OVERVIEW
If you are found in possession of a suspected dangerous drug, the law enforcement agency—usually the Police or the Customs and Excise Department—will send the suspected drug for analysis by the Government Chemist. Sometimes the agency will await the result before charging you with a criminal offence. At other times, usually where larger amounts are involved, it will charge you and bring you before the court pending preparation of the Government Chemist Certificate.
The Government Chemist Certificate will set out the type of drug and the narcotic content of the drugs seized. If you are convicted of possession of dangerous drugs, before deciding on sentence, the Magistrate or Judge will consider various aspects of the case, including the type and amount of drug involved, whether rehabilitative measures such as detention in a Drug Addiction Treatment Centre need to be considered, and your age and background.
STATUTORY PROVISIONS
Section 8 of the Dangerous Drugs Ordinance (Cap. 134)
The relevant part of the current statutory provision states:
“No person shall have in his possession; or smoke, inhale, ingest or inject, a dangerous drug, except under and in accordance with this Ordinance or a licence granted by the Director.”
ELEMENTS OF THE OFFENCE
Custody or Control
The prosecution does not need to show that the drugs were physically on the defendant's person, such as in a pocket. Under section 2(2) of Cap. 134, a person is in possession if the drugs are in their actual custody or are held by another person subject to their control or on their behalf. Example: If an individual stores narcotics at a friend's flat or in a commercial locker but retains access and control over them, that individual may still be held to be in possession.
Knowledge
The prosecution must establish that the defendant knew they were in possession of a substance and knew that the substance was a dangerous drug.
Statutory Presumption
Under section 47(1), if a person is found in physical custody of a container—such as a bag, briefcase or box—or holds the keys to a container or place containing drugs, they are presumed to be in possession of those drugs until the contrary is proved. Under section 47(2), once physical possession of a drug or container is established, the defendant is presumed to have known the dangerous nature of the drug.
Evidential Burden
The statutory presumptions have undergone a remedial interpretation. They impose only an evidential burden on the defendant. Once the defendant adduces some plausible evidence to the contrary, the legal burden reverts to the prosecution to prove knowledge beyond reasonable doubt.
Maximum Penalty
Despite the lack of an automatic statutory presumption, quantity remains the most critical factor in elevating a possession charge. The prosecution relies on the common law concept of an 'irresistible inference'. If a defendant possesses a substantial volume of dangerous drugs that exceeds what a bona fide addict could realistically consume over a short period, the court can rule that the only logical explanation is an intent to supply or distribute and hence a possession case can become one of trafficking.
Drug Addiction Treatment Centres
Under the Drug Addiction Treatment Centres Ordinance (Cap. 244), if a court finds an offender guilty of a drug offence and a suitability report confirms they are an addict, the judge can sentence them to a DATC instead of prison. The detention period is open-ended, lasting from 2 to 11 months, followed by a mandatory 1-year post-release supervision period.
HOW MCS CAN ASSIST
Advice and representation
MCS can assess the charge, the statutory elements and the prosecution evidence; advise on interview, plea, trial and sentence; and identify any defence or evidential issue available on the facts.