2. Mental element of possession

2. Mental element of possession 

The mental element of “possession” focuses on a defendant’s subjective knowledge that the items in the defendant’s possession are dangerous drugs, and on the intention to possess those dangerous drugs. 

However, a person does not need to know the exact type of drug. It is generally enough if he knew that what he had was something in the nature of dangerous drugs. 

If a person thought the drug was one dangerous drug but it turned out to be another, that does not affect guilt. It may be relevant to sentence, but not usually to whether the offence is made out. 

Following the Court of Final Appeal’s remedial interpretation in Secretary for Justice v Hii Siew Cheng, statutory presumptions regarding this element impose only an evidential burden on the defendant; once the defendant adduces contrary evidence showing lack of knowledge, the prosecution must prove knowledge beyond a reasonable doubt. 

A. Presumptions of Knowledge  

The law provides specific presumptions where knowledge and possession are assumed unless rebutted by evidence: 

1. Any person proved or presumed to have had a dangerous drug in their possession is further presumed to have known the nature of such drug (section 47(2) of the Dangerous Drugs Ordinance).   
2. A presumption of possession and knowledge may arise if drugs are found in premises occupied by or associated with the defendant (Occupier’s Presumption).   
3. Knowledge is inferred if the drugs formed a common pool from which all parties had the right to draw at will, or if there was a joint enterprise to consume drugs together.  

B. Scenarios of Possession  

According to R v McNamara, the following four propositions determine whether the mental element is satisfied: 

1. A person is not in possession of something put into their pocket or house without their knowledge. 
2. A mere mistake as to the quality of a thing (e.g., believing heroin is cannabis) is insufficient to prevent a finding of possession; the prosecution only needs to prove the accused knew it contained something in the nature of dangerous drugs. 
3. If the defendant genuinely believed the item was of a wholly different nature (e.g., sweets instead of ecstasy), they may lack the required mental element. 
4. Possession of a container leads to a strong inference of possession of its contents. To rebut this, the defendant must adduce sufficient evidence they had no reason to suspect the contents were illicit or had no opportunity to inspect them. 

The court may also consider whether the defendant deliberately turned a blind eye. If an accused fails to inspect a container when a reasonable person would suspect it contains drugs, this factor is used to determine possession under R v Cheung Kwok Kuen.