The Supreme Court rendered the 107-Tai-Shang-311 Criminal Decision of February 27, 2018 (hereinafter, the “Decision”), holding that since agreed-upon mutual transfer of property rights other than money is different from an intent to seek profits, the approach of mutual transfer of inventory followed by subsequent return of an equal quantity of narcotics cannot be found to have an intent to seek profits simply because of any likelihood to generate profits.
According to the facts underlying this Decision, the original decision set aside the decision in which the original trial court ruled that the Defendants had resold Level 2 narcotics and found instead that the Defendants had sold Level 2 narcotics along with a declaration of confiscation. Dissatisfied, the Defendants filed this appeal.
It was first pointed out in this Decision that a selling act requires an intent to seek profits. Under Article 154, Paragraph 2 of the Code of Criminal Procedure, the determination of the criteria and facts associated with the establishment of such subjective offense is bound by strict evidentiary rules and should be determined based on evidence.
It was further pointed out in this Decision that the “mutual transfer of inventory followed by subsequent return of an equal quantity of narcotics” between the Defendants was an “exchange.” In addition, there were still disconnects between “mutual transfer of property rights other than money” and “an intent to seek profits.” The Defendants “allowed one party to deliver a fixed quantity of narcotics with the same quantity of narcotics to be returned by the other party in the future.” This is different from an “exchange,” which involves mutual agreement on the “mutual transfer” of property rights other than money, but is closer to the meaning of “consumption loan.” The original decision stated: “Now that a return is required…this is by no means free of charge. In addition, there are differences in terms of the trading prices, quality and even purity of drugs. The same quantity does not translate into the same price. Even if the Defendants subsequently returned the same quantity of narcotics, it was still possible for both parties to profit in terms of prices and quality.” This obviously concluded, by way of conjecture, that the Defendants could generate profits. Since the determination of their profit-seeking intent still violated strict evidentiary rules, the original decision was reversed and remanded.