HKSAR v. Wong Kwui Ho

DCCC 999/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 999 OF 2010

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Reasons for Sentence

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Introduction

1.The Defendant is convicted on his own guilty pleas of one charge of cultivation of cannabis plants, contrary to section 9(1) and (5) of the Dangerous Drugs Ordinance (the “1^st Charge”), and one charge of possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance (the “2^nd Charge”).

2.6 cannabis plants in a total weight of 142.01 grammes of genus cannabis are involved in the 1^st Charge.

3.1.88 grammes of a crystalline solid containing 1.86 grammes of methamphetamine hydrochloride and 2.46 grammes of cannabis in herbal form are involved in the 2^nd Charge.

4.The facts admitted by the Defendant reveal that:

(i)  At about 2:25 am on 21 March 2010, DPC 472 (“PW1”)  and his team performed an anti-drug operation at Room 611, Tin Ming House, Tin Ping Estate, Sheung Shui, New Territories, Hong Kong (the “Premises”);

(ii)  Upon seeing the police officers at the Premises, someone closed the door of the Premises immediately. At about this moment, another police officer who remained on look out outside Tin Ming House saw three pots of suspected cannabis plants being thrown out of the window of the Premises;

(iii)When PW1 knocked on the door of the Premises, he received no response. On the strength of a search warrant, the police entered the Premises by force. Inside the Premises, the Defendant’s mother was found in the living room while the Defendant was observed coming out from the kitchen;

(iv)  Upon police enquiries, the Defendant voluntarily admitted that he had just thrown 3 cannabis plants out of the window and that there were other cannabis plants inside the Premises. PW1 arrested and cautioned the Defendant. Under caution, the Defendant admitted to growing the two cannabis plants found inside the Premises and the three cannabis plants that he had just thrown out of the window;

(v)  From the search by the police of the Premises, a packet of suspected cannabis (“P1”) was found in a box, along with an electronic scale, some suspected cannabis seeds (“P2”) and several resealable plastic bags. The police also seized three suspected cannabis plants (“P3”). Eight packets of suspected “Ice” (“P4”) were also found in a metal box. Tools used for planting cannabis were found inside the living room of the Premises;

(vi)  The police also seized three suspected cannabis plants (“P5”) that had been thrown out of the window of the Premises;

(vii)PW1 then continued to make enquiries with the Defendant and he voluntarily revealed that P4 was “Ice”. Under caution, the Defendant claimed that the “Ice” was for self-consumption;

(viii)  During a subsequent video recorded interview, the Defendant claimed, inter alia, the following under caution:

(a)  About a month before the arrest, he bought four cannabis seeds at HK$100 from “Ah Kit” at the playground of Tin Ping Estate;

(b)  “Ah Kit” also taught him cannabis cultivation; and

(c)  Thereafter he started planting cannabis at the Premises for self-consumption;

(ix)  P1, P3, P4 and P5 were sent to Government Laboratory for examination. The results were as follows:

(a)  P1 was found to be a plastic bag containing 2.46 grammes of cannabis in herbal form;

(b)  P3 and P5 were found to be 2 flower pots with cannabis in the form of a plant with a total weight of 84.48 grammes; 1 flower pot with cannabis in the form of plant materials in a total weight of 0.31 gramme and 3 pots of cannabis in the form of a plant in a total weight of 57.22 grammes (thus a total of 6 plants in a total weight of 142.01 grammes of genus cannabis were found); and

(c)  P4 was found to be 8 plastic bags containing a total of 1.88 grammes of a crystalline solid containing 1.86 grammes of methamphetamine hydrochloride (Ice); and

(x)  P2 was also examined by the Government Chemist. Among the 283 seeds, 9 were found to be cannabis seeds.

The Defendant’s previous conviction record and antecedents

5.The Defendant has one previous conviction of assault occasioning actual bodily harm sentenced in December 2001 and one previous conviction of possession/custody of prohibited goods (firework) sentenced in April 2008. Those convictions are not similar to the present offences the Defendant is convicted of. In imposing sentence for the present case, I will not treat those previous convictions as an aggravating factor.

6.The Defendant was born in March 1986. At the time of the offence, he was about 24 years old. He has received education up to Form 3 level. He is single and used to live with his mother and younger sister in a public housing estate in Sheung Shui.

Mitigation

7.In mitigation, defence counsel informed me that the Defendant used to be a delivery worker and kitchen worker. At the time of the offence, the Defendant was unemployed. It was submitted that the cannabis plants (the subject matter of the 1^st Charge) and the methamphetamine hydrochloride and herbal cannabis (the subject matters of the 2^nd Charge) were for the Defendant’s own consumption. It was also submitted that the Defendant pleaded guilty to the present two charges at his first court appearance.

DATC Report

8.In light of the statutory requirement provided in section 54A of the Dangerous Drugs Ordinance, I ordered to obtain a DATC Suitability Report at the hearing on 25 January 2011. That Report is now available and says that since the Defendant has been kept in prison custody since 22 March 2010, the Defendant is found not to be a drug addict and hence not suitable for admission to a Drug Addiction Treatment Centre.

Sentencing authorities for cultivation of cannabis

9.Section 9(5) of the Dangerous Drugs Ordinance provides that the maximum penalty for the offence of cultivation of cannabis plants is a fine of $100,000 and to imprisonment for 15 years.

10.There is hardly any Hong Kong precedents on sentencing on cultivation of cannabis.

11.In Hedgecock v The Queen [2008] WL 501373, a decision in the Northern Territory of Australia, the Court of Appeal there identified a non-exhaustive list of factors in the determination of sentence as follows:

(i)  The number of plants, which may or may not be a particularly significant consideration;

(ii)  The maturity of the plants, their size, sex and quality;

(iii)The level of sophistication of the operation;

(iv)  Whether the cultivation of the plants is part of any ongoing operation or amounts to a “one-off” event;

(v)  The nature and extent of any criminal history of the offender; and

(vi)  The reasons of the offender for growing the plants including whether it is a commercial operation and, if not, whether there is a claimed medical reason for producing cannabis such as for pain relief for an identified condition.

12.In the present case, 6 cannabis plants are involved. The total weight of genus cannabis is 142.01 grammes. The Defendant claimed that the cannabis plants were for his own consumption. There is no evidence to contradict his version. Neither is there evidence to show the maturity, the size, sex and quality of the cannabis plants, or to show that the operation was a sophisticated one.

13.For the purpose of sentence on the 1^st Charge, I have considered Attorney General v Tuen Shui-ming [1995] 2 HKCLR 129 in which the Court of Appeal laid down guidelines for possession of cannabis resin for the purpose of unlawful trafficking as follows:

(i)  Under 2,000 grammes – up to 16 months;

(ii)  Over 2,000 grammes – 16 to 24 months;

(iii)Over 3,000 grammes – 24 to 36 months;

(iv)  Over 6,000 grammes – 36 to 48 months;

(v)  Over 9,000 grammes – 4 years upwards.

I notice that the sentencing guidelines in Tuen Shui-ming were about cannabis resin, not herbal cannabis. Cannabis resin was found to have an average concentration of tetrahydrocannabinol about four times higher than the average found in herbal cannabis. Sentencing judge must adjust the starting point when dealing with herbal cannabis.

14.In HKSAR v Chor Lui HCMA 535/2001, Mr. Justice Lugar-Mawson (as he then was) was dealing with an appeal on sentence on trafficking in 0.24 gramme of herbal cannabis. The magistrate adopted a starting point of 3 months’ imprisonment and reduced it to 2 months for the appellant’s guilty plea. The learned judge said that the benchmark tariff sentence should be 4 months for under 2,000 grammes of herbal cannabis, and that there was no sentencing scale for trafficking in under 2,000 grammes.

15.In light of the aforesaid authorities, I will adopt a starting point of 3 months’ imprisonment for the 1^st Charge. Giving 1/3 discount to the Defendant for his guilty plea and there being no other valid mitigation factors justifying further reduction in sentence, I sentence the Defendant to 2 months’ imprisonment on the 1^st Charge.

Sentencing authorities for the 2^nd Charge

16.Having considered HKSAR v Mok Cho Tik CACC 165/2000 and HKSAR v Chan Sai Hap HCMA 1274 and 1275/2004, I will adopt a starting point of 12 months’ imprisonment for the 2^nd Charge. Giving 1/3 discount to the Defendant for his guilty plea and there being no other valid mitigation factors justifying further reduction in sentence, I sentence the Defendant to 8 months’ imprisonment on the 2^nd Charge.

Conclusion

17.On totality, I order 1 month in the 1^st Charge to run consecutively with the sentence in the 2^nd Charge. The total sentence for the 2 charges is therefore 9 months’ imprisonment.