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.
This article by MCS originally appeared in Hong Kong Lawyer, the Official Journal of the Law Society of Hong Kong: Recent Updates In The Regulation Of Cannabis