HKSAR v. Tam Po Wing

HCCC 368/2024

[2025] HKCFI 3459

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 368 OF 2025

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REASONS FOR SENTENCE

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CHARGES

1.The defendant pleaded guilty to the Amended Charges namely, Charge 1, cultivation of cannabis plants, contrary to section 9(1)  and (5)  of the Dangerous Drugs Ordinance, Cap 134, and Charges 2 and 3, trafficking in a dangerous drug, contrary to section 4(1)(a)  and (3)  of the same Ordinance.  He admitted the Re-Amended Summary of Facts dated 6 March 2025 with written amendments made on 15 April 2025. 

ADMITTED FACTS

2.The facts of the case that the defendant has admitted and the undisputed chronology of events can be summarized as follows for the present purpose. 

Charge 1

3.On 18 July 2021, Customs Officers searched the house in Kam Tin, the address of which is that particularized in Charge 1.  This house is designated as “the First House” in the Re-Amended Summary of Facts.  411 cannabis plants in a total weight of 37.26 kilogrammes, and horticulture equipments such as electronic scales, scissors, cutters, and tapes were found.  In addition, and I quote from paragraph 2 of the Re-Amended Facts: 

“Upon examination by Government Chemist and experts of the Agriculture, Fisheries and Conservation Department, it was opined that cannabis cultivation had taken place at the First House. It was also found that cannabis plants in potting media grew well in rooms that were equipped with lighting equipment, electric fan and ventilation pipes. Parts of the side walls in the rooms was [sic] covered with light-reflecting material to increase the light intensity, which is beneficial to the growth of plants. With reference to the labels attached to a pile of material in plastic bags, they were considered to be growing media for plant growth. Besides, pruning shear, plastic pots, thermometer, water buckets and mugs were found at the site. They were necessary tools for potted plant cultivation and harvest of twigs and leaves. It was opined that indoor cultivation of cannabis plants in pots was carried out at the site. The equipment and devices, [and] the planting materials were tailor-made for the cultivation.”

4.The estimated annual yield of the 411 plants in the First House is 43 kilogrammes of herbal cannabis.  On 2 September 2021, the defendant was arrested.  He remained silent under caution.  He was released on bail without being brought to the court.  On 24 January 2022, the defendant revoked the bail. 

5.On 4 February 2022, his fingerprints were found on one of the adhesive tapes used to affix the curtain to the wall in the First House. 

6.On 15 April 2022, the defendant was arrested for another case, FLCC 350/2022, which involved three charges of trafficking in herbal cannabis at a different location, namely Ta Kwu Ling, and was granted court bail. 

7.On 21 April 2022, the defendant’s DNA was found on the surface of a towel hanging over the bags of plantation clay and near the cannabis plants in the First House. 

Charges 2 and 3

8.About one year after being arrested for Charge 1, on 21 July 2022, Customs Officer saw the defendant entered and then came out of a premises in Sheung Shui the address of which is that particularized in Charges 2 and 3 and is designated as “the Second House” in the Re-Amended Summary of Facts.  The defendant was intercepted and was found carrying with him two vacuum packets which contained a total of 943 grammes of herbal cannabis.  This is Charge 2. 

9.Using the keys found on the defendant, the Customs Officer entered the Second House with the defendant.  There, 130.584 kilogrammes of herbal cannabis was found. This is Charge 3.

10.On the defendant was found a prepaid SIM card the phone number of which had been used by the tenant surnamed Wan when he (Wan)  rented the Second House.  Mr Tze for the defendant submitted that the defendant was not Wan and the defendant was given the prepaid SIM card by the boss for communication purpose.  Miss Lo for the prosecution properly agreed that there is no evidence to suggest that the defendant was Wan.

11.The prevailing estimated street value of the cannabis involved in Charge 1 is $7.6 million, and that in Charges 2 and 3 together is $24.3 million. 

12.By his pleas of guilty the defendant admitted cultivating cannabis plants in the First House and trafficking in the herbal cannabis found in the Second House.

13.On 12 December 2022, the defendant was sentenced to 6 months and 20 days of imprisonment for FLCC 350/2022.  He completed his sentence and was released from prison on 11 January 2023. 

BACKGROUND AND MITIGATION

14.The defendant was 29 to 30 years old when he committed the present offences.  He is now 32 years old.  He has not provided his family or educational background. Mr Tze submitted that the defendant worked as a clerk for a real estate agent previously and gave $5,000 per month to his unemployed parents.  Mr Tze also submitted a letter and some certificates showing the defendant’s participation in voluntary work.  Mr Tze submitted that the defendant committed Charge 1 in the role as a gardener involved in cultivating the cannabis plants for a few days because he was terminated from his employment and was in need of money. Thereafter, he resumed his employment so he quitted to be the gardener. Subsequently, he lost his job again so he committed Charges 2 and 3 in the role as a courier and storekeeper. 

15.The defendant has five previous convictions, two of which were sentenced when he was 17 to 20 years old.  The other three convictions were those in FLCC 350/2022.

16.Relying on SJ v Cheung King Kong [2020] 3 HKLRD 837, AG v Tuen Shui Ming & Another [1995] 2 HKCLR 129, HKSAR v Wong Kin Hung [2023] HKCFI 1907 and HKSAR v Chan Pui Kai [2024] HKCFI 334 for Charge 1, Mr Tze submitted that the cultivation operation is not big and urged the court to adopt a starting point for sentence lower than the 4 years adopted in Cheung King Kong.  For Charges 2 and 3, he submitted that a starting point which is slightly more than 9 years 3 months is appropriate.  He asked the court for leniency when considering the aggravating factors present in the case, namely the defendant’s previous criminal record and the defendant committed Charges 2 and 3 whilst on court bail for FLCC 350/2022.  Relying on HKSAR v Pang Wai Keung (D2)  CACC 460/2005 and HKSAR v Chan Kai-chung Jack [2024] HKCFI 3153, Mr Tze asked the court to take into account that the three charges in FLCC 350/2022 were committed around the same time as Charges 1 to 3 in the present case and had all six charges been dealt with at the same time, the defendant would have benefited from the totality principle and would not have served the entire term of imprisonment in FLCC 350/2022 separately. 

SENTENCE

17.I deal with Charges 2 and 3 first. 

Charges 2 and 3 - Trafficking In Dangerous Drugs (Herbal Cannabis)

18.There are a total of 131.527 kilogrammes of herbal cannabis in Charges 2 and 3. Given the relevant facts admitted by the defendant, it is appropriate to deal with these two charges together. 

19.The maximum sentence on conviction upon indictment is life imprisonment and a fine of $5 million. 

20.I now consider the six steps as stipulated in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290, bearing in mind also the Court of Appeal’s guidance in HKSAR v Lee Ming Ho [2024] 1 HKLRD 1186. 

21.Step one is to identify the relevant guideline band applicable to the quantity of narcotics concerned. 

22.Pursuant to the case of Tuen Shui Ming, trafficking in over 9,000 grammes of cannabis resin should attract a starting point of 4 years’ imprisonment and upwards.  At that time, the potency of cannabis resin was about four times higher than that of herbal cannabis and the potency of cannabis oil was four times higher than that of cannabis resin.  The Court of Appeal in Tuen Shui Ming stated at page 135, line 34, that:

“Persons with herbal cannabis could, except perhaps in cases where very large amounts are involved, properly be given a discount of up to a year from the sentence that would have been imposed had they had a similar amount of cannabis resin. Should offenders be discovered with cannabis oil and we think an increase of at least that length would be warranted.”

23.Tuen Shui Ming was decided in 1995.  The Court of Appeal has in 2023 laid down new sentencing guidelines for trafficking in herbal cannabis and cannabis resin in the case of HKSAR v Nguyen Thang Loi [2023] 1 HKLRD 1329.  For trafficking in over 90 kilogrammes of herbal cannabis or cannabis resin, the starting point for sentence should be 120 months of imprisonment or above.  Since these guidelines were laid down after the defendant had committed the present charges in 2022, the guidelines applicable to the defendant should be those in Tuen Shui Ming rather than Nguyen Thang Loi.  However, it is pertinent to note that the court in Nguyen Thang Loi found that in modern day the potency of herbal cannabis measured by its THC content was higher than at the time of Tuen Shui Ming and were at a similar level when compared to cannabis resin.  It is on this basis that the court decided that the new guidelines should equally apply to herbal cannabis and cannabis resin and therefore without any reduction as suggested in Tuen Shui Ming in the above quoted paragraph.  It should be noted that the offences in Nguyen Thang Loi were committed in 2017, that is before the present offences.  The 131.527 kilogrammes of herbal cannabis in the present case is a very large amount.  I find it appropriate not to allow any reduction to the starting point even though it is herbal cannabis and not cannabis resin. 

24.Step two is to assess the role of the defendant.  Mr Tze submitted that the defendant’s role was that of a mere courier or storekeeper.  There is no evidence to contradict that.

25.Step three is to decide where within the guidelines the defendant should lie. 

26.In Wong Kin Hung, 9 years’ imprisonment was adopted as the starting point for sentence for trafficking in 109.355 kilogrammes of herbal cannabis.  In Chan Pui-kai, 9 years 3 months’ imprisonment was adopted for trafficking in 126.798 kilogrammes of herbal cannabis. 

27.Having considered the defendant’s role and the quantity of herbal cannabis involved, I consider that the overall starting point for Charges 2 and 3 should be one of 9 years and 9 months’ imprisonment.

28.Step four deals with the aggravating factors.  The defendant committed Charges 2 and 3 whilst on court bail for FLCC 350/2022 which involved offences of the same nature.  For this, I enhance the starting point by 3 months.  Since I have taken into account this aggravating factor, I will not take his convictions for these offences as another aggravating factor at the same time.  As for his earlier convictions, those offences were committed when he was at a young age and there was a break of convictions for some 10 years before he committed the offences in FLCC 350/2022.  In the circumstances, I disregard those earlier convictions for the present purpose. 

29.Step five considers the mitigating factors.  I do not regard the defendant’s personal or family circumstances as any mitigating factor.  As the Court of Appeal emphasized in HKSAR v Abdallah [2009] 2 HKLRD 437 at paragraph 32: 

“As for mitigation, the grievousness of the offence - a description that is born of the recognition of the dreadful misery caused to victims and their families and the serious harm to society generally – dictates that meaningful mitigation, apart from the plea of guilty, is rarely available. The message must consistently be delivered, even to the vulnerable such as the relatively young and those who say they need money whether for themselves or for the benefit of family members who are ill, that the vast majority of vulnerable people do not succumb to pressure and do not resolve their problems by engaging in this illicit and dreadful trade.”

30.The only mitigating factor open to the defendant is his guilty plea at the earliest opportunity.  For that, he is entitled to a full one-third discount.  That brings down the sentence to 80 months or 6 years 8 months’ imprisonment.  To achieve that, the sentence for Charge 2[1] is 6 years 7 months, and that for Charge 3¹ is 1 month. 

31.I will leave step 6 to the end. 

Charge 1 - Cultivation Of Cannabis Plants

32.I now deal with Charge 1.  The defendant was a gardener and cultivator. 

33.In Cheung King Kong there were 577 cannabis plants and the estimated annual yield was 27.209 kilogrammes.  At paragraph 69 of its judgment, the Court of Appeal describes the scale of the cannabis cultivation operation in question as “not small”. 

34.In the present case, there are 411 cannabis plants but the estimated annual yield was bigger; it is 43 kilogrammes.  For the same reason as stated above, the guidelines in cultivation of cannabis plants in Nguyen Thang Loi do not apply to the defendant. 

35.Having considered the lesser role of the defendant and the smaller scale of operation, but the much more larger estimated annual yield when compared with Cheung King Kong, I will adopt a starting point of 4 years 6 months’ imprisonment.

36.For comparison, if applying Tuen Shui Ming on a purely mathematical basis, the relevant sentencing bands are 66 to 96 months for over 15,000 grammes and 96 to 120 months for over 45,000 grammes.  On a purely mathematical basis, for 43 kilogrammes of cannabis the starting point will be 94 months or 7 years 10 months.  If applying the guidelines in Nguyen Thang Loi, the starting point will be 6.2 years.

37.There is no aggravating factor for this charge.  The defendant is entitled to one-third discount for his guilty plea.  The sentence for Charge 1 is therefore 3 years’ imprisonment.

38.The final step in Herry Jane Yusuph is to ensure that the overall sentence is one that is fair, just, and balanced in all the circumstances of the offences and the defendant. 

39.Charge 1 is treated separately, whereas Charge 2 and Charge 3 should be treated together, as their date and location of offence are different.  I accept Mr Tze’s submissions about the completion of sentence in FLCC 350/2022. Having considered the totality principle, I order that the sentences in Charges 2 and 3 are to be served consecutively, but only 2 years of Charge 1 to be served consecutively to those of Charges 2 and 3, that is a total of 8 years 8 months.  Had it not been the situation with respect to FLCC 350/2022, I would have ordered 2 years 4 months of Charge 1 to be served consecutively to those of Charges 2 and 3. 

40.I sentence the defendant to 8 years and 8 months of imprisonment in total. 

Postscript

41.Whilst both counsel have confirmed the accuracy of the above calculations at the hearing, it has subsequently come to my attention that in fact the two Charge numbers in paragraph 30 above were swapped.  The last sentence of paragraph 30 should read “To achieve that, the sentence for Charge 3 is 6 years 7 months, and that for Charge 2 is 1 month.”  This notwithstanding, the overall sentence of 8 years and 8 months of imprisonment is unaffected.

Miss LO Sum-yee, Rosa, SPP of the Department of Justice, for the Prosecution/ HKSAR

Mr. TZE Ying-kuen, James, instructed by Robertsons, assigned by D.L.A. for the Defendant