2006Do2339 Violation of Act on the Control of Narcotics, etc.

by the Supreme Court of Korea

Justices Kim Whang-sik (Justice in Charge), Kim Young-ran, Lee Hong-hoon, Ahn Dae-Hee (Presiding Justice)

Main Issues

1. The decision criteria for illegal undercover operation and the case which is not illegal operation
2. The case where it is hard to be regarded as illegal undercover operation, when the investigation branch had the inducer to entice the induced, but the induced had personal motive such as being granted the premium by the investigation branch, and independently approached the induced and requested the philophon deal which provoked the criminal intent of the narcotic crime.

Summary of Decision

1. Undercover operation which provokes the criminal intent from the person who did not have criminal intent from the beginning by using evil trick and a scheme is in itself, illegal. Whether it should be regarded as illegal undercover operation in actual case, we should overall look into the type and nature of the criminal act, status and role of the inducer, situation and method of inducement, reaction of the induced following the inducement, criminal history of the induced and the illegality itself of the inducement act as a whole. Accordingly, it is not allowed as illegal undercover operation when the inducer who has direct relationship with the investigation branch, resort to sympathy or emotion using personal relationship, inflict monetary, emotional pressure or threat, tempt the induced almost impossible to refuse, or provide any firm methods of crime, and provide financial resources to the crimes. However, it is regarded not as an illegal undercover operation when the inducer not having direct contact with the investigation branch requested the inducer to commit the crime repetitively, not using evil trick or scheme, even though criminal intent of the induced was provoked.
2. The case where it is hard to be regarded as illegal undercover operation, when the investigation branch had the inducer to entice the induced, but the induced had personal motive such as being granted the premium by the investigation branch, and independently approached the induced and requested the philophon deal which provoked the criminal intent of the narcotic crime.

Reference Provisions

1. Article 13 of the criminal Act, Article 327 Item 2 of the Criminal procedure Act
2. Article 13 of the criminal Act, Article 327 Item 2 of the Criminal procedure Act

Article 13 of the Criminal Act (criminal intent)

Act performed through ignorance of the facts which comprise the constituent elements of a crime shall not be punishable, except as otherwise provided by Act.

Article 327 (Judgment Dismissing Public Prosecution)

Public prosecution shall be dismissed by judgment in the following cases:

2. Where the procedure for instituting public prosecution is void by reason of its having been contrary to the provisions of Acts;

Reference Cases

Supreme Court Decision 2005Do1247 Delivered on October 28, 2005(Gong2007Ha, 1899), Supreme Court Decision 2006Do3464 Delivered on September 28, 2006

• Defendant, Appellee: Bongku Choi (CEO)

• Plaintiff, Appellant: Public Prosecutor

• Court of Second Instance: Seoul district Court Judgment 2005No42845 delivered on March 23, 2006

Disposition

The Judgment of the Court below shall be reversed and the case shall be remanded to the Seoul District Court Panel Division

Reasoning

We addresses the grounds of appeal.

1. Undercover operation which provokes the criminal intent from the person who did not have criminal intent from the beginning by using evil trick and a scheme is in itself, illegal.(Refer to Supreme Court Decision delivered Oct. 28, 2005 2005Do1247)

Whether it should be regarded as illegal undercover operation in actual case, we should look into the type and nature of the criminal act, status and role of the inducer, situation and method of inducement, reaction of the induced following the inducement, criminal history of the induced and the illegality itself of the inducement act as a whole.

Accordingly, it is not allowed as illegal undercover operation when the inducer who has direct relationship with the investigation branch, resort to sympathy or emotion using personal relationship, inflict monetary, emotional pressure or threat, tempt the induced almost impossible to refuse, or provide any firm methods of crime, providing financial resources to the crimes. However, it is regarded not as illegal undercover operation when the inducer not having direct contact with the investigation branches requested the inducer to commit the crime repetitively, not using evil trick or scheme, even though criminal intent of the induced was provoked.

2. The court below established the following facts based on its adopted evidence as a whole, that Young-Wha Kim who has been living with Seung-hee Suh after he was discharged from Chungsong Care and Custody facility, Seung-hee Suh has been granted premium in compensation for arresting narcotics offenders by assisting drug investigation five times working as an agent of Seoul central Public Prosecutors' office and, Young-Wha Kim who has known the defendant when he was serving time in Chungsong Prison, requested the defendant more than ten times from the early February 2005 that "A woman I know wants to purchase methamphetamine (hereafter Philophon)", the defendant has been rejecting the requests from Young-Wha Kim, inquired to Keum-jong Yoo whom he has been known since February 22, 2005 from Chungsong care and Custody facility, replied to him that "there is a person who wants to sell 20g of Philophon for 6-7 million won" and told the fact back to Young-Wha Kim; Seung-Hee Suh who has been told the story from Young-Wha Kim reported it to Drug investigator of Seoul Central Public Prosecutors' Office. The Drug investigator told her that he could not prepare for the money which should be used to purchase the Philophon, had Young-Wha Kim postpone the philophon deal; After that, the money to purchase the philophone was ready, Young-Wha Kim promised with the Defendant February 23, 2005 that they are supposed to meet the day after and informed it to Seung-Hee Suh who noticed it to drug investigator, hence the drug investigator with the money to purchase the drug accompanied the defendant, Seung-Hee Suh to meet Keum-Jong Yoo; Keum-Jong Yoo was arrested by undercover drug investigators, after the Defedant left, around 18:00 Febrary 24, 2005 when he had Jeoung-suk Kim sell philophon to Seung-Hee Suh and Young-Wha Kim was not indicted for the reason that he provided the information on the deal of philophon by assisting Seung-Hee Suh. Seung-Hee Suh who had been granted 100 million won as a premium for providing the information on the purchase of philophon. Hence, Young-Wha Kim acting as an agent for the investigation branch or intentionally approached the defendant for the purpose of being granted the premium with the consent of Seung-Hee Suh which ends up requesting the defendant to mediate the purchase.

The Defendant did not have the criminal intent originally, the criminal intent was provoked by investigation branch or instigation by the agent of the investigation branch, dismissed the public action for the lower court. Thus, court below reversed the judgment of the court of first instance which found the defendant as guilty as charged, and dismissed the indictment.

3. However, we can hardly accept the judgment below in the light of the above legal principles and the records. Even following the facts approved by the court below, investigation branch was only aware of the facts only through Seung-Hee Suh, after the defendant consented on the criminal act with the request from Young-Wha Kim. The Defendant was not aware of fact when Young-Wha Kim requested the defendant to find the philophon. Considering the circumstances, this case should be interpreted as such that it was not the investigation branch that had Seung-Hee Suh or Young-Wha Kim induce the defendant but Seung-Hee Suh or Young-Wha Kim independently induced the defendant with their personal motive to get obtain the premium.

In addition, Young-Wha Kim merely requested the defendant more than ten times that "A woman I know wants to purchase philophon" he did not resort to sympathy or emotion using personal relationship, inflict monetary, emotional pressure or threat, tempt the induced almost impossible to refuse, Accordingly, it is not allowed as illegal undercover operation when the inducer who has direct relationship with the investigation branch, resort to sympathy or emotion using personal relationship, inflict monetary, emotional pressure or threat, tempt the induced almost impossible to refuse, and provide any firm methods of crime, and provide financial resources to the crimes, if this is the case, the case can not be escalated to having used evil trick or scheme.

Thus, even though the criminal intent was provoked only after the defendant was requested from Young-Wha Kim, it should not be deemed illegal. This judgment can not be changed even after the knowledge that the purpose of Seung-Hee Suh and Young-Wha Kim's inducement acts were motivated by being granted the premium by the investigation branch, or the defendant declined the requests couple of times.

However, the court below misjudged that criminal acts in this case was incurred through illegal undercover operation, the court below erred in judgment in matters of law regarding undercover operation.

4. Therefore, the judgment of the original court shall be reversed. This decision is delivered with the assent of all Justices who heard the appeal.

Source

• Supreme Court Decision 2006Do2339 Delivered on July 12, 2007, Supreme Court Library of Korea