R. v. Huang (S.S.) et al., (2016) 386 B.C.A.C. 312 (CA)

• Judge: Bennett, Stromberg-Stein and Fitch, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 11, 2016
• Jurisdiction: British Columbia
• Citations: (2016), 386 B.C.A.C. 312 (CA);2016 BCCA 208

R. v. Huang (S.S.) (2016), 386 B.C.A.C. 312 (CA);

    667 W.A.C. 312

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. MY.030

Regina (respondent) v. Wai Hung Kwan (appellant)

(CA42305; 2016 BCCA 208)

Indexed As: R. v. Huang (S.S.) et al.

British Columbia Court of Appeal

Bennett, Stromberg-Stein and Fitch, JJ.A.

May 11, 2016.

Summary:

The accused were convicted of production of marijuana and possession of marijuana for the purpose of trafficking. The accused were all found in a residence 400 metres from the building dedicated to a marijuana grow operation which had the potential to produce $10-15 million worth of marijuana annually. They appealed their convictions on the ground that the verdicts were unreasonable. The trial judge's findings that the accused knew of the marijuana grow operation and participated in the operation were based solely on circumstantial evidence. The accused argued that the trial judge erred in finding that the only reasonable inference was that all of the accused present in the residence knew of and participated in the grow operation. They argued that there were other reasonable inferences consistent with innocence (i.e., some of accused visiting the remote residence without knowledge of the grow operation).

The British Columbia Court of Appeal, in a judgment reported (2016), 382 B.C.A.C. 153; 660 W.A.C. 153, dismissed the conviction appeals. The trial judge did not err in finding that the only reasonable inference from the circumstantial evidence was that all of the accused knew of and participated in the grow operation. The verdict was not unreasonable. One of the accused (Kwan) appealed his concurrent 15 month sentences for producing and possessing marijuana for the purpose of trafficking. He was 52 years of age and had no criminal record. He argued that as a mere caretaker he should have received a conditional sentence.

The British Columbia Court of Appeal dismissed the appeal. The trial judge did not err in finding that a conditional sentence would not meet the needs of denunciation and deterrence and was therefore inappropriate.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - See paragraphs 1 to 35.

Criminal Law - Topic 5830.4

Sentencing - Considerations on imposing sentence - Guilty plea - See paragraphs 1 to 35.

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - See paragraphs 1 to 35.

Criminal Law - Topic 5848.8

Sentencing - Considerations on imposing sentence - First offence - See paragraphs 1 to 35.

Criminal Law - Topic 5853

Sentence - Trafficking in hashish or marijuana (incl. possession for the purpose of trafficking) - See paragraphs 1 to 35.

Criminal Law - Topic 5878

Sentence - Possession, cultivation or production of a narcotic or a controlled drug or substance - See paragraphs 1 to 35.

Counsel:

I. Donaldson, Q.C., for the appellant;

M.A. Erina and C.C. Benton, for the respondent.

This appeal was heard on May 11, 2016, at Vancouver, B.C., before Bennett, Stromberg-Stein and Fitch, JJ.A., of the British Columbia Court of Appeal.

On May 11, 2016, the judgment of the Court of Appeal was delivered orally and the following opinions were filed:

Fitch, J.A. - see paragraphs 1 to 35;

Bennett, J.A. - see paragraphs 36, 38;

Stromberg-Stein, J.A. - see paragraph 37.