Karen A Joe-Laidler, Kate Lowe, Simon NM Young and Tin H Cheung
Hong Kong Law Journal, Vol. 53, Part 3 of 2023, pp.913 - 939
Abstract: Drug exchanges are often embedded in non-commercially oriented, informal arrangements among social networks. Such exchanges are based on a social supply paradigm where reciprocity and sharing are integral to obtaining and consuming drugs. This raises questions as to how the justice system responds to this type of engagement with the market. While some countries have accommodated to the realities of social supply with a comparatively lenient approach, others have taken a different route. We examine Hong Kong’s legal response to the emergence of social supply in the context of its common law system and prohibitionist drug policies. We draw on 96 legal cases involving social trafficking. In keeping with the common law system, Hong Kong courts draw on UK cases in considering social trafficking, but diverge in its rationale, finding that “trafficking is trafficking”. As such, the courts have not viewed social trafficking as a mitigating factor as elsewhere, but it has also not been seen as an aggravating factor. Our Analysis suggests that the mitigating effect of self-consumption is being offset by the consideration of latent risk. This legal response leads us to conclude that the emergence of social supply has not challenged but reinforced Hong Kong’s prohibitionist policies.
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