The defendant in this case is suspected of smuggling and trafficking a mixture containing ketamine with a total weight of 48.45 kilograms. According to traditional sentencing guidelines for narcotics, the quantity involved in this case could result in a sentence of death with a two-year reprieve or immediate execution.
After attorneys Tang Jianbin and Gao Yuman became involved in the case, they thoroughly presented their defense arguments to the court of first instance, focusing on the conversion of drug purity, addictiveness, and social harm. Ultimately, the court of first instance adopted the attorneys’ core defense arguments, moving beyond the traditional judicial approach of determining sentencing based solely on the total weight seized. The court found that the active ingredients in the drugs in question were extremely low and that the actual social harm was limited, concluding that the sentencing brackets of 15 years or more, life imprisonment, or the death penalty did not apply. The court of first instance sentenced the defendant to twelve years’ imprisonment for the crimes of drug smuggling and trafficking, representing a significant reduction from the benchmark sentence specified in the indictment. This lenient outcome serves as a highly valuable reference for sentencing in similar cases involving large quantities of mixed-type drugs with extremely low purity.
I. Core Defense Logic: Relying on Guiding Case No. 1677, the defense argued that the court should adopt a “pre-established conversion standard combined with comprehensive evaluation” model to determine the accurate sentencing bracket, thereby successfully persuading the court to adjust the sentencing benchmark.
Article 357 of the Criminal Law stipulates: “The quantity of drugs shall be calculated based on the verified quantity of drugs involved in smuggling, trafficking, transporting, manufacturing, or illegal possession, and shall not be adjusted for purity.” This provision is the “ironclad rule” for determining quantities in the conviction and sentencing of drug crimes, and it serves as the direct basis for calculating drug quantities and determining statutory sentencing ranges in judicial practice. Drug crimes are serious offenses that endanger public health and social order; stipulating that verified quantities serve as the calculation standard essentially prohibits offenders from evading severe penalties through adulteration or dilution, thereby preventing them from exploiting differences in purity to escape criminal liability. Furthermore, the adulterated mixture still possesses the characteristics of a narcotic and retains its market value; calculating it based on total weight also aligns with the requirement for the perpetrator to bear responsibility—both subjectively and objectively—for the entire drug transaction involved.
However, the problem with the above provision is that narcotics of the same weight but different purities vary vastly in terms of actual toxicity, addictiveness, and social harm. For example, 100 grams of methamphetamine with 90% purity and 100 grams of adulterated methamphetamine with 1% purity differ by a factor of 90 in active ingredient content. However, if both are classified under the same sentencing bracket based on total weight, this would result in non-narcotic substances—such as impurities and water—being treated as equivalent to the narcotic component, leading to disproportionately severe punishment. Furthermore, in recent years, the problem of new types of drugs has become particularly prominent. For new drugs such as etomidate, synthetic cannabinoids, and ketamine, the purity of the drugs seized in many cases is extremely low (often below 1%). If the quantity of drugs involved is still calculated based on the total weight as stipulated by the Criminal Law, it would be very easy to exceed the thresholds for “large quantities” and “ relatively large quantity” thresholds, leading to disproportionately severe penalties for minor offenses and a mismatch between the severity of the crime and the punishment.
To address these judicial challenges, the defense counsel conducted an in-depth analysis of Guiding Case No. 1677 from *Criminal Trial Reference*, distilling two key adjudication rules directly applicable to this case for the judge’s reference:
First, use the converted pure active ingredient as the core basis for determining the baseline sentencing bracket.
In the guiding case, 141.42 grams of liquid synthetic cannabinoids were seized, with a purity ranging from only 0.53% to 1.28%. If the total weight were directly converted to a reference drug, the benchmark sentence could reach 15 years or more. However, the Supreme People’s Court’s judicial reasoning is clear: one must first convert the actual purity to the weight of 100% pure active substance, and then convert the quantity to a reference drug based on the conversion standards for the addictive potential of psychotropic substances. In this case, the converted pure synthetic cannabinoid amounted to only 1.7 grams, equivalent to just 0.85 grams of heroin. The baseline sentencing bracket fell within the range of less than three years’ imprisonment; it was only because the defendant’s repeated acts of trafficking constituted “serious circumstances” that the sentence was increased to the three- to seven-year range, with the defendant ultimately sentenced to six years and six months. This case clearly demonstrates the applicable judicial guidance: the total weight seized serves only as a formal reference; the actual harm posed by drugs is determined by their effective active ingredients; and for drugs of extremely low purity, the converted quantity of pure active ingredients must serve as the core criterion for determining the sentencing bracket.
Second, after conversion, when other circumstances beyond the quantity of drugs are comprehensively considered, it is generally not appropriate to increase the sentencing bracket.
In accordance with the spirit of the “Kunming Meeting Minutes,” consideration of increasing the sentencing bracket should only be given when the converted quantity of drugs involved clearly meets the criteria for “relatively large” or “large” quantities, and when other aggravating circumstances—such as repeated trafficking or trafficking to school students—that warrant stricter punishment are present.
II. Defense Counsel Fully Argued the Case Based on the Facts and in Line with the Guiding Precedent, Prompting the Court to Lower the Statutory Sentencing Range
The two attorneys fully applied the adjudication standards of the guiding precedent to the facts of this case, forming an irrefutable and comprehensive chain of argumentation that altered the collegial panel’s approach to sentencing.
First, they determined the baseline sentencing bracket based on the pure active ingredient after conversion. Even if the quantity of drugs the defendant was accused of trafficking in the indictment—48,450 grams—were used, converting it at an average purity of 1% would result in a corresponding ketamine quantity of 484.5 grams. the sentencing bracket for trafficking 500 grams of ketamine is imprisonment for 15 years or more, while the bracket for trafficking 484.5 grams of ketamine is imprisonment for 7 to 15 years, thereby directly excluding the “large quantity” sentencing bracket of 15 years or more.
Second, by analyzing the context of distribution, they argued that the social harm was minimal. In this case, the ketamine involved is present in an extremely low concentration, amounting to a trace amount. From the perspective of its actual effects, ketamine at this concentration cannot be used for normal drug consumption or exert the typical effects of a drug; its harmfulness is significantly low. Furthermore, since this batch of ketamine was not sold domestically, its harm within the country is virtually nonexistent.
Third, after a comprehensive review of the entire case, aggravating circumstances warranting a higher sentencing tier were ruled out. This case does not involve statutory or discretionary aggravating factors such as repeated distribution of small “zero-pack” quantities, sales targeting minors, long-term large-scale drug trafficking, or incitement to violent criminal activity. In accordance with the spirit of the guiding case rulings, the sentence should not exceed the corresponding range of seven to fifteen years after conversion.
Consequently, the defense attorney’s argumentation was logically sound and supported by authoritative case law. The collegiate bench ultimately adopted the defense’s position, refraining from mechanically applying the sentencing standard for “15 years or more” based on the total weight of 48.45 kilograms. Instead, the sentencing range was set at seven to fifteen years, laying the most critical legal foundation for the final sentence of twelve years’ imprisonment.
III. Expanding on Key Defense Points: Addictiveness and Habit-Forming Properties Are Critical Breakthroughs in Cases Involving New Types of Low-Purity Drugs, Providing Defense Lawyers with Key Directions for In-Depth Analysis in Similar Cases
In addition to the core defense arguments mentioned above, Judge Jiang Yuanliang, Presiding Judge of the Fifth Criminal Trial Division of the Supreme People’s Court, proposed further applicable perspectives in his article “Normative Interpretation and Judicial Determination of the Concept of Narcotics,” which also represent defense strategies that attorneys handling similar cases should thoroughly explore.
Judge Jiang argues: “Quality and quantity form a dialectical unity; one cannot judge quality entirely in isolation from quantity, as this would improperly expand the scope of drug classification and deviate from the general public’s understanding... In cases involving substances with extremely low drug content, expert opinions should be sought to comprehensively assess whether the substance in question possesses addictive properties. If the substance in question does not possess the property of causing addiction, it should not be classified as a narcotic, and the relevant conduct may be treated as an attempted narcotics crime.”
The defense counsel argues that the Criminal Law defines narcotics as “narcotic drugs and psychotropic substances subject to state control that are capable of causing addiction”; the potential to cause addiction is the core statutory characteristic distinguishing ordinary chemicals from narcotics. Sentencing for drug offenses is, in essence, a comprehensive assessment of harmful consequences such as addiction, damage to physical health, and disruption of social order; it cannot be based solely on weight without considering addictiveness. In past drug cases where only physical and chemical analyses of the substances in question were conducted, when the drug content is extremely low and there is significant controversy regarding the classification of the substances involved, the court should follow the approach used in food and drug crimes by organizing experts to issue opinions on addictiveness, and conduct a comprehensive qualitative and quantitative assessment of the substances in question based on these expert conclusions. This is the effective way to ensure that punishment is commensurate with the offense and culpability. The above approach also represents a key breakthrough for defense strategies in new types of cases involving low-purity, bulk narcotics; it can be further explored beyond conventional defense strategies to provide guidance for defending similar cases.
