Cannabis dealer sentencing using English guidance loses appeal against length of sentence

About this case:

• Citation:
  [2026] HCJAC 6
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Beckett

Ly Huynh’s case was referred by the Scottish Criminal Cases Review Commission after he complained that, by applying guidance from an English sentencing guidance, the sentencing judge had misdirected himself and imposed an excessive sentence. The appellant was 24 when the sentence was passed and 21 and 22 respectively at the time of the charges to which he pled guilty at the start of the trial diet.

The appeal was heard in the High Court of Justiciary by the Lord Justice Clerk, Lord Beckett, with Lord Ericht and Lady Carmichael. Ogg, solicitor advocate, appeared for the appellant and Dickson KC, advocate depute, for the Crown.

Fingerprints on bags

On 2 November 2020, police stopped a taxi on the M74 motorway having received intelligence that a quantity of drugs was being moved from Bolton to Glasgow by a Vietnamese male. On stopping the vehicle, an unidentified male of East Asian appearance exited the taxi and escaped across the fields. While the Crown did not invite the trial judge to infer that the appellant was that passenger, his fingerprints were found on vacuum-sealed bags of cannabis recovered from the taxi which had a maximum sale value of around £290,000.

The details of charge 2 were that on 28 July 2021 a vehicle containing just over 4 kilograms of cannabis pulled up outside a flat on Harley Street, Glasgow. The appellant was standing at the window of the flat and waved to the occupants of the vehicle, who were his co-accused. The appellant’s fingerprints were again found on bags of cannabis recovered from the flat and the vehicle and a strong smell of cannabis emanated from the flat.

On 6 February 2023, the first day of the trial diet, the appellant pled guilty to charges 1 and 2 on the indictment, with pleas of not guilty on other charges accepted by the Crown. The sentencing judge explained that he considered the guideline from the Sentencing Council for England and Wales on supplying or offering to supply a controlled drug, and that allowing for the appellant’s comparative youth an appropriate starting point was seven years and six months’ imprisonment. This was reduced to account for the appellant spending three months on remand before being released and then discounted to six years and three months for the guilty plea.

The appellant initially lodged a note of appeal based on his age, his family situation in which he cared for three children, and a contention that he had been found to be a victim of human trafficking by the Home Office in 2014 which he later chose not to rely on. The sentencing judge had also applied the guideline for a class A drug rather than a class B drug, leading to an unwarranted increase in the sentence imposed.

In a supplementary report, the judge confirmed that he had erred by considering the guideline for class A drugs but still considered the sentence appropriate given the late plea of guilty to two different quantities of cannabis. The advocate depute submitted nothing on the merits of appeal but noted there were no reasonable grounds to believe the appellant was a potential victim of slavery or forced labour.

Worked in his favour

Lord Beckett, delivering the opinion of the court, noted there was little Scottish sentencing precedent for this case, and said: “The circumstances narrated suggest that the appellant may well have had substantial links to, and influence on, others in the chain. He was likely to have expectation of substantial financial advantage, and he did not have a drug habit. Even if his conduct properly belongs in the ‘significant’ category it is at the upper end of it. Despite the judge’s erroneous consideration of the class A part of the guideline, we are not persuaded that the English guidelines can be applied literally as if there was one offence when there were two, distinct, albeit probably related, offences.”

He continued: “We note that the Commission, and the appellant, have approached this case as if there was a single charge involving 59kg of cannabis. That is not what the court was dealing with. There were two distinct crimes, albeit both involving the same drug, committed 9 months apart in rather different circumstances. This is a significant consideration for the reasons identified in Lin v HM Advocate (2007) and HM Advocate v McFadyen (2012).”

Considering the impact of there being two offences in more detail, Lord Beckett said: “Whilst the judge made several errors, the question is whether there has been a miscarriage of justice and that involves determining whether the sentence imposed was excessive. It is not sufficient to identify one or more errors in the sentencing process unless the result is a miscarriage of justice by virtue of the final sentence being excessive. Whilst reference to the wrong part of the English guideline could work against the appellant, the judge recognised that he was not dealing with a single offence, and it explains why he imposed a substantial sentence.”

He concluded: “The errors he made in accounting for the time spent on remand prior to release, in reducing the sentence arithmetically on account of age when a more discriminating evaluation was required given the appellant’s particular circumstances, and in failing to recognise that this was a case where at most a token discount ought to have been allowed for a plea of guilty at trial, with limited utilitarian value, all worked in the appellant’s favour.”

The appeal against sentence was therefore refused.