No. 75 Coffee 丨 unveiled the "synthetic cannabinoids"

Legal Salon

content

Table of contents for this issue

I. Difficulties in determining suspected "synthetic cannabinoids" drug crimes are clarified

Second, the dilemma of "synthetic cannabinoids" forensic identification

III. Clarify the standards for sentencing norms for new drug crimes

Fourth, optimize the prevention path of new drug crimes

The convener of this issue is Lu Hao

Deputy Chief Procurator of the Jing'an District Procuratorate

According to the definition of the United Nations Office on Drugs and Crime, synthetic cannabinoids refer to agonists of synthetic endocannabinoids CB1 and CB2 receptors, which are wide-ranging, chemically diverse, bind to cannabinoid receptors, have a natural cannabinoid-like effect, and belong to new psychoactive substances. On May 11, 2021, the Ministry of Public Security, the National Health Commission, and the State Drug Administration jointly issued the Announcement on Listing 18 Substances, Including Synthetic Cannabinoids and Fluoroamines in the Supplementary Catalogue of Controlled Varieties of Non-medicinal Narcotic Drugs and Psychotropic Substances, and decided to formally list the entire category of synthetic cannabinoids as new psychoactive substances, which will be implemented from July 1, 2021. Judging from the drug cases handled by procuratorial organs in recent years, the proportion of new drug cases has been rising, because the subjective intentions of the perpetrators are difficult to determine, there are technical barriers in judicial appraisal, the evidence and sentencing standards have not yet been unified, there are practical dilemmas in the handling of such cases, and it is imperative to solve the difficult problems of such new drug crime cases.

Subjective knowledge is a necessary element of the crime of drug crimes, which is divided into definite knowledge and presumptive knowledge. When the criminal suspect firmly denies or refuses to open his mouth, and objective evidence is difficult to collect, the presumption as an "alternative judicial proof method" is introduced into the subjective knowledge of drug crimes. Paragraph 8 of Article 1 of the Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards for Filing and Prosecuting Criminal Cases Under the Jurisdiction of Public Security Organs (III) (hereinafter referred to as the "Provisions") clarifies that ten abnormal circumstances of conduct can be presumed that the perpetrator is subjectively aware. However, with the proliferation of new drugs, how to presume the subjective intentions of the perpetrators according to the new situation, I would like to hear the views of various experts.

Daniel Zhang

Professor of East China University of Political Science and Law

In the judicial practice of drug crimes, the presumption of subjective knowledge of drug crimes is mainly based on the basic factual provisions listed in the norms, and most normative documents, including the Provisions, mention the bottom-up clause that "there is other evidence sufficient to prove that the perpetrator should know". In this regard, I believe that the subjective knowledge of the presumption of criminal suspects should meet certain criteria in order to standardize their application. First, it is necessary to consolidate the basic facts to the greatest extent and make them close to the objective truth. It encourages the conclusion of presumptions based on a number of basic facts, ensures that the presumptions are as close as possible to or even equal to the basic facts, and at the same time uses "sure and sufficient" evidence to prove them, and in order to ensure the certainty of the conclusion, "secondary presumptions", that is, the presumption facts cannot be used as the basic facts for re-presumption. Second, it is necessary to strictly grasp the application of the comprehensive case situation and central and local regulations, and ensure a high degree of certainty of the normal connection between the basic facts and the presumptive facts. The basic factual acts contained in certain provisions, such as "hiding drugs in the body or in close-fitting secret places", "handing over items in a highly concealed manner", "abandoning objects when subject to inspection" and "fleeing away when subject to inspection", as enumerated in the 2007 Opinions of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on Several Issues Concerning the Application of Law in the Handling of Drug Crime Cases, have a high probability of pointing to the perpetrator's subjective knowledge of drugs, but if they only meet the conditions of "seizing drugs in vehicles and residences under the actual control of the perpetrator", it is obviously not highly obvious and cannot be directly presumed. Third, the perpetrator's proof of proof that he or she did not know can be forcefully refuted, thereby eliminating reasonable doubt.

Deputy Director Ji

Shanghai Municipal Public Security Bureau Anti-Narcotics Division

From the perspective of evidence collection in public security investigations, to infer subjective knowledge, the first is to check the electronic devices of the perpetrators, such as whether they have ever inquired about the management of synthetic cannabinoids on electronic browsers such as Baidu and Google, including harmfulness, etc. If there is such preparatory work, the perpetrator should at least know that synthetic cannabinoids have been listed since July 1, and it can be presumed that they know that they are drugs. The second is to identify the means and methods of transactions, including logistics, capital flow, etc. The flow of funds depends on whether it is transferred through Alipay, WeChat, or through a more profitable network virtual currency that is not used in normal transactions; logistics depends on whether it is a commonly used express logistics that requires security inspection, or a flash delivery in the same city that is not supervised by the State Postal Administration and does not require open inspection. The third is to pay attention to the exchange of communication software, normal communication and chat use WeChat and other mass software, if you use a specific niche software communication, you have to put a question mark on the subjective intention.

Jin Ye

Procurator of Shanghai Municipal Procuratorate

In the determination of new drug crimes, whether the suspect knows that the items involved in the case are drugs is a difficult point in proving. In my opinion, if the perpetrator meets both aspects of cognition, he can be considered to be knowingly a drug. First, knowing that the items involved in the case are items controlled by the state, for example, knowing that the items involved in the case are prescription drugs and cannot circulate normally in the market, it means that the substance is under control. Second, it is known that the items involved in the case have excitatory, inhibiting, and hallucinogenic effects on the human body, that is, they belong to narcotic psychotropic drugs, for example, in the process of selling, talking to others about the effects of the items sold to help sleep, concentration, and prevent dozing, it can be said that the seller knows that the substance has a stimulating effect on the mental aspect. Psychotropic substances and narcotic drugs controlled by the State are the definition of drugs in mainland law, so the perpetrator knows the above two elements and can think that he knows that the items involved in the case are drugs. It should be noted that "knowingly being a drug" does not require the perpetrator to know which drug belongs to the national drug list, because the drug is not determined to be a drug because of its name, but because it is poisonous and legally controlled, so as long as the perpetrator has knowledge of these two aspects, he can be determined to be known to be a drug. In 2021, the Supreme People's Procuratorate issued one of the "Typical Cases of Procuratorial Organs Punishing New Drug Crimes According to Law", Wang Moumou's Drug Trafficking and Manufacturing Case 1, has relevant expressions.

Synthetic cannabinoids begin to be regulated on July 1, 2021, in other words, this time node is the starting point of the time for synthetic cannabinoids as drug control. Some perpetrators even argue that before (synthetic cannabinoids have not been used as the object of management) for selling e-cigarettes containing synthetic cannabinoids, they have been investigated and punished by the public security organs for selling e-cigarettes containing synthetic cannabinoids, but in the end they have not been subject to criminal or administrative punishment, and now it is impossible to know that synthetic cannabinoids are drugs. Can such an argument by the perpetrator be a ground for criminal obstruction? Or can it be defended based on a wrong understanding of illegality?

Since drug offences are statutory offenders, this justification of the perpetrator should be based on the individual cognitive capacity of the perpetrator and take into account the cognitive ability of the average person in society, ensuring rationality and operability, and also taking into account the principle of responsibility and the objectives of criminal policy. Specifically: First, the knowledge of legal norms, whether the cognition conflicts with social norms. The second is to raise the possibility of personal awareness according to the actor's engagement in different industries and fields. Third, although it has not been punished by the administrative organs, it does not mean that it is ignorant, and the perpetrator should be sensitive. Fourth, it is necessary to fulfill the "legal loyalty obligation" to society and meet the "legal loyalty requirements" of society to the perpetrators. In addition, compared to traditional drugs such as cannabis and heroin, the composition and content of new drugs such as "synthetic cannabinoids" are uncertain. "Knowing drugs" does not require recognition of the specific circumstances of drugs, such as the type, weight, and content of drugs. The perpetrator's misunderstanding of the specific circumstances of the drug, such as the type, weight and content of drugs, is a legal error of understanding, does not affect the existence of criminal intent, and does not involve the issue of crime and non-crime. The social harmfulness of criminal acts exists objectively, and the perpetrator's understanding of the equivalent punishment does not change the social harmfulness of the act, nor does it affect the form of the crime, so it does not affect the criminal responsibility that the perpetrator should bear.

Roll open the volume

Vice President of Pudong New Area Court

A new type of drug crime is a crime premised on violating relevant administrative regulations, and whether the perpetrator can be treated as a criminal offense is preferred by the individual to refer to the time of management. Before the control, the public's cognition of new drugs such as synthetic cannabinoids was vague and uncertain, and they did not have the possibility of illegal understanding that they were already suspected of new drug crimes, and it was inevitable that the harsh punishment would be too harsh at this time. Social harm is the minimum standard for the judgment of illegality awareness, and only when the perpetrator realizes that his behavior has social harmfulness, can he make a judgment of illegality awareness. We can usually make a correct evaluation of the wrong understanding of the illegality of the actor through the "three constants" judgment of common sense, common sense, and common sense, based on whether the actor has the objective conditions for understanding the law and whether he has made efforts to identify relevant legal norms.

The whole class of synthetic cannabinoids is listed as a drug from July 1, 2021. However, before that, in May 2021, the National Narcotics Control Office held a press conference to announce the regulations on listing, and all mainstream media concentrated on publicizing and reporting, with the purpose of making the law clear and rapidly increasing the society's awareness of the newly listed substances. In this context, the perpetrator's justification of not knowing that synthetic cannabinoids were drugs after 1 July is pale. For ordinary actors with a general level of understanding, there is no error in legal understanding, and it cannot be used only to excuse them but bear criminal responsibility. In addition, from the actual situation of administrative law enforcement and criminal justice in this city, many suspects have been educated and dealt with by the public security organs for their involvement in synthetic cannabinoids before July 1, and when they commit relevant acts again, they have a clear understanding of the serious illegality of synthetic cannabinoids, knowing that they are illegal and deliberately committing them, repeatedly teaching and not changing, and should be severely punished in accordance with the published legal provisions.

Because synthetic cannabinoids usually exist in the form of electronic cigarette oil, in judicial practice, it often occurs that the drug is lost due to the completion of drug consumption by the drug buyer or other circumstances, if the physical drug involved in the case is not found in the case, what standards of evidence need to be met? How to determine that the perpetrator constitutes a corresponding crime by constructing a chain of evidence?

Since the listing of synthetic cannabinoids on July 1, 2021, among the dozens of related cases accepted by the city's public security organs, Jing'an has handled a quarter of the cases, almost all of which are electronic cigarette oil, and electronic cigarette oil is characterized by fast smoking and rapid disappearance, which does make it difficult to investigate and collect evidence. From the perspective of public security investigation, if the physical evidence involved in the case is lost, I think it is possible to collect evidence and consolidate evidence from the following two aspects: First, it is determined by the model of the same batch of canned products. Find the place of shipment of the synthetic cannabinoid involved in the case, such as the criminal suspect's residence or warehouse, and lock other physical evidence that is the same as the outer packaging model of the synthetic cannabinoid involved in the case for fixed evidence collection. The second is to look for other physical evidence that has not yet been smoked, and it is possible to check the source of the same batch of drugs, but it is a side confirmation.

When the physical evidence of synthetic cannabinoids is destroyed or lost, other evidence may have the following three situations: First, when the upper and lower families of drug trafficking have made confessions of guilt, and the verbal evidence of the transaction process and the appearance of the electronic cigarette oil involved in the case is consistent, and there is evidence that the electronic cigarette oil involved in the case has a stimulating effect on the spirit, it is mainly proved that the electronic cigarette oil does contain synthetic cannabinoids, and the facts of the crime can be found to be established. Second, if the upper family confesses to drug trafficking and the next family does not admit to purchasing drugs, it is necessary to obtain objective evidence such as the content of the chat records of the two parties, transaction records, express logistics information, and the test results of toxic substances in the lower home as a user for analysis, if the objective evidence is sufficient and there is no contradiction with the testimony of the upper family, the facts of the crime can be determined. Third, if the upper family does not confess to drug trafficking and the next family admits to drug purchase, in addition to collecting objective evidence in the second case, it should be carefully examined, pay attention to the unreasonable points, eliminate doubts, and avoid fraudulent behavior by the upper family with false truth, or the family's intention to frame the stolen goods.

There are many types of synthetic cannabinoids and these substances are often packaged in various forms, sold under the names of "small branches", "electronic cigarette oil", "Natasha", etc., the main abuse method is soluble in electronic cigarette oil and sprayed on the surface of plants such as tobacco and petals, or mixed with other drugs such as ketamine and marijuana. In judicial practice, the identification of synthetic cannabinoids has always been a difficult problem, and it may be that the perpetrator smokes one type of synthetic cannabinoids, but detects another type of synthetic cannabinoids, or cannot detect them at all, and asks experts to put forward opinions from the appraisal aspect to provide ideas for handling the case.

Liu wei

Director of the Forensic Warfare Office of the Academy of Forensic Sciences

At present, the detection of synthetic cannabinoids is facing great challenges: First, due to the implementation of synthetic cannabinoids is a whole class of management, there is no limited epitaxiality in terms of species, at present, there are more than 300 kinds of synthetic cannabinoids in the world, in fact, the types are increasing every year, and the changes are very fast, the prevalence is very strong, and there are differences in time and region. Second, toxicological detection lags behind, the structure of synthetic cannabinoids is very different, each contains different chemical properties, personalized is obvious, coupled with the detection of drugs in the body is far more difficult than the detection of in vitro drugs such as cigarette oil, tobacco, powder, etc., it is necessary to see one, study one, judge one, and establish a detection method. Third, there is a lack of testing standards, and the main materials for the detection of poisons in the body are urine and hair, both of which can only see the recent stage of smoking. Whether synthetic cannabinoids are easy to enter the hair is also unknown. Other sellers and smokers mostly use terms such as "small branches" and "happy water", but the actual ingredients are very different from the "label name", which increases the difficulty of detection. I think that in terms of response: First, we must expand our horizons from a technical point of view and carry out advanced research. The detection target can be found in the case or in the outside report, and the research accumulation can be increased, and the "library" of the standard product is increased, and the unknown is solved with the known. The second is to do in vitro research first, and then do in vivo research. The popular thing on the market is that we do in vitro specimens, and then study its transformation in vivo to determine the target that should be detected, so as to string together the identification. Third, there is a scientific explanation for the difference between the detected substance and the captured substance, and the ingredient detected in the hair corresponds to the substance that is repeatedly, repeatedly, and frequently used in the body, so there may be a difference in the composition of the poison seized by chance.

Since the identification of synthetic cannabinoids does not have a corresponding standard as a reference, its specific properties cannot be confirmed either through analysis by physical and chemical analysis instruments such as gas chromatographs or through comparisons through the current relatively lagging database. It is recommended that research institutions or experts entrusting psychotropic substances to conduct appraisals, sort out and summarize the new drugs that have already been identified, and gradually form a database of new drugs. At the same time, it is also necessary for relevant departments to update the list of new drugs in a timely manner, shorten the time difference between the listing of new drugs and the update of the list of new drugs, and leave no legal gaps for cracking down on new drug violations and crimes.

The sentencing of a new type of drug offense requires that the drug be converted into the corresponding heroin or methamphetamine before it can be convicted and sentenced in accordance with the provisions of the law and the sentencing rules. However, due to the fact that synthetic cannabinoids have just been listed, the National Narcotics Control Commission has only issued relevant conversion standards for 10 of them, and the conversion standards for the remaining types of synthetic cannabinoids have not yet been clarified. During the blank period of the conversion standard, how to grasp the sentencing standard?

Although the amount of "quantity" is the most important decisive element in the conviction and sentencing of drug crimes, the quantity of drugs is not an absolute and only measure, and it is also necessary to refer to factors such as the number of sales by the perpetrators, the size of the sales scope, the breadth of the sales group, and other factors, comprehensively consider the harm of drug trafficking, and then convict and sentence them. For example, although the synthetic cannabinoid content in e-cigarettes is small, the harm may be great; for example, the perpetrator has sold many times, the sales area is relatively wide, or it is specifically for groups such as teenagers, and the harm is even more self-evident.

Regarding the determination of the quantity of drugs, there are currently two main paths: one is that the criminal law and judicial interpretations have clear quantitative provisions, which are directly determined in accordance with the provisions of the law; the other is to convert it into a corresponding amount of heroin or methamphetamine according to its dependence according to the illegal substance conversion table. Synthetic cannabinoids are newly listed substances, and there are many varieties, and the dependence between varieties varies greatly. The difference between the highest and lowest synthetic cannabinoid dependence of the 10 synthetic cannabinoids that have been identified is 140 times, and it is impossible to estimate the dependence of more than 100 synthetic cannabinoids. In my opinion, the SPC's Minutes of the National Forum on the Trial of Drug Crimes in Courts (Law [2015] No. 129) may give a solution, which gives the "Expert Consultation Law", the "Market Equivalent Price Measurement Method" and the "Low Law" methods for determining the quantity of drugs that are not directly stipulated by law and not included in the illegal substance conversion table. Combined with the dilemma of synthetic cannabinoid dependence detection and identification just mentioned, and the fact that too many types of synthetic cannabinoids have not yet formed a relatively stable market circulation price, from the perspective of criminal justice modesty, I personally believe that it is more appropriate to use the quantity of cannabis oil as the quantity identification standard of other synthetic cannabinoids whose dependence is unknown.

For psychotropic substances and narcotic drugs that have not yet been clearly stipulated in the criminal law and judicial interpretations controlled by the state, in accordance with the provisions of the SPC's Minutes of the Symposium on the Trial of Drug Crime Cases in Some Courts Across the Country (Law [2008] No. 324), the relevant professional departments shall determine the toxic effect of the drugs involved in the case, the number of toxic components, and the degree of dependence of drug addicts on the drugs, and fully consider their addictiveness, withdrawal, and social harm. In view of the fact that the current conversion conditions are not yet complete, the identification technology is lagging behind and other practical factors, in order to prevent the occurrence of abnormally light or heavy sentences, I personally believe that it is urgent to clarify a principled sentencing standard and make general provisions on the conviction and sentencing of synthetic cannabinoid crimes. When encountering new types of cases, on the premise that the harm is not great, combined with the consideration of the proportionality of criminal responsibility and punishment, it is recommended that lenient treatment be given. Specifically, synthetic cannabinoids that are as toxic as cannabis oil can be sentenced with reference to the quantitative standards of cannabis oil in the relevant regulations.

At present, in judicial practice, the actor often sells synthetic cannabinoids to multiple people, but usually the content of each sale is very small, if the number of sales by the actor is higher than three times, but the synthetic cannabinoid content of the product sold each time is very small, is it in line with the situation of "multiple sales to others"?

If the number of sales by the perpetrator reaches more than three times, then the objective form requirements are in line with the "serious circumstances". However, in terms of the number of times alone, rationality and persuasiveness are not strong enough, and further substantive judgments are needed, that is, the sales volume, the number of sales and the results caused are necessary to determine whether to impose a penalty of more than three years on the perpetrator. One of the situations is that although the actor has sold to others many times, the sales object has always been the same person, and the scope of sales at this time is only an individual, and it is debatable whether the degree of harm of this repeated sale to others can be evaluated as "serious circumstances".

The mainland has always maintained a high-pressure posture in cracking down on drug crimes, and the legal benefits of cracking down on drug crimes are not only the right to health of citizens, but also the maintenance of the state management system and social public order. If the perpetrators sell drugs multiple times, even if the amount of each sale is not large, but in fact there is a risk that the drugs can spread on a larger scale and expose more people to drugs, it is obviously more harmful than a single drug trafficking. Therefore, from the perspective of legislative purposes, as long as the perpetrator has committed drug trafficking more than three times, there is no need to consider the quantity of drugs, that is, it meets the criteria of "serious circumstances" for repeated drug trafficking, and should be sentenced to fixed-term imprisonment of more than three years in accordance with law, which is in line with the principle of proportionality between crime and punishment. If the perpetrator has mitigating circumstances such as voluntary surrender, return of illegal gains, or meritorious service, a lenient punishment may be given in accordance with law after a comprehensive assessment.

On this issue, I have some differences in views with Prosecutor Jin Ye. Sold more than three times, in fact, it is a bottom rule for ordinary forms. Although the number of sales by the perpetrator is more than three times, if the amount of each sale is very small, the "serious circumstances" provided for in the fourth paragraph of article 347 of the Criminal Law are still used as a heavier punishment at this time, which may lead to excessive crackdown. I think it is still necessary to synthesize verbal evidence such as the confession of the perpetrator and the testimony of witnesses and the written evidence such as appraisal results, payment vouchers, and mailing logistics to corroborate each other, and then make a reasonable evaluation of whether it is necessary to sentence for more than three years.

To prevent and combat the elimination of new types of drug crimes, we must not only rely on the aftermath, but also on how to prevent them. As a member of the Anti-Narcotics Committee, how can procuratorial organs further extend their procuratorial functions, innovate work ideas, and do a good job in preventing new types of drug crimes while handling cases?

To do a good job in preventing new drug crimes, I think it is necessary to start from the following aspects: First, improve the standards for the conviction and sentencing of new drug crimes. To have laws to follow and to draw a clear line between legality, illegality and crime, that is, to facilitate citizens' prevention. The second is to improve the new drug listing system. In terms of the scope of control, new psychoactive substances can be established interim control measures for new types of drugs that have not yet been listed as objects of supervision; The third is to pay attention to the efficiency and effectiveness of new drug crime prevention education. Broaden the scope of publicity, for specialized new drugs, for specific groups of people, the implementation of accurate education and publicity; relying on the characteristics of the Internet geometric dissemination, at a lower cost to achieve the best publicity effect; cooperation with traditional media, recording special programs to combat new drug crimes, and put on the network platform, increase exposure; combined with various government departments, social groups, social enterprises, to organize various types of activities to prevent new drug crimes, such as network video, anti-drug salon, etc., to organize the strength of the whole society, integrate the resources of the whole society, Continuously transmit the knowledge of prevention education to the masses of society.

In the prevention of new drug crimes, procuratorial organs can focus on the following three aspects: First, expand the scope of education and publicity. In addition to strengthening the publicity of prohibiting the manufacture, trafficking, smuggling, transportation of drugs and other sources and upstream crimes, it is also necessary to pay attention to the downstream groups of drug crime chains such as addicts, publicize to them the carrier forms of new drugs such as synthetic cannabinoids and their harmfulness, and form large-scale and powerful publicity through channels such as procurators entering the community and vice presidents of the rule of law entering the campus, so as to control the new drug consumer groups, especially to eliminate the curiosity of young people about new drugs, and start from effectively reducing demand to shrink the new drug market transactions. Thus curbing upstream drug crime. The second is to increase the supervision of the delivery logistics industry. Extend the legal supervision of procuratorial organs and the tentacles of participation in comprehensive governance, and urge relevant departments to strengthen dual supervision of the Internet and the Internet of Things. The third is to make full use of "big data" technology to punish and prevent drug crimes. The Public Prosecutor's Office Law should share and exchange data and information on drug-related violations and crimes, dig deep into clues to illegal crimes, carry out a full-chain crackdown on drug-related crimes, make every effort to recover drug funds and poisons, thoroughly clear the proceeds of crime, and have a deterrent and warning effect on drug-related acts.

Procuratorial organs to do a good job in the prevention of new drug crimes, I think we can start from two aspects: First, make full use of the functional advantages of case handling, adopt the method of synchronous online and offline publicity of typical cases, so that the perpetrators can have a sense of the new drugs sold or smoked when browsing the web, so that they can subjectively have a understanding of the state control provisions of a certain type of new drugs, and strengthen the source prevention of new drugs to a certain extent through judicial deterrence. Second, through handling all kinds of drug crime cases, sorting out and summarizing new situations and new problems, extending the effectiveness of judicial case handling, effectively coordinating with other anti-narcotics functional departments, and actively participating in the comprehensive management of anti-narcotics such as anti-narcotics law enforcement, key rectification, legal popularization, and prevention education, we will effectively dismantle the foundation of drug-related crimes and build a solid anti-drug defense line for the whole people.

Today's experts focused on the subjective identification, judicial appraisal, construction of evidence chain, and sentencing standards of synthetic cannabinoid new drug crimes, conducted in-depth discussions on difficult issues in practice, and also put forward valuable opinions on how to extend the procuratorial function to do a good job in publicizing the prevention of new drugs, which is of great guiding significance! Eradicate drugs, always on the road! Procuratorial organs will further give full play to their procuratorial functions, focus on improving the quality and effectiveness of cracking down on new drug crimes, and help build a rule-of-law society and a safe Shanghai.

Relevant provisions

Criminal Law of the People's Republic of China

Article 347:Whoever smuggles, sells, transports or manufactures narcotics, regardless of the quantity, shall be investigated for criminal responsibility and given a criminal punishment.

Whoever smuggles, sells, transports or manufactures narcotics in any of the following circumstances shall be sentenced to fixed-term imprisonment of 15 years, life imprisonment or the death penalty, and shall also be sentenced to confiscation of property:

(1) Smuggling, selling, transporting, or manufacturing more than 1 kilogram of opium, 50 grams or more of heroin or methamphetamine, or other drugs in large quantities;

(2) The ringleaders of a smuggling, trafficking, transporting, or manufacturing drug syndicate;

(3) Armed cover for smuggling, trafficking, transportation, or manufacture of narcotics;

(4) Resisting inspection, detention, or arrest with violence, where the circumstances are serious;

(5) Participating in organized international drug trafficking activities.

Whoever smuggles, sells, transports or manufactures opium of more than 200 grams and less than 1 kilogram, heroin or methamphetamine with a maximum of 10 grams but not more than 50 grams of other drugs in large quantities shall be sentenced to fixed-term imprisonment of not less than seven years and shall also be fined.

Whoever smuggles, sells, transports or manufactures less than 200 grams of opium, heroin or methamphetamine less than 10 grams or other small quantities of drugs shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance and shall also be fined;

Where a unit commits the crimes mentioned in the second, third, or fourth paragraphs, it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be punished in accordance with the provisions of each paragraph.

Whoever uses or instigates minors to smuggle, sell, transport, or manufacture narcotics, or sells narcotics to minors, shall be given a heavier punishment.

Where drugs are smuggled, trafficked, transported or manufactured multiple times and are not treated, the quantity of drugs is cumulatively calculated.

Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on Standards for Filing and Prosecuting Criminal Cases under the Jurisdiction of Public Security Organs (III)

"Knowingly knowing" in the subjective intent of smuggling, trafficking, or transporting narcotics refers to the act of smuggling, trafficking, or transporting narcotics that the perpetrator knows or should have known that he is committing. In any of the following circumstances, combined with the perpetrator's confession and other evidence, a comprehensive review and judgment may be made to determine that the perpetrator "should have known", except where there is evidence that clearly he was deceived:

(1) When law enforcement personnel inspect ports, airports, stations, ports, post offices, and other inspection stations, they require the perpetrator to declare the items they carry, transport, or send, and other suspected narcotics, and inform them of their legal responsibility, but the perpetrator fails to truthfully declare and finds drugs in the items he carries, transports, or delivers;

(2) Using false reports, concealment, disguise, or other hoodwinked means to evade customs, border defense, or other such inspections, and seizing narcotics in the items they carry, transport, or send;

(3) When law enforcement personnel are inspecting, they have conduct such as fleeing, discarding their belongings, or evading or resisting inspections, and drugs are seized in the items they carry, conceal, or discard;

(4) Hiding drugs in the body or in a secret place close to the body;

(5) Carrying, transporting, delivering, or collecting items for others in order to obtain unusually high or unequal remuneration, and seizing narcotics from them;

(6) Using highly concealed methods to carry or transport items, from which drugs are seized;

(7) Using highly concealed methods to hand over items, clearly violating the usual handover methods of lawful items, and seizing drugs from them;

(8) Deliberately bypassing the inspection site on the itinerary route, and seizing drugs in the items they carry or transport;

(9) Using false identities, addresses, or other false methods to handle formalities for consignment or delivery, and seizing narcotics in items consigned or delivered;

(10) There is other evidence sufficient to prove that the perpetrator should know.

Opinions of the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security on Several Issues Concerning the Application of Law in Handling Drug Crime Cases

II. Issues concerning the determination of the subjective knowledge of drug suspects or defendants

"Knowing" in subjective intent to smuggle, sell, transport, or illegally possess drugs refers to the act in which the perpetrator knows or should have known that the act was committed as an act of smuggling, trafficking, transporting, or illegal possession of drugs. In any of the following circumstances, and the criminal suspect or defendant is unable to make a reasonable explanation, it may be determined that he "should have known", except where there is evidence that clearly he has been deceived:

(1) When law enforcement personnel inspect ports, airports, stations, ports, and other checkpoints, they require the perpetrator to declare items and other suspected narcotics carried for others, and inform them of their legal responsibility, but the perpetrator fails to truthfully declare and seizes drugs in the items he is carrying;

(2) Using false reports, concealment, disguise, or other hoodwinked means to evade customs, border guards, or other such inspections, and seizing narcotics in the items they carry, transport, or mail;

(3) When law enforcement personnel are inspecting, they have conduct such as fleeing, discarding their belongings, or evading or resisting inspections, and drugs are seized in the items they carry or discard;

(4) Hiding drugs in the body;

(5) Carrying or transporting narcotics for the purpose of obtaining unusually high or unequal remuneration;

(6) Using highly concealed methods to carry or transport narcotics;

(7) Employing highly concealed methods to hand over drugs, clearly violating the usual method of handing over lawful items;

(8) Other evidence sufficient to prove that the perpetrator should have known.

Minutes of the National Symposium on the Trial of Drug Crime Cases by Some Courts of the Supreme People's Court

V. Drug content identification and handling of mixed and new types of drug cases

In view of the continuous emergence of a large number of adulterated drugs and new types of drugs with complex compositions, in order to ensure that the crimes and punishments are equal, the punishment should be deserved, the quality of trials in drug cases is guaranteed, and the current conditions and status quo of drug appraisals are taken into account, drug content appraisals should be made in accordance with the Opinions on Several Issues Concerning the Application of Law in Handling Drug Crime Cases promulgated by the Supreme People's Court, the Supreme People's Procuratorate, and the Ministry of Public Security in December 2007 Where the drugs involved in the case may be adulterated in large quantities or are new types of drugs with complex compositions, an assessment of the drug content shall also be made.

For drug mixtures containing more than two drug components, further composition identification should be carried out to determine the different drug components and proportions contained. For drugs containing heroin or methamphetamine, heroin and methamphetamine should be used to determine their drug types; if heroin or methamphetamine is not contained, the types of drugs involved in the case should be determined by the more toxic drug components; if the toxicity is comparable or it is difficult to determine the amount of toxicity, the drug types should be determined by the drug components with a larger proportion of them, and the composition, content and quantity of other drugs involved in the whole case should be comprehensively considered when sentencing. For drugs that have already provided for sentencing quantity standards in the Criminal Law, judicial interpretations, etc., criminal punishments are to be applied in accordance with the provisions of the Criminal Law, judicial interpretations, etc.; for drugs that do not provide for sentencing quantity standards such as criminal laws and judicial interpretations, and are conditionally converted to heroin, the criminal punishment shall be applied with reference to the "Illegal Drug Conversion Table" formulated by the State Food and Drug Administration, and after converting it into heroin.

Where the Criminal Law, judicial interpretations, and so forth have not yet clearly provided for sentencing standards for psychotropic substances and narcotic drugs controlled by the State, nor do they have the conditions for conversion, the relevant professional departments shall determine the size of the drug's toxic effect, the number of toxic ingredients, and the degree of drug addicts' dependence on the drug, comprehensively considering their addictiveness, withdrawal, social harm, and so forth, and sentencing in accordance with law. Where conditions cannot be determined due to restrictions, reference may be made to the price factors of the illegal drug trade involved in the case, and the applicable punishment may be decided on the defendant, but it is generally not appropriate to impose the death penalty for immediate execution.

Minutes of the National Forum on the Trial of Drug Crimes in Courts of the Supreme People's Court

(3) Issues in determining the quantity of drugs

Where two or more drugs are smuggled, trafficked, transported, manufactured or illegally possessed, the amount of heroin in different types of drugs may be converted into the amount of heroin, and the total amount of drugs accumulated after conversion may be used as the basis for sentencing. Drugs that clearly stipulate the standard for the number of convictions and sentences in criminal laws, judicial interpretations, or other normative documents shall be calculated and accumulated in accordance with the ratio of the drugs to the standards for the number of convictions and sentences for heroin. The Criminal Law, judicial interpretations and other normative documents do not stipulate the standard for the number of convictions and sentences, but the Illegal Drug Conversion Table stipulates that drugs with heroin conversion ratios can be accumulated after conversion to heroin in accordance with the Illegal Drug Conversion Table. For drugs that do not stipulate the standard for the number of convictions and sentences, nor do they have the conditions for conversion, comprehensively consider their addictiveness, social harm, quantity, purity and other factors to be sentenced in accordance with law. In judgment documents, the types and quantities of drugs involved in the case shall be objectively stated, and comprehensively determined to be large quantities, large quantities, or small amounts of drugs, etc., and the total amount of drugs accumulated after converting different types of drugs is not clearly stated.

For mixed drugs such as methamphetamine tablets (commonly known as "Magu", etc.) and MDMA tablets (commonly known as "ecstasy"), the number of drugs can be calculated based on the number of drug particles proved by the evidence in the case and the average weight of the same kind of drugs seized in this case or in this region. In judgment documents, the number of drug particles determined on the basis of the evidence in the case shall be objectively stated.

Drug traffickers who have drug abuse circumstances should generally determine the number of drugs they sell according to the number of drugs they purchase, and consider the circumstances of their drug use as appropriate when sentencing;

In handling drug crime cases, regardless of the purity of drugs, the quantity of drugs verified as true shall generally be identified as the number of drug crimes, and the applicable statutory range of sentences shall be determined on the basis of this, except where judicial interpretations provide otherwise or where the conventional form of drugs is temporarily changed for the purpose of concealed transportation. Where the purity of the drugs involved in the case is significantly lower than the normal purity of the same type of drugs, discretionary consideration may be given when sentencing.

In cases of drug manufacturing, the quantity of finished and semi-finished drugs shall be fully identified as the quantity of manufactured drugs, and the waste liquid and waste materials that can no longer be processed into finished or semi-finished products should not be counted in the quantity of manufactured drugs. The determination of waste liquids and waste materials may be based on the content and appearance of their drug ingredients, combined with the defendant's confession in the process of drug production and other evidence, and when necessary, the opinions of the appraisal body may be heard.

Related cases

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Case: Wang Moumou trafficked and manufactured drugs

("One of the Typical Cases of Procuratorial Organs Punishing New Drug Crimes According to Law")

In July 2013, defendant Wang X registered and established a trading company and served as the legal representative. Since 2016, Wang Moumou has purchased γ-butyrolactone in the name of the company for many times, and mixed it with flavor to make a mixed liquid "flavor CD123". Later, a food company in Guangdong was entrusted to paste the label of "fruit flavor and flavor CD123" for "flavor CD123", and "flavor CD123" was sent to a food and beverage company in Zhongshan, Guangdong Province, designated by it through logistics, and processed into "Kawa" beverages in accordance with the formula and technical standards provided by Wang Moumou. Wang Moumou sold "Kawa" drinks to entertainment venues in many places through a liquor company in Sichuan, the general distributor. Up to the occurrence of the case, a total of 52,355 pieces of "kawa" drinks were sold, with a sales amount of more than 11.58 million yuan. On September 9, 2017, the public security organs arrested Wang Moumou at his home. After identification, both "flavor CD123" and "kawa" drinks were detected γ-hydroxybutyric acid components. The case was prosecuted by the procuratorate, and the court sentenced Wang to 15 years' imprisonment for the crime of drug trafficking and manufacturing, and confiscated 4.27 million yuan of personal property, and confiscated the two properties seized in the case and the illegal gains, proceeds and fruits of more than 6.43 million yuan in accordance with the law.

Manuscript: Jing'an District Procuratorate Wang Jia

Putuo District Procuratorate Zhang Chuhao