Justice Alice Yorke-Soo Hon.
IT is a strange irony that Parliament, in passing the Dangerous Drugs (Amendment) Act of 2019, exempted possession of 30 grammes or less of marijuana found on school premises, two Appeal Court judges observed in a passing note in an appeal by the Director of Public Prosecutions (DPP) involving a schoolboy.
The judges made the comment on the legislation, which was hailed at the time for decriminalising the offence of possession of small amounts of marijuana, as they upheld the DPP’s appeal.
Justices of Appeal Alice Yorke-Soo Hon, Gregory Smith and Mira Dean-Armorer said the amended legislation not only decriminalised small amounts of marijuana but also changed the charge of trafficking as it related to possession on school premises or 500 metres in proximity.
“It is a strange irony that Parliament by the new amendment intended to protect children from dangerous drugs, yet persons who are exempted under section 5 (2) (f) (i) for possession of 30 grammes or less if found on school premises, are not committing an offence.
“In our view, this seems to defeat the intention to provide a safe environment for the very young and vulnerable.”
However, they said that was a matter for Parliament to consider. The amended sections catered for tiers of possession: a maximum of 30 grammes on the first tier, above 30-50 on the second tier and above 60-100 in the third.
At the appeal, former assistant DPP Nigel Pilgrim argued that the minor, who was held at a school in Chaguanas with having 46.72 grammes of marijuana, was charged in June 2018 for trafficking and not simple possession.
He argued that the master of the Children Court who discharged the teen in April 2020 was wrong and did so without authority.
Pilgrim argued that the power to discharge under section 5 D (1) related exclusively to cases involving simple possession and was unrelated to cases of possession for trafficking. It was his submission that the minor was held in a school and was captured under the original Dangerous Drugs Act.
He said to interpret section 5D (1) to allow anyone charged with trafficking to apply for a discharge would result “in an absurdity” since it would be excusing behaviour which remains an offence even after the amendment.
Pilgrim contended the intent of Parliament was to decriminalise and retrospectively pardon the possession of small amounts of marijuana for private use, not to excuse possession for the purpose of trafficking.
In their ruling, the judges admitted that if the minor was charged with possession, he would have been eligible to apply for a discharge. However, they said he was charged with trafficking so was not eligible.
“In the circumstances of this case, it made no difference whether the master considered section 5 (7) under the pre-amended law or under the amended law. We do not find that the literal rule produced any ambiguity in relation to section 5 (7) (pre-amended or amended) and section 5 D (1) under the amended law.
“…The words when given their plain meaning are unambiguous. Section 5 D (1) or section 5 D (2) do not provide for persons charged with the offence of possession of cannabis for the purpose of trafficking to apply for a discharge otherwise it would have been expressly stated.”
Yorke-Soo Hon, who delivered the decision, also pointed out that marijuana trafficking carried a term of 10 years on summary conviction and imprisonment for life on indictment while the penalty for simple possession ranged from a fine to imprisonment depending on the nature of the conviction.
“Since trafficking is the more serious offence, it cannot be presumed that Parliament intended to simply discharge persons charged with the more serious offence of trafficking. The clear intention of Parliament is to protect the young and vulnerable from dangerous drugs.”
Attorney Mukiba Louis represented the minor, who was only referred to by his initials in the judgment, at the appeal.