HKSAR v. Lo Ka Wing (M)

DCCC475/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 475 OF 2016

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to one charge of cultivation of cannabis plants, contrary to section 9(1) and (5) of the Dangerous Drugs Ordinance, Chapter 134.

Facts

2.On 6 January 2016, police officers intercepted the defendant when he was entering a two-storey village house in Yuen Long (“the House”).  The officers found two sets of keys, two mobile phones and HK$1,820 from the defendant.  They entered the House with those keys.

3.The House had two floors.  Each floor had an area of about 350 square feet.  The ground floor had a common area and a room (Room A).  The upper floor had two rooms (Room B and Room C).  The House itself was situated within a walled compound with two additional out-buildings. 

4.The defendant was a tenant of the House.  He rented the House for two years from 26 July 2015 to 25 July 2017 at a monthly rental of HK$14,800.  He also paid the water and electricity bills of the House.

5.Police officers searched the House.  On the ground floor, 115 pots of cannabis plants were found inside the common area, and 128 grammes of cannabis in the form of a pile of dried plant material were found inside Room A.  On the upper floor, 160 pots and 54 pots of cannabis plants were found in Rooms B and C respectively. In other words, there were a total of 329 cannabis plants in pots and one dried cannabis plant inside the House.

6.Police officers also found various equipment and devices used in cultivation and harvest of cannabis plants inside the House.  They included  3 scales, a measuring cylinder, 2 bags of soil, 7 empty pots, 2 bottles of liquid fertilizers, 1 pack of pesticide, an irrigation schedule, a thermometer, a moisture meter, 1 heater, 3 ventilation fans and 21 sets of high intensity solar lamps.  Weighing and packaging equipment were found inside one of the out-buildings within the wall compound where the House was situated.

7.The defendant was arrested.  Under caution at the scene, the defendant stated that there were approximately one hundred pots of cannabis plants inside the house. He said that those on the upper floor were around 10 days old, while those on the ground floor were around 2 months old.

8.In a subsequent video recorded interview, the defendant further admitted that he started cultivating cannabis plants inside the House since December 2014.  He bought cannabis cuttings and equipment on the internet.  He used the high intensity solar lamps to facilitate the growth of the cannabis plants, and the ventilation fans to maintain temperature inside the House.  The cannabis plants would be harvested around once every two months.  He would sell cannabis to others at HK$20,000 per pound.  He could derive an income of around HK$40,000 per month.

9.Dr. Chung Wai-wah, a government chemist, inspected the House and examined the various exhibits seized.  He was of the opinion that cultivation of cannabis plants had been taking place inside the House. 

10.In addition, Dr. Chung examined 9 cannabis plants (3 from each room selected randomly).  His examination revealed that the average weight percentage of cannabis in herbal form obtained from the cannabis plants in Rooms A, B and C were 17.1%, 11.9% and 16.6% respectively.

11.Applying these averages to the total weight of the cannabis plants found in Rooms A, B and C respectively, it was estimated that 781.9 grammes of cannabis in herbal form could be produced from the 115 cannabis plants in Room A (i.e. total weight 4,602.8 grammes x 17.1%), 276.6 grammes of cannabis in herbal form could be produced from the 160 cannabis plants in Room B (i.e. total weight 2,324.4 grammes x 11.9%), and 316.5 grammes of cannabis in herbal form could be produced from the 54 cannabis plants in Room C (i.e. total weight 1,906.9 grammes x 16.6%).  Hence, a total of 1,380.2 grammes of cannabis in herbal form could be produced from the cannabis plants seized.

12.Dr. Chen Yi-min, Agricultural Officer from the Agricultural, Fisheries and Conservation Department, provided the expert opinion that production of cannabis plants in pots had been carried out inside the House, and that the equipment, devices, planting media and fertilizers seized from the House were tailor-made for this operation.

13.Dr. Chen further opined that according to the characteristics of the cannabis species, the time to reach flowering stage was about 4 months, and hence there were 3 crops a year.  The cannabis plants inside the House could produce a total yield of 38,000 grammes of fresh cannabis leaves and flowers in a year. Based on the average weight percentage of herbal cannabis that could be produced from the cannabis plants as ascertained by Dr. Chung (i.e. [17.1% + 11.9% + 16.6%] ÷ 3 = 15.2%), 5,800 grammes (i.e. 38,000 grammes x 15.2%) of herbal cannabis could be produced in a year.

14.According to DSI Chan Lap-koon, the average retail price of herbal cannabis at the material times was estimated at HK$101 per gramme.  Hence, the market value of the herbal cannabis that could be produced from the seized plants in the House was HK$139,380 (i.e. HK$101 per gramme x 1,380 grammes).  The market value of the annual yield was estimated at HK$585,800 (i.e. HK$101 per gramme x 5,800 grammes).

15.At the material times, the defendant cultivated inside the House plants of genus Cannabis, namely, 329 plants in a total weight of 8,834 grammes of cannabis in the form of plants and one plant in a total weight of 128 grammes of cannabis in the form of a pile of dried plant material.

16.With the consent of Miss Li, the learned counsel for the defendant, a photograph album containing 152 photographs showing inter alia the House, the cannabis plants and the equipment and devices used by the defendant in the cultivation of cannabis plants was produced for the court’s reference.

Criminal record

17.The defendant has a clear record.

Personal and family background

18.The defendant is 40 years old.  He was born in Hong Kong.  He was educated up to Form 3 level.  He had worked as a public light bus driver since 2009 with a monthly income of HK$15,000 to HK$16,000.  He was divorced in 2003.  He was granted custody of his daughter who is now a 16 years old student and living with the defendant.  His father has already passed away.  His mother is now 61 years old.  He has one elder brother, one elder sister, and one younger brother.

Mitigation

19.According to Miss Li, the defendant started indulging in gambling about 2 years ago after he had mingled with some newly recruited drivers.  However, he lost money and started borrowing from financial institutions.  He had incurred a debt up to almost half a million dollars, and he had to pay interest of nearly HK$40,000 a month.  When he could not make ends meet, a friend asked him to cultivate cannabis plants to earn HK$40,000 a month.  He failed to resist the temptation and agreed to the suggestion. 

20.Miss Li submitted that the criminal venture was only a one-man operation by the defendant until the day of his arrest.  She pointed out that the defendant did not prevent the police from entering into the House, and that the defendant made admissions under caution to the police at the scene of arrest and during the video recorded interview.

21.Miss Li further informed this Court that after the defendant’s arrest, his family members helped him repay all the debts owed to the financial institutions.  The defendant felt very grateful to his family members.  He also felt shameful for his wrongdoing.  He vowed to turn a new leaf and refrain from gambling.  He planned to work hard after he had served his sentence so as to repay his family members, and to take good care of his daughter who was his only hope now.

22.Miss Li pointed out that there was no tariff for this offence.  She referred to the sentence imposed on the first defendant (D1) in the District Court in the case of HKSAR v Mak Chi Bo (麥志波) & Another[1] on 18 May 2016.  In that case, D1 cultivated 277 pots of cannabis plants which could produce 7,507 grammes of herbal cannabis a year with a market value of about HK$1 million.  He also had 15 previous convictions including 8 charges for possession of dangerous drugs.  The learned sentencing judge there adopted a starting point of 24 months’ imprisonment.  Miss Li argued that since the estimated annual yield of herbal cannabis in the present case was no more than 5,800 grammes and that the defendant had a clear record, the starting point should not be more than two years.

23.On behalf of the defendant, Miss Li produced 6 mitigation letters written respectively by the defendant, his daughter, his younger brother, his elder brother, his niece and his friend.  The defendant expressed his remorse and vowed to abide by the law in the future.  The others described the defendant to be a filial son, a responsible father, a helpful sibling and a loyal friend who had been driven to commit the offence due to financial pressures.  All of them urged the Court to be as lenient as possible.

Authorities referred to by the prosecution

24.Mr. P. C. Lee, counsel on fiat for the prosecution, drew my attention to the following appellate decisions in Hong Kong, England and Australia: HKSAR v Nguyen Thu Ha (阮秋霞)[2], in R v Xiong Xu[3], R v Auton and Others[4], and Hedgecock v R[5], and to the following sentences imposed in the District Court: HKSAR v Nguyen Van Cuong[6], HKSAR v Poon Wun Kwong[7], HKSAR v So Kim Yi & Another[8], HKSAR v Hoang Thanh Son[9], and HKSAR v Luu Van Phong[10].

25.Mr. Lee had summarized the decisions of these cases in a document entitled “Prosecution’s submission on Sentencing”. I find Mr. Lee’s summary of cases very helpful.  Mr. Lee had however also made some observations on the facts of this case in the last paragraph.  I have ignored this part of Mr. Lee’s submissions in my consideration of the sentence.  As I understand it, counsel for the prosecution should not say anything that could be taken as advocating severity: Attorney General v Jim Chong-shing[11].

26.In reply, Miss Li referred to Luu Van Phong and pointed out that the learned judge there adopted a starting point of 3 years’ imprisonment for cultivating cannabis plants which produced an estimated annual yield of 9.3 kg of herbal cannabis (Charge 1).  Miss Li argued that since the present case involved an annual yield of 5.8 kg only, the proper starting point should be lower than 3 years. Miss Li reiterated that the defendant had a clear record and that he had all along been fully co-operative with the police.

Reasons for sentence

27.The maximum sentence for the offence of cultivation of cannabis plants is a fine of HK$100,000 and imprisonment for 15 years[12]. There is no sentencing tariff for this offence, but the sentencing approach is clear. 

28.In Nguyen Thu Ha, Lunn JA (as he then was), sitting as a single judge in the Court of Appeal, approved the approach adopted by the sentencing judge. Under this approach, the offender was sentenced on the basis of the estimated annual yield of herbal cannabis that could be produced from the cannabis plants being cultivated (having regard to the opinion of an expert) rather than the weight of the plants at the time of the offender’s arrest and seizure of the plants.  After the annual yield of herbal cannabis has been estimated, the sentencing court should refer to the sentencing tariff for possession of cannabis resin for the purpose of unlawful trafficking as laid down in Attorney General v Tuen Shui Ming & Another[13] to determine the appropriate starting point of the sentence as if the dangerous drugs in question were cannabis resin, but then adjust the sentence to take into account the fact that cannabis resin has an average concentration of tetrahydrocannabinol, which is the principal psychoactive constituent in cannabis plants, about 4 times higher than that found in herbal cannabis.

29.The sentencing court should also take into other factors such as the number of plants, the maturity, size, sex and quality of the plants, the level of sophistication of the operation, whether the cultivation is part of an ongoing operation or only an “one-off” event, the nature and extent of any criminal history of the offender, and the reasons for growing the plants including whether it is a commercial operation, or whether there is a claimed medical reason for producing cannabis such as pain relief for an identified condition: Hedgecock.

30.In Tuen Shui Ming, the sentencing tariff laid down by the Court of Appeal for possession of cannabis resin for the purpose of unlawful trafficking was as follows: under 2,000 grammes, imprisonment up to 16 months; over 2,000 grammes, 16 to 24 months; over 3,000 grammes, 24 to 36 months; over 6,000 grammes, 36 to 48 months; over 9,000 grammes, 4 years upwards.  When applying this sentencing tariff to trafficking in herbal cannabis, a discount of up to one year from the sentence that would have been imposed for trafficking in cannabis resin may be appropriate, except perhaps in cases where very large amounts are involved.

31.I shall adopt the same approach in sentencing the defendant.

32.In the present case, there were a total of 329 cannabis plants. They could produce an estimated annual yield of 5,800 grammes of herbal cannabis with an estimated market value of HK$585,800.

33.The defendant claimed in mitigation that he was asked by another person to cultivate cannabis.  Even if his claim were true (and I shall deal with this issue further), it is clear from the defendant’s admissions that he was not a mere “gardener” but the primary culprit in this cultivation operation.  He was the person who rented the House and set it up as the cultivation ground.  He also purchased cannabis cuttings via the internet for cultivation of cannabis plants.

34.The cultivation inside the House was of a medium size operation.  It was clear from the photographs that the House, which had two floors with a total area of 700 square feet, was used solely for the purpose of cultivating cannabis plants. That as many as 21 set s of high intensity solar lamps were found inside the House was a good indication of the size of the operation.  The operation was also sophisticated as evidenced not only by the presence of various cultivation devices and equipment but also by the way they were set up in the House as shown in the photographs taken at the scene. 

35.In addition, the cultivation was not a one-off operation but an ongoing one.  The defendant admitted that he had rented the House for two years from 26 July 2015, and that he had been growing cannabis plants since December 2014.  It was also clear that he would have continued the same operation had he not been arrested by the police.

36.Besides, the cultivation was undoubtedly for commercial purposes.  The defendant himself admitted that he obtained HK$40,000 a month through this criminal offence.

37.Miss Li submitted that the offence committed by the defendant was a one-man operation.  However, Miss Li also said that the defendant was asked by a friend to cultivate the cannabis plants to earn HK$40,000 a month and that the defendant yielded to the temptation because he had to get money to repay interest and loans for money borrowed from financial institutions to settle his gambling debt.

38.In my view, if the defendant had been asked by his friend to cultivate the cannabis plants, this criminal venture could not be a one-man operation.  Miss Li sought to argue that what the defendant meant by one-man operation was that he was the only one cultivating the cannabis plants and the sale of the herbal cannabis produced was left to his friend.  In my view, even if this version of facts were correct, it would just mean that the defendant was responsible for the production side while his friend was responsible for the marketing side of this illegal business of trafficking in herbal cannabis.  From this perspective, the defendant was committing the offence jointly with another person.  This should be regarded as an aggravating feature of the offence that should lead to a higher starting point.

39.It is however my view that the defendant’s allegation through Miss Li was contradicted by the facts admitted by him.  According to the admitted facts, after he had been arrested, he made admissions under caution to the offence and described how he committed the offence.  He had however never revealed that he was asked by his friend to take part in this illegal venture, nor had he mentioned that his friend was responsible for sale.  On the contrary, he told the police that he would sell cannabis to others at HK$20,000 per pound.  In my view, his admission showed that he was the only person involved in the offence.  

40.Furthermore, if the defendant were merely recruited by his friend to cultivate the cannabis plants and he was able to obtain HK$40,000 a month, it was only reasonable to expect that his friend who according to the defendant was the primary instigator of the offence and responsible for marketing of the herbal cannabis produced, should be able to obtain a profit of the same magnitude if not more than that of the defendant.  If so, it would have meant that the monthly income generated from the cultivation of the cannabis plants would be at least HK$80,000 a month.  Since the market price of herbal cannabis at the material times was HK$101 per gramme, 792 grammes of herbal cannabis had to be sold each month in order to sustain this level of income.  In other words, on average, at least 792 grammes of herbal cannabis had to be produced each month, and an annual yield of 9,504 grammes was required.  However, it was clear from the expert opinion of Dr. Chen that the annual yield produced by the cannabis plants cultivated by the defendant was only 5,800 grammes.  The size of the production did not tally with the allegation given by the defendant through Miss Li. 

41.I shall sentence the defendant on the basis that this was a one-man operation, and that he was responsible for every aspect of the offence, i.e. from setting up the cultivation ground up till sale of the end products.  If I were wrong in this regard, I would consider that the defendant had committed the offence jointly with another person, and this was an aggravating feature that would lead to the same starting point of the sentence.

42.In sentencing the defendant, I bear in mind all the above factors in mind.  I note the estimated annual yield of the cannabis plants cultivated by the defendant was 5,800 grammes.  Miss Li submitted that this estimation was no more than a projection, but it is clear from Nguyen Thu Ha and the other cases referred to by the prosecution that the estimated annual yield was the factor to be used to assess the scale of the operation.

43.According to the sentencing approach approved in Nguyen Thu Ha, I shall first of all determine the appropriate starting point for trafficking in 5,800 grammes of cannabis resin in accordance with the tariff laid down by the Court of Appeal in Tuen Shui Ming. 

44.Had the dangerous drugs in question been 5,800 grammes of cannabis resin, applying the sentencing tariff in Tuen Shui Ming, I find that the appropriate starting point should be imprisonment for 33 months.  I adjust the starting point downward to 24 months’ imprisonment to take into account the fact that the dangerous drugs in question were herbal cannabis.

45.I note that Miss Li had compared the present case with Mak Chi Bo and that she had argued that the starting point in this case should be less than that adopted in that case, i.e. 2 years’ imprisonment, because in that case, D1’s offence was more serious and he had a criminal record.  In Mak Chi Bo , D1 cultivated cannabis plants with an estimated annual yield of 7,507 grammes of herbal cannabis.  The learned sentencing judge referred to the starting point adopted in Nguyen Thu Ha before he adopted 2 years’ imprisonment as the starting point for D1’s sentence.  However, in Nguyen Thu Ha, the estimated annual yield of herbal cannabis was only 3,823 grammes, and the starting point of 20 months’ imprisonment had been commented by the appellate court to be “generous”.  In light of this comment by the appellate court and the fact that the estimated annual yield of herbal cannabis in Mak Chi Bo was nearly double that in Nguyen Thu Ha, I have to say that the 24 months’ imprisonment starting point adopted by the learned judge in Mak Chi Bo was far too generous.  In any event, Mak Chi Bo was not binding on me.  

46.As far as mitigating factors are concerned, I have considered Miss Li’s plea in mitigation and the mitigation letters very carefully.  It is however clear that the only effective mitigating factor is the defendant’s guilty plea.  I appreciate that the defendant’s imprisonment will bring hardship to his daughter, but family hardship is seldom a ground for reducing an otherwise appropriate sentence.

47.The defendant is entitled to one-third discount of the starting point to reflect his guilty plea.  There is no other ground that reduces his sentence further.

48.For these reasons, the defendant is sentenced to serve a term of imprisonment for 16 months.