The main Ordinance governing the prohibition on illicit narcotics and drugs is the Dangerous Drugs Ordinance, Cap 134 which came into force in 1969. Further legislation came into force in 1989 dealing with the confiscation and recovery of proceeds of drug trafficking [Drug Trafficking (Recovery of Proceeds) Ordinance, Cap 405]. The Dangerous Drugs Ordinance lists all the drugs which are prohibited in Hong Kong. They include cocaine, cannabis and THCs, heroin, ice (methamphetamine hydrochloride), ecstasy (MDMA) and ketamine. The offences on which we frequently advise are as follows:
If you are found in possession of a suspected dangerous drug, the law enforcement agency (usually the Police or the Customs and Excise Department) will send the suspected drug for analysis by the Government Chemist. Sometimes they will await the return of this before charging you with a criminal offence. At other times, usually for larger amounts, they will charge you and bring you to court pending the preparation of the Government Chemist Certificate. The Government Chemist Certificate will set out the type of drug and narcotic content of the drugs seized. If you are convicted of possession of dangerous drugs, before deciding on your sentence, the Magistrate or Judge will look at various aspects of the case, including the type of drug involved, the amount of the drug, whether any rehabilitative measures need to be looked into (Drug Addiction Treatment Centre) and your age and background.
It is an offence to be in possession of “the gear” used for taking drugs.
Under the Pharmacy and Poisons Ordinance Cap 138 it is an offence to have in your possession, unless certain conditions are met, certain drugs listed under that Ordinance. Although the penalties are less severe than those under the Dangerous Drugs Ordinance, sometimes people may not be aware of the provisions of this Ordinance, Sildenafil, for instance, is listed under the Pharmacy and Poisons Ordinance. Sildenafil is the chemical name for the drug whose trade name is Viagra.
Manufacturing is regarded as the most serious of all drug related offences. It is triable only on indictment and carries a maximum life imprisonment sentence. Manufacturing is defined as any act connected with the making, adulterating, purifying, mixing, separating or otherwise treating a dangerous drug. A person might be guilty under section 6(1)(b) of the Ordinance if he/she lets premises knowing that the premises are to be used for manufacturing dangerous drugs.
Most convictions for trafficking in dangerous drugs result in imprisonment. The Department of Justice decides on the appropriate court in which to bring the charge based on the amount and type of drug involved. Trafficking charges are therefore brought in all the criminal courts in Hong Kong from the Magistracy to the High Court. The maximum sentence in Hong Kong is life imprisonment. The length of imprisonment will usually be determined by reference to the type and amount of dangerous drug involved, with little reference to personal circumstances. Trafficking is an excepted offence which means that the court can not impose a suspended period of imprisonment.
The Hong Kong Committee on Narcotics has proposed a new scheme whereby law enforcement officers who reasonably suspect that a person has consumed drugs are authorized to compel that person to undergo a drug test. The RESCUE Drug Testing Scheme Consultation Paper has been opposed by the Hong Kong Bar Association. Under the RDT Scheme, if the test result is positive, under a three-tier system, the person would be subject to counseling and treatment programmes, voluntary for the first time, mandatory for the second time in lieu of prosecution and prosecution for the third time. The Hong Kong Bar believes that the extraordinary and draconian police powers sought to be provided under the RDT Scheme will seriously interfere with fundamental constitutional rights and that it has not been shown to be necessary to address the problem of drug abuse.
2023 has seen measures taken both in legislation and the courts to provide new and stiffer penalties for those involved in cannabis and its related products.
CBD Legislative Changes
Cannabidiol, known as CBD, has been made illegal in Hong Kong from 1 February 2023. CBD comes from the cannabis sativa plant. The plant is believed to have used medicinally since around 750 B.C. In the United States , the CBD industry is flourishing with projections of its worth at US$16 billion by 2025. There it is added, amongst other things, to cheeseburgers, toothpicks and breath sprays. Previously not unlawful, in Hong Kong, the legislative change arises due to the government’s concern over the possible presence of tetrahydrocannabinol, or THC in CBD. THC is also derived from the cannabis plant and is the psychoactive ingredient that gives users a “high.”
CBD is now listed in the Dangerous Drugs Ordinance Cap. 134 with trafficking and illicit manufacturing of CBD carrying a maximum penalty of life imprisonment and a fine of HK$5 million. Possession and consumption carries a maximum penalty of seven years in jail and a fine of up to HK$1 million.
Court of Appeal
In a separate but related development, the Court of Appeal has re-examined the sentencing tariffs for trafficking and cultivation of cannabis. In HKSAR v Nguyen Thang Loi and Dang Hung Ngoc, CACC 145 and 217/2019;  HKCA 103, the Court of Appeal noted that the guidelines in Chan Chi Man  HKLR 221 were arrived at on the basis that 40 years ago the THC levels in herbal cannabis, cannabis resin and cannabis oil were approximately 8%, 15% and 60% respectively and this merited a different approach to the sentencing court, depending on the type of cannabis involved. Now, not only was there little difference in the THC levels between herbal and resin cannabis but the THC levels had increased to approximately 19%. In view of the “disturbing and potentially dangerous trend in the increasing concentration of THC in cannabis plants through advanced and improved methods of cultivation”, the sentencing guidelines (adopted since Tuen Shui Ming  2 HKCLR 129) for trafficking in larger quantities of cannabis are to be revised upwards as follows:
(a) Under 2,000 grammes – Up to 16 months
(b) Over 2,000 grammes – 16 to 24 months
(c) Over 3,000 grammes – 24 to 36 months
(d) Over 6,000 grammes – 36 to 48 months
(e) Over 9,000 grammes – 48 to 66 months
(f) Over 15,000 grammes – 66 to 96 months
(g) Over 45,000 grammes – 96 to 120 months
(h) Over 90,000 grammes – 120 months or above.
For the offence of cultivation of cannabis the following guidelines are to be based on the estimated annual yield, bearing in mind the maximum sentence of 15 years’ imprisonment. In estimating the annual yield, the sentencing judge will calculate the average weight of the plants, which is multiplied by the number of plants and then by the number of crops in the year. He should then identify the relevant band in the new guidelines after taking into account the gravity of the offence and the culpability of the offender.
|Estimated annual yield of cannabis (grammes)||Range of sentence (term of imprisonment)|
|Below 5,000||Below 2 years|
|5,000 to 50,000||2 to 7 years|
|50,000 to 150,000||7 to 10 years|
|Over 150,000||Above 10 years|
Factors that continue to be relevant in sentencing for offences of cultivation of cannabis are the role of the defendant, the nature and scale of the operation, and any noticeable higher (or lower) levels in THC. In applying the guidelines, the six step approach set out in HKSAR v Herry Jane Yusuph [2020 HKCA 974] (see https://www.mcs.com.hk/news-2/sentencing-for-drug-trafficking-a-fresh-approach) should be followed.
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