Defendant

Defendant

Preliminary (prosecution), Park Chang-hee et al. (Trial)

Attorneys Lee Jong-chul et al., Counsel for the defendant-appellant

Incheon District Court Decision 2012Gohap1089 Decided January 4, 2013

The defendant's appeal is dismissed.

1. Summary of the grounds for appeal (the mistake of facts or misapprehension of legal principles);

On September 7, 2012, the investigative agency opened an international express postal item (hereinafter “the instant postal item”) to which Nonindicted Party 1 sent “Nonindicted Party 2” or “Seoul-do, Namyang-si (hereinafter address omitted)” in China (hereinafter “the instant postal item”) or its component analysis was not subject to a warrant of seizure, and there was no subsequent seizure warrant after the component analysis. As such, the investigation agency’s collection of samples and ingredients analysis of the instant postal item, and seizure of the total phone as a whole violates the warrant requirement is illegal investigation. Although the Defendant voluntarily submitted the instant postal item from the Defendant after arresting the Defendant, the investigation agency may not remedy the defect of the aforementioned unlawful investigation. Moreover, the seizure protocol on the instant postal item and its content is inadmissible as evidence collected in violation of warrant requirement, and it should be deemed that there is no evidence evidence evidence from the above evidence, and there is no evidence request for discovery and analysis, examination request, examination report, and examination result of the suspect examination (see 11, 201).

In addition, the circumstances described in the lower judgment as consistent with the facts charged in the instant case are irrelevant to the evidence of the instant facts charged or rather supporting the Defendant’s assertion.

Therefore, even though the facts charged in this case did not constitute evidence with strict evidence having probative value, which makes a judge not have any reasonable doubt, the court below erred by misapprehending the facts or by misapprehending the legal principles, which affected the conclusion of the judgment, since the court below found the guilty of the facts charged in this case.

2. Determination

A. The judgment of the court below

(4) The lower court determined that the Defendant was unable to receive the instant item from Nonindicted 2 to Nonindicted 3, on the following grounds: (i) he was aware of the fact that Nonindicted 2 was using Nonindicted 4’s cellphones as evidence; (ii) the Defendant was unable to receive the instant item from Nonindicted 1 to 2’s cellphones on the following day; (iii) Nonindicted 2, who was unable to receive the instant item from Nonindicted 1 to 3’s cellphones; and (iv) the Defendant was unable to receive the instant item from Nonindicted 4 to 1’s cellphones on the following day; and (v) the Defendant was unable to receive the instant item from Nonindicted 2 to 4’s cellphones on the 20th day after being informed of Nonindicted 1’s receipt of Nonindicted 3’s cellphones. This case’s cell phone name and Nonindicted 2’s cell phone name on the 1st day of the instant item; and (v) the Defendant was sent to Nonindicted 1 to 240,000.

B. Judgment of the court below

1) Whether sampling, sampling, component analysis, etc. in the airport customs investigation division is subject to warrant requirement

A) Relevant statutes

(2) Where the head of a customs office deems that narcotics, etc. are shipped overseas or require to be shipped into the Republic of Korea in connection with an investigation into a narcotics crime for which a sufficient surveillance system is secured to prevent the distribution of narcotics, etc., he/she may take the following measures: Provided, That in cases where taking such measures is deemed inappropriate in light of the legislative purposes of customs-related Acts and subordinate statutes, he/she may choose not to take such measures; 1. 2. A license for import and export or return of the relevant cargo (excluding narcotics, etc. concealed in the relevant cargo) under Article 241 of the Customs Act; 2. Article 257 (1) (excluding subparagraph 1) of the Customs Act may be omitted before an import declaration is made to the head of a customs office for postal items to be inspected pursuant to the provisions of Article 257 of the Customs Act.

B) recognized facts

Comprehensively taking account of the evidence duly adopted and examined by the court below and the court below, the following facts are recognized.

(1) On September 18:25, 2012, Nonindicted 6, the Postal Prosecutor and the staff of the Incheon Airport International Postal Office, found the instant postal item that had a negative record while conducting an X-ray inspection on an international express grade postal item (EF53480373CN) that arrived at the Incheon Airport’s port, and Nonindicted 7, affiliated with the same division, found the instant postal item to be opened. The addressee of the instant postal item was indicated as “Nonindicted 2 (Carrying-on phone number omitted)” and “Seoul-do Yangyang-do (hereinafter address omitted),” respectively.

(2) The instant postal item was originally reported to Pium calcium (hereinafter “Pium”) but unlike the reported content, was distributed and concealed in the calcium medicine room in the form of 15 caps. Nonindicted 7 collected samples of 0.1g from the instant postal item on September 10, 2012, and Nonindicted 2 requested the analysis office of the Incheon Airport Customs to analyze ingredients.

(3) As a result of the component analysis of samples of the above 0.1g in the Incheon Airport Customs Office, it was confirmed as a Metepia, and the analysis room respondeded to the result of the component analysis on September 11, 2012.

(4) Nonindicted 8, who was employed as a narcotics investigation and narcotics investigator, received the results of the component analysis of the Incheon Airport Customs Office, prepared a report on detection immediately, and reported it to Nonindicted 9 of the Incheon District Prosecutors’ Office, and then delivered the instant mail by controlled delivery method in collaboration with the Incheon District Prosecutors’ Office to arrest the narcotics smuggling.

(5) Nonindicted 10, 11, 12, and 13, who is an employee of the Incheon Airport Customs, participated in the controlled delivery of the instant postal item with the investigator of the Incheon District Prosecutors’ Office. On September 11, 2012, the Joint Investigative Team departed from the Southyang post office, which is the competent post office, and the receiving area, and made a request for the controlled delivery cooperation to the Houseman at around 11:30.

(6) At around 13:30 on September 11, 2012, the Joint Investigative Team received notice from the recipient (on-line number omitted) recorded in the mail two times, and determined the delivery place as a two-round 13:35 in the vicinity of the purport of the delivery.

(7) At around 13:57 on the same day, the Joint Investigative Team arrested the Defendant who received the instant mail at the office of the Yang Pyeong Sea, as an offender in the act of committing a crime, and arrested Nonindicted 5, who was driving a Audi vehicle and accompanied with the Defendant.

(8) On September 11, 2012, the Defendant voluntarily submitted the instant postal items to the investigation agency at the Incheon District Prosecutor’s Office, and the prosecutor confiscated the instant postal items without a warrant.

C) Whether the search and seizure warrant is necessary

In light of the following circumstances, it is reasonable to view that a search and seizure warrant issued by a judge at the request of a prosecutor is not necessary for collecting samples from the postal examination division in the Incheon Airport Customs Office and analyzing ingredients in the Incheon Airport Customs Office. Accordingly, the defendant's allegation in this part of the grounds for appeal is groundless.

(1) According to Article 246(1) of the Customs Act, customs officers may inspect goods intended to be exported, imported, or returned. Article 257 of the Customs Act provides that when the head of a clearance post office receives postal items pursuant to Article 256(1), the customs officer shall undergo an inspection of postal items. However, the provision does not stipulate that a search and seizure warrant issued by a judge shall be issued.

(2) The customs collector has the authority to inspect goods or postal items imported or exported to the Republic of Korea in accordance with Articles 246 and 257 of the Customs Act, and upon discovery of narcotics, etc. among them, the customs collector must conduct an inspection as to whether the goods, etc. are narcotics and determine whether to carry them into the Republic of Korea or to return them.

(3) In conducting an inspection of a large number of items, etc. received daily at a customs office of Korea, the issuance of a search and seizure warrant issued by a judge at the request of a prosecutor may be delayed by making excessively complicated procedures to ensure the customs clearance in a customs office. Thus, it can be deemed that the Customs Act specifically provides for the inspection and analysis of items, etc. exported and imported in a customs office so that they can be conducted without a search and seizure warrant.

(4) The main text of Article 12(3) of the Constitution provides that “In cases of arrest, detention, seizure or search, a warrant issued by a judge upon request of a prosecutor shall be presented according to lawful procedures.” Accordingly, since Article 215 of the Criminal Procedure Act is embodying this, a warrant of search and seizure under the Criminal Procedure Act shall be required in cases of search and seizure as necessary for investigation.

However, although an inspection of opening, collecting, component analysis, etc. of postal items, etc. on goods and postal items received from a customs office pursuant to Articles 246 and 257 of the Customs Act may partially infringe on the people’s rights, it constitutes an administrative investigation conducted within a customs office for the purpose of making a decision on the export, import, return, etc. of goods and etc., which is not a compulsory disposition (Seizure and search) by an investigation agency, and thus is not a compulsory disposition by an investigation agency, and thus, the procedure of criminal investigation is distinguishable from the investigation of a crime. Therefore, the search and seizure warrant is unnecessary for an inspection of goods, postal items, etc. in the above customs office. As such, Articles 246 and 257 of the Customs Act granting the head of a customs office the authority to investigate goods and postal items within a customs office without a warrant of search and seizure without a warrant of search and seizure can be limited only in cases where it is necessary for national security, maintenance of order, or public welfare, and even in cases where such restriction is restricted, the fundamental freedom and rights cannot be deemed as being delegated by a warrant of search and seizure of postal items.

2) Whether it is unlawful for an investigative agency to seize the instant mail from the Defendant

According to the facts examined above, the Joint Investigative Team revealed, as a result of the component analysis in the customs house, that the goods contained in the instant postal item were revealed to be the Meteatopian, and arrested the Defendant as a flagrant offender at the delivery site through controlled delivery of the instant postal item, and seized the entire postal item from the Defendant at will, without a warrant, after receiving the entire postal item from the Defendant.

Article 218 of the Criminal Procedure Act provides that "a prosecutor, judicial police officer, or other valuables left behind by a suspect or any other person, or articles voluntarily submitted by the owner, possessor, or keeper, may be seized without a warrant." Thus, it is lawful for an investigative agency to seize the postal item of this case without a warrant upon voluntary submission from the defendant.

On the other hand, the defendant's defense counsel argues that the seizure of the mail of this case is not a legitimate seizure even if the defendant voluntarily received the mail of this case after the defendant received it from the defendant after the joint investigative team revealed that the items in the mail of this case were identified as the mail of this case, and then the controlled delivery of the mail of this case was practically carried out. As such, the defendant's defense counsel argued that the above seizure of the mail of this case is not a legitimate seizure. The controlled delivery means that the investigator belonging to the joint investigative team and the mail office clerk arrest the addressee at the site immediately after the mail of this case is delivered to the addressee, with the cooperation of the mail office clerk, where it is necessary to specify the addressee because the items in the mail of this case are identified as narcotics and it is necessary to identify the addressee as the mail of this case. However, in the process of the above controlled delivery, the investigator has actually secured possession of the mail of this case, since it is likely that the mail of this case might be evidence, it cannot be argued that the delivery of the mail of this case is a compulsory disposition to the addressee.

3) Whether the judgment of the court below that found the defendant guilty is appropriate

In full view of the aforementioned circumstances, the lower court’s determination that: (a) the investigation commencement report of the prosecutor’s investigation; (b) the detection report and detection photograph; (c) response to the request for component analysis and analysis; and (d) the mail transmission paper of this case; and (b) the seizure report of this case were inadmissible; and (c) the lower court did not adopt as evidence on the ground that the Defendant conspired with Nonindicted Party 1 in collusion with Nonindicted Party 1 on September 7, 2012, included approximately 4.9g of the Mepta in Chinese medicine in combination with 15, and sent it in Korea by international special-level mail, and was sealed by sending it to Korea at around September 18:25, 2012; and (b) the lower court was justifiable to have determined that there was no error of law by mistake of facts or misapprehension of legal principles as alleged in the grounds for appeal.

3. Conclusion

Therefore, the defendant's appeal is without merit, and it is dismissed in accordance with Article 364 (4) of the Criminal Procedure Act. It is so decided as per Disposition.

Judges Yellow Hahn (Presiding Judge)