HKSAR v. Leung Kwok Kei

DCCC 95 & 96/2022 (Consolidated)

[2023] HKDC 179

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 95 & 96 OF 2022

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REASONS FOR SENTENCE

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Plea

1.Upon D2’s plea of guilty and admission of facts, D2 is convicted on Charge 1.  

Admitted facts

Charge 1

2.On 14 October 2020, CO 1602 ("PW1")  and other customs officers were conducting anti-drugs operation on 3^rd Floor, Rear Block, Ming Sang Industrial Building, Nos. 19-21 Hing Yip Street, Kwun Tong, Kowloon.

3.At around 1230 hours, X walked out from Unit 7, 3^rd Floor, Rear Block, Ming Sang Industrial Building, Nos. 19-21 Hing Yip Street, Kwun Tong, Kowloon ("Unit 7").  PW1 and other customs officers intercepted X and requested to search Unit 7.  X provided the passcode of Unit 7 to the customs officers.  He also input the passcode himself and allowed the customs officers to enter Unit 7.

4.CO 15181 ("PW2")  searched Unit 7 in the presence of X and found, inter alia: 6 pots of cannabis plants ('El")  inside a tent;1 bucket; 3 fans;4 plugs;2 timer controls; 3 lamps;1 thermometer; 2 sets of exhaust fan with tubes; 1 set of filter with tube; and 1 exhaust fan.

5.At 1305 hours, PW1 opened the door of Unit 15 with the passcode provided by X. CO 1127 ("PW3")  searched Unit 15 in the presence of X and found, inter alia:9 pots of cannabis plants ("E2")  inside a tent;5 buckets;2 fans;3 plugs;2 timer controls;2 lamps; 1 thermometer;2 sets of exhaust fan and soft tube; 1 soft tube; 2 sets of filter and soft tube; 1 filter; 1 bump; 1 cutter; 1 pair of scissors; and 3 bags of fertilizer.

6.Further investigation revealed that D2 was the tenant of Unit 15.  On 19 October 2020, CO 1584 ("PW4")  arrested D2 at his home. Under caution, D2 said:

(a)  He was the tenant of Unit 15;

(b)  He did not remember the last time he visited Unit 15; and

(c)  He gained entry to Unit 15 with passcode but he forgot about the passcode.

C&E Investigations

Forensic examination

7.CHAN Wai-chung ("PW5"), Government Chemist examined and confirmed:

(a)  El contained 3,824.09g of cannabis in the form of a plant; and

(b)  E2 contained 4,292.72g of cannabis in the form of a plant.

8.WONG Mun-wai Mon ("PW6"), Agricultural Officer of the Agricultural, Fisheries and Conservation Department examined the case photos and the Government Chemist Certificate and opined that:

(a)  Growing tents connected with ventilation hose were found. The inner walls of the growing tents were made up with light-reflecting materials which may enhance the light intensity and benefit the growth of plants;

(b)  Cannabis plants in potting media grew well in area equipped with grow light, ventilation devices and electric fans;

(c)  Bags labelled with "COMPO SANA" were found. Based on the labels, they were potting media for plant growth;

(d)  Bottles seemed to be containers of fertilizer were found around the potting media;

(e)  Scissors, cutter and water buckets which were necessary tools for cultivation and harvesting were found;

(f)  Indoor cultivation of cannabis plants in pots was carried out in Unit 7 and Unit 15;

(g)  The average weight percentage of cannabis in dry herbal form in relation to plants was about 23%; and

(h)  The annual yield of the seized cannabis in Unit 7 and Unit 15 would be about 6kg in dry herbal form for consumption.

9.D2's fingerprints were found on a pot and a bucket seized from Unit 7.  Photos of cannabis-like objects and WhatsApp messages related to trafficking in cannabis were found in X's mobile phone.

Tenancy of Unit 7 and Unit 15

10.3^rd Floor, Rear Block, Ming Sang Industrial Building, 19-21 Hing Yip Street, Kwun Tong, Kowloon was owned by Wealthy Heart Limited with management run by Hara Asset and Property Management Co., Limited. Unit 7 was about 215 square feet while Unit 15 was about 110 square feet.

11.D2 was the tenant of Unit 15.  A formal tenancy agreement of Unit 15 was entered into on 14 November 2018. The rental period was from 21 November 2018 to 20 November 2020. The monthly rent was HK$2,600.

Electricity usage of Unit 7 and Unit 15

12.The monthly electricity usage and payments are summarized as below:

Months	Unit 7		Unit 15
	Usage (Units)	Payment	Usage (Units)	Payment
January 2020	1,020	HK$1,632	586	HK$937.6
February 2020	1,460	HK$2,336	1,362	HK$2,179.2
March 2020	1,371	HK$2,193.6	1,626	HK$2,601.6
April 2020	1,480	HK$2,368	1,068	HK$1,708.8
May 2020	1,314	HK$2,102.4	207	HK$331.2
June 2020	1,125	HK$1,800	383	HK$612.8
July 2020	1,401	HK$2,241.6	293	HK$468.8
August 2020	1,674	HK$2,678.4	434	HK$694.4
September 2020	1,445	HK$2,312	1,025	HK$1,640

Video recorded interviews (VRIs)

13.D2 said under caution in his VRI that:

(a)  He was a renovation worker earning about HK$28,000 per month; and

(b)  He was the tenant of Unit 15.

Conclusion

14.At the material times, X at Unit 7 and Unit 15, conspired with D2 and other persons unknown, to cultivate plants of the genus cannabis (Charge 1).

Criminal record, background of D2 and mitigation

15.D2 is now 36 years old, single with clear criminal record.  He received education up to secondary three.

16.In mitigation, Mr Tsoi’s salient points include: (i)  D2 has entered early guilty plea (Charge 1); (ii)  D2 was also a cannabis user.  One Ah Joe invited him to the Units to assist on tedious cultivation works in return for cannabis free of charge; (iii)  regarding Charge 1, the facts reveal about an estimated yield 6kg cannabis in dry herbal form, resulting in about 2 years of imprisonment as starting point.  Mr Tsoi also mentioned two approaches for sentencing, he asserted 15 and 24 months’ imprisonment as starting point.  But Mr Tsoi confirmed the proper approach is reflected in the recent court of appeal case in Cheung King Kong that may result in 24 months’ imprisonment as a starting point.  As a result, he, with instructions, withdrew the idea to ask for community service order report.  

Discussion

Charge 1

17.There are no tariff guidelines for Charge 1, namely, the offence of cultivating cannabis plants.  The maximum sentence for the offence of cultivation of cannabis plants is 15 years’ imprisonment and a fine of $100,000.

18.It is accepted that the appropriate approach to sentencing is to have regard to the opinion of an expert as to the estimated annual yield of herbal cannabis from the plants. It is not the weight of the plants at the time of the arrest that is considered relevant.  Other aggravating factors will also have to be taken into account, such as the scale of the cultivation of cannabis plants.

19.In Nguyen Thu Ha, Lunn JA (as he then was), sitting as a single judge in the Court of Appeal, endorsed the approach adopted by the sentencing judge.  Under this approach, the offender was sentenced on the basis of the estimated annual yield of herbal cannabis that could be produced from the cannabis plants being cultivated (having regard to the opinion of an expert)  rather than the weight of the plants at the time of the offender’s arrest and seizure of the plants. After estimating the annual yield of herbal cannabis, the sentencing court should refer to the sentencing tariff for possession of cannabis resin for the purpose of unlawful trafficking as laid down in Attorney General v Tuen Shui Ming & Another[1] to determine the appropriate starting point of the sentence as if the dangerous drugs in question were cannabis resin, but then adjust the sentence to take into account the fact that cannabis resin has an average concentration of tetrahydrocannabinol, which is the principal psychoactive constituent in cannabis plants, about 4 times higher than that found in herbal cannabis.

20.The said tariff found in the case of Tuen Shui Ming is that where the amount is under 2,000g, the starting point would be up to 16 months.  Where the amount is over 2,000g, the starting points would be between 16 to 24 months.  Where the amount is over 6,000g, the starting point would be between 36 to 48 months. Where the amount is over 9,000g, the starting point would be 4 years upwards.

21.The Court of Appeal also stated clearly that the above tariff was not a straitjacket.  A judge must bear the tariff in mind when sentencing but must arrive at an appropriate sentence in light of the circumstances of each individual case.

22.In the present case the annual yield in dry herbal form was estimated to be 6kg. 

23.His Lordship also said in para 15 of Nguyen that the judgment of the Court of Appeal of England and Wales in R v Xiong Xu & Ors [2008] 2 Cr App R(S)  50 and R v John Auton & Ors [2011] 2 Cr App R(S)  75 were “of assistance in identifying the factors relevant to sentence… in operations that vary in size from the large scale commercial production, sometimes called ‘industrial scale production’, to the smaller scale, but nevertheless well-planned and resourced”.

24.In particular, in para 3 of Xiong Xu, the English Court of Appeal divided the offenders into 4 classes depending on the degree of participation in increasing order, namely the worker/gardener, the manager, the organizer, and finally the controller of a substantial number of operations.

25.Mr Tsoi submitted that this court may use the starting point in Cheung King Kong i.e. about 3 years as a reference and that there are no aggravating factors to add to that starting point.

26.I found that D2’s mitigation of their role in the activity, which included assisting Ah Joe on the operation on cultivation, renting the premises, access to the Units, paid frequent visits to the Units, D2 could be described as operator assistant, assisting the operation of a well-planned and resourced cultivation.

27.Given the equipment, the tools, and the size of the Units, I also found the operation was being run on a scale which could be described as a small scale production.   The prosecution agreed to that.

28.In the present case, the estimated annual yield exceeded 6kg, and the scale in the present case is lower than the scale in the case of Cheung King Kong.

29.With reference to the case of Cheung King Kong, I find a starting point of 3 years’ (i.e. 36 months)  imprisonment appropriate after taken into account of the role of D2.

30.According to case law, I can subtract up to 12 months (subject to a suitable proportion)  from that figure for a case of cultivation of cannabis plants, unless of course the case is one where a very large amount is involved.

31.I will subtract 9 months from 36 months earlier adopted to arrive at the starting point for the present offence.  After subtraction, it is 27 months. Given his clear criminal record, remorseful attitude, and relative minor role on the operation, I give a further 3 months’ reduction and come up with 24 months.

32.After a discount of one-third for his early guilty plea, D2 is sentenced to 16 months’ imprisonment for Charge 1.