Interim Decision #2786 

MATTER OF POON 

In Deportation Proceedings 

A-22196991 

Decided by Board March 13, 1980 

(1) Possessory offenses under the Dangerous Drugs Ordinance of Hong Kong are not 

offenses of strict liability, but carry the requirement of mens rea. Compare Matter of 

Davis, 16 I&N Dec. 748 (BIA 1979); Lennon v. INS, 527 F2d 187 (2 Cir. 1975). 

(2) Section 8(1)(a) of the Dangerous Drugs Ordinance, Chapter 134, Laws of Hong Kong, 

does not impose strict liability for the possession of morphine or opium and a 

conviction under that section does result in excludability under section 212(a)(23) of 

the Act. 

(3) An alien convicted under a statute prohibiting possession of narcotic drugs or 

marijuana and providing a defendant with the opportunity to attempt to prove as a 

defense that his possession wao unknowing and innocent, is subject to deportation as 

one excludable at the time of entry 'under section 212(a)(23) of the Act. 

CHARGE: 

Orden Act of 1952—Sec. 241(a)(1) [8 U.S.C. 1.251(a)(1)]—Excludable at time of entry 

under sec. 212(a)(23) [8 U.S.C. 1182(a)(23)]—convicted of possession of narcotics 

ON BEHALF OF RESPONDENT: Jack Wasserman, Esquire 

1707 H Street, N.W. 

Washington, D.C. 20006 

BY: Milhollan, Chairman; Maniatis, Appleman, Maguire, and Farb, Board Members 

In a decision dated May 24, 1979, the immigration judge found the 

respondent deportable as charged under section 241(a)(1) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(1), as an alien excludable at the time of entry under section 212(a)(23) of the Act, 8 U.S.C. 

1182(a)(23). The respondent appeals. The appeal will be dismissed. 

The respondent is a 37-year-old native of China and citizen of Hong 

Kong. He entered the United States on April 24, 1977, at Chicago, 

Illinois, as a visitor for pleasure and was authorized to remain until 

January 5, 1978. On January 12, 1078, an Order to Show Cause was 

issued charging the respondent with deportability under section 

241(a)(1), as an alien in violation of section 212(a)(23) of the Act at the 

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time of his entry. The Service was in possession of two conviction 

records for the respondent dated March 18, 1974, and April 11, 1974. 

The respondent had been convicted of possessing a dangerous drug 

contrary to and in violation of section 8(1)(a) of the Dangerous Drugs 

Ordinance, Chapter 134, Laws of Hong Kong, to wit .4 grams of salts of 

esters of morphine on the first occasion and .3 grams of opium on the 

second occasion. 

A deportation hearing was held on March 8, 1978. The respondent 

admitted the allegations in the Order to Show Cause, but denied 

deportability in that he had been convicted under a statute which "did 

not require guilty knowledge on the part of the accused to be proven as 

is mandated in the deep-rooted requirement of knowledge and intent 

in our legal system." 

Pursuant to the immigration judge's request that the respondent 

and the Service produce any relevant material prior to his decision, the 

Service requested an opinion from the Library of Congress, Far Eastern Law Division, on the issue of mens rea, guilty knowledge, under the 

Dangerous Drugs Ordinance of Hong Kong. The Library of Congress 

advised the Service that possessory offenses under the Dangerous 

Drugs Ordinance were not offenses of strict liability, but carried the 

requirement of menu roe. The burden of proving that guilty knowledge, 

however, is not upon the prosecution in Hong Kong. Pursuant to an 

evidentiary presumption, the defendant has the onus of disproving 

that he had such guilty knowledge. Numerous cases were cited which 

discussed the defendant's burden and the requirement of guilty knowledge under section 8(1)(a) of the Dangerous Drugs Ordinance, the 

same section under which the instant respondent had been convicted. 

The Service submitted a copy of this opinion from the Library of 

Congress to the immigration judge along with its memorandum of law. 

On appeal, the respondent, through his counsel of record, raises the 

same argument raised at the deportation hearing. He contends that 

a plea to mere possession without knowledge cannot sustain 

deportability. 

To sustain a finding of deportability based upon a conviction prior to 

entry for the illicit sale or possession of narcotic drugs or marijuana, 

the statute under which the respondent was convicted must require 

"guilty knowledge" on the part of the accused. See Lennon v. INS, 527 

F.2d 187 (2 Cir. 1975). 

The court in Lennon v. INS, id., found that the respondent had been 

convicted under a law which made guilty knowledge irrelevant and, 

therefore, did not render the convicted alien excludable. 

In a later case in which the Board applied Lennon, we found that 

Chapter 223, section 25(5) of the Statute Law of the Bahama Islands 

did require guilty knowledge, and we distinguished that case from 

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Lennon. Matter of Pasguini, 15 I&N Dec. 683 (BIA 1976), eV, Pasguini v. INS, 557 F.2d 536 (5 Cir. 1977). The Bahamian Law contained a 

provision that illegal possession would be found unless the person 

could "prove the same was deposited there without his knowledge or 

consent..." 

In another case involving a conviction under section 3(1) of the 

Narcotics Control Act of Canada, R.S.C. 1970 C. N-1, we found that 

section required guilty knowledge before a conviction could be 

rendered. Matter of Awadh, 15 I&N Dec. 775 (ETA 1976). 

Most recently, in Matter of Davis, 16 I&N Dec. 748 (BIA 1979), the 

Board found that section 21(1)(a) of the Poisons Act of Australia, Act 

Number 31 of 1966, imposed strict liability for the sale of opium or 

Indian hemp. Therefore, a conviction under that section did not result 

in a conviction for illicit sale under section 241(a)(11) of the Act. 

The instant respondent was convicted under section 8(1)(a) of the 

Dangerous Drugs Ordinance of Hong Kong. That section reads as 

follows: 

(1) Save under and in accordance with this Ordinance or a license granted by the 

District Director thereunder, no person shall— 

(a) have in his possession ... a dangerous drug, 

• • • - 

(2) Any person who contravenes any of the provisions of subsection (1) shall be guilty 

of any offense and shall be liable on conviction on indictment or on summary conviction to a fine of $10,000 and to imprisonment for 3 years. 

The requirement of guilty knowledge under this provision is subject to 

certain evidentiary presumptions. Section 47 provides: 

(1) Any person who is proved to have had in his possession or custody or under his 

control— 

(a) anything whatsoever containing a dangerous drug, 

- • 

shall, until the contrary is proved, be presumed to have had such drug in his 

possession_ 

(a) 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. 

The rulings of the Hong Kong courts presented by the Library of 

Congress indicate that courts, do not find an accused guilty of possession without conscious knowledge by the possessor of the fact of such 

possession. Tsui Sheung, et at. v. Regina, [1968] H.K.L.R. 171. The 

burden of proof is always on the prosecution to establish the guilt of a 

defendant beyond all reasonable doubt, even in cases where a presumption is raised by statute. Chan Sui-Shing v. Regina, [1974] H.K.L.R. 499. 

The effect of the presumption, therefore, is to impose upon the accused 

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the burden to rebut the presumption. 

A similar burden to disprove guilty knowledge was imposed upon the 

respondent under Bahamian Law in Matter of Pasquini, supra. 

"Granting that the defense, rather than the prosecution, bears the 

burden (and must prove lack of knowledge), the statute nevertheless 

differs markedly from one under which a defendant who honestly 

believed he possessed aspirin tablets could be convicted if the tablets in 

fact contained heroin." Pauquini v. INS, at 539. Therefore, an alien 

convicted under a statute prohibiting possession of narcotics or 

marijuana and providing a defendant with the opportunity to attempt 

to prove as a defense that his possession was unknowing and innocent, 

is subject to deportation as one excludable at the time of entry. 

We are satisfied that the Service has met its burden in establishing 

the respondent's deportability by clear, convincing, and unequivocal 

evidence. Woodby v. INS, 385 U.S. 276 (1966). The Service has submitted sufficient evidence of the Hong Kong Ordinance and its interpretation by the courts. Compare Matter of Davis, supra. Further, the 

respondent has had an ample opportunity to consider the information 

supplied by the Library of Congress and has failed to refute the case 

law interpretation of the ordinance. Accordingly, the appeal will be 

dismissed. 

ORDERS The appeal is dismissed. 

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