“Space oil,” which is typically packaged in e-cigarette capsules and contains the anaesthetic etomidate, has been classified as a dangerous drug in Hong Kong, effective 14th February 2025. This legal reclassification reflects growing concern over its abuse, particularly among young people, and strengthens enforcement measures to curb its distribution.
Understanding what constitutes possession of a dangerous drug, the criteria for proving possession, and the concept of presumed knowledge is essential for grasping how drug regulations apply to “space oil” and other controlled substances in Hong Kong. This article explores these elements in detail.
Possession of dangerous drugs is a serious criminal offense under the Dangerous Drugs Ordinance (Cap. 134) (“the Ordinance”). This legislation defines the legal boundaries, enforcement mechanisms, and penalties associated with drug-related activities, reinforcing Hong Kong’s strict anti-narcotics stance.
What is Possession in Law?
In Hong Kong, possession refers to having custody or control over a substance classified as a “dangerous drug” under the the Ordinance. Dangerous drugs include a wide range of narcotic and psychotropic substances, such as heroin, cocaine, methamphetamine (“Ice”), cannabis, ketamine, MDMA (ecstasy), and, as of 14th February 2025, etomidate—the key ingredient in “space oil.” These substances are listed in the First Schedule of the Ordinance, and possession of any of them—whether for personal use, trafficking, or other purposes—is prohibited unless explicitly authorised (e.g., for medical or scientific purposes with a license).
Possession does not necessarily imply ownership but focuses on physical or constructive control. For instance, a person can be charged with possession if a dangerous drug, such as space oil, is found in their vape pen, bag, car or home where they exercise some degree of control.
As restated by Court of Appeal HKSAR v Poon Kiu Yu [2010] 2 HKLRD 800, possession of dangerous drugs falls into three categories:
(1) Physical possession, for example, where dangerous drugs were found on someone’s person or in the articles carried by him, the drugs found on his person or in the articles carried by him are in that person’s physical possession.
(2) Presumed possession, which is triggered by section 47(1) of the Ordinance – that any person who has in his physical possession anything containing a dangerous drug or the keys of those containers shall be presumed to have had such drug in the container in his possession. This presumption is rebuttable.
(3) The “constructive possession”, which differs from “presumed possession”. If any person is aware of the existence and nature of a certain article and can at the same time exercise control over it, then even if the article is not in his physical possession, it is still in his “constructive possession”.
Knowledge of the Nature of the Drugs
Section 47(2) reads:
“Any person who is proved or presumed to have had a dangerous drug in his possession shall, until the contrary is proved, be presumed to have known the nature of such drug”
This presumption is also rebuttable. It imposes the “evidential burden” on the defendant to adduce evidence to show that he has no knowledge of the nature of the drug, while the prosecution is still obliged to prove that the defendant knows the nature of the drugs.
If the defendant’s explanation creates reasonable doubt, they must be acquitted. Even if the defendant’s explanation is totally rejected, if there are any doubts in the prosecution evidence on knowledge of the defendant, He must still be acquitted. The burden of proof lies upon the prosecution to prove that the defendant has knowledge of the nature of the drug. This principle was affirmed in HKSAR v Hung Chan Wa & Another [2006] 3 HKLRD 841.
Furthermore, the prosecution does not need to prove that the defendant knew the exact type of dangerous drug they possessed. The charge only needs to establish possession of “a” dangerous drug [R v Tam Chun Fai [1994] 2 HKC 397).
Penalties and Enforcement
Possession of a dangerous drug in Hong Kong carries severe legal consequences:
- Possession – Maximum 7 years’ imprisonment and a HK$1 million fine.
- Trafficking – Life imprisonment and a HK$5 million fine.
- Previous Classification – Etomidate and its analogues (metomidate, propoxate, and isopropoxate) were previously categorised as Part 1 poisons, carrying only a 2-year prison term. With the reclassification, these substances now face penalties equivalent to those of major narcotics.
The Hong Kong Police Force has intensified enforcement efforts, equipping patrol teams with rapid test kits to detect etomidate following its reclassification.
Conclusion
As of 14th February 2025, possession of “space oil” is illegal in Hong Kong under the Dangerous Drugs Ordinance. Both residents and foreign visitors must stay informed about these regulations, as even unintentional possession can result in severe penalties.
With evolving drug laws and an impending ban on e-cigarettes, the legal landscape surrounding controlled substances in Hong Kong is rapidly changing. Understanding these laws is crucial to avoiding legal consequences and ensuring compliance with Hong Kong’s stringent drug policies.
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Disclaimer: The information and materials contained or referred to on this website are for reference only. Any advice or information received from this website should not be relied upon without consulting professional advice from criminal defence lawyer. If you are charged with an offence in Hong Kong, you are recommended to obtain such professional advice where appropriate.
