1. Physical element of possession

1. Physical element of possession

As restated by the Court of Appeal in HKSAR v Poon Kiu Yu, the physical element of “possession” of dangerous drugs falls into three categories:  

(1) physical possession (e.g. drugs on person or carried items);  

(2) presumed possession (under section 47(1) of the Dangerous Drugs Ordinance);  

(3) control/constructive possession. 

A. Physical possession of a drug 

A person who is proved or presumed to have possessed a dangerous drug is presumed to have known about the dangerous nature of the drug, until proven otherwise (section 47(2)). 

B. Physical possession of a container 

A person who is proved to have physically possessed anything containing or supporting a dangerous drug is presumed to have possessed that drug, until proven otherwise (section 47(1)(a)). 

Where a person is handed a container without knowing or suspecting that it contains a dangerous drug, and before he had time to examine the contents he threw it away, he could not be said to be in possession of the dangerous drugs in the container.​ 

C. Physical possession of the keys of any baggage, briefcase, etc. 

A person who is proved to have physically possessed the keys of any baggage, briefcase, box, case, cupboard, drawer, safe-deposit box, safe or other similar container containing a dangerous drug is presumed to have possessed that drug, until proven otherwise (section 47(1)(b)). 

Example:  

1. During inspection at Hong Kong International Airport, a suitcase is found containing a glass bottle filled with e-liquid; lab tests confirm it holds etomidate. Any person holding the suitcase key is presumed to possess the dangerous drug and know its nature, unless rebutted.  
2. A storeroom is not a “container” for the purpose of this presumption. 
3. If the dangerous drugs were found in a locked box in a locked lorry, the presumption does not apply if the defendant only had the keys to the lorry but not the box.