[420 Girl]

Justice cites errors, orders new trial for two accused

Citing errors by the trial judge, B.C.'s highest court has set aside the marijuana grow-op convictions of two Surrey residents and ordered a new trial.

Judy Choi and Jason Huynh were found guilty in provincial court of possession of marijuana for the purpose of trafficking, production of that substance and theft of electricity after police executed a search warrant on a home in August 2003.

RCMP seized a 588-plant, "three-stage commercial" grow-op, having a harvested value of almost $250,000 in the two-storey home.

Extensive duct work and lighting had been installed and a hydro bypass in the garage was used to steal electricity from B.C. Hydro. According to evidence at trial, there was a strong smell of pot throughout the home and no effort had been made to conceal anything.

Nothing of a personal nature was linked to the accused except a fingerprint of Choi located on a piece of Mylar shroud in one of the growing rooms. The home had been purchased six months earlier by Huynh and another person, Steve Choi, and a next-door neighbour testified he regularly saw the accused at the home.

The trial judge relied primarily on the neighbour's evidence to conclude Judy Choi and Huynh had control of the house and its contents but also cited other evidence later challenged by the defence on appeal.

One error cited by B.C. Court of Appeal Justice Peter Lowry in his ruling was that the judge neglected to hold a hearing on the specific issue of the admissibility of a statement to police by Choi that she'd paid a $5,900 Hydro bill at the home.

"I am unable to find in what was said at trial an express acceptance that what Choi said to the investigating officer was voluntary," said Lowry.

"In the absence of a determination to that effect made on conducting a voir dire, the judge erred by admitting and relying, as she did, upon the statement." Lowry also found the judge to have been in error in her reliance on B.C. Hydro records to prove that the pair were in control of the house.

Federal prosecutor Peter Eccles said it was a "very, very fact-specific" case and he doubted the ruling would have any long-term impact. He couldn't say whether the Crown will seek a new trial.

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