Drugs | Does consignment count as drug trafficking?-

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Drugs | Does consignment count as drug trafficking?

代購毒品、販賣毒品、轉讓毒品

A social media influencer involved in drug trafficking became viral on the news networks. Xiao De, who already had a drug addiction and was bored at home due to unemployment, started thinking about drugs again. To avoid police detection, Xiao De suddenly thought of his good friend Xiao Shuai, who seemed to have a secret way to get Mary Jane (a euphemism for cannabis). He asked Xiao Shuai to buy 1g for him, planning to roll two joints to get high. However, after the transaction with his supplier, Xiao Shuai was immediately caught by the police, who accused him of drug trafficking. Xiao Shuai felt he was just helping a friend and repeatedly claimed he was innocent!

Selling Drugs vs Transferring Drugs

"Selling drugs" and "transferring drugs" might seem similar in everyday understanding, but legally, they are fundamentally different, especially in terms of the severity of criminal responsibility. What exactly are the differences and distinctions between selling and transferring drugs? Here's a breakdown:

	Selling Drugs	Transferring Drugs
Narcotics Hazard Prevention Act	Article 5	Article 8
Criminal Liability	According to different drug classifications: Class 1 Drugs: Death penalty or life imprisonment; those sentenced to life imprisonment may also be fined up to 30 million New Taiwan Dollars. Class 2 Drugs: Life imprisonment or imprisonment for 10 years or more, may also be fined up to 15 million New Taiwan Dollars. Class 3 Drugs: Imprisonment for more than 7 years, may also be fined up to 10 million New Taiwan Dollars. Class 4 Drugs: Imprisonment for 5 to 12 years, may also be fined up to 5 million New Taiwan Dollars.	According to different drug classifications: Class 1 Drugs: Imprisonment for more than 1 year and less than 7 years, may also be fined up to 1 million New Taiwan Dollars. Class 2 Drugs: Imprisonment for more than 6 months and less than 5 years, may also be fined up to 700,000 New Taiwan Dollars. Class 3 Drugs: Imprisonment for up to 3 years, may also be fined up to 300,000 New Taiwan Dollars. Class 4 Drugs: Imprisonment for up to 1 year, may also be fined up to 100,000 New Taiwan Dollars.
Elements	Objective Selling Behavior Subjective Profit Motive	"Gratuitous" transfer to another person or "not for profit" compensated transfer.
Relevant Case References	Famous eSports Player Selling Class 2 Drugs Case - Criminal Judgment No. 575 of the Year 112 Appeal	Transferring Drugs vs Selling Drugs - Supreme Court Case No. 1506 of the Year 109

Does Drug Procurement Count as Selling or Transferring? Case Analysis

In practice, the definition of drug transfer is often considered as the gratuitous provision of drugs to another person for use, regardless of whether the provider actively offers or passively delivers the drugs, it is considered a form of transfer. The Supreme Court's definition of drug trafficking considers it a paid transfer, including monetary transactions and bartering (i.e., swapping goods). As long as the actor has a 'profit motive' subjectively and objectively agrees to exchange drugs for money or goods, regardless of whether a profit is actually made (even if sold at a loss), it counts as selling.

As mentioned, transferring drugs refers to the act of providing drugs without charge, which is different from selling drugs for profit or monetary gain. If a court determines that Xiao Shuai’s act of procuring cannabis for a friend constitutes transferring drugs, the penalty is imprisonment for 6 months to 5 years. However, if deemed drug trafficking, it could result in life imprisonment or a minimum of 10 years, showing a significant difference in penalties.

In judicial practice, there have been cases procurement was judged as transferring drugs because the procurer had no subjective profit motive (refer to Supreme Court Case No. 7328 of 2010). However, in most situations, due to inappropriate responses during police investigations, possibly due to lack of legal representation or investigative pressure, the court might conclude there was a 'profit motive', establishing a case of drug trafficking. Additionally, proving a profit motive, a subjective element, is challenging and controversial in law, with varying interpretations and precedents. Therefore, it's advisable for people in such situations to consult a professional lawyer for comprehensive handling and protection of their rights.

Q&A

Q：Is there a chance of probation for accidentally ingesting or trying drugs for the first time?

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Q：If caught selling drugs, will I be off the hook if I reveal the drug supplier?

A：Article 17, Paragraph 1 of the Narcotics Hazard Prevention Act states, "Penalties may be reduced or exempted for those who provide information about the source of drugs, leading to the arrest of other principal offenders or accomplices." The legislative intent is to encourage defendants or criminal suspects to concretely provide information about their drug supply chain, to expand the investigation of drug sources, effectively cut off the supply of drugs, and prevent the proliferation of drugs. The term "resulting in the arrest" refers to the authority of the investigative agencies, while the determination of the "veracity" of such arrests falls within the jurisdiction of the court, which should conduct the final review and decide on its authenticity. If the defendant's provided information about the drug source is irrelevant to the case in question, or if the crime investigation agency deems it to lack evidentiary value and thus fails to make a definite arrest, the court may still decide not to reduce or exempt their sentence.

Reference：毒品危害防制條例Narcotics Hazard Prevention Act

[Continue reading：How many years will I be sentenced for drug trafficking?]

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