Supreme Court: "Asking a Close Friend for Shelter and a Burner Phone Is Not Aiding a Fugitive"

The Supreme Court has ruled that a fugitive who has been on the wanted list and requests a close acquaintance, with whom they have been close for over 10 years, to provide a hiding place and a phone registered under a false name cannot be punished for aiding the fugitive.

Even if the person who prepared the hiding place and the false-name phone at the fugitive's request is guilty of aiding the fugitive, from the fugitive's perspective, asking someone else to secure a hiding place or a false-name phone can be seen as an act within the ordinary scope of their escape, according to the ruling.

On the 22nd, according to the legal community, the Supreme Court's Third Division (Presiding Justice Eom Sang-pil) overturned the original ruling that sentenced Choi to eight years in prison on charges of violating the Act on the Aggravated Punishment of Specific Crimes (psychotropic substances) and aiding the fugitive, and remanded the case to the Seoul High Court.

Supreme Court in Seocho-dong, Seoul.

Article 151, Paragraph 1 of the Criminal Act, which stipulates the crime of aiding a fugitive, states, "A person who conceals or helps a person who has committed a crime punishable by a fine or heavier punishment to escape shall be punished by imprisonment for not more than three years or a fine not exceeding 5 million won."

The court cited Supreme Court precedents, stating, "Since the act of a fugitive escaping by themselves is not punishable as aiding a fugitive, the act of a fugitive requesting help from others to escape is also not punishable as long as it falls within the scope of escape acts. Even if the act of a third party who assists the fugitive at the fugitive's request constitutes aiding the fugitive, the same applies."

Until now, the Supreme Court has denied the establishment of the crime of aiding a fugitive when the act of helping the fugitive at their request, even if it meets the elements of aiding a fugitive and is punishable, is considered from the fugitive's perspective to be within the ordinary scope of the fugitive's escape acts.

The court further stated, "However, if the fugitive causes another person to make a false confession and thereby commits the crime of aiding a fugitive, which can be seen as an abuse of the right to defense, it may constitute the crime of aiding a fugitive." It added, "Whether it can be considered an abuse of the right to defense should be judged comprehensively by considering the nature and content of the act identified as helping the fugitive escape, the relationship between the fugitive and the actor, the specific circumstances at the time of the act, and the degree of risk that could affect the criminal justice process."

Regarding this case, the court explained the reason for overturning and remanding, stating, "It is difficult to accept the original court's judgment that the defendant's act falls outside the general scope of escape acts, causes significant obstruction to criminal justice, or constitutes an abuse of the right to defense as a criminal suspect."

Choi was searched at his residence in Namyangju, Gyeonggi Province, by prosecutors on October 18, 2021, on suspicion of smuggling 1.5 kg of methamphetamine from Thailand in collusion with Yang. Immediately after the search, Choi repeatedly called Lee, whom he had known since 2010, saying, "There is a legal mess. The company representative was arrested, and a search was conducted. The investigators cut my hair and took a urine test," and asked, "Is there a place to stay? Please prepare one usable mobile phone."

In response, Lee let Choi stay at a building in Yongin, Gyeonggi Province, which was Lee's residence, from the day he received Choi's call, and three days later, opened a mobile phone under an acquaintance's name and gave it to Choi. At that time, Lee was unable to open a mobile phone under his own name due to poor credit. Also, when prosecutors visited Lee's home on October 23, 2021, Lee lied, saying, "I haven't seen Choi for a long time. I don't even know Choi's phone number, and if you want to contact Choi, you have to contact another acquaintance," preventing investigators from finding Choi inside the building.

The first trial court found Choi guilty of both drug-related charges and aiding the fugitive and sentenced him to eight years in prison.

The trial focused on whether Choi's act of requesting a hiding place and a false-name phone from an acquaintance while being wanted and pursued could be considered an abuse of the right to defense.

The court stated, "Although the defendant's act was to help himself escape, it is reasonable to consider that it falls outside the general scope of escape acts, causes significant obstruction to criminal justice, or constitutes an abuse of the right to defense as a criminal suspect, and thus the crime of aiding a fugitive is established."

It added, "Due to Lee's false testimony, the defendant avoided arrest and continued to live in hiding for about six months even after submitting a power of attorney to the investigative agency. During that time, the investigation of the defendant and the investigation and trial procedures for accomplices were also obstructed."

Choi appealed, but the second trial court's judgment was the same.

However, the Supreme Court's judgment was different.

The Supreme Court judged that Choi's act did not fall outside the general scope of escape acts causing significant obstruction to criminal justice or constitute an abuse of the right to defense. The court cited three reasons for this judgment.

First, the court stated, "Lee appeared to have helped the defendant in response to the defendant's request due to their friendship of over 10 years, and they did not prepare human or material facilities for escape in advance or form an organized criminal group to divide roles."

Also, the court pointed out, "The core of the help the defendant requested from Lee was to provide a hiding place and a false-name mobile phone, and Lee allowed the defendant to live together at his residence and use a mobile phone opened under another person's name. Such acts can be sufficiently seen as a typical type of escape that does not cause significant obstruction to criminal justice."

Lastly, the court added, "Even if there was an implicit understanding between the defendant and Lee that if the defendant was at risk of being caught by investigative agencies, Lee would give false testimony about the defendant's whereabouts to help the defendant escape, and as a result, the defendant was able to continue living in hiding, it is difficult to consider such an intention or the resulting escape as an abuse of the right to defense as a criminal suspect."

Among past Supreme Court precedents on aiding a fugitive, there is a case where a guarantor who falsely recorded the personal details of a detained suspect on a bail bond was acquitted of aiding a fugitive, stating, "Even if a person appearing as a witness to the investigative agency remains silent or gives false testimony about the fugitive, it does not constitute aiding a fugitive unless it actively deceives the investigative agency to the extent that it makes the discovery or arrest of the fugitive difficult or impossible." The reason was that the investigative agency has the right and duty to identify the suspect and collect and investigate objective evidence to recognize the facts of the case regardless of the suspect's or witness's statements.

On the other hand, in this case, Lee, who provided a hiding place and a false-name phone to Choi and gave false testimony to the investigative agency, was separately prosecuted for aiding a fugitive, sentenced to imprisonment, and the sentence was finalized.