Defendant

Prosecutor

Kim Sang-young

Attorney Seol Li (Korean National Assembly Line)

Daegu District Court Decision 2009No4081 Decided February 5, 2010

The judgment of the court below is reversed.

A defendant shall be punished by imprisonment with prison labor for ten months and by a fine of ten million won.

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

To order the defendant to be put on probation.

When the defendant fails to pay the above fine, the defendant shall be confined in the workhouse for a period calculated by converting 50,000 won into one day.

In order to order the provisional payment of an amount equivalent to the above fine.

80,000 won shall be additionally collected from the defendant.

1. Summary of grounds for appeal;

In full view of the relevant evidence, although the defendant could have sold 0.5g of philophones to non-indicted 1 on September 17, 2009 and recognized the fact that he administered 0.1g of philophones on the same day, the court below found the defendant not guilty of this part of the facts charged, which affected the conclusion of the judgment by misunderstanding the facts.

2. Summary of the facts charged in this case

A. At around 16:00 on September 17, 2009, the Defendant purchased approximately KRW 500,000 from Nonindicted Party 1 for the purchase price of scopon, and purchased approximately KRW 1 g of the scopon from his name-disscopon from his name-disscopon. At around 20:30 on the same day, at Nonindicted Party 1’s house of Ansan-si (hereinafter omitted), approximately KRW 0.5 g of the scopon purchased as above from his name-disscopon from his name-disscopon. Accordingly, the Defendant sold approximately KRW 0.5 g of the scopon to Nonindicted Party 1 in his name-disscopon.

B. At around 20:30 on September 17, 2009, the Defendant injected approximately 0.1g of philophones at Nonindicted Party 1’s house into a single-use injection machine, dilution with water, and injection with water.

3. The judgment of the court below

The court below found the defendant not guilty on the grounds that it is difficult to believe that, in light of the following facts: (a) Non-Indicted 1’s investigative agency or this court’s statement made in compliance with the above facts charged: (b) the date of trading or volume of writingphones, and the statement made in the place of trading; (c) the defendant’s voice reaction in the c) the defendant’s hair taken on October 12, 2009; and (d) Non-Indicted 1 made a statement that the defendant purchased and sold a penphone from Non-Indicted 2; (b) Non-Indicted 2 denied it; and (d) the defendant's statement to the effect that he could first voluntarily surrenders to, and may be bound by, a cellphone medication; and (d) Non-Indicted 1’s statement to the effect that it could not be ruled out that there was any possibility that the defendant made a false proposal against the defendant in order for him to be subject to punishment less than punishment, there is lack of evidence to acknowledge this part of the facts charged.

4. Judgment of the court below

Examining the credibility of Non-Indicted 1’s statement, which corresponds to the facts charged in the instant case, based on the following: (i) Nonindicted 1 withdrawn KRW 500,00 from the national bank account in his name on September 17, 2009; and (ii) the Defendant and Non-Indicted 1 were in an inner Dong-dong (in the vicinity of the new market) around 16:00 on the same day; (iii) the fact that the date of trading the phone on September 18, 2009 to September 17, 2009 was reversed by Non-Indicted 1’s phone trading volume from 0.1g to 0.5g; (iv) even if the Defendant made a statement from Non-Indicted 1’s investigative agency on September 18, 2009 to 0.5g, it appears that there was no big difference in the mobile phone trading volume; and thus, (iv) it appears that the Defendant purchased the phone by means of a relatively detailed statement, not the Defendant’s oral statement.

Therefore, in full view of the statements made by Nonindicted Party 1 and the evidence duly adopted and examined by the lower court and the lower court, it can be recognized that the Defendant sold 0.5g g of philopon to Nonindicted Party 1 on September 17, 2009 and administered 0.1g of philopon on the same day. Therefore, the lower court acquitted the Defendant of the facts charged in this case, which erred by misapprehending the facts, and thereby adversely affecting the conclusion of the judgment.

5. Conclusion

Therefore, since the prosecutor's appeal is well-grounded, the judgment of the court below is reversed in accordance with Article 364 (6) of the Criminal Procedure Act, and it is again decided as follows.

The Defendant was sentenced to imprisonment with prison labor for eight months or two years of suspension of execution for the crime of obstruction of performance of official duties in the Daegu District Court’s Ansan Branch on August 20, 209, and the said judgment became final and conclusive on August 28, 2009 and is not a person handling narcotics who is currently under the said grace period.

[209 Highest 4081]

1. On August 27, 2009, the Defendant granted approximately 0.02 g of psychotropic drugs to Nonindicted 1 at ○○○○○○○○○○○○○○ located in Echeon-dong, Acheon-si, Acheon-si, Ancheon-si without compensation.

2. At around 16:00 on September 17, 2009, the Defendant received KRW 500,000 from Nonindicted Party 1 for the purchase price of the philopon from Nonindicted Party 1, and purchased approximately KRW 1g of the philopon from Nonindicted Party 1, at around 20:30 on the same day, the Defendant provided approximately KRW 0.5g of the philopon purchased from Nonindicted Party 1’s house of Ansan-si (hereinafter omitted). Accordingly, the Defendant sold approximately KRW 0.5g of the philopon to Nonindicted Party 1.5g of the philopon.

3. At around 20:30 on September 17, 2009, the Defendant injected approximately 0.1g of philophones at Nonindicted Party 1’s house into a single-use injection machine, and dilution with water for injection.

[209 Highest 4398]

1. Around 21:00 on August 26, 2009, the Defendant purchased from Nonindicted 2 for 200,000,000 clopon 0.03 glopon in the car owned by the Defendant (vehicle registration number omitted) who was stopped on the road near the central highway, Seoblopon, Pung-si, Pung-si.

Accordingly, the defendant purchased and sold philophones.

2. At around 21:30 on the same day, the Defendant administered the Defendant’s 0.01g, which was parked in front of the apartment △△△△ apartment located in the Ansan-dong, in the foregoing manner, on the penphone purchased as above, in the car of the Defendant.

1. Statements by the court below in part of the defendant

1. Nonindicted 1’s statement at the lower court and at the trial court

1. Each legal statement of the lower court by Non-Indicted 2 and 3 of the witness

1. Attachment of a detailed statement of currency and details of passbook transactions;

1. Investigation report (transaction price smuggling for the Mesphere);

1. Previous convictions in judgment: Criminal records and investigation reports (the attachment report of a written judgment, and the investigation records of the case 107 pages);

1. Article applicable to criminal facts;

Articles 60(1)3, 4(1), and 2 subparag. 4(b) of the Narcotics Control Act

1. Selection of punishment;

The crimes of violation of the Act on the Control of Narcotics, etc. (psychotropic Affairs) concerning the sale and purchase of phiphones on August 26, 2009, the medication, and the delivery of phiphones on August 27, 2009 shall be punished by imprisonment, and the crimes of violation of the Act on the Control of Narcotics, etc. (psychotropic Affairs) concerning the sale and purchase of phiphones on September 17, 2009 shall be punished by fine, respectively.

1. Handling concurrent crimes;

The latter part of Articles 37 and 39(1) of the Criminal Act [mutual crimes of violation of the Act on the Control of Narcotics, etc. and of obstruction of performance of official duties for which judgment becomes final and conclusive on August 26, 2009 concerning the trade, medication, and delivery of philoon free of charge on August 27, 2009];

1. Aggravation for concurrent crimes;

Article 37 (former part), Article 38 (1) 2, and Article 50 of the Criminal Act [mutual crimes of violation of the Act on the Control of Narcotics, etc. ( natives), among the crimes of violation of the Act on the Control of Narcotics, etc. (competences), among the crimes of violation of the Act on the Control of Narcotics, etc. (competences) with respect to the sale and purchase of phiphonephones on August 26, 2009 and the issuance of phiphones on August 27, 2009], among the concurrent crimes of violation of the Act on the Control of Narcotics, etc. (competences) with respect to the sale and purchase of phiphones on September 17, 2009 and the administration of phiphones on the phiphones on which the quality of the crime is heavier, among the concurrent crimes of violation of the Act on the Control of Narcotics, etc. (competences on

1. Suspension of execution;

Article 62(1) of the Criminal Act

1. Probation;

Article 62-2 (1) and main sentence of Article 62-2 (2) of the Criminal Act

1. Invitation of a workhouse;

Articles 70 and 69(2) of the Criminal Act

1. Order of provisional payment;

Article 334(1) of the Criminal Procedure Act

1. Additional collection:

The proviso of Article 67 of the Narcotics Control Act

Judges Lee Young-young (Presiding Judge)