HKSAR v. MAK CHI FUNG

DCCC 871/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 871 OF 2015

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REASONS FOR SENTENCE

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Introduction

1. On 15 February 2016, the defendant appeared in this court and was convicted, on his own pleas, of one charge of cultivation of cannabis plants, preferred against him under section 9(1) and (5) of the Dangerous Drugs Ordinance, Cap 134 (Charge 1) and two charges of trafficking in a dangerous drug, laid against him under section 4(1)(a) and (3) of the same Ordinance (Charges 2 and 3).

Facts

2. On the evening of 3 June 2015, a team of Customs Officers saw the defendant alight from a private car to open the main gate of a metal shed at Lot no.785 in DD117, Kung Um Road, Yuen Long, New Territories.  They intercepted him for enquiry; the defendant said he had been cultivating cannabis in the shed; they arrested him, accordingly.

3. The Customs Officers proceeded to conduct a search at the shed.  They found two air-conditioned tents there, inside one of which the Customs Officers found 72 living cannabis plants of 60 to 85 centimetres tall (subsequently found to weigh 6.152kg), 66.1 grammes of cannabis plant twigs containing tetrahydrocannabinol, a tetrahydro-derivative of cannabinol.  The tent was fitted with warm fluorescent lights and carbon dioxide liberating packets for indoor cultivation of plants.  Under caution, the defendant admitted he had been cultivating cannabis for three months in that tent.  (Charge 1)  Inside the other tent were found (i) 42 packets containing a total of 284 grammes of cannabis in herbal form which, said the defendant, belonged to him; (ii) cannabis weighing 96.6 grammes in the form of fresh plants; and (iii) three packets containing a total of 9.05 grammes of cannabis in herbal form and 18.01 grammes of plant twigs containing tetrahydrocannabinol; (iv) a pair of scissors and a quantity of zip-lock bags; and (v) two electronic scales containing traces of tetrahydrocannabinol. (Charge 2)  In the compartment between the driver’s and the front passenger’s seats of the defendant’s car were found five packets containing a total of 29 grammes of cannabis in herbal form. (Charge 3)

4. In a subsequent cautioned video interview, the defendant said that he had been working as a transport worker making about $20,000 a month; he had purchased the tents on-line and had them set up in the shed for growing cannabis, with cannabis seedlings he purchased in Shenzhen; it took 60 days for the plants to mature; the five packets of cannabis seized in his car were cultivated by him; and his brother was the tenant of the shed.

5. In June 2015, the estimated value of the cannabis seizure in this case was about $177,600.  The vegetative cycle of a cannabis plant lasts for about three months; in consequence, there can be four crops a year.  The annual yield of the cannabis cultivation conducted by the defendant is about 3,937.28 grammes in herbal form. 

Mitigation

6. The defendant, now 43 years of age, was born on the mainland, and he settled in Hong Kong in 1979 when he was around 7 years old.  Educated to Form One level, he works as a truck driver making around $20,000 a month.  He has 14 conviction records involving a total of 21 offences, four of which were trafficking in dangerous drugs, while five others were possession of dangerous drugs.   

7. In his plea in mitigation, Mr Freddy Woon appearing for the defendant submits that the defendant’s parents are aged persons who are dependent entirely on the defendant; the defendant has abused heroin in the past but has recently restricted himself to cannabis; with respect to the first charge, he has intended to consume about one-third of the produce of his cannabis crop; and he would only supply cannabis to friends or acquaintances.  Mr Woon refers to HKSAR v Nguyen Thu Ha[1], a case in which the yearly yield of the prohibited cultivation concerned was 3,823 grammes of herbal cannabis for which a starting point of 20 months’ imprisonment was adopted.  Mr Woon argues, in essence, that the defendant in this case has not engaged himself in producing cannabis at a large or commercial scale.  With respect to the second and third charges, Mr Woon makes reference to HKSAR v Chor Lui[2], in which the Court of First Instance said:

12. It was held in A-G v Tuen Shui Ming & anor [1995] 2 HKCLR 129, that the tariff for possession of cannabis resin for the purpose of unlawful trafficking, when the amount is under 2,000 g, is a sentence of imprisonment of up to 16 months. The Court of Appeal commented that cannabis resin has an average concentration of tetrahydrocannabinol about four times higher than the average found in herbal cannabis. On a strict mathematical approach, if herbal cannabis is four times weaker than the resin, the benchmark tariff sentence should be 4 months for under 2,000 g of herbal cannabis.

8. Mr Woon asks the court to consider that the second and third charges share the same factual origin as the first charge and to sentence the defendant on the three charges having regard to the totality principle.

Reasons for sentence

9. In HKSAR v Nguyen Thu Ha[3], the sentencing judge described the cannabis cultivation as “a relatively sophisticated medium-sized operation.”  Explaining the reasons for refusing leave to appeal against sentence in that case, the Court of Appeal said:

“15. The judgment of the Court of Appeal of England and Wales in R v Xiong Xu[4] and R v Auton[5] are of assistance in identifying the factors relevant to sentence in respect of the offences of cultivation and production of herbal cannabis 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.

16. It is clear that in the instant case the role of the applicant was that of a “gardener”. In R v Auton[6], namely carrying out the role of tending to the plants, but not a person who set up or ran the operation. On the other hand, as the judge found clearly the applicant was aware that she was playing an important role in what was a smaller scale commercial operation, the object of which was to produce herbal cannabis for unlawfully trafficking, for which she was paid.

17. Given the role of the applicant and the entirely commercial nature of the operation, the judge’s starting point of 20 months’ imprisonment was generous. The discount that the judge afforded the applicant, namely 9 months’ imprisonment from a starting point of 20 months’ imprisonment, represented a discount of 9 months or 45% from the starting point. In the particular circumstances of the instant case and on the information available to the court on the papers, that discount was appropriate. (emphasis supplied)

10. While the annual yield in this case (and, to that extent, the size of the offending operation) is comparable to that of HKSAR v Nguyen Thu Ha[7], the degree of culpability of the offender’s involvement in the operation is not.  The defendant in that case was obviously a mere “gardener” employed to tend to the offending vegetation, while the defendant before this court was responsible for, first, bringing the illegal operation into existence; secondly, processing the cannabis plants into herbal form; and thirdly, packaging the herbal cannabis in a way that facilitates its dissemination. 

11. Judging from the size of and the involvement of the defendant in the operation, it is the court’s view that a starting point of 24 months’ imprisonment in respect of the first charge is called for.  The prosecution do not contest the defence submissions that the defendant would consume about one-third of the produce and would supply the balance of the yield solely to friends and acquaintances.  A three-month reduction in sentence is granted on these scores, thus bringing the starting point down to 21 months’ imprisonment (cf. HKSAR v Chow Chun Sang[8]). The defendant is entitled to the customary one-third discount in sentence for his guilty plea; he is, in consequence, sentenced to 14 months’ imprisonment with respect to the first charge.

12. Having regard to the case of HKSAR v Chor Lui[9] and in all the circumstances of this case, a starting point of three months’ imprisonment is adopted for each of the second and third charges, which is reduced to two months’ imprisonment for the defendant’s pleas of guilty.

13. Little in the defendant’s background affords any grounds for further reduction of the sentences. 

14. Bearing in mind the totality principle, it is ordered that the sentences for the second and third charges be served concurrently, and that one month of the concurrent sentence be served consecutively to the 14-month imprisonment for the first charge; the final sentence is therefore 15 months’ imprisonment.

Conclusion

15. For the offences in the three charges of which he stands convicted, the defendant is sentenced to 15 months’ imprisonment.