HKSAR v. Nguyen Van Tan and Another

DCCC 72/2021

[2021] HKDC 1170

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 72 OF 2021

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Reasons for Sentence

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1.The defendants have pleaded guilty to two charges - firstly, cultivation of cannabis plants and, secondly, trafficking in dangerous drugs both contrary to relevant sections of the Dangerous Drugs Ordinance.

2.The cultivation of plants occurred in early June to 20 June in a premises in Kwai Chung involving the cultivation of 171 plants, in total 21,568.77 grammes of cannabis in the form of plants. 

3.The trafficking case occurred at the same time at the same location.  The drugs unlawfully trafficked in were 1,629.94 grammes of cannabis in undried plant material form and, secondly, 0.09 gramme of a solid containing tetrahydrocannabinol, being a tetrahydro derivative of cannabinol.

4.The summary of facts agreed by the defendants shows that, on 21 June, police officers entered Room 1202 of the Wah Tat Industrial Centre in Kwai Chung.  The details of what they discovered when they were there can be found in the summary of facts.  The windows of the premises were covered by black papers.  Inside the premises were two rooms, a bathroom, a toilet and a hall.  Rows of lamps at the ceiling and light-reflecting materials at the ceilings and walls were also installed.  There were multiple fans, air-conditioners and ventilation pipes also installed.

5.In the first room, there were 39 small potted plants on one side of the room and 39 large potted plants on the other side of the room.  There was a wooden frame filled with soil and a few small or tiny plants were on the floor.  There was some material for cultivation such as a sprayer and a watering can and the like.

6.In the second room, there were 55 larger and taller potted plants and two plastic trays with some 38 small plants.  There were also plant materials and thermometers and plastic hoses.

7.In the hall, a rubbish bag was found containing plant material, also a number of items useful in the cultivation of the plants, such as fertilizers, plant hormones.

8.The government chemist analysed the materials seized.  He concluded there were 171 plants of various heights containing a total of 21,568.77 grammes of cannabis.  That is the totals upon which the particulars of the 1^st charge are based.  There was 0.51 gramme of cannabis in undried plant material form.  The first set of exhibits contained 48.78 grammes of cannabis in undried plant material form.  A further set of exhibits contained 1,580.65 grammes of cannabis in undried plant material form, and finally 0.09 gramme of a solid containing the tetrahydrocannabinol was found, the THC.  Those plant materials and the tetrahydrocannabinol form the basis of the 2^nd charge of trafficking.

9.The agricultural officer referred to as PW15 considered that indoor cultivation was feasible and that indoor cultivation of cannabis plants was carried out at the premises.  The planting materials, equipment and devices at the premises were tailor-made for cultivation.

10.The witness, who is referred to in the summary of facts, also was of the opinion in summary that there was a rotational form of agriculture being practised.  At the time of the raid, 94 of the plants were ready for harvesting.  Four months would have been needed to reach harvesting stage and three crops a year could be grown for harvest presumably, that is, if everything worked properly.  In any event, the 171 plants at the site would provide an annual yield of 116.5 kilogrammes of fresh cannabis.  Dry herbal cannabis, being about 13 per cent of the weight of fresh cannabis, would lead to an annual dry consumable herbal cannabis output of 15.1 kilos.  The estimated street value of that quantity was HK$3,457,900.

11.Both the defendants admit they were involved in the cultivation of the cannabis plants.  Their role appears to be as farmers or gardeners of the plants, being paid $300 per day.

12.As far as the defendants’ relevant antecedents are concerned, the 1^st defendant is aged 25 years old.  He is a Form 8 holder; one previous conviction in 2016 for possession of a forged Hong Kong identity card, was sentenced to 12 months’ imprisonment.  Defendant is said to have no fixed abode in Hong Kong at the time of his arrest.  Defendant is, of course, originally from Vietnam.

13.The 2^nd defendant also originates from Vietnam. He is 34 years old.  He is awaiting the result of a case involving remaining in Hong Kong.  No doubt that would be dependent on the outcome of his non-refoulement claim.

14.I note both defendants are Form 8 holders, which is an aggravating factor in respect of the offences to which they pleaded guilty.

15.In mitigation, it is said that both defendants provided a co-operative approach to the police.  Their role is limited as cultivators or gardeners of the product, they were paid a relatively small amount of money, and their role is not one of management or control and, in fact, they are more like agricultural labourers.

16.I turn to the approach to sentence on the 1^st charge, the cultivation of cannabis.  This charge concerns cultivating cannabis plants, namely 171 plants totalling the 21,568.77 grammes of plant cannabis, total overall yield of 15.1 kilos of herbal cannabis.  At the time of the police raid, about 45 per cent of the plants found were small.

17.There is no tariff or guideline for the sentencing of cultivation of cannabis. 

18.Guidelines do exist for the trafficking in cannabis resin.  That can be seen from the case of R v Tuen Shui Ming [1995] 2 HKC 798.  In that case, the Court of Appeal observed in relation to herbal cannabis that persons with herbal cannabis could, except in cases where very large amounts are involved, properly be given a discount up to a year from the sentence that would have been imposed had they had a similar amount of cannabis resin.  This implies that, for the offence of trafficking in herbal cannabis, which the defendants are charged with here, the Tuen Shui Ming guideline is appropriate, subject to a discount for the lower narcotic quantity of herbal cannabis.  The narcotic quantity of THC in cannabis resin is some four times higher than that of herbal cannabis.  However, even in a sentencing of a case for trafficking in herbal cannabis, the Court of Appeal is not suggesting that the narcotic content be assessed. 

19.There have been other references to the sentencing for cultivation of cannabis at appellate level.  They do not form guidelines for sentencing though. 

20.I refer to HKSAR v Dang Hung Ngoc [2020] HKCA 167.  It was said 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 involvement, the purposes of the operation, the background of the case and any previous criminal record should also be taken into account. 

21.Also, in Secretary for Justice v Cheung King Kong [2020] 3 HKLRD 837, that was a review case where totally 577 plants with a yield of 27,209 grammes of herbal cannabis.  Reference was made in that case to the guidelines for trafficking in cannabis resin and that led to an estimated starting point for sentence of 3½ years’ imprisonment for that quantity.

22.However, in HKSAR v Nguyen Thu Ha - that is CACC 335/2013 - in that case, a total of 181 plants found to yield 3,823 grammes of herbal cannabis, led to a starting point of sentence of 20 months’ imprisonment, which was described as generous.

23.There have been two approaches which have been suggested to me, which would be simply to convert the quantity of herbal cannabis to cannabis resin by dividing the amount by four to arrive at a figure, a starting point based on the starting point for trafficking in cannabis resin.  The other approach would be to take the guideline for cannabis resin as a notional starting point, then reduce that by the amount of 12 months or so to reflect the lower narcotic quantity of herbal cannabis, and take that as the starting point for sentence and take into account any adjustment for the role of the offenders and the fact that this is a case involving the cultivation of cannabis, not the trafficking of that drug.

24.I have already adverted to the role of the defendants in this case, that of horticultural or agricultural labourers.  They are the lowest-level workers in the enterprise.  They have no administrative or controlling role.  They are simply paid workers, and not well-paid workers. However, their role is essential to the production of the cannabis. 

25.I have decided, in the absence of any guideline, to advert to the guideline for cannabis resin, which would lead to a starting point of not less than 4 years’ imprisonment, to be discounted by the appropriate amount, having regard to the fact that this is herbal cannabis and having regard to the roles of the defendants in the cultivation.

26.I find that, in respect of both defendants, that would lead me to a starting point of 36 months’ imprisonment.  This, however, is subject to the aggravating factor of the defendants being Form 8 holders. This would lead to a starting point for sentence in respect of the 1^st charge of 42 months’ imprisonment.  That would lead to a discount for a plea of guilty, arriving at a final sentence on the 1^st charge of both defendants of 28 months’ imprisonment.

27.In Charge 2, I am dealing with a quantity of plant material and a smaller quantity of THC.  Again, the relevant guideline would be an adaptation of the cannabis resin guideline.  The quantities here are relatively small.  In respect of that quantity in the 2^nd charge, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for the defendants’ pleas of guilty. 

28.Having regard to the fact that all items were found at the same time in the same location, I will order that the sentences be served concurrently, leading to a total overall sentence for both defendants of 28 months’ imprisonment.