1996.02.13

1993 (A) 728

Keishu Vol. 50, No. 2 at 236

Decision concerning the case where the cutting tools in question that the accused possessed for the use at a traditional ritual of cutting food for cooking were found to fall under the category of sword set forth in Article 3, paragraph (1) of the Act for Controlling the Possession of Firearms or Swords and Other Such Weapons (prior to the revision by Act No. 52 of 1991)

Case charged for violation of the Act for Controlling the Possession of Firearms or Swords and Other Such Weapons

Decision of the Third Petty Bench, dismissed

Tokyo High Court, Judgment of June 4, 1993

Given the facts that each of the cutting tools in question has the shape and quality described such as that (i) it has a steel blade of about 33 centimeters as measured straight from its point to the place where the blade and the handle meet [hawatari], (ii) one side of the blade is sharply edged, (iii) the blade is secured with rivets to the handle, and (iv) the blade has a difference in width commonly called jaw, which is one of the characteristics of a Japanese kitchen knife, but the difference in width is completely concealed by the joint cover [habaki], these cutting tools in question fall under the category of sword set forth in Article 3, paragraph (1) of the Act for Controlling the Possession of Firearms or Swords and Other Such Weapons (prior to the revision by Act No. 52 of 1991), even though the accused possessed them for the use at a traditional ritual of cutting food for cooking.

Article 2, paragraph (2) and Article 3, paragraph (1) of the Act for Controlling the Possession of Firearms or Swords and Other Such Weapons (prior to the revision by Act No. 52 of 1991)

Article 2, paragraph (2) of the Act for Controlling the Possession of Firearms or Swords and Other Such Weapons (prior to the revision by Act No. 52 of 1991)
The term “sword” as used in this Act means a knife, sword, spear, naginata [Japanese halberd], and dagger with a blade of 15 centimeters or longer as measured straight from its point to its the place where the blade and the handle meet [hawatari], as well as a switchblade knife equipped with a device by which the blade automatically springs open at an angle of 45 degrees or larger (excluding a switchblade knife with a blade of 5.5 centimeters or shorter as measured straight from its point to its the place where the blade and the handle meet [hawatari] not equipped with a device for securing the blade that springs open to the sheath straight through, wherein the edge of the blade is straight and the point of the back of the blade is rounded, the line connecting between the point of the blade and the position on the back of the blade of one centimeter from the point crosses with the straight line of the edge of the blade at an angle of 60 degree or larger).

Article 3, paragraph (1) of the Act for Controlling the Possession of Firearms or Swords and Other Such Weapons (prior to the revision by Act No. 52 of 1991
Except in any of the following cases, no person shall possess a firearm or sword:
(i) Where a person possesses a firearm or sword for his/her duties under laws and regulations
(ii) Where an official of the State or a local public entity possesses a firearm or sword for experimental or research purposes, for using it as a teaching tool in the training set forth in Article 5-3, paragraph (1) [of this Act] or in Article 7-4, paragraph (3) of the Act on the Protection and Hunting of Wildlife (Act No. 32 of 1918), for using it in the skill test set forth in Article 5-4, paragraph (1) [of this Act] or for displaying it to the public
(iii) Where a person who has obtained permission under the provisions of Article 4 or Article 6 possesses a firearm or sword subject to the permission (excluding one that has been converted, after obtaining permission, into a disguised firearm or sword (meaning a firearm or sword disguised in such a manner that it may be mistaken as a cane or any other object that is not a firearm or sword; the same shall apply hereinafter))
(iii)-2 Where a person who participates in a skill test set forth in Article 5-4, paragraph (1) possesses a hunting gun pertaining to the skill test for the purpose of participating in the skill test
(iv) Where a shooting instructor set forth in Article 9-3, paragraph (1), for the purpose of providing instructions on shooting using a hunting gun or air gun at a designated shooting gallery or shooting gallery for training, possesses a hunting gun or air gun that a person receiving instruction may possess with permission under the provisions of Article 4 or Article 6
(iv)-2 Where a shooting training instructor set forth in Article 9-4, paragraph (1), item (ii) possesses a gun kept for training use set forth in Article 9-6, paragraph (2) for the purpose of providing shooting training set forth in Article 9-5, paragraph(1), or a person who receives shooting training possesses such a gun kept for training use for the purpose of receiving said shooting training
(vi)-3 Where a person who establishes or manages a shooting gallery for training possesses a gun kept for training use set forth in Article 9-6, paragraph (2) for the business thereof
(v) Where a person entrusted with custody of a handgun under the provision of Article 10-4, paragraph (1) possesses the gun subject to the entrustment for the purpose of custody pursuant to the provision of paragraph (2) of said Article
(vi) Where a person possesses a firearm or sword registered under the provision of Article 14 (excluding a disguised firearm or sword)
(vii) Where a manufacturer of arms or manufacturer of hunting guns, etc. set forth in the Act on Manufacturing of Arms, etc. (Act No. 145 of 1953) or a person who has obtained permission set forth in the proviso to Article 4 of said Act or the proviso to Article 18 of said Act possesses, for the business thereof, a firearm manufactured thereby (in the case of a firearm repaired by a manufacturer of hunting guns, etc., limited to one repaired as entrusted by a seller of hunting guns, etc., a person who establishes or manages a shooting gallery for training, or a person who possesses a firearm with permission under the provision of Article 4)
(viii) Where a seller of hunting guns, etc. under the Act on Manufacturing of Arms, etc. possesses, for the business thereof, a firearm assigned from a manufacturer of hunting guns, etc., a seller of hunting guns, etc., a person who establishes a shooting gallery for training, a person who possesses a firearm with permission under the provision of Article 4, a person who is required to take any measures set forth in Article 8, paragraph (6), or the State or a local public entity, or a firearm imported by said seller of hunting guns, etc. him/herself
(ix) Where a person entrusted with custody of a hunting gun or air gun under the provision of Article 10-7, paragraph (1) possesses the hunting gun or air gun subject to the entrustment for the purpose of custody under the provision of Article 9-7, paragraph (2) as applied mutatis mutandis pursuant to Article 10-7, paragraph (2)
(x) Where a person who produces a sword with approval of the Commissioner for Cultural Affairs possesses a sword produced thereby in line with the purpose of production
(xi) A person engaging in the business of manufacturing, while notifying the public safety commission of the prefecture that has jurisdiction over the location of the person’s workplace, marking guns for whaling, lifeline throwing guns, signal guns for rescue, riveting guns for construction, rope throwing guns for construction, signal guns for athletics or any other firearms specified by a Cabinet Order under Article 4, paragraph (1), item (ii) (hereinafter referred to as a “manufacturer of marking guns for whaling, etc.”), possesses, for the business thereof, a firearm manufactured thereby (in the case of a firearm repaired by a manufacturer of marking guns for whaling, etc., limited to one repaired as entrusted by a person engaging in selling, while notifying the public safety commission of the prefecture that has jurisdiction over the location of the person’s workplace, any of the firearms mentioned above (hereinafter referred to as a “seller of marking guns for whaling, etc.”) or entrusted by a person who possesses a firearm with permission under the provision of Article 4)
(xii) Where a seller of marking guns for whaling, etc. possesses, for the business thereof, a firearm assigned from a manufacturer of marking guns for whaling, etc., a seller of marking guns for whaling, etc., a person who possesses a firearm with permission under the provision of Article 4, a person who is required to take any measures set forth in Article 8, paragraph (6), or the State or a local public entity, or a firearm imported by said seller of marking guns for whaling, etc. him/herself
(xiii) In addition to the case listed in item (x), where a person engaging in producing swords to be exported, while notifying the public safety commission of the prefecture that has jurisdiction over the location of the person’s workplace, possesses the sword produced thereby for the business thereof, or a person entrusted to handle the export of such swords possesses one subject to the entrustment for the purpose of exporting it

The final appeal is dismissed.

Among the reasons for final appeal argued by the defense counsel, OTSUKA Kazuo, the reason alleging violation of Article 31 of the Constitution lacks a premise of the allegation because the term “sword” set forth in Article 3, paragraph (1) of the Act for Controlling the Possession of Firearms or Swords and Other Such Weapons (prior to the revision by Act No. 52 of 1991) cannot be deemed to be ambiguous as alleged by the defense counsel, and among the reasons for final appeal argued by the defense counsels, OTSUKA Kazuo and ITO Hiroshi, the reason alleging violation of judicial precedents are irrelevant in this case because the cited judicial precedents address different types of facts, and the rest of the reasons for final appeal argued by the defense counsels, OTSUKA Kazuo and ITO Hiroshi, and the reasons for final appeal argued by the accused are assertions of unappealable violation of laws and regulations or errors in fact finding, and none of them can be regarded as a reason for final appeal permissible under Article 405 of the Code of Criminal Procedure.
Considering the defense counsels’ argument, however, we make a determination by this court’s own authority.
According to the findings of the judgment of prior instance, each of the seven cutting tools in question that the accused possessed for the use at a traditional ritual of cutting food for cooking is a sharply-pointed cutting tool made of (carbon) steel, equipped with a sharp blade of about 32.2 to 33.4 centimeters in length as measured straight from its point to its the place where the blade and the handle meet [hawatari], about 3.5 centimeters in width near the handle, and about 0.4 centimeters in thickness at the spine, one side of the blade being well ground. It has no sword guard but its blade is secured with rivets to the handle of plain wood of almost the same width as the blade and is put into the sheath of plain wood. Between the main body of the blade and the lower part of the blade that is inserted into the handle [hamachi], the blade has a difference in width commonly called jaw, which is small but one of the characteristics of a Japanese kitchen knife, but the difference in width is completely concealed by the joint cover [habaki]. Focusing on these characteristics, it is appropriate to recognize that each cutting tool in question has a shape and quality of something can be called “knife” according to socially accepted ideas (in terms of its length, it can be regarded as one commonly called “short sword” [wakizashi]). In consequence, the determination of the court of prior instance concluding that each cutting tool in question falls within the category of “sword” set forth in Article 3, paragraph (1) of the Act for Controlling the Possession of Firearms or Swords and Other Such Weapons (prior to the revision by Act No. 52 of 1991) is justifiable.

Therefore, according to Article 414 and Article 386, paragraph (1), item (iii) of the Code of Criminal Procedure, the decision has been rendered in the form of the main text by the unanimous consent of the Justices.

Justice CHIKUSA Hideo
Justice SONOBE Itsuo
Justice KABE Tsuneo
Justice ONO Masao
Justice OZAKI Yukinobu