2019.12.20

2018 (A) 437

Keishu Vol. 73, No. 5

Judgment upon the case in which the court found that the entire amount paid to the accused based on the promise to transfer stimulants constitutes "property acquired by means of a criminal act of a drug crime" as referred to in Article 2, paragraph (3) of the Act Concerning Special Provisions for the Narcotics and Psychotropics Control Act, etc. and Other Matters for the Prevention of Activities Encouraging Illicit Conducts and Other Activities Involving Controlled Substances through International Cooperation

Case charged for violation of the Stimulants Control Act

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

Nagoya High Court, Kanazawa Branch, Judgment of February 20, 2018

Given the fact of the case that based on the promise to transfer 100g of stimulants at the price of 800,000 yen, the accused received the payment of the price and commenced to commit the transfer of a part of the stimulants covered by that promise, the entire amount thus received constitutes "property acquired by means of a criminal act of a drug crime" as referred to in Article 2, paragraph (3) of the Act Concerning Special Provisions for the Narcotics and Psychotropics Control Act, etc. and Other Matters for the Prevention of Activities Encouraging Illicit Conducts and Other Activities Involving Controlled Substances through International Cooperation.

(There is a concurring opinion.)

Article 2, paragraph (3) of the Act Concerning Special Provisions for the Narcotics and Psychotropics Control Act, etc. and Other Matters for the Prevention of Activities Encouraging Illicit Conducts and Other Activities Involving Controlled Substances through International Cooperation



Act Concerning Special Provisions for the Narcotics and Psychotropics Control Act, etc. and Other Matters for the Prevention of Activities Encouraging Illicit Conducts and Other Activities Involving Controlled Substances through International Cooperation

(Definitions)

Article 2 (3) The term "drug crime proceeds" as used in this Act means property acquired by means of a criminal act of a drug crime or property acquired as a reward for that criminal act, or funds related to the crime set forth in item (vii) of the preceding paragraph.

Of the judgment in prior instance, the part which states "As a sum of money equivalent to the value of the object to be confiscated, 640,000 yen shall be collected from the accused" is quashed.

As a sum of money equivalent to the value of the object to be confiscated, 800,000 yen shall be collected from the accused.

The final appeals against the other parts of the judgment in prior instance are dismissed.

Among the reasons for a final appeal stated by the public prosecutors, the argument of violation of a judicial precedent is irrelevant in this case because the cited judicial precedent addresses a different type of fact, and the others are arguments of a mere violation of laws and regulations; the reasons for a final appeal stated by the defense counsel, TATSUMI Hiroshi, are arguments of a mere violation of laws and regulations, an erroneous finding of facts, and inappropriate sentencing; and none of these arguments 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 arguments of the public prosecutors and those of the defense counsel, the judgment in prior instance should inevitably be quashed pursuant to Article 411, item (i) of the Code of Criminal Procedure with regard to the part stating that 640,000 yen shall be collected from the accused as a sum of money equivalent to the value of the object to be confiscated (an equivalent value), for the following reasons.

According to the findings by the court of prior instance, the facts concerning the collection of an equivalent value are as follows.

The accused made a promise to P to transfer 100g of stimulants at the price of 800,000 yen and deliver the stimulants in two batches, 80g and 20g, and had P pay the entire amount into the deposit account held in the name of the accused. As a part of the stimulants covered by that promise, the accused sent a package of 78.76g of stimulants (hereinafter referred to as the "Batch of Stimulants") to P's residence by delivery service, in an attempt to transfer the stimulants to P, but failed to accomplish this attempt (hereinafter this criminal act is referred to as the "Attempted Transfer").

The court of prior instance stated that the property that the accused had acquired by means of the Attempted Transfer, which constitutes a drug crime, was nothing but the amount of money equivalent to the price of the Batch of Stimulants, and that the accused was found to have sent the Batch of Stimulants as a partial transference that accounts for about 80% of the promised amount of stimulants (100g), and it concluded that the "property acquired by means of a criminal act of a drug crime" as referred to in Article 2, paragraph (3) of the Act Concerning Special Provisions for the Narcotics and Psychotropics Control Act, etc. and Other Matters for the Prevention of Activities Encouraging Illicit Conducts and Other Activities Involving Controlled Substances through International Cooperation (hereinafter referred to as the "Special Narcotics Act") was 640,000 yen, which has already been consumed and cannot be confiscated, and therefore, the sum of money equivalent to that amount should be collected from the accused.

However, based on the promise to transfer 100g of stimulants at the price of 800,000 yen, the accused received the payment of the price and commenced to commit the transfer of the Batch of Stimulants. The entire amount thus received is linked with the Attempted Transfer as the object received in exchange for the stimulants covered by that promise and can be regarded as property acquired through the Attempted Transfer, and therefore, that amount should be considered to be "property acquired by means of a criminal act of a drug crime" as referred to in Article 2, paragraph (3) of the Special Narcotics Act and constitute drug crime proceeds.

For the reasons stated above, the judgment in prior instance that determined that the amount to be collected from the accused as an equivalent value was 640,000 yen is illegal due to the errors in the interpretation and application of Article 2, paragraph (3) of the Special Narcotics Act. Such illegality obviously affects the judgment and it is found to be extremely unjust if the relevant part of the judgment in prior instance were not quashed.

Accordingly, in accordance with Article 411, item (i) and the proviso to Article 413 of the Code of Criminal Procedure, the Court quashes the part of the judgment in prior instance which stated "As a sum of money equivalent to the value of the object to be confiscated, 640,000 yen shall be collected from the accused." Although the amount received by the accused through the Attempted Transfer, 800,000 yen, constitutes drug crime proceeds referred to in Article 11, paragraph (1), item (i) of the Special Narcotics Act, it has already been consumed and cannot be confiscated. Therefore, the sum of money equivalent to that amount shall be collected from the accused pursuant to the first sentence of Article 13, paragraph (1) of the same Act. The Court dismisses the final appeals against the other parts of the judgment in prior instance pursuant to Articles 414 and 396 of the Code of Criminal Procedure, and by applying the proviso to Article 181, paragraph (1) of the same Code to the court costs for this instance, the Court unanimously decides as set forth in the main text of the judgment. There is a concurring opinion by Justice MIURA Mamoru.

The concurring opinion by Justice MIURA Mamoru is as follows.

"Property acquired by means of a criminal act of a drug crime" as referred to in Article 2, paragraph (3) of the Special Narcotics Act is interpreted as meaning property acquired through a criminal act of a drug crime. It is considered that whether or not the acquisition of a certain property can be regarded as the case where the property has been "acquired " by means of a criminal act should be determined, as a general rule, in light of how the acquisition of the property is linked with the criminal act, while taking into consideration the purpose and situation of the acquisition of the property.

When it comes to the transfer for value of a controlled drug, the price for the drug may be paid before the act of transfer in some cases. However, irrespective of whether the payment is made before or after the act of transfer, if the amount of the price and other matters have been determined based on a promise between the parties with regard to the transfer, and the transferor has received the payment of the price, the amount thus received is considered to constitute property "acquired" by means of a criminal act as long as the crime involving the transfer is established.

Similarly, even in the case where the transferor received the advance payment of the price based on the promise to transfer the controlled drug but only a portion of the controlled drug covered by the promise was transferred or the attempt of the transfer ended in failure, as happened in this case, the situation is basically the same as above in that the transferor acquired property based on a promise concerning a criminal act and committed the crime in line with that promise. In such case, although the scope of the criminal act may appear to be inconsistent with the scope of the property acquired thereby, the property in question is linked with the criminal act indivisibly as the object received in exchange for the controlled drug covered by the promise, and the transferor can be considered to have acquired that property as a whole by means of the criminal act.

The confiscation under Article 19, paragraph (1), item (iii) of the Penal Code is a measure to deprive a criminal of his/her wrongful gain for the purpose of disallowing the criminal to retain that gain. In order to ensure such purpose, unlike the confiscation under items (i) and (ii) of the same paragraph, it is provided that the targets to be confiscated under item (iii) include the object received in exchange for the object acquired by means of a criminal act (item (iv) of the same paragraph), and if these objects cannot be confiscated, a sum of money equivalent thereto may be collected (Article 19-2 of the same Code). The provisions concerning the confiscation of drug crime proceeds and the collection of an equivalent value under the Special Narcotics Act (Article 11, paragraph (1) and Article 13, paragraph (1) of the same Act) are based on the same purpose and are designed to cover a broader scope of property to be confiscated with a view to ensuring that purpose more thoroughly. It is obvious that including the whole of the property acquired based on the promise that has provided the basis for a criminal act in the scope of property subject to the confiscation and the collection of an equivalent value goes along with the purpose of law, i.e., depriving a criminal of his/her wrongful gain acquired by means of a criminal act.

Public Prosecutors, OSAMITSU Kenshi and SEKI Kazuho attended the trial.

Justice MIURA Mamoru

Justice KANNO Hiroyuki

Justice KUSANO Koichi

Justice OKAMURA Kazumi