HKSAR v. SO KIM YI AND ANOTHER

DCCC 554/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 554 OF 2011

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Reasons for Sentence

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1.  D2 pleaded guilty to one charge of cultivation of cannabis plants and two charges of abstracting electricity.

2.  There are a total of 601 plants in total weight of 24,581.91 grammes of genus cannabis.

3.  The rough estimation of the electricity being abstracted was about HK$2,471 and HK$1,743.

4.  According to the facts admitted by the Defendant, the police found 12 pots of cannabis plants inside the boot of D1’s car, brother of D2.

5.  D1 also took the police to a nearby 2 storey village hut and found D2 was on the 1^st floor handling some liquid.  D2 admitted under caution, that the cannabis plants were cultivated by him and had nothing to do with his brother.

6.  No one lived inside the hut.

Ground floor	1,100 square feet	3 rooms	349 pots of grown cannabis
Upper floor	300 square feet	1 room	(1)  252 pots of young cannabis plants (2)  Cannabis seeds (3)  Several barrels of liquid nutrients (4)  Planting instructions

7.  Each room:-

(1) was illuminated by high intensity lamps with timers and reflectors to provide light energy to the plants;

(2) had ventilation devices and air conditioners to adjust the room temperature and ventilation for plant growth;

(3) the lower parts of the walls and partitions were all affixed with reflective material for enhancing lighting to the plants.

8.  Outside the village hut, there were 2 electricity meters and the findings by the China Light and Power Company was that an iron wire was inserted into each of the 2 meters.  Therefore, the 2 meters could not record the normal electricity usage of the hut.

9.  Under caution, D2 admitted that D1 sublet the hut to him for about 3 months before the arrest.  He started to grow cannabis plants for his own consumption.  He had not yet decided what to do with the cannabis if the growing was successful.  He learnt it from Ah Keung how to cultivate cannabis.  He then spent $5,000 to buy cannabis seeds, fertilizers and planting formula from Ah Keung.  He tempered with the two meters 3 months ago prior to the arrest in order to reduce the electricity bill.

10.  The Government Laboratory examined the cannabis plants and items seized inside the hut and have the following findings:-

(1) 601 plants weight 24,581.91 grammes of cannabis.

(2) 2 glass bottles containing 15.24 grammes of seeds containing traces of tetrahydro cannabinol.

(3) 2 plastic bags containing 988.4 grammes of herbal cannabis.

11.  In general, only cannabis plants with flowering tops are ready for drying to make herbal cannabis.  Out of the 601 cannabis plants, 180 had flowering tops.  The government chemist estimated that the total herbal cannabis could be obtained from the 180 cannabis plants is about 3.75 kilogrammes and the retail value is about HK$442,500.

Record

12.  The D has a clear record.

Mitigation

13.  D is 42, married with no children.  He used to be a mini-bus driver earned about $20,000 per month.  He and his wife had a traffic accident in 2009, which caused him a fracture right knee and injury to his right middle finger.  He is still receiving physiotherapy treatment on his right knee and psychiatric treatment for his depressive mood.  He lost his job and relied upon his wife who is a registered nurse, to pay the $12,000 mortgage and other household expenses.  Today, I am told that his wife is still on sick leave and only received half of her salary from the Hospital Authority that is $20,000.

14.  He committed the present offences out of financial pressure.

15.  As to the cannabis plants inside the hut, some were for his own consumption, he had not yet decided what to do with remaining portion.

16.  He has a letter before me that tells me how remorseful/ regretful he feels about this matter.

Authorities

17.  The Prosecution has referred me to 4 authorities:

(1) The Queen and Tuen Shui-ming Application for Review No. 12 of 1994. The Court recast the guideline for possession of cannabis resin for the purpose of unlawful traffickings:-

(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”

(2) HKSAR v Poon Wun-kwong DCCC 550/2010, a total of 330 cannabis plants, with the total amount of herbal cannabis was about 2,700 grammes.

The Court sentenced the D to 16 months after plea for 2 charges of cultivation of cannabis plants.

(3) In HKSAR v Nguyen Van Chong DCCC 514/2009, it involved a total of 257 plants and 9 kilogrammes of herbal cannabis. The Court adopted a starting point of 3 years, reduced to 2 years for a charge of cultivation of cannabis.

(4) There is no sentencing guideline for this kind of offence, but the sentencing court should take a number of factors into consideration as observed by the Court of Criminal Appeal of the Supreme Court in Australia in the case of Hedgecock v The Queen (2008) WL 501373. These factors are :-

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

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

(c) The level of sophistication of the operation.

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

(e) The nature/extent of any criminal history of the offender.

(f) The reason for growing the plants.

18.  In the present case:-

(i) The D has grown the cannabis plants for 3 months.

(ii) He claimed for self consumption to relief pain.

(iii) He still had not yet decided what to do with the rest of cannabis plants.

19.  I rejected this assertion as he said that he was under financial pressure to commit the present offence.  Anyone knows that to grow any type of plants take time.  It does not happen overnight.  The Defendant rented the place for $4,000 per month, just this alone was $12,000 for 3 months, not to mention the money invested in buying at least 601 plastic pots, soils, fertilizers, set up ventilation devices and installation of the air conditioning and tempered with the electricity meters to reduce costs.

20.  The village hut was in a remote area in Yuen Long.  From the pictures I can see that there is only a footpath leading to the hut.  Only the people live there would go there, it therefore reduced the risk of being discovered.

21.  There is no natural lights inside the room, as the rooms are only illuminated by high intensity lamps to provide light energy to the plants.

22.  Each room was packed with pots as to maximize the usage of the total area.

23.  According to the facts, 180 pots of cannabis plant had flowering tops and they could produce 3.75 kilogrammes of herbal cannabis, the retail value is HK$442,500.  This is a very profitable business to grow cannabis plants in a $4,000 rented hut in 3 months. 

24.  It is totally nonsense that D2 said he did not know what to do with them.  On the other hand, there is a great deal of risk involved, not to mention the time and efforts to grow the cannabis plants.

25.  The whole hut was rented for one purpose that was to cultivate cannabis plants as no one lived there. 

26.  I accept that the Queen v Tuen Shui-ming’s guideline is for possession of cannas resin for the purpose of unlawful trafficking.  While cannas resin has higher concentration of tetrahydro cannabinol than herbal cannabis.

27.  However, D2 faced a more serious charge than a charge of possession of cannabis resin for the purpose of unlawful trafficking.  D2 grew the cannabis plant to produce herbal cannabis with a view to make profit is far more serious than someone who is merely selling the herbal cannabis in order to get monetary reward.

28.  Having considered all the relevant cases and the mitigating factors, I come to the conclusion that 3 years is the appropriate starting point.  The sentence is reduced to 2 years to reflect his guilty plea.  As to charge 3 and 4 , the offences took place over a period of 3 months, I am told that D2 had paid back to CLP as demanded, the starting point is 3 months reduced to 2 months.  All the sentences are ordered to be run concurrently.