HKSAR v. Hoang Van Hai and Another

HCCC 398/2018

[2019] HKCFI 1453

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 398 OF 2018

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: On 17 December 2018 at the Eastern Magistrates’ Courts, both defendants pleaded guilty to trafficking 7.84 kg of herbal cannabis and another count of cultivating cannabis plants. They were committed to this court for sentence.

At about 11 pm on 20 December 2017, the police intercepted a 7-seater at a roadblock at Tai Po Road, Ma Liu Shui section near Ma On Shan. D1 was the driver and D2 was the passenger. Both of them appeared nervous. The police searched the two plastic bags at the back of the 7-seater. They found herbal cannabis inside which was the subject matter of the 1st count.

The market value was about HK$2.2 million.

Later, the police searched the premises at No 4760, Tai Po Road, Tai Po Kau section. D2 had the keys to the premises. Inside the premises were 448 cannabis plants. The police also found a plastic packet containing 2.13 grammes of herbal cannabis on a shelf in the living room. There were two mobile phones, two electronic scales, 11 lamps, nine thermometers, three fans, large amount of fertilizer and other tools in various rooms of the premises. According to an expert, the herbal plants could produce about 85.17 kilogrammes of herbal cannabis per year.

The market value was about HK$23.6 million.

D1 admitted under caution that he arrived at Hong Kong as a visitor on 7 November 2017. D2 paid him £2,000 per week for helping D2 in cultivating the cannabis plants. D2 admitted under caution that he was an illegal immigrant and a Form 8 holder. Yung Suk paid him about 10,000 per month to water the cannabis plants and tidy up the premises. Yung Suk and D1 gave him instructions in growing the plants.

D1 is 58. He was born in Vietnam. He received no education. He is married with a daughter and a son about 11 and 10 years old. The family migrated from Vietnam to UK about 10 years ago. He has a clear record in Hong Kong. D1 submits a letter saying he is very remorseful. He pleads for leniency.

D2 is 38. He is married with two sons, 6 and 15 respectively. He was born in Vietnam and received education up to the 9th grade. He started operating a restaurant in Vietnam in 2014 funded by his savings and loans. The restaurant closed down and he was unable to repay the loans. He was threatened by the creditors. He fled Vietnam and came to Hong Kong illegally.

While they were not the mastermind of the criminal plot, their roles are important to the operation in the premises. I see no reason to reduce the sentence of both counts on this.

For the 1st count, I have considered the authorities, including AG v Tuen Shui Ming [1995] 2 HKC 798 and SJ v Lee Siu Kei, CAAR 4/2005. I bear in mind that the concentration of Tetrahydrocannabinol, THC, in herbal cannabis is about one-quarter of that of cannabis resin. The amount of THC equivalent of cannabis resin in the present case is about 1.7 kg. The starting point for trafficking over 2 kg of cannabis resin is 16 months to 2 years’ imprisonment. Having considered all circumstances, I take a starting point of 16 months’ imprisonment for each defendant.

For D1, I deduct 5 months for his plea. I give a further 2 months’ reduction for his co-operation with the police. I sentence him to 9 months’ imprisonment for the 1st count.

For D2, he is a Form 8 holder. I take this as an aggravating factor for enhancing the starting point by 6 months. The adjusted starting point is 22 months’ imprisonment. I give him 7 months for his plea. I sentence D2 to 15 months for the 1st count.

For the 2nd count, I have, in addition, considered the case of HKSAR v Nguyen Thu Ha, CACC 335/2013. I accept that the annual production of herbal cannabis is about 85 kg of herbal cannabis in the present case. Taking into account other circumstances of this case, I take 10 years as the starting point for each defendant.

For D1, I give him 3 years and 4 months’ discount for his plea. I give him a further discount of 1 year and 2 months for his co-operation with the police. I sentence D1 to 5 years and 6 months’ imprisonment for the 2nd count.

For D2, I enhance the starting point by 6 months for his Form 8 status. The enhanced starting point is 10½ years. I give him 3.5 years’ discount for his plea. I sentence D2 to 7 years’ imprisonment for the 2nd count.

While the conduct arose out of the same criminal plot, Charge 1 is a different phase of the plot and deserve some overlapping of sentence. In view of the totality principle for each defendant, I order 6 months of the sentence of the 1st count to run consecutive to the 2nd count. In total, D1 has to serve 6 years’ imprisonment. D2 has to serve 7 years and 6 months’ imprisonment.