2009.03.26

2008(A)1518

Keishu Vol. 63, No. 3

Judgment concerning the meaning of the phrase “justifiable grounds” set forth in Article 1, item (ii) of the Minor Offenses Act, and how to determine the existence or absence such justifiable grounds

Case charged for violation of the Minor Offenses Act

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

Tokyo High Court, Judgment of July 9, 2008

1. The case where a person has “justifiable grounds” set forth in Article 1, item (ii) of the Minor Offenses Act means that the person’s secret carrying of the apparatus set forth in said item can be judged to be appropriate according to the generally accepted ideas because of the necessity to do so for his/her occupation or everyday life, and whether or not there are such justifiable grounds should be determined by comprehensively considering the objective factors, e.g. the use, shape, and function of the apparatus, the relevance between the apparatus and the occupation or everyday life of the person who secretly carries it, and the time, place, manner, and circumstances where he/she secretly carries it, as well as the subjective factors, e.g. the motive, purpose, awareness of the secret carrying. 2. Given the facts of the case that the accuseda person, due to the occupational necessity, obtained a relatively small tear-gas spray for self-protection manufactured by a specialized manufacturer, which falls within the scope of the apparatus set forth in Article 1, item (ii) of the Minor Offenses Act, and when going cycling on the road late at night for health reasons, he/she secretly carried the spray in the pocket of his/her pants exclusively for self-defense, such act of secretly carrying the spray can be judged to be supported by “justifiable grounds” set forth in said item. (There is a concurring opinion concerning 2.)

(Concerning 1 and 2) Article 1, item (ii) of the Minor Offenses Act A person who falls under any of the following items shall be punished by misdemeanor imprisonment without work or a petty fine: (ii) a person secretly carrying with him/her, without justifiable grounds, a knife, iron bar or any other apparatus which could be used to harm another person’s life or cause serious bodily harm to another person.

The judgment in prior instance and the judgment in first instance are quashed. The accused is not guilty.

Among the reasons for final appeal argued by the defense counsel, MAEDA Ryo, the reason alleging that the provision of Article 1, item (ii) of the Minor Offenses Act is unconstitutional due to the ambiguousness of the meaning of the phrase set forth therein, “apparatus which could be used to harm another person’s life or cause serious bodily harm to another person,” lacks a premise for the allegation because the meaning of said phrase cannot be judged to be ambiguous as alleged, and the rest, which also allege violation of the Constitution, are in effect assertions of unappealable violation of laws and regulations or errors in fact finding. The reasons for final appeal argued by the accused him/herself are assertions of unappealable violation of laws and regulations. None of these assertions can be regarded as a reason for final appeal permissible under Article 405 of the Code of Criminal Procedure. However, having examined the case by our own authority in light of the appeal counsel’s arguments, we should inevitably quash the judgment in prior instance and the judgment of first instance pursuant to Article 411, item (i) of the Code of Criminal Procedure. The reasons for our conclusion are as follows. 1. In this case, the accused is charged for the following fact: “The accused, without justifiable grounds, on August 26, 2007, around 3:20 a.m., on the road around Nishishinjuku 2-9, Shinjuku-ku, Tokyo, secretly carried in the left front pocket of his/her pants a tear-gas spray which could be used to harm another person’s life or cause serious bodily harm to another person.” The judgment in first instance found the fact as charged, and sentenced the accused to a petty fine of 9,000 yen by applying Article 1, item (ii) of the Minor Offenses Act. The judgment in prior instance maintained this judgment. More specifically, the judgment in prior instance and the judgment in first instance affirmed by the former concluded as follows: the tear-gas spray that the accused carried with him/her in this case (hereinafter referred to as the “Spray”) falls within the scope of “apparatus which could be used to harm another person’s life or cause serious bodily harm to another person” set forth in Article 1, item (ii) of the Minor Offenses Act; the accused carried the Spray in the left front pocket of his/her pants, which can be regarded as “secretly carrying” as set forth in said item, and he/she is found to have had no “justifiable grounds” set forth in said item for secretly carrying the Spray. 2. The appeal counsel argues that the Spray does not fall within the scope of “apparatus which could be used to harm another person’s life or cause serious bodily harm to another person” set forth in Article 1, item (ii) of the Minor Offenses Act, and that the accused had “justifiable grounds” set forth in said item for secretly carrying the Spray on the night of the incident. (1) First, we examine whether or not the Spray falls within the scope of “apparatus which could be used to harm another person’s life or cause serious bodily harm to another person” set forth in Article 1, item (ii) of the Minor Offenses Act. The judgment in first instance, affirmed by the judgment in prior instance, found the following facts. (i) The Spray is manufactured as a spray for self-protection by a major US manufacturer specialized in this field. It is a canned spray, about 11 grams in content weight and about 8 centimeters in height. It produces a jet of liquid containing CN gas (2- chloroacetophenone), and it can be used to spray at the target like a water gun because it is less susceptible to wind even when used outdoor. (ii) CN gas is extremely strongly lachrymatory. When it is applied to a human being at 0.3 ppm, it stimulates the eyes and reddens the sensitive parts of the skin, and in high concentrations, it sometimes causes conjunctival inflammation and leads to loss of sight. (iii) The advertisement for the Spray contains notes such as follows: “This product is for self-protection. Do not use it for purposes other than self-defense or self-protection; use it on your own responsibility only when you are in danger and need to protect yourself. Use it only when your use is justified for self-defense.” According to the facts mentioned in (i) and (ii) above, even if it is taken into consideration that the Spray is an apparatus that is supposed to be used to protect oneself in a manner that a person, who is in danger due to an assault by a thug or the like, as described in (iii) above, sprays at the attacker, the Spray obviously falls within the scope of “apparatus which could be used to harm another person’s life or cause serious bodily harm to another person” set forth in Article 1, item (ii) of the Minor Offenses Act. (2) Next, we examine whether or not the accused had “justifiable grounds” set forth in Article 1, item (ii) of the Minor Offenses Act for secretly carrying the Spray on the night of the incident. The judgment in first instance, affirmed by the judgment in prior instance, found the following facts. (i) The accused was in charge of accounting affairs at the company where he/she worked, and he/she sometimes transported securities or a large amount of cash in a briefcase, by train or on foot, to and from the head office of the company located in Nakano-ku, Tokyo, and the banks located in Shinjuku-ku, Tokyo. Feeling the need to protect him/herself or the securities, etc. that he/she carried in case he/she was assaulted by a thug or the like during transportation, the accused thought about carrying a tear-gas spray for self-protection, and bought the Spray. (ii) The accused usually went to work from his/her residence in Nakano-ku, with the Spray in his/her bag, and when he/she went to banks on business, he/she took out the Spray from the bag and carried it with him/her. When the accused brought the Spray back home, he/she left it in the bag. (iii) The accused was advised by his/her doctor to do some exercise for health reasons, and aimed at doing exercises such as running or cycling routinely. On the night of the incident, since the accused took a nap from the evening until night on August 25, 2007, he/she decided to go cycling at around 2:00 a.m. on the following day from his/her home in the direction of Shinjuku (August 26). On that occasion, the accused decided to carry the Spray with him/her for self-protection in case of danger, and took it out from the bag and put it in the left front pocket of his/her pants. This charged case occurred under these circumstances. The case where a person has “justifiable grounds” set forth in Article 1, item (ii) of the Minor Offenses Act means that the person’s secret carrying of the apparatus set forth in said item can be judged to be appropriate according to the generally accepted ideas because of the necessity to do so for his/her occupation or everyday life, and it is construed that whether or not there are such justifiable grounds should be determined by comprehensively considering the objective factors, e.g. the use, shape, and function of the apparatus, the relevance between the apparatus and the occupation or everyday life of the person who secretly carries it, and the time, place, manner, and circumstances where he/she secretly carries it, as well as the subjective factors, e.g. the motive, purpose, awareness of the secret carrying. Given the facts of the case that the accused, due to the occupational necessity, obtained a relatively small tear-gas spray for self-protection manufactured by a specialized manufacturer, and when going cycling late at night on the road for health reasons, he/she secretly carried the Spray in the pocket of his/her pants exclusively for self-defense, such act of secretly carrying the Spray should be regarded as a reasonable act according to the socially accepted ideas and should be judged to be supported by “justifiable grounds” as explained above. Therefore, it is appropriate to construe that this act does not constitute the crime under Article 1, item (ii) of the Minor Offenses Act. Consequently, the judgment in prior instance and the judgment in first instance are illegal for their erroneous construction and application of Article 1, item (ii) of the Minor Offenses Act, and such illegality apparently affects the judgments. The judgment in prior instance and the judgment in first instance would bring about a considerable injustice if they were not quashed. Therefore, we have decided to quash the judgment in prior instance and the judgment in first instance according to Article 411, item (i) of the Code of Criminal Procedure, and pronounce the accused to be not guilty according to the proviso to Article 413, Article 414, Article 404, and Article 336 of said Code. The judgment has been rendered in the form of the main text by the unanimous consent of the Justices. There is a concurring opinion by Justice KAINAKA Tatsuo. The concurring opinion by Justice KAINAKA Tatsuo is as follows. I am in agreement with the court opinion, but I would like to give a supplementary comment in order to clearly state that this judgment offers a conclusion formed in light of the specific factual circumstances of this case, and it does not mean to declare that the act of secretly carrying a tear-gas spray generally does not constitute the crime set forth in Article 1, item (ii) of the Minor Offenses Act in any case. The accused obtained the Spray for his/her occupational necessity about one year before the incident, and carried it with him/her when necessary. On the night of the incident, when going cycling late at night for health reasons, the accused thought that he/she would pass some places where he/she might encounter a thug or the like by chance, and he/she secretly carried the Spray for self-defense in case of danger. Furthermore, the examination of the case records does not reveal a fact that the accused had any previous conviction or criminal record until this incident, which suggests that he/she has spent a life unrelated to crime. There are no circumstances which imply that when secretly carrying the Spray as described above, the accused had any intention other than protecting him/herself in case he/she was assaulted by a thug or the like. In view of matters such as the state of society where people feel deteriorated public safety, this court found “justifiable grounds” set forth in said item for the accused to have secretly carried the Spray under the factual circumstances described above. However, it is not rare at all that a tear-gas spray, even though it is manufactured as a device for crime prevention, is actually used for committing a crime or other wrongdoings, and in light of this, it is obviously necessary and reasonable to control the use of such apparatus under Article 1, item (ii) of the Minor Offenses Act. Not to mention that the act of secretly carrying a tear-gas spray for the purpose of committing a crime or any other wrongdoing cannot satisfy the requirement of “justifiable grounds,” the act of secretly carrying a tear-gas spray without any particular necessity at a place where many people gather is in general likely to be judged to lack “justifiable grounds.” Public Prosecutor YAHATA Yuji attended the trial.

Justice KAINAKA Tatsuo Justice WAKUI Norio Justice MIYAKAWA Koji Justice SAKURAI Ryuko Justice KANETSUKI Seishi