HKSAR v. LUU VAN PHONG AND ANOTHER

DCCC 1172/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1172 OF 2013

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Reasons for Sentence

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1.  In this case, the 1st defendant has pleaded guilty to two offences involving the cultivation of cannabis, contrary to sections 9(1) and (5) of the Dangerous Drugs Ordinance. He has also admitted offences of possession of forged identity card, a breach of a deportation order and remaining in Hong Kong without permission of the Director of Immigration.

2.  The 2nd defendant has pleaded guilty to cultivation of cannabis in one premises between June and July of 2013 and admits to remaining in Hong Kong without permission of Director of Immigration.

3.  The case arises as a result of an anti-cannabis-cultivation operation by police conducted on 5 July 2013 on a flat in Sham Shui Po.  The defendant was arrested exiting the premises, and inside the premises, 249 pots of cannabis plants and cultivation paraphernalia were found.  Paraphernalia included solar lamps, ventilation tubes, watering equipment and fertiliser.

4.  When the 1st defendant was arrested, a key was found to another premises in Mongkok.  In the Mongkok premises, 210 pots of cannabis plants and similar cultivation paraphernalia were discovered.  The defendant was later to admit that he had rented the Sham Shui Po premises from a man called Ding who had eventually moved out.  He later met an Ah Hung who introduced him to the cultivation of cannabis, and he had installed some of the growing paraphernalia, and eventually boxes of cannabis would be delivered to him, and he was paid a total of $10,000 by Ah Hung as salary, and he cultivated the cannabis at the Sham Shui Po premises and the Mongkok premises.

5.  In respect of the 3rd charge, that is the premises at Tai Kok Tsui were observed also by police.  Now, the 2nd defendant was seen returning to that flat, and keys were seized from him to the premises.  Inside this premises, there were 218 pots of cannabis plants and also cultivation paraphernalia. 

6.  The premises at Tai Kok Tsui found to be rented by a man described as Vu Mai-cuong, the identity card used to prove identity for that transaction was in fact a forged identity card used by the 1st defendant.  He admitted that and said he had bought the card in Shenzhen in order to use to rent the Tai Kok Tsui premises.

7.  In respect of those premises, the 2nd defendant admitted that he had entered Hong Kong unlawfully.  He was paid $5,000 a month.  He looked after the plants there, the cannabis plants.

8.  Evidence was put before the court as to the nature of the seized cannabis plants and their potential yields.  This is a factor in determining the sentence.  The percentage of weight of a herbal cannabis that can be derived from the plants is between 13 to 14 per cent.  Conclusion was reached that in the Sham Shui Po premises, from the 249 plants, an estimated yield of herbal cannabis of 9,371.36 grammes could be harvested or obtained; from the 200 plants in the Mongkok premises, an estimated annual yield of herbal cannabis of 4,418.40 grammes; and, finally, from the Tai Kok Tsui premises, a total of 218 plants, an estimated annual yield of herbal cannabis of 2,665.60 grammes.

9.  The estimated street value of the herbal cannabis was also agreed: from the Sham Shui Po premises, HK$141,097; from the Mongkok premises, HK$48,076; from the Tai Kok Tsui premises, $52,924.

10.  It is also agreed that the 1st defendant was subject to deportation order served on 6 July 2010, and he has admitted entering unlawfully in breach of that deportation order.  And the 2nd defendant also had unlawfully entered Hong Kong.

11.  The facts admitted established the offences and I convicted the defendants accordingly.  Antecedents of the defendants were produced. The 1st defendant is a 47-year-old man.  He has two previous convictions. Most significantly on 19 October 2009, he was sentenced to 15 months’ imprisonment for the offence of remaining in Hong Kong without the authority of the Director of Immigration.  

12.  The 2nd defendant has a previous clear record.  The 2nd defendant is aged only 20. 

13.  Mitigation was advanced on behalf of both defendants.  The 1st defendant divorced in 2008.  He has a 23-year-old daughter and a son aged 10.  He was unemployed in Vietnam.  He has a girlfriend in Hong Kong who gave birth to a son on 7 August 2013.  He has been detained in gaol since 8 July last year.  Mitigation is on the basis that he is not the mastermind behind the whole scheme.  That has been identified as a man called Ah Hung, and the defendant was paid a salary.  The defendant is remorseful, I am told.

14.  As far as the 2nd defendant’s mitigation is concerned, he arrived in Hong Kong on 1 June last year.  He has also been detained since 8 July last year.  He has a clear record in Hong Kong.  His role in the offence is one of effectively being a gardener, cultivator.  He is remorseful, wishes to go home.

15.  I will deal with the approach to sentencing.  Most recently considered in the case of HKSAR v Nyugen Thu Ha [2013] HKCA 560 where the court considered the offence contained in the first three charges here, cultivation of cannabis, it said there was no tariff for the offence of cultivating cannabis plants.  But the approach taken by the court in that case has appeared to have regard to the expert opinion as to the estimated annual yield of herbal cannabis from the plants in question, and then to look at the annual yield, consider it in relation to the tariff sentence for possession of cannabis resin, and then discount the figure by up to a year from that sentence because we are dealing in these cases with herbal cannabis.  One is also to bear in mind factors such as the number of plants, their maturity, the level of sophistication of the operation and whether it is a commercial operation.  Clearly, in this case, the cultivation of plants was for commercial reasons.

16.  I shall deal with the appropriate level of sentence.  Also, I have to bear in mind the immigration offences that both defendants face.  There are clear guidelines as to what those sentences will be, and I will explain my approach when I impose the sentence.

17.  Dealing firstly with the 1st and 2nd defendants on Charges 1, 2 and 3, now, in respect of the 1st defendant, sentences for cultivation of cannabis appropriate on Charges 1 and 2, on the 1st charge involving the Sham Shui Po premises, the annual yield is estimated as over 9,000 grammes; and in the Mongkok premises, the estimated yield is over 4,000 grammes.  The guideline sentence in respect of the 1st charge, approach would ‑‑ if the drug were cannabis resin would be of 4 years or upwards.  So that will be discounted by 1 year.  I will take a starting point of 3 years’ imprisonment on that 1st charge.  Defendant has pleaded guilty.  So the sentence on that charge will be one of 2 years’ imprisonment.

18.  On the 2nd charge, I will take a starting point for sentence at one and a half years’ imprisonment and reduce that to 1 year’s imprisonment for the defendant’s plea of guilty. 

19.  The defendant also faces immigration offences. 

20.  The 4th charge involves his possession of the forged identity card.  After deduction for his plea of guilty, the sentence on that offence should be one of 15 months’ imprisonment.

21.  The 5th charge involves a breach of a deportation order.  After deduction for his plea of guilty, the sentence on that offence should be one of 18 months’ imprisonment.

22.  The 6th charge involves the defendant’s remaining in Hong Kong which is the second offence.  After deduction for his plea of guilty, the sentence on that offence should be one of 18 months’ imprisonment.

23.  I have to arrive at a total overall sentence for this defendant.  The 1st and 2nd charges, although they relate through to the same time period, relate to different premises.  I consider that an element of those offences should be served consecutively to each other.  What I shall order in respect of Charge 2 is that 6 months of that sentence be served consecutively to Charge 1 and the balance concurrently.  For Charges 1 and 2, that gives an overall sentence of 30 months’ imprisonment.

24.  As far as Charges 4, 5 and 6 are concerned, I consider that 2 months of the 4th charge should be served consecutively to the 5th and 6th charges and the balance concurrently, giving for those three charges a total of 20 months’ imprisonment. 

25.  To arrive at what I consider to be correct overall totality, I am going to order that 12 months of the 4th, 5th and 6th charges be served consecutively to the 1st and 2nd charges and the balance concurrently.  This gives an overall total sentence for the 1st defendant of 42 months’ imprisonment or 3 years and 6 months’ imprisonment, and that is the sentence I will impose upon him.

26.  The 2nd defendant faces two charges.  In respect of the 3rd charge faced by the 2nd defendant, I consider the starting point for sentence should be one of 12 months’ imprisonment.  That will be reduced to 8 months’ imprisonment, having regard to his plea of guilty.

27.  On the 7th charge, after deduction for plea of guilty, the defendant should be sentenced to 15 months’ imprisonment.  I consider the correct overall total sentence for the 2nd defendant should be one of 21 months’ imprisonment.  I will achieve that by ordering that 6 months of the 3rd charge be served consecutively to the 7th charge and the balance of that sentence concurrently, achieving an overall sentence of 21 months’ imprisonment.  And those are the sentences of the court.