Hong Kong has heavy prison sentences for drug trafficking, which both the government and judiciary say are necessary to provide a deterrent as well as to punish.

But do these long sentences really work, and are they fair? Are the police and customs going after the easy-to-catch drug minnows and ignoring the sharks?

In a 2018 study, former deputy director of prosecutions John Reading S.C. examined the prison terms handed out here for trafficking 1kg of methamphetamine, or ice, compared to 18 other jurisdictions around the world. He found that in terms of sentence starting point, sentence after pleading guilty and likely period actually served, Hong Kong had the longest terms compared to virtually all the other places studied.

For example, in H.K. the starting point for sentencing was 22 years. In Canada it was 10 years, while in Iceland it was just around two years. So people caught selling drugs here are being sent to prison for a very long time.

Do these long sentences have an effect? Are they justifiable? Many of those caught bringing drugs in from overseas are poor, and have been pressured by gang bosses. They are not big players, just desperate, and receive little money in comparison to the value of drugs they are carrying. Local couriers are often themselves addicts, making money to feed their habit.

Nonetheless many argue the long sentences are needed to deter others. But various studies have shown that they simply do not work. According to the International Drugs Policy Consortium, an umbrella group of about 170 charity organizations, a study carried out in Portugal in the 1990s “showed that imposing heavy sentences on mules has little deterrent impact as criminal organizations can easily replace them and bear the economic costs. Moreover, imposing heavy sentences does not address the desperate poverty and lack of socio-economic opportunities which motivate people to become mules.”

A report by the New South Wales Law Reform Commission in Australia said: “There is substantial research that shows general deterrence does not work, and that higher penalties do not serve as a disincentive to crime. Recent research conducted by the Victorian Sentencing Advisory Council found that: ‘The evidence from empirical studies suggests that the threat of imprisonment generates a small general deterrent effect. However, the research also indicates that increases in the severity of penalties, such as increasing the length of imprisonment, do not produce a corresponding increase in the general deterrent effect’.”

Reading’s study showed that from 2012 to 2015, there was little change in the number of drug convictions here. He said: “This suggests that the heavy sentences imposed for the offence in Hong Kong have not resulted in a significant reduction in drug trafficking cases over those years.”

He told me: “The vast majority of traffickers are couriers (or mules). Very few organizers or syndicate heads are ever arrested and that is because that is what the criminal organization intends.” He said that in a 2018 ruling, “the court of appeal made it clear that the tariffs apply to mules, and anyone more heavily involved should receive an even heavier sentence.”

In his study, Reading also said there is a disproportionality in sentencing: “Foreign traffickers are more heavily penalized than local traffickers ... the Court of Appeal has determined that those who bring drugs into H.K. should receive an enhancement of sentence for that fact, as an additional deterrent and that is why foreign traffickers generally receive heavier sentences.”

He added that another reason is that many overseas traffickers tend to plead not guilty – possibly because they do not understand the implications, one of which is the loss of up to a one-third reduction in sentence for admitting guilt.

Unfortunately, judges have little leeway in drugs case sentencing, which follows a formula based on longer or shorter tariffs for aggravating or mitigating factors. Father John Wotherspoon, a prison chaplain here, runs a program getting offenders to write letters to the media in their home countries to spread the word that taking drugs into Hong Kong is a very bad idea. He also travels to drug hotspots himself to try to warn potential mules of the consequences they face, and has built up a significant amount of evidence against possible “mule recruiters”.

He said: “My special concern is that that H.K. Customs and police do not go after the big fish. Not only my concern. Many judges have expressed the same concern.”

In one example, Father Wotherspoon pointed to a 2014 case in which High Court Judge Kevin Zervos sentenced a 28-year old for 14 years for smuggling 1kg of cocaine into H.K. via Peru and Brazil. In his judgement, Zervos criticized customs officers for failing to ask for any personal information or background from the defendant, and making no contact with their counterparts in the two South American countries.

He said: “Far greater effort should be made in the investigation of these cases to identify the ringleaders and organizers … Dealing with the offenders who bring the drugs into Hong Kong is one solitary aspect of the problem and goes nowhere near to striking at the heart of it.”

So even High Court judges are unhappy with the way things stand. For me, one of the main issues remains fairness. Is it reasonable to sentence a vulnerable, poor young single mother from Africa to ten or more years in prison here for smuggling? Someone who may well be unaware of the consequences of her actions? She was probably targeted by her “bosses” precisely because she is ignorant, poor – and expendable. Unlike other crimes here, personal circumstances for traffickers are of little significance when it comes to mitigation.

But there is also another side to this equation. Let’s say she was caught bringing cocaine into the city. Where does the demand come from? It’s from the thousands of affluent weekend party-goers at Hong Kong’s nightspots, most of whom will get a relative slap on the wrist if they get caught with the drug.

(Alex Price is a journalist who has lived and worked in Hong Kong for over 30 years.)

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