DCCC657/2011 HKSAR v. HOANG THANH SON AND ANOTHER - LawHero
DCCC657/2011
HKSAR v. HOANG THANH SON AND ANOTHER
區域法院（刑事）H H Judge Anthea Pang26/10/2011
DCCC657/2011
A A
B B
DCCC657/2011
C C
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
D D
CRIMINAL CASE NO. 657 OF 2011
E E
-------------------------------
F F
HKSAR
G G
v.
H H
Hoang Thanh Son (D1)
Dinh Thi Huong (D2)
I I
-------------------------------
J J
Before: H H Judge Anthea Pang
K Date: 27 October 2011 at 2.41 pm K
Present: Ms Ivy Lau, Counsel on fiat, for HKSAR
L Mr Eddie Mui of Messrs F. Zimmern & Co., assigned by the Director L
of Legal Aid, for the 1st Defendant
M Mr Pang Yiu Kwong of Messrs Michael Pang & Co., for the 2nd M
Defendant
N Offence: (1) Cultivation of cannabis plants (大麻植物的栽植) N
(2) Trafficking in a dangerous drug (販運危險藥物)
O (3) Breach of deportation order (違反遞解離境令) O
P P
-------------------------------
Q Q
Reasons for Sentence
R R
-------------------------------
S S
T T
U U
1 DCCC657/2011/Sentence
V V
A A
B The Charges & the Facts B
C 1. The 1st Defendant pleaded guilty to one charge of “cultivation of cannabis C
plants”, contrary to sections 9(1) and (5) of the Dangerous Drugs
D D
Ordinance, Cap. 134 (the 1 st charge), one charge of “trafficking in a
E E
dangerous drug” contrary to sections 4(1)(a) and (3) of the same Ordinance
F (the 2nd charge), and the 3rd charge of “breach of deportation order”, F
contrary to section 43(1)(a) of the Immigration Ordinance, Cap. 115.
G G
H 2. The 2nd Defendant was convicted after trial of the 1st charge which she H
faced jointly with the 1st Defendant. She was acquitted of the 2nd charge
I I
which was, again, laid jointly against both of them.
J J
3. In the afternoon of 12 April 2011, the 1st Defendant, the 2nd Defendant
K K
and another female were each carrying a big bag and were found by the
L police to be acting furtively. They were then stopped for enquiries and L
M each bag was found to contain potting soil. M
N N
4. Later, the three of them were taken to 5/F., No. 22 Pei Ho Street. The police
O used the keys found on the 1st Defendant to gain entry to the premises. In O
the living room of the premises, the police found 3 plastic bags of herbal
P P
cannabis weighing a total of 1,986.11 grammes (the 2 nd charge). Further,
Q 149 cannabis plants were found being cultivated in one of the bedrooms Q
(the 1st charge). In the other bedroom, there was a large amount of soil on
R R
the floor. Solar lamps and ventilation pipes had been installed in each of
S S
the bedrooms. Other paraphernalia like 11 uninstalled solar lamps and 12
T T
U U
2 DCCC657/2011/Sentence
V V
A A
B uninstalled ventilation pipes, 16 bottles of plant nutrients, a water sprayer B
and an electronic scale were found inside the premises.
C C
D 5. It was also discovered that the 1st Defendant had entered Hong Kong on D
17 December 2010 and he was an over-stayer at the time when the police
E E
stopped him. It was also confirmed that the 1st Defendant was subject to a
F deportation order dated 8 February 2001 which prohibited him from being F
in Hong Kong (the 3rd charge).
G G
H 6. During a subsequent video-recorded interview, the 1st Defendant H
I
admitted, inter alia, that he was cultivating cannabis plants in the premises I
and that the three bags of herbal cannabis were the products of the
J J
cultivation. He had cut the cannabis flowers and dried them under the
K light. Then, he packed them into the plastic bags. K
L L
7. Both in the facts admitted by the 1st Defendant and at the 2nd Defendant’s
M trial, the contents of the witness statements given by Mr. Chan Siu Lun, an M
Agricultural Officer of the Agriculture, Fisheries and Conservation
N N
Department were referred to. In brief, Mr. Chan opined that “production of
O O
cannabis seedlings by cutting method or by seed for cultivation has been carried
P out inside the premises.” and that “The devices, equipment, tools, plant nutrients P
and the planting media shown in photos are tailor-made for its operation.” Based
Q Q
on the 149 plants being grown in the premises, Mr. Chan further estimated
R R
that a total of 9,190.32 grammes of herbal cannabis could have been
S obtained if all the 149 plants had grown well and assuming that there were S
T T
U U
3 DCCC657/2011/Sentence
V V
A A
B 4 crops per year (the period of vegetative growth of cannabis plants is B
about 3 months).
C C
D 8. Similarly, the contents of DSIP Lewis’s statement were also referred to in D
both the facts admitted by the 1st Defendant and at the 2nd Defendant’s
E E
trial. DSIP Lewis advised that the average retail price for herbal cannabis
F in April 2011 was HK$114 per gramme. Therefore, the street value for the F
1,986.11 grammes of herbal cannabis found inside the three bags was
G G
HK$226,416.
H H
I Mitigation – the 1st Defendant I
J 9. The 1st Defendant is now aged 41. He was born in Vietnam and has J
K
received secondary education. He was unemployed at the time of the K
offence but it was said that he had operated a massage establishment in
L L
Vietnam in late 2009.
M M
10. The 1st Defendant has been before the court on two occasions with three
N N
conviction records. He was sentenced to 6 months’ imprisonment in
O September 1993 for “possession of a forged travel document” and was O
sentenced to concurrent terms of 15 months’ imprisonment in May 2000
P P
for yet another “possession of a forged travel document” offence and for
Q Q
“unlawful remaining”.
R R
11. Mr. Mui who acted for the 1st Defendant told the court that the 1st
S S
Defendant came to Hong Kong to commit the present offences because of
T financial pressure. It was said that his elderly father was seriously sick at T
U U
4 DCCC657/2011/Sentence
V V
A A
B the time and he, therefore, had to raise money for the medical bills. Mr. B
Mui told the court that, unfortunately, the 1st Defendant’s father passed
C C
away on 15 June 2011.
D D
12. In respect of the 1st charge, Mr. Mui referred to a number of cases which
E E
had been dealt with in the Court of First Instance and in the District Court :
F HKSAR v Leung Shu Ning & Another, HCCC 131 & 132/2006, 18 October F
2006; HKSAR v Nguyen Van Cuong, DCCC 514/2009, 29 June 2009; and
G G
HKSAR v Poon Wun-kwong, DCCC 550/2010, 30 June 2010. Mr. Mui,
H H
however, agreed that such cases were of limited use as the facts in each
I case would be different. I
J J
13. Concerning Mr. Chan’s statement about the projected yields of the
K cultivation, Mr. Mui submitted that those remained the expert’s estimates K
only. In this case, 149 cannabis plants were involved and, at the time of
L L
seizure, they only had a total weight of 313.67 grammes. Mr. Mui,
M M
therefore, urged this court to limit the sentence in respect of the 1 st charge
N to that in “band (a)” as set out in AG v Tuen Shui Ming & Anor. [1995] 2 N
HKCLR 129, which contained the recast tariff for trafficking in cannabis
O O
resin.
P P
14. In respect of the sentencing factors identified in the Australian case of R v
Q Q
Hedgecock [2008] NTCCA 1, 18 February 2008, Mr. Mui submitted that the
R R
present case was a small-scale operation not involving many plants. There
S was also no evidence as to how long the 1st Defendant would have S
continued with the cultivation if he had not been arrested. Mr. Mui,
T T
U U
5 DCCC657/2011/Sentence
V V
A A
B however, accepted that the 1st Defendant engaged in the cultivation for B
making financial gains.
C C
D 15. As regards the 2nd charge, Mr. Mui, relying on HKSAR v Chor Lui [2001] 3 D
HKLRD 95, submitted that it would be appropriate to adopt a starting
E E
point of 4 months.
F F
16. Mr. Mui also accepted that for the offence of “breach of deportation order”
G G
(the 3 charge), the authorities indicated that a starting point of 27 months
rd
H would be appropriate for a first-time offender. H
I I
Mitigation – the 2nd Defendant
J J
17. The 2nd Defendant is now aged 41. She was born in Vietnam and was
K K
educated up to Form 6 level. At the time of her arrest, the 2nd Defendant
L was a construction site worker, earning about HK$500 per day. The 2nd L
M Defendant was divorced but was re-married in April 2011. In 2009, the 2nd M
Defendant had an operation on her lower back.
N N
O 18. The 2nd Defendant has been before the court on 11 previous occasions O
with 26 convictions. Most of those were “unlawful possession of dutiable
P P
goods”. She had one conviction for “possession of a dangerous drug” in
Q 1996. Q
R R
19. In mitigation, Mr. Pang for the 2nd Defendant submitted that the cannabis
S cultivation in the present case was not sophisticated. The premises were S
T
only about 400 or 500 sq. ft., and that there were only 149 plants involved. T
U U
6 DCCC657/2011/Sentence
V V
A A
B Sentencing Considerations & the Starting Points B
C (1) The 1st Charge – Cultivation of Cannabis Plants C
D D
20. There is no tariff for the offence of cultivation of cannabis plants. However,
E the case of R v Hedgecock has been referred to by sentencing judges in a E
number of cases. While accepting that there are bound to be cultural and
F F
social differences between Australia and Hong Kong, and that there are
G G
differences between the sentencing regime in Hong Kong and that in the
H Northern Territory, I find the factors identified by Riley J in the Hedgecock H
case to be of assistance :
I I
J “19. … Depending upon the circumstances of the particular case the number J
of plants may or may not be a particular significant consideration. Matters that
have been taken into account in determining an appropriate sentence include, but
K K
are not limited to : the maturity of the plants, their size, sex and quality; the level
of sophistication of the operation; whether the cultivation of the plants is part of
L L
an ongoing operation or amounts to a “one-off” event; the nature and extent of
any criminal history of the offender; the reasons of the offender for growing the
M M
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
N N
identified condition; whether there has been a plea of guilty and, if so, at what
stage of proceedings and in what circumstances; and, of course, other relevant
O mitigating factors personal to the offender. Depending upon the nature and O
circumstances of the offending, issues of general deterrence and personal
P deterrence will receive greater or lesser weight.” P
Q Q
21. Further, in R v Terewi [1999] 3 NZLR 62, the New Zealand Court of Appeal,
R when reviewing the tariff for cannabis cultivation, observed that, R
S “6. It will be helpful to sentencing Judges if prosecutors bring evidence of S
the likely amounts of annual gross revenues, or turnover, obtained by the offender
T from a cannabis growing operation or which the offender must have anticipated T
U U
7 DCCC657/2011/Sentence
V V
A A
deriving from the activity. That will reflect crop cycles and yields and will be a
B B
better measure of the size of an operation than simple reference to the number of
plants which have been found. The sentence should also take into account the
C C
period over which the offending has continued.” (per Blanchard J.)
D D
22. In this case, the 149 cannabis plants were still at their developing stage and
E they were small plants. Therefore, it was not surprising that the 149 plants E
only weighed a total of 313.67 grammes.
F F
G 23. If, when determining the sentence, one were to merely take into account G
the weight of the plants, then it might produce markedly different
H H
sentences in respect of the same 149 plants. The reason is that if the plants
I I
were seized when they were fully grown, then they would definitely be of
J a much greater weight than when they were still at their infant stage. J
K K
24. Therefore, I accept the observation made in Terewi that information on the
L crop cycles and yields would be a better indicator of the size of the L
operation than the number of plants found or the mere weight of the
M M
plants. In this case, the Agricultural Officer estimated that a total of
N N
2,297.58 grammes of herbal cannabis could have been produced from the
O 149 plants. He further estimated that, as the period of vegetative growth of O
cannabis plant is about 3 months, a total of 9,190.32 grammes of herbal
P P
cannabis could have been obtained from the cultivation inside the
Q premises per year. Q
R R
25. While I accept that these estimated yields were no more than projections, I
S S
find the information to be helpful in assessing the scale of the operation
T involved. T
U U
8 DCCC657/2011/Sentence
V V
A A
B 26. Therefore, in determining the scale of the operation involved in this case, I B
am going to take into account the estimated yields and the expected profits;
C C
that the premises in which the cultivation was carried out required a
D monthly rental of HK$5,800; that the two bedrooms were devoted and D
adapted for the cultivation; that various paraphernalia were found in the
E E
premises, including uninstalled solar lamps and ventilation pipes; and that
F F
this was, no doubt, a venture for commercial gains rather than a
G cultivation for one’s own consumption or for any medical reasons. G
H H
27. In adopting the starting point for this charge, I also take into account that it
I was not a one-man operation. The 1st and the 2nd Defendants were acting I
together. Moreover, cultivation of cannabis plants should be viewed
J J
seriously as the Defendants were not simply involved in trafficking in
K K
herbal cannabis, they had themselves carried out the cultivation to
L produce the cannabis plants. L
M M
28. Herbal cannabis is, however, less harmful than cannabis resin. The
N trafficking guidelines set out in the case of Tuen Shui Ming have, therefore, N
to be adjusted downward.
O O
P 29. After considering all relevant matters, I take the view that the starting P
point for the 1st charge should be one of 21 months for the 2nd Defendant.
Q Q
However, as the 1st Defendant deliberately came to Hong Kong to commit
R R
these offences, I regard this as an aggravating factor, and I am going to
S adopt a starting point of 24 months, in his case, for the 1st charge. S
T T
U U
9 DCCC657/2011/Sentence
V V
A A
B (2) The 2nd Charge – Trafficking in the Herbal Cannabis B
C C
30. The quantity involved in this charge was 1,986.11 grammes of herbal
D cannabis. Taking into account the guidelines in Tuen Shui Ming and D
considering the facts of this case, I take 4½ months as the starting point for
E E
the 2nd charge.
F F
(3) The 3rd Charge – Breach of Deportation Order
G G
H 31. The cases indicate that a starting point of 27 months is appropriate for an H
offender who is found to be in breach for the first time. The 1st Defendant
I I
is in this category and I am going to take 27 months as the starting point
J for the 3rd charge. J
K K
Sentencing the Defendants
L L
The 1st Defendant
M M
32. The 1st Defendant pleaded guilty to all three charges. He is going to get a
N N
one-third reduction for his pleas. Other than this, I do not find anything in
O O
his mitigation which would warrant any further reduction in sentence.
P P
33. In respect of the 1st charge, 24 months reduced by one-third is 16 months’
Q Q
imprisonment.
R R
34. In respect of the 2nd charge, 4½ months reduced by one-third is 3 months’
S S
imprisonment. The 1st Defendant admitted that the three bags of herbal
T cannabis were the products he obtained from the cultivation inside the T
U U
10 DCCC657/2011/Sentence
V V
A A
B premises. In the circumstances, I consider it appropriate to order that this B
sentence be served concurrently with that for the 1st charge.
C C
D 35. In respect of the 3rd charge, 27 months reduced by one-third is 18 months’ D
imprisonment. However, his breach of deportation order is a separate and
E E
distinct offence. Therefore, in principle, the sentence for this charge should
F be served consecutively. F
G G
36. However, taking into account the totality principle, I consider that an
H overall term of 30 months should sufficiently reflect the 1st Defendant’s H
I
culpability in all these charges, I therefore order that : I
J (a) the term of 3 months in respect of the 2nd charge is to run wholly J
K
concurrently with the term of 16 months for the 1st charge; and K
L (b) only 14 months in respect of the 3rd charge are to run consecutively L
M to the term of 16 months in respect of the 1st charge, making a total M
term of 30 months’ imprisonment.
N N
O The 2nd Defendant O
P 37. In respect of the 2nd Defendant, she was convicted after trial. She is P
therefore not entitled to any reduction associated with a plea of guilty.
Q Q
R 38. I have considered carefully all that was said on her behalf in mitigation but R
I find nothing which would warrant any reduction in sentence.
S S
T T
U U
11 DCCC657/2011/Sentence
V V
A A
B 39. The 2nd Defendant is therefore to serve a term of 21 months for the 1st B
charge.
C C
D D
E E
F F
(Anthea Pang)
G District Judge G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
12 DCCC657/2011/Sentence
V V
A A
B B
DCCC657/2011
C C
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
D D
CRIMINAL CASE NO. 657 OF 2011
E E
-------------------------------
F F
HKSAR
G G
v.
H H
Hoang Thanh Son (D1)
Dinh Thi Huong (D2)
I I
-------------------------------
J J
Before: H H Judge Anthea Pang
K Date: 27 October 2011 at 2.41 pm K
Present: Ms Ivy Lau, Counsel on fiat, for HKSAR
L Mr Eddie Mui of Messrs F. Zimmern & Co., assigned by the Director L
of Legal Aid, for the 1st Defendant
M Mr Pang Yiu Kwong of Messrs Michael Pang & Co., for the 2nd M
Defendant
N Offence: (1) Cultivation of cannabis plants (大麻植物的栽植) N
(2) Trafficking in a dangerous drug (販運危險藥物)
O (3) Breach of deportation order (違反遞解離境令) O
P P
-------------------------------
Q Q
Reasons for Sentence
R R
-------------------------------
S S
T T
U U
1 DCCC657/2011/Sentence
V V
A A
B The Charges & the Facts B
C 1. The 1st Defendant pleaded guilty to one charge of “cultivation of cannabis C
plants”, contrary to sections 9(1) and (5) of the Dangerous Drugs
D D
Ordinance, Cap. 134 (the 1 st charge), one charge of “trafficking in a
E E
dangerous drug” contrary to sections 4(1)(a) and (3) of the same Ordinance
F (the 2nd charge), and the 3rd charge of “breach of deportation order”, F
contrary to section 43(1)(a) of the Immigration Ordinance, Cap. 115.
G G
H 2. The 2nd Defendant was convicted after trial of the 1st charge which she H
faced jointly with the 1st Defendant. She was acquitted of the 2nd charge
I I
which was, again, laid jointly against both of them.
J J
3. In the afternoon of 12 April 2011, the 1st Defendant, the 2nd Defendant
K K
and another female were each carrying a big bag and were found by the
L police to be acting furtively. They were then stopped for enquiries and L
M each bag was found to contain potting soil. M
N N
4. Later, the three of them were taken to 5/F., No. 22 Pei Ho Street. The police
O used the keys found on the 1st Defendant to gain entry to the premises. In O
the living room of the premises, the police found 3 plastic bags of herbal
P P
cannabis weighing a total of 1,986.11 grammes (the 2 nd charge). Further,
Q 149 cannabis plants were found being cultivated in one of the bedrooms Q
(the 1st charge). In the other bedroom, there was a large amount of soil on
R R
the floor. Solar lamps and ventilation pipes had been installed in each of
S S
the bedrooms. Other paraphernalia like 11 uninstalled solar lamps and 12
T T
U U
2 DCCC657/2011/Sentence
V V
A A
B uninstalled ventilation pipes, 16 bottles of plant nutrients, a water sprayer B
and an electronic scale were found inside the premises.
C C
D 5. It was also discovered that the 1st Defendant had entered Hong Kong on D
17 December 2010 and he was an over-stayer at the time when the police
E E
stopped him. It was also confirmed that the 1st Defendant was subject to a
F deportation order dated 8 February 2001 which prohibited him from being F
in Hong Kong (the 3rd charge).
G G
H 6. During a subsequent video-recorded interview, the 1st Defendant H
I
admitted, inter alia, that he was cultivating cannabis plants in the premises I
and that the three bags of herbal cannabis were the products of the
J J
cultivation. He had cut the cannabis flowers and dried them under the
K light. Then, he packed them into the plastic bags. K
L L
7. Both in the facts admitted by the 1st Defendant and at the 2nd Defendant’s
M trial, the contents of the witness statements given by Mr. Chan Siu Lun, an M
Agricultural Officer of the Agriculture, Fisheries and Conservation
N N
Department were referred to. In brief, Mr. Chan opined that “production of
O O
cannabis seedlings by cutting method or by seed for cultivation has been carried
P out inside the premises.” and that “The devices, equipment, tools, plant nutrients P
and the planting media shown in photos are tailor-made for its operation.” Based
Q Q
on the 149 plants being grown in the premises, Mr. Chan further estimated
R R
that a total of 9,190.32 grammes of herbal cannabis could have been
S obtained if all the 149 plants had grown well and assuming that there were S
T T
U U
3 DCCC657/2011/Sentence
V V
A A
B 4 crops per year (the period of vegetative growth of cannabis plants is B
about 3 months).
C C
D 8. Similarly, the contents of DSIP Lewis’s statement were also referred to in D
both the facts admitted by the 1st Defendant and at the 2nd Defendant’s
E E
trial. DSIP Lewis advised that the average retail price for herbal cannabis
F in April 2011 was HK$114 per gramme. Therefore, the street value for the F
1,986.11 grammes of herbal cannabis found inside the three bags was
G G
HK$226,416.
H H
I Mitigation – the 1st Defendant I
J 9. The 1st Defendant is now aged 41. He was born in Vietnam and has J
K
received secondary education. He was unemployed at the time of the K
offence but it was said that he had operated a massage establishment in
L L
Vietnam in late 2009.
M M
10. The 1st Defendant has been before the court on two occasions with three
N N
conviction records. He was sentenced to 6 months’ imprisonment in
O September 1993 for “possession of a forged travel document” and was O
sentenced to concurrent terms of 15 months’ imprisonment in May 2000
P P
for yet another “possession of a forged travel document” offence and for
Q Q
“unlawful remaining”.
R R
11. Mr. Mui who acted for the 1st Defendant told the court that the 1st
S S
Defendant came to Hong Kong to commit the present offences because of
T financial pressure. It was said that his elderly father was seriously sick at T
U U
4 DCCC657/2011/Sentence
V V
A A
B the time and he, therefore, had to raise money for the medical bills. Mr. B
Mui told the court that, unfortunately, the 1st Defendant’s father passed
C C
away on 15 June 2011.
D D
12. In respect of the 1st charge, Mr. Mui referred to a number of cases which
E E
had been dealt with in the Court of First Instance and in the District Court :
F HKSAR v Leung Shu Ning & Another, HCCC 131 & 132/2006, 18 October F
2006; HKSAR v Nguyen Van Cuong, DCCC 514/2009, 29 June 2009; and
G G
HKSAR v Poon Wun-kwong, DCCC 550/2010, 30 June 2010. Mr. Mui,
H H
however, agreed that such cases were of limited use as the facts in each
I case would be different. I
J J
13. Concerning Mr. Chan’s statement about the projected yields of the
K cultivation, Mr. Mui submitted that those remained the expert’s estimates K
only. In this case, 149 cannabis plants were involved and, at the time of
L L
seizure, they only had a total weight of 313.67 grammes. Mr. Mui,
M M
therefore, urged this court to limit the sentence in respect of the 1 st charge
N to that in “band (a)” as set out in AG v Tuen Shui Ming & Anor. [1995] 2 N
HKCLR 129, which contained the recast tariff for trafficking in cannabis
O O
resin.
P P
14. In respect of the sentencing factors identified in the Australian case of R v
Q Q
Hedgecock [2008] NTCCA 1, 18 February 2008, Mr. Mui submitted that the
R R
present case was a small-scale operation not involving many plants. There
S was also no evidence as to how long the 1st Defendant would have S
continued with the cultivation if he had not been arrested. Mr. Mui,
T T
U U
5 DCCC657/2011/Sentence
V V
A A
B however, accepted that the 1st Defendant engaged in the cultivation for B
making financial gains.
C C
D 15. As regards the 2nd charge, Mr. Mui, relying on HKSAR v Chor Lui [2001] 3 D
HKLRD 95, submitted that it would be appropriate to adopt a starting
E E
point of 4 months.
F F
16. Mr. Mui also accepted that for the offence of “breach of deportation order”
G G
(the 3 charge), the authorities indicated that a starting point of 27 months
rd
H would be appropriate for a first-time offender. H
I I
Mitigation – the 2nd Defendant
J J
17. The 2nd Defendant is now aged 41. She was born in Vietnam and was
K K
educated up to Form 6 level. At the time of her arrest, the 2nd Defendant
L was a construction site worker, earning about HK$500 per day. The 2nd L
M Defendant was divorced but was re-married in April 2011. In 2009, the 2nd M
Defendant had an operation on her lower back.
N N
O 18. The 2nd Defendant has been before the court on 11 previous occasions O
with 26 convictions. Most of those were “unlawful possession of dutiable
P P
goods”. She had one conviction for “possession of a dangerous drug” in
Q 1996. Q
R R
19. In mitigation, Mr. Pang for the 2nd Defendant submitted that the cannabis
S cultivation in the present case was not sophisticated. The premises were S
T
only about 400 or 500 sq. ft., and that there were only 149 plants involved. T
U U
6 DCCC657/2011/Sentence
V V
A A
B Sentencing Considerations & the Starting Points B
C (1) The 1st Charge – Cultivation of Cannabis Plants C
D D
20. There is no tariff for the offence of cultivation of cannabis plants. However,
E the case of R v Hedgecock has been referred to by sentencing judges in a E
number of cases. While accepting that there are bound to be cultural and
F F
social differences between Australia and Hong Kong, and that there are
G G
differences between the sentencing regime in Hong Kong and that in the
H Northern Territory, I find the factors identified by Riley J in the Hedgecock H
case to be of assistance :
I I
J “19. … Depending upon the circumstances of the particular case the number J
of plants may or may not be a particular significant consideration. Matters that
have been taken into account in determining an appropriate sentence include, but
K K
are not limited to : the maturity of the plants, their size, sex and quality; the level
of sophistication of the operation; whether the cultivation of the plants is part of
L L
an ongoing operation or amounts to a “one-off” event; the nature and extent of
any criminal history of the offender; the reasons of the offender for growing the
M M
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
N N
identified condition; whether there has been a plea of guilty and, if so, at what
stage of proceedings and in what circumstances; and, of course, other relevant
O mitigating factors personal to the offender. Depending upon the nature and O
circumstances of the offending, issues of general deterrence and personal
P deterrence will receive greater or lesser weight.” P
Q Q
21. Further, in R v Terewi [1999] 3 NZLR 62, the New Zealand Court of Appeal,
R when reviewing the tariff for cannabis cultivation, observed that, R
S “6. It will be helpful to sentencing Judges if prosecutors bring evidence of S
the likely amounts of annual gross revenues, or turnover, obtained by the offender
T from a cannabis growing operation or which the offender must have anticipated T
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A A
deriving from the activity. That will reflect crop cycles and yields and will be a
B B
better measure of the size of an operation than simple reference to the number of
plants which have been found. The sentence should also take into account the
C C
period over which the offending has continued.” (per Blanchard J.)
D D
22. In this case, the 149 cannabis plants were still at their developing stage and
E they were small plants. Therefore, it was not surprising that the 149 plants E
only weighed a total of 313.67 grammes.
F F
G 23. If, when determining the sentence, one were to merely take into account G
the weight of the plants, then it might produce markedly different
H H
sentences in respect of the same 149 plants. The reason is that if the plants
I I
were seized when they were fully grown, then they would definitely be of
J a much greater weight than when they were still at their infant stage. J
K K
24. Therefore, I accept the observation made in Terewi that information on the
L crop cycles and yields would be a better indicator of the size of the L
operation than the number of plants found or the mere weight of the
M M
plants. In this case, the Agricultural Officer estimated that a total of
N N
2,297.58 grammes of herbal cannabis could have been produced from the
O 149 plants. He further estimated that, as the period of vegetative growth of O
cannabis plant is about 3 months, a total of 9,190.32 grammes of herbal
P P
cannabis could have been obtained from the cultivation inside the
Q premises per year. Q
R R
25. While I accept that these estimated yields were no more than projections, I
S S
find the information to be helpful in assessing the scale of the operation
T involved. T
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B 26. Therefore, in determining the scale of the operation involved in this case, I B
am going to take into account the estimated yields and the expected profits;
C C
that the premises in which the cultivation was carried out required a
D monthly rental of HK$5,800; that the two bedrooms were devoted and D
adapted for the cultivation; that various paraphernalia were found in the
E E
premises, including uninstalled solar lamps and ventilation pipes; and that
F F
this was, no doubt, a venture for commercial gains rather than a
G cultivation for one’s own consumption or for any medical reasons. G
H H
27. In adopting the starting point for this charge, I also take into account that it
I was not a one-man operation. The 1st and the 2nd Defendants were acting I
together. Moreover, cultivation of cannabis plants should be viewed
J J
seriously as the Defendants were not simply involved in trafficking in
K K
herbal cannabis, they had themselves carried out the cultivation to
L produce the cannabis plants. L
M M
28. Herbal cannabis is, however, less harmful than cannabis resin. The
N trafficking guidelines set out in the case of Tuen Shui Ming have, therefore, N
to be adjusted downward.
O O
P 29. After considering all relevant matters, I take the view that the starting P
point for the 1st charge should be one of 21 months for the 2nd Defendant.
Q Q
However, as the 1st Defendant deliberately came to Hong Kong to commit
R R
these offences, I regard this as an aggravating factor, and I am going to
S adopt a starting point of 24 months, in his case, for the 1st charge. S
T T
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B (2) The 2nd Charge – Trafficking in the Herbal Cannabis B
C C
30. The quantity involved in this charge was 1,986.11 grammes of herbal
D cannabis. Taking into account the guidelines in Tuen Shui Ming and D
considering the facts of this case, I take 4½ months as the starting point for
E E
the 2nd charge.
F F
(3) The 3rd Charge – Breach of Deportation Order
G G
H 31. The cases indicate that a starting point of 27 months is appropriate for an H
offender who is found to be in breach for the first time. The 1st Defendant
I I
is in this category and I am going to take 27 months as the starting point
J for the 3rd charge. J
K K
Sentencing the Defendants
L L
The 1st Defendant
M M
32. The 1st Defendant pleaded guilty to all three charges. He is going to get a
N N
one-third reduction for his pleas. Other than this, I do not find anything in
O O
his mitigation which would warrant any further reduction in sentence.
P P
33. In respect of the 1st charge, 24 months reduced by one-third is 16 months’
Q Q
imprisonment.
R R
34. In respect of the 2nd charge, 4½ months reduced by one-third is 3 months’
S S
imprisonment. The 1st Defendant admitted that the three bags of herbal
T cannabis were the products he obtained from the cultivation inside the T
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B premises. In the circumstances, I consider it appropriate to order that this B
sentence be served concurrently with that for the 1st charge.
C C
D 35. In respect of the 3rd charge, 27 months reduced by one-third is 18 months’ D
imprisonment. However, his breach of deportation order is a separate and
E E
distinct offence. Therefore, in principle, the sentence for this charge should
F be served consecutively. F
G G
36. However, taking into account the totality principle, I consider that an
H overall term of 30 months should sufficiently reflect the 1st Defendant’s H
I
culpability in all these charges, I therefore order that : I
J (a) the term of 3 months in respect of the 2nd charge is to run wholly J
K
concurrently with the term of 16 months for the 1st charge; and K
L (b) only 14 months in respect of the 3rd charge are to run consecutively L
M to the term of 16 months in respect of the 1st charge, making a total M
term of 30 months’ imprisonment.
N N
O The 2nd Defendant O
P 37. In respect of the 2nd Defendant, she was convicted after trial. She is P
therefore not entitled to any reduction associated with a plea of guilty.
Q Q
R 38. I have considered carefully all that was said on her behalf in mitigation but R
I find nothing which would warrant any reduction in sentence.
S S
T T
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B 39. The 2nd Defendant is therefore to serve a term of 21 months for the 1st B
charge.
C C
D D
E E
F F
(Anthea Pang)
G District Judge G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
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