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Compare with neighboring districts, Macao has a softhearted criminal policy to fight against drug trafficking crime. Face on a crisis of Macao, the region has been became a drug transit station for drug trafficking gangs to transport a large quantity of drug into China or other regions. Therefore, Macao government cannot ignore the problem and should have some changes to deter potential criminals of drug trafficking crime.
This research through comparison with criminal judgments from the four regions (China, Taiwan, Hong Kong and Macao) and discusses definition and relevant laws of drug trafficking crime between the regions. In addition, it explores the severe degree on criminal punishment (severity), response time between a suspect who was arrest and received a criminal trial result (celerity) and the imprisonment rate among the suspects (certainty) from the judgments of the regions.
The using data respectively collected from different provinces of People's Courts in China, local courts of Taiwan, District court of Hong Kong and Court of Second Instance of Macao. Each region collected 100 latest judgments by a method of nonprobability sampling. The result found that China is only second in rank to Hong Kong that has a swift time on celerity and has a highest level on certainty. In Taiwan, the region adopts a most strong attitude towards drug traffickers on severity and has a lowest degree of certainty. For Hong Kong, the region has a highest efficiency of criminal procedure, and holds a lenient attitude on severity. In Macao, the region is at middle level in general on certainty and severity, whereas holds a lowest rank in criminal processing time among the other three regions, which means Macao has to take more time in try a suspect since who arrested by police.
Macao indeed exist drawbacks in response to drug trafficking crimes, especially on the celerity section. Therefore, the research suggests some recommendations in adjusting on current categories of judiciary, legislature and administration of Macao.
Keywords: drug trafficking crime, criminal punishment, deterrence
Table of Contents
Chapter 1 - Introduction
The purpose of developed drugs is to help patients recovered from the illness or reduced pain, its existent is positive and worthwhile. However, some drugs also have a side effect, which make users in physical and psychological addiction. After a long period of drug abuse, the drugs can result users in serious damage to their bodily function, and even cause death of organ failure. For instance, heroin is an analgesic to reduce pain for people suffer in heart attack or other severe injury (B.B.C, n.d.). But the same time, a user if who injects an excessive dosage of heroin in a time, that could enough to cause the user death.
Because of some drugs have characteristics of addiction and abuse, and could harm the human body if not taking in proper use. In addition, many surveys found drug related to other crimes, especially violent crime (U.S. Department Of Justice, 1994). Due to drug can make someone's behavior irrationally, and drug user also need money to support their drug habit, at the end who might change the lifestyle to further intensified in work on manufacture or selling illegal drugs.
Based on the personal harm and regional security issues, government should regulate some individual acts with drug. Just as regions of China and Taiwan, their national laws retain the toughest measure - death penalty to punish for the people who committed crime of drug production, drug trafficking and drug smuggling (New South Wales Council for Civil Liberties [NSWCCL], 2012). Some regions due to more consideration of human rights, in balancing between retribution and humanity, as well as achieve the goal of protection for the public, most regions have abolished death penalty and amended the law with life imprisonment as their toughest punishment on serious crimes. Some regions equivalently imprison the felons, but yet remain a chance for them go out when have served a period of time in prison - fixed term sentence with parole. In general, death penalty, life sentence and fixed-term sentence are common judicial decision in deal with the felons of drug-related crimes.
The history of legislative process in Macao
Macao abolished death penalty in 1886 during the Portuguese colonial times (Yang & Wu, 1999), after that, fixed term sentence are often to apply with different sentencing range in years of severing imprisonment according to circumstance of particular crimes. The first local penal code took effect in 1996 and the law strictly stipulates the maximum of fixed-term imprisonment should not be over thirty years in whatever situation  . Therefore, base on Macao penal code and course of legal history, fixed term sentence of thirty years is the toughest measure to deal with serious offenders in Macao. Although there were many policy conflicts and disputations between lawmakers before Portugal handover of Macao to China (Lu, n.d.), whereas under the principle of "One country, two systems", Macao can still abolished death penalty after return to China.
In Macao, there is a separate criminal law to regulate the criminal offence in drug-related crimes, which is the law of No. 17/2009 "Forbidding illicit production, trafficking and consumption of narcotic and psychotropic drug", also known as drug law. It stemmed from the decree of No. 5/91/M "Criminal behaviors of trafficking and consumption of narcotic and psychotropic drug, and advocating measures to combat toxic dependence". The new law formulated because Macao was changing seriously since Macao Judiciary Police intercepted certain cases involved in a huge quantity of heroin smuggling by mean of internal concealment. Just as the annual report of Judiciary police in 2008, Judiciary police summarized their working results and indicated some criminal organizations has already taking Macao as one of drug transit station for them to transfer drugs across the city then smuggle into another region. Meanwhile, they also pointed out in 2008, the cases of internal concealment of heroin smuggling was dramatically increasing (Annual report of Macao Judiciary Police, 2008, p.18). On the other hand, in the year of 2009, the prosecutor general of Macao Ho Chio Meng pointed out the key reason for Macao become as a drug transition station because the penalty is more leniently in comparison with neighboring districts, and the drug law does not have sufficient detailing to cover all drug-related offences in current situation, for this reason, the current drug law need to revise ("Seriousness of drug", n.d.).
A few months later, the new drug law of No.17/2009 took effect since September of 2009, it changes the minimum term from eight years down to three years and the maximum term from twelve years up to fifteen years, which means the sentencing range expanded widely, let the judge has more discretionary power and flexible to make decision by circumstance of particular cases. Also, the new drug law splits the criminal act of drug manufacture and drug trafficking into two independent clauses, to raise up the minimum and maximum terms of imprisonment for committing drug manufacture offences about drug trafficking offences  . Besides of the above two aspects, the law add one clause giving police power of compulsory transfer the suspects to hospital or other facilities for examination, especially aim at the internal concealment with drug smuggling cases.
Statistic of drug trafficking cases in Macao
From the following figure displays the incidence of drug trafficking case that found by police within the recent five years. Since 2009, the cases are declining and keep stableness, does it mean the new drug law has reached a certain extent of deterrent effect?
Figure1: The incidence of drug trafficking case in Macao (2007-2011). Source from annual reports of Macao Judiciary Police in 2007-2011.
The purpose of study
The new drug law revised in 2009, the situation of drug trafficking cases seems like stableness since the year and fell slightly in 2011. But just as what the general direct of judiciary police of Macao Wong Sio Chak argued, although the drug trafficking case decreased in 2011, but Prosecution Office of Macao deals with the number of drug traffickers oppositely increased. He stressed the issue of drug trafficking has not change better, instead, there are possibility of changing worse because of Macao is being globalization and a main reason of high profits of illegal drugs towards drug trafficking gangs ("Drug scourge", 2012).
Although the law has already revised, but under Wong Sio Chak's comment, it seems as the law cannot play a role yet, or other reasons that would influence the deterrence of the crime. In addition, should Macao revise the drug law again with more harsh punishment towards drug traffickers, for intensive deterrence to them? Through comparison with neighboring districts, to further understand the effectiveness of current laws in deal with drug trafficking in Macao. It would be the purpose of this research to explore the current situation of Macao on drug trafficking crime by comparison with the four regions in the severity, celerity and certainty section.
Significance of the study
Because there are no previous studies about the situation of drug trafficking crime in Macao, therefore the research can give people a broad picture to know about the current situation of drug trafficking crime in Macao, and it may find out some drawbacks in current situation after the comparison with the other three regions. Also, aim to the drawbacks to provide some recommendations in practical measures to increase possibility for reducing the crimes happen.
Chapter 2 - Literature review
Illegal drug is a big issue influenced to the world. According to the executive summary of world drug report in 2012, there are around 1 in every 100 adults died by illegal drug use (United Nations Office on Drugs and Crime [UNODC], 2012, p.4). In addition, UNODC estimates that about US$200 billion-250 billion to support the cost of drug treatment worldwide in 2011, greatly increase a financial pressure on each region (UNODC, 2012, p.1). Therefore, avoid further deterioration to harm on the society and sustain the tremendous economic burden on drug treatment, most regions have already intensified on education and propagation about drug scourge, to reduce as much as possible the people develop psychological dependence on illegal drugs. On the other hand, global governments often change policies and strategies to fight against drug trafficking crime, effectively crack down the source of drug imported can greatly decrease harmfulness to the society as well.
Because laws have regulated some drugs or raw material on trading, which lead to illegal drug markets emerge. Some individuals or criminal organizations take advantage of this opportunity for profiteering, such as illegal drug cultivation, drug manufacture and drug selling. Although their behavior are collateral damage to the users, but it cannot tolerate for their criminal motive. The Secretary-General of the United Nations, Ban Ki-moon (2011) stated that people with drug dependence are a pathological behavior, not a crime. Only drug traffickers are the real criminals, governments should punish to their behavior. The director of China National Narcotics Control Commission, Meng Jian-zhu also stressed that China should fight determinedly against drug-related crimes, especially crack down drug sources in which is the primary task to deal with the drug problems (The Ministry of Public Security of the People's Republic of China, 2011). The vice president of Taiwan, Wu Den-yih argued drug abuse is one of the top ten of public anger, now the most urgent task is to cut off the drug sources (Epoch Times, 2010). The Commissioner for Hong Kong Narcotics, Erika Hui pointed out the Hong Kong Government has determination to fight against drug problem, and will continuous to cut off the inflow from drug sources, furthermore, the government would adopt an attitude of zero tolerance towards illegal drugs and drug traffickers (Information Services Department of the Government of the Hong Kong, 2012).
The personal opinions of above public figures may represent how the governments' attitude toward drug trafficking crime and illegal drugs. But how the governments crack down the sources of drug? For a global perspective, regions should cooperate to fight against the upstream parts of manufacture or cultivation. Nevertheless, such as Afghanistan, U.S.A. is continuously supporting the region on a rebuilding program, to help the farmers to cultivate from opium poppies into legal crops, in addition, the troops of U.S.A. set up main checkpoints in Afghanistan to intercept opium for illegal exportation. Despite U.S.A. continued help, the government of Afghanistan still cannot resolve the issue of greatly growing opium poppy because of their political and economic influences (P. Wang, 2010). Facing on deep-seated problem and uncontrollability, each region except for strengthening international cooperation on the level of fighting drug trafficking organizations, they also would set up some measures to prevent illegal drugs influx into their jurisdictions.
The law is one of measures to deter people commit a behavior prohibited by the region. For a crime of drug trafficking, due to each region has their own social context, therefore some regions adopt a policy of strike hard to deal with those drug traffickers, but some regions are more tolerance. Based on that, the next several pages will introduce the concept of drug trafficking, development of laws in the four regions (China, Taiwan, Hong Kong and Macao) and their penalties of drug trafficking crime, for further comparison among them in later chapter.
Definition of drug trafficking
Broadly, under the UNODC defines, drug trafficking relates to cultivation, manufacture, distribution and trade of illicit substances in which regulated by drug laws (UNODC, n.d.). In addition, under the third article of The United Nations Convention against illicit traffic in narcotic drugs and psychotropic substances, it clearly state drug trafficking is whoever intentionally engages in the following behaviors would count into drug trafficking:
The production, manufacture, extraction; preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of any narcotic drug or any psychotropic substance contrary to the provisions of the 1961 Convention or the 1971 Convention.
Drug trafficking also refers to another term - illegal drug trade, it means a global market involving in production, packaging, distribution, and selling of illicit psychoactive substances (New World Encyclopedia, 2009). For the narrowly interpretation in drug trafficking, it should go over the legal definitions, but there is slightly difference in definition of drug trafficking from place to place. As a result, the research will be thorough understanding how the laws depict the crime in regions of China, Taiwan, Hong Kong and Macao in further pages.
Legislative process against drug related crimes in the global context
For years, many regions are persistently against illegal drugs due to serious degree on abuse in which can derive other related crimes or domestic violence increased. On the other hand, crime patterns always change quickly in response to the attention of law enforcements, it is hard to intercept the drug trafficking crime. Therefore, law is necessary to revised frequently.
There are three main Conventions published by United Nations since 1961, they also are basis laws for the member countries to making their regional law, namely the regions cannot make the law in which conflicts with the Conventions. The three Conventions are:
Single convention on narcotic drugs (30 March 1961) (subsequently in March 1972, another protocol made supplement to the Convention)
The Convention mainly prohibits production, manufacture and supply of specific narcotic drugs or substances for purpose in reduce certain degree of user dependence. Narcotics drugs are such as cannabis, coca leaf, and opium.
Convention on psychotropic substances (21 February 1971)
The Convention enforces control on psychotropic substances in manufacture, transport, and illegal production and sale. Psychotropic substances refer to ketamine, amphetamine, methamphetamine (ice), LSD, ecstasy, etc.
United Nations Convention against illicit traffic in narcotic drugs and psychotropic substances (20 December 1988)
This Convention emerges because the above two Conventions could not control abuse of illegal drugs, resulting in a state of escalating drug trafficking activities. Base on the rampant situation, the Convention enacted and need their member countries collectively combat against drug offenses, especially uproot to drug trafficking organizations. The Convention chiefly direct to illegal drug production, distribution and trade in narcotic and psychotropic substances, and also give advices on freeze and seize drug-related assets. On the other hand, suggest an extradition treaty to transfer offends, and give advice on criminal justice procedure between contracting regions and requesting regions. In addition, urge the member countries strengthen international cooperation and training, to further effectively combat transnational drug trafficking activities.
Since 24 October, 1945, China attended as a nonvoting delegate in United Nations, and later on 25 October, 1971, China became a member region of United Nations instead of Republic of China (Taiwan), therefore, it means China has to comply with the Conventions published by United Nations since as a voting representative. Derivatively, China is a sovereign state to Hong Kong and Macao, thus the Conventions similarly can apply in the two territories.
Legal definition of drug trafficking in the four regions
Narrowly to explain the definition of drug trafficking crime, it should be in accordance to lightness and heaviness of punishment, and layout of article of law to distinguish drug trafficking crime and other drug-related crimes in each region. In Chinese criminal law, drug trafficking can define that whoever engages in smuggling, trading, transporting, manufacturing or cultivating in opium, morphine, heroin, cannabis, cocaine and other substances, raw material or drugs regulated by the State Council. In addition, the trial result would not consider the purity of drug and should punish criminals with criminal punishment no matter the quantity is more or less. In Taiwan Drug Prevention and Control Act, A person who engages in manufacture, transport, trade, cultivation in the drug of Class I to IV would sentenced with a different degree of criminal penalty. In Hong Kong, according to article 2.1 of The Dangerous Drug Ordinance, it clearly defines drug trafficking as a person imports the dangerous drugs into Hong Kong, or exported from Hong Kong, acquired, supplied, in any patterns on business or deal with. Even possess the drugs for purpose of trafficking. In Macao, in the eighth article of the law of No.2009, drug trafficking can define a behavior involving unauthorized offering, preparation in sale, sale, distribution, transfer, buy or to use any means for receiving, transport, importation, exportation, transit of controlled drugs, either drug possession. Conversely, manufacture or cultivation in controlled drugs (in the seventh article) and prepared accessories or material (in the ninth article) are not blend into criminal behaviors of drug trafficking in view of independence of the three articles, this part has a little different with the other three regions.
Compare with the four regions in sentencing criterion of drug trafficking crime, China conforms to the three classifications of drug's quantity (e.g. opium is more than 1000 grams, 200-1000 grams, less than 200 grams) and not considering the purity of drug, it is a criterion to decide the serious circumstance of a drug trafficking crime by equality of punishment. But this classification cannot use on drug trafficking crimes with heroin or ice, because the law explicitly stipulates only traffic with more than fifty grams of heroin or ice could sentenced to the most of death penalty, therefore calculation of heroin and ice trafficking are not the same with other drugs on sentencing criterion. Taiwan conforms to the four categories of drug (e.g. Class I - heroin, Class II - methamphetamine, Class III - ketamine, Class IV - nitrazepam), it considers the drug's harmfulness rather than the drug's quantity to calculate the severity of the crime. In Hong Kong, the criterion of sentencing bases on the seriousness and complexity of the crime to classify in a summary offence or indictable offence ("Summary and indictable offence", n.d.), the indictable offence could sentence to more severely penalty than summary offence relatively. In Macao, a sentencing criterion blend with quantity and categories of the drug for judges to make decision, for instance, a person traffics in Class I to III of drug, material or substance would punish to more severely than Class IV of substances, in addition, there is a daily amount of drug table to define a minor or general of drug trafficking crime. Therefore, the feature of Macao sentencing criterion in the crime contains with Taiwan and a part of Chinese characteristics.
The research now will go through histories of law and punishment from the regions of China, Taiwan, Hong Kong and Macao respectively, to further understanding their legal evolution and criminal punishment towards drug-related crimes.
In China, date back to the Emperor Yongzheng of Qing Dynasty, the first smoking ban ordinance published in 1729, which regulated residents prohibited opium sales and punished to whom violate the ordinance with a cangue penalty. After the offender put a cangue on the neck, he needed to stand in front of prison door brazenly for populace to laugh at him, through the mean of humiliation to achieve psychological penalty. The ordinance also punished to chief criminal for privately open opium den with jail penalty, for accessary criminal, suffer from rod punishment then cast out to the border area. In addition, in the Emperor Jiaqing of Qing Dynasty, first time to punish opium smokers by applied the penal ordinance of opium smoke, extend the punishable scope from the opium sales to opium smokers (H. Wang, 2008).
After the two Opium Wars, China was drubbed as a result of opium trading legalization. Until the year of 1906, the government of Qing Dynasty proposed a program of Ten-Years Anti-Opium Smoking, the movement of antidrug achieved some effect (C. G. Chu, 2000).
In April of 1935, the China National Government Military Commission issued a general order to prohibit opium smoking, and pass an ordinance of "The measure for implementation on drug control". The ordinance implemented into three-year phases, in first year of 1935, gave a chance to abusers if who could get out of drug that would be impunity, otherwise, when they found by law enforcers and who would send to mandatory drug treatment. In second year of 1936, if abusers could not withdraw, when they were found under taking drugs and would suffer five or more years severing in prison. In third year of 1937, abusers were found under was taking drug or injecting morphine, they would suffer death penalty or life sentence. This was the turning point to give a chance for drug users withdraw drug habit and give a chance for warning to the society about the crimes. In addition, lawbreakers who involves in manufacture or trafficking in hard drugs would suffer death penalty since the buffer period was over in 1937 (Information Office of Nanning City, 2009).
After the foundation of the People's Republic of China, the government published a decree of "Strict Prohibition of Opium Smoking" in 1950, it was the first law explicitly stipulate that people are not allow to manufacture, traffic and sell crude opium and illegal drugs, the lawbreaker would be punished strictly and confiscated the drugs. In addition, the decree prescribed to set up drug rehabilitation centers in some high risk areas, also provided preferential price for drug abusers in voluntary detoxification. In several years later of the decree published, China almost achieved the effect of a drug-free region ("Prohibition of Opium Smoking," 2011).
At the end of 1970s, China reformed and opening-up policy, make trading cooperation and tourism was rapid development. At the same time, because facilitation of trade or tourism also lead to drug trafficking gangs take this opportunity to move the drug into China for gain more profits, therefore economic is growing fast often will bring another hidden troubles, such as resurgence of illegal drugs. On the other hand, illegal drug use is already a serious issue worldwide, China is impossible wall itself off from the outcome of global issues. As a result, China is pointedly and continually enforce legislative works on antidrug in the afterward. There are main laws list as follows:
Laws to deal with drug-related crimes in China
Criminal Law of the People's Republic of China (ä¸å›½åˆ‘æ³•). The first criminal law of the People's Republic of China formulated by National People's Congress in 1979. The 171th article in the criminal law states to penalize the criminal act of drug production and trafficking with maximum five years imprisonment, for serious cases, sentence more than five years. Afterward in 1997, the criminal law was revised under absorbed and retained important contents from Decision on Prohibiting Drugs. The revised law mainly improved the punishment against the crime of smuggling, trafficking, transporting and manufacturing illegal drugs, in addition, further specifies types on drug-related crime. Thereafter, under the situation need, the criminal law has been revised several times until the current Eighth revised version of 2011.
Decision of the Standing Committee of the National People's Congress on the Prohibition Against Narcotic Drugs. (Decision on Prohibiting Drugs for short). (Annulment) (å…¨å›½äººæ°‘ä»£è¡¨å¤§ä¼šå¸¸åŠ¡å§”å‘˜ä¼šå…³äºŽç¦æ¯’çš„å†³å®š). Comprehensively stipulates the types of drug-related crime and the relevant punishments. For drug abusers, also formulates the punishments and set up compulsory detoxification. (The law has repealed and instead by Chinese antidrug law in June of 2008)
Antidrug Law of China (ä¸åŽäººæ°‘å…±å’Œå›½ç¦æ¯’æ³•). The law took effect in June of 2008. It mainly includes the contents of definition of illegal drugs, duties of National Narcotics Control Commission, propaganda and education on antidrug, provision of illegal drug control especially in narcotic and psychotropic substances, measures of detoxification, international cooperation, and legal liability.
Criminal penalty of drug-related crimes in China
China takes the severest measures against the criminal. Since the criminal law published in 1979, it specified 68 criminal offences would be subject to a maximum sentence of death penalty, such as crime of treason, arson, larceny, counterfeiting of national currency, homicide, trafficking in drugs and ammunition if circumstances are serious, etc. Until 2011, China in order to embody on human right protection, thus criminal law has removed 13 of nonviolent offences and retains 55 offenses with death penalty at present ("Cancel death penalty from 13 charges", 2010).
Drug-related crime is one of nonviolent offenses and with a maximum sentence of death penalty. In the seventh section of criminal law, it specifies criminal penalties in different kind of drug-related crimes. If a criminal violates in smuggling, trading, transporting or manufacturing in drugs, according to circumstances of crime, the criminal may subject to the punishment with the most of 15 years in prison, life sentence or death penalty, even concurrently be sentenced to confiscation of property. For illegal holding drugs, the criminal could be imposed on public surveillance, criminal detention, more than 7 years in prison or life sentence and concurrently be sentenced to a fine. For illegal poppy or cannabis cultivation, would be sentenced to public surveillance, criminal detention or the most of fixed term with more than 5 years in prison and concurrently be sentenced to a fine or confiscation of property. If the person voluntarily weeds the plants before harvest, the criminal behavior would be impunity. For solicit others to use or inject drugs, the criminal would be sentenced to the most of 7 years in prison and concurrently be sentenced to a fine.
Besides actus reus, the law either defines the illegal drugs. On the article 357 of criminal law, it specifies illegal drugs are opium, heroin, methamphetamine (ice), morphine, cannabis, cocaine and including some narcotics and psychotropic drugs are those has regulated by nation. In addition, on the second paragraph of same article, it has explicitly stipulated the purity of illegal drugs would not be considered in regards to circumstance of sentencing.
During the period of Japanese occupation, Japan government passed a decree of limit on opium sale in Taiwan, only the government had a monopoly in selling opium to the people while a person proved as a drug abuser. Due to Japan government deeply understand opium would bring many serious problems, but the government also did not want incite people to revolt. Therefore, the policies of opium-sale restriction and gradually prohibition on opium smoking had been adopted in the period of occupation (J. X. Wang, 2008, p.28).
After the World War II, Japan unconditionally liberated Taiwan and returned it to The Republic of China. At that time, The Republic of China resumed the sovereignty to the regions of Taiwan and the decree of restriction on opium sale replaced by the penal ordinance of Prohibiting opium-smoking and illegal drugs (ç¦çƒŸç¦æ¯’æ²»ç½ªæ¡æ¬¾) which published by The government of Republic of China in 1941. Subsequently, The Republic of China separated to the two governments since Chinese Liberation War, the Nationalist party eventually move to Taiwan and established the Nationalist government in there (J. X. Wang, 2008, pp.36-38).
At the beginning of Nationalist government, due to opium abuse was still being in flood, and also the adopted ordinance "Prohibiting opium-smoking and illegal drugs" was about to be lapsed because the sunset provision, thereby the first statue against drug related crime "Drug Control Act during the Period for Suppression of the Communist Rebellion"(æˆ¡ä¹±æ-¶æœŸè‚ƒæ¸…çƒŸæ¯’æ¡ä¾‹) was come in 1955 since the foundation of Taiwan. Later in 1992, because the period for suppression of Communist rebellion was over, and drug related crimes were still rampancy at that time. Considering the situation, the government revised the statue and took this chance concurrently to rename the law as "Drug Control Act" (è‚ƒæ¸…çƒŸæ¯’æ¡ä¾‹) (J. X. Wang, 2008, pp.39-41).
In 1993, the amphetamine and heroin widely abused in Taiwan because social order was relaxing since the period of Suppression of the Communist Rebellion was over, and also the side effect of economic rapidly development (J. S. Chu, 2006, pp.51-52). Confront the threat, Taiwan published the new drug law of "Drug Prevention and Control Act" (æ¯’å“å±å®³é˜²åˆ¶æ¡ä¾‹) since 1998 and still uses up to now.
Laws to deal with drug-related crimes in Taiwan
Drug Control Act during the Period for Suppression of the Communist Rebellion (Annulment) (æˆ¡ä¹±æ-¶æœŸè‚ƒæ¸…çƒŸæ¯’æ¡ä¾‹). This was the first act against drug-related crimes after foundation of Taiwan. Initially, the legislative purpose of the act was mainly through harsh punishment against drug trafficking offenses and forced drug users to abstain from drug dependence in exchange to effectively restrain from influences of drugs. On the other hand, explicitly sorted out the toxic smoke (çƒŸ)(referred to opium, poppy, poppy seeds, hemp smoke or relative substitutes), and the drug (æ¯’) (referred to morphine, coca, heroin or its synthetic products) in order to applied with different degrees of punishment. But eventually, the harsh penalty could not achieve the legislative purpose, drug users were still in a high level. Based on that, the act revised in 1992 with a reformation of focusing on drug addicts in rehabilitation.
Drug Prevention and Control Act (æ¯’å“å±å®³é˜²åˆ¶æ¡ä¾‹). The act was built up on the foundation of the above three Conventions from United Nations. It wiped out the classification criteria from two categories (toxic smoke and drugs) and collectively called - drug. The drug has reclassified into the three classes according to the drugs' addition, abuse and social harm. Afterwards in 2003, the act revised to increase from three classes to four classes due to some unregulated substances were widely abuse. The four classes of drug show in the following table:
Heroin, Morphine, Opium, Cocaine and their similar products
Opium Poppy, Coca, Cannabis, Amphetamine, Pethidine, Pentazocine, Methaqualone (ç™½æ¿) and their similar products
Secobarbital (çº¢ä¸), Amobarbital (é’å‘) and similar products
Allobarbital, Alprazolam and their similar products
Table1: Source from the Drug Prevention and Control Act (2003), in the second article of drug classification.
Besides of drug classification, the act is more humanity to the drug addicts than the old one. In the ninth article of Drug Control Act (1992) imposed on the maximum of death penalty to the three strikes of drug addicts, because lawmakers wanted through harsh punishment to restrain people's drug habit. But the effect was not satisfy and concurrently considered the drug users should be patients rather than offenders, thus the Drug Prevention and Control Act (1998) is more focus on how to abstain of physical and psychological addiction by the measures of observation(è§‚å¯Ÿ), observed rehabilitation(å‹’æˆ’), compulsory rehabilitation (å¼ºåˆ¶æˆ’é™¤) and exempted the death penalty to recidivists (Ministry of Justice of Taiwan, 2003). Subsequently in decade, the act revised to several times for continuously improvement in rehabilitative system.
Criminal penalty of drug-related crimes in Taiwan
As same as China, Taiwan retains death penalty towards offenders who commits the serious drug-related crime. According to the thirty-third article of Taiwan Criminal Law, death penalty is one of principle penalty applied for sentencing. At present, Taiwan still has fifty of criminal offenses can be sentenced to death penalty ("Death penalty is inhuman", 2006, p.2), for instance, such as treason, hijacking, homicide, serious drug-related offenses, etc ("Death penalty is inhuman", 2006, p.47).
For drug-related crimes, a person if violates in manufacturing, transport or trade in the drugs of Class I to Class IV would receive with the maximum sentence of death penalty, life sentence, and even concurrently be sentence to a fine. For a person who cultivates opium poppy, coca and cannabis would be sentenced to the most of life sentence and more than seven years in prison, concurrently be sentence to a fine. Even the offense has not accomplish yet, however, the person would still be punished. For use violence, coercion, beguilement or other illegal ways to push others to take drugs, the offenders would be sentenced with the most sentence of death penalty, life sentence or over ten years in prison and concurrently be sentenced to a fine. For instigators, the severest penalty is a fixed-term imprisonment between three and ten years and concurrently would be sentenced to a fine. For illegal holding drugs in Class I or Class II, the offenders would have a fixed-term imprisonment, detention and concurrently imposed a fine, in addition, for illegal holding tools or pipes use in drug of Class I and Class II, would be sentence less than one year imprisonment, detention and fine. For status offence, if a public servants use his identity to commit manufacturing, transport or trade in the drugs of Class II, the person under an aggravating circumstances would be sentence to the severest punishment of death penalty.
Incidentally, compare to China's law, the Drug Prevention and Control Act of Taiwan sets a higher degree of punishment on personal use. For the people take drugs in China, the behavior would not constitute a criminal act, but it still need to discipline by the law of the People's Republic of China on Penalties for Administration of Public Security ("Drug taking is not a crime", 2007), the violator would receive the most of ten to fifteen days of administrative detention and concurrently sentence to a fine with less than RMB 2,000  , also may divert to some facilities for compulsory detoxification. In Taiwan, the behavior of drug taking would be sentenced to the maximum punishment of five years in prison  .
Hong Kong was a colony of England under the Treaty of Nanking and Treaty of Peking in the year of 1842 and 1860. Since England defeated the government of Qing Dynasty in the first and second opium wars and the government piecewise ceded the Hong Kong islands and Kowloon peninsula to England. Afterwards in 1898, the Qing government leased New Territories to England and that time England had sovereignty of the three areas (Xinhuanet, n.d.). During the colonial period, England had successfully changed Hong Kong as main opium transit station from original countryside, because at that time, the two major sources of income for English vice-business were opium trade and slave-trafficking (Chen, n.d., p.759). That was the reason why England needed the government of Qing Dynasty to cede the territories in where near coast.
In the period of Japan occupation, Hong Kong people suffered an unprecedented mistreatment (historically known as Three years and Eight months in Hong Kong). After the Japan occupied, their militaries havocked and looted local shops, even massacred to inconformable civilians and raped women, leading to different business were closed due to financial loss or worry about suffered havoc again. Conversely, there were many vice-businesses would still survive at that time, for instance, gambling and opium-smoke (Liu, 1996).
In December of 1944, the general of Imperial Japanese Army - Hisakazu Tanaka (ç”°ä¸ä¹…ä¸€) who became the governor of Hong Kong during Japan occupation. Under the Tanaka's government, he encouraged people to run gambling business and brothels, thus Imperial Japan military could gain profits for military pay by extracting commission from the businesses. On the other hand, he incited people to take opium, and through a company named Yu Zhen (è£•ç¦Ž) which established by his military for transporting crude opium from Liaoning province into Hong Kong by plane, to bring more incomes for the military pay. Besides, he allowed civilians set up opium divans in Hong Kong and let them legitimately smoke opium after they had a license issued by Imperial Japanese military (Huaxia, 2004).
After the World War II, England successful reconquered the territory of Hong Kong from Japan. Even though England had ever passed the Dangerous Drug Ordinance in the first time of colonial period in 1936, the purpose of the ordinance was to give a power to the government in dealing with the opium problems, but after the beginning of second times of English colony, people still could buy the opium from registered pharmacies (Liu, 1996). In addition, another types of drug - heroin appeared. People found that heroin has more than 50 times of anesthetic efficacy than opium, even the price was also cheaper and the use of heroin was quite convenience (Qian, 1964, p.12). As a consequence of that, heroin became more widespread since 1950s.
As regards to the crisis, the government agencies and non-governmental organization jointly attended a seminar of drug issue in 1964. In seminar, some experts proposed to sentence the severest punishment of death penalty to the drug makers, even their family members could not take the death body back after executed. They believed that harsh punishment could effectively deter to the society rather than lock up the offender with 15 years in a comfortable prison. On the contrary, some other experts advocated legitimation of illegal drugs. They were focus on the economic angle to consider if illegal drugs became legalization, then price would be dropped substantially. On the basis of a business became unprofitably, drug trafficking crime would not survived, that was the most effective measure to fight against the crime (Hong Kong Discharged Prisoners' Aid Society, 1964, pp.5-6)
In the end of seminar, the group put forwards some suggestions to the police for giving consideration to propose an amendment. In particular for amend current penalties to be harsher to deal with drug-related crimes ("The suggestions from a seminar of drug issue", 1964, p.4).
Figure 2: Representatives of Hong Kong government and civic organizations jointly attended to a seminar in the winter of 1964, and they proposed a revised suggestion for criminal punishments to police.
Along with economic development rapidly since the past decades, many parents choose to work for improve their living condition and hope to give a better quality of live for their children's development. For this reason, their children always could not have adequate care from parents. One study which have done by The Family Council of Hong Kong and found Hong Kong youths became drug abusers, main reason is come from their unstable family, such as single parent family and parents work long hours leading to inadequate care, lack of communication or worse relationship with their children (Legislative Council Panel on Welfare Services, 2012, pp.1-2).
Facing on the problems of youth drug abuse or adult drug addicts, since 1996, the Hong Kong government established a Beat Drugs Fund and has aided financially to hundreds of government departments or organizations for their programs or facilities concerning on fight against drug abuse, such as Healthy School Program with a Drug Testing Component (HSP(DT)), Work Employment Program for Adolescent Drug Abusers, etc. The preventive and rehabilitative works have been widely recognized from local people. On the fight against drug-related crimes, Hong Kong police plays a big role and their contribution cannot be forgotten. Such as Narcotics Bureau of Hong Kong Customs respectively uncovered $600 million worth of cocaine case in September of 2011 and $760 million worth of cocaine case in July of 2012. According to international exchange of information, Hong Kong successfully intercepted the drugs to further harm on global.
Laws to deal with drug-related crimes in Hong Kong
The legal system of Hong Kong still base on Common Law after returned to China. Hong Kong mainly depends on case law for judge to make decisions, therefore differs from the Civil law regions such as China, Taiwan and Macao to depend on statutory law. Additionally, Hong Kong does not have formulated an independent core of criminal law, but rather through many ordinances to jointly regulate most of criminal offenses.
In 1965, England abolished death penalty in most of criminal offenses. Although Hong Kong was cited along with England law since the period of English colony, but at the year, Hong Kong did not follow on abolishment. The last execution with death penalty in Hong Kong was on 16 Nov, 1966, the murder committed a crime of rob and kill, and finally he was sentenced to execution by hanging (A Chronology of Correctional Services Department's Development and Penal Measures of Hong Kong, n.d.). This was the last execution and death penalty subsequently was abolished in April of 1993 (Lu, n.d.). At present, Hong Kong imposes life sentence towards offenders who committed the most of serious crimes.
The following are the main statutes to apply in drug-related crimes in Hong Kong:
The Dangerous Drug Ordinance - Chapter 134 (é¦™æ¸¯æ³•ä¾‹ç¬¬134ç« ã€Šå±é™©è¯ç‰©æ¡ä¾‹ã€‹) . The first version of ordinance took effect in 1969, at first the ordinance empowered police officers and coast guards could broad and hold a boat or plane for a search due to a great number of drugs illegally smuggled into Hong Kong at that time. Thereafter, the ordinance has been developed as a tool to fight against the most of drug-related crimes, e.g. manufacturing, possession and trafficking in dangerous drugs. On another side, the ordinance regulates authorized institutions on legitimate use, operational requirement and prescribed document format.
Drug Trafficking (Recovery of Proceeds) Ordinance - Chapter 405 (ã€Šè´©æ¯’(è¿½è®¨å¾-ç›Š)æ¡ä¾‹ã€‹). The ordinance was enacted in 1997 and formulated on the basis of United Nations Convention against illicit traffic in narcotic drugs and psychotropic substances (1988). It mainly target to drug trafficking offenses and empower the Joint Financial Intelligence Unit (JFIU) of Hong Kong to trace, freeze, confiscate and recover the proceeds in relation to drug trafficking offenses of individual or organizations, in order to prevent for further activities.
Criminal penalty of drug-related crimes in Hong Kong
Since death penalty was abolished, to the severest drug trafficking offenses would be imposed on life-sentence. For drug smuggling or drug manufacture offenses, the maximum sentence would be punished with life sentence and concurrently with a fine. For dealing and cultivation in cannabis plant and opium poppy, would be punished to the maximum sentence of fifteen years in prison and concurrently with a fine. For anyone possesses a dangerous drug, or smokes, inhales, ingests, injects the drug would be received the most penalty of seven years imprisonment and concurrently with a fine. If a person possesses an apparatus or equipment to use in smoke, inhale, ingest or inject the drug, he would be sentenced to the maximum 3 years imprisonment and with a fine.
In Drug Trafficking (Recovery of Proceeds) Ordinance, there are some behaviors also would be criminalized. Such as a person knows the proceeds that come from a drug trafficking offence and still manipulates the proceeds, he would be sentenced with the maximum of fourteen years imprisonment and concurrently with a fine.
Macao at the early stage was a small fishing village, as same as Hong Kong, Macao has a coequal on coastal advantage. In 1553, Portuguese boat requested the government of Ming Dynasty to let them docking the boat for drying goods since they met the storm in early, the official of the time agreed to the request. But the government had never thought the request would be resulted to Macao subsequently became the colony of Portuguese. In 1557, the government of the Ming Dynasty allowed Portuguese living in Macao and use Macao port as trading with attaching condition of giving tributes periodically (Ministry of Foreign Affairs of the P.R.C., n.d.).
Although the government of Qing Dynasty enacted the law in 1729 to prohibit the opium sales or smoke, nevertheless, in a highly profits from opium trading, Portuguese disregarded the law and persistently transported opium from Goa, India into Macao and later smuggle the drug in China as well. From historical record, Macao was the first transit station and distribution center for opium trading between the Western and China (Cha, 2006).
Afterwards, Portuguese and England jointed develop in opium trafficking, although the Qing Dynasty had enacted certain laws to prohibit opium for further influence to China, even threatened Portuguese in a policy of permanent closing Macao's external trading. However, due to in the late of the Qing government was being corrupt, basically they could not controlled the opium development at that time, resulting to the climate of prostitute, gambling and drug abuse could be run rampant (Cha, 2006).
After the World War II, the Portuguese-Macao government legislated a governor order (The Order of No.933) to prohibit opium for personal use in their colonies on 28 May, 1946. This is the first time to limited opium use in Macao. Later in 1965, a first rehabilitative center established to deal with voluntary and compulsory detoxification. Soon after anti-drug coordination committee also has been set up for giving strategies to the government in deal with the drug problems. Until 1991, the first law of No.5/91/M was published and formulated on the basis of the three Conventions of the United Nations. The law firstly put drug trafficking behaviors into the law for improve to fight against the offences, especially to drug organized crimes (Social Welfare Bureau of MSAR Government, n.d.).
Laws to deal with drug-related crimes in Macao
The legal framework of Macao has been used in Civil Law for many years, due to Portugal as well as a country adopted the civil law system, thus Macao has followed the system in the period of Portugal colony. After China resumes the sovereign to the Macao, because the two regions are in the same legal system, for the reasons of that Macao did not have much of an impact on the law revised or annulled within the period of the Handover Day. Besides of legal framework, there is another apparently fact to reduce as much as legal conflicts were produced. In the eighth article of Macao Basic Law explicitly stipulates if previous laws were not conflicts to the Macao Basic Law, then the laws could be able to retain. Because of this, Macao has many decrees and ordinances formulated in the period of Portuguese Macao that are still adopted at the present.
Regarding on trafficking and use in drugs of narcotics or psychotropic as criminal behavior, and the matter of advocating the anti-drug measures (The decree of No.5/91/M) (certain portions has been annulled). (å…³äºŽè´©å-åŠä½¿ç”¨éº»é†‰è¯å“åŠç²¾ç¥žç-…è¯å“è§†ä¸ºåˆ‘äº‹è¡Œä¸ºä»¥åŠæå€¡åå¸æ¯’æŽªæ-½äº‹å®œ) The decree formulated because drug-related crimes was rampantly in 1980s, there were many drug trafficking cases has uncovered by police at that time. As a consequence, the decree was enacted and primarily direct to drug trafficking crimes. On another side, it also regulates the criminal investigation and criminal procedure for law enforcements to follow, such as drugs testing and drug disposition. In addition, the decree formulated penalties towards drug users.
Forbidding illicit production, trafficking and consumption of narcotic and psychotropic drug (The law of No.17/2009, commonly known as anti-drug law) (ç¦æ¢ä¸æ³•ç”Ÿäº§ã€è´©å-å’Œå¸é£Ÿéº»é†‰è¯å“åŠç²¾ç¥žè¯ç‰©). The law inherited the essence of above decree (5/91/M), and new features of this law are embodied in the following aspects: (1)Expand the table of controlled drugs from 4 tables to 6 tables according to the United Nations Convention against illicit traffic in narcotic drugs and psychotropic substances (1988); (2)Split a single article contains two types of offence out to two separated articles  . (Violate to the principle of suiting punishment to crime(ç½ªåˆ‘ç›¸é€‚åº”åŽŸåˆ™) and the principle of explicitness.(æ˜Žç¡®æ€§åŽŸåˆ™)) (3)Add a penalty to authorized factories for exceeding against manufacture or material constraint  . (4)Revised the penalty of certain types of drug-related crime to expand the width of sentencing range, make flexible for Judge to sentence in accordance to different circumstance of cases. (5)Additional article for lesser circumstance (e.g. weight, drug types) of manufacture, trafficking and cultivation in controlled drugs, the convicts could be imposed on the minimum penalty on a fine  . (6)Enforce the power of police to compulsory bring suspects to the hospital for body examination (e.g. X-ray check) under the suspect's permission, the pretrial judge or prosecution office also can empower to the police without the permission if the suspects do not agree with  (Antidrug Reports of Social Welfare Bureau of MSAR, 2010, p.20).
Criminal penalty of drug-related crimes in Macao
Since 1870, Portuguese had been revised the penal code for abolishment of the death penalty system, and later in 1886, Macao also followed (Mi et al., 1994). Until 1996, the first internal penal code was enacted, which emphasizes Macao cannot has death penal system, either permanent or uncertainty imprisonment  . Therefore, the maximum sentence could be imposed on fixed-term sentence and the length of sentence cannot be over 30 years in all crimes  . Accordingly, fixed-term sentence is the only way can be applied in the most serious of drug trafficking crime.
For punishment, it has clearly written in the law of No.17/2009. A person engages in manufacture and cultivation of controlled drugs, would face a sentence of 5-15 years imprisonment and concurrently sentence to a fine; for drug trafficking, the person would face a sentence of 3-15 years in prison; for instigator, personal use, possessed controlled drugs or tools would face on the maximum sentence of three years imprisonment or a fine.
In summary, China retains a strictly attitude to drugs for many years. Since the period of Emperor Yongzheng, the officer usually adopted inhumane means to convicts in order to reduce people commit drug-related offense, as well as reduce other derivative illegal activities. Through the punishment of cangue penalty, the convicts stood in outside of prison door, the purpose obviously was to punish the convict by his self-accusation, but there was another purpose to use for alert other potential convicts and made clearly to the public what punishment would receive for committing that offence. Although the period of The Qing government still continuously fought drug-related crimes, but due to the late of corrupted Qing government and encountered a series of wars, opium nearly could not stopped.
Afterwards along with the four regions split respectively since the colonial period, each region was affected by the contemporary sovereignty. At the beginning of the ambition of occupants (Portugal and England) was use the coastal areas for as a transit station to promote their own trading, but in the incentive of highly opium profits, eventually evolved to serious harmfulness to China or neighboring districts because opium and heroin were greatly inflow resulting to drug users were in everywhere, at the meantime, market demand increased to boost other drug-related crimes rates relatively rose up, such as drug trafficking.
Face on the increasingly rampant drug trafficking, Chinese government is never soft-hearted to deal with drug trafficking, retains a death penalty system for the one committed a serious crimes, for instance as serious circumstance of a drug trafficking case. Taiwan as same as China retains death penalty system to deal with the serious of drug trafficking crimes, but execution rates are not that much higher than China. Hong Kong abolishes the system in 1993 and adopts a life sentence to the most serious of drug traffickers by the way of lock them up permanently to save the public. Macao is the kindest in comparison to other three regions because Macao only has the maximum penalty of fifteen years imprisonment to offenders in all kind of drug trafficking cases.
Summarize the abovementioned criminal penalties on drug-related crime among the regions and integrate in a table show as follow:
less than 5 years in prison
7 years in prison
less than 3 years in prison
more than 7 years in prison
less than 7 years in prison
less than1 year in prison
3 years in prison
confiscation of property
3 years in prison
3 - 15 years in prison
5 - 15 years in prison
more than 5 years in prison
confiscation of property
voluntary weeds, no punishment
more than 7 years in prison
15 years in prison
less than7 years in prison
less than10 years in prison
less than 3 years in prison
Table 2: Summary on criminal punishments of drug-related crime among the four regions.
How harsh the punishment should has in the situation of Macao? Compare to other regions as mentioned, Macao should be the most lenient attitude in the legal level to deal with drug traffickers. Just as the prosecutor general of Macao Ho Chio Meng claimed that Macao has to improve the current drug law for deterring those drug-trafficking crimes. Later in the end of 2009, the law has been revised and increased the maximum fixed-term from 12 years to 15 years. Whereas, compares to retentive regions of death penalty to fight against drug-trafficking crimes, e.g. China, Iran, Malaysia, Singapore (Those regions have high application of death penalty to the traffickers every year), but why the countries need to implement the severest measure to punish the drug traffickers? Does it mean a policy of "Strike hard and punish with death penalty" could deter the crimes? Or are there any other determinants can affect the crime?
For the questions, now glance at some scholars' perspective on this aspect. Chen,Ze-Xian, The vice chairman of the Criminal Jurisprudence of China Law Society, he comments death penalty is not a good measure to solve crimes. Swiftness and certainty are the main critical factors of penalty to promote the effective deterrence, other than the patterns of penalty (Yu, 2010). Another scholar specified about the purpose of law, Dr. Barry Ritholtz, a famous American author, he comments the law does not prevent crime, it just as makes people to know when commit a crime will need to pay a high cost too. Ritholtz (2012) indicates three broad reasons for the purpose of criminal law. (1) Makes clearly for public in which behaviors are accepted or unaccepted; (2) Punishes to those people violated the norms; (3) Removes danger people from the society to protect others.
Obviously, the law is a scope to distinguish what people can do and what people cannot do, in addition, give clearly understanding on what result that a person would receive a retribution after who commits a crime. On the other hand, other external determinants are more important to strengthen the deterrence.
However, there are some countries still use death penalty for deterring potential offenders, for those countries, is it mean death penalty only way prevent the crime? For this issue, now take a look how some theorists' opinions about the deterrence of death penalty in deal with serious crimes.
Rafelet, M.L., & Lacock, T.L. (2008) survey from criminologists' opinions of The American Society of Criminology, and found 88.2% of the criminologists do not believe that the death penalty is a deterrent factor to a crime, and only 2.6% of the experts believe that executing people deters others from committing crimes. Tyree, B.S. (2001) compared two states retained death penalty with another two states abolished death penalty in the United States respectively, and research was found that the two longitudinal case studies also has no significant level to prove death penalty can reduce crimes rates. In addition, Norm Stamper (2007) argued that death penalty wastes tax payers' money while the system was failing to reduce crime, because death penalty cases would involve in a long-term of appeal.
Nevertheless, although there are many surveys can prove the death penalty has no significant correlation between death penalty and crime reduction, but according to opinion polls in some regions, their people are strongly favor to retain the death penalty to serious crime. In Taiwan, a report of opinion polls from The Ministry of Justice of Taiwan in 2008 show that nearest 80% of Taiwanese disagree to abolish death penalty, even change death penalty to life sentence without parole to be the maximum sentence only has 56% of favorability rating (Ministry of Justice of Taiwan, 2008). In Japan, there are 73.8% of people in favor of retaining death penalty (Death Penalty Information Center, 2010).
In terms of death penalty to use in serious drug trafficking crime, Yuan and Wang (2010) argued that drug trafficking crimes is whether use death penalty or not, firstly to consider two factors: equivalence standard and necessity standard. Equivalence standard means implement death penalty only in an equivalent situation of a criminal deprived other people's rights or interests (just as human life), it must be equivalence and balance between crime and punishment, so that execution of death penalty is rationality and legitimacy. Necessity standard means implement death penalty can reach the goal of prevent crime. Although execute death penalty to a person certainly can reach to specific prevention (stop to recidivate), but on the principle of utilitarianism, if executed a person but could not reach to deter potential criminals, then death penalty is not necessity, because it would not reach to the goal of general deterrence. The two scholars believe drug trafficking crime should not be applied on death penalty, because nature of the crime is non-violent and its characteristic