2016Gohap1275 Violation of the Act on the Control of Narcotics, etc. (marijuana)

1. A;

2. B

3. C

He/she shall hold a prosecution against his/her deceased seat, Kim Jong-ok (Trial)

Law Firm D (for Defendant A)

Attorney E in charge

Law Firm F (Defendant B, C)

Attorney G in charge, H

February 7, 2017

1. The defendant A shall be punished by imprisonment for one year, by imprisonment for eight months, and by imprisonment for six months, respectively.

2. However, for two years from the date this judgment became final and conclusive, the execution of each of the above punishments against the Defendants shall be suspended.

3. To order the Defendants to be put on probation.

4. To order the Defendants to take a 40-hour pharmacologic course.

5. The evidence seized from the defendant A and the evidence from subparagraph 1 to 2 shall be confiscated from the defendant A, respectively.

6. 368,800 won from Defendant A, 6,000 won from Defendant B, and 3,000 won from Defendant C shall be collected respectively.

7. To order the Defendants to pay an amount equivalent to each of the above additional collection charges.

Criminal facts

Defendants are not persons handling narcotics.

1. Defendant A

A. around March 2016, Defendant A contacted L using “K’s Social Network Services for Smartphones” on the roads near Jon University located in Seoul Special Metropolitan City, and 400,000 won in return for the contact.

Accordingly, Defendant A purchased marijuana.

B. On March 2016, Defendant A, at his own house located in Seocho-gu Seoul Metropolitan Government M and 24 Dong 404, she injected it with a pipe made by main disease and with a fire attached thereto.

Accordingly, Defendant A smoked marijuana.

C. At around May 2016, Defendant A inhaled the smokes with B, along with B, in the vicinity of the said N Station.

Accordingly, Defendant A smoked marijuana.

D. Defendant A smoked marijuana with B at the time, time, and place described in the foregoing paragraph (c), as seen above, and then granted approximately 0.3g of marijuana free of charge to B.

Accordingly, Defendant A accepted marijuana.

E. On July 2016, Defendant A gave C approximately 0.5g of marijuana in the vicinity of the PP University located in Seoul 0, 2016.

Accordingly, Defendant A accepted marijuana.

F. around July 19, 2016, Defendant A inhaled the smoke with B, along with B, in the vicinity of the said N Station.

Accordingly, the Defendant smoked marijuana.

G. At around 21:50 on July 19, 2016, Defendant A stored approximately 0.39g of hemp in Qu near Gangnam-gu Seoul in vinyl.

Accordingly, Defendant A possessed marijuana.

2. Defendant B

A. Defendant B, at the time, at the time, and at the place specified in paragraph (1)(c), inhaled the smoke with a fire in the marith of marijuana together with A.

Accordingly, Defendant B smoked marijuana.

B. Defendant B received approximately 0.3g of marijuana from A at the time and place specified in paragraph (1)(c).

Accordingly, the defendant accepted marijuana.

C. Defendant B inhaled the smoke with the date, time, and place set forth in paragraph (1) of this Article, together with A.

Accordingly, Defendant B smoked marijuana.

D. Defendant B stored approximately 0.06g of hemp in vinyl packaging at the time and place of entry of the matters set forth in subparagraph 1.

Accordingly, Defendant B possessed marijuana.

3. Defendant C.

Defendant C received approximately 0.5g of marijuana from A at the time and place specified in paragraph 1(e).

Accordingly, the defendant accepted marijuana.

4. The Defendants’ co-principal

On July 18, 2016, Defendant A delivered his intent to purchase marijuana by linking L with L’s IDs at “K, a social network service. After all, the Defendants, around July 19, 2016, intended to purchase approximately KRW 90,000,000 in total, around 19, 2016, approximately 30,000,000 won, respectively.

Defendant A attempted to purchase marijuana by providing KRW 900,000 to police officers who are disguised traders in order to purchase approximately 9g of marijuana in the vicinity of Gangnam-gu Seoul on the same day at around 21:50,000.

Accordingly, the Defendants conspired to purchase marijuana and attempted to purchase it.

Summary of Evidence

1. Defendants’ legal statement

1. Prosecutions and police suspect interrogation protocol for the Defendants

1. A copy of the police investigation report concerning L;

1. Each protocol of seizure, each list of seizure, and each certificate of seizure;

1. Requests for appraisal;

1. Each appraisal report on A, B, search and seizure, marijuana and hair, C, and hair respectively;

1. Details of sending and receiving letters between L and Defendant A, and those of disguised transactions with Defendant A;

1. Photographs of seized articles;

Application of Statutes

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

(a) Defendant A: Articles 59(1)7 and 3 subparag. 7 (a) of the Act on the Control of Narcotics, etc., Articles 61(1)4 (a) and 3 subparag. 10 (a) of the Act on the Control of Narcotics, Etc., and Articles 61(1)4 (a) and 61(1)6 and 4(1)2 (a) of the Act on the Control of Narcotics, etc., respectively, Articles 61(1)6 and 61(1)6 of the Act on the Control of Narcotics, etc., Articles 59(3) and 59(1)7 and 3 subparag. 7 of the Act on the Control of Narcotics, etc., Article 30 of the Criminal Act (a)

(b) Defendant B: Articles 61(1)4 (a) and 3(10 (a) of the Act on the Control of Narcotics, Etc. (the point of smoking marijuana and the choice of each imprisonment), Articles 61(1)6 and 4(1)2 (the point of receiving and carrying marijuana and each imprisonment) of the Act on the Control of Narcotics, etc., Article 59(3) and (1)7 of the Act on the Control of Narcotics, etc., Article 30 of the Criminal Act (the point of attempted purchase of marijuana)

(c) Defendant C: Articles 61(1)6, 4(1)2 (a) of the Act on the Control of Narcotics, Etc., Article 59(3) and (1)7, and Article 3 subparag. 7 of the Act on the Control of Narcotics, Etc., Article 30 of the Criminal Act (the point of attempted purchase of marijuana)

1. Attempted mitigation;

Defendants: Articles 25(2) and 55(1)3 of the Criminal Act (as to the violation of the Act on the Control of Narcotics, etc. concerning Attempted Purchase of Cannabis)

1. Aggravation for concurrent crimes;

Defendants: former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act (Provided, That Defendant C shall be limited to the sum of long-term punishments of the above two crimes)

1. Suspension of execution;

Defendants: Article 62(1) of the Criminal Act (Consideration of favorable circumstances, etc. among the reasons for sentencing below)

1. Orders for probation or education;

Defendants: Article 62-2 of the Criminal Act

1. Confiscation;

Defendant A and B: the main sentence of Article 67 of the Act on the Control of Narcotics, Etc.

1. Additional collection:

Defendants: the proviso of Article 67 of the Narcotics Control Act

○ Calculation of Additional Collection

(a) Defendant A: 5g purchase price for marijuana 400,000 - 31,200 won for the seized marijuana 0.39g (=400,000 won: 5g X0.39g) = 368,80 won;

(b) Defendant B: 3,00 won = 6,00 won (with respect to marijuana received by the Defendant B, confiscated during its possession); and

(c) Defendant C: Acceptance of marijuana once ¡¿ 3,000 won = 3,000 won per market price; and

1. Order of provisional payment;

Defendants: Article 334(1) of the Criminal Procedure Act

Judgment on Defendant B, C, and their defense counsel’s assertion

1. The assertion;

The crime of attempted purchase of marijuana as stated in the criminal facts of the judgment is caused by illegal naval investigation.

2. Determination

The so-called "ship investigation" refers to an investigation method by which an investigative agency, by means of tricks, schemes, etc., causes a person who does not have the original criminal intent to commit a crime, thereby arresting the criminal. Thus, it cannot be said that a person who has the criminal intent is given an opportunity to commit a crime or made it easy to commit a crime (see, e.g., Supreme Court Decision 2004Do1066, May 14, 2004).

According to the above evidence, as described in paragraph (4) of the criminal facts in the judgment, Defendant A purchased marijuana from L on or around March 2016, as described in paragraph (4) of the criminal facts in the judgment, and thereafter sent L a message to wish to purchase marijuana again on or around June 2016. Defendant B and C, as described in paragraphs (2) and (3) of the criminal facts in the judgment, have already received marijuana from Defendant A, or expressed their intention to actively want to purchase marijuana after smoking it with Defendant A, and as described in paragraph (4) of the criminal facts in the judgment, Defendant B and C expressed their intent to purchase marijuana together even at the time when Defendant A intended to purchase marijuana. Considering the above facts, Defendant B and C were recognized as having an active criminal intent around July 2016, which is the date of the criminal facts in the judgment, and thus, Defendant B and C cannot be deemed as having the defense counsel’s opportunity to purchase it. Accordingly, Defendant C’s defense counsel’s aforementioned criminal facts are not justified.

Reasons for sentencing

1. The scope of punishment by law;

(a) Defendant A: Imprisonment with prison labor for one year to 45 years;

(b) Defendant B: Imprisonment with prison labor of six months to twenty-two years and six months;

(c) Defendant C: Six months of imprisonment to twenty years;

2. Application of the sentencing criteria;

A. Defendant A

(a) Basic crime: Violation of the Act on the Control of Narcotics, etc. ( marijuana) concerning the purchase of marijuana;

【Determination of Types】 Trading, arranging, etc. of Narcotics Crimes, magrative b. & c. (Types 2)

【Special Convicted Person】

[Scope of Recommendation] One year to two years (Basic Area) imprisonment

(b) Concurrent crimes provided for in subparagraphs 1 and 2: Violation of the Act on the Control of Narcotics, etc. (mariana) concerning smoking of marijuana;

[Determination of Types] Medition, simple possession, etc. of narcotics crimes, marijuana, flavoring (d) and (e) (no person specially punished) shall be punished.

[Scope of Recommendation] From 8 months to 1 year and 6 months (Basic Area)

3. Scope of recommendations according to the standards for handling multiple crimes: Imprisonment with prison labor for one year (minimum limit of basic crime) to three years and three months;

[The upper limit of basic crimes (2 years) + the upper limit of concurrent crimes 1/2 (9 months) + the upper limit of concurrent crimes 1/3 (6 months)]

4) The scope of revised recommendation: Imprisonment for not less than one year (the crime of violation of the Act on the Control of Narcotics, etc. against Attempted Bribery is an attempted crime, and thus the sentencing criteria set by the Sentencing Committee of the Supreme Court are not applied. Since other crimes are concurrent crimes under the former part of Article 37 of the Criminal Act, the minimum limit of the sentencing recommendation range in the above sentencing criteria

B. Defendant B

(a) Basic crimes and concurrent crimes: Violation of the Act on the Control of Narcotics, etc. (mariana) concerning smoking of marijuana;

[Determination of Types] Medition, simple possession, etc. (Type 2) of narcotics crimes, such as marijuana, perfume administration, items (d) and (e) (Type 2).

【Special Convicted Person】

[Scope of Recommendation] From 8 months to 1 year and 6 months (Basic Area)

2. Second concurrent crimes: Violation of the Act on the Control of Narcotics, etc. (mariana) concerning the acceptance of marijuana;

【Determination of Type 1】 Trading, arranging, etc. of narcotics crimes, hallucinogenic substances, flag (Type 1)

【Special Convicted Person】

[Scope of Recommendation] Six months to one year and four months (Basic Area)

3. Scope of recommendations according to the standards for handling multiple crimes: Imprisonment for a period of eight months (minimum limit of basic crimes) to three years;

2.3months [the upper limit of basic crimes (two years) + the upper limit of concurrent crimes 1/2 (9 months) + the upper limit of concurrent crimes 1/3 (5.3 months)];

4) Scope of revised recommendation: Imprisonment for not less than eight months (the crime of violation of the Act on the Control of Narcotics, etc. (hereinafter referred to as the attempted purchase of marijuana) is an attempted crime, and thus the sentencing criteria set by the Sentencing Committee of the Supreme Court are not applied. Since other crimes are concurrent crimes under the former part of Article 37 of the Criminal Act, the minimum of the sentencing recommendation range

(c) Defendant C: Violation of the Act on the Control of Narcotics, etc. ( marijuana) in relation to giving and receiving marijuana;

【Determination of Types】 Trading, good offices, etc. for narcotics crimes, hallucinogenic substances, flaz. (No. 1)

【Special Convicted Person】

[Scope of Recommendation] Six months to one year and four months (Basic Area)

[Scope of the revised recommended sentence] Imprisonment for not less than six months [the lowest limit of the range of sentence recommended in the above sentencing guidelines shall apply since the crime of violation of law (a violation of the Act on the Control of Narcotics, etc. against the attempted purchase of marijuana) is an attempted crime, and the sentencing guidelines set by the Sentencing Committee of the Supreme Court are not applied. Since other crimes are concurrent crimes under the

3. Determination of sentence;

(a) Defendant A: Imprisonment with prison labor for one year, suspended execution for two years, probation, and an order to attend a course for pharmacologic treatment for forty hours;

(b) Defendant B: Imprisonment for a period of eight months, probation period of two years, and probation period of forty hours;

(c) Defendant C: Imprisonment with prison labor for six months, probation for two years, and probation for 40 hours;

Defendants are all led to each of the instant crimes, and each of the instant crimes has no criminal record. The attempted charge of the purchase of marijuana in this case was limited to attempted crimes, and Defendant C’s result of the inspection of narcotics, etc. related to urines and hairs is voice.

The punishment as ordered shall be determined in consideration of all the sentencing conditions shown in the pleadings of this case, such as the defendant's age, health, character and conduct, environment, family relationship, motive for committing the crime, and circumstances after committing the crime.

Chief Judge Cho Nam-nam

Judges authorized-type Judge

Judges Yoon Dong-dong

1) In the facts charged in the indictment, the Defendant stated as follows: “The Defendant shall purchase approximately KRW 3g of the hemp around July 19, 2016 to KRW 900,000,000,” but this appears to be obvious clerical error, thereby recognizing the facts of the crime by revising it as above.