Supreme Court: Seizure of Drug Defendant's Mobile Phone Violates Proportionality Principle

The Supreme Court has ruled that ordering the confiscation of a drug defendant's mobile phone, which was not directly used in the crime, violates the principle of proportionality when considering its connection to the crime.

Unlike crimes such as secret camera filming where the mobile phone is directly used as a tool for the crime, in this case, all necessary evidence to prove the crime, such as phone call records and text messages, had already been secured and the defendant had confessed to the crime, so there was no need to confiscate the phone. On the other hand, if the disadvantage to the defendant caused by confiscation is excessively large, confiscation cannot be permitted under the principle of proportionality.

Supreme Court, Seocho-dong, Seoul.

According to the legal community on the 30th, the Supreme Court's 2nd Division (Presiding Justice Cheon Dae-yeop) overturned the original ruling that sentenced Park Mo (40), who was indicted for possession or smoking of marijuana and methamphetamine (violation of the Narcotics Control Act), to one year in prison, ordered the confiscation of his mobile phone, and imposed a fine of 400,000 won, and remanded the case to the Suwon District Court.

The court stated, "The original court's decision to uphold the first trial's confiscation order on the grounds that the mobile phone in this case falls under 'an object provided for the commission of a crime' under Article 48(1)(1) of the Criminal Act misapplied the law regarding the substantial requirements for confiscation, including the principle of proportionality, and failed to conduct the necessary examination, which affected the judgment," as the reason for the reversal and remand.

Park was prosecuted for receiving marijuana in March 2020 and methamphetamine in June of the same year from A, and smoking and using them respectively for free.

The first trial court sentenced Park to one year in prison, imposed a fine of 400,000 won, and ordered the confiscation of one iPhone that Park used to contact A.

Park appealed, arguing that the sentence was too harsh and that the confiscation order for the mobile phone should be canceled because it was not an object directly provided or used in the crime.

However, the second trial court ruled that the mobile phone was "an object that substantially contributed to the commission of the crime" and found no problem with the first trial court's confiscation order.

Article 48(1) of the Criminal Act, which regulates the objects subject to confiscation, states that 'objects that do not belong to the ownership of persons other than the offender or objects acquired by persons other than the offender after the crime with knowledge of the circumstances may be confiscated in whole or in part,' and defines the following as subject to confiscation: ▲ objects provided or intended to be provided for the commission of a crime (No. 1) ▲ objects generated or acquired as a result of the crime (No. 2) ▲ objects acquired as compensation for No. 1 or No. 2.

In this case, the issue was whether Park's mobile phone, which he used to communicate with the drug provider A, could be considered an 'object provided for the commission of a crime' under Article 48(1)(1) of the Criminal Act.

The court first cited Supreme Court precedents.

Previously, the Supreme Court stated, "The term 'object provided for the commission of a crime' under Article 48(1)(1) of the Criminal Act is not limited to objects used in the execution of the crime itself, such as a knife used in a murder, but also includes objects used in acts before the commencement or after the completion of the execution of the crime, as long as they are recognized to have substantially contributed to the commission of the crime."

In other words, even if the mobile phone was not directly used as a tool in the drug crime, since it served as a means of communication with A, the drug provider, it was considered an object contributing to the crime and subject to confiscation.

The court cited as grounds that ▲ Park sent multiple messages via text or KakaoTalk messenger to A requesting 'please send marijuana by mail,' and received a message from A the day before receiving marijuana stating 'I sent the marijuana,' ▲ Park made a phone call to A just before receiving methamphetamine, concluding that "the mobile phone in this case sufficiently qualifies as an object that substantially contributed to the commission of the charged crime."

The second trial court also rejected Park's claim of 'excessive sentencing' and dismissed his appeal.

However, the Supreme Court's judgment was different.

The court cited Supreme Court precedents and pointed out, "Confiscation is discretionary, so even if the requirements are met, whether to actually confiscate is left to the court's discretion, but it is subject to the restriction of the principle of proportionality, which applies generally to punishments."

It then presented the following criteria to determine whether confiscation violates the principle of proportionality: ▲ the degree, scope, and importance of the confiscated object’s use in the commission of the crime ▲ the role and responsibility of the object's owner in the crime ▲ the degree of infringement on legal interests caused by the crime ▲ the motive for the crime ▲ the profits obtained from the crime ▲ the possibility of separately separating the part of the object related to the crime ▲ the substantial value of the object and its correlation and balance with the crime ▲ whether the object is indispensable to the offender ▲ the risk and degree of the offender using the object again to commit the same type of crime if not confiscated.

The court concluded, "Although the mobile phone in this case could be formally considered to meet the confiscation requirements at the time of initial seizure, considering the progress of the investigation and trial and the facts revealed through them, it is reasonable to find that it is difficult to conclude that it substantially contributed to the commission of the crime in this case."

As grounds for this judgment, the court cited ▲ the reason the defendant opened the phone under his grandmother's name was because he became a credit delinquent during the execution of a sentence due to past criminal records and could not open a phone under his own name ▲ the defendant's use of the phone related to the crime was limited to exchanging a few text messages and one phone call with A, so it was not directly used as a tool or in the execution of the crime of drug possession and use ▲ the defendant did not open and use the phone under another person's name for fraudulent purposes to conceal the crime or identity, so the correlation with the crime was very low, making it difficult to see a high possibility or risk of using it again as a direct and substantial means or tool for the same crime if not confiscated ▲ the seizure of the mobile phone was conducted to verify text messages and call records to specify the date and time of each crime, but since the defendant confessed to all criminal facts, there was no need to continue the seizure, and there was no strong need to deprive the defendant of possession or ownership to prevent similar crimes ▲ the defendant appears to use the phone to contact his wife and daughter living in China through a Chinese messenger app, so the mobile phone is not only of monetary or economic value but also an essential device for the defendant to contact family abroad, storing numerous personal information and electronic data such as contacts, financial transactions, and various accounts, making it indispensable for daily life and economic activities.

Finally, the court added, "Furthermore, considering the degree, scope, frequency, and importance of the use of the mobile phone in the commission of the crime, the personal privacy, freedom, and self-determination rights over information, which are all personal legal interests stored in this private information storage medium, far exceed its connection to the crime, so the disadvantage to the defendant caused by confiscation is excessively large, which also falls under cases where confiscation is restricted under the principle of proportionality."

This content was produced with the assistance of AI translation services.