With cannabis, ‘buying’ can be heavier than smoking

In consultations on cannabis cases, many people start by saying, ‘I only smoked it a few times.’ But the weight of a cannabis case is sometimes decided more by how the cannabis was obtained and to whom it was passed than by the number of times it was smoked. This is because, even with the same cannabis, the applicable provision differs completely depending on the act.

Smoking and trading are in different provisions

Smoking cannabis, or possessing it for the purpose of smoking, carries imprisonment of up to five years or a fine of up to 50 million won (Article 61(1)4 of the Narcotics Control Act (마약류관리법)). Cultivation, possession, receiving and transporting are also in the same Article 61. By contrast, buying or selling cannabis, or arranging or encouraging its sale, falls under Article 59(1)7, with no fine option and imprisonment for a definite term of at least one year.

The difference between the two provisions is more than numbers. Under a provision that allows a fine, a first offender with few occasions has a relatively wide chance of the case ending with a suspended indictment or a fine. Under a provision with a minimum of one year, a fine cannot be chosen, so if the case goes to trial you argue for a suspended sentence on the premise of imprisonment.

In practice, buying cannabis is sometimes treated as trading and this provision is applied. That is why, in cases where a seller is caught and the list of buyers is handed over, buying becomes an issue as well as smoking.

In Telegram transactions where transfer records and chats remain, the number of purchases is fully exposed. Rather than giving a lower or higher number from memory, the first step is to check each transaction in the records one by one and see whether any transfers unrelated to you are mixed in.

If you bought a friend's share as well

It is common for one person to buy on behalf of several people who plan to smoke together. The part bought from the seller can be treated as trading, and the part passed on to friends is trading if you received payment, or receiving and giving if you simply gave it. If there are transfer records, you first need to sort out whether that money was payment for cannabis or a split of shared expenses.

This distinction carries through to the sentence. In the trading and brokering category, the sentencing guidelines for drug crimes list ‘buying or receiving for use, simple possession and the like’ as a special mitigating factor. If it is accepted that you bought solely for your own use, even the same purchase may be assessed differently.

It is different if the other person is a minor

Giving cannabis to a minor or having a minor smoke it carries imprisonment for a definite term of at least two years (Article 58-2(1)). If anyone in the group was a minor, that fact must be checked first. Since the weight of the case depends on which act it is classified as, the first task is to write down smoking, buying and sharing separately, by date and by person.

If the cannabis was brought in from abroad, yet another provision awaits. Importing cannabis carries life imprisonment or imprisonment of at least five years (Article 58(1)5), which is far heavier than buying it in Korea. This is why you also need to check whether any cannabis products received through direct overseas purchase are mixed in.