HKSAR v. Vu Anh Tuan and Another

DCCC 402/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 402 OF 2017

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REASONS FOR SENTENCE

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1.D1 and D2 are jointly charged with one count of “Trafficking in a dangerous drug” (Charge 1) and one count of “Cultivation of cannabis plants” (Charge 2), contrary to section 4(1)(a) & (3), and section 9(1) & (5) of the Dangerous Drugs Ordinance, Cap 134. They both pleaded guilty to the two charges.

Summary of facts

2.On 23 December 2016, police officers conducted an operation at Flat D, 11^th Floor, Ying May Building, No 190 Tong Mi Road, Mong Kok, Kowloon (“the Flat”).  At about 1:54 pm, D1 and D2 left the Flat and were intercepted by the officers on the ground floor.  At the time when they were intercepted, D1 was holding a nylon bag.  Inside the nylon bag there was a plastic bag containing soil and a resealable plastic bag containing suspected dangerous drug.  It was later confirmed that the dangerous drug is 84.6 grammes of cannabis in herbal form (Charge 1).

3.The officers then produced the relevant search warrant and conducted a search in the Flat.  Inside the Flat, the officers found 111 pots of cannabis plants in the living room and 55 pots of cannabis plants in the two bedrooms.  The said pots contained a total of 170 cannabis plants, subsequently confirmed to be 9,876.85 grammes of fresh cannabis.  Further, some empty pots, 2 bottles of nutrient solution, 12 light shades each equipped with a solar light, 8 exhaust fans, 8 electronic fans, 2 adaptors and 4 timers were found in the living room and bedrooms of the Flat.

4.Both D1 and D2 were arrested for Cultivation of cannabis plants at the scene.  Under caution, D1 said a person named “Brother Hung” paid him to plant cannabis in the Flat but D2 denied his involvement in the offence.

5.In the subsequent cautioned video-recorded interview, in the presence of a Vietnamese interpreter, D1 said:-

(a) He was born in Vietnam and sneaked into Hong Kong through Mainland China in June 2015. He was then arrested and subsequently issued a Form 8 recognizance;

(b) In August 2016 he met a Vietnamese male named “WONG Fei-hung” and he called WONG as “Brother Hung”;

(c) Brother Hung knew that he needed money and offered him HK$12,000 for planting cannabis. He agreed and Brother Hung took him to the Flat. He met a man there and learnt how to cultivate cannabis. Later he was given the key to the Flat and started planting cannabis in the Flat;

(d) He visited the Flat every day from August to December 2016. He was responsible for watering and curing the cannabis plants. The lights inside the Flat were used for illuminating the cannabis plants and making the Flat warmer. The ventilation fans were used for cooling down the Flat. The timers were used to control the operation of the lights;

(e) He knew that cannabis plants could be harvested in 84 days but he had not harvested yet;

(f) He had not received any reward from Brother Hung as the cannabis plants had not been harvested;

(g) The Flat was rented by Brother Hung and Brother Hung would be responsible for selling the dried cannabis plants;

(h) He knew D2 back in Vietnam. D2 was instructed by Brother Hung to act as a lookout to avoid police detection.

6.In the subsequent cautioned video-recorded interview, in the presence of a Vietnamese interpreter, D2 said:-

(a) He came from Vietnam and sneaked into Hong Kong in about October 2015;

(b) He was instructed by “Ah Hung” whom he knew in Vietnam to guard the door of the Flat. Ah Hung asked him to help for 1 to 2 days and he did not receive any reward;

(c) D1 was his secondary classmate in Vietnam. He went to the Flat with D1 on 3 occasions and stayed in the Flat for about 10 to 15 minutes on each occasion;

(d) D1 did not tell him anything about the Flat and indicated that he need not know anything. Though he did not know what was inside the Flat, he knew he was doing something illegal.

7.An Agriculture Officer of the Agriculture, Fisheries and Conservation Department gave expert opinions that 4 crops a year could be grown for harvesting in the Flat.  It is estimated that a total yield of 97.9 kilogrammes of fresh cannabis flowers and leaves could be produced in a year.  According to the Government Chemist, the average weight percentage of cannabis in dry herbal form obtained from cannabis plants is about 15.67%.  Therefore, the estimated annual yield of cannabis in dry herbal form would be about 15.3 kilogrammes.

8.The street value of 15.3 kilogrammes of cannabis in herbal form in December 2016 is estimated to be HK$4,249,180.

9.Both D1 and D2 were non-refoulement claimants when they committed the offences.

Mitigation

10.D1 is 21 years old and single.  He is a person of clear record.  He came from Vietnam and is a Form 8 recognizance holder.  His parents are living in Vietnam but his two elder sisters are married and settled in Hong Kong.  As a Form 8 holder, D1 is not allowed to work and he relies on the assistance from ISS. Defence submitted that D1 was not the person who set up and run the operation. He was merely a caretaker.  He pleaded guilty to the charges and had been co-operative with the police.  Defence submitted that D1 is very remorseful and he will not re-offend.  Defence urged the court to impose a lenient sentence.

11.D2 is 20 years old and single.  He has one previous conviction in 2016 but it was an immigration offence.  He also came from Vietnam.  He came to make money to support his family in Vietnam.  Defence submitted that the role of D2 is comparatively minor.  He acted merely as a lookout.  Defence explained that at the material times D2 was just released from prison and had no place to stay. Defence submitted that D2 is very remorseful and he pleaded guilty to the charges.  Defence also urged the court to treat D2 leniently.

Sentencing consideration

12.For trafficking in cannabis, the Court of Appeal had set down the tariff in Attorney General v Tuen Shui-ming and Another [1995] 2 HKCLR 129.  For trafficking less than 2,000 grammes of cannabis resin, the sentence is imprisonment up to 16 months.  The Court of Appeal also indicated that as the concentration of cannabis resin is about 4 times stronger than cannabis in herbal form, in cases of trafficking in cannabis in herbal form, it would be appropriate to discount up to a year from the sentence of imprisonment that would have been imposed in respect of trafficking in cannabis resin.

13.On the other hand, for cultivation of cannabis plants, it was approved by the Court of Appeal in HKSAR v Nguyen Thu Ha, CACC 335/2013 that the appropriate approach to sentence is to have regard to the opinion of an expert as to the estimated annual yield of herbal cannabis from the plants, rather than to the weight of the plants seized.

14.In considering the appropriate starting point for the two charges, I have carefully considered all the circumstances of the case, the background of the defendants, their respective roles and the mitigation put forward.  Charge 1 concerns only 84.6 grammes of herbal cannabis.  Adopting the guideline laid down in Tuen Shui Ming, the appropriate starting point should be 3 months’ imprisonment.  For Charge 2, though the quantity of the estimated annual yield is very large, after considering the young age of both defendants and their respectively roles, I am of the view that 4 years is the appropriate starting point for cannabis resin of this quantity.  Again it was cannabis in herbal form so a discount of 12 months should be given.  Therefore, the proper starting point for Charge 2 should be 3 years’ imprisonment.

15.Both defendants are Form 8 holders.  The Court of Appeal has indicated in numerous cases that the immigration status of a defendant could be treated as an aggravating factor and enhancement of sentence is called for in appropriate cases.  I have carefully considered the circumstances of this case.  While I totally agree with the reasoning of the Court of Appeal, I decided to take a lenient view on the defendants and not to enhance the sentence because of their young age.  The term of imprisonment they are facing is already a substantial one and I am of the view that further enhancement is not necessary in this case.

16.D1 and D2 pleaded guilty to both charges so they are entitled to have one third discount.  To conclude, for Charge 1, both D1 and D2 are sentenced to 2 months’ imprisonment.  For Charge 2, they are both sentenced to 2 years’ imprisonment. After considering the totality principle, I order the sentences of Charge 1 and Charge 2 to be served concurrently.  Therefore, both D1 and D2 are sentenced to 2 years’ imprisonment.