Judgments of the Supreme Court

Search Results

2018 (A) 1224

Date of the judgment (decision)

2019.09.27

Case Number

2018 (A) 1224

Reporter

Keishu Vol. 73, No. 4

Title

Judgment upon the case in which the court found that a person who, upon request, picked up the packages sent by the victim of fraud from the delivery box installed at the condominium to which the packages were sent, and thereby received the packages, had intent and was involved in conspiracy with the accomplices to commit fraud

Case name

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

Result

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

Court of the Prior Instance

Tokyo High Court, Judgment of July 20, 2018

Summary of the judgment (decision)

Based on the following facts of this case (see the text of the judgment), the accused had full intent of fraud and is also found to have been involved in conspiracy to commit fraud: in a case of special type of fraud of defrauding a victim of cash by having the victim send cash by delivery service, the accused, upon request, picked up the package from the delivery box of the condominium to which the package was sent, by a considerably unnatural method, i.e., picking up the attempted delivery notice from the mail slot of another person's mailbox, and then handed the package over to the person in charge of collection.

References

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.

Main text of the judgment (decision)

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, 140 days are included in the calculation of the sentence.

Reasons

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 crimes of fraud mentioned in (1) and attempted fraud mentioned in (2) as summarized below (hereinafter the cases concerning these facts of the crimes are referred to respectively as the "completed fraud case" and "attempted fraud case"), 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 eight months.

(1) The accused intended to defraud a person of cash while pretending that a certain amount of cash would be needed in order to solve a problem concerning the transfer of the right to occupy a room in a fictitious elderly care facility, and acted in conspiracy with those whose names are unknown in the following manner: they made several phone calls to A (aged 71 years at that time) at his/her residence located in Ichikawa City, Chiba Prefecture, during the period from around late October to around November 21, 2016; while claiming to be a care planner and construction company employees, they told a lie to A and led him/her into erroneously believing that A needed to send 3.5 million yen in cash in two installments by delivery service to B at Room No. 1303 of a condominium in Koto-ku, Tokyo, in order to solve the problem resulting from A's having lent his/her name in relation to the abovementioned transfer of the right to occupy; they had A send packages containing cash totaling 3.5 million yen by delivery service to B at that location on two occasions, i.e., November 17 and 21, 2016 ; and the accused picked up the packages deposited in the delivery box installed in that condominium, and thereby received the delivery of a total of 3.5 million yen in cash from A. In this manner, the accused defrauded another of property.

(2) The accused intended to defraud a person of cash on the pretext of creating a record of trading in the right to occupy a room in a fictitious elderly care facility, and acted in conspiracy with those whose names are unknown in the following manner: they made several phone calls to C (aged 77 years at that time) at his/her residence located in Hamamatsu City, during the period from around early December to around December 6, 2016; while claiming to be a care planner and construction company employees, they told a lie to C and led him/her into erroneously believing that C needed to send 1.5 million yen in cash by delivery service to D at Room No. 303 of a condominium in Kita-ku, Tokyo, in order to create a record of trading with a construction company as a precondition for paying to C's account an amount of consideration for the transfer of the right to occupy, which they said C owned, to another applicant for occupancy; they had C send a package containing 1.5 million yen in cash by delivery service to D at that location on December 6, 2016; and on December 7, the accused attempted to pick up the package deposited in the delivery box installed in that condominium, thereby attempting to defraud C of cash, but failed to complete this because C had consulted with police and put forged banknotes in that package.

2. The accused filed an appeal against the judgment in first instance, arguing violation of laws and regulations in the litigation proceedings and errors in the finding of fact. In the judgment in prior instance, the court ruled that while there was no error in the judgment in first instance in finding the accused's intent and involvement in conspiracy to commit fraud in the attempted fraud case, there was an error in the same judgment in finding the accused's intent and involvement in conspiracy to commit fraud in the completed fraud case. In conclusion, the court of prior instance quashed the judgment in first instance and acquitted the accused with regard to the completed fraud case for the reasons summarized below.

In the judgment in first instance, the court inferred that the accused had constructive intent of fraud in the attempted fraud case, and based on this inference, the court also inferred that the accused also had constructive intent and was involved in conspiracy to commit fraud in the completed fraud case, on the grounds that [i] the attempted fraud case and the completed fraud case are inferred to have been committed by the same group of frauds, and [ii] when picking up the packages in the completed fraud case, the accused had talked on the phone with the person at the same telephone number as that of the person with whom the accused talked upon the commission of the attempted fraud case.

However, even though it is found that the accused had the intent of fraud in light of the circumstances that existed at the time of the attempted fraud case, it is clear that this does not necessarily mean that the accused had the intent of fraud at the time of the completed fraud case. The facts mentioned in [i] and [ii] above cannot be regarded as the facts that lead to the inference that at the time of the completed fraud case, the accused had possessed the same awareness that he had at the time of the attempted fraud case. The completed fraud case should be examined focusing only on the circumstances that are found to have existed at the time of the completed fraud case, and from such perspective, whether it is found that the accused had intent and was involved in conspiracy to commit fraud at that time should be discussed. The abovementioned circumstances are not sufficient as circumstances under which the accused can be inferred to have become aware that he might be picking up the package sent by the victim of fraud. Unless at least there are other facts such as that starting some time ago, the accused had been engaged in picking up packages in the same manner, or that he had once been engaged in picking up a package in the same manner at another condominium, the accused would not have come up with the idea that he might be picking up the package sent by the victim of fraud, which could lead to the inference of his intent to commit fraud, and hence, there remains a reasonable doubt for inferring that the accused had constructive awareness of his commission of fraud.

II. The Court's decision

However, the aforementioned determination in the judgment in prior instance that denied the accused's intent and involvement in conspiracy to commit fraud in the completed fraud case 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 the completed fraud case are as follows.

(1) At the entrance of the condominium mentioned in I. 1(1) above (hereinafter referred to as the "Condominium"), a collective mailbox and delivery box are installed in addition to the automatic doors that lock automatically and the intercom system. The mailbox has mail slots on its entrance side (front side) for inserting mail items, while in order to receive a mail item, it is necessary to unlock the automatic lock and enter the elevator hall of the condominium through the automatic doors, and pick up the item from the back side of the mailbox. If a resident to whom a package is addressed is absent at the time of delivery, the deliverer puts the package into the delivery box, locks the box by setting the security code, writes the security code on the attempted delivery notice, and inserts the notice into the addressee's mailbox. The addressee picks up the attempted delivery notice, and picks up the package out of the delivery box using the security code written on it.

(2) Having been requested to pick up a package, the accused entered the entrance of the Condominium on November 18, 2016, picked up the attempted delivery notice from the mail slot on the entrance side of the mailbox of Room No. 1303, opened the door of the delivery box using the security code written on the notice, picked up the package containing cash that had been sent by A, and then handed the package over to the person in charge of collection.

(3) Having been requested to pick up a package, the accused entered the entrance of the Condominium again on November 22, 2016, picked up the attempted delivery notice from the mail slot of the mailbox of Room No. 1303 in the same manner, opened the door of the delivery box using the security code written on the notice, picked up the package containing cash that had been sent by A, and then handed the package over to the person in charge of collection (hereinafter these packages sent by A are referred to as the "Packages").

When picking up the Packages on the occasions mentioned above, the accused had talked on the cell phone with a person at the same telephone number as in the case of picking up the package in the attempted fraud case.

(4) After the previous resident of Room No. 1303, who was not B, had left as of November 18 upon the cancellation of the room rent contract, the room was not occupied during the rest of November 2016.

2. The accused, upon request, picked up the package from the delivery box by a considerably unnatural method, i.e., picking up the attempted delivery notice from the mail slot of another person's mailbox, and then handed the package over to the person in charge of collection. A resident of the Condominium would have never bothered to request the accused, who was an outsider, to pick up a package from the delivery box, or further tell him how to unlock the automatic lock or open the mailbox, and hence, it is unlikely that a resident of the Condominium would have the accused receive the package addressed to him/herself by such method. Taking these points into consideration, it can be reasonably inferred that the accused was aware that the requester was trying to pick up the package sent to a resident of the Condominium although he was not its resident. Thus, it can be inferred that the accused had been aware of the possibility that the sender had sent the package based on the mistaken impression that the resident of the Condominium to whom the package was addressed would receive the package, and therefore that the package that the accused was picking up had been sent as a result of fraud. In this respect, the judgment of prior instance stated that in the process of examining the completed fraud case, whether it is found that the accused had the intent of fraud should be discussed focusing only on the circumstances that existed at the time of the completed fraud case, and concluded that unless at least there are other facts such as that starting some time ago, the accused had been engaged in picking up packages in the same manner repeatedly, or that he had once been engaged in picking up packages in the same manner at another condominium, the accused would not have come up with an idea that he might be picking up the package sent by the victim of fraud, which could lead to the inference of his intent of fraud. However, it is possible in some cases to infer the intent of fraud by taking into consideration the circumstances after the event, and further in light of the facts of this case described above, the facts pointed out by the court of prior instance cannot be deemed to be crucial for inferring that the accused had the intent of fraud.

The accused also stated that he was requested by B to pick up the packages and thought that B lived in the Condominium. However, in light of the manner in which the accused picked up the Packages and the circumstances in which he talked on the phone at the time of each case, this statement of the accused cannot be trusted, and no other circumstances can be found which deny his awareness of the abovementioned possibility of fraud.

Based on such facts, it is found that the accused picked up and received the Packages with an awareness of the possibility that his own acts might constitute part of a fraud, and therefore, the accused had full intent of fraud and is also found to have been involved in conspiracy with the accomplices to commit fraud.

The court of prior instance judged that the accused cannot be found to have had the intent of fraud in the completed fraud case, and hence, it should be considered that the court of prior instance erroneously evaluated the facts that would lead to an inference of the accused's intent of fraud, and thereby made a serious error in the finding of facts. It is clear that said error 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. According to the discussion above, the judgment in first instance that found the accused's intent and his involvement in conspiracy to commit fraud in the completed fraud case can be accepted for its conclusion. Further based on the case records, all of the other reasons for appeal stated by the accused are groundless. In conclusion, it is reasonable to maintain the judgment in first instance. 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, KANNO Toshiaki and OSAMITSU Kenshi, attended the trial.

Presiding Judge

Justice KANNO Hiroyuki

Justice YAMAMOTO Tsuneyuki

Justice MIURA Mamoru

Justice KUSANO Koichi

(This translation is provisional and subject to revision.)