1. Trafficking

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.