2018.12.11

2017 (A) 44

Keishu Vol. 72, No. 6

Judgment upon the case in which a person who went to a vacant room of a condominium building, received packages sent by the victims of the fraud under the guise of the addressee, and conducted other acts under instructions to do so, was determined to have had an intention and had been in conspiracy to commit the crime of fraud

Case charged for violation of the Stimulants Control Act, attempted fraud, and fraud

Judgment of the Third Petty Bench, quashed and decided by the Supreme Court

Fukuoka High Court, Miyazaki Branch, Judgment of November 10, 2016

Based on the facts of this case such as follows (see the text of the judgment), the accused had full intention to commit a fraud and is also found to have been in conspiracy with the accomplices: in a special fraud of defrauding a victim of cash by having the victim send cash to a vacant room of a condominium building by package-delivery service; the accused went to the vacant room of the condominium building, received the package sent thereto under the guise of the addressee, and handed it over to a person in charge of collecting such packages under instructions to do so; the accused received a reward, etc. for similar acts of receiving packages that the accused had repeated many times and was aware of participating in criminal acts; and there are no circumstances that eliminate the possibility that the accused was aware that the accused's own acts might constitute a fraud.

Article 60 and Article 246, paragraph (1) of the Penal Code



Penal Code

(Co-Principals)

Article 60 Two or more persons who commit a crime in joint action are all principals.



(Fraud)

Article 246, paragraph (1)

(1) A person who defrauds another of property shall be punished by imprisonment with work for not more than 10 years.

The judgment in prior instance is quashed.

The appeal to the court of second instance is dismissed.

Out of the number of days of pre-sentencing detention for prior instance, 60 days are included in the calculation of the sentence.

The reasons for a final appeal stated by the public prosecutors, including the argument of violation of a judicial precedent, are substantially arguments of a mere violation of laws and regulations and an erroneous finding of facts, and do not constitute any of the reasons for a final appeal as referred to in Article 405 of the Code of Criminal Procedure.

However, as a result of the Court's examination by its authority in consideration of the counsel's arguments, the judgment in prior instance should inevitably be quashed pursuant to Article 411, item (iii) of the Code of Criminal Procedure, for the following reasons.

I. Digests of the judgment in first instance and the judgment in prior instance

1. In the judgment in first instance, the court found the facts of crimes of the frauds mentioned in (1) and (3) and the attempted fraud mentioned in (2) as summarized below, in addition to the crime of violation of the Stimulants Control Act (use and possession), and sentenced the accused to imprisonment for four years and six months.

(1) In conspiracy with those whose names are unknown, the accused intended to defraud A (then-83-years old) of cash in the name of advance money for solving a problem of name-lending for a nursing home occupancy contract by taking advantage of the circumstance where A erroneously believed that A needed to deliver the advance money for solving the problem and that the advance money would be subsequently returned. On November 17, 2015, one of the persons whose names are unknown made a call to A's home in Fujiyoshida-shi, Yamanashi, told lies, and had A erroneously believe that A needed to deliver cash for solving the aforementioned problem and that the delivered cash would be returned, thereby, having had A send a package containing cash of 1,500,000 yen to B at Room 301 of a condominium building in Kawaguchi-shi, Saitama, by package-delivery service on the same day, and on November 18, 2015, the accused received the package from an employee of a delivery company under the guise of B, who was the addressee, at Room 305 of the condominium building, thereby having defrauded A of property.

(2) In conspiracy with those whose names are unknown, the accused intended to defraud C (then-80-years old) of cash in the name of advance money for solving a problem caused by having transferred the right to move into a nursing home to a third party. During the period from November 18 to November 19, 2015, one of the persons whose names are unknown made a call to C's home in Kagoshima-shi, told lies, and attempted to have C send a package containing cash to D at Room 205 of a condominium building in Adachi-ku, Tokyo, by package-delivery service. On November 21, 2015, the accused attempted to defraud the cash by receiving the package from an employee of a delivery company under the guise of D, who was the addressee, at the aforementioned condominium building but could not achieve the purpose because C detected the lies.

(3) In conspiracy with those whose names are unknown, the accused intended to defraud E (then-87-years old) of cash in the name of advance money for solving a problem caused by having transferred the right to move into a nursing home to a third party by taking advantage of the circumstance where E erroneously believed that E needed to deliver the advance money for solving the problem and that the advance money would be subsequently returned. On December 4, 2015, one of the persons whose names are unknown made a call to E's home in Kawasaki-shi, told lies, and had E erroneously believe that E needed to deliver cash for solving the aforementioned problem and that the delivered cash would be returned, thereby causing E to send a package containing cash of 1,500,000 yen to F at Room 405 of a condominium building in Edogawa-ku, Tokyo, by package-delivery service on the same day. On December 5, 2015, the accused received the package from an employee of a delivery company under the guise of F, who was the addressee, at Room 405 of the aforementioned condominium building, thereby having defrauded E of property.

2. The accused filed an appeal against the judgment in first instance for the reason of an erroneous finding of facts. In the judgment in prior instance, the court ruled that neither intention nor conspiracy to commit a fraud was found by holding as follows in relation to the facts mentioned in 1(1) to (3) above, and quashed the judgment in first instance and acquitted the accused.

In the judgment in first instance, the court first ruled that it is easily recognizable that the work of going to an instructed place, receiving a package delivered thereto by package-delivery service, and carrying it to an instructed place, which the accused was asked to do by G, who was the accused's former work colleague, is not a normal economic transaction but is a criminal act that takes on illegality and that the accused was also aware of that fact. The court then ruled that it can be inferred that the accused was sufficiently aware of the possibility that a fraud might be included in a criminal act constituted of receiving a package, in consideration of the following facts: [i] the accused had received packages under the guise of other persons by using different names at vacant rooms of different condominium buildings at a frequency of about 20 times a month; [ii] the crime of defrauding cash under the guise of another person that is committed by fraudulent groups is widespread in various forms, and has been widely covered by the media, etc.; [iii] the accused had known that there were multiple forms of receiving fraudulent money, such as having a victim pay money into a bank account and visiting a victim to directly receive cash. The court then concluded that it is difficult to find a reasonable ground for the accused's excuse to the effect that the accused recognized the content of the package not as fraudulent money but as illegal drugs and guns.

However, whether or not the inference based on the fact mentioned in [i] above works depends on to what degree the form of fraud by having a victim send cash to a vacant room had been well-known in society by the reporting, etc. mentioned in [ii] above. In light of the status of reporting as of the time of the acts in question, it cannot be said that an ordinary person should have been able to naturally recognize the existence of such fraud. Moreover, regarding the rule of thumb that is deemed to have been used as a premise in the judgment in first instance—the accused should have suspected the content of the packages the accused received according to the fact that the accused had repeatedly committed the act of the same form for about one month before this case, and if so, the accused should have examined the content of the packages—, the accused in this case must have had no motive to know the content of the packages, and therefore, this case cannot be considered to be one to which the aforementioned rule of thumb is applicable. Furthermore, the methods of receiving fraudulent money which the accused had recognized were to have a victim pay money into a bank account and to visit a victim to directly receive cash, and a method of receiving a package at a vacant room of a condominium building is quite odd compared to those methods. Considerably high abilities to abstract and associate are necessary to associate the former methods with the latter method, and the package-delivery service box in this case is hardly associated with the image of sending cash in terms of appearance. For the reasons described above, the judgment in first instance involves a logical leap in the inference process, or is erroneous in the evaluation of the probative value of evidence and the ability to infer indirect facts, in its findings that the accused was aware that the criminal act in which the accused participated might include a fraud and that the accused was in conspiracy to commit a fraud with the persons whose names are unknown. Therefore, the judgment in first instance is unreasonable in light of the rule of logic, rule of thumb, etc. and it thus cannot be upheld.

II. The Court's decision

However, the aforementioned determination in the judgment in prior instance cannot be upheld for the following reasons.

1. According to the findings of the judgment in first instance and the judgment in prior instance, as well as the case records, the facts of this case are as follows.

Around September 2015, the accused was asked by G, who was the accused's former colleague, to conduct "work" of going to a vacant room of a condominium building instructed by G, etc., receiving a package delivered thereto by package-delivery service under the guise of the dweller of the room, and carrying it to another instructed place. The accused was given an explanation by G that there were other persons in charge of collecting packages or watching for the police, that a reward would be 100,000 to 150,000 yen per work, and that there would be a possibility of being arrested. On the day before the receipt, the accused was informed of the place of receipt, the location of the key to the room, the delivery time, etc. About 20 times from the mid-October of 2015, the accused went to a vacant room of a condominium building in Saitama, Chiba, Kanagawa, and Tokyo, received a package box under the guise of a different addressee for each condominium building, put the package box in a bag as it is or opened the box and took out a small box therefrom, and placed the relevant bag or box at an instructed location or handed it over to a person in charge of collecting such packages, who differed every time. The actual rewards were 10,000 yen per work with transportation expense of 2,000 or 3,000 yen.

2. Based on G's instructions, the accused went to a vacant room of a condominium building, received a package delivered thereto under the guise of the addressee, and handed it over to a person in charge of collecting such packages or conducted other act. In addition, the accused repeatedly committed similar acts of receipt many times under the guise of different addressees at different locations and received a reward of about 10,000 yen, etc. on each occasion, and the accused admits that the accused was aware of being participating in a criminal act. These facts are sufficient to suggest that the packages were sent based on a crime involving a fraud, and should be considered to lead to a strong inference that the accused was aware of the possibility that the accused's own acts might constitute a fraud, irrespective of whether the trick of this case was widely well-known in society by media coverage, etc. In this regard, the court of prior instance stated that a mere repetition of the act of receipt of the same form as mentioned above does not serve as a ground for inferring that the accused was aware of the possibility that the content of the packages the accused received might be fraudulent money and that the form of fraud by having a victim send cash to a vacant room needed to have been widespread and widely well-known as a premise for establishing this inference. However, this interpretation is irrelevant as mentioned above. Moreover, the court of prior instance ruled that the accused could not be considered to have been able to take notice of the new trick of fraud just because the accused had known the conventional tricks of fraud, and then ruled that the trick of fraud by having a victim send cash to a vacant room by using package-delivery service like this case and the tricks of fraud of which the accused was aware, such as directly receiving property, differ in the nature and that, in the absence of the considerably high abilities to abstract and associate, the accused could not think of the possibility that the accused's own acts might constitute a fraud. However, the aforementioned tricks have commonality in that a person takes charge of the act of receiving property under the guise of another person while many persons are sharing roles, and it is unreasonable and cannot be upheld to determine that the accused could not think of the possibility that the accused's own acts might] constitute a fraud unless the accused had the abilities mentioned in the judgment in prior instance. All the rules of logic, rule of thumb, etc. which were pointed out by the court of prior instance as reasons for ruling that the judgment in first instance is unjust cannot be considered to be necessary for inferring the intention to commit the fraud in this case and can also hardly be said to be appropriate.

3. The accused then stated that the accused believed that the packages contain guns and drugs, but did not confirm that the packages contain guns and drugs, and there are no circumstances that eliminate the possibility that the accused was aware that the accused’s own acts might constitute a fraud.

4. Based on such facts, the accused is found to have received the packages with an awareness of the possibility that the accused's own acts might constitute a fraud, and therefore, the accused had full intention to commit a fraud and is also found to have been in conspiracy with the accomplices. The ruling of the court of prior instance to the effect that the process of inferring intention in the judgment in first instance involves a leap and that the accused's intention to commit a fraud cannot be found, involves an erroneous finding of facts caused by errors in making determinations concerning the mutual relationship between indirect facts found in the judgment in first instance and the process of inferring the intention, and it is clear that said errors affect the judgment. Therefore, it would be extremely unjust if the judgment in prior instance were not quashed.

5. Accordingly, in accordance with Article 411, item (iii) of the Code of Criminal Procedure, the Court quashes the judgment in prior instance. According to the consideration above, the appeal filed by the accused based on the argument of an erroneous finding of facts in the judgment in first instance is determined to be groundless. Therefore, the Court dismisses the appeal in accordance with the proviso to Article 413, Article 414, and Article 396 of the Code of Criminal Procedure, and applies Article 21 of the Penal Code to the inclusion of the number of days of pre-sentencing detention for prior instance and applies the proviso to Article 181, paragraph (1) of the Code of Criminal Procedure to court costs for this instance and prior instance. The Court unanimously decides as set forth in the main text of the judgment.

Public Prosecutors, UKAWA Haruhiko, OKUBO Kazuyuki, attended the trial.

Justice MIYAZAKI Yuko

Justice OKABE Kiyoko

Justice YAMASAKI Toshimitsu

Justice TOKURA Saburo

Justice HAYASHI Keiichi