Even If Methamphetamine Is Returned Immediately After Being Handed Over... Supreme Court Says, "The Sale Was Already Complete"

[Financial News] The Supreme Court of Korea has ruled that an offense of selling narcotics is complete even if methamphetamine or other narcotics are handed over and immediately returned, with the money also refunded.
According to legal sources on the 6th, the Second Division of the Supreme Court of Korea, with Justice Oh Kyung-mi as the presiding justice, upheld on the 10th of last month an appellate ruling sentencing A to two years and six months in prison and ordering the forfeiture of 500,000 won for violating the Narcotics Control Act involving psychotropic substances.
A was indicted on charges of handing 1.4 grams of methamphetamine to B inside A's vehicle parked on a road in Changwon City in January last year and receiving 500,000 won in an account under another person's name in return. B, however, immediately returned the methamphetamine, saying the amount was smaller than expected, and A also returned the money. Separately, A was indicted on charges of using methamphetamine around May or June last year after methamphetamine was detected in A's hair.
The issue was whether the sale could be considered a completed offense even when the methamphetamine was returned immediately after it was handed over. A completed offense is one in which the crime has been fully carried out, while an attempted offense occurs when the perpetrator begins execution but does not achieve the result. An attempted offense may be punished less severely than a completed offense.
The first trial court found that the sale remained an attempt. Because B immediately refused to accept the methamphetamine at the scene, the court said it was difficult to conclude that possession of the drug had been transferred. It therefore entered an acquittal on the sale charge in the reasoning of the judgment, found A guilty only of attempted sale, and sentenced A to one year and two months in prison, 40 hours of a drug addiction rehabilitation program, and the forfeiture of 500,000 won.
An acquittal stated only in the reasoning of a judgment applies when charged facts that legally constitute a single offense with the portion found guilty are determined to be not guilty. In such cases, the court does not separately state the acquittal in the operative part of the judgment and instead records it only in the reasoning. Forfeiture is a disposition under which the state takes away gains obtained through a crime.
The charge of using methamphetamine was dismissed. The court found that the timing of the alleged offense had been estimated within only a one-month period based on the hair analysis, while the location and method were listed as "unknown," meaning the subject of the trial had not been sufficiently specified. Dismissal of an indictment is a decision to end a trial after finding a defect in the proceedings before determining guilt or innocence.
The second trial court reached a different conclusion. It found that A had already received the full payment before meeting B and that, after A handed over the methamphetamine, B could take it without any obstruction. The sale was therefore completed at that moment, the court ruled. The return of the drugs was merely a circumstance that occurred after the crime had been completed. The sentence was increased to two years and six months in prison, while the first trial court's dismissal of the drug-use charge was upheld.
The Supreme Court of Korea reached the same conclusion. The court rejected A's appeal, stating, "The original ruling contains no error in misapprehending the legal principles concerning the establishment of an offense under the Narcotics Control Act involving psychotropic substances."
However, the order requiring A to complete 40 hours of rehabilitation education was overturned ex officio. An ex officio reversal occurs when a court finds and corrects an error on its own, even if the party did not raise that issue as a ground for appeal.
The Narcotics Control Act requires courts to impose an order to attend or complete recidivism-prevention education when sentencing a "narcotics offender" to a guilty verdict. The same law, however, limits the term "narcotics offender" to a person who has administered, smoked, or ingested narcotics.
The court stated, "The facts charged against the defendant consist only of selling narcotics," adding, "Unless a person has been convicted of administering, smoking, or ingesting narcotics, that person is not a 'narcotics offender' and cannot be ordered to complete the program."
The Supreme Court of Korea chose reversal and self-adjudication rather than remanding the case to a lower court. Reversal and self-adjudication means that the Supreme Court overturns the original ruling and issues its own decision instead of sending the case back. As a result, only the two-year-and-six-month prison sentence and the forfeiture of 500,000 won remain for A. The ruling reaffirmed the principles of Supreme Court of Korea decisions issued in November 2022 and September 2024.

[email protected] Kim Dong-gyu Reporter