HKSAR v. NGUYEN VAN CUONG

DCCC 514/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 514 OF 2009

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Reasons for Sentence

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Charges

1.  The defendant pleads guilty to the charges of cultivation of cannabis (1st charge) and assaulting a police officer in the due execution of his duty (2^nd charge). 

Facts

2.  On 17 January 2009, the police received a complaint of odd smell emitting from the 7th Floor, Shun On Mansion, No. 45 Hong Keung Street, San Po Kong, Kowloon (“the Premises”).  Surveillance was conducted by the police on 22 January 2009.  At around 7:05 p.m. on the same day, the Defendant opened the doors of the Premises with keys and entered the Premises.  When the Defendant left the Premises shortly afterwards, he was intercepted by the police.

3.  He swung his right fist and punched DSGT 22311 at his face.  He also pushed him away in an attempt to flee.   Other police officers came up to subdue him.  This constituted the 2^nd charge.   

4.  Upon search of the Premises, 257 plants of the genus cannabis weighing a total of 9.079 kilogrammes were found.  Among the 257 said plants, 92 of larger size were in the living room, 40 of medium size were in one of the two bedrooms and the remaining 125 of smaller size were in the other bedroom. 

5.  Fertilizers, pesticides, perfume, and flowering equipment were found.  There were installed a system of exhaust pipes, light bulbs, solar lights with timers, air-conditioner, warmer, thermometer, and hygrometer. 

6.  In a cautioned interview, the Defendant said:

(1)  He had rented the Premises at HK$4,700 per month in around October 2008;

(2)  His friend had given him ten odd seeds for planting at the beginning;

(3)  After the seeds grew a bit, he cut the branches and transplanted them into around 124 smaller pots;

(4)  He bought the pots, soil, fertilizers, pesticides, solar lights, and bulbs;

(5)  He watered the cannabis daily and visited the Premises twice per day;

(6)  He went to the Premises to switch on the lights in the evening;

(7)  He had planted the cannabis for about 3 months;

(8)  He intended to sell the cannabis to friends after harvesting and drying the flowers.  

7.  The Government Chemist, Dr. Ng Po-king, stated that herbal cannabis could be collected from the cannabis leaves and flowering buds collected from the fresh cannabis upon drying.  The percentage of weight of herbal cannabis that could be obtained from such plants was 14%.  The 132 seized plants with flowering buds weighed 8,826 grammes.  By proportion of 14%, the total cannabis in herbal form that could be obtained was estimated to be about 1,235 grammes.  As the smaller plants did not have flowering buds yet, their herbal potential was not estimated.   

8.  An expert from the Agriculture, Fisheries and Conservation Department reviewed the Brief Facts, photographs, sketches of the Premises, and the Government Chemist’s Certificate.  He concluded that cultivation of cannabis plants had been carried out in the Premises with the settings and the equipment installed there.  If the 15 seedlings were not included, the annual yield of the 242 plants could yield 9,060.48 grammes of herbal cannabis. 

9.  The Defendant admits in Court that no one resided in the Premises but he was in control of the Premises at all material times.  He had set up a closed ventilation system inside the Premises, which was at the roof top.  The bad smell from cultivation of the cannabis was led off into open air above by the exhaust pipes.  The Premises itself was made air-tight to prevent the smell from leaking out to the neighbours.  He also used perfume to cover the smell of the plants.    

10.  These constituted the 1^st charge.

Mitigation put forward

11.  The Defendant is 39 years of age.  He was educated up to F.2 level in Vietnam.  He came to Hong Kong in 1988.  In 1992 he married in Hong Kong.  In 1997 he divorced.  He has a girlfriend in Vietnam.  They have a son, now aged 4.  He sends her $3,000 per month for the care of his son.  He worked as a construction site worker.  He had 8 court cases, 7 of which were for dutiable goods offences.  The other 1 was for theft. 

12.  He committed the present offence of cultivation of cannabis as he did not receive wages from his employer in early 2008.  He rented the Premises and set up the system of cultivation by himself.  The scale of cultivation was not of the most serious kind.  The injury caused to the police officer was not serious, either.   

Statutory penalty for cultivation of cannabis

13.  Section 9(1) and (5) of the Dangerous Drugs Ordinance, Cap. 134, states that:

(1)  No person shall cultivate any plant of the genus cannabis or the opium poppy, but nothing in this subsection shall prevent the Government Chemist, in his capacity as such, from cultivating a plant of the genus cannabis so far as may be necessary for the exercise of his employment.

…

(5)  Any person who contravenes any of the provisions of this section shall be guilty of an offence and shall be liable on conviction on indictment to a fine of $100000 and to imprisonment for 15 years.

Precedents for sentencing on cultivation of cannabis

14.  There are no Hong Kong cases in point.  There were authorities in Australia and England which did not bear any discussion on the general approach in sentencing on this offence.  An exception was the case of Hedgecock v The Queen [2008] WL 501373, a decision in Northern Territory of Australia.  Martin (BR) CJ, who delivered the judgment of the Court of Appeal, identified a non-exhaustive lists of factors in the determination of sentence (at para 19).  I shall summarise them as follows:

(1)  The number of plants, which may or may not be a particularly significant consideration.

(2)  The maturity of the plants, their size, sex and quality.

(3)  The level of sophistication of the operation.

(4)  Whether the cultivation of the plants is part of an ongoing operation or amounts to a "one-off" event.

(5)  The nature and extent of any criminal history of the offender.

(6)  The reasons of the offender for growing the plants including whether it is a commercial operation and, if not, whether there is a claimed medical reason for producing cannabis such as for pain relief for an identified condition.

15.  In relation to factor (6) above, the sentencing guidelines for trafficking would appear to be relevant.  In Attorney General v Tuen Shui-ming [1995] 2 HKCLR 129, the Court of Appeal had laid down guidelines for possession of cannabis resin for the purpose of unlawful trafficking 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 upwards.

16.  One must, however, bear in mind that it was cannabis resin in Tuen Shui-ming (above).  Power VP, who delivered the judgment for the Court of Appeal, accepted the evidence of the forensic scientist of the Government Laboratory that, whilst the principal psychoactive constituent in the cannabis plant known as tetrahydrocannabinol (“THC”) was present in both the herbal form and resin, the concentration of THC in herbal cannabis was mostly influenced by the plant, the degree of cultivation, and the climate.  He was satisfied that:

[A] sentencing court must now bear in mind that cannabis resin has an average concentration of THC about four times higher than the average found in herbal cannabis … Taking this into account a sentencing judge must adjust the tariff, which applies to cannabis resin when sentencing for trafficking in either herbal cannabis …   Any adjustment should, as we have already indicated, be within a range dictated by the starting point indicated in the tariff.  Persons with herbal cannabis could, except perhaps in cases where very large amounts are involved, properly be given a discount of up to 1 year from the sentence that would have been imposed had they had a similar amount of cannabis resin. 

Statutory penalty for assaulting police officer

17.  Section 36(b) of the Offences against the Person Ordinance, Cap. 212 states that:

Any person who-

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(b)  assaults, resists, or wilfully obstructs any police officer in the due execution of his duty or any person acting in aid of such officer…

shall be guilty of an offence triable either summarily or upon indictment, and shall be liable to imprisonment for 2 years. 

Precedents for sentencing on assaulting police officer

18.  There are no sentencing tariffs or customary sentences. 

Factors taken into account in sentencing the Defendant

19.  In respect of the 1^st charge, I adopt the observations of Martin (BR) CJ in Hedgecock (above) and come to following findings:

(1)  The number of plants, 257 in total, was very substantial.

(2)  The state of the plants ranged from seedlings to mature plants with flowering buds.  The quality was good enough to produce 14% of herbal cannabis.

(3)  The Premises was rented exclusively and set up sophisticatedly for cultivation of cannabis.  He had apparently invested in a host of electrical equipment that purported to engineer an environment most conducive to the cultivation.  The results were manifested by the tremendous speed at which 10 odd seeds had produced 257 plants in a matter of 3 months. 

(4)  His agricultural and technical know-how demonstrated a degree of professionalism.   The expert estimated an annual yield of 9,060.48 grammes of herbal cannabis.

(5)  His reason for growing the plants was for trafficking in the produce.  What is more serious than ordinary one-off trafficking is that his stock was ever-growing.  Moreover, the Premises was in the city centre where the produce could be conveniently supplied to others.    

20.    I take a starting point of 3 years’ imprisonment.  I reduce it to 2 years in view of his plea of guilty.  There are no other mitigating factors.  This is the sentence.     

21.  In respect of the 2^nd charge, I take 3 months’ imprisonment as the starting point.  I reduce it to 2 months in view of his plea of guilty.  There are no other mitigating factors.  This is the sentence.     

22.  On totality, I make an order that the sentences be fully concurrent.