HKSAR v. HUNG CHUNG KUEN

DCCC 903/2019

[2020] HKDC 433

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 903 OF 2019

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Reasons for Sentence

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1.  The defendant pleaded guilty to two counts of trafficking in a dangerous drug and was convicted accordingly. The dangerous drug involved is mainly cannabis in herbal form.

Brief facts

2.  At the material time, the defendant was residing at a unit in Block 9, Locwood Court, Tin Wu Road, Tin Shui Wai (the flat). At about 2:48 pm, on 17 October 2018, the defendant was intercepted at the lobby of Locwood Court. The defendant was carrying two bags with him. Upon search, the police found the following items:

(1) 364.96 grammes of herbal cannabis;

(2) 13.7 grammes of a liquid containing traces of tetrahydrocannabinol, being a tetrahydro derivative of cannabinol (cannabis oil);

(3) Cash of HK$46,500;

(4) Keys to the flat and to a private vehicle with the registration number VM9521 which was parked in the vicinity.

3.  The defendant was arrested and under caution, the defendant admitted that all the cannabis belonged to him. 

4.  The police conducted a house search and discovered the following items: 

(1) 28,500.42 grammes of herbal cannabis;

(2) 26.3 grammes of a liquid containing traces of tetrahydrocannabinol, being a tetrahydro derivative of cannabinol (cannabis oil);

(3) Drugs packing equipment including electronic scale and a large quantity of resealable plastic bags (see photo 24 of the album MFI-1).

5.  The defendant was cautioned again and he admitted that all the cannabis in the flat belonged to him and he intended to sell the drugs.

6.  The police also discovered cash in the sum of HK$650,000 in the said vehicle. In the video-recorded interview, the defendant made the following admissions: 

(1) He resided in the flat for a few years, and was the only person who had the key to the flat;

(2) All the cannabis and cannabis oil seized in the flat belonged to him;

(3) He refused to explain the ownership and the source of the cash of HK$650,000 found in the private vehicle;

(4) The cash of HK$46,500 found on him belonged to him.

7.  Chemical analysis confirmed that the dangerous drugs seized from the defendant and found inside the flat amounted to 28,865.38 grammes of herbal cannabis and 40 grammes of a liquid containing traces of cannabis oil. The estimated street value of the drugs is about HK$6 million.

8.  The registered owner of the private vehicle was interviewed under caution. She confirmed that she owned the car and lent the same to the defendant about two months ago before the arrest of the defendant. She claimed that she had no knowledge of the cash of HK$650,000 found in the car and the money does not belong to her.

Mitigation

9.  The written skeleton submission was filed yesterday. It was submitted that the defendant has a 7-year-old son by his previous marriage. The defendant formed another relationship after the breakup of his marriage. Recently, the defendant’s second son was born. The defendant’s previous employer offered to re-employ the defendant upon his release. The defendant intends to continue to house his two families so that he can play an active role in both families.

10.  Today, his partner and his family members are in court to show support to the defendant. 

11.  Defence counsel relied heavily on three authorities:  AG v Chan Chi-man [1987] HKLR 221, AG v Tuen Shui-ming & Anor [1995] 2 HKC 798 and HKSAR v Chor Lui [2001] 3 HKLRD 95.

12.  It was submitted that although the defendant was found in possession of a liquid containing traces of cannabis oil, the amount was too small to be quantified. It was suggested that this part of seizure should not add to the sentence.

13.  It was further submitted that in the case of Tuen Shui-ming, the drugs involved were 51,230 grammes of cannabis resin, the Court of Appeal thought a starting point of 7 years was appropriate. The sentence should be adjusted downwards if herbal cannabis was involved. As such, defence counsel suggested that in the present case, “an appropriate starting point would be in the region of 5 years less 1 year for the herbal nature of the drug” (paragraph 1 of the written submission).

14.  Defence counsel also asked this court to note the donations made by the defendant as evidenced in the documents enclosed in the bundle. 

15.  Defence counsel also suggested that the defendant will not object to the confiscation of the cash totalled HK$696,500 found on him and in the private vehicle respectively.

Sentence

16.  The sentencing guideline in the case of Chan Chi-man relating to cannabis resin was partially recast in the subsequent case of Tuen Shui-ming by the Court of Appeal. It was said the sentencing court could properly adjust that figure [refer to the seizure of 9,000 grammes of cannabis resin with the starting point of 48 months’ imprisonment] to a limited extent in accordance with the concentration of tetrahydrocannabinol (THC).

17.  It was further said that the starting point could properly have been varied to a lower point if there is a very low concentration of THC. 

18.  The Court of Appeal further held that a sentencing court must bear in mind that the 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 of also about four times higher than the average in cannabis resin. 

19.  In the end, the Court of Appeal laid down the sentencing guideline for offences of possession of cannabis resin for the purpose of unlawful trafficking. For quantity of over 9,000 grammes, the starting point is 4 years and upwards.  It was also held that:

“Persons with herbal cannabis could, except perhaps in cases where very large amounts are involved, properly be given a discount of up to a year from the sentence that would have been imposed had they had a similar amount of cannabis resin. Should offenders be discovered with cannabis oil and we think an increase of at least that length would be warranted.” (see page 135, lines 32 to 38 of the judgment).

20.  The defendant was born in Hong Kong and is now aged 44 and has two sons in total, one by his first marriage. By pleading guilty to the charges, it can show that the defendant is remorseful and would turn a new leaf upon his discharge from prison. His previous employer is willing to re-employ the defendant as an air-conditioner technician. The defendant also made regular charitable donations.

21.  The chemist’s certificate (MFI-2 and 3) do not spell out the THC content of the herbal cannabis. But there are some 171 large plastic bags containing 2,609 smaller plastic bags containing herbal cannabis. The liquid in those containers totalled 40 grammes in these two charges contains traces of THC.

22.  The defence submitted that the liquid cannot be regarded as cannabis oil. As such, defence counsel suggested that the liquid should not add much to the sentence (paragraph 4 of the written submission).

23.  Since 1993, the defendant has a total of 10 previous convictions, out of which three related to dangerous drugs. The defendant was sentenced to 16 months’ imprisonment for a similar offence of drug trafficking back in 2006.

24.  In my view, it is a wise decision for the defendant to plead guilty to the charges as he was caught red-handed. I am of the view that there were special circumstances on the papers, and am sure that the defendant will resume his role as a father to look after his two young sons.  A lenient view is justified so that the defendant can reunite with his family and turn a new leaf.

25.  For Charge 1 in which 364.96 grammes of herbal cannabis and 13.7 grammes of a liquid containing traces of THC, I have to consider the sentencing guideline as promulgated in the cases of Chan Chi-man and Tuen Shui-ming which related to seizure of cannabis resin, and with the proper adjustment for seizure relating to herbal cannabis. There is no evidence of the actual THC content in these herbal cannabis. I would adopt a starting point of 7 months less 1 month to reflect the herbal form of the cannabis. 

26.  As I said earlier on, the defendant has strong mitigating grounds. I would give him bigger discount in sentence. As such, for Charge 1, I sentence the defendant to 3 months and 2 weeks’ imprisonment from a starting point of 6 months.

27.  For Charge 2 which involved 28,500.42 grammes of herbal cannabis and 26.3 grammes of a liquid with traces of THC, I would adopt a starting point of 5½ years and less 1 year as the starting point, that is 4½ years (54 months). To be consistent, I would also allow a bigger discount in sentence and reduce the sentence to 30 months. 

28.  I have to consider the totality principle and would take a lenient stance. Both sentences are to be served concurrently. That is to say, I sentence the defendant to a term of 30 months’ imprisonment. I would also confiscate the cash in the total sum of $696,500.