SECRETARY FOR JUSTICE v. CHEUNG KING KONG

[English Translation – 英譯本]

CAAR 2/2018

[2019] HKCA 951

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO 2 OF 2018

(ON REVIEW FROM DCCC 761 OF 2017)

________________________

________________________

JUDGMENT

Hon Yeung VP (giving the judgment of the Court):

Introduction

1.  The respondent (Cheung King Kong) pleaded guilty to one count of cultivation of cannabis plants (charge one) and one count of trafficking in a dangerous drug (charge two) before Judge F Yiu (the trial judge) in the District Court and was sentenced to 20 months’ and 6 months’ imprisonment respectively. The sentences were ordered to run concurrently, making a total sentence of 20 months’ imprisonment (the sentence).

2.  The Secretary for Justice (the applicant) considered that the sentence for charge one was wrong in principle and manifestly inadequate, and was one that fell outside the range of sentences which a judge, applying his mind to all the relevant factors, could reasonably consider appropriate. Therefore, an application was made under section 81A of the Criminal Procedure Ordinance, Cap 221, Laws of Hong Kong, asking this Court to review the sentence.

Facts of the case

3.  At the time of the offence the respondent rented a two-storey sheet-metal shack in Tong Yan San Tsuen, Yuen Long to cultivate cannabis. On the ground floor of the sheet-metal shack there were four enclosed and air-conditioned cultivation zones (zones A, B, C and D) and a room (zone E). There was another cultivation zone (zone F) on the first floor of the sheet-metal shack.

4.  On 8 February 2017, police officers arrived at the sheet-metal shack and requested entry for investigation. Having come to know the identity of the police officers, the respondent, however, closed the door immediately. This had resulted in the police officers forcing an entry.

5.  Police officers found a large number of cannabis plants in various cultivation zones inside the sheet-metal shack, details of which are as follows:

 - in zone A, there were 129 pots of cannabis plants;

 - in zone B, there were 159 pots of cannabis plants;

 - in the grow tent in zone C, there were 58 pots of cannabis plants;

 - there were three polyfoam boxes containing a total of 158 cannabis seedlings on the top layer of a three-tiered rack in zone D; and

 - in zone F, there were 73 pots of cannabis plants.

6.  Among the above 577 cannabis plants, 563 of them were in the form of cut plant and 14 with soil, weighing 31,352.7 grammes and 523.93 grammes respectively in total, namely the 31,876.63 grammes of cannabis in the form of plant specified in charge one.

7.  In zone D, there were 3 bags of herbal cannabis weighing 1,080 grammes in total, namely the dry cannabis in herbal form specified in charge two, which was all cannabis flowers.

8.  Police officers also found upon search in the sheet-metal shack a large quantity of equipment, tools and materials relating to the cultivation of cannabis. They included thermometers, fluorescent lights, flower pots, potting soil, fertilizers and carbon dioxide generating agents used for speeding up the growth of plants.

9.  The respondent admitted under caution that he cultivated cannabis using soil and fertilizers for pecuniary gain. In a video-recorded interview with the police, the respondent further admitted that the purpose of renting the sheet-metal shack was, apart from living on the mezzanine floor, to install thermometers in the house to control the temperature and humidity in zones A to D and F for facilitating cultivation of cannabis for sale. The respondent stated that zone C was for cultivating cannabis seedlings and the cannabis cultivated in zones A and B was for sale. The respondent indicated that he first bought 10 seeds and set up cultivation zones. After the cannabis had grown up, he cultivated more cannabis by cuttage method. The respondent further indicated that he would sell cannabis herb to agent(s) for $15,000 a pound. He would also sell cannabis herb for $500 a bag. The respondent claimed that it took about 3 months for a cannabis plant to reach flowering stage and there were 4 crops a year. The tools and materials seized by the police in the sheet-metal shack were for speeding up the growth of cannabis.

10.  The prosecution called Government Chemist Mr Ho Siu Hong and Agricultural Officer Dr Chen Yi Min of the Agriculture, Fisheries and Conservation Department to give evidence. Mr Ho pointed out that among the 577 cannabis plants seized in the sheet-metal shack in question, 240 of them (with an average height of 30 to 60 centimetres) were grown plants and ready for harvest of cannabis flowers and cannabis leaves. The average weight of each of the grown cannabis plants in that batch was 113.4 grammes. Mr Ho opined that on the basis that there were 4 crops a year, the estimated annual yield of cannabis plants in the sheet-metal shack was 113.4 grammes x 577 plants x 4 crops = 261.7 kilogrammes.

11.  Both Mr Ho and Dr Chen took the view that the installations and equipment in the sheet-metal shack were specifically designed for cultivating cannabis. Based on the figures provided by Mr Ho, Dr Chen opined that the weight percentage of cannabis in dry herbal form obtained from the cannabis plants was about 12.3%. Thus, the annual yield of cannabis in dry herbal form in the sheet-metal shack was 261.7 kilogrammes x 12.3% = 32.19 kilogrammes.   

12.  Dr Chen further pointed out that the weight of cannabis in dry herbal form obtained from the cannabis plants found upon search in the sheet-metal shack, namely 31,876.63 grammes of fresh cannabis plants was 31,876.63 grammes x 12.3% = 3,920.82 grammes.

13.  According to the expert evidence of Detective Senior Inspector of Police Ho Yan Kit, the retail price of cannabis in dry herbal form was $319 per gramme. Hence, the retail price of the 3,920.82 grammes of cannabis in dry herbal form obtained from the 31,876.63 grammes of cannabis plants involved in charge one was about $1.25 million while the market price of the 1,080 grammes of dry cannabis in herbal form involved in charge two was $344,520.

14.  Furthermore, Senior Inspector Ho estimated that the retail price of an annual yield of 261.7 kilogrammes of cannabis plants (equivalent to 32.19 kilogrammes of cannabis in dry herbal form) could be over $10 million.

The respondent’s background and mitigation

15.  The respondent, aged 45, had a clear record. He stated that he was originally doing surveying work at construction sites with a monthly income of around $20,000 odd. The respondent claimed that he committed the offences only because he was dismissed, had met with a traffic accident and was in financial difficulties. The respondent stated that he learnt cultivating cannabis on the Internet for the purpose of trafficking. The respondent indicated that he felt remorseful for and was ashamed of the incident. Also, he felt he had let his family members down. But he hoped that he would be released soon. In fact, the respondent had already been released on 10 May 2018. He is living with his wife and two daughters in a public housing unit in Yuen Long.  The respondent now drives a goods vehicle for a living, earning $27,000 to $36,000 a month. He claimed that he had to support his family (including his wife, two daughters who were 17 and 14 years old respectively and his aged parents living in his hometown).

The trial judge’s reasons for sentence

16.  The trial judge agreed with the submission of the defence solicitor that there were 158 cannabis seedlings in the case. These seedlings were used to replace grown cannabis plants which had been harvested. Therefore, in working out the annual yield of cannabis, the 158 cannabis seedlings should be counted out and only 419 plants (577 plants – 158 plants) be adopted as the basis for calculation.

17.  Also, on the basis that there were 3 crops a year and the weight percentage of cannabis in dry herbal form obtained from the cannabis plants was 11.16%, the trial judge arrived at an estimated annual yield of 113.4 grammes x 419 plants x 3 crops x 11.16% = 15.91 kilogrammes.

18.  The trial judge pointed out that the 3 bags of herbal cannabis, weighing 1,080 grammes in total, found upon search by the police officers in zone D were all cannabis flowers. He adopted the position taken by the defence that the applicant cultivated cannabis merely for the purpose of selling cannabis flowers. According to Dr Chen’s estimation, cannabis flowers accounted for about 20 to 30% of a cannabis plant. The trial judge accordingly estimated the annual yield of cannabis flowers in the sheet-metal shack to be around 3 to 4 kilogrammes (15.91 kilogrammes x 20% to 30%).

19.  The trial judge pointed out that on the basis of $319 per gramme, the market value of 3 to 4 kilogrammes of cannabis flowers could be nearly or exceeding one million. He considered that the scale of the cultivation operation in question could not be regarded as small and the respondent obviously operated it on a commercial basis to cultivate cannabis for sale. The trial judge took the view that the appropriate starting point for charge one was 2½ years. He reduced the sentence by one-third to 20 months on account of the respondent’s guilty plea.

20.    The trial judge pointed out that according to Attorney General v Tuen Shui Ming and another [1995] 2 HKCLR 129, the starting point for unlawful trafficking in under 2,000 grammes of cannabis resin was up to 16 months and that for trafficking in 2,000 to 3,000 grammes of cannabis resin was 16 to 24 months. The trial judge stressed that in Tuen Shui Ming, the Court of Appeal made it clear that if the cannabis in question was herbal cannabis, a discount of up to a year could be given from the tariff for an equal amount of cannabis resin. The trial judge pointed out that charge two involved 1,080 grammes of herbal cannabis and the appropriate starting point was 9 months. As the respondent pleaded guilty, the trial judge reduced the sentence for charge two by one-third to 6 months.

21.  The sentences were ordered to run concurrently, making a total sentence of 20 months’ imprisonment.

Grounds for review

22.  Ms Vinci Lam, Acting Deputy Director of Public Prosecutions (she replaced Ms Anna Lai SC, Deputy Director of Public Prosecutions, who was originally responsible for the present case but had retired), for the applicant, submitted that when sentencing the trial judge should have taken into account the estimated annual yield of the cannabis plants cultivated by the respondent and, applying the sentencing guidelines laid down in Tuen Shui Ming, considered other relevant factors such as the role played by the respondent in the cannabis cultivation operation, the scale and purpose of cultivation to arrive at the appropriate starting point.

23.  Ms Lam pointed out that both the flowers and leaves of a cannabis plant contained cannabis active component. Its flowers and leaves could also produce various cannabis products. Therefore, the trial judge should not have held, because only three bags of dry cannabis flowers were found upon search in the sheet-metal shack, that the respondent merely chose to sell cannabis flowers and would discard the twigs and leaves of cannabis plants and adopted it as the basis for sentencing. Ms Lam stressed that the main point of consideration in sentencing was the quantity of herbal cannabis including twigs, leaves and flowers that the cannabis plants could produce, not only the quantity of cannabis flowers.

24.  Ms Lam also contended that the approach taken by the trial judge to deduct the 158 cannabis seedlings in calculating the number of cannabis plants was wrong. The reason was that according to the evidence of Government Chemist Ho Siu Hong and Agricultural Officer Dr Chen Yi Min of the Agriculture, Fisheries and Conservation Department, the 158 cannabis seedlings could also produce various cannabis products. Ms Lam emphasized that undisputed evidence showed that inside the sheet-metal shack there were a large quantity of potting soil and empty flower pots for seedlings to grow without the need of replacing existing plants. Ms Lam submitted that there was no evidence to support the defence claim that the existence of the seedlings was for no other purpose than of replacing harvested cannabis plants and grown cannabis plants and thus the seedlings should be counted out. Ms Lam pointed out that in HKSAR v Lok Kin Shing [2018] HKDC 193, HH Judge Tam made it clear that it only took three months for a seedling to grow to harvest stage and the estimated annual yield should also include the seedlings. Ms Lam contended that the best scenario which the defence could present was that they managed one crop less than other grown cannabis plants in the same year.

25.  Ms Lam stressed that when sentencing, the trial judge should have accepted prosecution witnesses’ evidence that cannabis plants could achieve 4 crops a year, not 3 crops a year as claimed by the respondent.

26.  Ms Lam contended that given that 577 cannabis plants with 4 crops a year were involved in the case, the annual yield of herbal cannabis of the respondent’s cannabis cultivation operation was far more than 15.91 kilogrammes as stated by the trial judge. Thus, the starting point adopted by the trial judge on the basis of an annual yield of 15.91 kilogrammes was too low and wrong in principle. Nevertheless, Ms Lam agreed that the annual yield should be estimated on the basis of a weight percentage of only 11.16% of cannabis in dry herbal form obtained from the cannabis plants. Therefore, based upon the 577 cannabis plants found upon search by the police, the estimated annual yield of the sheet-metal shack was 113.4 grammes x 577 plants x 4 crops x 11.16% = 29.21 kilogrammes.

27.  Ms Lam pointed out that according to Tuen Shui Ming, the starting point for trafficking in over 9,000 grammes of cannabis was over 4 years. However, the present case only involved herbal cannabis. The sentence could be adjusted downward by one year. Ms Lam submitted that even if the approach most favourable to the respondent was taken and other aggravating factors were not taken into consideration, the starting point for charge one should not be less than 3 years.

28.  Ms Lam stressed that there were a number of aggravating factors in the case. They included the fact that the respondent started researching on and cultivating cannabis two and a half years before the case and the respondent’s scheme was long term and continuing; the way the respondent tended the cannabis plants and the equipment owned by him both showed that he committed the offence with premeditation and elaborate planning; and apart from looking after the cannabis plants personally, the respondent also sold cannabis products through (a) middleman. Hence, the respondent’s role was definitely not just a “gardener” or “manager” but an “organizer”. Ms Lam submitted that in light of the background of the present case, the appropriate starting point for charge one should not be less than four and a half years. Ms Lam referred to the approaches taken by a number of common law jurisdictions in similar cases in support of her stance.

29.  To strengthen the applicant’s case, with no objection from the respondent, Ms Lam submitted the statements of three witnesses. It is stated in the statements that both the number of cases involving cannabis products and the quantity have increased between 2009 and early 2019. It shows that the prevalence and seriousness of offences involving cannabis products are on a rising trend.

30.  The statement of Fong Wai Ho, Perry, Senior Inspector of Police, shows that the quantity involved in cannabis-related cases reported to the police has increased from several tens of kilogrammes of cannabis products in 2015 and 2016 to 668.33 kilogrammes in 2017. And there were 3,045 pots of cannabis plants in 2018. The statement of Chan Kelvin Chun Kei, Senior Inspector of Customs and Excise, also shows that : (1) the number of cases involving cannabis in 2018, both in the group of “Major” or “Minor” offences, was at the highest level since 2009; (2) there was an upswing, both in terms of number of cases and weight, in cases with cannabis flowers as seizure in 2017 and 2018; and (3) the total weight of cannabis of all types seized in the first quarter of 2019 was 137 kilogrammes, which was already close to the total seizure of 141 kilogrammes in 2018.

31.  Mr Ho Siu Hong, Government Chemist, also explained various end products of cannabis to the court in his statement. Mr Ho pointed out that cannabis was generally produced in three different end products (cannabis herb, cannabis resin and cannabis oil). Cannabis herb is comprised of the flowering tops and leaves of the cannabis plant. Cannabis resin consists of the secretions of the cannabis plant emitted in the flowering phase of its development. Cannabis oil is an oily liquid resulting from extraction or distillation of tetrahydrocannabinol (THC)-rich parts of the cannabis plant.

32.  Mr Ho further pointed out that the cannabis potency of cannabis resin was four times that of cannabis herb and the cannabis potency of cannabis oil was 12 times that of cannabis herb. Also, a report shows that there is an increasing trend in the cannabis potency of cannabis end products recently.

33.  However, Ms Lam made it clear that the applicant was not asking this Court to set down new sentencing guidelines for cases of cultivation of cannabis plants or enhance the sentence by reason of the prevalence of similar offences.

The respondent’s position

34.  Mr Eric Kwok SC for the respondent first pointed out that sentences for offences involving cannabis were generally in accordance with the tariffs in Tuen Shui Ming. Mr Kwok, however, submitted that there was no standardized calculation method for the annual yield of cannabis plants in cases of cultivation of cannabis plants. He stated it was held that in general, only cannabis plants with flowers could produce cannabis herb (DCCC 554/2011) and the court had accepted that there were 3 or 4 crops in a year.

35.  Mr Kwok stressed that although the flowers and leaves of cannabis plants both contained cannabis, as far as this case was concerned, the end products of cannabis in dry herbal form seized by the police only contained cannabis flowers. Thus, there was sufficient evidence to show that the respondent merely trafficked in herbal cannabis manufactured from cannabis flowers. The annual yield of cannabis flowers was just approximately 20% to 30% of the weight of cannabis plants. Hence, it was correct for the trial judge to estimate the annual yield of the cannabis plants cultivated by the respondent only based upon the weight of cannabis flowers seized.

36.  Mr Kwok agreed that had there been evidence that the crime also involved trafficking in products of leaves and/or twigs of cannabis, the weight of leaves and/or twigs should have been counted in. But he stressed that the sentence had to be adjusted downwards because the active component/potency of herbal cannabis manufactured from twigs and leaves was of a lower level than that of herbal cannabis manufactured from cannabis flowers.

37.  Mr Kwok also submitted that there was support for the trial judge’s approach of counting the cannabis seedlings out in estimating the annual yield. The reason was that those seedlings were used to replace cannabis plants which had been harvested and those grown cannabis plants so that the respondent could maintain harvest.  Mr Kwok emphasized that the prosecution was unable to rebut such account and there was basis on which the trial judge sentenced the defendant based upon that account.

38.  Mr Kwok asserted that whether there were 3 or 4 crops a year in cultivating cannabis depended on when it was harvested. In the present case, police officers did not seize any cannabis plants that had been harvested. Hence, there was no independent evidence showing at what stage of development of the cannabis plants the respondent would harvest them. Mr Kwok went on to submit that there were case(s) which showed that one or two harvests could be obtained from a cannabis plant before it passed to senescence and died.

39.  Mr Kwok contended that the trial judge had a discretion to take the approach most favourable to the respondent, namely there were 3 crops a year, in estimating the annual yield. Mr Kwok once submitted that even if the calculation was based upon 4 crops a year, the lowest annual yield of cannabis flowers was 4.2 kilogrammes which was similar to the annual yield of 3 to 4 kilogrammes taken by the trial judge as the basis for the starting point. However, upon double-checking the figures, Mr Kwok agreed that based on 4 crops a year, even if the 158 cannabis seedlings and twigs and leaves of cannabis were counted out, the estimated annual yield of cannabis flowers obtained from 419 cannabis plants would be 113.4 grammes x 419 plants x 4 crops x (20% to 30%) x 11.16% = 4.24 kilogrammes to 6.36 kilogrammes.

40.  Finally, Mr Kwok submitted that the respondent was a first offender with remorse who had turned over a new leaf after serving his sentence. He worked hard and supported his wife, two daughters and aged parents.

41.  Mr Kwok argued that even if the sentence was manifestly inadequate or wrong in principle, the court remained free to decline to review the sentence so as not to have too great adverse effect on the respondent and his family.

Discussion

42.  In Tuen Shui Ming, the Court of Appeal laid down the following sentencing guidelines for the offence of unlawful trafficking in cannabis resin:

 (1) under 2,000 grammes – up to 16 months

 (2) over 2,000 grammes – 16 to 24 months

 (3) over 3,000 grammes – 24 to 36 months

 (4) over 6,000 grammes – 36 to 48 months

 (5) over 9,000 grammes – 4 years upwards

43.  As the cannabis potency of herbal cannabis is lower than that of cannabis resin, the tariff for trafficking in herbal cannabis should also be lower but the discount should not exceed one year.

44.  The Court of Appeal also stated clearly that the above tariff was not a straitjacket. A judge must bear the tariff in mind when sentencing but must arrive at an appropriate sentence in light of the circumstances of each individual case.

45.  Charge one is not one of possession of or unlawful trafficking in a fixed quantity of cannabis but cultivation of cannabis plants. Cultivation of cannabis plants is a continuous course of conduct. The annual yield of cultivation of cannabis certainly depends on the scale of cultivation, duration of cultivation and the cultivation method adopted by the cultivator. However, generally speaking, unless there is credible contrary evidence, cultivation of cannabis must be on a continuing basis during the whole year to obtain the maximum benefit. Therefore, in our view, estimation of the annual yield of the cannabis cultivation operation should be based on the fact that the cultivator would cultivate cannabis on a continuing basis during the whole year.

46.  According to the respondent’s admission, he started researching on and cultivating cannabis before the case. And he rented the sheet-metal shack for the sole purpose of cultivating cannabis. He divided the sheet-metal shack into various cultivation zones and bought tools, fertilizers and other catalysts to speed up the growth of cannabis.

47.  The respondent also admitted that he had studied methods of cultivating cannabis on the Internet which included first buying seeds and setting up seedling cultivation zones. When the plants had grown up, he would cultivate more cannabis plants for sale by cuttage method.

48.  There is nothing to show when the respondent started to rent the sheet-metal shack to cultivate cannabis. Thus, there is no evidence of the quantity of cannabis harvested by the respondent before the case. Nevertheless, the irresistible inference is that the respondent did intend to cultivate cannabis on a long-term and continuing basis. Had the police not detected the respondent’s criminal activities on 8 February 2017, the respondent would have definitely continued with his unlawful act of cultivating cannabis plants.

49.  Ms Lam contended that the proper sentencing approach was to calculate the quantity of herbal cannabis produced based on the estimated annual yield of the cultivation operation in question and using that quantity to calculate the appropriate starting point in accordance with the sentencing guidelines laid down in Tuen Shui Ming.

50.  Applying the strictest reasoning, the approach suggested by Ms Lam involves some uncertain factors. For example, the actual annual harvest, and the type of cannabis product which the harvest would produce are only estimates. Whether the harvest would actually reach the estimated figure and whether the end product is cannabis resin, cannabis oil or just ordinary herbal cannabis are unknown. However, it is extremely difficult and even impossible to clarify such uncertainties before sentencing in each case. Therefore, Hong Kong courts have all along been pragmatic in using the crop cycles of cannabis and estimated annual yield as the basis for sentencing. In HKSAR v Nguyen Van Cuong (DCCC 514/2009) and HKSAR v Hoang Thanh Son & Anor (DCCC 657/2011), when sentencing, the trial judges pointed out that there was no tariff for the offence of cultivation of cannabis plants but the court had to take account of the size of the operation and annual yield. The trial judges in both cases cited Hedgecock v The Queen [2008] WL 501373. One of them also cited R v Terewi [1999] 3 NZLR 62 and specifically emphasized that in sentencing, crop cycles of cannabis and estimated annual yield, being a measure of the size of the operation, were significant indicators to be noted. The annual yield of herbal cannabis involved in the above two cases was roughly 9,000 grammes. Having considered other relevant factors, the judges adopted starting points of 3 years and 21 months respectively.

51.  HKSAR v Nguyen Thu Ha (CACC 335/2013) is the only case of cultivation of cannabis plants for which the sentence had been considered by the Court of Appeal. In dealing with the sentence in a case of cultivation of cannabis plants, Lunn JA (as he then was) sitting as a single judge of the Court of Appeal did not quarrel with the approach adopted in the said cases of Nguyen Van Cuong and Hoang Thanh Son & Anor, namely the estimated annual yield of herbal cannabis, rather than the weight of cannabis in the form of plant seized at the time of offence alone, was taken into account and used as the basis for sentencing. Lunn JA was of the view that the approaches in R v Xiong Xu [2008] 2 Cr App R (S) 50 and R v Auton & Other [2011] 2 Cr App R (S) 75 were proper.

52.  In Xiong Xu, the English Court of Appeal devised sentencing bands for the offence of cultivation of cannabis plants based upon the role played by the offender but it did not lay down sentencing guidelines. The English Court of Appeal devised the following sentencing bands based upon the roles played by the offenders in cases of large-scale commercial cultivation of cannabis plants:

(1) cultivators – namely tending the plants on instructions: 3 years;

(2) managers or operators – doing their tasks on instructions including making arrangements for the plants to be cultivated and making rental payments: 3 – 7 years;

(3) organizers – setting up such operations: 6 – 7 years;

(4) severer sentences for those who control a large network of such operations than those for organizers; and

(5) large-scale commercial operations refer to those usinghydroponics to produce high grade cannabis in private premises.

The English Court of Appeal also listed a range of aggravating factors including the amount of profits, whether it involved the use of professional equipment or unlawful abstraction of electricity or other public utilities for operation and the potential yield.

53.  In Auton, the English Court of Appeal, in accordance with the size of the operation, devised the following sentencing bands for the offence of cultivation of cannabis plants short of industrial cultivation but involving advanced cultivation modes:

(1) involving no element of regular supply of any kind: 9 – 18 months;

(2) the cultivation of cannabis plants was for the offender’s own use and was not an overall commercial operation for profit but did involve supply to others: 18 months to 3 years;

(3) the operation was designed for profit but of a smaller size than that in Xiong Xu: 3 – 6 years;

(4) the personal circumstances, character and any criminal history of the defendant are relevant factors; and

(5) unlawful abstraction of electricity involved in the operation constitutes an aggravating factor.

54.  We agree with the views of Lunn JA on the cases of Xiong Xu and Auton and the approach he adopted.

55.  After the judgment in Nguyen Thu Ha, in dealing with sentencing for cases of cultivation of cannabis plants, the Hong Kong District Court would estimate the weight of herbal cannabis produced by the operation in question per year and, referring to the tariffs laid down in Tuen Shui Ming, use such estimation as the basis for sentencing. Given that the cannabis potency of herbal cannabis is lower than that of cannabis resin, a discount of up to a year would be given in determining the starting point. The court would then have regard to other relevant factors before arriving at the ultimate sentence (see HKSAR v Luu Van Phong & Anor (DCCC 1172/2013), HKSAR v Dinh Huu Sy (DCCC 181/2016), HKSAR v Lo Ka Wing (M) (DCCC 475/2016), HKSAR v Vu Anh Tuan & Anor (DCCC 402/2017)).

56.  Apart from the English cases, in the said case of Terewi,the Court of Appeal of New Zealand made a detailed analysis of the sentencing options in respect of the offence of cultivation of cannabis plants. The Court of Appeal of New Zealand divided the offence of cultivation of cannabis plants into three categories:

(1) Category 1 consisted of the growing of a small number of cannabis plants for personal use by the offender. A fine or other non-custodial sentence was sufficient. Where there had been supplies of a small quantity to others on a non-commercial basis, the monetary penalty would be greater and in some serious cases or for persistent offending, a short prison term or term of detention was appropriate;

(2) Category 2 encompassed small-scale cultivation of cannabis plants for a commercial purpose, namely with the object of deriving profit. The starting point was between 2 and 4 years; and

(3) Category 3 was the most serious class of such offending. It involved large-scale commercial growing of cannabis plants, usually with a considerable degree of sophistication and organization. The starting point should be 4 years or more.

57.  The Court of Appeal of New Zealand also observed that the value of the cannabis in question, annual revenue of cultivation and the number of cannabis plants cultivated during the time periods involved in the offending provided a better guide for the seriousness of the offending. This was because cultivation methods were of varying degrees of intensity and would affect the yield and potency of usable cannabis. Also, varying frequencies of the growth cycle would produce varying ultimate yields.

58.  Summing up the approaches in the above authorities from various jurisdictions, we are of the view that the main sentencing consideration for the offence of cultivation of cannabis plants is the estimated annual yield of the cannabis cultivation operation. Other aggravating factors have also to be taken into account. Of course, the scale of the cultivation of cannabis plants and the annual yield of cannabis generally have a direct impact on the annual earnings and are significant pointers to be taken into consideration in sentencing.

59.  In the present case, in estimating the annual yield of the operation in question, the trial judge only took into account cannabis flowers and counted twigs and leaves of cannabis out. In our view, such approach is unrealistic.

60.  Although the active component (cannabis potency) of the leaves and twigs of cannabis is of a relatively lower level than that of cannabis flowers, the leaves and twigs of cannabis are by no means of no commercial use or value. Cultivators generally will not discard all the leaves and twigs of cannabis which are valuable. Undisputed evidence advanced by the prosecution shows that the flowers, leaves and twigs of cannabis plants all contain the active component which can produce different products of cannabis.

61.  The fact that the herbal cannabis found upon search by the police at the cultivation operation in question only contained cannabis flowers without any twigs and leaves of cannabis does not mean that the respondent would discard all the twigs and leaves of cannabis. In fact, there is no evidence that the respondent would do so. The police’s failure to find upon search twigs and leaves of cannabis at the cultivation operation in question can be attributed to various factors. The court should not have sentenced on the basis that the cultivator of cannabis plants would discard twigs and leaves of cannabis and only retain cannabis flowers.

62.  We agree with the submission of Ms Lam. The approach taken by the trial judge to completely ignore the leaves/twigs of cannabis which have commercial value and contain cannabis active component in estimating the annual yield of the cannabis cultivation operation in question was wrong. In fact, in a number of cases, the court, when sentencing, took into account the quantity of herbal cannabis in question, namely leaves/twigs of cannabis in addition to cannabis flowers.

63.  The present case involves 419 grown cannabis plants and 158 cannabis seedlings. Cannabis seedlings cannot be used to produce herbal cannabis or cannabis resin immediately. Their value is of course lower than that of grown cannabis plants. However, cannabis seedlings will certainly grow over time and can produce other cannabis products of commercial value. In the cannabis cultivation operation in question, there were a large number of plastic trays for cultivating cannabis and soil and fertilizers required for cultivating cannabis. The reasonable inference is that the respondent would transplant the cannabis seedlings into those plastic trays at appropriate stage for them to continue to grow and reach the harvest stage. In estimating the annual yield of cannabis, the trial judge counted the cannabis seedlings out on account that the cannabis seedlings were used to replace grown cannabis plants and those that had been harvested. We do not understand nor do we agree with the logical basis of this approach. In our view, cannabis seedlings should also be taken into account in estimating the annual yield. Even without regard to the factor that cannabis seedlings will grow, the leaves of cannabis seedlings themselves can also produce cannabis products.

64.  In his written submission, Mr Kwok relied on the following paragraph of the judgment in R v John Auton & Others in support of the contention that there might only be one or two crops for a cannabis plant:

“cannabis is an annual plant, so that its life cycle ends with flowering and the production of new seeds. When grown intensively indoors, one or sometimes two, crops can be obtained from a plant before it passes to senescence and dies, and a crop takes (generally speaking) something of the order of four months from the planting of the seed to harvest, or about three months from the seeding stage.”

65.  The phrase “one or two crops” in the above paragraph refers to the number of harvests that can be obtained from the same plant, not the number of life cycles (crops) of the plant in a year. In fact, the above paragraph confirms that for cannabis plants, it takes about 3 months from the planting of the seed to harvest. The respondent cultivated cannabis plants by cuttage method and the harvest cycle might be shorter. Furthermore, in a video-recorded interview with the police, the respondent admitted that it took approximately 3 months for a cannabis plant to grow to flower. Therefore, there would be 4 crops a year for cannabis. The expert witness for the prosecution also confirmed such account. There is simply no evidential basis on which the respondent can rely to dispute that there are only 3 crops, not 4 crops, a year for cannabis.  In the absence of any evidential support, the trial judge calculated the annual yield of cannabis of the cultivation operation in question on the basis that there were 3 crops a year. The trial judge’s approach was wrong.

66.  On the basis that there are 4 crops a year for the 419 grown cannabis plants and 3 crops a year for the 158 cannabis seedlings, the annual yield of cannabis of the cultivation operation in question is:

[(113.4 grammes x 419 plants x 4 crops) + (113.4 grammes x 158 plants x 3 crops)] x 11.16%

= (190,058 grammes + 53,751 grammes) x 11.16%

= 27,209 grammes

67.  For an annual yield of 27,209 grammes of cannabis, according to the tariffs in Tuen Shui Ming, the starting point will be higher than four and a half years’ imprisonment. Given that the cannabis in question is herbal cannabis and not cannabis resin, the starting point will also be higher than three and a half years’ imprisonment.

68.  Merely taking into account the 31,876.63 grammes of fresh cannabis found upon search on the day in question, it is equivalent to 31,876.63 grammes x 11.16% = 3,557.43 grammes of herbal cannabis. Together with the 1,080 grammes of cannabis flowers referred to in charge two, the starting point for trafficking in a total quantity of 4,637.43 grammes of herbal cannabis should not be less than 20 months’ imprisonment.

69.  We cannot overlook the fact that the scale of the cannabis cultivation operation in question is not small. Nearly 600 cannabis plants could be cultivated at the same time and the estimated annual yield exceeded 25,000 grammes. The respondent rented the sheet-metal shack for residential purpose and cultivating cannabis plants. The respondent also installed thermometers to control the temperature and humidity of the cultivation zones for speeding up the growth of cannabis plants. After harvesting, the respondent would sell cannabis products. The respondent was cultivator, manager, operator and organizer. The above aggravating factors can increase the starting point for charge one to one of not less than 4 years.

70.  We agree with the views of the Secretary for Justice that in light of the background of the case, the starting point of two and a half years adopted by the trial judge for charge one was manifestly low. The appropriate starting point should not be lower than 4 years. The sentence should be reduced by one-third to 32 months on account of the respondent’s guilty plea. Thus, the appropriate starting point for charge one should not be lower than 32 months.

71.  There is a difference of at least 12 months between the sentence imposed on the respondent and the one which ought to have been imposed on him. However, taking into account the fact that the present case is an application for review of sentence, it has been over two and a half years after the incident, the respondent has already served the sentence and has been back in employment after release and he works hard to earn money and takes care of the family, if the respondent is required at the present stage to serve a further sentence, it will be too severe with him. It will also cause extremely great distress for his family.

72.  Although we are of the view that the trial judge erred in principle in dealing with the sentence for charge one and the sentence is manifestly inadequate, given the exceptional circumstances in the present case, in our view, the respondent should be treated leniently.  It is hoped that he can turn over a new leaf and will not commit the offence again. The application for review of sentence is dismissed and the sentence upheld.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.