LEGAL FRAMEWORK
In Hong Kong, the control, prohibition, and enforcement mechanisms surrounding illicit narcotics are governed by a stringent legal framework. The core statutory regimes consist of the Dangerous Drugs Ordinance (Cap. 134) and the Drug Trafficking (Recovery of Proceeds) Ordinance (Cap. 405).
THE STATUTORY FRAMEWORK
Cap. 134 and Cap. 405
Two complementary regimes address drug offences and the recovery of drug-trafficking proceeds.
CONTROL AND OFFENCES
The Dangerous Drugs Ordinance
Cap. 134 is the principal legislation controlling dangerous drugs in Hong Kong. It creates separate offences concerning trafficking, manufacture, possession and consumption, and possession of apparatus used for consuming dangerous drugs.
Section 2(2) provides that a thing is deemed to be in a person's possession while it is in that person's custody or is held by another person subject to that person's control. Physical custody alone does not make the offence one of strict liability: the prosecution must establish the applicable legal elements, subject to the statutory presumptions in Cap. 134.
The prosecution need not prove a usable quantity. A minute quantity may suffice if it amounts to something capable of being possessed; whether that threshold is met is a question of fact.
PROCEEDS AND RECOVERY
The Drug Trafficking (Recovery of Proceeds) Ordinance
Enacted in 1989, Cap. 405 addresses the financial proceeds of drug trafficking. It provides for restraint and charging orders to preserve realisable property, and for confiscation orders following conviction where the statutory requirements are met.
A confiscation order is directed at the value of the benefit assessed under the Ordinance and is enforced against available realisable property. The precise amount and property affected depend on the statutory findings and the circumstances of the case.
Section 25 criminalises dealing with property while knowing or having reasonable grounds to believe that it represents the proceeds of drug trafficking.