HKSAR v. HOANG THANH SON AND ANOTHER

DCCC657/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 657 OF 2011

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Reasons for Sentence

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The Charges & the Facts

1.  The 1st Defendant pleaded guilty to one charge of “cultivation of cannabis plants”, contrary to sections 9(1) and (5) of the Dangerous Drugs Ordinance, Cap. 134 (the 1^st charge), one charge of “trafficking in a dangerous drug” contrary to sections 4(1)(a) and (3) of the same Ordinance (the 2^nd charge), and the 3rd charge of “breach of deportation order”, contrary to section 43(1)(a) of the Immigration Ordinance, Cap. 115.

2.  The 2nd Defendant was convicted after trial of the 1^st charge which she faced jointly with the 1st Defendant. She was acquitted of the 2^nd charge which was, again, laid jointly against both of them.

3.  In the afternoon of 12 April 2011, the 1st Defendant, the 2nd Defendant and another female were each carrying a big bag and were found by the police to be acting furtively. They were then stopped for enquiries and each bag was found to contain potting soil.

4.  Later, the three of them were taken to 5/F., No. 22 Pei Ho Street. The police used the keys found on the 1st Defendant to gain entry to the premises. In the living room of the premises, the police found 3 plastic bags of herbal cannabis weighing a total of 1,986.11 grammes (the 2^nd charge). Further, 149 cannabis plants were found being cultivated in one of the bedrooms (the 1^st charge). In the other bedroom, there was a large amount of soil on the floor. Solar lamps and ventilation pipes had been installed in each of the bedrooms. Other paraphernalia like 11 uninstalled solar lamps and 12 uninstalled ventilation pipes, 16 bottles of plant nutrients, a water sprayer and an electronic scale were found inside the premises.

5.  It was also discovered that the 1st Defendant had entered Hong Kong on 17 December 2010 and he was an over-stayer at the time when the police stopped him. It was also confirmed that the 1st Defendant was subject to a deportation order dated 8 February 2001 which prohibited him from being in Hong Kong (the 3^rd charge).

6.  During a subsequent video-recorded interview, the 1st Defendant admitted, inter alia, that he was cultivating cannabis plants in the premises and that the three bags of herbal cannabis were the products of the cultivation. He had cut the cannabis flowers and dried them under the light. Then, he packed them into the plastic bags.

7.  Both in the facts admitted by the 1st Defendant and at the 2nd Defendant’s trial, the contents of the witness statements given by Mr. Chan Siu Lun, an Agricultural Officer of the Agriculture, Fisheries and Conservation Department were referred to. In brief, Mr. Chan opined that “production of cannabis seedlings by cutting method or by seed for cultivation has been carried out inside the premises.” and that “The devices, equipment, tools, plant nutrients and the planting media shown in photos are tailor-made for its operation.” Based on the 149 plants being grown in the premises, Mr. Chan further estimated that a total of 9,190.32 grammes of herbal cannabis could have been obtained if all the 149 plants had grown well and assuming that there were 4 crops per year (the period of vegetative growth of cannabis plants is about 3 months).

8.  Similarly, the contents of DSIP Lewis’s statement were also referred to in both the facts admitted by the 1st Defendant and at the 2nd Defendant’s trial. DSIP Lewis advised that the average retail price for herbal cannabis in April 2011 was HK$114 per gramme. Therefore, the street value for the 1,986.11 grammes of herbal cannabis found inside the three bags was HK$226,416.

Mitigation – the 1st Defendant

9.  The 1st Defendant is now aged 41. He was born in Vietnam and has received secondary education. He was unemployed at the time of the offence but it was said that he had operated a massage establishment in Vietnam in late 2009.

10.  The 1st Defendant has been before the court on two occasions with three conviction records. He was sentenced to 6 months’ imprisonment in September 1993 for “possession of a forged travel document” and was sentenced to concurrent terms of 15 months’ imprisonment in May 2000 for yet another “possession of a forged travel document” offence and for “unlawful remaining”.

11.  Mr. Mui who acted for the 1st Defendant told the court that the 1st Defendant came to Hong Kong to commit the present offences because of financial pressure. It was said that his elderly father was seriously sick at the time and he, therefore, had to raise money for the medical bills. Mr. Mui told the court that, unfortunately, the 1st Defendant’s father passed away on 15 June 2011.

12.  In respect of the 1^st charge, Mr. Mui referred to a number of cases which had been dealt with in the Court of First Instance and in the District Court : HKSAR v Leung Shu Ning & Another, HCCC 131 & 132/2006, 18 October 2006; HKSAR v Nguyen Van Cuong, DCCC 514/2009, 29 June 2009; and HKSAR v Poon Wun-kwong, DCCC 550/2010, 30 June 2010. Mr. Mui, however, agreed that such cases were of limited use as the facts in each case would be different.

13.  Concerning Mr. Chan’s statement about the projected yields of the cultivation, Mr. Mui submitted that those remained the expert’s estimates only. In this case, 149 cannabis plants were involved and, at the time of seizure, they only had a total weight of 313.67 grammes. Mr. Mui, therefore, urged this court to limit the sentence in respect of the 1^st charge to that in “band (a)” as set out in AG v Tuen Shui Ming & Anor. [1995] 2 HKCLR 129, which contained the recast tariff for trafficking in cannabis resin.

14.  In respect of the sentencing factors identified in the Australian case of R v Hedgecock [2008] NTCCA 1, 18 February 2008, Mr. Mui submitted that the present case was a small-scale operation not involving many plants. There was also no evidence as to how long the 1st Defendant would have continued with the cultivation if he had not been arrested. Mr. Mui, however, accepted that the 1st Defendant engaged in the cultivation for making financial gains.

15.  As regards the 2^nd charge, Mr. Mui, relying on HKSAR v Chor Lui [2001] 3 HKLRD 95, submitted that it would be appropriate to adopt a starting point of 4 months.

16.  Mr. Mui also accepted that for the offence of “breach of deportation order” (the 3^rd charge), the authorities indicated that a starting point of 27 months would be appropriate for a first-time offender.

Mitigation – the 2nd Defendant

17.  The 2nd Defendant is now aged 41. She was born in Vietnam and was educated up to Form 6 level. At the time of her arrest, the 2nd Defendant was a construction site worker, earning about HK$500 per day. The 2nd Defendant was divorced but was re-married in April 2011. In 2009, the 2nd Defendant had an operation on her lower back.

18.  The 2nd Defendant has been before the court on 11 previous occasions with 26 convictions. Most of those were “unlawful possession of dutiable goods”. She had one conviction for “possession of a dangerous drug” in 1996.

19.  In mitigation, Mr. Pang for the 2nd Defendant submitted that the cannabis cultivation in the present case was not sophisticated. The premises were only about 400 or 500 sq. ft., and that there were only 149 plants involved.

Sentencing Considerations & the Starting Points

(1) The 1^st Charge – Cultivation of Cannabis Plants

20.  There is no tariff for the offence of cultivation of cannabis plants. However, the case of R v Hedgecock has been referred to by sentencing judges in a number of cases. While accepting that there are bound to be cultural and social differences between Australia and Hong Kong, and that there are differences between the sentencing regime in Hong Kong and that in the Northern Territory, I find the factors identified by Riley J in the Hedgecock case to be of assistance :

“19. … Depending upon the circumstances of the particular case the number of plants may or may not be a particular significant consideration. Matters that have been taken into account in determining an appropriate sentence include, but are not limited to : the maturity of the plants, their size, sex and quality; the level of sophistication of the operation; whether the cultivation of the plants is part of an ongoing operation or amounts to a “one-off” event; the nature and extent of any criminal history of the offender; 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; whether there has been a plea of guilty and, if so, at what stage of proceedings and in what circumstances; and, of course, other relevant mitigating factors personal to the offender. Depending upon the nature and circumstances of the offending, issues of general deterrence and personal deterrence will receive greater or lesser weight.”

21.  Further, in R v Terewi [1999] 3 NZLR 62, the New Zealand Court of Appeal, when reviewing the tariff for cannabis cultivation, observed that,

“6. It will be helpful to sentencing Judges if prosecutors bring evidence of the likely amounts of annual gross revenues, or turnover, obtained by the offender from a cannabis growing operation or which the offender must have anticipated deriving from the activity. That will reflect crop cycles and yields and will be a better measure of the size of an operation than simple reference to the number of plants which have been found. The sentence should also take into account the period over which the offending has continued.” (per Blanchard J.)

22.  In this case, the 149 cannabis plants were still at their developing stage and they were small plants. Therefore, it was not surprising that the 149 plants only weighed a total of 313.67 grammes.

23.  If, when determining the sentence, one were to merely take into account the weight of the plants, then it might produce markedly different sentences in respect of the same 149 plants. The reason is that if the plants were seized when they were fully grown, then they would definitely be of a much greater weight than when they were still at their infant stage.

24.  Therefore, I accept the observation made in Terewi that information on the crop cycles and yields would be a better indicator of the size of the operation than the number of plants found or the mere weight of the plants. In this case, the Agricultural Officer estimated that a total of 2,297.58 grammes of herbal cannabis could have been produced from the 149 plants. He further estimated that, as the period of vegetative growth of cannabis plant is about 3 months, a total of 9,190.32 grammes of herbal cannabis could have been obtained from the cultivation inside the premises per year.

25.  While I accept that these estimated yields were no more than projections, I find the information to be helpful in assessing the scale of the operation involved.

26.  Therefore, in determining the scale of the operation involved in this case, I am going to take into account the estimated yields and the expected profits; that the premises in which the cultivation was carried out required a monthly rental of HK$5,800; that the two bedrooms were devoted and adapted for the cultivation; that various paraphernalia were found in the premises, including uninstalled solar lamps and ventilation pipes; and that this was, no doubt, a venture for commercial gains rather than a cultivation for one’s own consumption or for any medical reasons.

27.  In adopting the starting point for this charge, I also take into account that it was not a one-man operation. The 1st and the 2nd Defendants were acting together. Moreover, cultivation of cannabis plants should be viewed seriously as the Defendants were not simply involved in trafficking in herbal cannabis, they had themselves carried out the cultivation to produce the cannabis plants.

28.  Herbal cannabis is, however, less harmful than cannabis resin. The trafficking guidelines set out in the case of Tuen Shui Ming have, therefore, to be adjusted downward.

29.  After considering all relevant matters, I take the view that the starting point for the 1st charge should be one of 21 months for the 2nd Defendant. However, as the 1st Defendant deliberately came to Hong Kong to commit these offences, I regard this as an aggravating factor, and I am going to adopt a starting point of 24 months, in his case, for the 1^st charge.

(2) The 2^nd Charge – Trafficking in the Herbal Cannabis

30.  The quantity involved in this charge was 1,986.11 grammes of herbal cannabis. Taking into account the guidelines in Tuen Shui Ming and considering the facts of this case, I take 4½ months as the starting point for the 2^nd charge.

(3) The 3^rd Charge – Breach of Deportation Order

31.  The cases indicate that a starting point of 27 months is appropriate for an offender who is found to be in breach for the first time. The 1st Defendant is in this category and I am going to take 27 months as the starting point for the 3^rd charge.

Sentencing the Defendants

The 1st Defendant

32.  The 1st Defendant pleaded guilty to all three charges. He is going to get a one-third reduction for his pleas. Other than this, I do not find anything in his mitigation which would warrant any further reduction in sentence.

33.  In respect of the 1^st charge, 24 months reduced by one-third is 16 months’ imprisonment.

34.  In respect of the 2^nd charge, 4½ months reduced by one-third is 3 months’ imprisonment. The 1st Defendant admitted that the three bags of herbal cannabis were the products he obtained from the cultivation inside the premises. In the circumstances, I consider it appropriate to order that this sentence be served concurrently with that for the 1^st charge.

35.  In respect of the 3^rd charge, 27 months reduced by one-third is 18 months’ imprisonment. However, his breach of deportation order is a separate and distinct offence. Therefore, in principle, the sentence for this charge should be served consecutively.

36.  However, taking into account the totality principle, I consider that an overall term of 30 months should sufficiently reflect the 1st Defendant’s culpability in all these charges, I therefore order that :

(a) the term of 3 months in respect of the 2^nd charge is to run wholly concurrently with the term of 16 months for the 1^st charge; and

(b) only 14 months in respect of the 3^rd charge are to run consecutively to the term of 16 months in respect of the 1^st charge, making a total term of 30 months’ imprisonment.

The 2nd Defendant

37.  In respect of the 2nd Defendant, she was convicted after trial. She is therefore not entitled to any reduction associated with a plea of guilty.

38.  I have considered carefully all that was said on her behalf in mitigation but I find nothing which would warrant any reduction in sentence.

39.  The 2nd Defendant is therefore to serve a term of 21 months for the 1st charge.