Guide
Some people who are charged with carrying or trafficking drugs into or through Hong Kong were themselves deceived, threatened or exploited into doing it. If that describes your situation, or your family member's, this guide explains why that matters, why it is often missed, and what to do now.
If someone has just been arrested and you are reading this in the middle of the night, the most urgent thing is to get a lawyer involved before the first police interview. Call the office, or see our guide to being arrested in Hong Kong. The rest of this page is about what comes after that, and why it matters so much to raise the full picture early.
Hong Kong treats trafficking in dangerous drugs as one of the most serious categories of crime it prosecutes. Sentences are long, and the quantity of drugs involved is central to how a sentence is decided. Many of the people who end up facing this charge were carrying drugs for someone else, often having been recruited, threatened or misled into doing it. These people are usually referred to as “drug mules”. That does not change what they were found carrying. It can change everything about how the case should be approached.
Hong Kong does not have a dedicated offence criminalising human trafficking for exploitation, and it does not have a formal, independent mechanism that automatically screens someone arrested for drugs to ask whether they were trafficked or forced into the crime. In some other jurisdictions, that screening happens as a matter of routine. Here, it depends far more on whether the person's account is heard, believed, and properly investigated, at each stage, by whoever is dealing with the case.
That is not a small technical gap. It means a person can be, at the same time, a defendant the prosecution says committed a crime and a victim of the people who forced or deceived them into committing it, and the second half of that truth can go unexamined unless someone actively puts it forward and presses for it to be investigated.
We acted for the Applicant in DM v Commissioner of Customs & Excise and Secretary for Security [2022] HKCFI 3476, a judicial review about a woman who said she had been abducted, held for a long period, and threatened that her family would be killed unless she carried drugs to Hong Kong. The Court affirmed that the constitutional duty to protect against forced labour applies at every stage of the criminal process, including the earliest assessments of whether someone investigated or charged with an offence such as drug trafficking is in fact a victim of forced labour. While the Court did not rule in that particular applicant's favour, largely because of delay and rules against indirectly reopening earlier decisions in the criminal proceedings, the underlying duty on the authorities was affirmed. We also acted for Mr ZN, a victim of forced labour and trafficking, in ZN v Secretary for Justice (2020) 23 HKCFAR 15; [2019] HKCFA 53, before the Court of Final Appeal, in proceedings concerning Hong Kong's constitutional obligations in this area. These cases are part of why we take this issue seriously, and why we know how easily it can be missed.
There is no single form this evidence takes, because coercion and deception take many forms. It can include messages, call records or travel documents that show how someone was recruited or misled about what they were carrying or why. It can include evidence of debts, threats made to the person or their family, confinement, confiscated documents, or violence. It can include medical or psychological evidence of what was done to someone, and evidence of the wider pattern used by the people who recruited them, if that pattern can be shown.
What matters most is that this evidence tends to fade quickly. Messages get deleted or phones get taken away. Memories, understandably, become harder to piece together after a traumatic event. People overseas who could confirm parts of the account become harder to reach. This is why gathering this evidence early and proactively, before it is lost, is one of the most important things a lawyer can do in a case like this, and why it should not wait until closer to trial.
People who have been coerced or deceived into carrying drugs are often frightened, ashamed, or still under the influence of threats made against them or their family, and that makes the first police interview a genuinely dangerous moment. Answers given under pressure, without legal advice, and without the full picture having been thought through, can be difficult to change later, even where they were incomplete or did not reflect what actually happened.
This is one more reason why speaking to a lawyer before that interview, not after it, matters so much. Our guide on being arrested in Hong Kong covers the right to silence and the right to a lawyer in more detail.
A person's account of coercion or deception can be relevant at more than one stage: to how the case is investigated, to whether it is thought right to prosecute at all, to how the trial is prepared and, where a case results in conviction, to how it is put before the court afterwards. Which stage matters most, and how the evidence should be presented at each one, depends heavily on the facts and the point the case has reached. We do not think it is honest to promise a particular outcome in general terms, and we would not do so. What we can say is that raising this evidence early, clearly and with proper preparation gives it the greatest chance of being properly considered, rather than raised too late to matter.
Families sometimes worry that saying "we were forced into this" sounds like an excuse, or that it will not be believed because the person is also facing a serious charge. Both things can be true of the same person. Being charged with an offence does not erase what was done to someone beforehand, and what was done to them beforehand does not erase the charge. The two have to be looked at together, carefully, and that is precisely the work that is so often left undone.
We prepare drugs cases with these questions built in from the start, rather than treated as an afterthought, and we instruct counsel where the case calls for it. We work in six languages, English, Cantonese, Mandarin, Punjabi, Hindi and Urdu, because many of the people affected by this are not native English or Cantonese speakers and should not be disadvantaged by that. How we charge for this work is set out on How we price; if you are worried about affording it, tell us early, as there is often a route, including legal aid. You can read more about our wider criminal work on our criminal defence page.
Not automatically. Hong Kong has no formal mechanism that screens this in on its own, so it depends on the evidence being gathered and put forward properly, and on how the authorities respond to it at each stage. It is not something to assume will happen without effort.
It is better to raise it as early as possible, but it is worth taking advice at whatever stage you have reached. Evidence can sometimes still be gathered later, though it becomes harder the longer it is left. Time is of the essence to ensure he or she receives proper legal advice.
It varies widely: messages, travel records, evidence of debt or threats, confinement, confiscated documents, or a wider pattern of how a person was recruited. A lawyer can help work out what is available, how to preserve it and how to accurately present it to the relevant authorities.
Yes. Facing a criminal charge does not cancel out what was done to someone beforehand. The two need to be considered together, which is exactly the work that is often missed.
Contact a lawyer before the first police interview if at all possible. See our guide on being arrested in Hong Kong for what happens in those first hours.
Written by Patricia Ho, managing partner. The firm acted in DM v Commissioner of Customs & Excise and Secretary for Security and in ZN v Secretary for Justice, cases concerning whether a crime was the result of forced labour.
This page is general information, not legal advice on any specific situation. For advice on your circumstances, contact us.
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