HKSAR v. LOK KIN SHING

DCCC 516/2017

[2018] HKDC 193

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 516 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant Lok Kin Shing pleaded guilty before me to one charge of “cultivation of cannabis plant”, contrary to section 9(1) and (5) of the Dangerous Drugs Ordinance, Cap 134.

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

3.  On 20 December 2016, Mr Lok was intercepted outside his premises by police officers who gained entry with keys seized from him.  They found and seized items including the following:-

(a) 442 pots each containing cannabis plant later confirmed to be a total amount of 14,063.1 grammes of cannabis, with 284 plants ready for harvesting;

(b) 40 high intensity sodium lamp tubes, 1 lamp stand, 5 heaters, 6 thermometers, 41 electricity transformers and 18 timers;

(c) one calendar, 5 bottles of liquid fertilizers, 5 packets of deadwood, and 11 bags of carbon dioxide releaser (used for speeding up growth of plants); and

(d) one electronic scale, two dehumidifiers.

4.  Under caution, Mr Lok admitted at the scene that he lived at the premises and planted the cannabis by himself with intention to sell them for money.

5.  Back at the station, and again under caution, Mr Lok said he learnt how to plant cannabis when he was serving a sentence between 2008 and 2009.  He admitted that he rented the premises since August 2015 and started planting cannabis in February 2016 with seeds coming from one “Ah Ming” to whom he would later give the cannabis for reward.  He said he possessed the only keys to the premises and he owned all the cannabis there.  He was able to explain in detail that the paraphernalia seized were used for growing the cannabis.

6.  AFCD expert estimated that 86.8 kilogrammes of fresh cannabis leaves could be produced in a year from the cannabis plants seized, with an average weight percentage of about 17% (14.8 kilogrammes) as cannabis in dry herbal form.

7.  Dangerous drugs value expert estimated that the street value of the annual yield of herbal cannabis that can be obtained from the plants seized was almost HK$4.1 million (14,756 grammes x HK$277 per gramme).

Documents tendered with consent/no objection

8.  Before considering sentence, I have had the benefit of perusing the following documents which were submitted by the respective parties with consent (or without objection) from the other side:-

(a) Government Chemist Certificate (GCC) under the hand of Florence Chan Suk Yu dated 28 February 2017 submitted by prosecution;

(b) Two photo albums containing respectively 61 photos and 10 photos submitted by prosecution;

(c) Witness statement of AFCD expert Chen Yi Min dated 25 April 2017 submitted by prosecution;

(d) Witness statement of drug value expert DSIP Lo Kwok Kin dated 4 October 2017 submitted by prosecution;

(e) Witness statement of Govt Chemist (GC) Florence Chan Suk Yu dated 6 March 2017 submitted by defence; and

(f) Exhibits disposal application submitted by prosecution.

Some comments on the admitted facts

9.  Before proceeding further, I would like to make two comments on the admitted facts.

10.  First, I discovered from photos 22-24 of the first photo album and the description of item 33 of the exhibits disposal application that 158 of the 442 cannabis plants were actually not contained in pots as alleged in the Amended Summary of Facts dated 5 February 2018.  They were contained in bulk in several polystyrene containers.  This however will not disturb the conviction because the charge made no mention of the pots.

11.  Secondly, these 158 cannabis plants (found in zone CA) were actually referred to by the police as cannabis seedings (sic: probably seedlings) (which can be supported by the fact that their average weight was less than 1 gramme per plant (see GCC)).  Again, this will not disturb the conviction because the GC seemed to have accepted that these 158 plants qualify in aggregate as 134 grammes of cannabis in plant form.

Criminal record

12.  Mr Lok’s criminal record is agreed.  It shows that Mr Lok had been sentenced on three occasions.  He had a trafficking in dangerous drug conviction in 1999 for which he was sentenced to 3 years 6 months’ imprisonment.  There then followed a minor immigration offence matter for which he was sentenced in March 2000 to 4 months’ imprisonment to run consecutively to his previous sentence.

13.  The big one came in April 2000 when he was sentenced to 14 years’ imprisonment in aggregate for three counts of trafficking in dangerous drugs, to run partially consecutively to his previous sentences.

14.  So from 1998/1999 to about 2010, he had been continuously spending a large part of his prime years in prison.

Personal particulars

15.  Contents of the antecedents statement are agreed by the defence save that it is alleged that Mr Lok had been working as a casual worker earning $15,000, rather than being unemployed, at the time of the offence.

16.  According to the antecedents statement, Mr Lok, single, is aged 51 (49 at the time of the offence).  He received up to F4 education.  His last discharge from prison was in January 2010.

17.  He lived in the subject premises away from his family members who included his father (aged about 70), three younger sisters and one younger brother.

Mitigation

18.  Ms Lau assigned by the Director of Legal Aid mitigated on Mr Lok’s behalf.  Ms Lau submitted that Mr Lok is remorseful and would accept any sentence imposed upon him.

19.  She submitted that his previous convictions had nothing to do with cannabis, that he was a beginner in the skill of how to plant cannabis.

20.  When asked to suggest a starting point for the sentence, Ms Lau submitted an alternative way of arriving at a lower annual yield figure which would thereby warrant a lower starting point.

21.  In essence, she pointed to the subject premises having been divided into many different zones (as shown in the photos).  She submitted that there were many plants which were not ready to be harvested: in particular, she pointed to photos 23 & 24 of the first photo album which are both labelled as “Cannabis seeding at zone CA inside Squatter”.  She said they were only young plants.

22.  She then referred me to photos 37 & 38 of the same photo album which are both labelled as “Flower pot for cultivation cannabis plants at zone F inside Squatter”.  She submitted that the “plants” there were dried and did not grow well.

23.  She candidly disclosed that before Mr Lok decided to plead guilty to the charge, she had tried to negotiate with the Prosecution with a view to lowering the annual yield figure with no success.  Eventually, Mr Lok decided to go ahead with the plea.

24.  Ms Lau also has misgivings about the way in which the GC had set out to work out the “weight percentage of cannabis in herbal form in relation to the cultivated cannabis plants seized at the scene” by using a sample of only 3 relatively well-grown cannabis plants found in one of the zones.  She added that the plants in different zones may have generated different weight percentages. In support, Ms Lau submitted the witness statement of GC Florence Chan Suk Yu dated 6 March 2017.

25.  It was also pointed out that the AFCD expert had unfairly adopted the figure thus obtained by the GC ie about 17% as the average weight percentage of cannabis in dry herbal form before multiplying it with the total annual yield of fresh cannabis flowers and leaves that could be produced from all the 442 cannabis plants.

26.  In gist, she was asking me to take into account only those 284 plants ready for harvesting and ignored the other 158 plants when calculating the annual yield of cannabis in dry herbal form.  Essentially, she invited me to adopt the following formula to arrive at the annual yield of cannabis in herbal form:-

Total weight of cannabis in only the 284 plants x 4 crops a year x 17%

ie 13,929.1 grammes x 4 x 0.17 = approx 9,472 grammes of cannabis in herbal form

27.  That, if the drug had been cannabis resin, will translate into a starting point of 4 years or 4 years something, according to the usual tariff.

28.  She argued that a few months could be added on that figure to account for the so-called “bad” plants ie 158 of them.

29.  In conclusion, she suggested a starting point of 3 years and a few months for the present offence involving cannabis in herbal form and she also reminded me that her lay client is entitled to a one-third discount.

30.  Lastly, Ms Lau asked me to refer to the following cases before sentencing:-

(a) HKSAR v Mak Chi Bor & Anor, DCCC 55/2016 (in Chinese);

(b) HKSAR v Dinh Huu Sy, DCCC 181/2016 (in Chinese); and

(c) HKSAR v Lo Ka Wing, DCCC 475/2016.

Prosecution’s brief reply on the calculation of annual yield of herbal cannabis

31.  Exceptionally, I invited the prosecution to reply on the various complaints made by the defence about the calculation of annual yield of herbal cannabis.  Ms Lam simply informed me that there was no other expert evidence on the matter.

32.  Ms Lam took the opportunity to remind me of the main sentencing authority in this type of case, namely HKSAR v Nguyen Thu Ha, CACC 335/2013.

Consideration of the submissions

33.  I have considered the mitigation submissions persuasively made by Ms Lau.

34.  I have reminded myself of all the case authorities urged upon me by the parties.

35.  In summary, Ms Lau is sounding misgivings in two main areas.  They can be shortly labelled as “Wrongly taking into account undergrown plants” and “Inadequate sampling for working out average weight percentage of dry herbal cannabis”.

36.  I will deal with them in that order, that is the same order as was adopted by Ms Lau.

37.  First, the issue of “wrongly taking into account undergrown plants”.  I have examined the “young” plants found in zone CA as depicted in photos 23 & 24 and compared them with the more mature plants found in zone A as depicted in photos 6-11 and found in zone B as depicted in photos 15-17, all of the first photo album.

38.  On cross-checking the GCC with the exhibits disposal application, it appears that all of the so-called “young” or “bad” plants consist of 158 cannabis plants and they were all found in zone CA.  The police described them as cannabis seeding.  None of them were found at zone F.

39.  I am satisfied that none of the pots (found in zone F) depicted in photos 37 & 38 of the same photo album were related in any way to the 442 plants seized.  In this connection, I believe Ms Lau made an inadvertent mistake in her submissions.

40.  The next question is should the 158 younger plants be ignored for the purpose of working out the annual yield of cannabis.  I would think not.

41.  The reason is this.  It is true that these 158 plants with an average weight of less than one gramme each were at an earlier stage of maturity when compared with the other plants.  However, when one takes into account that it only takes about 3 months (hence 4 crops a year) to grow a cannabis plant to harvest stage, one can readily see that, in the long run, the annual yield ought naturally take into account all of the plants, regardless of the fact that these 158 plants were at an early stage of growth.  Having said that, I believe that the best scenario that Ms Lau could perhaps present is that these 158 plants lagged behind the other 286 plants by one crop and therefore, if the argument was allowed to run to its natural conclusion, they could only manage three crops in the first year when the other 286 plants managed four.

42.  Using this as the basis of calculation, in the first year, the annual yield would be:-

(Average yield per plant x 286 x 4 crops) + (Average yield per plant x 158 x 3 crops)

ie (49.1[1] x 286 x 4) + (49.1 x 158 x 3) = 79,443.8 grammes

43.  This figure, when multiplied by 17% ie the average weight percentage of dry herbal cannabis, will give an annual yield of 13,505 grammes of dry herbal cannabis, a result which is about 10% short of that worked out by the AFCD expert.  The resulting value at street level would be a lesser amount of $3.74 million.

44.  The second issue is “inadequate sampling for working out average weight percentage of dry herbal cannabis”.  By reading paras 4 and 5 of GC Florence Chan’s statement together, I believe she had used the average weight percentage of dry herbal cannabis derived from three relatively well-grown plants (ie about 17%) to represent the weight percentage of all the cultivated (whatever the word meant) cannabis plants seized at the scene.

45.  The AFCD expert may perhaps have taken one step further.  When she tried to work out the annual yield of dry herbal cannabis of all the 442 plants, she relied on the above figure of 17% as the average weight percentage of all of the 442 plants.  What she must have done was to have used an element of extrapolation in her calculation.

46.  Ms Lau may be heard to say that there was an element of crudeness in the calculation.  However, short of cross-examination of the AFCD expert and/or the GC with a view to querying the methods used, there is little that Ms Lau could do to displace that figure of 17%.

47.  In this respect, one has to remember that there was prior negotiation between the prosecution and defence as regards the plea and, by implication, the facts to be agreed upon plea.  It is not for the court to go behind the veil of negotiation.  However, the clear result of all this was that the defendant Mr Lok decided to go ahead with the plea and to agree the facts.  In arriving at the decision, he must have weighed the advantages and drawbacks of challenging parts of the facts and the risks involved in doing so with the benefit of legal advice.

48.  Therefore, I believe there is nothing in the second issue.

Consideration of the case law

49.  In HKSAR v Nguyen Thu Ha, CACC 335/2013, Lunn JA as he then was, sitting as a single judge of the Court of Appeal, approved the practice of sentencing an offender of cultivating cannabis plants by reference first to the tariff for trafficking in cannabis resin using the annual yield of herbal cannabis that could be produced and then, other than for very large amounts, subtracting the result thus obtained by up to 12 months to arrive at the appropriate starting point.

50.  The said tariff is of course to be found in the case of Attorney General v Tuen Shui Ming & Anor [1995] 2 HKCLR 129.

51.  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”.

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

53.  I found that by his own admission of his 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 “Ah Ming”, planting the seeds, contemplating to sell the resulting cannabis to “Ah Ming”, and being able to explain in detail the use of the paraphernalia, Mr Lok was more than a worker/gardener and would be more fitting to be described (at least) as a manager.

54.  I also found the operation was being run on a scale which could be described as a large scale production (see the example in para 33 of Xiong Xu).  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 two 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 (referred to as “zones” by the police).

55.  For the degree of Mr Lok’s role and the scale of the cannabis cultivation operation, I consider a deterrent sentence is richly justified.

56.  I will now give a brief summary of some of the sentences that the District Court had previously imposed in cases of this kind.

57.  In Mak Chi Bor, D1 was involved in cultivating 277 plants with a total weight of 9,804 grammes of cannabis capable of an annual yield of 7,507 grammes of herbal cannabis; and D2 was involved in cultivating 65 pots of cannabis with a total weight of 3,224 grammes of cannabis capable of an annual yield of 1,419 grammes of herbal cannabis.  D1 was given a starting point of 24 months which was reduced to a sentence of 16 months’ imprisonment on plea.  D2 was given a starting point of 21 months which was reduced to a sentence of 14 months’ imprisonment on plea.

58.  In Dinh Huu Sy, Dinh was involved in cultivating 531 plants (including 186 cannabis seedlings and 113 young plants) with a total weight of 31,360 grammes of cannabis capable of an annual yield in excess of 9,000 grammes of herbal cannabis.  Dinh was sentenced for this offence to 3 years 6 months’ imprisonment after trial.  It is noted that the learned sentencing judge there had only used the 232 mature plants to work out the annual yield figure to arrive at the initial starting point of 3 years; then he added 6 months to it to account for the presence of the cannabis seedlings and young plants.

59.  In Lo Ka Wing, Lo was involved in cultivating 329 plants with a total weight of 8,834 grammes of cannabis and one dried plant with a weight of 128 grammes of cannabis.  The 329 plants were capable of an annual yield of 5,800 grammes of herbal cannabis.  Lo was given a starting point of 24 months which was reduced to 16 months’ imprisonment on plea.

60.  These three cases being instances of individual sentencing have a limited degree of assistance towards my task.

Sentence

61.  The maximum sentence for the offence of cultivation of cannabis plants is 15 years’ imprisonment and a fine of $100,000.

62.  In sentencing Mr Lok, I have taken into account the facts, the photos, the documents submitted including his criminal record, mitigation submissions and prosecution’s brief reply, and my own findings described earlier.

63.  I will adopt the slightly generous value of 13,505 grammes as being the annual yield of herbal cannabis when using the tariff in Tuen Shui Ming.

64.  For trafficking in over 9,000 grammes of cannabis resin, the tariff will give a result of 4 years upwards.

65.  On a purely mathematical progression approach, I note the following pattern in the Tuen Shui Ming scale:-

3,000 grammes calls for 24 months;

6,000 grammes calls for 36 months; and

9,000 grammes calls for 48 months.

66.  If the scale was allowed to progress further mathematically, then 12,000 grammes would call for 60 months and 15,000 grammes would call for 84 months or 7 years.

67.  The figure of 13,505 lies somewhere between 12,000 and 15,000.  In order not to crush Mr Lok, I will steer away from a purely mathematical approach. I will merely adopt 60 months (the projected tariff for 12,000 grammes) as the figure from the Tuen Shui Ming tariff assuming the drug had been cannabis resin.

68.  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.  This case brinks on just such a case.

69.  As an exercise of leniency, I will allow a subtraction but only to an extent.  This is because there are serious features here such as Mr Lok’s role and the scale of the operation.  There is also the fact which I cannot ignore that rather than learning to repent his ways, Mr Lok actually learned how to commit this crime while serving an earlier lengthy sentence for trafficking in dangerous drugs.

70.  I will subtract 6 months from the 60 months earlier adopted to arrive at the starting point for the present offence.  I will give Mr Lok the usual 1/3 discount for the early plea.  There are no other mitigating factors of sufficient weight to warrant a further discount.

71.  I do hope that on this occasion, Mr Lok will take advantage of the leniency thus afforded to him by the court.

72.  Mr Lok, please stand.

73.  I adopt the starting point of 54 months.  Giving Mr Lok a discount of 18 months for his early indication of a plea of guilty, the sentence for him is 36 months’ imprisonment.