Defendant 1 and one other

Both parties

Kim Dong-dong (prosecutions) and the current roads (public trial)

Attorney Park Jin-jin et al.

Cheongju District Court Decision 2015Gohap1 Decided May 14, 2015

All appeals by the Defendants and the Prosecutor are dismissed.

1. Summary of grounds for appeal;

A. Defendants (e.g., misappropriation)

The sentence of the lower court (Defendant 1: Imprisonment with prison labor for three years, Defendant 2: Imprisonment for two years and six months) is too unreasonable.

(b) Prosecutors (legal scenarios, mistake of facts);

1) The lower court’s dismissal of the prosecutor’s application for witness to recognize the substantial authenticity of the suspect interrogation protocol as to Defendant 2 prepared by the prosecutor is unlawful.

2) According to the evidence submitted by the prosecutor, the facts charged regarding the possession of narcotics against Defendant 2 are sufficiently recognized.

2. Determination

A. As to the defendants' grounds of appeal

1) The lower court sentenced Defendant 1 to three years and 2 years and 6 months respectively, in full view of the favorable circumstances, such as the following: (a) the crime of narcotics, etc., such as the instant crime, is hard to detect due to its characteristics, and may have a negative impact on the society; (b) the risk of recidivism is high; (c) Defendant 1 was supplied with and sold narcotics, and was actively led to import into the territory of the Republic of Korea; (d) Defendant 2 was committed the above import act; (c) Defendant 1 acquired profits from the sale of narcotics; and (d) the volume of the narcotics administered by Defendant 2 was not significant; (d) the Defendants did not have any criminal power; (e) the Defendants were confiscated; (e) most of the narcotics imported and sold by the Defendants were confiscated; and (e) other favorable factors such as the Defendants’ age, character, conduct, circumstances, and consequence of the crime; and (e) all other factors of sentencing, including the circumstances after the crime.

2) According to the records, considering the circumstances cited in the grounds of appeal by the Defendants, the sentencing of the lower court is not deemed unfairly heavy. The Defendants’ allegation in the grounds of appeal is without merit.

B. Regarding the prosecutor's grounds for appeal

1) The issue of whether to adopt a written application for examination of evidence may not be examined when the court deems it unnecessary at the discretion of the court (see Supreme Court Decision 2013Do12155, Feb. 27, 2014). Thus, the lower court’s rejection of the prosecutor’s application for examination of evidence and there is no illegality in law. This part of the grounds for appeal is without merit (In case where the Defendant denies the substantial authenticity of the protocol of examination of suspect prepared by the public prosecutor, the content of the protocol of examination of suspect cannot be used as evidence unless it is proved by a video product or any other objective method (see Supreme Court Decision 2011Do8325, Mar. 14, 2013). The aforementioned “public prosecutor’s objective method” should have strong probative value as much as possible on a video product. The public prosecutor’s testimony interpretation of Defendant 2 at the time of interrogation of suspect constitutes an objective method of memory, but it is merely an objective method of witness’s testimony.

2) Furthermore, according to the records, the part that corresponds to the facts charged in relation to the possession of narcotics among each suspect interrogation protocol prepared by the police and prosecutor against Defendant 2 is inadmissible, and the remaining evidence submitted by the prosecutor alone is insufficient to acknowledge it. The court below's decision that acquitted Defendant 2 on the ground that there is no evidence to acknowledge it, is just and there is no error of law such as misconception of facts as alleged in the grounds for appeal.

3. Conclusion

Therefore, each appeal by the Defendants and the public prosecutor is without merit, and all appeals are dismissed in accordance with Article 364(4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Kim Jong-chul (Presiding Judge)