Doctor charged with trafficking cannabis, magistrate highlights conflicting drug laws

Magistrate highlights conflicting dispositions over cannabis-related asset freezes, as Pain Clinic director charged with trafficking cannabis

Dr. Andrew Agius (inset)
Dr. Andrew Agius (inset)

A conflict in the laws currently regulating asset freezes in cannabis-related cases has been pointed out by a court, as police arraigned the medical director of Paola’s Pain Clinic this afternoon.

Drugs Squad Inspector Marshal Mallia arraigned Dr. Andrew Agius, 45, before magistrate Victor Axiaq on Thursday, charged with offences relating to the importation and trafficking of cannabis grass.

Agius was charged with importing, selling and the aggravated possession of cannabis grass, under the Dangerous Drugs Act. The prosecution also requested the court impose a freezing order over all of Agius’s assets and to order the revocation of his medical licence.

The doctor pleaded not guilty to the charges.

The crux of the issue leading to his arrest appeared to be whether the cannabis buds in question could be legally defined as “cannabis products” with Agius’s defence lawyers, Giannella De Marco, Stephen Tonna Lowell and Alexander Scerri Herrera arguing that the cannabis allegedly imported by the doctor had a THC content of less than 0.2%. “They cannot be considered a psychotropic substance,” argued De Marco.

“The doctor is saying it’s a product, but the inspector is claiming that it is a prohibited drug,” submitted the lawyer. De Marco and Tonna Lowell pointed out that the law didn’t define what a product was, but explained to the court that the substance in question consisted of processed cannabis buds.

Tonna Lowell requested bail for the accused, which request was opposed by Inspector Mallia.

In her bail submissions, De Marco highlighted the fact that the accused is a medical doctor, with a clean criminal record and with strong ties to Malta. “Whether a product or not we are talking about something with less than 0.2% THC and which therefore cannot be considered a psychotropic substance,” said the lawyer.

The defence also pointed out that the police had deemed Agius sufficiently trustworthy to be allowed on police bail for 10 days, adding that he had punctually attended every appointment. There was no reason for the court not to trust him, submitted the lawyer.

Magistrate Axiaq upheld the request for bail, releasing Agius from arrest against deposit of €120 and a personal guarantee of €5000. No curfew was imposed, nor was he required to sign a bail book. The court warned him that he had to appear for every sitting in this case, not go abroad, speak to witnesses or commit any other offence whilst on bail.

That issue being settled, the magistrate then asked the defence to make submissions on the prosecution’s request for a freezing order.

Tonna Lowell explained that “today we have decrees which have established that the onus is on the prosecution to justify the freezing order. It is intended to seize the proceeds of crime and I don't think that because we disagree on the definition of a product, we should stop a person’s entire life.” A freezing order across the board is not justified, he said.

The prosecution insisted, however. “We are accusing him of importing and trafficking cannabis. If the Attorney General says that this is cannabis, and the man is selling it in his clinic, then the earnings of this clinic is part of the proceeds of the crime,” Inspector Mallia said.

At this point, the court stopped the inspector, pointing out that going down this road would stop several employees from receiving their salaries and would have a great impact on them.

Inspector Mallia replied, saying that he had consulted with the Attorney General over the past 10 days and had arrived at the decision to request a freezing order.

Magistrate Axiaq pointed out that the freezing order wasn’t mandatory in such cases, but that if requested, the court would have no option but to uphold the request.

When Inspector Mallia continued to insist on freezing the doctor’s assets as that the charges were related to drug trafficking, the court emphasised that the THC level in the items seized was very low. “Less than 0.2%. Doesn’t this affect how the prosecution approaches the freezing order?”

The inspector replied that the law doesn’t contemplate THC content.

The magistrate then asked the prosecution to identify the article of the law it was requesting the asset freeze under, noting that three different chapters of the law were specified in the request.

Tonna Lowell pointed out that the different laws have conflicting dispositions on this subject. “Besides, the proceeds from the alleged offence are small. Strasbourg has established that only proceeds emerging from the crime itself are to be subject to freezing orders.”

De Marco appealed directly to the inspector. “As a fact we are talking about less than 0.2% THC content and no psychotropic effects. My point is, do you have to request a freezing order in view of all this? We aren’t talking about a criminal here.”

“A doctor’s job is to help people,” added Tonna Lowell.

The Inspector said the prosecution wasn’t attacking the clinic operations.

This argument did not wash with the magistrate. “Look, we aren’t robots. You have discretion [to request a freezing order]. It isn’t mandatory that the prosecution request a freezing order.

If this allegation that the items contain less than 0.2% THC is true, would this lead the prosecution to consider reducing or removing the freeing order?” he asked.

De Marco also pointed out that the clinic was not run by a company, but was registered in Agius’s name. This meant that his personal assets would be frozen and not those of the company.

Superintendent Keith Arnaud, who was also present in the courtroom to assist the prosecution, argued that the freezing order was compulsory under the Dangerous Drugs Ordinance, but suggested that there could be “flexible arrangements.”

The court said it could not believe what it was hearing. “Am I hearing correctly? First we destroy a person and then try to fix him?”

“We are saying that the bud is a cannabis product,” Arnaud replied. “And we are saying that it isn’t. We are disagreeing on this,” Tonna Lowell retorted.

The court at this stage in view of the deadlock, asked for clarification as to under what law the freezing order over the man’s assets was being requested. “People, there are three conflicting laws on this… you need to identify one.”

“We are charging him under Chapter 101 (the Dangerous Drugs Ordinance). Money laundering,” Arnaud said.

“So not under Chapter 621 (The Proceeds of Crime Act)?” asked the court.

Arnaud told the court that whenever there was a freezing order under Chapter 101, Chapter 621 was also applied and didn’t change anything under the former law.

“The accused can apply to the court to vary the freezing order,” suggested Arnaud. “We had to request it due to the nature of the offences he is charged with: aggravated possession, importation and trafficking.”

The magistrate, after hearing the superintendent explain, said “this is the prosecution’s interpretation.”

Arnaud and Mallia clarified that the seizure of assets was being requested under various dispositions of the Dangerous Drugs Ordinance, the Criminal Code and the Proceeds of Crime Act.

Magistrate Axiaq, after noting that there was a conflict between these three laws, and in the circumstances of the case, refused the request for a freezing order. Instead, the court ruled that it would issue a temporary freezing order, as laid down in the Criminal Code

The case was adjourned.