Thailand Law Journal 2018 Spring Issue 1 Volume 19

2.2.2    The social suppliers

A concept of ‘social supply’ has emerged that describes drug transactions that are almost exclusively to friends and acquaintances. Research has shown that social supply constitutes a significant portion of the lower levels of the retail drug market (Coomber and Moyle 2013). The Global Commission on Drug Policy offers a practical example: ‘In this situation, there could be a designated buyer among a social group who will purchase drugs and share them among the group for minimal, if any, financial gain. Even in the absence of a structured designation of a buyer, sharing of drugs among friends is commonplace, the exchanges being carried out with a view more to accruing social rather than financial capital.’ (Global Commission 2016:24)

Social suppliers are increasingly understood not to be drug dealers ‘proper’ and many argue that the criminal justice system should consider and process them differently to commercially motivated suppliers. Recent research in England suggests that ‘social supply acts (sometimes even involving large amounts of drugs/money) have become accepted as something closer to gift-giving or friendship exchange dynamics within social networks rather than dealing proper.’ (Coomber 2015). Under current possession based drug laws in most Asian countries, a social supplier who is in possession of a quantity of drugs that exceeds the applicable thresholds is treated no differently from an offender who is engaged in the trade for commercial gain. Furthermore, as with the couriers, there is no clear correlation between the quantities possessed by a social supplier and the degree of culpability. In the UK, a Police Foundation Report found that under the possession-based Misuse of Drugs Act (1971) ‘too many of those prosecuted for supply were not the type of supplier that the Act was designed to capture and prosecute i.e. ‘dealers proper’, whose supply activity was essentially commercial in nature and whose culpability was significant.’ (Coomber and Moyle2013:158)

2.2.3    The user-dealers

So-called ‘user-dealers' are dependent users who have chosen to sell drugs to other users to enable themselves to guarantee their supply. Research has found that ‘addicted user-dealers’ motivations are commonly different from those of commercially motivated suppliers, while their activities are perceived as a less harmful and more convenient way of funding their drug dependency than acquisitive crimes.’ (Coomber and Moyle 2015). These findings echoed the reasoning of the English Court of Appeal in the case of R v Afonso, which found that sentences, based on drug quantities possessed, were excessive and disproportionate in relation to this category of offender.11 Lord Justice Rose identified the category as ‘out of work drug addicts, whose motive is solely to finance the feeding of their addiction’ and who, as a consequence of addiction, are subject to a unique set of choices: ‘An unemployed addict has, in practical terms, three means of financing his or her addiction – prostitution, theft or supplying others and sentencers should recognize that, in consequence, his or her culpability is likely to be less of than that of many other suppliers.’ The cases that have cited Afonso as a defence or on appeal suggest a need for formal recognition of this type of offender.12 

The dilemma of the user-dealers also arose in the context of crafting a new policy on illicit drugs in Laos. The Law on Drugs (2008) in Laos incorporates the important principle that a drug user is not a criminal but a person who may be in need of help and care.13 It was noted that a common modus operandi among dealers in Laos is to demand that drug users take part in drug distribution as a way of financing their drug use.14 In such cases, the possession is effectively a culmination of drug use. Nonetheless, because the law defines the offence based on the quantity of drugs a person is in possession of, drug using distributors end up being prosecuted on the same terms as dealers with far more sinister motives. No research has been done on what proportion of low-level dealers in Laos are ‘user-dealers', but law enforcement officials believe the majority of them are.15 This estimate is echoed by Professor Ko-Lin Chin who notes that ‘during our many months of fieldwork [in China], we have talked to enough [drug] vendors to realize that the retail business is dominated by addicts.’ (Chin 2015:42) Unlike in English, there is in Mandarin even a term for retailing drugs to support an addiction; 以贩养吸 roughly transliterated yi-fan-yang-xi. The Mandarin language has found a reason to distinguish between different roles among drug dealers. So far, the law has not.

2.3      Establishing the weight of the pure substance

The law in many jurisdictions refers to the weight of the pure substance.16 Due to the lack of forensic technology and capacities in many countries, law enforcement agencies have faced challenges in accurately determining purity and the weight of the pure substance. Even where the analysis equipment is available, the necessary chemicals have to be continuously imported, which can lead to frequent shortages. Drug purity ‘is not something that can be ascertained by poorly trained police officers in poorly resourced settings.’ (Harris, 2011:3) In Laos officials often proceed on the estimate that one yabaa tablet is equivalent to 0.1 gram of methamphetamine.17 In other cases, only a small sample is tested. However, as UNODC notes, ‘the purity of methamphetamine tablets vary considerably…The actual weight may vary from tablet to tablet and batch to batch as they are produced under clandestine conditions. Considering tablet purity alone can be misleading as tablets of different weights contain different amounts of methamphetamine even if the purity is the same.’(UNODC, 2015:6)18 Hence these approximations are unsatisfactory so long as the severity of the offence is determined exclusively with reference to the weight of the pure substance involved in the offence. This is not a problem in jurisdictions with sufficient law enforcement resources (as in Singapore), but it is a serious problem in Laos, and possibly also in other jurisdictions with more limited law enforcement capacities and resources.19 Moreover, few users and even dealers are aware of or have control over the purity of the drugs in their possession, thus making the weight of pure substance a bad proxy for evidence of intent and culpability (Harris 2011).