Read the full judgment text of CACC 145/2019 and CACC 217/2019 on BabelCite. This Court of Appeal judgment was delivered on 20 January 2023 before Macrae VP, Zervos JA and A Pang JA.
Criminal law – dangerous drugs – cannabis – trafficking – cultivation – sentencing guidelines – sentencing approach – consecutive sentences – totality principle – double counting – estimated annual yield – THC concentration – dangerous drug – Dangerous Drugs Ordinance (Cap 134) s.4 and s.9 – two appellants, Nguyen and Dang, convicted respectively of trafficking in 7.84 kg of cannabis plants and cultivating 67,154 grammes of cannabis plants at premises in Tai Po (estimated annual yield 85.17 kg, market value HK$23,592,000) and of cultivating 552 cannabis plants and 195 saplings totalling 181.65 kg at a 3-storey villa in Clear Water Bay (estimated annual yield 137.70 kg, street value HK$38,142,900) – both sentenced by the same judge in the Court of First Instance – Nguyen sentenced to 7 years 6 months total, Dang to 8 years 6 months – consolidated appeals on sentencing – First issue: whether the judge erred in ordering 6 months of the trafficking sentence to run consecutively to the cultivation sentence as amounting to double counting where the two counts arose from the same criminal episode – held: no, the two offences were separate and distinct; the appellant had the dual roles of cultivator and trafficker, and the additional criminality of the trafficking role justified the partially consecutive order subject to the totality principle; Wan Lau Mei distinguished as it concerned two trafficking counts of the same criminality – Second issue: whether the sentencing approach for large-scale commercial cultivation of cannabis should be revised – held: yes, the court should revise existing guidelines to reflect the dramatic increase in THC concentration in cannabis products and the now nearly equivalent potency of herbal cannabis and cannabis resin (the 1:4 ratio in Tuen Shui Ming no longer applicable) – Third issue: whether new sentencing guidelines for cultivation of cannabis should be established – held: yes, guidelines based on estimated annual yield, with bands of below 5,000 g (below 2 years), 5,000-50,000 g (2-7 years), 50,000-150,000 g (7-10 years), and over 150,000 g (above 10 years) – factors including role of defendant, nature and scale of operation, and any noticeable higher or lower levels of THC to be considered – the UK Drug Offences Definitive Guideline two-factor culpability/harm table rejected as not suitable for Hong Kong – the proposed distinction between s.4 and s.9(2) based on synthesised versus unsynthesised forms of cannabis rejected as lacking legal basis – the 1:1 potency ratio between herbal cannabis and cannabis resin to be adopted – revised trafficking guidelines also issued to deal with larger quantities and to reflect increased potency, with expanded bands up to over 90,000 grammes (120 months or above) – Fourth issue: whether the starting points adopted in both cases were manifestly excessive – held: no, the 10 years starting point for Nguyen (enhanced by 6 months for Form 8 recognizance holder status) and the 11 years starting point for Dang were not inappropriate having regard to the scale of the operations and aggravating factors – Application: the six-step approach in HKSAR v Herry Jane Yusuph to be followed in sentencing – Outcome: both appeals against sentence dismissed.
Legal issues: Consecutive sentences for trafficking and cultivation of cannabis arising from same criminal episode · Revision of sentencing guidelines for trafficking in cannabis · Establishment of sentencing guidelines for large-scale commercial cultivation of cannabis · Whether the starting points adopted in both cases were manifestly excessive
Outcome: Both appeals against sentence dismissed.
Cites 6 cases