A drug sale is already complete once methamphetamine is handed over in exchange for payment, even if the buyer immediately returns it, South Korea's Supreme Court has ruled. The court also found, however, that a person convicted only of selling methamphetamine cannot be ordered to complete a drug addiction rehabilitation program under the Narcotics Control Act.
According to legal sources on the 6th, the Supreme Court's Second Division, with Justice Oh Kyung-mi as the presiding judge, recently dismissed an appeal by a defendant identified as A, who had been indicted on charges of violating the Act on the Control of Narcotics, Psychotropic Drugs, Etc.. The ruling finalized a prison term of two years and six months and the forfeiture of 500,000 won. The court, however, overturned on its own authority the portion of the lower court ruling that required A to complete 40 hours of a drug addiction rehabilitation program.
A was brought to trial on charges of handing 1.4 grams of methamphetamine to a person identified as B at around 9 p.m. on Jan. 12 last year, inside their car parked on a road in Changwon, and receiving 500,000 won in return through an account held in another person's name. B returned the methamphetamine to A immediately after receiving it, saying the quantity was smaller than expected. A also returned the 500,000 won.
The issue was whether possession of the methamphetamine had transferred, completing the sale, even though the buyer returned the drug as soon as it was handed over. The trial court did not accept the charge that the sale had been completed. It found it difficult to conclude that possession had fully transferred to B, given that B returned the drug immediately because the quantity was small. The trial court instead convicted A of attempted sale of methamphetamine, sentencing A to one year and two months in prison and ordering A to complete 40 hours of a drug addiction rehabilitation program and forfeit 500,000 won.
The appeals court reached a different conclusion. It convicted A of a completed sale rather than an attempted one, sentencing A to two years and six months in prison and ordering A to complete 40 hours of the rehabilitation program and forfeit 500,000 won. The court found that A had received the full 500,000 won payment before meeting B and had actually handed over the methamphetamine at the scene, meaning the sale was already complete the moment B was able to take the drug without any interference. B's later change of mind and return of the drug amounted to nothing more than a circumstance arising after the offense had been completed, the court said.
The Supreme Court upheld the appeals court ruling. "The lower court did not err in its understanding of the legal principles governing the establishment of a violation of the Act on the Control of Narcotics, Psychotropic Drugs, Etc.," the court said. It nevertheless overturned the lower court's order to complete the rehabilitation program on its own authority. Article 40-2 of the Narcotics Control Act defines a "narcotics offender" under that provision as a person who has administered, smoked or ingested narcotics, and requires that such offenders, when convicted, in principle also be ordered to attend a course or complete a rehabilitation program of up to 200 hours. The Supreme Court found that A did not qualify as a "narcotics offender" under the law, because A was convicted only of selling narcotics rather than of administering, smoking or ingesting them.
