HKSAR v. GREENAWAY MATTHEW JOHN

DCCC 272/2021

[2021] HKDC 731

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 272 OF 2021

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REASONS FOR SENTENCE

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1.  On his own pleas and admission of the facts, the defendant was found guilty of three offences under the Dangerous Drugs Ordinance (DDO), Cap 134:-

(1)  Cultivation of cannabis plants, contrary to section 9(1) and (5) of DDO (the Cultivation offence);

(2)  Possession of dangerous drugs, contrary to section 8(1)(a) and (2) of DDO (the Possession offence); and

(3)  Trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of DDO (the Trafficking offence).

Facts

2.  On 23 March 2020 around 1244 hours, the defendant was stopped by police officers when he was taking some fans out of a taxi which was stopped outside No 8 of San Wa On Lane in Tai Po.  In the defendant’s trouser pocket, the police found, among other things, a wallet containing HK$13,770 cash, some keys, and 2 plastic bags containing substances which were later found by the Government Chemist (GC) to contain 0.02 gramme of a plant material containing tetrahydrocannabinol (THC), and 0.62 gramme of herbal cannabis.  These substances are the dangerous drugs of the Possession offence.

3.  The police then proceeded with the defendant to a village house at No 8 of the said lane (the House) and gained entry to the 2^nd Floor and the Rooftop of the House with the keys seized from the defendant.

4.  The police found a total of 13 pots of cannabis plants inside 2 tents in a room on the Rooftop, and 2 pots of cannabis plants inside a tent in a storeroom on 2^nd Floor.  These are the cannabis plants of the Cultivation offence.

5.  There were lights, cannabis seeds, liquid fertilizers and thermometers near the cannabis plants.  A calendar with markings that read “Veg Day 1” and “Flower Day 1” was found on top of one of the tents in the room on the Rooftop.

6.  Containers, paraphernalia and machines (such as bottles, boxes, plastic bags, mugs, syringes, grinders, capsules, molds, compressors with meters, embossing machines, digital scales, electric fans, thermometers, plant lights and LED grow lights), some of which contained THC in the forms of gummy solid, liquid and solid, as well as some herbal cannabis and cannabis resin, were found on the Rooftop and in the kitchen, the living room and the storeroom on the 2^nd Floor.

7.  The items referred to in the above paragraph were found by the GC to be: (i) 455.12 grammes of cannabis in herbal form, (ii) 243 grammes of gummy solid containing THC, (iii) 260.05 grammes of a liquid containing 19.37 grammes of THC, (iv) 2 paper packets containing 43.89 grammes of a solid containing 29.7 grammes of THC, and (v) 7.96 grammes of cannabis resin.  These are the dangerous drugs under the Trafficking offence.

8.  Under caution, the defendant admitted that he had started renting the Rooftop and 2^nd Floor of the House about 7 months prior to this arrest, that the cannabis plants were planted by him, and that he had started planting them since January 2020.  He was the only one who would use the room on the Rooftop and the storeroom on the 2^nd Floor.  Of the objects seized by the police, the cannabis candies were made by him with the ingredients in the kitchen, and the cash was earnings from his previous private tuition work.

9.  According to the expert opinion of the GC and the Agricultural Officer, the 15 pots of plants found in the House were a total of 4,424.82 grammes of cannabis in the form of plants.  Of these 15 cannabis plants, 13 of them were ready for harvest and could yield 3 crops a year, whereas the other 2 were still not mature enough for harvest and would produce less than 3 crops a year; the dry weight of the cannabis extracted from each of these 15 plants added up to 634.89 grammes; the estimated annual yield in dry herbal form for these 15 plants was 1,893.79 grammes.

10.  According to the police, the average retail price in March 2020 was HK$164/gramme for herbal cannabis and HK$79/gramme for cannabis resin.

Defendant’s Background

11.  The defendant has a clear record.

12.  He is now 35 years old.  He was born and educated in England, and is a Bachelor of Arts in Linguistics and Education, as well as a Master of Arts in Applied Psychology with a focus on the psychology of children.  He came to Hong Kong in January 2011, and was employed in teaching young children in a kindergarten between 2011 and September 2019.  He was unemployed at the time of his arrest.  In late 2020 he married his girlfriend who is a Hong Kong resident suffering from a serious degenerative eye disease called Bull’s Eye Maculopathy.  He was addicted to drugs, and he has been suffering from chronic Irritable Bowel Syndrome (IBS) for 20 years.

Mitigation

13.  Defence counsel points out that the cultivation was not carried out on a large scale or as a commercial operation but rather as a one-man domestic undertaking.

14.  Part of the cannabis in question was for the defendant to self-medicate for his chronic IBS.

15.  The defendant is remorseful and is willing and fully prepared to shoulder the consequences of his wrong-doing, as evidenced by his cooperation with and his frank admissions to the police, followed by his pleas of guilty before the Court.

16.  The defendant is determined to start afresh after serving his sentence and to take good care of his wife whose eyesight may be completely gone in 2 to 3 years’ time.  His chances of re-offending are said to be extremely low.

17.  In his letter to the Court, the defendant expresses his deep remorse for the commission of these offences.  He says he lost his teaching job because of school closure due to the recent protests and the covid-19 outbreak.  In January 2020, he began to cultivate cannabis plants for domestic use to alleviate his chronic bowel and abdominal pain.  He has learned his lesson and is determined not to repeat his crime again.  He wishes to be given the chance to become a productive member of the society.

18.  The defence has submitted 4 other letters, all written by parents of the defendant’s former students.  They all speak highly of the defendant as a teacher and mentor to their children.

19.  Defence counsel has referred me to a number of authorities in support of his submissions on quantum and the approach to sentencing.  Some of these cases will be referred to in my sentencing considerations.

Sentencing considerations

The Cultivation offence (1^st Charge)

20.  It was held in Secretary for Justice v Cheung King Kong [2020] 3 HKLRD 837 that in assessing the starting point for sentence for the offence of cultivation of cannabis plants, the annual yield of the cannabis cultivation operation should be estimated and the tariffs for trafficking cannabis resin in HKSAR v Tuen Shui-ming[1] applied.  Given that the potency of herbal cannabis was lower than that of cannabis resin, a discount of up to 1 year should be given in determining the starting point.  Other relevant factors, such as the scale of the operation, the defendant’s role, and the annual earnings, should then be considered before arriving at the ultimate sentence.

21.  The tariffs for trafficking in cannabis resin as set out by the Court of Appeal in Tuen Shui-ming are as follows:-

(a)  under 2,000 grammes - up to 16 months;

(b)  over 2,000 grammes - 16 to 24 months;

(c)  over 3,000 grammes - 24 to 36 months;

(d)  over 6,000 grammes - 36 to 48 months;

(e)  over 9,000 grammes - 4 years and upwards.

22.  In our case, the expert’s opinion is that the weight of herbal cannabis that could be produced per annum from the 15 plants in question was 1,893.79 grammes.  This amount would fall near the top end of the sentencing band for the “under 2,000 grammes” category.  I would adopt 15 months and deduct 6 months from it to take account of the discrepancy in potency between cannabis resin and herbal cannabis.  The notional starting point for the Cultivation offence is therefore 9 months imprisonment.

23.  Given that the average retail price of herbal cannabis in March 2020 was $164/gramme, the estimated annual yield of the plants would generate an annual retail value of around $310,000, which works out to be slightly less than $26,000 per month.

24.  Having seen the photographs of the growth operation, and judging from the number of plants and the estimated retail value of the annual yield, I am satisfied that the cultivation was not a large-scale operation but was essentially a domestic undertaking run the defendant, who at the time had a clear record.

25.  I can see no aggravating features which call for an upward adjustment to the notional starting point of 9 months.

The Possession offence (2^nd Charge)

26.  This charge involves possession of 0.02 gramme of a plant material containing THC, and 0.62 gramme of herbal cannabis.

27.  For sentencing purposes, I will disregard the plant material component for the reason that its amount is so small that it cannot have any discernible impact on the sentence.

28.  That leaves the possession of herbal cannabis as my only concern.

29.  There are no guidelines for the offence of possession of herbal cannabis.  Given its minute quantity, I would impose a prison sentence of 7 days for his guilty plea, and order it to run concurrently with his sentence for the Trafficking offence.

The Trafficking offence (3^rd Charge)

30.  This offence involves trafficking in different cannabis-related substances namely, 7.96 grammes of cannabis resin, 455.12 grammes of herbal cannabis, 260.05 grammes of a liquid containing 19.37 grammes of THC, 43.89 grammes of a solid containing 29.7 grammes of THC, and 243 grammes of gummy solid containing THC.

31.  While the Tuen Shui-ming tariff can be engaged with respect to the cannabis resin and the herbal cannabis, it cannot be applied directly to the solid and the liquid containing THC.

32.  As defence counsel correctly points out, there are no authorities in relation to how a court is to approach sentencing for trafficking in substances containing THC.

33.  Prosecuting counsel was unable to offer any assistance to this court on the sentencing approach with regard to trafficking in such a substance.

34.  Citing the definition of “cannabis” as any plant or any part of any plant of the genus cannabis which contains THC, defence counsel argues that as THC is extracted from cannabis, therefore THC should come under the meaning of “any part of any plant”, and if the substance is neither cannabis resin nor cannabis oil, it should be captured by the cannabis simpliciter definition.

35.  Counsel then suggests that the court should equate substances containing THC with herbal cannabis for sentencing purpose and apply the Tuen Shui-ming tariff in accordance with the weight of THC rather than the weight of the substance containing it.

36.  I do not accept this argument.  If cannabis is a plant which contains THC, how can a substance it contains be treated as the plant itself?  Moreover, in terms of quantity, anything which is extracted from another object is bound to be less than the object from which it is extracted.  It would therefore be wrong to treat the two as having the same weight.

37.  I reject defence counsel’s suggestion of applying the weight of THC to the Tuen Shui-ming tariff for assessing the quantum of sentence.

38.  Since THC is an extract from cannabis, information concerning the concentration of THC in herbal cannabis will be of assistance in calculating how much of herbal cannabis would be needed to produce a certain amount of THC. The Tuen Shui-ming tariff can then be applied to the result of such a calculation.

39.  While this court does not have any data or information on the recent percentage concentration of THC in herbal cannabis, the Court of Appeal in Tuen Shui-ming did.

40.  Delivering the judgment of the Court in that case, Power V-P referred to the evidence of the forensic scientist and said:-

“Mr. Chan Man-fai, a forensic scientist of the Government Laboratory, stated that the concentration of THC in herbal cannabis is mostly influenced by the plant and the degree of cultivation and that climate also plays a part. He said that in Hong Kong the typical percentage concentration levels of THC in recent herbal cannabis preparations analyzed fell into the range of 0.8% to 2.5%, giving an average of 1.73%. This percentage is, however, only a rough approximation given the method of analysis used for herbal cannabis…”[2]

41.  The reference made recently by the Court of Appeal in Cheung King Kong case to the Government Chemist’s evidence indicates that the THC concentration levels of herbal cannabis have probably been on the rise.  The Court said, “… a report shows that there is an increasing trend in the cannabis potency of cannabis end products recently.”[3]

42.  In the absence of recent data, I would adopt the upper end of the range of THC concentration levels referred to in Tuen Shui-ming case to calculate the notional amount of herbal cannabis needed for the production of the THC in the solid and the liquid in question.

43.  I would then make an adjustment to the resulting sentence with a suitable reduction to take account of (i) the possibility that the THC of the substances in the 3^rd Charge may have been obtained from herbal cannabis with a THC concentration higher than the 2.5% adopted in my calculation, given the increasing trend in potency referred to in Cheung King Kong, and (ii) the amount required for herbal cannabis with a high THC concentration level should be less than that required for the same drug with a lower THC concentration level for the production of the same amount of THC.

44.  The amount of THC in the solid and the liquid had a total weight of 49.07 grammes. If this amount represents 2.5% concentration of THC, then the amount of herbal cannabis required to produce it would be 1,962.8 grammes (49.07 grammes x 100/2.5).

45.  As for the 243 grammes of gummy solid containing an unspecified amount of THC, I would regard the amount of THC found therein to be so minute as to have no meaningful impact on sentencing.

46.  The sum total of (i) the notional amount of 1,962.8 grammes of herbal cannabis needed for the extraction of 49.07 grammes of THC, (ii) the 455.12 grammes of herbal cannabis found, and (iii) the 7.96 grammes of cannabis resin found, is 2,425.88 grammes.  This amount would fall near the middle of the sentencing band of 16 to 24 months for trafficking in over 2,000 grammes and up to 3,000 grammes of cannabis resin as set out in the Tuen Shui-ming tariff.  I would adopt 20 months as a starting point.

47.  From this 20 months, I would deduct: (i) 3 months on account of the likelihood that the THC in the solid and the liquid may have been extracted from herbal cannabis with a THC concentration higher than 2.5%, hence resulting in a lower notional quantity required for the production of the THC in question, and (ii) a further 7 months in recognition of the difference in potency between cannabis resin (to which the tariff applies) and the herbal cannabis actually found and those that would have been needed to produce the 49.07 grammes of THC.  This would result in a sentence of 10 months.

Own Consumption

48.  I accept counsel’s oral submission that part of the drugs in the trafficking charge was for the defendant’s own consumption.  Having made that submission, counsel conceded that he had no evidence to show what proportion of the drugs was for the defendant’s own use.

49.  I would deduct 1 month in consideration of the defendant possessing some of the drugs in the 3^rd Charge for his own use.

50.  The resulting sentence for this charge would be 9 months before plea.

Guilty pleas

51.  The defendant’s pleas of guilty, which is the only effective mitigating factor in this case, merit a one-third discount in sentence.  For the Cultivation offence, the sentence would be 6 months after discount.  As I indicated earlier, his 7 days sentence for the Possession offence would run concurrently with his sentence for the Trafficking offence, which is 6 months after a one-third discount.

52.  The sentence for each charge after plea would be as follows:-

(i)  1^st Charge – 6 months;

(ii)  2^nd Charge – 7 days;

(iii)  3^rd Charge – 6 months.

Totality

53.  Defence counsel urges the court to impose wholly concurrent sentences for all 3 charges.  I was referred to the case of HKSAR v Nguyen Thang-loi[4], in which the applicant applied for leave to appeal against sentence.  He had pleaded guilty to one count of trafficking cannabis in the form of bundles of plants, and one count of cultivation of cannabis plants.  The sentencing judge ordered a part of the sentence for the trafficking offence to run consecutively to the sentence for the cultivation offence.  One of the grounds of appeal (Ground 1) was that the judge erred in law in ordering the partial consecutiveness of the two sentences.  Finding this ground reasonably arguable and granting the application for leave, Zervos JA said:-

“21. In respect of Ground 1, in my view, there is merit in the argument that the sentences of Counts 1 and 2 should have been concurrent or the quantity of drugs under the two counts considered together when sentencing the applicant. It is arguable that the two quantities of drugs, although seized at different locations, are common stock and closely linked in time. It comes down to the question as to whether one count adds to the culpability of the other. See HKSAR v Mohammed Tofael Ahmed, unrep., CACC 306/2018, 3 January 2020; and HKSAR v Wan Lau Mei [2014] 4 HKC 75.”

54.  In the course of her argument in the Nguyen Thang-loi case, counsel for the applicant pointed out that the Court of Appeal in Secretary for Justice v Cheung King Kong, supra, also ordered the charges of cultivation of cannabis and trafficking in a dangerous drug to be served concurrently.

55.  It should be noted, however, that in Cheung King Kong case, while it is true that the defendant pleaded guilty to a cultivation charge and to a trafficking charge and the sentencing judge did order the sentences for these two charges to run concurrently, the Secretary for Justice’s application was for a review of sentence for the cultivation charge only, and the propriety of that sentence was what the Court of Appeal was concerned with.

56.  In our case, bearing in mind the defendant’s admission that he had started cultivating those plants since January 2020, as well as the expert opinion that 13 out of the 15 plants were ready for harvest, it seems extremely unlikely that the 49.07 grammes of THC found in the solid and liquid could have been extracted from the plants found in the House.  Trafficking in these substances would add the defendant’s culpability to the Cultivation charge.

57.  As to the other cannabis-related items of herbal cannabis and cannabis resin, I cannot be sure whether they had come from the plants being cultivated there, and I will give the defendant the benefit of the doubt by treating them as part of the products of those plants.

58.  In view of the defendant’s overall culpability and of the totality principle, I order that the 7 days sentence for the 2^nd Charge is to run concurrently with the 6 months sentence for the 3^rd Charge, and that 4 months of the sentence for the 3^rd Charge are to run consecutively to the 6 months sentence for the 1^st Charge.  This results in a total sentence of 10 months.

59.  The Defendant is sentenced to a total of 10 months imprisonment for all the charges.