Op-Ed | Can Our Legal System Distinguish Between a "Major Drug Lord" and a "Minor Drug User"?

On August 11, 2023, the Constitutional Court issued TCC Judgment 112-Hsien-Pan-13 (2023), "Case on the Penalty for Selling Category One Narcotics". The core intent of this judgment is: "In certain minor cases, the crime of selling Category 1 narcotics in our country entails excessively harsh penalties." Consequently, the Court instructed relevant authorities to amend the law accordingly, and suggested that penalties could be prescribed separately based on factors such as the quantity and frequency of the narcotics sold.

Does the Narcotics Hazard Prevention Act Actually Impose Excessively Heavy Penalties?

Does the Narcotics Hazard Prevention Act (hereinafter referred to as the "Narcotics Act") truly suffer from excessively heavy penalties? Exploring this issue requires looking at two dimensions: "comparing penalties for other crimes" and "observing judicial sentencing practices."

First, regarding "comparing penalties for other crimes," penalties under the current Narcotics Act are primarily based on the "category of narcotics." The most severe punishment among them is for "manufacturing, transporting, or selling Category 1 narcotics," which carries a statutory penalty of "the death penalty or life imprisonment" (fines omitted).

Perhaps from certain perspectives, it is felt that because narcotics pose a severe danger to society, imposing heavy criminal sanctions is not excessive. However, when compared to the "ordinary crime of homicide," the statutory penalty for ordinary homicide is "the death penalty, life imprisonment, or fixed-term imprisonment of not less than ten years." One cannot help but wonder: is it truly appropriate in terms of legal evaluation that a crime which does not directly cause the result of death (violation of the right to life) carries an even heavier penalty than a crime that does? Furthermore, is it truly reasonable for the sale of narcotics to carry the exact same penalty whether it involves 100 kilograms or 0.1 grams?

Next, regarding "observing judicial sentencing practices," we must mention a special phenomenon in drug case judgments—many judgments invoke Article 59 of the Criminal Code of the Republic of China as the basis for sentence reduction.

Article 59 of the Criminal Code of the Republic of China provides: "A punishment may be reduced at discretion if the circumstances of the commission of the offense are so pitiable that even the minimum punishment is considered too severe." This means that if the circumstances of a case are truly worthy of sympathy, and the court feels that applying even the lightest statutory penalty for the offense is still too harsh, it may further mitigate the punishment for the defendant.

In fact, because the standard for determining that circumstances are "manifestly pitiful and commendable" is strict, this article is very rarely used in criminal judgments. The exception, however, is that it is frequently cited by courts in drug cases to reduce defendants' sentences. This is because the "circumstances" in many drug cases inevitably lead the court to feel that the punishment is overly severe. For example, in some cases, so-called "selling narcotics" actually involves two defendants who were already drug users transferring drugs to each other at cost price (under the Narcotics Hazard Prevention Act, selling at cost or even at a loss can still constitute "selling"). This clearly differs somewhat from the legislative intent we imagine, which aims to strike at the sources of drugs plaguing society with heavy punishments (starting with life imprisonment). Understanding these cases also explains why courts frequently invoke special provisions like Article 59 of the Criminal Code of the Republic of China to "show leniency" in drug cases.

The Legislative Amendment Draft Proposed by the Ministry of Justice

In response to the demands of TCC Judgment 112-Hsien-Pan-13 (2023), the Ministry of Justice also announced a draft amendment for public notice in July 2024. The content stated: "Those who commit the offense of selling Category 1 narcotics under Article 4, Paragraph 1, whose behavioral patterns, quantity, consideration, and other circumstances are minor and manifestly pitiful and commendable, and who are still deemed to receive an excessively heavy punishment even after sentence mitigation under Article 59 of the Criminal Code of the Republic of China, may have their punishment reduced at discretion; however, this shall not apply to those who have a prior finalized conviction." (In subsequent public announcements by the Ministry of Justice, this content was revised to: "Those who commit the offenses of manufacturing, transporting, or selling narcotics whose behavioral patterns, quantity, consideration, and other circumstances are minor may have their punishment mitigated; however, this shall not apply to those who have previously committed an intentional crime resulting in a finalized conviction.") While incorporating parts of TCC Judgment 112-Hsien-Pan-13 (2023)'s intent into the Narcotics Hazard Prevention Act through this amendment draft may resolve some practical problems, the author believes the draft also contains certain legislative provisions that are open to debate.

First, regarding the provision that those with prior finalized convictions for (intentional) crimes cannot apply for sentence mitigation, it appears to interpret TCC Judgment 112-Hsien-Pan-13 (2023)'s description of minor cases—such as "if there are no other criminal acts"—as a concept of having no criminal record, thereby excluding the grounds for mitigation. However, many current practical cases of "minor offenses resulting in disproportionately severe punishment" reflect the problem that the lower limits of statutory penalties themselves are overly rigid. Therefore, the author believes that what should be evaluated in an individual case is still whether the "culpability" of the circumstances falls below the lower limit of the statutory penalty. That is to say, when determining whether a person deserves sentence mitigation, the basis should still be whether the circumstances of the individual case render the punishment excessively heavy; whether a defendant has a criminal record should not be a prerequisite for determining eligibility for mitigation. Therefore, using a past record of (intentional) crimes as a prerequisite to exclude the application of sentence mitigation seems superfluous and may even exclude individuals who genuinely need sentence mitigation.

Secondly, transcribing phrases from TCC Judgment 112-Hsien-Pan-13 (2023)—such as "whose behavioral patterns, quantity, consideration, and other circumstances are minor"—into statutory text certainly grants courts a certain degree of discretion. However, exactly what patterns, quantities, and considerations qualify as minor circumstances will likely degenerate into a difficult dilemma in trial practice where litigants and courts hold conflicting views, and may even be criticized as an "arbitrary" clause with unclear standards.

The author believes that rather than engaging in "piecemeal" solutions through "individual case sentence mitigation," comprehensively considering how to amend the long-standing imbalances in sentencing under the Narcotics Hazard Prevention Act is the only way to genuinely resolve the problem.

What Solutions Can We Still Envision?

The problem of imbalanced sentencing within Taiwan's Narcotics Hazard Prevention Act can be explained from several dimensions.

First, certain different "drug offenses" involve similar behaviors with ambiguous boundaries for judgment, yet the penalties between them differ drastically! For example, "selling narcotics" and "transferring narcotics" are in fact not easily distinguishable in many cases (for the reasons mentioned earlier, because practical jurisprudence does not require a profit to constitute "selling"). Taking Category 1 narcotics as an example, the statutory penalties for "selling" and "transferring" are "death or life imprisonment" for the former, and "fixed-term imprisonment of not less than one year and not more than seven years" for the latter—a vast difference. Similar problems also exist between "transporting narcotics" and "possessing narcotics," as well as between "possessing narcotics with intent to sell" and "possessing narcotics."

Furthermore, the statutory penalties for manufacturing, transporting, and selling under the criminal penalty provisions of the Narcotics Hazard Prevention Act are primarily divided based on "categories of narcotics" (with the exception of Article 11 regarding the punishment for "possessing narcotics," which takes drug weight into consideration). Therefore, we can imagine that under our current Narcotics Act, a drug user who sells 0.5 grams of "heroin" (a Category 1 narcotic; punishable by death or life imprisonment) may face a statutory penalty far heavier than a major drug lord who sells 200 kilograms of "ketamine" (a Category 3 narcotic; punishable by fixed-term imprisonment of not less than seven years).

From the explanations above, it is clear that the legislative approach of our current Narcotics Act places excessive emphasis on severely punishing "specific behavioral patterns" and places undue weight on "categories of narcotics," while ignoring other factors that should be considered in sentencing differentiation to distinguish between a "major drug lord" and a "minor drug user" in order to formulate more reasonable sentences.

The author believes that if other reference factors are to be provided, foreign legislative precedents—such as the "Sentencing Guidelines" of the United States Sentencing Commission—establish evaluation standards determining the applicable offense levels when different controlled substances reach specified weight thresholds. Alternatively, the United Kingdom's sentencing guidelines combine the "category of drug" and the "drug weight" to divide drug harms into four levels (while also distinguishing the basis of penalties according to the "degree of participation" in the crime) to serve as sentencing standards for courts (regarding the production of controlled substances/cultivation of cannabis plants / regarding the illegal importation or exportation of controlled substances).

From these foreign legislative examples, we can understand that beyond the type of drug itself, the "weight" of the drug is an even more important indicator reflecting the actual harm caused by the act. These reference factors can perhaps serve as a mirror for reflection to correct the legislative deficiencies in Taiwan's Narcotics Hazard Prevention Act, thereby ameliorating the long-standing malaise of sentence imbalances caused by insufficient consideration factors in sentencing differentiation.

*This article was published on November 16, 2025, in Up Media