to the factors of mitigation, the judge said that he discounted sentence to a sentence of 11 months’ imprisonment, which sentence he imposed on the applicant.  

Sentence

9. The judge ordered the sentence of 11 months’ imprisonment to be served consecutively to a sentence of two months’ imprisonment, suspended for 18 months, imposed upon the applicant on 30 April 2012, which sentence he activated.  Accordingly, the total sentence of imprisonment imposed upon the applicant was 13 months.

Grounds of appeal against sentence

10. In her home-made grounds of appeal against sentence, the applicant contended simply that the sentence imposed upon her was “excessive”.  Today, she has drawn the court’s attention to a table of five cases that were provided by counsel representing her in the lower court to the judge.  No mention was made of those cases in the judge’s reasons for sentence.  In particular, she draws the court’s attention to the reasons for sentence of a District Court Judge, Anthea Pang in HKSAR v Hoang Thanh Son [1] DCCC 657/2011 in which sentence was passed on 27 October 2011.  There, the 1^st defendant who had pleaded guilty to a charge of cultivation of cannabis plants in the same offence faced by the applicant the judge had taken a starting point for sentence of 21 months’ imprisonment.  In that case, there were 149 cannabis plants.  The applicant invited the court to note that the judgment of the reasons for sentence stated at paragraph 7 that the estimated annual yield of herbal cannabis cropped from those plants was 9,190.32 grammes.  Of that, she emphasizes that there is almost three times the estimated annual productive capacity of the plants involved in her case. 

Discussion

11. There is no tariff for the offence of cultivating cannabis plants.  All of the five cases to which references made in the table are merely sentences imposed by lower court judges. 

12. In the judgment of this Court, in the Attorney General v. Tuen Shui Ming & Another [2], a tariff of the possession of cannabis resin for the purpose of unlawful trafficking was stipulated.  However, the court went on to state that the tariff was to be adjusted by a judge dealing with unlawful trafficking in either herbal cannabis or cannabis oil.  In respect of the former it was suggested that, other than for very large amounts, it would be appropriate to discount up to a year from the sentence of imprisonment that would have been imposed in respect of unlawful trafficking in cannabis resin. 

13. In HKSAR v Nguyen Van Cuong [3] and HKSAR v Hoang Thanh Son, District Court Judges Eddie Yip and Anthea Pang respectively, accepted that the appropriate approach to sentencing was to have regard to the opinion of an expert as to the estimated annual yield of herbal cannabis from the plants, rather than to the weight of the plants at the time of the arrest of the applicant and seizure of the plants.  Clearly, that is the approach that the judge followed in the instant case. 

14. It is to be noted that the tariff stipulated for unlawful trafficking cannabis resin for the band of over 3,000 grammes is in the range of 24 to 36 months’ imprisonment.  Unlawful trafficking in over 6,000 grammes attracts a sentence in the range of 36 to 48 months’ imprisonment.  From that range of sentence up to one year’s imprisonment it is to be subtracted for unlawfully trafficking in herbal cannabis. 

15. The judgment of the Court of Appeal of England and Wales in R v Xiong Xu [4] and R v Auton [5] are of assistance in identifying the factors relevant to sentence in respect of the offences of cultivation and production of herbal cannabis in operations that vary in size from the large scale commercial production, sometimes called ‘industrial scale production’, to the smaller scale, but nevertheless well-planned and resourced.

16. It is clear that in the instant case the role of the applicant was that of a “gardener”.  In R v Auton [6], namely carrying out the role of tending to the plants, but not a person who set up or ran the operation.  On the other hand, as the judge found clearly the applicant was aware that she was playing an important role in what was a smaller scale commercial operation, the object of which was to produce herbal cannabis for unlawfully trafficking, for which she was paid.

17. Given the role of the applicant and the entirely commercial nature of the operation, the judge’s starting point of 20 months’ imprisonment was generous.  The discount that the judge afforded the applicant, namely 9 months’ imprisonment from a starting point of 20 months’ imprisonment, represented a discount of 9 months or 45% from the starting point.  In the particular circumstances of the instant case and on the information available to the court on the papers, that discount was appropriate. 

Conclusion

18. Accordingly, the applicant’s application for leave to appeal against sentence is dismissed.

[1]   HKSAR v Hoang Thanh Son (DCCC 657/2011; unreported, 27 October 2011).

[2]   Attorney General v Tuen Shui Ming & Another [1995] 2 HKCLR 129.

[3]   HKSAR v Nguyen Van Cuong (DCCC 514/2009; unreported, 29 June 2009).

[4]   R v Xiong Xu [2007] EWCA Crim 3129; 21 December 2007.

[5]   R v Auton [2011] EWCA Crim 76; 3 February 2011.

[6]   R v Auton paragraph 2.