2017Gohap714 Violation of the Act on the Control of Narcotics, etc. (franking)

A

Kim Jong-sung (Court) (Court of Second Instance) (Court of Justice)

Law Firm B, Attorney C

September 7, 2017

A defendant shall be punished by imprisonment for not less than two years and six months.

However, the execution of the above punishment shall be suspended for three years from the date this judgment became final and conclusive.

20,000 won shall be additionally collected from the defendant.

The amount equivalent to the above additional collection charge shall be ordered to be paid provisionally.

Criminal History Office

Although the Defendant is not a person handling narcotics, the Defendant treated psychotropic drugs as follows, “B-Postbavia (hereinafter referred to as “herb, synthetic marijuana”)” (hereinafter referred to as “synthetic marijuana”), regardless of whether he is a person handling narcotics:

1. The receipt of synthetic marijuana;

The Defendant received synthetic marijuana in the “E” club located in Yongsan-gu Seoul Metropolitan Government D from Chinese visitors in his name, and was kept in the Defendant’s residence at the time when the Defendant was located in Seocho-gu Seoul Seocho-gu, Seoul, and delivered it to G free of charge before the Defendant’s residence.

Accordingly, the defendant accepted synthetic marijuana.

2. Around July 2016 or around August 2016, the Defendant, administering a synthetic marijuana, received one cigarette containing synthetic marijuana from a large person in his/her name from the club, and smoked as smoking a cigarette by attaching it to a rater.

Accordingly, the Defendant administered synthetic marijuana.

A summary of the steam

1. Defendant's legal statement;

1. Examination protocol of the accused by prosecution;

1. Each police suspect interrogation protocol concerning G;

1. A narcotics appraisal statement;

1. Investigation report (calculated of the market price report and the amount additionally collected);

Application of Statutes

1. Article relevant to the facts constituting an offense and the selection of punishment;

Articles 58(1)3, 3 subparag. 5, 2 subparag. 3 (a) of the Narcotics Control Act, and Article 59(1)5 of the Narcotics Control Act, Article 3 subparag. 5 of the Act on the Control of Narcotics, Etc. (the use of psychotropic drugs) Articles 2 subparag. 3 (1) and 2 subparag. 5 (the use of psychotropic drugs)

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Article 38 (1) 2, and Article 50 of the Criminal Act on the grounds of heavy psychotropic drugs waterways, etc.

1. Discretionary mitigation;

Articles 53 and 55(1)3 of the Criminal Act (The following consideration for the reasons for sentencing):

1. Suspension of execution;

Article 62(1) of the Criminal Act (The following grounds for sentencing has been repeatedly taken into consideration for favorable circumstances)

1. Additional collection:

The proviso of Article 67 of the Narcotics Control Act

[Calculation of Additional Collection] Synthetic Smoking A. X on May 2017, JWH’s monthly trend of narcotics, etc. of the Supreme Prosecutors’ Office : 20,000 won 1)

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

1. The scope of punishment: Imprisonment for a period of two years and six months to twenty-two years;

2. Scope of recommended sentences according to the sentencing criteria;

(a) Basic crime: Crimes of violation of the Act on the Control of Narcotics, etc. by psychotropic drugs, etc.;

[Determination of Types] Type 3 (Narcotic drugs, perfumesa........) such as assistance in the trade of narcotics

[Special Mitigation] Purchasing or receiving for simple possession of medication

[Recommendation and Scope of Recommendations] Reduction Area, 2 years to 5 years of imprisonment

(b) The first concurrent crime: the crime of violating the Act on the Control of Narcotics, etc. by using psychotropic drugs; and

[Determination of Types] 4 Medications (Narcotic drugs, perfumea, etc.)

【Special Convicted Person】

[Recommendation and Scope of Recommendation] Basic Field, Imprisonment with prison labor for one year to three years

(c) Results according to the standards for handling multiple crimes: Imprisonment with prison labor for not less than two years and six years to six months;

3. Determination of sentence;

[Unfavorable circumstances] The Defendant issued a synthetic marijuana owned by himself to a third party, and committed a crime of smoking synthetic marijuana without any different consideration on the ground that the only person who met the club is recommended. Narcotics-related crimes are likely to have a serious adverse impact on society as a whole, such as impairing an individual’s body and mind as well as impairing national health or inducing other crimes. Therefore, the Defendant needs to be punished strictly.

[Egrative circumstances] The Defendant’s mistake from an investigative agency to this court is seriously against his or her will, and there is no record of punishment for a criminal act other than those sentenced once to a fine prior to the instant crime.

In addition, the defendant's age, character and conduct, environment, family relationship, motive and circumstance of each of the crimes of this case, circumstances after the crime, etc., and all of the sentencing factors specified in the records and arguments shall be determined by comprehensively taking into account.

The presiding judge, judge Kim Jong-tae

Judges Kim Gin-han

Support for judges' organization

1) On May 2017, a prosecutor filed a claim for the collection of KRW 3,00 on the basis of the monthly trend of narcotics at the Supreme Prosecutors' Office on the Defendant's synthetic marijuana smoking crime. However, since the synthetic marijuana used by the Defendant is similar to JWH-018, it is reasonable to calculate the amount of such collection based on the amount of KRW 20,00, which is the price for cancer traded once JWH. Furthermore, even though a prosecutor is seeking for the collection on the Defendant's synthetic marijuana receiving, the amount of the synthetic marijuana issued by the Defendant is not specified, and thus, it is not presumed that the price cannot be calculated on the basis of the amount of the synthetic marijuana received by the Defendant.