HKSAR v. Dang Hung Ngoc and Another

HCCC 355/2018
HCCC 356/2018
(Heard together)

[2019] HKCFI 1954

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 355 & 356 OF 2018

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT:

On 12 November 2018, at the Eastern Magistrates’ Court, D2 pleaded guilty to cultivating 747 cannabis plants. He was committed to this court for sentence. On the same day, D1 pleaded not guilty to the same charge. He was committed to this court for trial. The trial was scheduled to commence on 10 July 2019. During the interim, on 26 March 2019, D1 indicated that he would plead guilty to the charge. This court directed that both defendants be sentenced on 10 July 2019 together.

In the afternoon on 26 December 2017, the police searched a villa at DD229, Lot 205 Clear Water Bay Road. They found the defendants sleeping inside separate bedrooms on the first floor. The villa was partitioned into multiple smaller rooms. There were 747 plots of cannabis plants inside these rooms. The police also found six bags of half-dried cannabis leaf, two plastic bags of cannabis buds, 253 lights, 30 fans, 13 thermometers, 25 ventilators and other apparatus. According to an expert, the herbal plants could produce about 137.7 kilogrammes of dry herbal cannabis per year.

The market value was about HK$38 million.

D1 admitted, under caution, that he arrived at Hong Kong as a visitor on 25 November 2017. A woman paid him HK$2,000 to HK$3,000 per month to clean the area outside the villa. He was given the key to the padlock of the main entrance. He only entered the kitchen in the villa.

D2 admitted, under caution, that he was an illegal immigrant from Vietnam. He entered Hong Kong on 28 October 2017 from China. A male offered him work and took him to the villa on 5 November 2017 to water the plants and cleaning.

D1 is 66. He was born in Vietnam. He received secondary school education in Vietnam. He came to Hong Kong as a refugee in 1987 and later settled in England in 1990. He is a retired garment worker. He is divorced. His family is in England. He has a clear record in Hong Kong.

D2 is 23. He was born in Vietnam and received education up to high school. He was a labourer in Vietnam earning about HK$1,500 per month. He is single. His family is in Vietnam. He came to Hong Kong illegally in October 2017 through China.

There is no evidence that they were the masterminds of this operation. Their role as gardener is important nevertheless. I see no reason to discount the sentences because of their roles.

For this charge, I have considered the case AG v Tuen Shui Ming, SJ v Lee Siu Kei, CAAR 4/2005 and HKSAR v Nguyen Thu Ha, CACC 335/2013.

I bear in mind that the concentration of tetrahydrocannabinol, THC, in herbal cannabis is about one‑quarter that of cannabis resin. I accept that the annual production of herbal cannabis in the villa is about 137.7 kilogrammes of herbal cannabis. The amount of THC from this annual production is equivalent to about 34.4 kilogrammes of cannabis resin.

There were a total of 552 cannabis plants and 195 saplings; two plastic bags of cannabis buds. There was also substantial amount of other items for growing the cannabis plants. It took two persons to cultivate the plants. The whole villa was for that purpose. The scale of operation was large and continuous. I am sure that it was for commercial purposes. Having considered all circumstances, I take 11 years as the starting point for each defendant.

For D1, I give him 2 years and 6 months discount for his plea, about 23 per cent. D1 indicated his intention to plead about four months before the trial. I now sentence D1 to prison for 8 years and 6 months.

For D2, I enhance the starting point by 6 months for his illegal immigrant status. The enhanced starting point is 11 years and 6 months. I give him the full one-third discount of 3 years and 10 months. I sentence D2 to imprisonment for 7 years and 8 months.