HKSAR v. Hui Kin Wa

CACC 167/2021

[2021] HKCA 2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 167 OF 2021

(ON APPEAL FROM DCCC NO 55 OF 2021)

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Before: Hon Macrae VP in Court

Date of Hearing: 21 December 2021

Date of Judgment: 21 December 2021

Date of Reasons for Judgment: 24 December 2021

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R E A S O N S   F O R   J U D G M E N T

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1.The applicant and his co-defendant, Tsang Sui Lun (D1) were jointly charged with one count of cultivation of cannabis plants, contrary to sections 9(1) and (5) of the Dangerous Drugs Ordinance, Cap 134 (Charge 1); and one count of trafficking in a dangerous drug, contrary to section 4(l)(a) and (3) of the same Ordinance (Charge 2). On 12 July 2021, the applicant and D1 were both convicted in the District Court by Deputy Judge Cheung (“the judge”) on their own pleas to the two charges. They were each sentenced to 34 months’ imprisonment.

2.On 3 August 2021, the applicant filed a Notice of Application for Leave to Appeal (Form XI) and now seeks leave to appeal against his sentence.

Particulars of the charges

3.Charge 1 alleged that the applicant and D1, between 7 December 2018 and 24 March 2020 inclusive, at a village house in Shap Long on Lantau Island in Hong Kong, cultivated plants of the genus cannabis: namely 8 pots containing a total of 1,284.43 grammes of cannabis in the form of plants, 520 plants to a total of 33,052.86 grammes of cannabis in the form of plants and 4 dried plants to a total of 233.44 grammes of cannabis.

4.Charge 2 alleged that the applicant and D1, on 24 March, 2020, at the same premises, unlawfully trafficked in a dangerous drug, namely 3,965.41 grammes of cannabis in herbal form.

The admitted facts

5.According to the facts agreed and admitted by the applicant, at 4:09 pm on 24 March 2020, a team of police officers intercepted D1 as he walked from the premises.  The police then escorted D1 back into the house, which they entered using a key found on D1’s person.  Upon the search of the premises, the cannabis plants involved in Charge 1, the packets/bags of dried cannabis of 3,965.41 grammes in total involved in Charge 2 and extensive equipment and devices for cultivation of cannabis plants and trafficking of cannabis were found inside the house.  D1 was then arrested. Subsequently, at 10:08 pm, the applicant was intercepted when walking in the vicinity of the house.  Under caution, the applicant said that he and the D1 rented the premises in order to cultivate cannabis for their own consumption. 

6.In two subsequent video recorded interviews, the applicant said that he had begun smoking cannabis three or four years previously. He intended to earn money from cultivation to help with the medical expenses of his mother.  He asserted that the packaged cannabis found in packets was for self-consumption and some of the cannabis would be given to his friends.

7.A Government agricultural officer was of the opinion that the equipment and devices found in the house could adjust or provide an optimum environment for plant growth, and the equipment and devices and the planting materials were tailor-made for the cultivation of cannabis.  She further considered that out of the 532 cannabis plants on site, 246 of them were ready for harvesting with an approximate height of 57 to 109 cm, and that indoor cultivation of cannabis plants in pots was being carried out inside the premises. It was also her view that the average weight percentage of the cannabis in dry herbal form from the cannabis plants was about 14% and the annual yield of the cannabis found would be about 26.6 kg in dry herbal form for consumption.

8.It was agreed that the estimated street price of cannabis in March 2020 was HK$164 per gramme.[1] As the judge found, the annual retail value of the cannabis would thus be HK$4,362,400; or just under HK$364,000 per month.  The premises had been rented to D1 for 2 years from 7 December 2018, at HK$28,000 per month; the applicant was listed as a resident of the house as well as in the tenancy agreement.

9.In pleading guilty to the charges, the applicant accepted that he had cultivated cannabis plants and trafficked in 3,965.41 grammes of cannabis in herbal form.

Mitigation

10.The applicant was 35 years old at the time of sentencing and had received education up to Form 5.  He had been before the courts on two occasions, in 2003 and 2004.  His last previous conviction was in December 2004, when he was made the subject of a Probation Order for possession of a dangerous drug.  Whilst on remand at Lai Chi Kok Reception Centre in the present case, samples of the applicant’s urine were taken on 28 March and 12 April 2020, both of which proved positive for cannabis.  Defence counsel at trial submitted that “part” of the cannabis involved in the case was intended for his own consumption[2].

Reasons for sentence

11.The judge noted that the yield of 26.6 kg of herbal cannabis would generate more than HK$4 million annually[3].  In view of the admissions of the applicant under caution and the photographs of the scene, which showed the size and internal layout of the premises, the judge described the applicant and D1 as cultivators, managers, operators and organisers of a well-planned and well-resourced operation[4]. He was of the view that the scale of the operation was similar[5] to that in Secretary for Justice v Cheung King Kong[6].

12.By reference to Cheung King Kong and taking into account the role of the applicant, the judge adopted a starting point of 5 years’ imprisonment[7]. Noting that he should reduce the starting point by up to 12 months’ imprisonment for a case of cultivation of cannabis plants, the judge subtracted 6 months from the starting point[8].  Taking into account the latent risk of trafficking in the drug, and that possession of dangerous drugs carried a sentence of imprisonment in any event, he further reduced the starting point by 3 months for the applicant’s own consumption to 51 months’ imprisonment[9]. Giving the applicant a one-third discount for his early guilty, the judge passed a sentence of 34 months’ imprisonment in respect of Charge 1[10].

13.In respect of Charge 2, the judge adopted a notional starting point of 28 months’ imprisonment for the 3,965.41 grammes of herbal cannabis involved.  The notional starting point was then reduced by 12 months, since the cannabis seized was in herbal form.  A further reduction of 1 month was made for the fact of the applicant’s own consumption of cannabis[11]. The sentence on Charge 2 thus became 10 months’ imprisonment after the one-third discount for the applicant’s early plea[12]. However, in addressing totality, the judge ordered the sentences on Charges 1 and 2 to be served concurrently, making a final overall sentence of 34 months’ imprisonment[13].

Ground of appeal

14.Mr Tony Li, counsel on behalf of the applicant, argued as his sole ground of appeal that the sentence on Charge 1 was manifestly excessive, having regard to the sentence applied to similar facts in respect of a similar operation in Cheung King Kong.

15.He submitted that the facts of the present case were “on all fours” with, if not less serious than, those in Cheung King Kong.  The estimated annual yield of cannabis plants cultivated by the applicant, namely 26.6 kg, was less than that cultivated by the respondent in Cheung King Kong, namely 27.209 kg.  Further, the estimated annual retail value generated in the present case was substantially less than that in Cheung King Kong.  It was argued that the judge did not identify any special circumstances to justify his deviation from the approach in Cheung King Kong.  Accordingly, the judge should have adopted a starting point of 4½ years’ imprisonment, rather than 5 years.  Accordingly, it was submitted that it was reasonably arguable the judge’s sentence on Charge 1 was manifestly excessive.

Respondent’s submission

16.Ms Zena Yuen, on behalf of the respondent, accepted that the facts were similar to those in Cheung King Kong. However, she pointed out that the Court in Cheung King Kong did not specify the sentence it would have passed.  The judgment merely gave a range, saying that the starting point should be one of not less than 4 years.  It was submitted that while the starting point in the present case might be on the high side, it could not be faulted.  Accordingly, the applicant’s complaint that the judge had deviated from the approach adopted in Cheung King Kong was without merit. 

Consideration

17.It is clear that the judge had all relevant authorities in mind, because he set them out and discussed them in some detail.  In particular, he was influenced by the Court of Appeal’s approach to sentence in Cheung King Kong because he expressly dealt with it, observing that the annual yield of that operation was similar to the annual yield in the present case.  The real question is whether the judge has misapplied anything that was said in Cheung King Kong, thus resulting in a higher sentence than should have been passed.

18.It is true that the judge in the present case adopted a starting point of 60 months’ imprisonment on Charge 1, which he then reduced by 6 months for the herbal nature of the drug, thus arriving at 54 months’ imprisonment.  The Court in Cheung King Kong considered that, for a similar quantity, “the appropriate starting point should not be lower than 4 years” and that with the one-third discount for plea, “the appropriate starting point for Charge 1 should not be lower than 32 months” (emphasis supplied).  It seems to me that the phraseology of the Court was deliberate.  The Court was there dealing with an Application for Review of Sentence by the prosecution and was working on the minimum sentence which might have been applicable on a successful Review of Sentence and, therefore, “a difference of at least 12 months between the sentence imposed on the respondent and the one which ought to have been imposed on him” (emphasis supplied).  Moreover, the Court appreciated that the guidelines in Attorney General v Tuen Shui Ming[14], to which it referred[15], ran out at 4 years’ imprisonment for more than 9,000 grammes of cannabis resin.  Thus, the starting point the judges were contemplating “should not be lower than 4 years” for a yield of 27.2 kg of herbal cannabis (ie the stated yield in Cheung King Kong[16]).  In any event, while there is a difference in starting point as between 54 months (in the present case) and not less than 48 months (in Cheung King Kong), it is not a great difference.  Indeed, had the Court been sentencing at first instance, there may have been no difference at all.

19.Furthermore, the judge gave an additional discount of 3 months’ imprisonment, not because a “significant proportion” of the drugs were for his own consumption, as stipulated in HKSAR v Wong Suet Hau[17], but because a “small part of the cannabis may have been for (his) own consumption”[18]. Although, strictly speaking, he should not have given any discount for anything less than a “significant proportion”, the judge was plainly aware that he was taking an unusual course, knew and addressed the relevant principles but nevertheless decided, in the exercise of his discretion, to do as he did.  I would not necessarily quarrel with that exercise.

20.Nevertheless, what it does mean is that the notional sentences after trial in the present case and in Cheung King Kong are further narrowed to 53 months’ imprisonment and not less than 48 months respectively.  I do not regard this difference as amounting to a reasonably arguable ground of appeal that the sentence in this case is manifestly excessive and/or wrong in principle.  Although Mr Li has argued that the facts in Cheung King Kong are arguably less serious than the present case, Ms Yuen has pointed out that the operation in the present case had lasted somewhat longer than that inside the tin shack in Cheung King Kong.

21.There is a final matter, which I raised during argument, on which the applicant may have been dealt with generously.  Charge 2, which alleged the trafficking in 3,965.41 grammes of cannabis in herbal form, attracted a sentence upon plea of 10 months’ imprisonment.  Yet this sentence was made wholly concurrent with the sentence on Charge 1.  Whilst it is true that the original sentencing judge in Cheung King Kong also made the sentence on the equivalent trafficking charge (Charge 2) wholly concurrent with the sentence on Charge 1, the quantity was significantly less, namely 1,080 grammes of herbal cannabis.  Moreover, I do not see anywhere in the judgment in Cheung King Kong that the Court has addressed the correctness of making the two sentences on Charges 1 and 2 wholly concurrent; no doubt because it was only concerned in the Application for Review with the sentence on Charge 1. 

22.I have looked at the photographs of the 17 packets of vacuum-packed herbal cannabis weighing 3,965.41 grammes comprised in Charge 2, and consider that, given the quantity, many judges would have made an element of the sentence on this charge consecutive to the sentence on Charge 1.  Certainly, if the Court of Appeal were to re-sentence, that may well be the approach it would take.  In which case, there is even less of a distinction between the sentences in Cheung King Kong and the present case.

23.For the above reasons, I am not persuaded that there are ultimately any reasonably arguable grounds of appeal against sentence and, accordingly, I must refuse leave to appeal.  The applicant is advised that he has the right to renew his application for leave to appeal to the Court of Appeal, but he is also warned that the Court has the power to order the loss of any time which the applicant has spent in custody pending his appeal, if it were to come to the conclusion that there was no justification for the renewal of the application.

Ms Zena Yuen SPP (Ag), of the Department of Justice, for the Respondent

Mr Tony C Y Li, instructed by the Legal Aid Department, for the Applicant

[1] Appeal Bundle (“AB”), p 34B-L.

[2] AB, p 40, at [20].

[3] AB, pp 23-24, at [48].

[4] AB, pp 24-25, at [52].

[5] AB, pp 23-24, at [54].

[6] Secretary for Justice v Cheung King Kong [2020] 3 HKLRD 837.

[7] AB, p 25, at [57].

[8] AB, p 26, at [59], [60].

[9] AB, p 28,at [68].

[10] AB, p 28, at [69].

[11] AB, p 29, at [72].

[12] AB, p 29, at [73].

[13] AB, p 30, at [74].

[14] Attorney General v Tuen Shui Ming [2020] 3 HKLRD 837.

[15] Ibid., at [42].

[16] Cheung King Kong, at [66]-[67].

[17] HKSAR v Wong Suet Hau [2002] 1 HKLRD 69.

[18] AB, p 28K-L.