R. v. Lam, 2012 BCPC 398

Citation: R. v. Lam, Kuang and Ma Date: 20120307 2012 BCPC 0398 File No: 32253-2-C Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KAM HUB LAM CHUN JIE KUANG GUO HUA MA REASONS FOR SENTENCE (Re: Accused Kam Hub Lam) OF THE HONOURABLE JUDGE D. J. O'Byrne Counsel for the Crown: E. Froess Counsel for the Defendant: I. Donaldson, Q.C. Place of Hearing: Prince George , B.C. Date of Judgment: March 7, 2012

[ 1 ] THE COURT: This is the matter of Kam Hub Lam, who is charged on Information 32253-2-C out of the Prince George Provincial Court. [ 2 ] Count 1 charges that he did on the 25th day of January 2011, at or near Vanderhoof, British Columbia, unlawfully produce a controlled substance, to wit: cannabis marihuana, contrary to s. 7(1) of the Controlled Drugs and Substances Act . [ 3 ] Count 2, to which he also entered a plea of guilty, charges him at the same time and place with unlawfully possessing a controlled substance, to wit: cannabis marihuana for the purpose of trafficking. [ 4 ] The circumstances are set out in the brief which was given to me by the Crown, which includes the circumstances plus the Crown's submissions.

Briefly stated, the investigation arose as a result of a vehicle being stopped and investigated. It had a large quantity of diesel fuel and that led to a further investigation that subsequently led to a search of a farm property near Vanderhoof, British Columbia. [ 5 ] In the booklet of photographs, which has been marked in these proceedings, Exhibit 1, there are 45 photographs that set out the scene as well as the grow operation. The aerial photographs show a large building and an outbuilding that housed the generator unit. The large building housed the grow-op.

I was told it was 70 metres long. [ 6 ] The grow operation was divided into three sections; one was electrical and three were grow rooms. In the various grow rooms were a total of 2,629 marihuana plants at various stages of cultivation. It is unquestioned that this was a highly sophisticated commercial marihuana grow operation. [ 7 ] The Crown projects that it is quite likely this grow operation produced three crops annually. At the time of the search in January 2011, they recovered 492 pounds of marihuana with a total value at a wholesale level of $984,000 and a projected retail of $4.5 million.

Projecting that calculation over three crops per year shows the magnitude of this grow operation. [ 8 ] The accused at the time of his arrest was on a conditional sentence order and the details of that are set out in the Crown brief. This, of course, is an aggravating factor because it meant that he should be in jail serving a sentence, but he was allowed to do it in the community. [ 9 ] He had previously been convicted of growing marihuana and his sentence obviously did not deter him for he again returned to this form of work either as a principal, a gardener or a caretaker or a repairman.

Nonetheless, he decided to involve himself in the commercial production of marihuana again. [ 10 ] The Crown points to four aggravating circumstances. The first I have just indicated was his conditional sentence for production of marihuana, which was then terminated and he spent the balance of that sentence in jail. Then he has spent 10 months in pre-trial custody awaiting this sentencing today which is March the 7th, 2012.

I will have more to say about the delay in coming to sentencing in due course. [ 11 ] The Crown points to other aggravating factors such as this was, as I said, a very large commercial grow operation capable of generating massive illegal profits. As well, they point to the fact that this accused came to the Vanderhoof area from the Lower Mainland and engaged in this activity. [ 12 ] The Crown seeks a sentence of three years in jail, although, they indicate there should be a conviction on both the charge of cultivation and possession for the purpose of trafficking.

They do not seek other than concurrent time. [ 13 ] The Crown points to a number of cases and they are in the casebook which has been provided to me. [EXTREMELY LOUD NOISE IN COURTROOM] [ 14 ] THE CLERK: Sorry. [ 15 ] THE COURT: It is okay. Of particular interest to me are the case of R. v. Kimball Lee, [2004] B.C.P.C. 0557, a decision of my sister Judge Bayliff, December 22nd, 2004; in addition, the decision of R. v. Ka Fuk Chiu of Judge Morgan, which is reported at [2010] B.C.P.C. 0042, that is a decision of Williams Lake and my own decision of November 8th, 2011, R. v.

Dao Quoc Lam and Phuc Van Vo ; that came out of the Quesnel Registry. [ 16 ] In seeking the term of incarceration in this matter, the Crown does take into account the fact that this accused has entered a plea of guilty. The plea of guilty in this case has eliminated the need for, at minimum, a 15-day trial and the strain it would put on the resources, as well as this would involve a Cantonese translator, which may well lengthen the proceedings.

They point that out even though they say it is more than balanced off by the fact he was on a conditional sentence order at the time. [ 17 ] The Crown does, as well, submit that the size of the grow operation and the profitability of the operation are factors I should take into account in imposing sentence. In mitigation, Mr. Donaldson points to the fact that unlike many grow-ops, this was not a case where there was a hydro-bypass. Here, they were using diesel fuel. There were no firearms present.

Nonetheless, I can still take into account, in my view, the risk of violence as it relates to these grow operations. [ 18 ] The cases as provided to me by the Crown cover the range of sentencing for Mr. Harrison where he had 30 prior convictions; got a three-year sentence down to a consideration of conditional sentences. The sentence being sought by the Crown does not bring into account the consideration of a conditional sentence. The position taken by Mr.

Donaldson that I should consider is something far less would bring it in, but as I decided in Lam and Vo , I do not think that in this current situation, a conditional sentence would be one I would consider given a large size commercial grow operation such as this.

[ 19 ] The cases, including my own, point out that in the Cariboo Northeast, there has been a tremendous substantial increase in the number of grow operations. People are coming out of the Lower Mainland north and they are setting up grow operations. As the former administrative judge, I was aware of 17 of these grow operations and the tremendous amount of court resources that had to be put aside to deal with them. [ 20 ] In my mind, the most important principle in sentencing here is general deterrence.

Unless we stop people from coming up to the Cariboo Chilcotin and the area of Vanderhoof north and setting up grow operations, they are going to keep coming. In my view, jail is the only way to do that. [ 21 ] In this case, it is urged on me that this accused was not a principal, was not a gardener, that he was just a repairman. I do not think it makes any difference whatsoever because he was there. He was involved. He is a party and he is just as guilty. [ 22 ] I have had the opportunity to examine the photographs in this case and as well, I received from Mr. Donaldson, on behalf of Mr.

Lam, an outline of his personal circumstances. It shows he is 54 years of age; that he came to Canada in 1984. He was born in Canton, China. He has worked at a variety of jobs. He is divorced. He has children. He recently had a company of his own, Lam’s Home Improvement. He is skilled at a multitude of trades such as painting, plumbing and carpentry. As a handyman, he is not formally trained, but he has taught himself the necessary skills. He has had cancer and he is recovering from that.

He has no addictions. [ 23 ] I, as well, received in evidence as Exhibit 3 further information relating to his time in pretrial custody as well as letters from his daughters, Annie Lam and Whinnie Lam. The daughters speak highly of their father. Even though they acknowledge his criminality, they nonetheless point him out to be a very independent person who has suffered tough financial times and difficulties. While they do not excuse his criminal lifestyle, they do see him as somebody who is a positive influence on them.

They draw my attention to the fact his plea of guilty is one of actual and sincere remorse. [ 24 ] I also have my attention drawn to the fact that Mr. Lam is family orientated; that he takes care of his parents. He visits them. They live in Chinatown in Vancouver and he visits them as often as he can. [ 25 ] The letters from the daughters stand in stark contrast to the crime of which he stands convicted and the one he pled guilty to. [ 26 ] Mr. Donaldson, in his submissions, suggested to me that if I took into account the fact that had Mr.

Lam been able to enter his plea of guilty when he wanted to, which was last fall, that he may well be on parole at this time. Mr. Donaldson, on behalf of Mr. Lam, points to the lack of resources that were unable to accommodate an early guilty plea. In that regard, he pointed out to me that on one occasion, Mr.

Lam was to be in court, but it turned out he was in Kamloops Regional Correctional Centre as opposed to Prince George Regional Correctional Centre and we could not turn it around quick enough. [ 27 ] On another occasion, I have personal knowledge the matter was scheduled and I was unavailable as I was to be the trial judge and now the sentencing judge. This brings into the fore again the fact that in the Cariboo Northeast our resources are stretched very thin. The entire resources of the Provincial Court of British Columbia have been stretched thin and the government seems not willing to address it.

Even as I speak today, after nine recent appointments, we have only 114 full-time judges and 43 part-time judges against the requirement of our chief for 143 full-time judges in order to fulfil our mandate and to stay within the timelines. I appreciate Mr. Donaldson's submission on the fact that I ought to give greater accommodation for the amount of time, 10 months, that Mr.

Lam spent in custody, and I will take it into consideration in my sentencing. [ 28 ] The principles of sentencing that I must take into account are deterrence; that is specific deterrence to this accused; general deterrence that is general deterrence to the public at large; rehabilitation and protection of the public. As I have stated earlier, the amount of grow operations of marihuana in the north has increased dramatically. The sentences we are giving appear not to be deterring people.

Sentences in the range of 18 months to three years are not uncommon, but they do not seem to be having the desired effect. [ 29 ] In this particular case, this accused was on a conditional sentence for production of marihuana and he does it again. Had the Crown not taken the reasonable position it has, that is three years minus the time served, I would have well been considering a sentence in the four-to-six-year range. It is only by that type of sentence that we can get across to those who may be likeminded. As I said, in R. v.

Lam and Vo , "You play the game, you pay the price." [ 30 ] That being said, and I know this is not a joint submission, but I do agree with counsel for Mr. Lam, there are unique circumstances in this case. Therefore, I am not going to go beyond the sentence as projected by the Crown and the range suggested by them. [ 31 ] So dealing with the other matters first: I will direct that you will provide such samples of your DNA as are necessary for inclusion in the DNA Databank.

That is the secondary grounds Madam Registrar. [ 32 ] I will, as well, pursuant to s. 109, direct that you will be prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition for a period -- it is a life period now, isn't it, Mr. Froess? [ 33 ] MR. FROESS: Yes, it is, Your Honour. [ 34 ] THE COURT: A period of life. Mr. Donaldson, you did not ask me to do this, but I will waive the victim fine surcharge unless -- [ 35 ] MR. DONALDSON: Thank you. [ 36 ] THE COURT: -- it seems unlikely he will be able to do anything about that.

The forfeiture order can be handed into the clerk and given to me in due course. Counsel can endorse it and I will sign it. That turns around to the sentence that must be imposed in this case.

[ 37 ] Sir, if you commit another offence like this you can expect to spend your old age in jail. The Crown is, for reasons that I am not privy to, inclined to view you far more charitably than I am. [ 38 ] So the sentence on Count 1 will be a sentence of three years. I will take into consideration the fact you have spent 10 months in custody. I will credit you for 10 months, so therefore the new time will be two years, two months. [ 39 ] THE CLERK: [inaudible/away from microphone] 26 months. [ 40 ] THE COURT: Sure.

It is the same thing. [ 41 ] THE CLERK: Yes. [inaudible/away from microphone] [ 42 ] THE COURT: Yes. That is fine. On Count 2, I take it to be part and parcel of Count 1, but the Crown seeks a conviction on that and what I will do is sentence on that to 12 months concurrent to any other sentence being served. [ 43 ] Did I miss anything, Mr. Froess? [ 44 ] MR. FROESS: No, Your Honour. [ 45 ] THE COURT: Mr. Donaldson? [ 46 ] MR. DONALDSON: No. [ 47 ] THE COURT: No. All right. Okay. [REASONS CONCLUDED]