Trio lose appeal of Burnaby grow-op convictions

Three people have lost their appeal of convictions stemming from a marijuana grow operation that police found in a North Burnaby house in 2007.

Burnaby RCMP executed a warrant alleging electricity theft at 1575 Glen Abbey Drive which had been under surveillance for several hours before police entered on June 22, 2007, according to a recent British Columbia Court of Appeal judgment.

When police identified themselves and demanded entry, an Asian woman looked through a window in the door before retreating further into the house.

After police rammed the door twice, one of the accused, Peter Duc Mao Thi, opened it and allowed officers to enter. Within minutes, police found an extensive marijuana grow operation in the basement and upstairs of the home. Bagged marijuana was also found in the house.

Thi, Jenny Yuk Chun So and Yuk Fong Faye Young were all convicted of production of and possession for the purpose of trafficking a controlled substance in October 2009 and sentenced in April 2010.

The trio appealed, with defence counsel arguing that evidence found by police should have been ruled inadmissible because the police "showed a casual indifference throughout to the rights of the appellants."

The defence also took issue with allowing evidence of police officers (who were not the arresting officers), who were at the house two days later and took down information on the two female appellants' identities.

The trial judge, Provincial Court Judge Frances Howard, decided the evidence was admissible because the officers were legitimately responding to a complaint about possible suspicious activity at the house and left as soon as they determined So and Young were lawfully in the home.

Howard determined that all three were aware of and involved with the grow-op. "Given the size of the grow-op in the basement, which was accessible from the garage where her car parked on June 22, 2007, the extent of the grow-op renovations that were occurring on the upper floor where the clones were located, the presence of equipment related to the grow-op in cupboards on the main floor, and the presence of 650 grams of marihuana in the refrigerator to which [So] would have had ready access, it is difficult to imagine how she could not have known about this operation," Howard said in her reasons for judgment.

The Hydro bill was in So's name and "Any reasonable person would have known that the many lights, timers, and fans used in the grow-op would require much larger amounts of electricity than the average home of this size."

Howard gave similar reasons for deciding Thi and Young were also guilty.

"Finally, I note that Thi was the individual who approached the front door while it was being rammed by the police and stated, “OK, I’ll open the door.”  This is an important circumstance. This is not conduct that one would expect from a mere visitor at the residence."

When police visited the house two days after the raid, they found Young and So sweeping the basement, cleaning the area where the grow-op had been found. "Again, this conduct suggests knowledge of and participation in the grow-op itself."

In dismissing the appeal, B.C. Appeal Court Justice John Hall said in his judgment, "With respect, I am in substantial agreement with the compendious reasons of the trial judge finding the evidence discovered to be admissible and finding the case established against the appellants."

Appeal Court Justices Daphne Smith and Kathryn Neilson agreed.

Thi, So and Young are out on bail while they await the hearing for the appeal of their sentences, scheduled for Oct. 24.

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