HKSAR v. Dang Hung Ngoc

CACC 217 /2019

[2020] HKCA 167

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 217 OF 2019

(ON APPEAL FROM HCCC NO 355 OF 2018)

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J U D G M E N T

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1.Following his committal on 12 November 2018 to the High Court for trial on a charge of Cultivation of cannabis plants, contrary to section 9(1) and (5) of the Dangerous Drugs Ordinance, Cap 134, which trial was fixed to commence on 10 July 2019, the applicant indicated on 26 March 2019 that he would be pleading guilty to the charge. On 10 July 2019, the applicant duly appeared before Li J (“the judge”), together with his co-accused, Vu Dinh Nguyen (“Vu”), who had earlier pleaded guilty upon committal at the magistrate’s court. Both were thereupon convicted before the judge on their own pleas.

2.On the same day, the judge sentenced the applicant to a term of 8 years and 6 months’ imprisonment, whilst Vu was sentenced to a term of 7 years and 8 months’ imprisonment. The applicant filed a Notice of Application for Leave to Appeal (Form XI) against his sentence on 24 July 2019.  He appears unrepresented before me today.

The Summary of Facts

3.In the afternoon of 26 December 2017, upon a house search at a secluded, 3-storey villa in Clear Water Bay, New Territories, the police found the applicant and Vu sleeping inside their respective bedrooms on the 1^st floor.  The applicant was a British passport holder, whilst no identity document was found on Vu, who it transpired was an illegal immigrant.  A key that could be used to open the padlock of the main entrance to the villa was found in the applicant’s bedroom. 

4.The villa was found to have been further partitioned into multiple smaller rooms on each floor.  Spotlights, ultraviolet lights, thermometers and fans were installed in the partitioned rooms and fertiliser was stored in the corridor.  In total, 747 pots of cannabis plants and saplings, 6 bags of half-dried cannabis leaves, 2 bags of cannabis buds, 253 lights, 30 fans, 13 thermometers, 25 ventilators and other related apparatus were seized by the police. 

5.A Government Chemist confirmed that a total of 747 plants, including saplings of the genus cannabis, weighing a total of 181.65 kilogrammes, and cut plants of the genus cannabis, weighing a total of 28.84 kilogrammes, were found in the premises[1].  An Agricultural Officer gave his view that the indoor cultivation of cannabis plants was being carried out in the villa, in which 378 out of the 747 cannabis plants were ready for harvesting with 177,338.3 grammes of yield.  It was estimated that an annual yield of 1,051.3 kilogrammes of fresh cannabis and flowers could be produced, on the basis of three crops per year.  As only 13.1% of the dry herbal cannabis harvested was suitable for consumption, the estimated annual yield for readily consumable herbal cannabis produced at the villa was therefore calculated at about 137.7 kilogrammes, with a street value of HK$38,142,900.

6.Under caution the applicant stated that he had retired and entered Hong Kong from the United Kingdom on 25 November 2017, on the strength of a visitor’s permit.  He said that he had stayed in Sham Shui Po initially and intended to remain in Hong Kong for one month.  However, on 16 December 2017, he met a woman in Sham Shui who offered him a cleaning job, with food and accommodation provided, for HK$2,000 to HK$3,000 per month, which offer he accepted.  Accordingly, he was taken to the villa on the same day and given the key which was later seized from his bedroom.  

7.The applicant said he was instructed to clean the outside of the villa only.  He also claimed that Vu had arrived before him.  He said that although he did not enter other parts of the villa except the kitchen, he could detect the smell of cannabis after a week of being employed at the premises.  He did not call the police because he was afraid and could not speak Chinese.

8.According to the flight records of Cathay Pacific Ltd, the applicant, in addition to his ticket from the United Kingdom in late November 2017, had also purchased tickets in his own name from (i) Hong Kong to Hanoi, Vietnam on 21 February 2018; (ii) Hanoi to Hong Kong on 6 March 2018; and (iii) Hong Kong to the United Kingdom on 18 November 2018.

The mitigation

9.It was submitted by counsel on the applicant’s behalf that, although he had only decided to plead guilty following his committal for trial, a discount of about 25% was warranted, since both the case management hearing and the trial were able to be vacated. 

10.The applicant was 66 years of age with a clear record in Hong Kong.  Having arrived in Hong Kong in 1987 as a Vietnamese refugee, he was settled in the United Kingdom in 1990, where he became naturalised in 1996.  Since then, he had worked as a garment worker and retired in 2017.  It was argued that the applicant was not the prime mover of the offence, since obviously the villa had already been set up for cultivating cannabis well before he arrived in Hong Kong.  Accordingly, the applicant’s role was no more than a mere worker or helper.  Furthermore, there was no evidence that he came to Hong Kong for the purpose of committing the present offence. 

The judge’s Reasons for Sentence

11.The judge accepted that the applicant (and, for that matter, Vu) was a “gardener”, rather than a mastermind of the offence. However, his role warranted no additional discount given its importance to the production of the cannabis. 

12.In determining the appropriate starting point, the judge directed himself in accordance with the Court’s decisions in Attorney General v Tuen Shui Ming^[2] and Secretary for Justice v Lee Siu Kei^[3]; and the judgment of Lunn JA, sitting as a Single Judge on an application for leave in HKSAR v Nguyen Thu Ha^[4].  The judge also reminded himself that the concentration of tetrahydrocannabinol (“THC”) in herbal cannabis was about one-quarter of that of cannabis resin.  An annual production of 137.7 kilogrammes of herbal cannabis would, therefore, produce about 34.4 kilogrammes of cannabis resin. 

13.The judge was further satisfied that, given the substantial quantity of plants and apparatus seized, in respect of which two men were employed in a villa being wholly utilised for the cultivation of cannabis, the scale of the operation was large and continuous and undoubtedly being run for commercial purposes.  Accordingly, he adopted a starting point of 11 years’ imprisonment in respect of both the applicant and Vu. 

14.Since the applicant had only indicated his intention to plead guilty some 4 months before his trial, the judge gave a reduced discount for plea of 2 years and 6 months, which represented a reduction of about 23%, and sentenced him to 8½ years’ imprisonment.  As for Vu, the judge enhanced the starting point in his case by 6 months for his illegal status in Hong Kong and granted him a full one-third discount for plea, resulting in a sentence of 7 years and 8 months’ imprisonment. 

The applicant’s grounds of appeal

15.The applicant submitted in his Form XI, firstly, that it was only after his arrival in Hong Kong that he committed the present offence.  Despite his intention from the outset to plead guilty, he did not do so at the earliest possible opportunity because his assigned lawyer reassured him that he would win his case.  He felt aggrieved that the judge did not give him any proper “commutation” in sentence.  He further complained that “the boss, who grew trees, had received a much lighter punishment”. 

The respondent’s reply

16.Ms Li, in her written submissions on behalf of the respondent, which have been adopted by Mr Derek Lau, who appears before me today, submitted that under section 9(5) of the Dangerous Drugs Ordinance, cultivation of cannabis was a serious offence, carrying a maximum penalty of 15 years’ imprisonment and a fine of HK$100,000. 

17.While there were no sentencing guidelines for this offence, the major consideration was the estimated annual yield of the cannabis plants in question, whilst other aggravating features such as the role of the offender, the degree of his involvement, the purpose of the operation, the background to the case and any previous criminal record, should also be taken into account: see Secretary for Justice v Cheung King Kong^[5], at [52] – [54], and [58].  Although the present case was not a trafficking case, reference could be taken of trafficking cases, since according to Cheung King Kong at [55] and [67], the relevant band of the sentencing guidelines in Tuen Shui Ming should also apply in relation to the estimated annual yield of the cannabis plants. 

18.It was pointed out that, like the applicant in Nguyen Thu Ha but unlike the respondent in Cheung King Kong, the applicant’s role in the present case was only that of “gardener”.  Nevertheless, given the scale of this commercial operation, it was submitted that the present case falls within the higher end of the sentencing range, for which the judge’s starting point could not be criticised. 

19.Finally, it was argued that no complaint could reasonably be made of the discount of about 23% accorded to the applicant, which was in line with the principles set out in HKSAR v Ngo Van Nam^[6].

Consideration

20.I am concerned that there is an absence of clear guidelines as to the approach to sentence in cases of largescale commercial cultivation of cannabis.  This case is not unique.  I note that Zervos JA, sitting as a Single Judge on a recent application for leave to appeal against sentence in HKSAR v Nguyen Thang Loi[7], made the observation that[8]:

“In contrast, there is no guideline case for cultivating cannabis plants, although how to approach the sentencing of an offender for such an offence was discussed in Nguyen Thu Ha^[9] and Cheung King Kong^[10]. I mention this because the approach to be taken by a sentencing court when sentencing an offender for cultivation of cannabis plants may warrant detailed consideration when this case comes on before the Court of Appeal.”

21.I propose to grant leave to appeal on the issue of the appropriate starting points and levels of sentences applicable to a case such as this, and the factors relevant to culpability.  Given certain similarities with the facts in Nguyen Thang Loi, although that case involved a count of trafficking as well, I consider it appropriate to join this case with that so that the Court may have the benefit of submissions from both applicants/appellants.  For that purpose, I shall grant the applicant an Appeal Aid Certificate in respect of his appeal, under Rule 12(3) of the Legal Aid in Criminal Cases Rules, Cap 221.

22.I do not, however, consider that the issue of the reduced discount accorded to the applicant is in itself a reasonably arguable ground of appeal, given the stage at which the applicant indicated his intention to plead guilty.  He would have known his co-accused pleaded guilty in the magistrate’s court at the time of their joint committal to the High Court on 12 November 2018, and he would have known full well whether he himself was knowingly cultivating cannabis plants at the villa in question, whatever his legal representative may have told him about his prospects of success at trial. 

Mr Derek Lau SPP of the Department of Justice, for the Respondent (with written submissions by Ms Annie Li SPP)

The Applicant appeared in person

[1] Equivalent to 173,421.86 grammes of cannabis in the form of 537 plants; 317.6 grammes of cannabis in the form of 195 saplings; 7,919.3 grammes of cannabis in the form of 15 flower plots; 101.37 grammes of herbal cannabis in 3 bags; 26,400 grammes of cannabis leaves in 5 bags; and a bag of 2,340 grammes of cannabis leaves, together with some “trash”. (AB, p8 para 7)

[2] Attorney General v Tuen Shui Ming [1995] 2 HKCLR 129.

[3] Secretary for Justice v Lee Siu Kei [2006] 1 HKC 499.

[4] HKSAR v Nguyen Thu Ha (Unrep., CACC 335/2013, 16 October 2013).

[5] Secretary for Justice v Cheung King Kong (Unrep., CAAR 2/2018, 24 September 2019).

[6] HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.

[7] HKSAR v Nguyen Thang Loi (Unrep., CACC 145/2019, 10 January 2020).

[8] Ibid., at [23].

[9] Nguyen Thu Ha, at [11] – [16].

[10] Cheung King Kong, at [42] – [62].