Supreme Court: “If the Person Concealing Evidence Also Feared Their Own Punishment, It Is Not Instigation to Conceal Evidence”

Conviction in First Trial, Acquittal in Second… Finalized by Supreme Court

Supreme Court, Seocho-gu, Seoul. Photo by Yonhap News

The Supreme Court has ruled that if a person entrusts their mobile phone to another out of fear of being punished, but the person receiving the request also conceals the phone because they are afraid of being punished themselves, the latter cannot be convicted of instigation to conceal evidence.

According to the legal community on the 16th, the Supreme Court's Second Division (Presiding Justice Oh Kyung-mi) recently upheld the lower court’s verdict that acquitted Mr. A on the charge of instigation to conceal evidence and sentenced him to one year in prison for fraud.

Mr. A served as a recruiter, gathering bank accounts to be used for crimes by a so-called "side-hustle scam ring," and also helped transfer the stolen funds to other accounts. He was indicted for conspiring with another member of the group in March 2025 to receive a remittance of 7.5 million won from a victim and then transferring the money again.

On July 29 of the same year, while Mr. A was returning to Korea on a flight from Laos, a flight attendant informed him, "The relevant authorities wish to take you into custody, so please remain on board until the other passengers disembark." Sensing that he was about to be arrested, Mr. A handed his mobile phone to Mr. B, who was seated next to him, and instructed, "Take care of this and give it to my mother." Mr. A was subsequently arrested that day at Incheon International Airport Terminal 1.

Mr. B had applied for what is known as "account rental part-time work," in which a person provides their electronic financial transaction mediums for use by others. Since May of the same year, he had been living with Mr. A in Laos. After Mr. A’s arrest, Mr. B notified Mr. A’s mother and handed over the mobile phone to Mr. A’s maternal uncle the next day in Jungnang-gu, Seoul. Mr. B was indicted for evidence concealment and violation of the Electronic Financial Transactions Act, and received a sentence of six months in prison, suspended for two years.

The main issue was whether Mr. A could be convicted of instigation to conceal evidence. Article 155, Paragraph 1, of the Criminal Act penalizes those who destroy, conceal, forge, or falsify evidence related to another person’s criminal case. However, hiding evidence related to one's own criminal case does not fall under this provision.

At the first trial on November 20 of last year, the court found Mr. A guilty on both the fraud and instigation to conceal evidence charges, sentencing him to one year in prison. The appeals court maintained the one-year sentence on May 12 but overturned the conviction for instigation to conceal evidence, finding him not guilty on that count.

The Supreme Court upheld this decision. The court stated "Mr. B’s actions constituted evidence concealment for his own benefit, driven by fear that he would be subject to criminal punishment," and added that "even if such concealment also results in hiding evidence related to Mr. A’s criminal case, it is difficult to rule out the possibility that this does not constitute evidence concealment punishable under the law."

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