2017Gohap873 Violation of the Act on the Control of Narcotics, etc. (marijuana)

A

Kim Jong-sung (prosecution) and Kim Jung-il (Trial)

Attorney B

October 13, 2017

A defendant shall be punished by imprisonment for one year.

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

The defendant shall be ordered to take a probation and a pharmacologic treatment course for 40 hours.

2,403,00 won shall be additionally collected from the defendant.

To order the defendant to pay an amount equivalent to the above additional collection charge.

Criminal facts

Notwithstanding the fact that the Defendant was not entitled to handle narcotics, the Defendant handled the marijuana as follows:

1. Purchasing marijuana;

A. On June 22, 2016, around 17:42, the Defendant remitted KRW 3 million, including KRW 1.5 million, to a new bank account (D) in the name of the seller of marijuana in C. On the 23th of the same month, the Defendant purchased approximately 10g of marijuana from C in front of the residence of Gangnam-gu Seoul, Seoul.

B. On October 3, 2016, the Defendant remitted KRW 300,000 to the above C’s account at around 23:01, and purchased approximately 2g of marijuana from C in front of the said C’s residence at around 23:30 on the same day.

C. On October 19, 2016, around 20:41, the Defendant purchased approximately 4g of hemp from C in cash at the street in front of the above C’s residence.

2. Smoking marijuana;

A. At around 17:00 on August 2016, 2016, the Defendant smoked marijuana of size and quantity of the hand saw in plastic pipe at the Defendant’s residence of Gangnam-gu Seoul FAdong 1502, and attached it to a log, thereby spreading the smoke with G and its smoke, and jointly with G.

B. On June 23, 2016, the Defendant smoked marijuana of the size of the hand saws in the Defendant’s residence by the aforementioned means, around a short time.

C. At around 01:00 on October 4, 2016, the Defendant smoked marijuana of the size and quantity of the saw in the above Defendant’s residence.

D. On October 4, 2016, around 22:00, the Defendant smoked marijuana of the size and quantity of the saw in the above Defendant’s residence.

E. From November 201, 2016 to December 23:00, the Defendant smoked 1g of marijuana in collaboration with H, who is a deadly handicapped student, in the above Defendant’s residence.

F. At around 22:00 on January 10, 2017, the Defendant smoked 1g of marijuana in collaboration with H, who is a private village student, in the above Defendant’s residence.

Summary of Evidence

1. Defendant's legal statement;

1. Each police suspect interrogation protocol of C, H, and G;

1. Response to a request for appraisal;

1. Each protocol of seizure and the list of seizure of police officers;

1. In cases of investigation reports (Confirmation of details of account transactions), investigation reports (A mobile phone analysis data), text messages with C, text messages with C, hemp photographs, hemp photographs, I message with H, J dialogues, C’s account deposit and withdrawal details, Seoul Central District Court Decisions 2016Nohap1170, Seoul Central District Court Decision 2017Nohap174, Seoul Central District Court Decision 2017No114, 957 (Joint Decision);

Application of Statutes

1. Article applicable to criminal facts;

Articles 59(1)7 and 3 subparag. 9 of the former Narcotics Control Act (Amended by Act No. 14019, Feb. 3, 2016); Articles 61(1)4(a) and 3 subparag. 10(a) of the Narcotics Control Act; Articles 31(1)4 and 3 subparag. 10(a) of the Criminal Act; Article 30 of the Criminal Act; Article 61(1)4(a) and Article 3 subparag. 10(a) of the Act on the Control of Narcotics, Etc. (Amended by Act No. 14019, Feb. 3, 2016; hereinafter “the Act”); Articles 61(1)4(a) and 3 subparag. 10(a) of the same Act (the Act

1. Aggravation for concurrent crimes;

The punishment provided for in the former part of Article 37, Article 38(1)2, and Article 50 of the Criminal Act and the punishment provided for in the Act on the Control of Narcotics, etc. (an aggravated punishment for concurrent crimes with punishment provided for in the Act on the Control of Narcotics, etc. (the Act on the Control of Narcotics, etc.) due to the trade

1. Suspension of execution;

Article 62(1) of the Criminal Act (Considering favorable circumstances among the following reasons for sentencing):

1. Orders for probation or education;

Article 62-2 of the Criminal Act, Article 59 of the Act on Probation, etc.

1. Additional collection:

The proviso to Article 67 of the Narcotics Control Act

* The basis for the calculation of the amount to be collected : 2,403,00 won [2,40,000 won in the purchase price of marijuana as indicated in paragraph (1) of the criminal facts stated in the judgment = 300,000 won + 300,000 won + 600,000 won in the criminal facts stated in subparagraph 2(a) of Article 2 of the criminal facts stated in the judgment]

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

Reasons for sentencing

1. The scope of punishment by law;

Imprisonment with labor for not less than one year nor more than 45 years;

2. Scope of recommendations according to the sentencing criteria;

Second Crimes

【Scope of Recommendation】

Type 2 (mariju, native (b), and (c), etc.) of Basic Area (1 to 2 years), such as trade mediation, etc.

【Special Convicted Person】

Second Crimes

【Scope of Recommendation】

Type 2 (mariju, native b.(b) and (c)) Basic Area (1 to 2 years), such as trade mediation, etc.

【Special Convicted Person】

Type 3 Crimes

【Scope of Recommendation】

Type 2 (mariju, native (b), and (c), etc.) of Basic Area (1 to 2 years), such as trade mediation, etc.

【Special Convicted Person】

* The scope of final sentence due to the aggravation of multiple offenses: one year to three years;

3. Determination of sentence;

[Unfavorable circumstances] Crimes related to narcotics are not easy to detect, due to its nature, and the risk of recidivism is high, as well as negative impacts on the society through recoverability and toxicity. The Defendant’s crime of this case is heavy in light of the frequency of the crime by purchasing marijuana over three occasions and smoking it over six times. The Defendant proposed that the Defendant smoke the marijuana purchased by him together to the neighbors over several times. It is not good that the Defendant committed the crime.

[Lied circumstances] The Defendant led to confession from the investigative agency to this court. The Defendant did not have the same criminal record as the Defendant was arrested. After arresting the investigation agency, the Defendant cooperateed in the investigation of the relevant case, thereby arresting another narcotics offender.

In addition, in consideration of the defendant's age, character and conduct, environment, the circumstances, means and results of this case, and all of the sentencing conditions in the records and arguments of this case, such as the circumstances after the crime, the punishment as ordered shall be determined.

presiding judge, judges, vibration

Judges Lee Jae-py

Power of Judge

1) On June 22, 2016, the Defendant: (a) was deemed to have remitted KRW 3 million to a new bank account under C at around 17:42, 2016; (b) the Defendant consistently asserted that the amount of KRW 1.5 million out of the police investigation level to the above 3 million to the present court was the purchase price for marijuana; (c) the Defendant and C received the J message for marijuana trade on September 26, 2016, and both the Defendant and C are recognized to have traded KRW 10,50,000 in the previous 10,000 won (Evidence record 324 pages); (c) the purchase price for marijuana stated in the instant crime No. 1-B; and (c) the amount of KRW 1.5,50,000,000,000,000,000,000 won paid to other persons than the Defendant on several occasions, including the amount of KRW 1.55,50,000,00 (32).

2) As to the scope of collection of narcotics under Article 67 of the Narcotics Control Act, a series of acts by the defendant who handles the same narcotics, etc., within the scope of his/her handling pursuant to Article 67, constitute separate offenses (see, e.g., Supreme Court Decisions 2000Do546, Sept. 8, 2000; 2010Do8764, Oct. 10, 28, 2010). Accordingly, the crime of smoking marijuana as indicated in Article 2-b through (f) of the facts constituting a crime in the judgment of the defendant is committed by marijuana purchased as stated in paragraph (1) of the facts constituting a separate offense.