OFFENCES RELATED TO DANGEROUS DRUGS

Trafficking in dangerous drugs

I. Trafficking in dangerous drugs

A. What constitutes "dangerous drugs"?

Dangerous drugs refer to any of the drugs or substances specified in Part I of the First Schedule to the Dangerous Drugs Ordinance (Cap. 134). By the Dangerous Drugs Ordinance (Amendment of First Schedule) Order 2022 made by the Chief Executive:

9 additional substances (such as brorphine and MDMB-4en-PINACA) were added to the list as from 16 December 2022;
Cannabidiol (CBD) which comes from cannabis plants was added to the list as from 1 February 2023.

B. What is "trafficking in dangerous drugs"?

Trafficking in dangerous drugs is a serious offence in Hong Kong.

Three offences related to trafficking in dangerous drugs are:

The defendant’s knowledge and/or participation in trafficking is proved by different forms of evidence. The most usual form of evidence is the defendant’s own admission. Furthermore, the prosecution may also rely on a number of statutory presumptions to prove knowledge and participation.

1. Proof of knowledge and participation

It is an element of the offence of trafficking in a dangerous drug that the defendant must have knowledge that a dangerous drug is being trafficked in. The prosecution is not required to prove that the defendant knows the specific type of dangerous drug being trafficked in.

The standard is subjective, i.e. he must personally know that the drug in question was present. This can be proved by evidence with the assistance of some statutory presumptions under s.47 of the Dangerous Drugs Ordinance (Cap. 134):

A. Physical possession of a drug

A person who is proved or presumed to have possessed a dangerous drug is presumed to have known about the dangerous nature of the drug, until proven otherwise (s.47(2)).

B. Physical possession of a container

A person who is proved to have physically possessed anything containing or supporting a dangerous drug is presumed to have possessed that drug, until proven otherwise (s.47(1)(a)).

Where a person is handed a container without knowing or suspecting that it contains a dangerous drug, and before he had time to examine the contents he threw it away, he could not be said to be in possession of the dangerous drugs in the container.

C. Physical possession of the keys of any baggage, briefcase, etc.

A person who is proved to have physically possessed the keys of any baggage, briefcase, box, case, cupboard, drawer, safe-deposit box, safe or other similar container containing a dangerous drug is presumed to have possessed that drug, until proven otherwise (s.47(1)(b)).

A storeroom is not a “container” for the purpose of this presumption. If the dangerous drugs were found in a locked box in a locked lorry, the presumption does not apply if the defendant only had the keys to the lorry but not the box.

These presumptions have been interpreted by the Court of Final Appeal by remedial interpretation to mean that the defendant only has an “evidential burden”: once the defendant adduced some evidence to the contrary, the burden of proof would be reverted back to the Prosecution to prove the matter presumed beyond reasonable doubt.

There is no presumption of intention to traffic, meaning there is no presumption that once possession is proved, presumption of trafficking existed.

C. What are the possible punishments?

Given the seriousness of the offence, trafficking offences are mostly punished by immediate imprisonment. The Courts have prescribed a number of sentencing guidelines for trafficking offences involving different types of dangerous drugs.

Penalty

The maximum penalty for trafficking in a dangerous drug is life imprisonment and a fine of HK$5,000,000 on indictment or 3 years’ imprisonment and a fine of HK$500,000 on summary conviction (s.4(3)).

Sentencing principles

The Court of Appeal has recently laid down a six-step approach to sentencing in trafficking cases:

To identify the relevant guidelines band applicable to the quantity concerned.
To assess the defendant’s role and culpability based upon the evidence.
To identify where in the relevant band the defendant came, bearing in mind that it might be necessary to go outside that band whether above or below, given the circumstances of the offence and the role of the defendant.
Consideration of aggravating factors which might justify enhancement of the starting point.
Consideration of mitigating factors when assessing the overall discount from the notional sentence bearing in mind that personal circumstances would generally count for little.
To observe the overall sentence passed to ensure that it was fair, just and balanced.

Sentencing guidelines

Trafficking in dangerous drugs are most usually punished by immediate imprisonment. The Court of Appeal has prescribed sentencing guidelines on the starting point that should be adopted based on the quantity of different kinds of dangerous drugs:

A. Trafficking in cannabis

B. Trafficking in cocaine

C. Trafficking in ecstasy (methylenedioxy methamphetamine or MDMA)

D. Trafficking in heroin

E. Trafficking in ICE (methamphetamine hydrochloride)

F. Trafficking ketamine

G. Trafficking in methaqualone and diazepam

H. Trafficking in midazolam

I. Trafficking in N,N – dimethylamphetamine (NNDMA)

J. Trafficking in opium

That said, the starting point derived from these guidelines do come with discretion.

1. What is the sentencing approach if the defendant traffics in more than 1 type of dangerous drug?

If a defendant is convicted of trafficking of more than 1 type of dangerous drugs, he can be sentenced by the “individual approach”, i.e. by adding up the different lengths of imprisonment for each individual drug. This approach can create unfairness and/or overly lengthy sentences. The Court more often adopts the “combined approach”, i.e. to calculate the applicable sentence for the more serious or most serious drug, and then increase the sentence by taking into account the quantities of other less serious drugs. However, it must also be noted that trafficking in a variety of drugs is a serious aggravating factor justifying an enhanced sentence.

2. Do the same sentencing guidelines apply to an offence of trafficking in a purported dangerous drug?

No. The maximum penalty for trafficking in a purported dangerous drug is lower: 7 year’s imprisonment and a fine of HK$500,000 on indictment or 1 year’s imprisonment and a fine of HK$100,000 on summary conviction (s.4A(3)). The sentencing guidelines do not apply. However, the maximum penalty still indicates that the legislature intended this offence to be a serious one warranting immediate imprisonment.

3. Will the Court adjust the starting point downward if part of the dangerous drugs is intended for self-consumption?

The Court would adjust the sentence downward if a significant proportion of the drugs is for the person’s own consumption and not intended for trafficking. The customary discount in this condition is likely between 10% and 25%. Generally, it is not necessary for the Court to specify the relative amounts or proportions of the drugs for self-consumption save in very broad terms.

However, the Court of Appeal has emphasised that a bare assertion is insufficient. The defendant must provide some reliable material or evidence to establish to the Court’s satisfaction that part of the dangerous drugs is intended for self-consumption. In some cases, the sentencing judge will require the defendant to testify under oath to support the assertion.

4. Which sentencing guideline will apply if I believed I was trafficking in a less potent dangerous drug, not the one in fact trafficked?

The Court may take this into account. However, the Court would still first consider the sentencing guidelines for the dangerous drugs actually trafficked and determine the starting point accordingly, and then apply a discount for the genuine mistaken belief held by the defendant.

If the defendant did not take any actual concern for the type of drug being trafficked, there is no discount.

5. What are some aggravating factors and mitigating factors that would lead to adjustment from the starting point derived from the sentencing guidelines?

The Court may adjust the sentence upward if there is/are one or more of the following aggravating factors:

S.56A expressly provides that the Court may impose a more severe sentence if there is information proving that the offence involves a minor (i.e. a child below the age of 18). Lack of knowledge of the age of the minor is not a reason not to enhance the sentence;
Previous similar convictions;
Offences with an international/cross-border element (e.g. importation and exportation);
The defendant being an asylum seeker;
Use of minor to traffic in dangerous drugs; and
Use of social media, such as: Instagram, for distribution.

The Court of Appeal has repeatedly emphasised that personal circumstances generally count for very little as a mitigating factor. However, the Court would still consider all the mitigating factors in arriving in an overall discount given to a defendant in sentencing, including:

Part of the dangerous drugs were for self-consumption;
The defendant genuinely believed he was trafficking in a less potent dangerous drugs, not the one he actually trafficked;
Extreme youth;
Useful assistance to the authority (It used to be considered that a discount will only be given if the assistance provides tangible results such as successful prosecution of other perpetrators or the recovery of a large portion of the proceeds; however, in 2016, the Court of Appealhas extended the sentencing discount to defendants who provide information which could potentially assist or had actually assisted the authorities); and
Participating in the Father Wotherspoon’s programme to discourage Tanzanians from drug trafficking (Subject to the absolute discretion of the sentencing judge, a discount of no more than 3 months is warranted for this mitigating factor).

A. Trafficking in cannabis

Sentencing guidelines for trafficking in cannabis (herbal cannabis or cannabis resin):

under 2,000 gm	up to 16 months’ imprisonment
2,000 to 3,000 gm	16 to 24 months’ imprisonment
3,000 to 6,000 gm	24 to 36 months’ imprisonment
6,000 to 9,000 gm	36 to 48 months’ imprisonment
9,000 to 15,000 gm	48 to 66 months’ imprisonment
15,000 to 45,000 gm	66 to 96 months’ imprisonment
45,000 to 90,000 gm	96 to 120 months’ imprisonment
over 90,000 gm	120 months’ imprisonment upwards

In the case of cannabis oil, the Court may take into account its more damaging effect and adjust sentence upward.

1. Trafficking

Meaning of “trafficking”:

“trafficking (販運), in relation to a dangerous drug, includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, or possessing the dangerous drug for the purpose of trafficking, and traffic in a dangerous drug (販運危險藥物) shall be construed accordingly” (s.2)

Trafficking in “purported dangerous drug” is also an offence, even if the substance involved is not actually a dangerous drug. In other words, if the substance is represented or held out by the defendant to be a dangerous drug, he/she can still be convicted.

i. Meaning of “importing”

Importing means to bring or cause to be brought into Hong Kong by land, air or water (s.2). This would include the situation where a person enters into Hong Kong with a dangerous drug for his self-consumption. A licence is required for dangerous drugs to be imported into Hong Kong.

ii. Meaning of “exporting”

Exporting means to take or cause to be taken out of Hong Kong by land, air or water (s.2). This also includes the situation where a person leaves Hong Kong with a dangerous drug for his self-consumption. A licence is required for exporting dangerous drugs out of Hong Kong (s.12).

iii. Meaning of “procuring”

Procuring means to acquire the drugs for a purpose other than personal consumption, such as offering them to another or using them in the manufacture of a variant of the drugs.

iv. Meaning of “supplying”

Supplying means the transfer of physical control of the dangerous drugs from one person to another for the purposes of the recipient. This includes distributing dangerous drugs to others. Furthermore, the offence of trafficking does not require proof of payment or reward to the persons supplying the dangerous drugs.

v. Meaning of “dealing in or with”

Not all possession of a dangerous drug amounts to “dealing in or with” it. It all depends on the act of dealing and the purpose or use involved. One must have regard to the circumstances and other factors such as intent, use, and purpose of carrying the dangerous drug.

To illustrate, storage for subsequent disposal is usually considered as “dealing in or with” the drug because it is a common part of the exercise of drug trafficking. However, the mere fact of storage, or storage for future own consumption are unlikely to be considered as “dealing in or with” the drugs because these acts do not involve trafficking.

vi. Meaning of “possessing…for the purpose of trafficking”

Prior to 1991, the legislation presumed that a defendant in possession of more than a certain quantity of dangerous drugs did so for the purpose of trafficking. This has already been repealed as from 8 June 1991. Now, the prosecution is required to prove both physical control of the dangerous drugs (i.e. possession) as well as that the defendant did so for the purpose of trafficking.

2. Offering to traffic

It is also an offence itself to offer to traffic in dangerous drugs, even if there is no actual trafficking carried out. The offence of offering is complete when the offer to traffic is made and regardless of whether the defendant intended to complete the transaction.

Similarly, even if the substance involved is not in fact a dangerous drug, a defendant can still be convicted if he offered to traffic in (i) a substance he believed to be a dangerous drug, or (ii) a substance he represented or held out to be a dangerous drug.

3. Doing or offering to do an act preparatory to or for the purpose of trafficking

An act preparatory to or for the purpose of trafficking is also an offence. There is some overlap between this offence and the offence of trafficking (in the sense of “dealing in or with” drugs). For example, storing a dangerous drug for the purpose of delivering them at a later stage may be prosecuted by either offences.

However, there are other acts which more specifically fall under this offence. Examples are: (1) bringing a chemical usually used as a diluting agent of a dangerous drug (e.g. Ice) but the chemical is not in itself a dangerous drug, and (2) introducing a drug dealer to someone who wants to buy drugs.

Similarly, even if the substance involved is not in fact a dangerous drug, a defendant can still be convicted if he does or offers to do an act preparatory to or for the purpose of trafficking in (i) a substance he believed to be a dangerous drug, or (ii) a substance he represented or held out to be a dangerous drug.

B. Trafficking in cocaine

Sentencing guidelines for trafficking in cocaine:

up to 10 gm	2 to 5 years’ imprisonment
10 to 50 gm	5 to 8 years’ imprisonment
50 to 200 gm	8 to 12 years’ imprisonment
200 to 400 gm	12 to 15 years’ imprisonment
400 to 600 gm	15 to 20 years’ imprisonment
600 to 1,200 gm	20 to 23 years’ imprisonment
1,200 to 4,000 gm	23 to 26 years’ imprisonment
4,000 to 15,000 gm	26 to 30 years’ imprisonment
over 15,000 gm	at the sentencer’s discretion

C. Trafficking in ecstasy (methylenedioxy methamphetamine or MDMA)

Sentencing guidelines for trafficking in ecstasy:

up to 1 gm	at the sentencer’s discretion
1 to 10 gm	2 to 4 years’ imprisonment
10 to 50 gm	4 to 6 years’ imprisonment
50 to 300 gm	6 to 9 years’ imprisonment
300 to 600 gm	9 to 12 years’ imprisonment
600 to 1,000 gm	12 to 14 years’ imprisonment
over 1,000 gm	14 years’ imprisonment upwards

D. Trafficking in heroin

Sentencing guidelines for trafficking in heroin:

up to 10 gm	2 to 5 years’ imprisonment
10 to 50 gm	5 to 8 years’ imprisonment
50 to 200 gm	8 to 12 years’ imprisonment
200 to 400 gm	12 to 15 years’ imprisonment
400 to 600 gm	15 to 20 years’ imprisonment
600 to 1,200 gm	20 to 23 years’ imprisonment
1,200 to 4,000 gm	23 to 26 years’ imprisonment
4,000 to 15,000 gm	26 to 30 years’ imprisonment
over 15,000 gm	at the sentencer’s discretion

E. Trafficking in ICE (methamphetamine hydrochloride)

Sentencing guidelines for trafficking in ICE:

up to 10 gm	3 to 7 years’ imprisonment
10 to 70 gm	7 to 11 years’ imprisonment
70 to 300 gm	11 to 15 years’ imprisonment
300 to 600 gm	15 to 20 years’ imprisonment
600 to 1,200 gm	20 to 23 years’ imprisonment
1,200 to 4,000 gm	23 to 26 years’ imprisonment
4,000 to 15,000 gm	26 to 30 years’ imprisonment
over 15,000 gm	at the sentencer’s discretion

F. Trafficking in ketamine

Sentencing guidelines for trafficking in ketamine:

up to 1 gm	at the sentencer’s discretion
over 1 gm to 10 gm	2 to 4 years’ imprisonment
10 to 50 gm	4 to 6 years’ imprisonment
50 to 300 gm	6 to 9 years’ imprisonment
300 to 600 gm	9 to 12 years’ imprisonment
600 to 1,000 gm	12 to 14 years’ imprisonment
over 1,000 gm	14 years’ imprisonment upwards
	Enhancement of sentences (trafficking in ketamine across the border of Hong Kong)
up to 500 gm	up to 6 months’ imprisonment
500 to 1,000 gm	6 months to 1 year’s imprisonment
1,000 to 3,000 gm	1 to 2 years’ imprisonment
over 3,000 gm	2 years’ imprisonment

G. Trafficking in methaqualone and diazepam

Sentencing guidelines for trafficking in methaqualone powder:

under 500 gm	at the sentencer’s discretion
500 to 1,000 gm	6 to 12 months’ imprisonment
1,000 to 2,000 gm	12 to 24 months’ imprisonment
2,000 to 3,000 gm	2 to 3 years’ imprisonment
3,000 to 6,000 gm	3 to 4.5 years’ imprisonment
6,000 to 9,000 gm	4.5 years’ imprisonment
over 9,000 gm	6 years’ imprisonment upwards

Sentencing guidelines for trafficking in methaqualone tablets:

up to 2,000 tablets	at the sentencer’s discretion
2,000 to 4,000 tablets	6 to 12 months’ imprisonment
4,000 to 8,000 tablets	12 to 24 months’ imprisonment
8,000 to 12,000 tablets	2 to 3 years’ imprisonment
12,000 to 36,000 tablets	3 to 4.5 years’ imprisonment
over 36,000 tablets	6 years’ imprisonment upwards

There are no prescribed guidelines for diazepam, but the Court had imposed a sentence of roughly two-thirds of the sentence of a corresponding quantity of methaqualone for the same amount of diazepam.

H. Trafficking in midazolam

Sentencing guidelines for trafficking in midazolam powder:

under 500 gm	at the sentencer’s discretion
500 to 1,000 gm	6 to 12 months’ imprisonment
1,000 to 2,000 gm	12 to 24 months’ imprisonment
2,000 to 3,000 gm	2 to 3 years’ imprisonment
3,000 to 6,000 gm	3 to 4.5 years’ imprisonment
6,000 to 9,000 gm	4.5 years’ imprisonment
over 9,000 gm	6 years’ imprisonment upwards

Sentencing guidelines for trafficking in midazolam tablets:

up to 2,000 tablets	at the sentencer’s discretion
2,000 to 4,000 tablets	6 to 12 months’ imprisonment
4,000 to 8,000 tablets	12 to 24 months’ imprisonment
8,000 to 12,000 tablets	2 to 3 years’ imprisonment
12,000 to 36,000 tablets	3 to 4.5 years’ imprisonment
over 36,000 tablets	6 years’ imprisonment upwards

I. Trafficking in N,N – dimethylamphetamine (NNDMA)

Sentencing guidelines for trafficking in N,N – dimethylamphetamine (NNDMA):

up to 10 gm	3 to 7 years’ imprisonment
10 to 70 gm	7 to 11 years’ imprisonment
70 to 300 gm	11 to 15 years’ imprisonment
300 to 600 gm	15 to 20 years’ imprisonment
600 to 1,200 gm	20 to 23 years’ imprisonment
1,200 to 4,000 gm	23 to 26 years’ imprisonment
4,000 to 15,000 gm	26 to 30 years’ imprisonment
over 15,000 gm	at the sentencer’s discretion

There is an appropriate adjustment on account of the difference in potency of the drugs.

J. Trafficking in opium

Sentencing guidelines for trafficking in opium:

below 500 gm	at the sentencer’s discretion
500 to 1,000 gm	6 to 12 months’ imprisonment
1,000 to 2,000 gm	12 months to 2 years’ imprisonment
2,000 to 3,000 gm	2 to 3 years’ imprisonment
over 3,000 gm	3 years’ imprisonment upwards