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 and large-scale commercial cultivation – sentencing guidelines – Dangerous Drugs Ordinance (Cap 134) ss.4 and 9 – consecutive sentences – totality principle – THC concentration – potency ratio – revision of Tuen Shui Ming guidelines – judicial review of sentencing for cultivation – two appellants sentenced for separate large-scale cannabis cultivation operations in Hong Kong, one also convicted of trafficking. In CACC 145/2019, Nguyen was arrested in a vehicle with 7.84 kg of cannabis plants, and a search of a Tai Po premises accessible by keys found on him uncovered 184 cannabis plants, cultivation equipment and an estimated annual yield of 85.17 kg of dry herbal cannabis valued at HK$23,592,000. In CACC 217/2019, Dang was found in a Clear Water Bay villa with a key to the premises, together with 747 pots of cannabis plants and saplings, cultivation apparatus, and an estimated annual yield of 137.70 kg of consumable herbal cannabis valued at HK$38,142,900. On the first ground of appeal in CACC 145/2019, whether the sentencing judge erred in ordering the trafficking sentence partially consecutive to the cultivation sentence as amounting to double counting – held no, because trafficking and cultivation are separate and distinct offences, and the judge properly applied the totality principle. On the common second ground, whether the starting points for large-scale commercial cultivation of cannabis were manifestly excessive and whether new sentencing guidelines were required – held no manifest excess, but new guidelines adopted to address the dramatic increase in THC concentration revealed by expert evidence (Dr Lai's study showed average THC in herbal cannabis rose from 1.73% to 19.2% and in cannabis resin from 6.65% to 19.7%, reducing the potency ratio from 1:4 to about 1:1), and to provide for larger quantities beyond the 9 kg cap of the existing Tuen Shui Ming guidelines. Revised trafficking guidelines issued with eight bands up to over 90,000 grammes, and new cultivation guidelines set by estimated annual yield: under 5,000g (below 2 years); 5,000–50,000g (2–7 years); 50,000–150,000g (7–10 years); over 150,000g (above 10 years), adjusted for the maximum 15-year penalty under s.9. The court emphasised that the key criterion in cultivation cases is the estimated annual yield, requiring a pragmatic assessment of the nature, size, sophistication, method, number and type of crops, with the role of the defendant, scale, and any noticeable higher or lower THC levels as relevant factors. Both appeals dismissed; Nguyen's total sentence of 7 years 6 months' imprisonment and Dang's sentence of 8 years 6 months' imprisonment upheld.
Legal issues: Consecutive sentences for cannabis trafficking and cultivation arising from same criminal episode · Sentencing guidelines for large-scale commercial cultivation of cannabis
Outcome: Both appeals against sentence dismissed.
Cited by 18 cases · Cites 5 cases