1. Proof of knowledge and participation

1. Proof of knowledge and participation

It is an element of the offence of trafficking in a dangerous drug that the defendant must have knowledge that a dangerous drug is being trafficked in.  The prosecution is not required to prove that the defendant knows the specific type of dangerous drug being trafficked in.

The standard is subjective, i.e. he must personally know that the drug in question was present.  This can be proved by evidence with the assistance of some statutory presumptions under s.47 of the Dangerous Drugs Ordinance (Cap. 134):

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 (s.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 (s.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 (s.47(1)(b)).

A storeroom is not a “container” for the purpose of this presumption.  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.

These presumptions have been interpreted by the Court of Final Appeal by remedial interpretation to mean that the defendant only has an “evidential burden”: once the defendant adduced some evidence to the contrary, the burden of proof would be reverted back to the Prosecution to prove the matter presumed beyond reasonable doubt.

There is no presumption of intention to traffic, meaning there is no presumption that once possession is proved, presumption of trafficking existed.