2018.12.14

2016 (A) 1808

Keishu Vo. 72, No. 6

Judgment upon the case in which a person who, upon request, received a package sent by a victim of a fraud at home under the guise of the addressee and conducted other acts was determined to have had an intention and been in conspiracy to commit the crime of fraud

Case charged for fraud and violation of the Stimulants Control Act

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

Tokyo High Court, Judgment of October 14, 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 by package-delivery service, the accused received a large amount of reward for the work of receiving a package sent to the accused's house under the guise of the addressee, upon request, and handing it over to a person in charge of collecting such packages, an activity which the accused had repeated multiple times; the accused was aware of the possibility that the package in this case might contain the subject of a fraud but merely says that the accused never imagined that the content was cash, 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 year

The judgment in prior instance is quashed.

The appeal to the court of second instance is dismissed.

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 the crime of the fraud as summarized below, in addition to the crime of violation of the Stimulants Control Act (use), and sentenced the accused to imprisonment for two years and six months.

The accused intended to defraud of cash in the name of settlement money for name-lending relating to the construction of a nursing home and conspired with A and those whose names are unknown. Those whose names are unknown made multiple calls to B (then-77-years old), who is in Kurashiki-shi, Okayama, around December 15 and on December 16, 2014, and, in the name of C and D, told lies to the effect that regarding the name-lending conducted using the name of B in relation to the construction of a nursing home: which B would have the right to occupy, B needed to send cash in order to evade criminal charges for the name-lending, thereby having had B erroneously believe to that effect and send cash of 300,000 yen to E at the accused's address in Ichihara-shi, Chiba, by package-delivery service on December 16, 2014. On December 17, 2014, the accused received the delivery at said address (hereinafter this act is referred to as the "Act of Receipt"), thereby having defrauded B of property.

2. The accused filed an appeal for the reason of inappropriateness of sentencing in the judgment in first instance. The court of prior instance ruled that no intention to commit a fraud is found by holding as follows by its authority in relation to the facts of fraud, and quashed the judgment in first instance and acquitted the accused.

In order to say that the accused assumes criminal responsibility as a coprincipal of the fraud, the accused's intention to commit a fraud must be found and it must be proven beyond reasonable doubt that the accused was at least willfully aware of the fact that the delivered package contained property, which A or a person who had communicated with A misled another person into sending in some way, at the time of the Act of Receipt and had committed the Act of Receipt while recognizing said fact; however, it is not found that the accused committed the Act of Receipt after explicitly conspiring with A or a person who gave instructions. Moreover, it cannot be inferred from the external circumstances relating to the Act of Receipt that the accused had the intention to commit the fraud, and it is impossible to find any behavior indicating that the accused had the intention to commit the fraud at the time of the Act of Receipt or before and after the act, etc. Considering the confessions of the accused at the investigation stage, the confessions were elicited as answers to the prosecutors' questions that were asked in a leading manner to get answers associated with the fraud, and it is questionable whether the confessions are the statements of the state of the accused's mind as of the Act of Receipt, and the confessions are not sufficient to find without reasonable doubt that the accused was willfully aware of the fact that the package contained the subject of a fraud at the time. This interpretation does not change even in consideration of the background to the accused's having committed the Act of Receipt and the manner of engaging in the work, etc., and therefore, there is no evidence that is sufficient to find the accused's intention to commit the fraud.

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.

From the end of November to around the beginning of December 2014, the accused was solicited by an acquaintance, A, an organized crime group member, to do the work of receiving a package at home and handing it over to a messenger bike rider and was told that a reward of from 5,000 to 10,000 yen would be paid per package.

Wondering whether the work offered by A was associated with any crime, the accused asked about the content of the package. A answered that the package contains magazines, documents or the like and that there would be no problem. The accused was solicited by A many times and finally accepted A's request, as the accused was financially struggling and wished to gain money.

The accused was supplied by A with a post-office box service contract, copies of driver's licenses of five or six persons, and a prepaid mobile phone (hereinafter referred to as the "Mobile Phone") and then received such instructions as the following: the Mobile Phone should be used for communication relating to the work; a man in charge of giving instructions will inform the accused of the name of the recipient before a package is delivered, so write the names, etc. of the recipient and those of the accused in the "parties to the contract" column in the post-office box service contract in different handwriting styles; make sure not to open the package; and make a report to the person who gave instructions by the Mobile Phone after receiving the package and also contact A after handing over the package to a messenger bike rider.

In accordance with the instructions of A, etc., the accused received the following packages addressed to other persons at home by signing the name of the recipient written in the destination column of each delivery ticket: one package on December 12, 2014, one package on December 16, 2014, two packages, including the package in question, on December 17, 2014, and two packages on December 26, 2014. The accused reported the receipt of each package to the person who gave instructions, handed it over to a male messenger bike rider who came to the accused's house about five minutes later, and received a reward of the amount largely as promised from A at later dates.

2. At the request of A, the accused received a large amount of reward for the work of receiving a package delivered at home under the guise of the addressee and immediately handing it over to a person in charge of collecting such packages, an activity which the accused had repeated multiple times. This fact alone is sufficient to make the accused suppose that the work offered by A is the receipt of packages sent in a crime of fraud, etc., and leads to a strong inference that the accused was aware of the possibility that the accused's own acts might constitute a fraud.

From the investigation stage, the accused stated that the accused never imagined that the package contained cash but thought that the package contained ingot (gold bullion), jewelry, a bank book in another person's name, a mobile phone subscribed in another person's name or a dummy person, etc. Additionally, the accused also stated that the accused was aware of the possibility that the package might contain the subject of a fraud and was even aware of the charged fact of fraud in the first instance and prior instance. Looking at the accused's statements as a whole, there are no circumstances that raise doubts about the credibility of the confessions. There are also no other circumstances that eliminate the possibility that the accused was aware that the accused's own acts might constitute a fraud.

Based on such facts, the accused is found to have received the package 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. Nevertheless, the court of prior instance quashed the judgment in first instance by ruling that the judgment in first instance that found such facts included an erroneous finding of facts. The court of prior instance should be considered to have made an error in evaluating the external facts that leads to an inference of the accused's intention to commit a fraud and the credibility of the accused's statements, and thereby have made a serious erroneous finding of facts. It is clear that said errors affected the judgment, and therefore, it would be extremely unjust if the judgment in prior instance were not quashed.

Accordingly, in accordance with Article 411, item (iii) of the Code of Criminal Procedure, the Court quashes the judgment in prior instance. Examining this case based on the case records, it is reasonable to uphold the judgment in first instance, including its sentencing of the accused to imprisonment for two years and six months, and there is no reason for the accused's appeal. Therefore, the Court dismisses the appeal to the court of second instance in accordance with the proviso to Article 413, Article 414, and Article 396 of the Code of Criminal Procedure, and applies the proviso to Article 181, paragraph (1) of the Code of Criminal Procedure to the court costs for this instance. The Court unanimously decides as set forth in the main text of the judgment.

Public Prosecutors, KANNO Toshiaki, YAMAMOTO Hiroshi, attended the trial.

Justice MIURA Mamoru

Justice ONIMARU Kaoru

Justice YAMAMOTO Tsuneyuki

Justice KANNO Hiroyuki