HKSAR v. TSANG SUI LUN AND ANOTHER

DCCC 55/2021

[2021] HKDC 842

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 55 OF 2021

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REASONS FOR SENTENCE

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1.  Both defendants plead guilty to a joint charge of cultivation of cannabis plants, contrary to section 9(1)  and (5)  of the Dangerous Drugs Ordinance, Cap 134, and also a joint charge of trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the Dangerous Drugs Ordinance, Cap 134.

2.  The facts they admitted can be summarized as follows.

3.  At around 1609 hours on 24 March 2020, a team of police officers intercepted the 1^st defendant when he walked out from the House which is situated at Lantau (hereinafter called “the House”).

4.  The 1^st defendant was escorted back to the House and the police used the keys found on the 1^st defendant to open the gate and the door of the House.

5.  Upon the search of the House, 532 units of cannabis plants (Charge 1)  and 18 packets/bags of dried cannabis (3,965.41 grammes in total)  (Charge 2)  together with certain equipment and devices etc for cultivation of cannabis plants and trafficking of cannabis were found inside the House.  The 1^st defendant was arrested.

6.  Subsequently, around 2208 hours, the 2^nd defendant was intercepted and then arrested outside the House when he walked near there.  Under verbal caution, the 2^nd defendant said that he and the 1^st defendant rented the House to cultivate cannabis for their own consumption.

7.  In the subsequent cautioned video recorded interviews, the 1^st defendant said that they started renting the House in December 2018, and explained how they used the equipment and devices to cultivate the plants and that he would consume some of the cannabis.

8.  In the subsequent cautioned video recorded interviews, the 2^nd defendant said that he started smoking cannabis 3 to 4 years ago; he wanted to earn money from cultivation to help with the medical expenses of his mother; the packaged cannabis were for self-consumption; some of the cannabis would be given to his friends.

9.  According to the Agricultural Officer, she opined that the equipment and devices found in the House can adjust or provide an optimum environment for plant growth, and the equipment and devices and the planting materials were tailor-made for the cultivation.

10.  She opined that out of the 532 cannabis plants on site, 246 of them were ready for harvesting with an approximate height of 57 to 109 cm and that indoor cultivation of cannabis plants in pots was carried out in the House.

11.  She also opined that the average weight percentage of the cannabis in dry herbal form from the cannabis plants was about 14%, and the annual yield of the cannabis found would be about 26.6 kg in dry herbal form for consumption.

Criminal records and background of the defendants

12.  In mitigation for the 1^st defendant, Ms Wong submitted that the 1^st defendant was born on 17 January 1986, and was 34 years old at the time of the offence.  He is now 35 years old and single.

13.  At the time of the offence, the 1^st defendant lived in the House referred to in the charges.  He and the 2^nd defendant rented the House in December 2018 and paid the rent in equal share.

14.  Ms Wong also submitted that the 1^st defendant was educated up to Form 5 and was a decoration worker earning just over HK$20,000 per month prior to the arrest of this case.  He has a clear record before the instant case.

15.  Mr Pun for the 2^nd defendant, in mitigation, submitted that the 2^nd defendant was born in Mainland China in 1985.  He came to Hong Kong lawfully in 1997.  He is now 35 years old.

16.  Mr Pun stated that the 2^nd defendant received education up to Form 5 in Hong Kong, and was an air-conditioner technician on casual basis.  At the material times, his income was reduced to HK$13,000 to HK$14,000 a month.  He would pay HK$5,000 to his mother and HK$5,000 to his wife as living expenses.

17.  He is married with 2 sons who are 5 years and 3 years old respectively. He has an elderly mother who suffers from lymphoma and pancreatic cancer.

18.  Mr Pun also admitted on behalf of the 2^nd defendant that the 2^nd defendant has 2 criminal records in 2003 and 2004.  His last conviction was in December 2004 when a probation order was imposed for possession of dangerous drug, and submitted that the 2^nd defendant would consume cannabis.

19.  Letter written by the 2^nd defendant is also attached and Mr Pun pointed out that the contents of which recognized the full extent of how much he had let himself and his family down.

20.  Letters from the 2^nd defendant’s wife, mother, siblings and relatives are also attached, and all of them ask for leniency on his behalf.

Mitigation

21.  In mitigation, both Ms Wong and Mr Pun emphasized the fact that both the defendants had pleaded guilty to the offence at the earliest opportunity and are entitled to the full one-third discount.

22.  Ms Wong submitted that the 1^st defendant started to smoke cannabis for about three years prior to his arrest in this case, smoking 3-10 sticks of cannabis a day at times, and that the 1^st defendant was a cannabis user at the time, which could be confirmed by the urine test conducted after he was remanded in Lai Chi Kok Reception Centre for this case.

23.  Ms Wong stated that the urine sample of the 1^st defendant was collected on 28 March 2020 and was subsequently tested positive for cannabis and negative for other drugs.

24.  Ms Wong further stated that when the 1^st defendant was interviewed by the police, he had also explained that he would consume some of the cannabis in the House.

25.  Ms Wong submitted that the court may award a discretionary discount for the 1^st defendant’s self-consumption of the cannabis involved.

26.  Ms Wong further submitted that the 1^st defendant came across the idea of cultivating cannabis on YouTube, and in a bid to grow some cannabis for their own consumption, he and the 2^nd defendant started the amateurish cultivation of cannabis in late 2019.

27.  Ms Wong also stated that the defendants’ initial product were not of good quality and looked mouldy, and were just left in the House.  The 1^st defendant also felt that the colour of the product was too dark to be of good quality.  The defendants were still at the stage of improving their product’s quality when their experimental operation was intercepted by the police.

28.  Ms Wong submitted that there is no evidence of defendants’ engaging anybody else in their operation; the operation had not got to the distribution stage and there was no middleman involved; the planning of the operation could not be said to be elaborate; the House was not solely used for cultivation but the defendants’ home, and that it appeared to be an amateurish operation.

29.  In respect of the starting point of the charges, Ms Wong submitted that there is no tariff for the offence of cultivation of cannabis plants.  The Court of Appeal in Secretary for Justice v Cheung King Kong[i], after reviewing various authorities from various jurisdictions, states:-

“58. Summing up the approaches in the above authorities from various jurisdictions, we are of the view that the main sentencing consideration for this offence is the estimated annual yield of the cannabis cultivation operation. Other aggravating factors have also to be taken into account. The scale of the cultivation and the annual yield generally have a direct impact on the annual earnings and are significant pointers to be taken into consideration in sentencing., and the court has to take account of the size of the operation and annual yield.”

30.  Ms Wong submitted thatthe case of Cheung King Kong involves two charges: cultivation of cannabis of 31,876.63 grammes of cannabis in plant form (1^st charge)  and trafficking in 1,080 grammes of cannabis in herbal form (2^nd charge), similar to our instant case.  The annual yield in Cheung King Kong is calculated to be 27,209 grammes (see para 66 of judgement), and the Court of Appeal then states:-

“67. For an annual yield of 27,209 grammes of cannabis, according to the tariffs[ii] in Tuen Shui Ming, the starting point will be higher than four and a half years’ imprisonment. Given that the cannabis in question is herbal cannabis and not cannabis resin, the starting point will also be higher than three and a half years’ imprisonment.” ( underlying added)

31.  Ms Wong stated that in our instant case, the annual yield is 26.6 kg (see para 9 of Summary of Facts), which is smaller but very close to that in Cheung King Kong.

32.  Hence, Ms Wong submitted that the court may use the starting point in Cheung King Kong, ie, higher than 3½ years’ imprisonment, as a reference, and that there are no aggravating factors to add to that starting point.

33.  Ms Wong also submitted that the cannabis in herbal form for the 2^nd charge is 3,965.41 grammes, and with reference to the tariffs[iii] in Tuen Shui Ming, the starting point should be around 2 years and 4 months.

34.  Ms Wong pointed out that as the cannabis in question is herbal cannabis and not cannabis resin, the starting point could also be reduced up to 1 year, ie, 1 year and 4 months.

35.  Ms Wong further submitted that the sentence for the 1^st charge and the 2^nd charge should run concurrently, as in Cheung King Kong.  The two charges are in fact part of the same production cycle in the growing, harvesting, and packaging of cannabis during the same period, and that the court may adopt an overall starting point of 3½ years’ imprisonment or thereabout.

36.  In gist, Ms Wong submitted that the 1^st defendant is a first time offender with remorse, and he urges the court to adopt a low starting point within the range and to give him the full 1/3 discount for his early pleas of guilty and award a discretionary discount to him for the mitigation of his self-consumption.

37.  Mr Pun also referred me to the authority of the tariffs in Tuen Shui Ming, andhe also relied on the authority of Cheung King Kong and submitted that the court may adopt the imprisonment term in the region of 1½ years as the starting point for the quantity of 3,965.41 grammes of cannabis in herbal form in Charge 2.

38.  Mr Pun submitted that it is the 2^nd defendant’s case that part of the drugs in question (but not a substantial proportion), namely the cannabis, was intended for self-consumption.

39.  Mr Pun referred me to the paragraph 69 of HKSAR v Kong Tat Lung [2018] 5 HKLRD 623 (635 for official English translation), “the court can then according to the circumstances in individual cases exercise its discretion by deciding whether the defendant should be given any reduction in sentence for that reason and the extent of that reduction.”

40.  Mr Pun submitted that the 2^nd defendant has a previous conviction of possession of dangerous drug, which would suggest a drug habit. After the 2^nd defendant had been remanded in Lai Chi Kok Reception Centre for the present case, his urine sample was taken and the test results were positive for cannabis on 2 occasions, namely on 28 March 2020 and 12 April 2020 (copy report attached).  Under caution, he immediately admitted that the drugs were for his own consumption.  It is therefore possible as submitted by Mr Pun that part of the cannabis was for his own consumption.

41.  Mr Pun urged the court to accept that part of the cannabis is for self-consumption.

42.  In respect of the overall sentence, Mr Pun also submitted that these two offences were committed during the same period of time and in close proximity to each other, and that the court may consider imposing concurrent sentences of imprisonment to the 2^nd defendant.

Sentencing considerations

43.  There are no tariff guidelines for the offence of cultivating cannabis plants.  The maximum sentence for the offence of cultivation of cannabis plants is 15 years’ imprisonment and a fine of $100,000.

44.  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.  Other aggravating factors will also have to be taken into account, such as the scale of the cultivation of cannabis plants.

45.  In Nguyen Thu Ha, Lunn JA (as he then was), sitting as a single judge in the Court of Appeal, approved the approach adopted by the sentencing judge.  Under this approach, the offender was sentenced on the basis of the estimated annual yield of herbal cannabis that could be produced from the cannabis plants being cultivated (having regard to the opinion of an expert)  rather than the weight of the plants at the time of the offender’s arrest and seizure of the plants.  After the annual yield of herbal cannabis has been estimated, the sentencing court should refer to the sentencing tariff for possession of cannabis resin for the purpose of unlawful trafficking as laid down in Attorney General v Tuen Shui Ming & Another[iv] to determine the appropriate starting point of the sentence as if the dangerous drugs in question were cannabis resin, but then adjust the sentence to take into account the fact that cannabis resin has an average concentration of tetrahydrocannabinol, which is the principal psychoactive constituent in cannabis plants, about 4 times higher than that found in herbal cannabis.

46.  The said tariff found in the case of Tuen Shui Ming is that 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.

47.  The Court of Appeal also stated clearly that the above tariff was not a straitjacket.  A judge must bear the tariff in mind when sentencing but must arrive at an appropriate sentence in light of the circumstances of each individual case.

48.  Here I repeat the annual yield in dry herbal form was estimated to be 26.6kg.  Given that the average retail price of herbal cannabis in March 2020 was HK$164/gramme, the estimated annual yield of the plants would generate an annual retail value of around $4,3624,000, which works out to be slightly less than HK$364,000 per month.

49.  His Lordship also said in para 15 of Nguyen that the judgment of the Court of Appeal of England and Wales in R v Xiong Xu & Ors [2008] 2 Cr App R(S)  50 and R v John Auton & Ors [2011] 2 Cr App R(S)  75 were “of assistance in identifying the factors relevant to sentence … 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”.

50.  In particular, in para 3 of Xiong Xu, the English Court of Appeal divided the offenders into 4 classes depending on the degree of participation in increasing order, namely the worker/gardener, the manager, the organizer, and finally the controller of a substantial number of operations.

51.  Ms Wong and Mr Pun submitted that this court may use the starting point in Cheung King Kong ie higher than 3 years and 6 months’ imprisonment as a reference and that there are no aggravating factors to add to that starting point.

52.  I found that by the defendants’ respective admissions of their role in the activity, which included learning how to plant cannabis, renting the premises, living there, possessing the only keys to the premises, obtaining seeds from online, planting the seeds, contemplating to sell the resulting cannabis, and being able to explain in detail the use of the paraphernalia, both the defendants would be more fitted to be described as cultivator, manager, operator and organizer of a well-planned and resourced operation.

53.  I also found the operation was being run on a scale which could be described as not a small scale production.  I arrived at this conclusion by noting the number of cannabis plants and the total weight of cannabis under the charge, by looking through the photo albums which depict the size and internal layout of the premises, and which also show how the premises had been organized into various regions.

54.  In the present case, over 500 cannabis plants could be cultivated at the same time and the estimated annual yield exceeded 25,000 grammes, and the scale in the present case is similar to that of the scale in the case of Cheung King Kong.

55.  The scale of the operation and role of the respective defendants as cultivator, manger, operator and organizer were aggravating factor justifying an increase in the starting point.

56.  There is no indication in the authority what tariff is appropriate for much larger quantities.  As I have said here, the total estimated annual yield is 26.6 kilogrammes.

57.  With reference to the case of Cheung King Kong, I find a starting point of 5 years’ (ie 60 months)  imprisonment appropriate after taken into account of the role of the respective defendants as aggravating factor.

58.  I am permitted to subtract up to 12 months from that figure for a case of cultivation of cannabis plants, unless of course the case is one where a very large amount is involved.

59.  I will subtract 6 months from the 60 months earlier adopted to arrive at the starting point for the present offence.  After subtraction, it became 54 months.

60.  Both defendants also claimed that part of the cannabis was for own consumption.

61.  The authorities recognize that self-consumption can be a mitigating factor, see HKSAR v Wong Suet Hau [2002] 1 HKLRD 69 and, more recently, in HKSAR v Chow Chun Sang [2012] 2 HKLRD 112.  A further discount of 10 to 25% can be given depending on the circumstances of a particular case.  The notion of latent risk and that even possession of drugs for self-consumption itself may carry a term of imprisonment are also factors to be considered and, as emphasized in Wong Suet Hau (para  34(4)), it “may well offset much of the practical value of the mitigation (of self-consumption)  …”. 

62.  Be it also remembered that the amount for self-consumption must be “a significant proportion” of the seized drugs.  Any quantity less than a significant proportion would make no or practically very little difference to the sentence.  In Chow Chun Sang, Yeung VP said in the judgment:-

“We are of the view that in drug trafficking cases, when all or part of the drugs are intended for the trafficker’s own consumption, the ensuing discount to sentence should, depending on the circumstances, fall somewhere between 10 per cent and 25 per cent of the basic starting point. In determining the extent of discount in a particular case, the court should have regard to factors including the total quantities of drugs involved, the proportion of drugs intended for self-use, the nature of the drugs, whether the drug trafficking was for financial gain, whether the trafficking was organized and premeditated in the background and criminal record of the defendant.”

63.  In HKSAR v Tam Ling Yuen [2016] 2 HKLRD 572, the Court of Appeal specifically remarked that such a discount would only be available for cases where a significant proportion of the dangerous drugs in which the defendant trafficked was for self-consumption (see para 26). 

64.  That said, there is always the difficulty to quantify the proportion of drugs that would be retained by an accused for his or her own use unless perhaps, for example, the packing of drugs is very telling.  A quarter cannot, however, be said to be insignificant. 

65.  In HKSAR v Cheung Wai Man [2019] 1 HKLRD 817, in particular, as stated very clearly in the judgment, that “mere assertions by counsel from the bar table, unless agreed or not in dispute or contention, will generally not suffice” to substantiate the mitigation of self-consumption and therefore there is obviously a need to have “credible and reliable information and material, that fully and properly substantiates the proportion of the drugs intended for self-consumption” (see paras 54 and 60).

66.  However, it is open to the sentencing court to look at all materials and information available before the court in order to determine whether to accept the mitigation.  It is acknowledged that testifying in court is only one of the sources of information or evidence for this issue.  I accept that one should not take it lightly when the subject of self-consumption could have a significant impact on the overall sentence. 

67.  The relevant factors to be considered by the sentencing court were laid down in the case of Wong Suet Hau and referred to in Cheung Wai Man (see para 51).  Taking into account of the urine test reports and the respective explanation of the defendants gave under caution and that the defendants may be able to earn an income to afford his drug addiction, though I am not satisfied that material placed before the court is sufficient to show that a significant proportion of the cannabis was for the defendants’ own consumption, I am prepared to accept that a small part of the cannabis may have been for the defendants’ own consumption.

68.  Taking into account of the latent risk factor and that possession of drugs carries a sentence in any event, I am satisfied that the starting point should be reduced by 3 months to 51 months’ imprisonment, which is equivalent to a discount of about 5 to 6% for charge 1 for both defendants.

69.  After a discount of one-third for the respective defendants’ early plea as applied, the 1^st defendant and the 2^nd defendant will serve a term of 34 months’ imprisonment for Charge 1.

70.  For Charge 2, 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 3,965.41 grammes and, mathematically speaking, the starting point should be 2 years and 4 months.  Defence counsels have 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.

71.  I have considered all the mitigation put forward as well as taken into account authorities relevant to these charges referred to me by both counsels.

72.  For Charge 2, I have considered the quantity of 3,965.41 grammes 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 4 months (ie 28 months).  That authority suggested a discount of up to 1 year if cannabis is in herbal form. I will reduce that starting point by 12 months to 16 months and gave a further reduction of 1 month discount for the mitigation of self-consumption and arrived at 15 months.

73.  After a discount of one-third for the early plea as applied, the 1^st defendant and the 2^nd defendant will serve a term of 10 months’ imprisonment for Charge 2.

74.  Taking into account of the principle of totality, I order the sentences of Charges 1 and 2 to be served concurrently.  That is a sentence of 34 months’ imprisonment to the 1^st defendant and the 2^nd defendant for their respective charges.