HKSAR v. Mak Chi Por

DCCC 161/2019

[2019] HKDC 1063

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 161 OF 2019

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Reasons for Sentence

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Charge

1.The Defendant pleads guilty to a charge of cultivation of cannabis plants, contrary to section 9(1) and (5) of the Dangerous Drugs Ordinance, Cap. 134.  The maximum penalty is a fine of $100,000 and imprisonment for 15 years.

Facts

2.At about 5:05pm on 6 April 2018, police conducted a search at the village house located at No. 453, Kam Tsin Tsuen, Kam Tsin Road, Sheung Shui, New Territories, Hong Kong (“the House”). D was located inside the House.

3.Upon search inside the House, a total of 1,205 pots cannabis plants were found, namely 449 pots on G/F, 158 pots on 1/F and 598 pots on 2/F.  A pack of suspected plant seeds was also found inside the House.  The rooms are equipped with light bulbs, ventilation pipes, timers for electricity supply, fans and air conditioners.  The inner walls of the rooms are painted with light colour or covered with light reflecting films.  Plastic pots and potting media, fertilizers, pruning shear, water buckets, plastic tubes and liquid sprayers are found at the cultivation site.

4.Government Chemist confirmed that there are 605.2 grammes of cannabis in the form of pot plants, 35,186.4 grammes of cannabis in the form of cut plants, and 9.09 grammes of plant seeds, 58 of the plant seeds were taken for cultivation and 14 of them were found to be viable and developed into plants of cannabis.

5.According to the expert report of CHEN Yi-min of Agriculture, Fisheries and Conservation Department,

a) Indoor cultivation of cannabis plants in pots was carried out at the House.

b) The equipment and devices, the planting materials shown in the photos are tailor-made for the cultivation.

c) 1,205 cannabis plants from the House were analysed. Among them, 265 plants were known to be ready for harvesting (with an approximate height of 40-100 cm). These fresh plants totally yield 15,762.6 g cannabis with an average of 59.5 g per plant (that is, 15,762.6 g / 265 = 59.48 g). The time required to reach the stage shown is about 4 months. Consequently, it is estimated that three crops a year could be grown for harvest.

d) Since there were totally 1,205 plants growing at the House, an annual yield of 215.1 kg of fresh cannabis leaves and flowers could be achieved (that is 59.5 g x 1,205 plants x 3 crops = 215,092.5g).

e) Based on the Government Chemist Certificate, 14 cannabis plants were selected to study the weight percentage on dry herbal form in relation to the cannabis plants seized in the case. Their average weight percentage is 14.4%. In dry herbal form for consumption, therefore, the annual yield of the House would be about 31.0 kg (that is, 215.1 kg fresh weight x 14.4% = 30.97 kg dry weight).

6.According to the Narcotics Bureau, the street value of the 35.7916 kg cannabis (as Cannabis (Herbal) ) found in this case would be around HK$9,858,000.00.

7.D’s fingerprint was found on a metal can and a glass cup inside the House.

8.D was arrested for Cultivation of Cannabis Plants.  Under caution, D said that he was cultivating the cannabis plants to earn some money.

9.At the time of arrest, three mobile phones, cash of HK$29,240 and RMB 1,110 were found on D.

10.In the subsequent video recorded interview, under caution, D said that:

a) His friend assisted D to rent the House. D cultivated the cannabis plants there alone. D paid the rent to the property agent directly. D was the only one who had the key to the House.

b) He started renting and residing in the House since September 2017 and October 2017 respectively.

c) D bought the seeds of the Cannabis in China at about HK$6,000. D learnt the gardening technique from Internet. He started cultivating cannabis plant in November 2017. He was arrested after 8 weeks before harvest.

d) he had about 1,200 Pots of cannabis plants.

e) He marked on the calendar the milestone dates for cultivation including date of fertilization. The equipment found in the House, including the Carbon Dioxide detector, scissors, electronic scale, plastic pots, lights, soil and other tools, are purchased in Yuen Long and China for the cultivation of cannabis plant. The dehumidifier and resealable plastic bags found in the House would be used for drying and repackaging the cannabis after harvest.

11.At the material time, D cultivated plants of the genus cannabis inside the House.

Sentencing considerations

12.The Court of Appeal in A.G. v Tuen Shui-ming [1995] 2 HKCLR 129 stated the tariff of unlawful trafficking in cannabis resin.  Power, V-P stated that:-

Taking the above factors into consideration, we have thought it right to suggest a tariff for possession of cannabis resin, for the purpose of unlawful trafficking … : Over 9,000 grammes - 4 years upwards …

The principal psychoactive constituent in the cannabis plant is known as tetrahydrocannabinol.

The concentration of tetrahydrocannabinol in herbal cannabis is up to about 8% of the bulk weight. In cannabis resin, tetrahydrocannabinol concentration is about 15%. In cannabis oil, it is 60%.

It will, therefore, be open to the courts, if they think fit, to take into account the less damaging effect, gramme for gramme, of herbal cannabis and the more damaging effect of cannabis oil as compared with cannabis resin and adjust the sentence accordingly (as [as per Power V-P, at para. 5 of the judgment).

13.In HKSAR v Nguyen Thu-ha 阮秋霞 CACC 335/2013, the defendant pleaded guilty to the cultivation of cannabis resin.  The amount of herbal cannabis that could be produced from the plants was 996 grammes, estimated at $107,316.  The total yield of herbal cannabis per year would be 3,823 grammes.  Deputy District Judge Longley took a starting point of 20 months.  The Court of Appeal made the observation that in sentencing herbal cannabis, unless it was for very large amounts, the court would have to make downward adjustment to the extent of up to a year from that of cannabis resin. The starting point, among others, was approved on appeal.   

Mitigation

14.The Defendant is 38 years of age.  He had a lot of criminal records.  Relevant today is his last and identical one, for which he was sentenced to 16 months in May 2016. He completed his jail term in June 2016.  It took him less than 2 years to commit the same offence again.  This is an aggravating factor in his sentence. His solicitor Mr. Tong does not dispute that. 

15.Mr. Tong asks me to consider an actual starting point of 5 years.  His final version of calculations in court is based on the following formula:-

(1) Assuming first that it was trafficking in cannabis resin, in the band of 4 years upwards for over 9,000 grammes, hence 7 years;

(2) Reduce by 1 year 6 months for its being cannabis herbal only, hence 5 years 6 months;

(3) Further reduce by 1 year for its being cultivated instead of trafficked, hence 4 years 6 months;

(4) Increase by 6 months due to the Defendant’s repeat offending, hence an actual starting point of 5 years.

Sentencing this Defendant

16.This is clearly a very well-planned and heavily invested cannabis farm.  It was expected to be a very profitable enterprise.  The photos indicate a whole block of 3-storey village house being meticulously adapted for such purpose.  The Defendant was a live-in farmer cum manager.  I agree with the starting point of 4 years 6 months based on the facts and an extra 6 months based on the Defendant’s repeat offending.  From an actual starting point of 5 years, I give him a one-third discount for the plea of guilty, the sentence is 3 years 4 months.